As Filed with the Securities and Exchange Commission on
June 24, 2019
Registration No. 333- ________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ARQULE, INC.
(Exact
name of registrant as specified in its charter)
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DELAWARE
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04-3221586
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(State or other jurisdiction of incorporation or organization)
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(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)
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Copies to:
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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
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, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering:
¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering:
¨
If 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:
x
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, check the following box:
¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act:
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Large Accelerated Filer
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Non-Accelerated Filer
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Accelerated Filer
x
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Smaller Reporting Company
x
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Emerging Growth Company
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of Securities Act.
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CALCULATION OF REGISTRATION FEE.
Title of each class of securities
to be registered
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Amount to be
Registered
(1)
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Proposed Maximum
Offering Price Per
Share
(1)
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Proposed Maximum
Aggregate Offering
Price
(1)
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Amount of registration
fee
(2)
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Common Stock, par value $0.01 per share
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Preferred Stock, par value $0.01 per share
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Warrants
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Debt Securities
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Units
(3)
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Total
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(1)
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An indeterminate amount of the securities of each identified
class is being registered as may from time to time be offered hereunder at indeterminate prices, along with an indeterminate number
of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder. Separate
consideration may or may not be received for securities that are issuable upon conversion, exercise or exchange of other securities.
Pursuant to Rule 416(a), this registration statement also covers any additional securities that may be offered or issued in connection
with any stock split, stock dividend or similar transaction.
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(2)
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In accordance with Rule 456(b) and Rule 457(r) under
the Securities Act of 1933, as amended, the registrant is deferring payment of all of the registration fee.
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(3)
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Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder.
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PROSPECTUS
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
We may offer 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 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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This prospectus may not be used to sell
securities unless accompanied by a prospectus supplement, which will describe the method and the terms of the offering. We will
provide you with the specific amount, price and terms of the applicable offered securities in one or more supplements to this prospectus.
Prospectus supplements may also add, update or change information in this prospectus. You should read this prospectus and any supplement
carefully before you purchase any of our securities.
Our common stock is quoted on The Nasdaq
Global Market and traded under the symbol “ARQL.” On June 21, 2019, the last reported sale price of our common stock
on The Nasdaq Global Market was $10.49 per share. There is currently no market for the other securities we may offer.
An investment in our securities involves
a high degree of risk. Please carefully read the information under the headings “Risk Factors” beginning on page 4
of this prospectus and in the applicable prospectus supplement and in any free writing prospectuses we have authorized for use
in connection with a specific offering, and “Item 1A—Risk Factors” of our most recent report on Form 10-K or
10-Q which is incorporated by reference in this prospectus before you invest 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.
These securities may be offered and sold
to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. If underwriters,
dealers, or agents are used to sell the securities, we will name them and describe their compensation in a prospectus supplement.
In addition, the underwriters may over-allot a portion of the securities.
The date of this prospectus is June
24, 2019
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of an “automatic
shelf” registration statement that we filed with the Securities and Exchange Commission, or the SEC, as a “well-known
seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended, or the Securities Act, using a “shelf”
registration process. Under this shelf registration process, we may, from time to time, offer or sell any combination of the securities
described in this prospectus in one or more offerings.
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 to, update or change information
contained in this prospectus and, accordingly, to the extent inconsistent, information in this prospectus is superseded by the
information in the prospectus supplement.
No person has been authorized to give any
information or make any representations in connection with this offering other than those contained or incorporated by reference
in this prospectus, any accompanying prospectus supplement and any related free writing prospectus in connection with the offering
described herein and therein. Neither this prospectus nor any prospectus supplement nor any related issuer free writing prospectus
shall constitute an offer to sell or a solicitation of an offer to buy offered securities in any jurisdiction in which it is unlawful
for such person to make such an offering or solicitation. This prospectus is part of a registration statement that we filed with
the SEC and does not contain all of the information in the registration statement. For a more complete understanding of the offering
of the securities, you should refer to the registration statement, including its exhibits.
You should read the entire prospectus and
any prospectus supplement and any related issuer free writing prospectus, as well as the documents incorporated by reference into
this prospectus or any prospectus supplement or any related issuer free writing prospectus, before making an investment decision.
Neither the delivery of this prospectus or any prospectus supplement or any issuer free writing prospectus nor any sale made hereunder
shall under any circumstances imply that the information contained or incorporated by reference herein or in any prospectus supplement
or issuer free writing prospectus is correct as of any date subsequent to the date hereof or of such prospectus supplement or issuer
free writing prospectus, as applicable. You should assume that the information appearing in this prospectus, any prospectus supplement
or any document incorporated by reference is accurate only as of the date of the applicable document, regardless of the time of
delivery of this prospectus or any sale of securities. Our business, financial condition, results of operations and prospects may
have changed since that date.
PROSPECTUS 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.
Overview
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 product candidates 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 four product candidates, all of which are in targeted patient populations,
making ArQule a leader among companies our size in precision medicine.
Our pipeline of orally bioavailable product
candidates is directed toward molecular targets and biological processes with demonstrated roles in the development of both human
cancers and rare, non-oncology diseases. All of these programs are being developed in targeted, biomarker-defined patient populations.
By seeking out subgroups of patients that are most likely to respond to our product candidates, we seek to identify small, often
orphan, indications that allow for focused and efficient development. At the same time, in addition to pursuing these potentially
fast-to-market strategies, we also pursue development in other indications that could allow us to expand the utility of the product
candidates if approved.
Our clinical pipeline includes the following
product candidates:
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ARQ 531 is a potent and reversible dual inhibitor of both wild type and C481S-mutant Bruton’s tyrosine kinase (BTK) that
is in Phase 1 clinical development for B-cell malignancies refractory to other therapeutic options;
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Miransertib (ARQ 092) is a potent and selective inhibitor of protein kinase B (AKT), a serine/threonine kinase. We expect
to commence a registrational clinical trial of miransertib for the treatment of Proteus syndrome and PIK3CA-Related Overgrowth
Syndromes (PROS) in the third quarter of 2019;
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ARQ 751 is a next-generation, highly potent and selective inhibitor of AKT that is in Phase 1 clinical development for solid
tumors harboring AKT, phosphoinositide 3-kinase (PI3K) or phosphatase and tensin homolog (PTEN) mutations or that are PTEN null;
and
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Derazantinib (ARQ 087) is a multi-kinase inhibitor designed to preferentially inhibit the fibroblast growth factor receptor
(FGFR) family of kinases that is in a registrational clinical trial in intrahepatic cholangiocarcinoma (iCCA) in patients with
FGFR2 fusions. Derazantinib was exclusively licensed to Basilea Pharmaceutica Limited (Basilea) in April 2018 in the United States,
European Union, Japan and the rest of the world, excluding the People’s Republic of China, Hong Kong, Macau, and Taiwan (collectively,
Greater China) where derazantinib was exclusively licensed to Sinovant Sciences Ltd., a subsidiary of Roivant Sciences Ltd. (Sinovant)
in February 2018.
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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. Each time we offer
securities with this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and terms
of the securities being offered.
We may sell the securities to or through
underwriters, dealers or agents or directly to purchasers or as otherwise set forth below under “Plan of Distribution.”
We, as well as any agents acting on our behalf, reserve the sole right to accept and to reject in whole or in part any proposed
purchase of securities. Each prospectus supplement will set forth the names of any underwriters, dealers, agents or other entities
involved in the sale of securities described in that prospectus supplement and any applicable fee, commission or discount arrangements
with them.
RISK FACTORS
An investment in our securities involves
a high degree of risk. The prospectus supplement applicable to each offering of our securities will contain a discussion of the
risks applicable to an investment in our securities. Prior to making a decision about investing in our securities, you should carefully
consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus supplement, together
with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated
by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under “Part
I—Item 1A—Risk Factors” of our most recent Annual Report on Form 10-K and “Part II—Item 1A—Risk
Factors” in our Quarterly Reports on Form 10-Q, all of which are incorporated herein by reference, and which may be amended,
supplemented or superseded from time to time by other reports we file with the SEC in the future and any prospectus supplement
related to a particular offering. The risks and uncertainties we have described are not the only ones we face. Additional risks
and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations.
FORWARD-LOOKING STATEMENTS
This prospectus includes and incorporates
by reference “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements include information concerning our possible or assumed future results of operations, business strategies,
financing plans, competitive position, industry environment, potential growth opportunities and the effects of competition. Forward-looking
statements include statements that are not historical facts and can be identified by terms such as “anticipates,” “believes,”
“could,” “seeks,” “estimates,” “expects,” “intends,” “may,”
“plans,” “potential,” “predicts, “projects,” “should,” “will,”
“would” or similar expressions and the negatives of those terms. Although we believe that we have a reasonable basis
for each forward-looking statement contained and incorporated by reference in this prospectus, we caution you that these statements
are based on our projections of the future that are subject to known and unknown risks and uncertainties and other factors that
may cause our actual results, level of activity, performance or achievements expressed or implied by these forward-looking statements,
to differ. The sections in this prospectus entitled “Risk Factors,” as well as “Part I—Item 1A—Risk
Factors” of our most recent report on Form 10-K and “Part II—Item 1A—Risk Factors” in our Quarterly
Reports on Form 10-Q, which are incorporated by reference in this prospectus, as well as other disclosures included in this prospectus
or any accompanying prospectus supplement, discuss some of the factors that could contribute to these differences.
Other unknown or unpredictable factors also
could harm our results. Consequently, actual results or developments anticipated by us may not be realized or, even if substantially
realized, may not have the expected consequences to, or effects on, us. Given these uncertainties, prospective investors are cautioned
not to place undue reliance on such forward-looking statements. Except as required by law, we undertake no obligation to update
or revise publicly any of the forward-looking statements after 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
general corporate purposes, which may include the research and development of our product candidates, including the conduct of
clinical trials and related activities.
The amounts and timing of these expenditures
will depend on a number of factors, such as the timing and progress of our research and development efforts, technological advances
and the competitive environment for our dug candidates. We have not determined the amount of net proceeds to be used specifically
for such purposes. As a result, we will retain broad discretion over the use of net proceeds.
PLAN OF DISTRIBUTION
We may sell the securities offered through
this prospectus:
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to or through underwriters or dealers;
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directly to purchasers;
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through a combination of any of these methods.
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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. Each prospectus will indicate if the securities offered thereby will
be listed on any securities exchange.
Sale 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.
If dealers are used in the sale of securities
offered through this prospectus, we will sell the securities to them as principals. They may then resell those securities to the
public at varying prices determined by the dealers at the time of resale. The prospectus supplement will include the names of the
dealers and the terms of the transaction.
Direct Sales and Sales through Agents
We may sell the securities offered through
this prospectus directly. In this case, no underwriters or agents would be involved. Such securities may also be sold through agents
designated from time to time. The prospectus supplement will name any agent involved in the offer or sale of the offered securities
and will describe any commissions payable to the agent by us. Unless otherwise indicated in the prospectus supplement, any agent
will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
Delayed Delivery Contracts
If the prospectus supplement indicates,
we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities at
the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The applicable
prospectus supplement will describe the commission payable for solicitation of those contracts.
At-the-Market Offerings
To the extent that we make sales through
one or more underwriters or agents in “at-the-market” offerings, as defined in Rule 415(a)(4) of the Securities Act,
we will do so pursuant to the terms of an agreement between us, on one hand, and the underwriters or agents, on the other. The
terms of any such agreement will be set forth in more detail in the applicable prospectus supplement.
Market Making, Stabilization and Other Transactions
Unless the applicable prospectus supplement
states otherwise, each series of offered securities will be a new issue and will have no established trading market. We may elect
to list any series of offered securities on an exchange. Any underwriters that we use in the sale of offered securities may make
a market in such securities, but may discontinue such market making at any time without notice. Therefore, we cannot assure you
that the securities will have a liquid trading market.
Any underwriter may also engage in stabilizing
transactions, syndicate covering transactions and penalty bids in accordance with Rule 104 under the Exchange Act. Over-allotment
or short sales involve sales by persons participating in the offering of more securities than were sold to them. In these circumstances,
these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their
over-allotment option, if any. Stabilizing transactions involve bids to purchase the underlying security in the open market for
the purpose of pegging, fixing or maintaining the price of the securities. Syndicate covering transactions involve purchases of
the securities in the open market after the distribution has been completed in order to cover syndicate short positions.
Penalty bids permit the underwriters to
reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased
in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering transactions
and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions. The underwriters
may, if they commence these transactions, discontinue them at any time.
Derivative Transactions and Hedging
We, the underwriters or other agents may
engage in derivative transactions involving the securities. These derivatives may consist of short sale transactions and other
hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold or resell securities
acquired and purchase options or futures on the securities and other derivative instruments with returns linked to or related to
changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security lending
or repurchase agreements with the underwriters or agents. The underwriters or agents may affect the derivative transactions through
sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short sale transactions
by others. The underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives,
securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close
out any related open borrowings of the securities.
General Information
Agents, underwriters, and dealers may be
entitled, under agreements entered into with us, to indemnification by us against certain liabilities, including liabilities under
the Securities Act. Our agents, underwriters, and dealers, or their affiliates, may be customers of, engage in transactions with
or perform services for us, in the ordinary course of business.
DESCRIPTION OF THE SECURITIES
This prospectus contains a summary of the
common stock, the preferred stock, the warrants, the 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, at the time of an offering and sale, this prospectus
together with the accompanying prospectus supplement will contain the material terms of the securities being offered. 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 June 20, 2019, we had 200,000,000
shares of common stock authorized, of which 109,585,385 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 Amended and Restated By-laws 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 approximately 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 of Directors 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 series and to fix the designations, powers, preferences and rights of the shares of each such series
and the qualifications, limitations and restrictions therefor, without further vote or action by the stockholders. We may amend
from time to time our Restated 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, there were 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 number of shares within each series and the distinctive designation of that series;
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the dividend rate, if any, on each series, whether dividends shall be cumulative and if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends on shares of each series;
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whether each series shall have voting rights, in addition to the voting rights provided by law, and if so, the terms of the
voting rights;
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whether each series shall have series shall have conversion privileges, and, if so, the terms and conditions related thereto;
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whether or not the shares of each series shall be redeemable, and if so, the terms and conditions of such redemption;
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whether each series shall have a sinking fund for the redemption or purchase of shares of that series, and if so, the terms
and amount of such sinking fund;
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the rights of the shares of each series in the event of voluntary or involuntary liquidation, dissolution or winding up of
our company, and the relative rights of priority, if any, of payment of shares of each series; and
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any other relative rights, preferences and limitations of each series.
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The preferred stock will, when issued, be
fully paid and non-assessable.
Description of Warrants
As of June 20, 2019, we had outstanding
common stock warrants exercisable for 5,475,842 shares of common stock, at a weighted average exercise price of $1.75 per share.
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.
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
The following description, together with
the additional information we include in any applicable prospectus supplement, summarizes certain general terms and provisions
of the debt securities that we may offer in one or more series under this prospectus. When we offer to sell a particular series
of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. We will also indicate
in the supplement to what extent the general terms and provisions described in this prospectus apply to a particular series of
debt securities.
We may issue debt securities either separately,
or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt
securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to
this prospectus, the debt securities will be our direct, unsecured obligations.
The debt securities will be issued under
an indenture between us and a trustee. We have summarized select portions of the indenture below. The summary is not complete.
The form of the indenture has been filed as an exhibit to the registration statement and you should read the indenture for provisions
that may be important to you.
General
We can issue an unlimited amount of debt
securities under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or
at a discount. The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors
and set forth in an officer’s certificate or a supplemental indenture. The particular terms of each series of debt securities
will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet), including
the following terms, if applicable:
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the title and ranking of the debt securities (including the terms of any subordination provisions);
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the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities;
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the aggregate principal amount of the debt securities being offered and any limit on the aggregate principal amount of such
series of debt securities;
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whether any of our direct or indirect subsidiaries will guarantee the debt securities, including the terms of subordination,
if any, of such guarantees;
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the date or dates on which the principal of the securities of the series is payable;
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the interest rate, if any, and the method for calculating the interest rate;
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the dates from which interest will accrue, the interest payment dates and the record dates for the interest payments;
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the place or places where principal of, and any interest on, the debt securities will be payable (and the method of such payment),
where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands
to us in respect of the debt securities may be delivered;
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any mandatory or optional redemption terms;
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at
the option of a holder of debt securities and the period or periods within which, the price or prices at which and the terms and
conditions upon which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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any dates, if any, on which and the price or prices at which we will repurchase debt securities at the option of the holders
of debt securities and other detailed terms and provisions of such repurchase obligations;
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the denominations in which the debt securities will be issued;
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
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the currency of denomination of the debt securities, which may be U.S. dollars or any foreign currency, and if such currency
of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
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the designation of the currency, currencies or currency units in which payment of the principal of, and any interest on, the
debt securities will be made;
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if payments of principal of, any interest on, the debt securities will be made in one or more currencies or currency units
other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to such
payments will be determined;
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the manner in which the amounts of payment of principal of, or any interest on, the debt securities will be determined, if
these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index;
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any provisions relating to any security provided for the debt securities;
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any addition to, deletion of or change in the events of default described in this prospectus or in the indenture with respect
to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect
to the debt securities;
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any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the
debt securities;
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents appointed with respect
to the debt securities;
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the provisions, if any, relating to conversion or exchange of any series of debt securities, including if applicable, the conversion
or exchange price and period, the securities or other property into which the debt securities will be convertible, provisions as
to whether conversion or exchange will be mandatory, at the option of the holders thereof or at our option, the events requiring
an adjustment of the conversion price or exchange price and provisions affecting conversion or exchange if such series of debt
securities are redeemed; and
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any other terms of the series of debt securities that may supplement, modify or delete any provision of the indenture as it
applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection
with the marketing of the debt securities.
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We may issue debt securities that provide
for an amount less than their stated principal amount to be due and payable upon maturity or a declaration of acceleration of their
maturity following an event of default pursuant to the terms of the indenture. We will provide you with information on the federal
income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus
supplement.
If we denominate the purchase price of any
of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any
premium and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit
or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other
information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units
in the applicable prospectus supplement.
Transfer
and Exchange
Each debt security will be represented by either
one or more global securities registered in the name of The Depository Trust Company, or the depositary, or a nominee of the depositary
(we will refer to any such debt security as a “global debt security”), or a certificate issued in definitive registered
form (we will refer to any debt security represented by a certificate as a “certificated debt security”) as set forth
in the applicable prospectus supplement. Except as set forth below, global debt securities will not be issuable in certificated
form.
Certificated Debt Securities
.
You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms
of the indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may require
payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You may effect the transfer of certificated
debt securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering
the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to
the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry
System
.
Each global debt security will be deposited with, or on behalf of, the depositary, and registered in the
name of the depositary or a nominee of the depositary. Beneficial interests in global debt securities will not be issuable in certificated
form unless (i) the depositary has notified us that it is unwilling or unable to continue as depositary for such global debt
security or has ceased to be qualified to act as such as required by the indenture and we fail to appoint a successor depositary
within 90 days of such event, (ii) we determine, in our sole discretion, not to have such securities represented by one or
more global securities or (iii) any other circumstances shall exist, in addition to or in lieu of those described above, as
may be described in the applicable prospectus supplement. Unless and until a global debt security is exchanged for certificated
debt securities under the limited circumstances described in the previous sentence, a global debt security may not be transferred
except as a whole by the depositary to its nominee or by the nominee to the depositary, or by the depositary or its nominee to
a successor depositary or to a nominee of the successor depositary.
Covenants
We will set forth in the applicable prospectus
supplement any restrictive covenants applicable to any issue of debt securities.
No Protection
In the Event of a Change of Control
Unless we state otherwise in the applicable
prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection
in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results
in a change in control) which could adversely affect holders of debt securities.
Consolidation,
Merger and Sale of Assets
We may not consolidate with or merge with or
into, or convey, transfer or lease all or substantially all of its assets to any person (a “successor person”) unless:
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We are the surviving person or the successor person (if other than us) expressly assumes our obligations on the debt securities
and under the indenture; and
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immediately after giving effect to the transaction, no default or event of default shall have occurred and be continuing.
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Notwithstanding the above, any of our subsidiaries
may consolidate with, merge into or transfer all or part of its properties to us.
Events
of Default
“
Event of Default
” means
with respect to any series of debt securities, any of the following:
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default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance
of such default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a
paying agent prior to the expiration of the 30-day period);
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default in the payment of principal of any security of that series at its maturity;
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default in the performance or breach of any covenant by us in the indenture (other than defaults described above or defaults
relating to a covenant that has been included in the indenture solely for the benefit of a series of debt securities other than
that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee, or we and
the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities
of that series as provided in the indenture;
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certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of us; and
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any other event of default provided with respect to a series of debt securities that is described in the applicable prospectus
supplement.
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No event of default with respect to a particular
series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an
event of default with respect to any other series of debt securities. The occurrence of certain events of default or an acceleration
under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from
time to time.
If an event of default with respect to any series
of debt securities at the time outstanding occurs and is continuing (other than an event of default resulting from certain events
of bankruptcy, insolvency or reorganization), then the trustee or the holders of not less than 25% in principal amount of the outstanding
debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to be due
and payable immediately the principal of (or, if the debt securities of that series are discount securities, that portion of the
principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities
of that series. In the case of an event of default resulting from certain events of bankruptcy, insolvency or reorganization, the
principal amount (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will
become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of outstanding
debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but
before a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal
amount of the outstanding debt securities of that series, by written notice to us and the trustee, may rescind and annul such declaration
of acceleration and its consequences if all events of default, other than the non-payment of accelerated principal and interest,
if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. We refer you to
the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions
relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an event of default.
The indenture provides that the trustee will
be under no obligation to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives
indemnity satisfactory to it against any cost, liability or expense which might be incurred by it in performing such duty or exercising
such right of power. Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding
debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that
series.
No holder of any debt security of any series
will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or the securities of any
series or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the 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 debt securities of that series have made written request
to the trustee to institute the proceedings in respect of such event of default in its own name as trustee under the indenture;
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such holder or holders have offered to the trustee indemnity or security satisfactory to the trustee against the costs, expenses
and liabilities which might be incurred by the trustee in compliance with such request;
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the trustee has failed to institute any such proceeding for 60 days after its receipt of such notice, request and offer of
indemnity; and
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no direction inconsistent with such written request has been given to the trustee during such 60-day period by holders of a
majority in principal amount of the outstanding debt securities of that series.
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Notwithstanding any other provision in the indenture,
the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, and any interest
on, that debt security on or after the due dates expressed in that debt security (or, in the case of redemption, on the redemption
date) and to institute suit for the enforcement of any such payment and such rights shall not be impaired without the consent of
such holder.
The indenture requires us, within 120 days after
the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture from our principal executive
officer, principal financial officer or principal accounting officer. If a default or event of default occurs and is continuing
with respect to the debt securities of any series and if it is actually known to a responsible officer of the trustee, the trustee
shall mail to each holder of the debt securities of that series notice of a default or event of default within 60 days after it
occurs or, if later, after a responsible officer of the trustee has knowledge of such default or event of default. The indenture
provides that the trustee may withhold notice to the holders of debt securities of any series of any default or event of default
(except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines
in good faith that withholding notice is in the interest of the holders of those debt securities.
Modification
and Waiver
We and the trustee may modify and amend or supplement
the indenture or the debt securities of one or more series without the consent of any holder of any debt security:
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to add guarantees with respect to debt securities of a series or secure debt securities of a series;
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to surrender any of our rights or powers under the indenture;
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to add covenants or events of default for the benefit of the holders of any series of debt securities;
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to comply with the applicable procedures of the applicable depositary;
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to cure any ambiguity, defect or inconsistency;
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to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”;
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to provide for uncertificated securities in addition to or in place of certificated securities;
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to make any change that does not materially adversely affect the rights of any holder of debt securities;
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to conform any supplement to the indenture for a series of securities or the securities of a series to the description of securities
for such series in the prospectus supplement or offering document with respect to such series;
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to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted
by the indenture;
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to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change
any of the provisions of the indenture to provide for or facilitate administration by more than one trustee;
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to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture
Act; and
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for certain other reasons set forth in any prospectus supplement.
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We may also modify and amend the indenture with
the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected
by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected
debt security then outstanding if that amendment will:
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reduce the principal amount of debt securities whose holders must consent to an amendment, supplement or waiver;
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reduce the rate of or extend the time for payment of interest (including default interest) on any debt security;
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reduce the principal of, or change the fixed maturity of, any debt security or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
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reduce the principal amount of discount securities payable upon acceleration of maturity;
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waive a default in the payment of the principal of, or interest, if any, on any debt security (except a rescission of acceleration
of the debt securities of any series by the holders of at least a majority in principal amount of the then outstanding debt securities
of that series and a waiver of the payment default that resulted from such acceleration);
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make the principal of, or any interest on, any debt security payable in currency other than that stated in the debt security;
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make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities
to receive payment of the principal of, and any interest on, those debt securities and to institute suit for the enforcement of
any such payment;
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make any change to certain provisions of the indenture relating to waivers or amendments; or
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waive a redemption payment with respect to any debt security, provided that such redemption is made at our option.
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Except for certain specified provisions, the
holders of at least a majority in principal amount of the outstanding debt securities of any series may, on behalf of the holders
of all debt securities of that series, by written notice to the trustee, waive our compliance with provisions of the indenture
or the debt securities with respect to such series. The holders of a majority in principal amount of the outstanding debt securities
of any series may, on behalf of the holders of all the debt securities of such series, waive any past default under the indenture
with respect to that series and its consequences, except a default in the payment of the principal of, or any interest on, any
debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities
of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Defeasance
of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance
. The indenture
provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any
and all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon
the deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated
in a single currency other than U.S. dollars, government obligations of the government that issued or caused to be issued such
currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient
in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment
of principal and interest, if any, on and any mandatory sinking fund payments in respect of the debt securities of that series
on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other
things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published
by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change
in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal
income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal income tax
on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge
had not occurred.
Defeasance of Certain Covenants
.
The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance
with certain conditions:
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we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets”
and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable
prospectus supplement; and
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any omission to comply with those covenants will not constitute a default or an event of default with respect to the debt securities
of that series (“covenant defeasance”).
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The conditions include:
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depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single
currency other than U.S. dollars, government obligations of the government that issued or caused to be issued such currency, that,
through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the
opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment
of principal of, and interest, if any, on and any mandatory sinking fund payments in respect of the debt securities of that series
on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and
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delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance
and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would
have been the case if the deposit and related covenant defeasance had not occurred.
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Governing
Law
The indenture and the debt securities, including
any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State
of New York.
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 SEC, 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
Certain legal matters will be passed upon for
us by Arnold & Porter Kaye Scholer LLP, Washington, DC. Additional legal matters may be passed on for us, or any underwriters,
dealers or agents, by counsel that we will name in the applicable 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, 2018
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 pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act after the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates the termination
of the offering of the securities made by this prospectus 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:
We will furnish without charge to each person,
including any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy of any or all of the documents
incorporated by reference, including exhibits to these documents. 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:
Peter S. Lawrence
President and Chief Operating Officer
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. Any information we file with the SEC, including the documents incorporated
by reference into this prospectus, is 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
the Registrant.
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SEC Registration Fee
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$
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(1)
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|
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Accounting fees and expenses
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$
|
(2)
|
|
|
Printing fees and expenses
|
|
$
|
(2)
|
|
|
Legal fees and expenses
|
|
$
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(2)
|
|
|
Miscellaneous expenses
|
|
$
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(2)
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
(2)
|
|
(1) Omitted because the registration fee is being deferred pursuant
to Rule 456(b) and 457(r).
(2) These fees and expenses depend on the securities offered and
the number of issuances, and accordingly cannot be estimated as of the date of this prospectus.
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 Amended and Restated By-laws
that provide for indemnification of its officers and directors to the maximum extent permitted under the DGCL. As authorized by
the DGCL, ArQule’s Amended and Restated By-laws limit 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 7, 2019 and our Amended and Restated By-laws, filed as Exhibit 3.1 to
our Form 8-K filed on January 27, 2014.
ITEM 16. Exhibits
The exhibits to this Registration Statement
are described below.
* 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.
** To be filed separately under the electronic form type 305B2,
if applicable.
ITEM 17. Undertakings
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A.
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
|
|
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
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|
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(ii)
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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 debt securities offered
(if the total dollar value of debt 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 SEC 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;
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|
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(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 information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the Registration Statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the Registration Statement.
|
|
(2)
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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.
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|
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(3)
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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.
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(4)
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That, for the purpose of determining any liability under
the Securities Act of 1933 to any purchaser:
|
|
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(i)
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Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) 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
|
|
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(ii)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) 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) 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 the 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.
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|
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(5)
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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:
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|
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(i)
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Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant
to Rule 424;
|
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(ii)
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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;
|
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(iii)
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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
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(iv)
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Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
|
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 Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Burlington, Commonwealth of Massachusetts, on June 24, 2019.
|
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ARQULE, INC
.
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By:
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/s/ Paolo Pucci
|
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Paolo Pucci
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Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each
person whose signature appears below constitutes and appoints each of Paolo Pucci and Peter S. Lawrence as his or her true and
lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments (including pre-effective and post-effective amendments, exhibits
thereto and other documents in connection therewith) to this Registration Statement on Form S-3 and to file the same, with all
exhibits thereof, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to
be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact, proxies and agents or any of them, or their, his or her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates
indicated.
|
SIGNATURE
|
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TITLE
|
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DATE
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|
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/s/Paolo Pucci
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Chief Executive Officer and Director
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June 24, 2019
|
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Paolo Pucci
|
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(Principal Executive Officer)
|
|
|
|
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|
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/s/Peter S. Lawrence
|
|
President and Chief Operating Officer
|
|
June 24, 2019
|
|
Peter S. Lawrence
|
|
(Principal Financial Officer)
|
|
|
|
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/s/ Blaine Schamber
|
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Vice President, Finance
|
|
June 24, 2019
|
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Blaine Schamber
|
|
(Principal Accounting Officer)
|
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/s/Patrick J. Zenner
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Director - Chairman of the Board
|
|
June 24, 2019
|
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Patrick J. Zenner
|
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/s/Timothy C. Barabe
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Director
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June 24, 2019
|
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Timothy C. Barabe
|
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/s/Susan L. Kelley
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Director
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June 24, 2019
|
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Susan L. Kelley
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/s/Ronald M. Lindsay
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Director
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June 24, 2019
|
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Ronald M. Lindsay
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/s/Michael D. Loberg
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Director
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June 24, 2019
|
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Michael D. Loberg
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/s/William G. Messenger
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Director
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June 24, 2019
|
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William G. Messenger
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/s/Ran Nussbaum
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Director
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June 24, 2019
|
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Ran Nussbaum
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