SECURITIES AND EXCHANGE COMMISSION
FORM S-8
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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58-1959440
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification No.)
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19 Presidential Way,
Woburn, Massachusetts 01801
(Address, including zip code, of principal executive offices)
ArQule, Inc. 2005 Director Stock Compensation Plan
(Full title of the plan)
Dr. Stephen A. Hill
President and Chief Executive Officer
ArQule, Inc.
19 Presidential Way,
Woburn, Massachusetts 01801
(781) 994-0300
(Name, address, including zip code, and telephone number including area code, of agent for service)
Copy to:
Richard E. Baltz, Esq.
Arnold & Porter
555 12
th
Street, N.W.
Washington, D.C. 20004
(202) 942-5124
Calculation of Registration Fee
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Title of securities to be
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Amount to be
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Proposed
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Proposed maximum
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Amount of
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registered
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registered (1)
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maximum offering
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aggregate offering
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registration fee
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price per unit (2)(3)
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price (3)
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Common Stock,
$.01 par value
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250,000
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$
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7.03
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$
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1,757,500
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$
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188.05
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(1)
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Pursuant to Rule 416, promulgated under the Securities Act of 1933, as amended, an
additional undeterminable number of shares of Common Stock is being registered to cover any
adjustment in the number of shares of Common Stock issuable pursuant to the anti-dilution
provisions of the 2005 Director Stock Compensation Plan.
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(2)
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Calculated on the basis of the average of the high and low sale prices of the Registrant’s
Common Stock as reported on December 1, 2005 on the Nasdaq National Market which date is
within 5 business days prior to the date of the filing of this Registration Statement.
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(3)
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Estimated solely for the purpose of determining the registration fee in accordance with Rule
457(h).
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TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference
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The following documents filed by the Company (File No. 000-21429) with the Commission under
the Securities Exchange Act of 1934, as amended (“Exchange Act”), are incorporated herein by
reference:
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(a)
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The Company’s Annual Report on Form 10-K for the year ended December 31, 2004, filed with the
Commission on March 16, 2005;
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(b)
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The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2005, filed with
the Commission on April 29, 2005;
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(c)
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The Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2005, filed with
the Commission on August 5, 2005;
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(d)
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The Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2005, filed
with the Commission on November 4, 2005;
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(e)
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The Company’s Current Reports on Form 8-K filed with the Commission on January 24, 2005,
January 25, 2005, January 31, 2005, February 18, 2005, April 7, 2005, April 11, 2005, May 6,
2005, June 15, 2005; September 16, 2005, September 30, 2005, October 17, 2005, and November
17, 2005; and
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(f)
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The description of the Company’s Common Stock contained in a registration statement on Form
8-A filed with the Commission on September 25, 1996, and any amendments or reports filed for
the purpose of updating such description.
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All documents filed by the Registrant after the date of this Registration Statement pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all Common Stock offered hereby has been sold or which deregisters
such Common Stock then remaining unsold, shall be deemed to be incorporated in this Registration
Statement by reference and shall be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by reference in this
Registration Statement shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference in this Registration
Statement modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or so superseded, to constitute a part of this
Registration Statement.
Item 8.
Exhibits
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Exhibit 4
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ArQule, Inc. 2005 Director Stock Compensation Plan.
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Exhibit 5
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Opinion of Robert J. Connaughton, Jr., filed herewith.
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Exhibit 23.1
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Consent of Robert J. Connaughton, Jr., included in the
opinion filed as Exhibit 5 hereto.
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Exhibit 23.2
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Consent of PricewaterhouseCoopers LLP, independent registered
public accounting firm, filed herewith.
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Exhibit 24
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Powers of Attorney of certain officers and directors of ArQule, Inc., filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned
thereunto duly authorized in the City of Woburn,
Commonwealth
of Massachusetts, on December 5, 2005.
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ARQULE, INC.
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By:
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/s/ Stephen A. Hill
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Stephen A. Hill
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President and Chief Executive Officer
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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:
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Signature
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Title
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Date
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/s/ Stephen A. Hill
Stephen A. Hill
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President, Chief Executive
Officer and Director
(Principal Executive
Officer)
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December 5, 2005
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/s/ Louise A. Mawhinney
Louise A. Mawhinney
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Vice President, Chief
Financial Officer,
Treasurer and Secretary
(Principal Accounting and
Financial Officer)
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December 5, 2005
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/s/ Patrick J. Zenner
Patrick J. Zenner
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Chairman of the Board
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December 5, 2005
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/s/ Michael J. Astrue
Michael J. Astrue
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Director
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December 5, 2005
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/s/ Laura Avakian
Laura Avakian
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Director
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December 5, 2005
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/s/ Timothy C. Barabe
Timothy C. Barabe
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Director
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December 5, 2005
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/s/ Werner Cautreels
Werner Cautreels
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Director
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December 5, 2005
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/s/ Tuan Ha-Ngoc
Tuan Ha-Ngoc
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Director
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December 5, 2005
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/s/ Ronald M. Lindsay
Ronald M. Lindsay
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Director
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December 5, 2005
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/s/ William G. Messenger
William G. Messenger
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Director
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December 5, 2005
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INDEX TO EXHIBITS
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Exhibit 4
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ArQule, Inc. 2005 Director Stock Compensation Plan, filed
herewith.
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Exhibit 5
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Opinion of Robert J. Connaughton, Jr., filed herewith.
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Exhibit 23.1
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Consent of Robert J. Connaughton, Jr., included in the
opinion filed as Exhibit 5 hereto.
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Exhibit 23.2
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Consent of PricewaterhouseCoopers LLP, independent registered
public accounting firm, filed herewith.
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Exhibit 24
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Powers of Attorney of certain officers and directors of
ArQule, Inc., filed herewith.
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Exhibit 4
ARQULE, INC.
2005 DIRECTOR STOCK COMPENSATION PLAN
1. ESTABLISHMENT. ArQule, Inc. (the “Company”) hereby establishes the ArQule, Inc. 2005 Director
Stock Compensation Plan (this “Plan”) for its Eligible Directors whereby such directors may elect
to receive compensation for their services in the form of shares of common stock, $0.01 par value,
of the Company (“Common Stock”) in lieu of fees payable in cash.
2. DEFINITIONS.
For purposes of this Plan, the following terms shall have the following meanings:
2.1 “Authorized Shares” means the total number of shares of Common Stock available during the
term of this Plan as set forth in Section 5 hereof.
2.2 “Board” means the Board of Directors of the Company.
2.3 “Committee” means a committee of the Board of not fewer than two members, each of whom
shall be a “non-employee director” or the equivalent within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”). Unless otherwise designated by
the Board, the “Committee” shall mean the Compensation, Nominating and Governance Committee of the
Board.
2.4 “Compensation” means the annual retainer, meeting fees, committee fees and other
compensation payable to an Eligible Director during his or her term in office under the Company’s
compensation policies for members of the Board in effect from time to time.
2.5 “Eligible Director” means an individual who is a member of the Board, but who is not an
employee of the Company.
2.6 “Fair Market Value” of a share of Common Stock means its closing sale price on the
business day immediately preceding the relevant Payment Date as reported on the Nasdaq National
Market (or such other quotation system or securities exchange on which shares of the Common Stock
are quoted or listed if such shares are no longer quoted on the Nasdaq National Market). If shares
of the Common Stock are not quoted on a quotation system or listed on a securities exchange, “Fair
Market Value” shall be determined by the Committee in good faith or in the manner established by
the Committee from time to time.
2.7 “Payment Date” means the business day on which any payment of Compensation is made under
the Company’s compensation policies for members of the Board in effect from time to time; provided,
however, that the Payment Date for Compensation in respect of a calendar year shall not be later
than March 15th of the following calendar year.
3. PURPOSE. The purpose of this Plan is to attract and retain highly qualified, non-employee
directors of the Company and to encourage ownership of stock of the Company by those directors so
as to further align the interests of non-employee directors and stockholders in promoting the
success of the Company.
4. EFFECTIVE DATE. The effective date of this Plan (the “Effective Date”) is the later of (i) the
date of its approval by the Board, or (ii) the effective date of any registration statement under
the Securities Act of 1933, as amended, registering the shares of Common Stock issuable hereunder.
5. STOCK SUBJECT TO THIS PLAN. Subject to adjustment in accordance with Section 9 hereunder, the
total number of shares of Common Stock available during the term of this Plan shall be two hundred
and fifty thousand (250,000) shares. Shares of Common Stock to be delivered under this Plan shall
be made available from presently authorized but unissued Common Stock or authorized and issued
shares of Common Stock reacquired and held as treasury shares, or a combination thereof. In no
event shall the Company be required to issue fractional shares of Common Stock under this Plan.
6. ADMINISTRATION OF THIS PLAN. The Committee shall administer this Plan. The Committee shall
have the authority and discretion to adopt, alter and repeal such administrative rules, guidelines
and practices governing the operation of this Plan as it shall from time to time consider necessary
or advisable, and to interpret the provisions of this Plan. The Committee shall have all of the
powers necessary to enable it to properly carry out its duties under this Plan. To the extent
permitted by applicable law, the Committee may delegate to one or more executive officers of the
Company such powers and duties as the Committee may deem necessary or advisable that are not
inconsistent with the intent of this Plan. Decisions of the Committee upon all matters within its
scope of authority shall be final and conclusive on all persons, except to the extent otherwise
provided by law.
7. ELECTION TO RECEIVE COMPENSATION IN SHARES OF COMMON STOCK.
(a)
Election Procedure
. Each Eligible Director may elect to forego receipt of all or a
portion of his or her Compensation in exchange for Common Stock issued under this Plan. The number
of shares of Common Stock received by any Eligible Director on a Payment Date hereunder shall equal
the amount of foregone cash Compensation divided by the Fair Market Value of a share of Common
Stock on the relevant Payment Date, rounded down to the nearest whole share, with the dollar amount
of any fractional share paid in cash on the Payment Date
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(b)
Standing Election; Modification or Termination
. Eligible Directors may participate in
this Plan by submitting a written or electronic election to the Chief Financial Officer of the
Company, in such form as the Company determines, at least three (3) months prior to the first
Payment Date to which the election relates. Such election shall continue in effect until modified
or terminated by means of a subsequent written or electronic election submitted to the Chief
Financial Officer of the Company, in such form
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as the Company determines, at least three (3) months prior to the Payment Date to which the
modification or termination relates.
(c) Inside Information
. Any election made by an Eligible Director hereunder shall be made (i)
during an open trading window when the Eligible Director is not in possession of material nonpublic
information, and (ii) in accordance with the Company’s “Policy Regarding Trading in ArQule
Securities”, or similar successor policy.
(d) Share Shortfalls
. If any election under this Plan would cause the number of shares of
Common Stock required to be issued under this Plan to exceed the Authorized Shares, then any then
current elections of Eligible Directors shall be reduced or disregarded to the extent necessary, as
determined by the Committee in an equitable manner, to avoid exceeding the Authorized Shares. No
further elections shall be made or shall be valid until such time, if any, as additional shares of
Common Stock become available for purchase under this Plan.
(e)
Delivery of Shares.
As soon as practicable after each Payment Date, but in no event later
than March 15
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of the calendar year following the calendar year to which the forgone
Compensation relates, the Company shall cause a share certificate to be issued to, or an entry to
be made in the authorized brokerage account of, each participating Eligible Director for the number
of shares of Common Stock due to him or her pursuant to any election hereunder. No adjustment
shall be made for a dividend or other right for which the record date is prior to the date the
stock certificate is issued or authorized brokerage account entry made.
8. RESALE OF SHARES. The Company may impose such restrictions on the sale or other disposition of
shares of Common Stock issued under this Plan as the Committee shall deem necessary or advisable to
comply with relevant provisions of any applicable laws, rules and regulations, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, any applicable rules and
regulations thereunder, state securities laws, and the requirements of the Nasdaq National Market
(or such other quotation system or securities exchange on which the Common Stock is quoted or
listed if the Common Stock is no longer quoted on the Nasdaq National Market) (collectively,
“applicable securities laws and regulations”) now or hereafter in effect. Certificates for shares
of Common Stock issued under this Plan may bear such legends as the Company deems necessary or
advisable to give notice of such restrictions.
9. ADJUSTMENT FOR CHANGES IN CAPITALIZATION. The number of shares of Common Stock authorized for
issuance under this Plan shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination,
exchange or reclassification of the Common Stock, or any other increase or decrease in the number
of issued shares of Common Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the Company shall not be deemed
to have been “effected without receipt of consideration.”
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10. CONDITIONS UPON ISSUANCE OF COMMON STOCK.
(a)
Regulatory Compliance.
Shares of Common Stock shall not be issued hereunder unless their
issuance and delivery shall comply with all applicable securities laws and regulations.
(b)
Investment Representation.
As a condition to issuance hereunder, the Company may require
a participating Eligible Director to represent and warrant as of the relevant Payment Date that the
shares of Common Stock issued hereunder are being acquired only for investment and without any
present intention to sell or distribute such shares of Common Stock, if, in the Company’s opinion,
such representation is required by applicable securities laws and regulations now or hereafter in
effect.
(c)
Regulatory Authorization.
Any inability of the Company to obtain authority from any
regulatory body having jurisdiction over the Company or the transactions contemplated by this Plan,
which authority is deemed by the Company to be necessary or advisable for the lawful issuance and
delivery of any shares of Common Stock hereunder, shall relieve the Company of any liability in
respect of its failure to issue or deliver such shares of Common Stock as to which such requisite
authority shall not have been obtained. In such case, the Company’s obligations hereunder shall be
satisfied by payment of the cash Compensation for which such shares of Common Stock were to be
exchanged.
11. TERMINATION AND AMENDMENT OF PLAN. Unless terminated sooner as provided herein, this Plan
shall terminate ten (10) years from the date that it is adopted by the Board. The Board may at any
time amend, alter, suspend or terminate this Plan, subject to stockholder approval if required
under the applicable securities laws and regulations.
12. RIGHTS AS A STOCKHOLDER. An Eligible Director shall have no rights as a stockholder with
respect to Common Stock issued to him or her under this Plan on the relevant Payment Date until the
date of issuance of the stock certificate or making of the entry in an authorized brokerage account
representing such shares. Except as provided in Section 9, no adjustment will be made for
dividends or other rights for which the record date is prior to the date such Common Stock is
issued.
13. GOVERNING LAW. The provisions of this Plan shall be governed by and interpreted in accordance
with the laws of Delaware.
The Board of Directors authorized this Plan on November 11, 2005. Stockholder approval of this
Plan was not required.
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Exhibit 5
Robert J. Connaughton, Jr.
Corporate Counsel
rconnaughton@arqule.com
Direct Tel. 781.994.0462
Direct Fax 781.994.0587
December 5, 2005
ArQule, Inc.
19 Presidential Way
Woburn, MA 01801
Ladies and Gentlemen:
I am rendering this opinion in connection with the Registration Statement on Form S-8 (the
“Registration Statement”) filed by ArQule, Inc. (the “Company”) with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), on or about
the date hereof. The Registration Statement relates to 250,000 shares of the Company’s Common
Stock, $0.01 par value (the “Shares”), offered pursuant to the provisions of the Company’s 2005
Director Stock Compensation Plan (the “Plan”).
I am Corporate Counsel for the Company and have acted in connection with the preparation of
the Registration Statement. I am familiar with the proceedings taken by the Company regarding
authorization, issuance and sale of the Shares. I have examined all such corporate records of the
Company as I consider necessary to enable me to render this opinion including the Plan, the
Company’s Amended and Restated Certificate of Incorporation, its By-laws, and votes of the Board of
Directors and stockholders of the Company, as well as made such investigation of matters of fact
and law and examined such other documents as I deemed necessary for rendering the opinions
hereinafter expressed. The opinions set forth herein are subject to the following qualifications,
which are in addition to any other qualifications contained herein:
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A.
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I have assumed without verification the genuineness of all signatures on all
documents, the authority of the parties (other than the Company) executing such documents,
the authenticity of all original documents, and the conformity to original documents of
all copies.
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B.
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The opinions set forth herein are based on existing laws, ordinances, rules,
regulations, court and administrative decisions as they presently have been interpreted
and I can give no assurances that my opinions would not be different after any change in
any of the foregoing occurring after the date hereof.
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C.
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I express no opinion as to the effect or application of any laws or regulations other
than the general corporation law of the State of Delaware and the federal laws of the
United States.
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Based upon, subject to and limited by the foregoing, I am of the opinion that, under the
General Corporation Law of the State of Delaware, the 250,000 shares of Common Stock issuable
pursuant to the Plan have been duly authorized by the Company and, when issued and delivered in
accordance with the terms of the Plan and for legal consideration of not less than $0.01 per share,
the Shares will be validly issued, fully paid and nonassessable.
This letter does not address any matters other than those expressly addressed herein and is
given for the sole benefit and use of the Company. No one else is entitled to rely hereupon.
I hereby consent to filing of this opinion as Exhibit 5 to the Registration Statement. By
giving such consent I do not thereby admit that I am within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations
of the Securities and Exchange Commission thereunder.
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Sincerely,
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/s/ Robert J. Connaughton, Jr.
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Robert J. Connaughton, Jr.
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:dms
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