October 6, 1997
Via EDGAR
Filing Desk
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: BioSafe International, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
Attached for filing via EDGAR on behalf of BioSafe International, Inc.
(the "Company") pursuant to Section 6 of the Securities Act of 1933, as amended
(the "Act"), is a registration statement on Form S-3 (the "Registration
Statement") relating to 35,483,971 shares of the Company's common stock.
The Company is wiring today the applicable registration fee in the
amount of $ 8,065 to Mellon Bank.
If you have any questions or require any additional information, please
do not hesitate to contact the undersigned at (617) 570-1332.
Sincerely,
/s/ Robert Rivkin
Robert Rivkin
BioSafe International, Inc.
<PAGE>
As filed with the Securities and Exchange Commission on October 6, 1997
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
BIOSAFE INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
Nevada 95-4203626
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10 Fawcett Street
Cambridge, MA 02138
(617) 497-4500
(Address, including zip code, and telephone number, including area
code of Registrant's principal executive offices)
-------------------------------
PHILIP W. STRAUSS
President
BIOSAFE INTERNATIONAL, INC.
10 Fawcett Street
Cambridge, MA 02138
(617) 497-4500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
With a copy to:
THOMAS P. STORER, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
----------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
-----------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
============================= ----------------------- ------------------------- ------------------------- ------------------
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities Being Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share (1) Price (1)
============================= ======================= ========================= ========================= ==================
Common Stock, par value 35,483,971 (2) $ .75 $ 26,612,978 $ 8,065
$.001 per share. . . . . .
. . . . . . . . .
============================= ======================= ========================= ========================= ==================
</TABLE>
(1) Based upon the average of the high and low sale prices reported on The
Nasdaq SmallCap Market on September 30, 1997, and estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(c)
of the Securities Act of 1933, as amended.
(2) Plus such additional shares as may be offered or issued to prevent
dilution resulting from stock splits, stock dividends, reverse stock
splits, split-ups, recapitalizations or other similar events.
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
================================================================================
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
================================================================================
SUBJECT TO COMPLETION, DATED OCTOBER 6, 1997
PRELIMINARY PROSPECTUS
35,483,971 Shares
BIOSAFE INTERNATIONAL, INC.
Common Stock
-------------------
All of the shares of common stock, $.001 par value per share (the
"Common Stock"), offered hereby (the "Shares") are being registered for the
account of certain stockholders of BioSafe International, Inc. ("BioSafe" or the
"Company"), or their pledgees, named herein (collectively, the "Selling
Stockholders"). The Shares have been or are to be issued upon the election of
such Selling Stockholders to convert certain shares of Series A Preferred Stock,
$.001 par value per share (the "Preferred Stock"), of the Company into shares
of Common Stock. See "Plan of Distribution" and "Selling Stockholders." The
registration of the shares of Common Stock offered hereby does not necessarily
mean that the Selling Stockholders will elect to convert all or any of their
shares of Preferred Stock or that, upon such conversion, any shares of Common
Stock will be offered or sold by the Selling Stockholders.
Each of the Selling Stockholders, directly or through agents,
dealers or underwriters designated from time to time, may sell all or a portion
of the Shares offered hereby from time to time on terms to be determined at the
time of sale. To the extent required by law, the specific Shares to be sold, the
names of the Selling Stockholders, the respective purchase prices and public
offering prices, the names of any such agent, dealer or underwriter, and any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying Prospectus Supplement. See "Plan of Distribution."
Each Selling Stockholder reserves the sole right to accept and, together with
such Selling Stockholder's agents, dealers or underwriters from time to time, to
reject, in whole or in part, any proposed purchase of Shares to be made directly
or through agents, dealers or underwriters.
The aggregate proceeds to the Selling Stockholders from the sale of
the Shares offered hereby (the "Offering") will be the purchase price of the
Shares sold less the aggregate agents' commissions and underwriters' discounts,
if any, and other expenses of issuance and distribution not borne by the
Company. The Company will pay all of the expenses of the Offering other than
agents' commissions and underwriters' discounts with respect to the Shares
offered hereby and transfer taxes, if any. The Company will not receive any
proceeds from the sale of the Shares offered hereby by the Selling Stockholders.
The Selling Stockholders and any agents, dealers or underwriters
that participate with the Selling Stockholders in the distribution of the Shares
may be deemed to be "underwriters" within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), in which case any commissions received
by such agents, dealers or underwriters and any profit on the resale of the
Shares purchased by them may be deemed underwriting commissions or discounts
under the Securities Act. See "Plan of Distribution" for indemnification
arrangements between the Company and the Selling Stockholders.
The Common Stock is traded on The Nasdaq SmallCap Market (the
"Nasdaq Market") under the symbol "BSFE." On September 30, 1997, the last
reported sales price for the Common Stock on the Nasdaq Market was $.75 per
share.
See "Risk Factors" on pages 2 to 3 for a discussion of certain material
factors that should be considered in connection with an investment in the Common
Stock offered hereby.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANYREPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------
The date of this Prospectus is , 1997
<PAGE>
RISK FACTORS
Certain statements in this Prospectus constitute "forward-looking
statements" as that term is defined under the Private Securities Litigation
Reform Act of 1995. The words "believe," "expect," "anticipate," "intend,"
"estimate," "assume" and other similar expressions which are predictions of or
indicate future events and trends and which do not relate to historical matters
identify forward-looking statements. Reliance should not be placed on
forward-looking statements because they involve known and unknown risks,
uncertainties and other factors, which are in some cases beyond the control of
the Company and may cause the actual results, performance or achievements of the
Company to differ materially from anticipated future results, performance or
achievements expressed or implied by such forward-looking statements. Investors
should carefully consider the following factors, in addition to the other
information contained in this Prospectus, in connection with investments in the
shares of Common Stock offered hereby.
Operating Losses and Accumulated Deficit; Uncertainty of Future
Profitability. BioSafe had an accumulated operating deficit at June 30, 1997 of
$25,718,000. Prospects for future profitability are heavily dependent on the
success of BioSafe's ability to build an integrated solid waste management
company, and its landfill remodeling projects. The Company must raise
substantial additional capital to bring to commercial viability all of its
currently planned projects and must achieve a level of revenues adequate to
support its cost structure. There can be no assurance about the Company's
ability to raise additional capital, achieve an adequate level of revenues or
continue as a going concern.
Possible Delisting of Securities from the NASDAQ Market. The Company's
Common Stock is traded on The NASDAQ SmallCap Market. Recent changes in the
Nasdaq listing requirements provide that, as of February 22, 1998, in order to
continue to qualify for quotation on the NASDAQ Market, the Company must have,
among other things, at least $2,000,000 in net tangible assets (net tangible
assets means total assets, excluding goodwill, minus total liabilities), a
public float of 500,000 shares (public float is defined as shares that are not
held directly or indirectly by any officer or director of the issuer and by any
other person who is the beneficial owner of more than 10% of the total shares
outstanding) and a minimum bid price for shares of its Common Stock of $1.00 per
share. As of September 30, 1997, the minimum bid price for shares of the
Company's Common Stock was $.75 per share. Accordingly, if the minimum bid price
of the Company's Common Stock does not increase to at least $1.00 per share by
February 22, 1998, the Company's Common Stock will not be eligible for continued
quotation on the NASDAQ Market. The loss of continued listing on the NASDAQ
Market may, inter alia, reduce news coverage of the Company and make it more
difficult for the Company to obtain subsequent financing. The Company is
currently considering implementing a reverse stock split, which would have the
effect of increasing the per share price of its Common Stock. No assurances can
be given, however, that the Company will undertake or consummate a reverse stock
split or that the per share price of the Company's Common Stock will remain
above $1.00 per share for an extended period of time following a reverse stock
split.
Risk of Limited Liquidity. The Company has limited liquidity in relation
to its short-term capital commitments and operating cash requirements. The
Company's ability to satisfy its commitments and operating requirements is
dependent on a number of pending financing activities which are not assured of
successful completion. Any failure of the Company to obtain sufficient financing
in the short run would have a materially adverse effect on the Company's
financial condition and operations.
Initial Commercialization Stage; Limited Operating History. To date,
although BioSafe has conducted significant testing of methods and processes
based on its size reduction and materials handling technology, BioSafe has not
yet carried through a landfill remodeling project to completion. Final
development and operation may be subject to engineering and construction
problems such as cost overruns and start up delays resulting from technical or
mechanical problems, unfavorable conditions in the equipment or labor market, or
environmental permitting and other regulatory problems, as well as other
possible adverse factors. There can be no assurance that BioSafe will be
successful in developing and implementing commercial landfill remodeling
projects, or that any such development can be accomplished without excessive
cost or delay.
2
<PAGE>
Potential Environmental Liability and Adverse Effect of Environmental
Regulation. BioSafe's business exposes it to the risk that it will be held
liable if harmful substances escape into the environment as a result of its
operations and cause damages or injuries. Moreover, federal, state and local
environmental legislation and regulations require substantial expenditures and
impose significant liabilities for noncompliance.
Unpredictability of Patent Protection and Proprietary Technology.
BioSafe's success depends, in part, on its ability to obtain and enforce
patents, maintain trade secret protection and operate without infringing on the
proprietary rights of third parties. While BioSafe has been issued a U.S. patent
and certain related foreign patents on certain of its size reduction and
materials handling technology with particular reference to landfill remodeling
and on its CFA medical waste treatment system, there can be no assurance that
others will not independently develop similar or superior technologies,
duplicate any of BioSafe's processes or design around any processes on which
BioSafe has or may obtain patents. In addition, it is possible that third
parties may have or acquire licenses for other technology that BioSafe may use
or desire to use, so that BioSafe may need to acquire licenses to, or to contest
the validity of, such patents of third parties relating to BioSafe's technology.
There can be no assurance that any license required under such patents would be
made available to BioSafe on acceptable terms, if at all, or that BioSafe would
prevail in any such contest. Moreover, BioSafe could incur substantial costs in
defending itself in suits brought against BioSafe or in bringing suits against
other parties related to patent matters.
Risks Attendant to Company Growth. The Company expects to experience
significant growth in its business. This growth will continue to make
significant demands on the Company's management, resources and operations. To
manage its growth efficiently, the Company will be required to continue to
improve its operational, financial and management information systems and to
hire and train new employees and manage its current employees. The Company's
failure to manage growth effectively could have a material adverse effect on the
Company's business and financial performance.
Competition. The markets in which BioSafe competes are characterized by
several large companies and numerous small companies. Any of these companies may
develop technologies superior to those of BioSafe. Many of BioSafe's potential
competitors are large companies with substantially greater financial resources
than BioSafe. To the extent these potential competitors offer comparable
technologies, BioSafe's ability to compete effectively could be adversely
affected.
In addition to patent protection, BioSafe also relies on trade secrets,
proprietary know how and technology which it seeks to protect, and
confidentiality agreements with its collaborators, employees and consultants.
There can be no assurance that these agreements and other steps taken by BioSafe
will be effective to protect BioSafe's technology against unauthorized use by
others.
Dependence on Key Management and Qualified Personnel. BioSafe is highly
dependent upon the efforts of its senior officers, Philip Strauss, President and
Chief Executive Officer, and Robert Rivkin, Vice-President and Chief Financial
Officer, and other senior management. The loss of the services of one or more of
these employees might have a material adverse effect on the Company. BioSafe
does not currently maintain key man insurance on any of its personnel. BioSafe's
future success will depend in large part upon its ability to attract and retain
additional highly skilled managerial and technical personnel. BioSafe faces
competition for hiring such personnel from other companies, research and
academic institutions, government entities and other organizations. There can be
no assurance that BioSafe will be successful in attracting and retaining
qualified personnel as required for its projected operations.
3
<PAGE>
THE COMPANY
General
BioSafe is a regional fully integrated non-hazardous solid waste
management company that is also engaged in the business of rehabilitating
landfills to permit their continued operation with increased capacity in an
environmentally sound manner, a procedure referred to by BioSafe as "landfill
remodeling." BioSafe has developed technologies for the handling of waste
materials for use in landfill remodeling.
The Company, in January 1997, through an 80% owned subsidiary, entered
the waste collection business in the State of Vermont as its initial step to
develop fully integrated solid waste management operations in markets where it
believes it can maximize utilization of Company owned or operated landfills
through such integration. An integrated solid waste management company offers
disposal, collection, transfer and recycling services. Accordingly, the Company
is in the initial stages of investigating potential acquisitions of waste
collection, transfer and/or disposal operations which would be integrated with
current or future landfill acquisitions or landfill remodeling projects.
On June 19, 1997, the Company signed an agreement with the Chittenden
Solid Waste District (the "CSWD") to lease/purchase the CSWD's permitted
transfer station in Burlington, Vermont. This transaction will offer the Company
greater access to the Burlington, Vermont and surrounding area markets,
Vermont's most populated and industrialized community. The Company anticipates
taking over operations of the transfer station on or after October 1, 1997. In
addition, as of September 1, 1997, the Company started receiving waste from CSWD
at its landfill. The Company is in preliminary discussions in connection with
various potential acquisitions, including landfills, transfer stations and
hauling operations, but no binding agreements or understanding for any such
acquisitions exists at this time, and no assurance can be given that the Company
will be able to complete any such acquisitions.
As discussed above, BioSafe is focusing its resources and activities on
the development of an integrated solid waste management business. With the
implementation of Subtitle D Regulations and a growing scarcity of urban-center
disposal sites, solid waste disposal continues to move further out from these
urban centers. The Company believes that through utilization of its landfill
remodeling process, it will be able to acquire and develop landfill capacity in
or near urban metropolitan areas. On an integrated basis, this will provide the
Company with a geographical and logistical competitive advantage because the
Company's operations will be more centrally located as compared to its
competitors whose operations will extend out longer distances from disposal
sites.
The Company is currently maintaining ownership of its infectious medical
waste disposal technology, which is fully developed and requires no further
development costs, which is outside the Company's core business.
The Company's principal executive offices are located at 10 Fawcett
Street, Cambridge, Massachusetts 02138; its telephone number is (617) 497-4500.
The Company is a Nevada corporation.
The Preferred Stock Offering
On June 30, 1997, the Company closed a Regulation "D" private placement
of Series "A" Convertible Preferred Stock which raised net proceeds of
approximately $9.2 million. As part of the private placement and included in the
$9.2 million, the Company converted approximately $570,000 in bank debt into
Preferred Stock and acquired the minority interest in Waste Professionals
of Vermont, Inc. for $850,000 of Preferred Stock.
The Preferred Stock was sold at a price of $100 per share, bears an 8%
annual cumulative dividend, and is convertible into Common Stock at a conversion
price of $0.28125 per share of Common Stock, which conversion price may be reset
4
<PAGE>
to a lower conversion price upon the occurrence of certain events. The dividend
is payable in cash or in additional shares of Preferred Stock at the Company's
option and is subject to adjustment after three years. The Preferred Stock is
also redeemable at the Company's option after one year, subject to certain
trading requirements.
REGISTRATION RIGHTS
The registration of the shares of Common Stock pursuant to the
Registration Statement of which this Prospectus is a part will discharge certain
of the Company's obligations under the terms of a Registration Rights Agreement
dated as of June 30, 1997 with the holders of the Preferred Stock (the
"Registration Rights Agreement").
Pursuant to the Registration Rights Agreement, the Company has agreed to
pay all expenses of effecting the registration of such shares of Common Stock
(other than brokerage and underwriting commissions). The Company also has agreed
to indemnify each Selling Stockholder under the Registration Rights Agreement
and its officers, directors and other affiliated persons and any person who
controls any Selling Stockholder against all losses, claims, damages and
expenses arising under the securities laws or otherwise in connection with the
Registration Statement or this Prospectus or any amendment or supplement thereto
or hereto, subject to certain limitations. In addition, the Selling Stockholders
under the Registration Rights Agreement agreed to indemnify the Company and its
directors, officers and any person who controls the Company against any losses,
claims, damages and expenses arising under the securities laws in connection
with the Registration Statement or this Prospectus or any amendment or
supplement thereto or hereto, but only to the extent such loss, claim, damage or
expense relates to written information furnished to the Company by such Selling
Stockholder expressly for use in the Registration Statement or this Prospectus
or any amendment or supplement thereto or hereto.
SELLING STOCKHOLDERS
The following table sets forth certain information known to the Company
with respect to the Selling Stockholders, including the number of shares of
Common Stock beneficially owned by each Selling Stockholder, the number of
Shares registered hereby, and the number and percentage of shares of Common
Stock held by each Selling Stockholder before the Offering and, assuming the
sale of all registered Shares, after the Offering. There can be no assurance
that all or any of the Shares offered hereby will be sold. If any are sold, each
Selling Stockholder will receive all of the net proceeds from the sale of his,
her or its respective Shares offered hereby. The amounts set forth are to the
best of the Company's knowledge.
5
<PAGE>
<TABLE>
<CAPTION>
Shares Beneficially
Owned Prior to Shares to be Shares Beneficially
Offering Registered and Owned After Offering
----------------------- Sold in -----------------------
Beneficial Owner Number(1) Percent(2) Offering Number(1) Percent(2)
---------------- ---------- ---------- ------------ ----------- ----------
<S> <C> <C> <C> <C> <C>
Risk Reward Fund Limited................ 1,066,666 2.04% 1,066,666 0 0
VMR High Octane Fund LTD................ 1,066,666 2.04% 1,066,666 0 0
Valux S.A............................... 400,000 * 400,000
Herb Stein.............................. 400,000 * 400,000 0 0
Richard Brothers........................ 3,022,222 5.78% 3,022,222 0 0
FDIC-for Boston Trade Bank in liquidation 2,488,888 4.67% 2,488,888 0 0
Fritas AS............................... 1,066,666 2.04% 1,066,666 0 0
Corner Bank LTD......................... 161,421 * 161,421 0 0
Simone Haggiag.......................... 88,888 * 88,888 0 0
Banca Del Gottardo...................... 1,322,310 2.53% 1,322,310 0 0
J&C Resources Limited................... 1,777,777 3.40% 1,777,777 0 0
B III Capital Partners, L.P............. 17,777,777 34.00% 17,777,777 0 0
Florian Homm............................ 1,066,666 2.04% 1,066,666 0 0
James McCarthy Jr....................... 6,400 * 6,400 0 0
First Dunbar Associates, Inc............ 57,600 * 57,600 0 0
First Dunbar Securities Corp............ 42,666 * 42,666 0 0
Richard Banakus......................... 355,555 * 355,555 0 0
Cass & Co. - Magnum U.S. Equity Fund.... 355,555 * 355,555 0 0
Cass & Co. - Magnum Tech Fund........... 88,888 * 88,888 0 0
Cass & Co. - Magnum Turbo Growth Fund... 177,777 * 177,777 0 0
Cass & Co. - Magnum Opportunity Fund.... 88,888 * 88,888 0 0
Cass & Co. - Magnum Capital Growth Fund. 355,555 * 355,555 0 0
Rosebud Capital Growth Fund............. 355,555 * 355,555 0 0
Stanley Hollander ...................... 88,888 * 88,888 0 0
Harvey Tauman........................... 106,666 * 106,666 0 0
Robert Rivkin........................... 339,763 * 88,888 250,875 *
Philip W. Strauss....................... 338,888 * 88,888 250,000 *
Joseph Motzkin.......................... 104,513 * 88,888 15,625 *
Rich Golub.............................. 102,400 * 102,400 0 0
Bostar A/S.............................. 17,066 * 17,066 0 0
Egger and Company....................... 14,933 * 14,933 0 0
Nelson Partners......................... 14,933 * 14,933 0 0
Olympus Securities, Ltd................. 1,066 * 1,066 0 0
Demachy Worms & Co. International Ltd... 34,133 * 34,133 0 0
Union Bancaire Privee................... 1,066 * 1,066 0 0
Lars E. Bernsten........................ 2,133 * 2,133 0 0
Birger Dalen............................ 1,066 * 1,066 0 0
Svein Ekjord............................ 1,066 * 1,066 0 0
Per Flring.............................. 6,400 * 6,400 0 0
Nicolai M. Gram......................... 6,400 * 6,400 0 0
Nils Otto Holmen........................ 5,333 * 5,333 0 0
Harold Norman........................... 4,266 * 4,266 0 0
Ellen Jaer Obargaard.................... 1,066 * 1,066 0 0
Peter Spiten............................ 1,066 * 1,066 0 0
Svein Erik Stiansen..................... 1,066 * 1,066 0 0
Ellen og Lars H. Thorklldsen............ 1,061 * 1,061 0 0
Bjorn Tueter............................ 1,061 * 1,061 0 0
International Capital Growth Limited.... 313,955 * 313,955 0 0
Skips A/S `Lodd'........................ 35,555 * 35,555 0 0
Barnfield Limited....................... 220,000 * 220,000 0 0
Heritage Finance & Trust Company........ 120,000 * 120,000 0 0
Banque Privee Edmond de Rothschild S.A.. 200,000 * 200,000 0 0
Comptoir Prive de Gestion S.A........... 70,000 * 70,000 0 0
Arbinter Omnivalor S.A.................. 250,000 * 250,000 0 0
TOTAL................................... 36,000,471 68.85% 35,483,971 516,500 *
</TABLE>
6
<PAGE>
- ----------------
* Less than 1%
(1) Except as indicated in the other footnotes to this table or as
described below with respect to the relationships of the Selling
Stockholders to the Company, based on information provided by such
persons and subject to applicable community property laws, the persons
named in the table above have sole voting and investment power with
respect to all of the shares of Common Stock shown as beneficially owned
by them.
(2) Percentage of ownership is based on 52,286,542 common share equivalents
outstanding on September 10, 1997, consisting of 18,195,904 shares of
Common Stock and 95,580 shares of Preferred Stock convertible into an
aggregate of 34,090,638 shares of common stock. . Shares of Common
Stock subject to stock options that are exercisable within 60 days of
September 10, 1997 are deemed outstanding for computing the percentage
of the person or group holding such options, but are not deemed
outstanding for computing the percentage of any other person or group.
The relationships of the Selling Stockholders to the Company are as
follows:
7
<PAGE>
Name Relationship
---- ------------
Philip W. Strauss Chairman of the Board of Directors, Chief
Executive Officer and President.
Robert Rivkin Director, Chief Financial Officer, Vice
President, Treasurer and Secretary.
Joseph E. Motzkin Vice President.
B III Capital Partners, L.P. DDJ Capital Management, LLC ("DDJ") serves
as the investment manager to B III Capital
Partners, L.P. ("B III") and an affiliate
of DDJ acts as the general partner of
B III. Two Directors of BioSafe, Judy K.
Mencher and David J. Breazzano, are
managing members of DDJ.
International Capital Growth A Director of BioSafe, Jay J. Matulich, is
a Limited managing director of
International Capital Growth Limited.
PLAN OF DISTRIBUTION
The Shares of Common Stock offered hereby may be offered and sold from
time to time by the Selling Stockholders listed above, or by pledgees, donees,
transferees or other successors in interest. The Company will not receive any
of the proceeds from this Offering. The Shares offered hereby may be sold
from time to time on the Nasdaq Market on terms to be determined at the time
of such sales. The Shares of Common Stock may be sold by one or more of the
following; (a) a block trade in which the broker or dealer so engaged will
attempt to sell the Shares of Common Stock as agent but may position and resell
a portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; (d) private sales directly
or through a broker or brokers; and (e) to or through underwriters, dealers or
agents, who may receive consideration in the form of discounts and
commissions; such compensation, which may be in excess of ordinary brokerage
commissions, may be paid by the Selling Stockholders and/or the purchasers
of the Shares offered hereby for whom such underwriters, dealers or agents
may act. The Selling Stockholders and any dealers or agents that
participate in the distribution of the Shares offered hereby may be deemed to be
"underwriters" as defined in the Securities Act, and any profit on the sale of
such Shares offered hereby by them and any discounts, commissions or concessions
received by any such dealers or agents might be deemed to be underwriting
discounts and commissions under the Securities Act. The aggregate proceeds to
the Selling Stockholders from sales of the Shares offered by the Selling
Stockholders hereby will be the purchase price of such Common Stock less any
broker's commissions.
To the extent required, the specific shares of Common Stock to be sold,
the names of the Selling Stockholders, the respective purchase prices and public
offering prices, the names of any such agent, dealer or underwriter, and any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying Prospectus Supplement
The Shares offered hereby may be sold from time to time in one or more
transactions at a fixed offering price, which may be changed, or at varying
prices determined at the time of sale or at negotiated prices.
In order to comply with the securities laws of certain states, if
applicable, the Shares offered hereby will be sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in certain
states Shares may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
8
<PAGE>
Under applicable rules and regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), any person engaged in the distribution
of the Common Stock offered hereby may not simultaneously engage in market
making activities with respect to the Common Stock for a period of two business
days prior to the commencement of such distribution. In addition, and without
limiting the foregoing, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder,
including, without limitation, Rules 10b-2, 10b-6 and 10b-7, which may limit the
timing of purchases and sales by the Selling Stockholders.
The Company will pay substantially all the expenses incurred by the
Selling Stockholders and the Company incident to the Offering and sale of the
Shares to the public, but excluding any underwriting discounts, commissions or
transfer taxes. The Company has agreed to indemnify the Selling Stockholders
against certain liabilities, including liabilities under the Securities Act.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act and, in accordance therewith, files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). The
Registration Statement, as well as such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at 7
World Trade Center, Suite 1300, New York, New York 10048 and Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511.
Copies of such material can also be obtained from the Public Reference Section
of the Commission at Room 1024, Judiciary Plaza, 450 West Fifth Street, N.W.,
Washington, D.C. 20549, and at its public reference facilities at New York, New
York and Chicago, Illinois at prescribed rates. The Commission also maintains a
Web site at http://www.sec.gov containing reports, proxy and information
statements and other information regarding registrants, including the Company,
that file electronically with the Commission. In addition, the Company's Common
Stock is listed on Nasdaq Market, and the aforementioned materials may also be
inspected at the offices of The Nasdaq Stock Market, Inc. at 1735 K Street,
N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on
Form S-3 (the "Registration Statement," which term shall include all amendments,
exhibits, annexes and schedules thereto) pursuant to the Securities Act, and the
rules and regulations promulgated thereunder, covering the Common Stock being
offered hereby. For further information with respect to the Company and the
shares of Common Stock being offered by this Prospectus, reference is hereby
made to such Registration Statement, including the exhibits filed as part
thereof. Statements contained in this Prospectus concerning the provisions of
certain documents filed with, or incorporated by reference in, the Registration
Statement are not necessarily complete, each such statement being qualified in
all respects by such reference. Copies of all or any part of the Registration
Statement, including the documents incorporated by reference therein or exhibits
thereto, may be obtained upon payment of the prescribed fees at the offices of
the Commission set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the
Commission pursuant to the Exchange Act are incorporated in this Prospectus by
reference: (i) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, as filed on March 31, 1997, as amended by the Company's
Annual Report on Form 10-K/A, as filed on April 30, 1997; (ii) the Company's
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 1997, as
filed on May 15, 1997; (iii) the Company's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1997, as filed on August 14, 1997; (iv) the
Company's Current Report on Form 8-K dated June 26, 1997, as amended by the
Company's Current Report on Form 8-K/A filed on July 16, 1997; and (v) the
description of the Company's Common Stock contained in its Registration
Statement on Form 8-A as filed on or about April 27, 1995 under Section 12 of
the Exchange Act, and any amendments or reports for the purpose of updating such
description.
9
<PAGE>
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the filing of a post-effective amendment hereto that indicates that all
securities offered hereunder have been sold or that deregisters all such
securities then remaining unsold shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
(or in an applicable Prospectus Supplement) or in any subsequently filed
document that is incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this Prospectus or any Prospectus Supplement, except as so
modified or superseded.
The Company will provide, without charge, to each person, including any
owner of Common Stock, to whom a copy of this Prospectus is delivered, at the
written or oral request of such person, a copy of any or all of the documents
incorporated herein by reference (other than exhibits thereto, unless such
exhibits are specifically incorporated by reference into such documents).
Requests for such copies should be directed to Robert Rivkin, Chief Financial
Officer, BioSafe International, Inc., 10 Fawcett Street, Cambridge,
Massachusetts 02138, telephone (617) 497-4500.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company and the Selling Stockholders by Goodwin, Procter &
Hoar LLP, Boston, Massachusetts.
EXPERTS
The consolidated financial statements of BioSafe International, Inc. as
of December 31, 1996 and 1995, and for each of the years in the three-year
period ended December 31, 1996, incorporated herein by reference to the
Company's Annual Report on Form 10-K for the year ended December 31, 1996, have
been so incorporated in reliance on the report of KPMG Peat Marwick LLP,
independent certified public accountants, given on the authority of that firm as
experts in accounting and auditing. The report of KPMG Peat Marwick LLP covering
the consolidated financial statements is incorporated by reference herein and
contains an explanatory paragraph that states that the Company must raise
substantial additional capital and must achieve a level of revenues adequate to
support the Company's cost structure which raises substantial doubt about its
ability to continue as a going concern. The consolidated financial statements of
BioSafe International, Inc., incorporated by reference herein, do not include
any adjustments that might result from the outcome of that uncertainty.
10
<PAGE>
No person has been authorized in
connection with the offering made hereby
to give any information or to make
any representation not contained in 35,483,971 Shares
this Prospectus and, if given or made,
such information or representation must
not berelied upon as having been authorized
by the Company, any Selling Stockholder or
any other person. This Prospectus does not BIOSAFE
constitute an offer to sell or a solicitation INTERNATIONAL,
of an offer to buy any of the securities INC.
offered hereby to any person or by anyone
in any jurisdiction in which it is unlawful
to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made Common Stock
hereunder shall, under any circumstances,
create any implication that the information
contained herein is correct as of any date
subsequent to the date hereof.
PROSPECTUS
TABLE OF CONTENTS
Page
Risk Factors................................... 2
The Company.................................... 4
Registration Rights............................ 5
Selling Stockholders........................... 5
Plan of Distribution........................... 8
, 1997
Available Information.......................... 9
Incorporation of Certain Documents
by Reference................................... 9
Legal Matters.................................. 10
Experts........................................ 10
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an itemized statement of all expenses
expected to be incurred in connection with the issuance and distribution of the
securities being registered (all of which are estimated, other than the filing
fee of the Securities and Exchange Commission):
Securities and Exchange Commission filing fee........... $ 8,065
Legal fees and expenses................................. 7,500
Accounting fees and expenses............................ 2,000
Blue sky fees and expenses.............................. 5,000
Miscellaneous........................................... $ 5,000
--------
........................................................ $ 27,565
Item 15. Indemnification of Directors and Officers.
The Company's Articles of Incorporation provide certain limitations on
the liability of the Company's directors and officers for monetary damages to
the Company. The Articles of Incorporation obligate the Company to indemnify its
directors and officers for monetary damages for any breach of fiduciary duty by
such person as a director or officer, except (i) for acts or omissions that
involve intentional misconduct, fraud or knowing violation of law or (ii) the
payment of dividends in violation of Section 78.300 of the Nevada Business
Corporation Act (the "NBCA"). These provisions could reduce the legal remedies
available to the Company and the stockholders against these individuals.
The NBCA permits a corporation to eliminate or limit the personal
liability of a director or officer to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director or officer, but such
a provision must not eliminate or limit the liability of a director or officer
for (i) acts or omissions that involve intentional misconduct, fraud or knowing
violation of law or (ii) the payment of distributions in violation of NBCA
Section 78.300.
The Company has entered into an indemnification agreement with one of
its directors, William B. Philipbar. The indemnification agreement requires,
among other things, that the Company indemnify Mr. Philipbar to the fullest
extent permitted by law and advance to Mr. Philipbar all related expenses. Under
this agreement, the Company must also indemnify and advance all expenses
incurred by Mr. Philipbar seeking to enforce his rights under the
indemnification agreement, provided Mr. Philipbar prevails. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, it provides additional assurance to Mr. Philipbar that
indemnification will be available because, as a contract, it cannot be modified
unilaterally in the future by the Board of Directors or the stockholders to
eliminate the rights it provides. It is the position of the Commission that
indemnification of directors and officers for liabilities under the Securities
Act is against public policy and unenforceable pursuant to Section 14 of the
Securities Act.
II-1
<PAGE>
Item 16. Exhibits
4.1* Articles of Incorporation.
4.2** Articles of Amendment to Articles of Incorporation.
4.3*** Bylaws.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Common Stock being registered.
23.1 Consent of KPMG Peat Marwick L.L.P., Independent Accountants.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1 hereto).
24.1 Power of Attorney (included on the signature page hereto).
- ----------------------------------
* Previously filed as an exhibit to Registrant's Registration Statement
on Form S-1, No. 33-93966.
** Previously filed as an exhibit to Registrant's Registration Statement
on Form S-1, No. 33-93966.
*** Previously filed as an exhibit to Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1995.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would no
exceed that which was registered) and any deviation from
the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the
aggregate, the change in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in the Registration Statement or any material
change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the undersigned Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement;
II-2
<PAGE>
(2) That, for the purpose of determining any liability under
the Securities Act, 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act 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 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 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, The Commonwealth of Massachusetts, on
September 26, 1997.
BIOSAFE INTERNATIONAL, INC.
By: /s/ Philip W. Strauss
Philip W. Strauss
President
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Philip W. Strauss and Robert Rivkin, each acting
singly, as his or her true and lawful attorney-in-fact and agent, with full
power of substitution, and from him and in his name, place and stead, in any and
all capacities, to sign any and all amendments or post-effective amendments to
this registration statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each of said attorneys-in-fact and agents, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Philip W. Straus President, Chief Executive September 30, 1997
- ------------------------ Officer and Director
Philip W. Strauss (Principal Executive Officer)
/s/ Robert Rivkin Vice President, Chief September 30, 1997
- ------------------------ Financial Officer, Secretary,
Robert Rivkin Treasurer and Director
(Principal Financial Officer
and Accounting Officer)
/s/ David Breazzano Director September 30, 1997
- ------------------------
David Breazzano
/s/ Charles Johnston Director September 30, 1997
- ------------------------
Charles Johnston
/s/ Jay Matulich Director September 30, 1997
- ------------------------
Jay Matulich
/s/ Judy Mencher Director September 30, 1997
- ------------------------
Judy Mencher
/s/ William B. Philipbar Director September 30, 1997
- ------------------------
William B. Philipbar
<PAGE>
Exhibit 5.1
October 3, 1997
BioSafe International, Inc.
10 Fawcett Street
Cambridge, Massachusetts 02138
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
This opinion is rendered to you in connection with the preparation of
the Registration Statement on Form S-3 (File No. 333- ) (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the proposed issuance and sale, from time to time, by certain
selling stockholders of BioSafe International, Inc. (the "Company") of up to
35,483,971 shares (the "Shares") of the Company's common stock, $.001 par value
per share (the "Common Stock").
We have acted as counsel to the Company in connection with the
preparation of the Registration Statement. For purposes of this opinion, we have
examined the Articles of Incorporation and By-laws, as amended and restated, of
the Company; such records of the corporate proceedings of the Company as we have
deemed material; the Registration Statement and all exhibits thereto; and such
other documents as we have deemed necessary to enable us to render this opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdiction
other than the laws of the United States of America and The Commonwealth of
Massachusetts.
In rendering the opinions expressed herein, we assume that all steps
necessary to comply with the registration requirements of the Securities Act and
with applicable requirements of state law regulating the sale of securities will
be duly taken.
Based upon and subject to the foregoing, and having regard for such
legal considerations as we have deemed relevant, it is our opinion that the
Shares have been authorized for issuance and are validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name in the Registration
Statement and the Prospectuses contained therein.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use of our report incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the prospectus. Our
report dated March 28, 1997 includes an explanatory paragraph that states that
the Company must raise substantial additional capital and must achieve a level
of revenues adequate to support its cost structure, which raises substantial
doubt about its ability to continue as a going concern. The consolidated
financial statements incorporated by reference herein do not include any
adjustments that might result from the outcome of that uncertainty.
KPMG Peat Marwick LLP
Boston, Massachusetts
September 23, 1997
