AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 4, 2000
Registration Statement No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SAFESCIENCE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEVADA 2834 33-0231238
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
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31 ST. JAMES AVENUE
BOSTON, MASSACHUSETTS 02116
(617) 422-0674
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
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BRADLEY J. CARVER
CHIEF EXECUTIVE OFFICER
SAFESCIENCE, INC.
31 ST. JAMES AVENUE
BOSTON, MASSACHUSETTS 02116
(617) 422-0674
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
CHERYL REICIN, ESQ.
MCDERMOTT, WILL & EMERY
50 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10020
(212) 547-5400
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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, 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, 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 post-effective amendment filed pursuant to Rule 462(d)
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>
CALCULATION OF REGISTRATION FEE
<CAPTION>
================================================== ================ ================= ================ ==========================
Proposed Proposed
Maximum Maximum
Title of Each Class of Securities to Offering Price Aggregate Amount of Registration
Securities to be Registered be Registered Per Share (2) Offering Price Fee
================================================== ================ ================= ================ ==========================
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share........ 317,414(1) $3.8594 $1,225,028 $324
================================================== ================ ================= ================ ==========================
(1) The shares being registered by this registration statement include(i)
317,414 shares of common stock that may be issued by SafeScience under
adjustable warrants issued to the purchasers in a private placement, and (ii)
pursuant to Rule 416 of the Securities Act, an indeterminate number of
additional shares that may be issued under the terms of the above mentioned
warrants as a result of anti-dilution provisions, stock splits, stock dividends
or similar transactions.
(2) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(c), based upon the average of the high and low
sales prices on August 1, 2000, as reported by the Nasdaq SmallCap Market.
</TABLE>
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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 SEC, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell securities, and we are not soliciting offers to buy these securities, in
any state where the offer or sale is not permitted.
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 3, 2000
317,414 SHARES
[LOGO]
COMMON STOCK
These shares of common stock are being offered and sold from time
to time by certain of our current shareholders. These shares consist of
shares issuable upon exercise of adjustable warrants issued by us in
March 2000.
The selling shareholders may sell the shares from time to time at
fixed prices, market prices or at negotiated prices, and may engage a
broker or dealer to sell the shares. For additional information on the
selling shareholders' possible methods of sales, you should refer to
the section of this prospectus entitled "Plan of Distribution" on page
14. We will not receive any proceeds from the sale of the shares, but
will bear the costs relating to the registration of the shares.
Selling stockholders identified in this prospectus are offering all
of these shares and will receive all of the proceeds of this offering.
Our common stock is listed on the Nasdaq SmallCap Market under the
symbol "SAFS." The closing price for our common stock on the Nasdaq
SmallCap Market on August 1, 2000 was $3.875 per share.
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INVESTING IN THE COMMON STOCK INVOLVES RISKS.
SEE "RISK FACTORS" BEGINNING ON PAGE 4.
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THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES
REGULATORS HAVE NOT APPROVED OR DISAPPROVED THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------
The date of this prospectus is , 2000
<PAGE>
TABLE OF CONTENTS
PAGE
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Prospectus Summary............................................................ 1
Risk Factors.................................................................. 4
Note on Forward Looking Statements............................................11
Use of Proceeds...............................................................11
Dividend Policy...............................................................11
Selling Stockholders..........................................................12
Plan of Distribution..........................................................14
Description of Capital Stock..................................................15
Legal Matters.................................................................19
Experts.......................................................................19
Where You Can Find More Information...........................................19
We own or have rights to trademarks that we use in conjunction with the
sale of our products. "SafeScience," our logo, "Elexa" are our trademarks. All
other trade names and trademarks used in this prospectus are the property of
their respective owners.
i
<PAGE>
PROSPECTUS SUMMARY
This is only a summary and may not contain all of the information that
you should consider before investing in our common stock. You should read the
entire prospectus carefully, including the "Risk Factors" section and our
financial statements and the notes thereto included elsewhere in this
prospectus.
SAFESCIENCE, INC.
INTRODUCTION. We are a biotechnology company engaged in developing
pharmaceutical products for cancer treatment, as well as introducing a line of
high-performance, non-toxic agricultural and consumer products under the
SafeScience(R) brand name. We have begun selling a line of cleaning products in
supermarkets, drug chains and industrial channels, and expect to introduce
additional product categories in the future. We also expect to introduce
environmentally friendly agricultural products, beginning with a biofungicide
(principally for grapes and other high-value per acre crops) subject to approval
by or registration with state regulatory and federal environmental protection
authorities. We believe that our business model is unique among biotechnology
companies because we are jointly pursuing longer-term development of cancer
remedies, while simultaneously selling and/or developing a line of
SafeScience(R) consumer and agricultural products.
We are headquartered in Boston and currently have approximately 35
employees. As our operations have grown, we have added new professionals to our
executive management team. During the last nine months, we have hired a Chief
Financial Officer and a Chief Operating Officer, each of whom brings over 20
years experience in corporate finance, and operations and consumer products,
respectively.
PHARMACEUTICAL PRODUCTS. The leading product in our drug development
pipeline, GBC-590, is designed to reduce primary tumors, the growth of cancerous
tumors, and the spread of cancer cells in prostate, pancreatic, colorectal, and
liver cancer patients.
GBC-590, a rationally designed carbohydrate molecule, acts by binding to
Galectin 3 receptors on cancer cells and has been shown to shrink primary tumors
and inhibit metastasis in animal models. In Phase I human testing that enrolled
patients with terminal cancer refractory to all standard treatment, GBC-590 was
found to be well tolerated at all administered dose levels. We commenced Phase
IIA clinical trials of GBC-590 for pancreatic and colorectal cancers and may
begin Phase IIA clinical trials for prostrate and liver cancers in 2000. We have
received institutional review board approval at the following sites to conduct
Phase IIA clinical trials:
o Beth Israel/Deaconess Hospital in Boston, Massachusetts;
o University of Chicago Pritzker School of Medicine;
o the University of Rochester Cancer Center;
o Christiana Healthcare in Wilmington, Delaware; and
o Ocala Oncology Center in Ocala, Florida.
Upon full patient enrollment, we expect Phase IIA trials to be completed
within approximately six to twelve months. Each of the clinical trials for the
four indications (prostate, pancreatic, colorectal, and liver cancers) will have
approximately 20 or more patients. Subject to the results of our Phase IIA
trials, we plan to conduct Phase IIB/Phase III clinical trials for all four
indications subsequent to review and analysis of the Phase IIA data. We have
retained Covance Inc., a leading clinical trial research organization in the
U.S., to assist in conducting these studies.
<PAGE>
CONSUMER AND COMMERCIAL PRODUCTS. We are pursuing commercialization of
our SafeScience(R) line of household and commercial cleaning products, which are
designed to promote a chemically-safe environment within the home, office,
school, hospital and other commercial settings. The first major retailer to
stock the SafeScience(R) consumer line was Sainsbury plc's New England based
subsidiary, Shaw's supermarkets, which currently has approximately 124
locations, which commenced in the third quarter of 1999. At Shaw's,
SafeScience(R) products are positioned as a co-brand displaying both the
SafeScience brand and the retailer's own name. At present, nine products are
included in the Shaw's program: liquid laundry detergent, kitchen cleaner,
shower mist, dish detergent, all-purpose cleaner, glass/window cleaner, bathroom
cleaner (tub/tile), floor cleaner and fabric refresher.
We intend to pursue relationships in which our products will be
positioned as a stand alone brand in most channels or as a premium corporate
brand in supermarket retailers. Corporate branding has three advantages for us:
o we benefit from existing store brand loyalty;
o the retail partner shares in the promotion of the product, relieving us
of certain expenses and most slotting fees; and
o we are able to build brand recognition.
In October 1999, we initiated a rollout of our cleaning products by
selling through a major drug chain with approximately 4,200 locations
nationally. We have entered into an agreement with another regional retailer and
expect to begin shipments of our consumer cleaning products in the third quarter
of 2000. We have entered into an agreement with Daymon Associates, Inc., a
leading corporate branding and retail sales company, to market our products to
supermarket, mass merchandise and drug store chains. We have recently introduced
a line of insect repellents and garden products. We are seeking to commercialize
our commercial cleaning products by opportunistically pursuing sales in various
industries.
We believe that "SafeScience(R)" signifies more than simply another
product line, by addressing and conveying a set of values related to chemical
safety, food safety, human health and environmentalism. Based on independent
test results, we believe our consumer cleaning products and lead agricultural
product are as effective as comparable, branded products. Our consumer cleaning
products do not require a warning label as to toxicity and the products' retail
prices are currently approximately 10-15% less than the branded equivalents.
Our business was founded in 1992 to pursue carbohydrate-based
pharmaceutical research for cancer therapeutics. In 1995, we merged with,
Alvarada, Inc., a publicly-traded corporation having no active operations. In
1995, our management elected to pursue the dual strategy of emphasizing
faster-to-market consumer and agricultural products while we pursued the longer
approval cycle for the pharmaceuticals we were developing. We changed our name
to SafeScience, Inc. in 1998. Our principal executive offices are located at 31
St. James Avenue, 8th Floor, Boston, MA 02116 and our telephone number is (617)
422-0674.
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<TABLE>
<CAPTION>
THE OFFERING
<S> <C>
Common stock offered by selling shareholders (1)................ 317,414 shares
Common stock to be outstanding after the offering(2)(3)......... 18,987,259 shares
Use of proceeds................................................. All proceeds from the sale of the shares
of common stock in this offering will be
received by the selling stockholders. We
will receive $3,174 if the adjustable
warrants held by the selling stockholders
are exercised in full, all shares covered
in this registration statement are issued
to the selling stockholders and the
exercise price is paid in cash. These
funds will be used for general corporate
purposes. See "Use of Proceeds."
Nasdaq SmallCap Market Symbol................................... SAFS
(1) Consists of 317,414 shares of common stock issuable upon the exercise
of adjustable warrants.
(2) Based on the number of shares actually outstanding on June 30, 2000.
(3) Includes (i) all the shares being offered pursuant to this prospectus and
(ii) the 941,336 shares issuable upon exercise of the closing and
adjustable warrants held by the selling stockholders being offered
pursuant to separate prospectuses, and excludes, as of June 30, 2000, (A)
541,294 shares of common stock issuable on the exercise of outstanding
options at a weighted average price of $11.24 per share, (B) 193,758
shares of common stock issuable on the exercise of outstanding warrants
at a weighted average price of $13.82 per share, and (C) 1,047,777 shares
of common stock available for future issuance under our 1998 Stock Option
Plan and 2000 Stock Incentive Plan. See "Management -- 1998 Stock Option
Plan" and "--2000 Stock Incentive Plan."
</TABLE>
3
<PAGE>
RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones we face. If any of the following risks actually occur, our business,
financial condition or results of operations could be materially and adversely
affected. In such case, the trading price of our common stock could decline, and
you may lose all or part of your investment.
WE HAVE EXPERIENCED SIGNIFICANT OPERATING LOSSES THROUGHOUT OUR HISTORY,
WE EXPECT THESE LOSSES TO CONTINUE AND WE MAY NOT ACHIEVE PROFITABILITY IN THE
FUTURE
We began operations more than seven years ago and began to generate
revenue only in the second quarter of 1999. Through March 31, 2000, we have only
generated $1,941,000 from product sales. We have incurred approximately $29.4
million of operating losses since our inception, including $12.3 million in the
year ended December 31, 1999 and $2.7 million in the first quarter of 2000.
Extensive operating losses can be expected to continue for the foreseeable
future.
MANY OF OUR PRODUCTS ARE STILL IN DEVELOPMENT, THERE ARE UNCERTAINTIES
ASSOCIATED WITH RESEARCH AND DEVELOPMENT ACTIVITIES AND WE MAY BE UNABLE TO
BRING NEW PRODUCTS TO MARKET
Many of our proposed products require further research, development,
laboratory testing, regulatory approval and/or demonstration of commercial scale
manufacturing before they can be proven to be commercially viable. Many of these
proposed products are in the development stage and are subject to the risks
inherent in the development of new products, particularly those products based
upon biotechnology. Potential products that appear to be promising at early
stages of development may not reach the market for a number of reasons. Such
reasons include the possibilities that potential products are found during
testing to be ineffective, that they fail to receive necessary regulatory
approvals, are difficult or uneconomical to manufacture on a large scale, fail
to achieve market acceptance or are precluded from commercialization by
proprietary rights of third parties. We cannot predict with any degree of
certainty when, or if, the research, development, testing and/or regulatory
approval process for our proposed products will be completed. Our product
development efforts may be unsuccessful, required regulatory approvals from U.S.
or foreign authorities may not be obtained, and products, if introduced, may not
be capable of being produced in commercial quantities at reasonable costs or be
successfully marketed. The failure of our research and development activities to
result in any commercially viable products or technologies would materially
adversely affect our future prospects.
WE DERIVE ALMOST ALL OF OUR REVENUES FROM A SMALL NUMBER OF CUSTOMERS
AND OUR REVENUES MAY DECLINE SIGNIFICANTLY IF ANY CUSTOMER CANCELS OR DELAYS A
PURCHASE OF OUR PRODUCTS
We derive the majority of our revenues from a small number of customers.
Our business would be seriously harmed if we do not generate as much revenue as
expected from these customers or if any of these customers cease purchasing our
products. For the year ended December 31, 1999, 96% of our revenues came from
four customers and for the three months ended March 31, 2000, 95% of our
revenues came from 12 customers. Present and future customers may terminate
their purchasing arrangements with us or significantly reduce or delay their
orders. The loss of any one of our major customers or the delay of significant
orders from such customers, even if only temporary, could reduce or delay our
recognition of revenues, harm our reputation in the industry and reduce our
ability to accurately predict cash flow, and, as a consequence, could seriously
harm our business, financial condition and results of operations.
IF WE ARE UNABLE TO SECURE A PATENT ON OUR CANCER DRUG GBC-590 OR IF
EXISTING PATENTS IMPAIR OUR RIGHTS TO OUR CANCER DRUG, OUR ABILITY TO GENERATE
REVENUES FROM GBC-590 WOULD BE SEVERELY HARMED
4
<PAGE>
We rely significantly upon proprietary technology. To the extent that we
currently rely upon unpatented, proprietary technology, processes and know-how
and the protection of such intellectual property by confidentiality agreements,
others may independently develop similar technology and know-how or
confidentiality may be breached.
We have applied for a patent on GBC-590 but no patent has been issued.
Our GBC-590 technology may not be granted patent protection, and may infringe on
patents owned by others. A patent has been granted on a compound which is
similar to GBC-590, the claims of which conflict with certain of the claims in
the GBC-590 patent application. The degree of patent protection, if any, we will
obtain for GBC-590 is unclear. The patent on GBC-590 may in fact not be granted
or, if granted, it may be limited in such a way as to materially affect our
ability to produce, market and sell GBC-590.
Any claims against us or any purchaser or user of our products or
patents, including GBC-590, asserting that our products or patents infringe or
may infringe proprietary rights of third parties, if determined adversely to us,
could have a material adverse effect on our business, financial condition or
results of operations. Any claims, with or without merit, could be
time-consuming, result in costly litigation, divert the efforts of our technical
and management personnel, cause product shipment delays, disrupt our
relationships with our customers or require us to enter into royalty or
licensing agreements, any of which could have a material adverse effect upon our
operating results. Such royalty or licensing agreements, if required, may not be
available on terms acceptable to us, if at all. In the event a claim against us
is successful and we cannot obtain a license to the relevant technology on
acceptable terms, license a substitute technology or redesign our products to
avoid infringement, our business, financial condition and results of operations
would be materially adversely affected.
WE DEPEND ON TECHNOLOGY LICENSED TO US BY THIRD PARTIES AND IF WE ARE
UNABLE TO CONTINUE LICENSING THIS TECHNOLOGY WE MAY BE UNABLE TO SUSTAIN OR
INCREASE OUR REVENUES
We license technology from third parties for use with our products. We
anticipate that we will continue to license technology from third parties in the
future. This technology may not continue to be available on commercially
reasonable terms, if at all. Some of the technology we license from third
parties would be difficult to replace. The loss of any of these technology
licenses would result in delays in the availability of our products until
equivalent technology, if available, is identified, licensed and integrated. The
use of replacement technology from other third parties would require us to enter
into license agreements with these third parties, which could result in higher
royalty payments and a loss of product differentiation.
IF OUR PRODUCTS ARE NOT ACCEPTED BY THE AGRICULTURAL AND MEDICAL
COMMUNITIES OUR BUSINESS WILL SUFFER
Commercial sales of our proposed agricultural and pharmaceutical
products, for use as fungicides or therapeutics, will substantially depend upon
the products' efficacy and on their acceptance by the agricultural and medical
communities. Widespread acceptance of our products will require educating the
agricultural and medical communities as to the benefits and reliability of the
products. Our proposed products may not be accepted, and, even if accepted, we
are unable to estimate the length of time it would take to gain such acceptance.
IF THE THIRD PARTIES WE RELY ON FOR MANUFACTURING OUR PRODUCTS ARE
UNABLE TO PRODUCE THE NECESSARY AMOUNTS OF OUR PRODUCTS, DO NOT MEET OUR QUALITY
NEEDS OR TERMINATE THEIR RELATIONSHIPS WITH US, OUR BUSINESS WILL SUFFER
We do not presently have our own manufacturing operations, nor do we
intend to establish any unless and until in the opinion of our management, the
size and scope of our business so warrants. While we have established
manufacturing relationships with firms that we believe will provide the
capability to meet our anticipated requirements for the foreseeable future, we
have not entered into any long-term arrangements for manufacturing and such
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<PAGE>
arrangements may not be obtained on desirable terms. Therefore, for the
foreseeable future, we will be dependent upon third parties to manufacture our
products.
Our reliance on independent manufacturers involves a number of risks,
including the absence of adequate capacity, the unavailability of, or
interruptions in, access to necessary manufacturing processes and reduced
control over delivery schedules. If our manufacturers are unable or unwilling to
continue manufacturing our products in required volumes, we will have to
identify acceptable alternative manufacturers. The use of a new manufacturer may
cause significant interruptions in supply if the new manufacture has difficulty
manufacturing products to our specifications. Further, the introduction of a new
manufacturer may increase the variation in the quality of our products.
WE FACE INTENSE COMPETITION AND RAPID TECHNOLOGICAL CHANGES IN THE
MARKETS IN WHICH WE COMPETE, AND OUR FAILURE TO SUCCESSFULLY COMPETE OR ADOPT TO
CHANGING TECHNOLOGY COULD MAKE IT DIFFICULT TO ACQUIRE AND RETAIN CUSTOMERS
Many companies, including large pharmaceutical, chemical, biotechnology
and agricultural concerns, universities and other research institutions, with
financial resources and research and development staffs and facilities
substantially greater than ours, may develop or attempt to develop products that
compete with our products. These companies may have the ability to devote far
greater resources to researching, developing and marketing their products than
we are able to do. In addition, the biotechnology industry is one in which
technological change is extremely rapid. Our ability to anticipate changes in
technology and industry standards together with regulatory changes and to
successfully develop and introduce new and enhanced products on a timely basis
will be significant factors in our ability to grow and remain competitive. Any
products which we do develop may become technologically obsolete before we have
had the ability to realize significant revenues or profits.
OUR FAILURE TO MEET PRODUCT RELEASE SCHEDULES WOULD MAKE IT DIFFICULT TO
PREDICT OUR QUARTERLY RESULTS AND MAY CAUSE OUR OPERATING RESULTS TO VARY
SIGNIFICANTLY
Delays in the planned release of our products may adversely affect
forecasted revenues and create operational inefficiencies resulting from
staffing levels designed to support the forecasted revenues. Our failure to
introduce new products on a timely basis could delay or hinder market acceptance
and allow competitors to gain greater market share.
CERTAIN OF OUR BUSINESSES ARE SUBJECT TO SIGNIFICANT GOVERNMENT
REGULATION AND FAILURE TO ACHIEVE REGULATORY APPROVAL OF OUR PRODUCTS WOULD
SEVERELY HARM OUR BUSINESS
The FDA regulates the manufacture, distribution and promotion of
pharmaceutical products in the United States pursuant to the Federal Food Drug
and Cosmetic Act and related regulations. We must receive premarket approval by
the FDA for any commercial sale of our pharmaceutical products. Before receiving
such approval we must provide proof in human clinical trials of the nontoxicity,
safety and efficacy of our pharmaceutical products, which trials can take
several years. Premarket approval is a lengthy and expensive process. We may not
be able to obtain FDA approval for any commercial sale of our product. By
regulation, the FDA has 180 days to review an application for approval to market
a pharmaceutical product; however, the FDA frequently exceeds the 180-day time
period. In addition, based on its review, the FDA may determine that additional
clinical trials are required. We will not generate any revenues in connection
with our pharmaceutical products unless and until we obtain FDA approval to sell
our products in commercial quantities for human application.
The investigation, manufacture and sale of agricultural products is
subject to regulation by the EPA, including the need for approval before
marketing, and by comparable foreign and state agencies. Few of our agricultural
products, will be able to be commercially marketed for use either in the United
States or other countries without first obtaining the necessary approvals. While
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<PAGE>
we hope to obtain regulatory approvals for our proposed products, we may not
obtain these approvals on a timely basis, if at all.
REIMBURSEMENT PROCEDURES AND FUTURE HEALTHCARE REFORM MEASURES ARE
UNCERTAIN AND MAY ADVERSELY IMPACT THE SALE OF OUR PHARMACEUTICAL PRODUCTS
Our ability to sell our pharmaceutical products successfully will depend
in part on the extent to which government health administration authorities,
private health insurers and other organizations will reimburse patients for the
costs of our pharmaceutical products and related treatments. In the United
States, government and other third-party payers have sought to contain
healthcare costs by limiting both coverage and the level of reimbursement for
new pharmaceutical products approved for marketing by the FDA. In some cases,
these payers may refuse to provide any coverage for uses of approved products to
treat medical conditions even though the FDA has granted marketing approval.
Healthcare reform may increase these cost containment efforts. We believe that
managed care organizations may seek to restrict the use of new products, delay
authorization to use new products or limit coverage and the level of
reimbursement for new products. Internationally, where national healthcare
systems are prevalent, little if any funding may be available for new products,
and cost containment and cost reduction efforts can be more pronounced than in
the United States.
ISSUANCES OF OUR SECURITIES ARE SUBJECT TO FEDERAL AND STATE SECURITIES
LAWS AND CERTAIN PRIOR OFFERINGS OF OUR SECURITIES MAY NOT HAVE COMPLIED WITH
APPLICABLE SECURITIES LAWS
Issuances of securities are subject to federal and state securities
laws. Certain prior private placement offerings of our securities may not have
complied with requirements of applicable state securities laws. In such
situations a number of remedies may be available to regulatory authorities and
stockholders who purchased securities in such offerings, including, without
limitation, rescission rights.
WE HAVE LIMITED MARKETING ARRANGEMENTS IN PLACE AND OUR SALES FORCE IS
SMALL AND THUS MAY BE UNABLE TO INCREASE OR SUSTAIN OUR REVENUES
We may be unable to enter into arrangements with one or more
agricultural, chemical and/or pharmaceutical companies to market certain of our
products on favorable terms, and may therefore seek to market such products
through independent distributors. Any independent distributors through which we
distribute such products may also market competitive products. We may not be
able to enter into distribution arrangements with terms which are satisfactory
to us. We have only recently begun to develop our own sales force and its size
is presently limited and may be inadequate for the sales and marketing
activities that we plan to undertake with respect to our products. Our ability
to market and sell our products may be adversely affected if we are unable to
identify, employ and retain suitably qualified sales and marketing personnel.
OUR GROWTH MAY BE LIMITED IF WE ARE UNABLE TO RETAIN AND HIRE ADDITIONAL
QUALIFIED PERSONNEL AS NECESSARY
Our success will depend on our ability to retain key employees and our
continuing ability to attract and retain highly qualified scientific, technical
and managerial personnel. Competition for such personnel is intense and we may
not be able to retain existing personnel or attract qualified employees in the
future. During the last nine months, we hired a Chief Financial Officer and
Chief Operating Officer. At present, we employ approximately 35 full time
employees and several part-time consultants. We depend upon the personal efforts
and abilities of our officers and directors, and would be materially adversely
affected if their services ceased to be available for any reason and comparable
replacement personnel were not employed.
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THE BUSINESSES IN WHICH WE ENGAGE HAVE A RISK OF PRODUCT LIABILITY, AND
IN THE EVENT OF A SUCCESSFUL SUIT AGAINST US, OUR BUSINESS COULD BE SEVERELY
HARMED
The testing, marketing and sale of agricultural and pharmaceutical
products entails a risk of product liability claims by consumers and others.
While we currently maintain product liability insurance which we believe to be
adequate, such insurance may not continue to be available at a reasonable cost
or may not be sufficient to fully cover any potential claims. In the event of a
successful suit against us, the lack or insufficiency of insurance coverage
could have a material adverse effect on our business and financial condition.
WE ARE CONTRACTUALLY OBLIGATED TO ISSUE SHARES IN THE FUTURE, DILUTING
YOUR INTEREST IN US
We have entered into agreements with Strong River Investments, Inc. and
Montrose Investments Ltd. which obligate us to issue additional shares of common
stock and warrants to purchase shares of common stock subject to certain
conditions, including market capitalization, trading volume and share price
conditions. In addition, pursuant to adjustable warrants we have issued to
Strong River Investments and Montrose Investments, we are required to issue
additional shares of our common stock at $.01 per share, the number of such
shares to be determined by a formula based on the then market price per share
compared to the $14.45 per share purchase price paid by such entities. As of
June 30, 2000, there are outstanding and exercisable options to purchase
approximately 541,294 shares of common stock, at a weighted average exercise
price of $11.44 per share. Moreover, we may in the future issue additional
shares to raise capital, acquire other companies or technologies, to pay for
services, or for other corporate purposes. Any such issuances will have the
effect of further diluting the interest of the purchasers of the shares being
sold in this offering.
IF THE SELLING STOCKHOLDERS ENGAGE IN SHORT SELLING TO INCREASE THE
NUMBER OF SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THEIR ADJUSTABLE
WARRANTS, THE MARKET PRICE OF OUR COMMON STOCK MAY DECLINE
Strong River Investments, Inc. and Montrose Investments Ltd. each owns
an adjustable warrant that will vest on three dates determined by the selling
stockholders. The initial vesting date of the Strong River adjustable warrant
occurred on August 2, 2000 upon which 256,465 shares of common stock were issued
and the initial vesting date for the Montrose adjustable warrant will occur
anytime on or prior to August 28, 2001. The number of shares that will be
issuable at each vesting date will be determined according to a formula in which
the number of shares issuable will be greater the lower the price of our common
stock. Since the exercise price of the adjustable warrants is only $.01 per
share, the selling stockholders have an incentive to sell short our common stock
prior to each vesting date in order to cause the market price of our common
stock to decline and greater number of shares to vest under the adjustable
warrants. The selling stockholders could then exercise their adjustable warrants
and use the shares of common stock received upon exercise to cover their short
positions. The selling stockholders could thereby profit by the decline in the
market price of the common stock caused by their short selling.
THE TERMS OF OUR ADJUSTABLE WARRANTS MUST COMPLY WITH THE LISTING
REQUIREMENTS OF THE NASDAQ SMALLCAP MARKET OR OUR COMMON STOCK AND LIQUIDITY
WOULD DECLINE
To remain listed for trading on the Nasdaq SmallCap Market, we must
abide by Nasdaq's rules regarding the issuance of "future priced securities."
These rules apply to our adjustable warrants because additional shares of our
common stock are issuable upon exercise based on a future price of our common
stock.
Nasdaq rules regarding future priced securities prohibit an issuer of
listed securities from issuing 20% or more of its outstanding capital stock at
less than the greater of book value or then current market value without
obtaining prior stockholder consent. The number of shares issuable upon exercise
of the adjustable warrants could exceed 20% of the number of our outstanding
shares if the price of our common stock is substantially lower than $14.45 per
share as of the vesting dates of the adjustable warrants. Although we did not
obtain stockholder consent prior to issuing the adjustable warrants, we believe
that Nasdaq will not delist our shares if we obtain shareholder approval before
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the adjustable warrants are actually exercised for a number of shares exceeding
20% of our outstanding shares. This is because the adjustable warrants contain
provisions that (1) prohibit us from issuing a number of shares upon exercise
that would exceed 19.999% of our outstanding shares, and (2) prevent the shares
issued from being voted to approve the adjustable warrants. However, if Nasdaq
disagrees with our interpretation of its rules, Nasdaq could delist our common
stock from the Nasdaq SmallCap Market.
If Nasdaq delisted our common stock, we would likely seek to list our
common stock for quotation on a regional stock exchange. However, if we are
unable to obtain listing or quotation on such market or exchange, trading of our
common stock would occur in the over-the-counter market on an electronic
bulletin board for unlisted securities or in what are commonly known as the
"pink sheet." As a result, an investor would find it more difficult to dispose
of, or to obtain accurate quotations for the price of, our common stock.
IF A SIGNIFICANT NUMBER OF SHARES BECOME AVAILABLE FOR SALE AFTER THIS
OFFERING, OUR STOCK PRICE COULD DECLINE
Many shares of common stock presently issued and outstanding are
"Restricted Securities" as that term is defined in Rule 144 promulgated under
the Act. In general, under Rule 144, a person (or persons whose shares are
aggregated) who has satisfied a one year holding period may sell, within any
three month period, an amount which does not exceed the greater of 1% of the
then outstanding shares of common stock or the average weekly trading volume
during the four calendar weeks prior to such sale. Rule 144 also permits the
sale of shares, under certain circumstances, without any quantity limitation, by
persons who are not affiliates of SafeScience and who have beneficially owned
the shares for a minimum period of two years. The possible sale of these
restricted shares may, in the future, increase the number of free-trading shares
and may have a depressive effect on the price of our securities. Moreover, such
sales, if substantial, might also adversely effect our ability to raise
additional equity capital. For more information on securities available for
future sale, see "Share Eligible for Future Sale."
BECAUSE OUR CURRENT MANAGEMENT CONTROLS A SIGNIFICANT PERCENTAGE OF OUR
COMMON STOCK, THEY HAVE SUBSTANTIAL CONTROL OVER US
The holders of the common stock do not have cumulative voting rights.
One of our executive officers, who is a Director of SafeScience, owns
approximately 15% of the outstanding shares of common stock. This stockholder
can substantially influence all matters requiring stockholder approval,
including the election of directors and the approval of significant corporate
transactions. This concentration of ownership could have the effect of delaying
or preventing a change in control or otherwise discouraging a potential acquirer
from attempting to obtain control of us, which in turn could materially
adversely affect our stock price.
THE PRICE OF OUR COMMON STOCK HAS BEEN VOLATILE, WHICH COULD RESULT IN
SUBSTANTIAL LOSSES BY YOU
The market price of the common stock, which is traded on the National
Association of Securities Dealers Automated Quotation (NASDAQ - Small Cap) has
been, and may continue to be, highly volatile. The stock market has from time to
time experienced extreme price and volume fluctuations, particularly in the
biotechnology sector, which have often been unrelated to the operating
performance of particular companies. In addition, factors such as announcements
of technological innovations or new products, either by us or by our competitors
or third parties, as well as market conditions within the various industries in
which we compete, may have a significant impact on the market price of our
common stock.
AN INVESTMENT IN OUR STOCK IS SPECULATIVE AND ENTAILS A HIGH DEGREE OF
RISK
There is nothing at this time upon which to base an assumption that our
plans for our business will prove successful. If our plans prove unsuccessful,
the purchasers of the shares being sold in this offering may lose all or a
substantial part of their investment. Our operations are subject to numerous
risks associated with the development of agricultural, consumer and
9
<PAGE>
pharmaceutical products, including the competitive and regulatory environment in
which we operate. In addition, we may encounter unanticipated problems,
including manufacturing, distributing and marketing difficulties, some of which
may be beyond our financial and technical abilities to resolve. The failure
adequately to address such difficulties could have a material adverse effect on
our prospects and our financial condition.
WE HAVE NOT PAID AND DO NOT INTEND TO PAY ANY DIVIDENDS
To date, we have not paid any cash dividends on our common stock. Our
Board of Directors does not intend to declare any cash dividends in the
foreseeable future, but instead intends to retain all earnings, if any, for use
in our business operations. Furthermore, as we may be required to obtain
additional financing, there may be restrictions on our ability to declare any
cash dividends on common stock in the future.
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<PAGE>
NOTE ON FORWARD-LOOKING STATEMENTS
Forward-looking statements are made throughout this prospectus.
Typically, the use of the words "believe", "anticipate", "plan", "expect",
"seek", "estimate" and similar expressions identify forward-looking statements.
Unless a passage describes a historical event, the statement should be
considered a forward-looking statement. In keeping with the "Safe Harbor"
provision of the Private Securities Litigation Reform Act of 1995, it should be
noted that forward-looking statements regarding our future expectations and
projections are not guarantees of future performance. They involve risks,
uncertainties and assumptions, and many of the factors that will determine our
future results are beyond our ability to control or predict. Therefore, actual
results may differ significantly from those suggested by forward-looking
statements. These risks include those detailed under the heading "Risk Factors "
described in the preceding pages and elsewhere in this prospectus.
USE OF PROCEEDS
All of the proceeds from the sale of the shares of common stock in this
offering will be received by the selling stockholders. We will receive $3,174 if
the adjustable warrants held by the selling stockholders are exercised in full,
all shares covered in this registration statement are issued to the selling
stockholders and the exercise price is paid in cash. Proceeds from such warrant
exercises, if any, will be used for general corporate purposes.
DIVIDEND POLICY
We have never declared or paid cash dividends on our capital stock. We
currently intend to retain any future earnings to fund the development and
growth of our business and do not currently anticipate paying any cash dividends
in the foreseeable future. Future dividends, if any, will be determined by our
Board of Directors after taking into account various factors, including our
financial condition, operating results, and current and anticipated cash needs.
11
<PAGE>
SELLING STOCKHOLDERS
On March 29, 2000 we entered into a securities purchase agreement with
Strong River Investments, Inc., a British Virgin Island corporation and Montrose
Investments Ltd., a Cayman Island corporation. Under that agreement, we issued
and sold the following securities for a total cash consideration of $7.0
million:
o a total of 484,428 shares of our common stock;
o closing warrants to purchase 108,996 shares of common stock at an
exercise price of $15.98 per share; and
o adjustable warrants to purchase a number of shares of common stock to
be determined at three vesting dates determined by the selling
stockholders, the initial vesting date to occur any time on or prior to
December 28, 2001, at an exercise price of $0.01 per share.
The number of shares of common stock issuable at each vesting date under
the adjustable warrants, if any, will be determined by a formula in the
adjustable warrant and is based on the four lowest closing bid prices of our
common stock during the 40 consecutive trading days preceding each vesting date.
A greater number of shares of common stock are issuable the lower the price of
our common stock. However, if after the effective date of this registration
statement the closing bid price of our common stock for 20 consecutive trading
days exceeds approximately $19.51 per share, then no shares are issuable
pursuant to the adjustable warrants for any subsequent vesting dates.
To date, we have registered an aggregate of 1,425,764 shares of common
stock for the selling stockholders and a transferee of one of the selling
stockholders, including 832,339 shares issuable upon exercise of the adjustable
warrants. Pursuant to a registration rights agreement with Strong River
Investments, Inc., and Montrose Investments Ltd., we filed a registration
statement, of which this prospectus forms a part, in order to permit the selling
stockholders to resell to the public additional shares of common stock that they
may acquire upon any exercise of the adjustable warrants. We have registered the
number of shares required pursuant to such registration rights agreement which
number is based upon an estimate of the number of shares issuable upon exercise
of the adjustable warrants.
The selling stockholders may sell up to 317,414 shares of our common
stock pursuant to this prospectus. That number of shares consists of a
calculation of the number of shares issuable upon exercise of the adjustable
warrants in connection with the downward movements in the market price of our
common stock since March 29, 2000. The number of shares offered by this
prospectus is not a prediction as to the future market price of our common stock
or as to the number of shares which may vest pursuant to the adjustable
warrants.
A holder of the warrants cannot exercise the warrants if the exercise
would cause the holder, together with any affiliate of the holder, to have
beneficial ownership of more than 4.999% of our outstanding shares of common
stock. This restriction in the warrants can be waived by the holder of the
warrant if the holder gives us at least 61 days notice. However, the 4.999%
limitation would not prevent the selling stockholders from acquiring and selling
in excess of 4.999% of our common stock through a series of exercise and sales
under the warrants.
In addition, as long as our common stock is listed for trading on
Nasdaq, we may not issue common stock on exercise of the adjustable warrants in
an amount which exceeds 19.999% of our outstanding common stock without
obtaining prior shareholder approval.
The following table sets forth information regarding beneficial
ownership of our common stock by the selling stockholders as of August 3, 2000.
The number of shares of common stock listed as potentially offered by this
prospectus represents an estimate of additional shares of common stock issuable
upon exercise of the adjustable warrants. The actual number of additional shares
12
<PAGE>
issuable upon exercise of the adjustable warrants will be determined at each of
three vesting dates.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED
NUMBER OF SHARES NUMBER OF AFTER OFFERING
BENEFICIALLY OWNED SHARES -------------------------
PRIOR TO OFFERING OFFERED NUMBER PERCENT
----------------- ------- ------ -------
<S> <C> <C> <C> <C>
Strong River Investments, Inc ................ 553,117 158,707 0 0
Montrose Investments Ltd. .................... 242,214 158,707 0 0
</TABLE>
13
<PAGE>
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling stockholders may use any one or more of the
following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the applicable
exchange;
o privately negotiated transactions;
o broker-dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling stockholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
We are required to pay all fees and expenses incident to the
registration of the shares, including up to $7,500 of the fees and disbursements
of counsel to the selling stockholders. We have has agreed to indemnify the
selling stockholders against certain losses, claims, damages and liabilities,
including liabilities under the Securities Act.
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<PAGE>
DESCRIPTION OF CAPITAL STOCK
As of June 30, 2000, our authorized capital stock consists of (1)
105,000,000 shares consisting of 100,000,000 shares of common stock, $0.01 par
value per share, of which 17,728,510 were outstanding and 5,000,000 shares of
undesignated preferred stock issuable in one or more series to be designated by
our board of directors, of which no shares are issued and outstanding, (2)
warrants to purchase 302,754 shares of common stock and (3) options to purchase
an aggregate of 541,294 of common stock.
COMMON STOCK
Holders of our common stock are entitled to one vote per share on all
matters to be voted upon by the shareholders. Subject to preferences that may be
applicable to the holders of outstanding shares of preferred stock, if any, the
holders of common stock are entitled to receive ratably such dividends, if any,
as may be declared from time to time by the Board of Directors out of funds
legally available therefor. In the event of our liquidation, dissolution or
winding up, and subject to the prior distribution rights of the holders of
outstanding shares of preferred stock, if any, the holders of shares of common
stock shall be entitled to receive pro rata all of our remaining assets
available for distribution to our stockholders. Our common stock has no
preemptive or conversion rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to our common stock.
PREFERRED STOCK
The Board of Directors is authorized to provide for the issuance of
shares of preferred stock in one or more series, to establish from time to time
the number of shares to be included in each such series, to fix the
designations, powers, preferences and rights of the shares of each such series
and any qualifications, limitations or restrictions thereof, and to increase or
decrease the number of shares of any such series (but not below the number of
shares of such series then outstanding) without any further vote or action by
the stockholders. The Board of Directors may authorize and issue preferred stock
with voting or conversion rights that could adversely affect the voting power or
other rights of the holders of our outstanding securities.
WARRANTS
As of June 30, 2000 there were outstanding warrants to purchase up to
302,754 shares of common stock at a weighted exercise price of approximately
$14.60 per share.
REGISTRATION RIGHTS OF CERTAIN HOLDERS
Under the terms of our Registration Rights Agreement with the selling
stockholders we are required to file a registration statement for the
registration of all their shares under the Securities Act and keep such
registration statement effective for a period of the lesser of two years from
the effectiveness of this registration statement or such time as when the shares
covered by this registration statement may be sold without volume limitations
pursuant to Rule 144(k) under the Securities Act. This registration statement is
intended to meet the requirements of such Registration Rights Agreement.
In addition, we have granted to stockholders holding 333,334 shares of
our common stock piggyback registration rights in connection with any
registration by us of securities for our own account. If we propose to register
any shares of common stock under the Securities Act for our own account, we are
required to give those stockholders notice of the registration and to include
their shares in the registration statement, provided that such stockholders may
not sell such shares until March 29, 2001 unless we sell shares in a firm
commitment underwritten public offering under such registration statement prior
to that date.
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<PAGE>
We are generally required to bear all of the expenses of all demand and
piggyback registrations, except underwriting discounts and commissions. We also
have agreed to indemnify those stockholders under the terms of the Registration
Rights Agreement.
NEVADA ANTI-TAKEOVER LAW AND CERTAIN CHARTER AND BY-LAW PROVISIONS
We are incorporated under the laws of the State of Nevada and are
therefore subject to various provisions of the Nevada corporation laws which may
have the effect of delaying or deterring a change in our control or management.
Nevada's "Combination with Interested Stockholders Statute," Nevada
Revised Statutes 78.411-78.444, which applies to Nevada corporations like us
having at least 200 stockholders, prohibits an "interested stockholder" from
entering into a "combination" with the corporation, unless specific conditions
are met. A "combination" includes:
o any merger with an "interested stockholder," or any other corporation
which is or after the merger would be, an affiliate or associate of the
interested stockholder;
o any sale, lease, exchange, mortgage, pledge, transfer or other
disposition of assets, in one transaction or a series of transactions,
to an "interested stockholder," having:
o an aggregate market value equal to 5% or more of the aggregate
market value of the corporation's assets,
o an aggregate market value equal to 5% or more of the aggregate
market value of all outstanding shares of the corporation, or
o representing 10% or more of the earning power or net income of the
corporation;
o any issuance or transfer of shares of the corporation or its
subsidiaries, to the "interested stockholder," having an aggregate
market value equal to 5% or more of the aggregate market value of all
the outstanding shares of the corporation,
o the adoption of any plan or proposal for the liquidation or dissolution
of the corporation proposed by the "interested stockholder,"
o transactions which would have the effect of increasing the
proportionate share of outstanding shares of the corporation owned by
the "interested stockholder," or
o the receipt of benefits, except proportionately as a stockholder, of
any loans, advances or other financial benefits by an "interested
stockholder."
An "interested stockholder" is a person who:
o directly or indirectly owns 10% or more of the voting power of the
outstanding voting shares of the corporation;
o an affiliate or associate of the corporation which at any time within
three years before the date in question was the beneficial owner,
directly or indirectly, of 10% or more of the voting power of the then
outstanding shares of the corporation.
A corporation to which the statute applies may not engage in a
"combination" within three years after the interested stockholder acquired its
shares, unless the combination or the interested stockholder's acquisition of
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shares was approved by the board of directors before the interested stockholder
acquired the shares. If this approval was not obtained, then after the
three-year period expires, the combination may be consummated if all the
requirements in the articles of incorporation are met and either:
o the board of directors of the corporation approves, prior to such
person becoming an "interested stockholder," the combination or the
purchase of shares by the "interested stockholder" or the combination
is approved by the affirmative vote of holders of a majority of voting
power not beneficially owned by the "interested stockholder" at a
meeting called no earlier than three years after the date the
"interested stockholder" became such; or
o the aggregate amount of cash and the market value of consideration
other than cash to be received by holders of common shares and holders
of any other class or series of shares meets the minimum requirements
set forth in Sections 78.411 through 78.443, inclusive, and prior to
the consummation of the combination, except in limited circumstances,
the "interested stockholder" will not have become the beneficial owner
of additional voting shares of the corporation.
Nevada's "Control Share Acquisition Statute," Nevada Revised Statute
Sections 78.378-78.379, prohibits an acquirer, under some circumstances, from
voting shares of a target corporation's stock after crossing threshold ownership
percentages, unless the acquirer obtains the approval of the target
corporation's stockholders. The Control Share Acquisition Statute only applies
to Nevada corporations with at least 200 stockholders, including at least 100
record stockholders who are Nevada residents, and which do business directly or
indirectly in Nevada. While we do not currently exceed these thresholds, we may
do so in the near future. In addition, although we do not presently "do
business" in Nevada within the meaning of the Control Share Acquisition Statute,
we may do so in the future. Therefore, the Control Share Acquisition Statute may
apply to us in the future. The statute specifies three thresholds: at least
one-fifth but less than one-third, at least one-third but less than a majority,
and a majority or more, of all the outstanding voting power. Once an acquirer
crosses one of the above thresholds, shares which it acquired in the transaction
taking it over the threshold or within ninety days become "Control Shares" which
are deprived of the right to vote until a majority of the disinterested
stockholders restore that right. A special stockholders' meeting may be called
at the request of the acquirer to consider the voting rights of the acquirer's
shares no more than 50 days, unless the acquirer agrees to a later date, after
the delivery by the acquirer to the corporation of an information statement
which sets forth the range of voting power that the acquirer has acquired or
proposes to acquire and other information concerning the acquirer and the
proposed control share acquisition. If no such request for a stockholders'
meeting is made, consideration of the voting rights of the acquirer's shares
must be taken at the next special or annual stockholders' meeting. If the
stockholders fail to restore voting rights to the acquirer or if the acquirer
fails to timely deliver an information statement to the corporation, then the
corporation may, if so provided in its articles of incorporation or bylaws, call
some of the acquirer's shares for redemption. Our articles of incorporation and
bylaws do not currently permit us to call an acquirer's shares for redemption
under these circumstances. The Control Share Acquisition Statute also provides
that the stockholders who do not vote in favor of restoring voting rights to the
Control Shares may demand payment for the "fair value" of their shares. This
amount is generally equal to the highest price paid in the transaction
subjecting the stockholder to the statute.
By-law Provisions. Our by-laws provide that any director may be removed
without cause at any special meeting of shareholders called for such purpose by
the vote of the holders of two-thirds of the voting power entitling them to
elect directors in place of those to be removed, provided that unless all the
directors, or all the directors of a particular class are removed no individual
director shall be removed if the votes of a sufficient number of shares are cast
against his removal which, if cumulatively voted at on election of directors, or
of all directors of a particular class, as the case may be, would be sufficient
to elect at least one director.
Ability to Adopt Stockholder Rights Plan. The Board of Directors may in
the future resolve to issue shares of preferred stock or rights to acquire such
shares to implement a stockholder rights plan. A stockholder rights plan
typically creates voting or other impediments that would discourage persons
seeking to gain control of SafeScience by means of a merger, tender offer, proxy
17
<PAGE>
contest or otherwise if the Board of Directors determines that such change in
control is not in the best interests of our stockholders. The Board of Directors
has no present intention of adopting a stockholder rights plan and is not aware
of any attempt to obtain control of SafeScience.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is American
Securities Transfer & Trust, Inc.
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LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed
upon for us by McDermott, Will & Emery.
EXPERTS
The consolidated financial statements incorporated by reference in the
registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information about the
Public Reference Room. Our SEC filings are also available to the public from the
SEC's web site at http://www.sec.gov. Our common stock is quoted on the Nasdaq
SmallCap Market, and reports, proxy and information statements and other
information concerning SafeScience may be inspected at the Nasdaq Stock Market
at 1735 K Street, N.W., Washington, D.C. 20006. Our website is located at
http://www.safescience.com.
The SEC allows us to incorporate by reference the information we file
with them into this prospectus, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede the information already incorporated by reference. We are
incorporating by reference the documents listed below, which we have already
filed with the SEC, and any future filings we make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, until the
selling stockholders sell all of the shares that are being offered in this
prospectus.
1. Our Annual Report on Form 10-K for the year ended December 31,
1999, as amended by Form 10-K/A dated June 20, 2000 (File No.
0-26476);
2. Our Quarterly Report on Form 10-Q for the quarter ended March
31, 2000, as amended by Form 10-Q/A dated June 20, 2000 (File
No. 0-25476);
3. Our Current Reports on Form 8-K dated April 7, 2000 and
June 6, 2000; and
4. Our Definitive Proxy Statement filed on April 28, 2000.
YOU MAY REQUEST A COPY OF THESE FILINGS, AND ANY EXHIBITS WE HAVE
SPECIFICALLY INCORPORATED BY REFERENCE AS AN EXHIBIT IN THIS PROSPECTUS, AT NO
COST BY WRITING OR TELEPHONING US AT THE FOLLOWING ADDRESS: SAFESCIENCE., 31 ST.
JAMES AVENUE, BOSTON, MASSACHUSETTS 02116, ATTENTION: CHIEF FINANCIAL OFFICER.
OUR TELEPHONE NUMBER IS 617-422-0674.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone to provide you with different information. The selling stockholders are
not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or the
documents incorporated by reference is accurate as of any date other than the
date on the front of this prospectus or those documents.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses payable by us in
connection with the offering (excluding underwriting discounts and commissions):
<TABLE>
<CAPTION>
NATURE OF EXPENSE AMOUNT
----------------- -------
<S> <C>
SEC Registration Fee................................................... $ 324
Nasdaq SmallCap Market Listing Fee..................................... 3,175
Accounting Fees and Expenses........................................... 5,000
Legal Fees and Expenses................................................ 10,000
Miscellaneous.......................................................... 1,501
--------
Total.................................................................. 20,000
</TABLE>
The amounts set forth above, except for the Securities and Exchange
Commission and Nasdaq SmallCap Market fees, are in each case estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection 1 of Section 78.7302 of Chapter 78 of the Nevada General
Corporation Law ("NGCL") provides that a corporation may indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (except in an action brought by or on behalf of
the corporation) if that person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by that person in connection with
such action, suit or proceeding, if that person acted in good faith and in a
manner which that person reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, alone, does not
create a presumption that the person did not act in good faith and in a manner
which the person reasonably believed to be in, or not opposed to, the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, the person had reasonable cause to believe his action was unlawful.
Subsection 2 of Section 78.7502 of the NGCL provides that a corporation
may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit brought by or on
behalf of the corporation to procure a judgment in its favor because the person
acted in any of the capacities set forth above, against expenses, including
amounts paid in settlement and attorneys' fees, actually and reasonably incurred
by that person in connection with the defense or settlement of such action or
suit, if the person acted in accordance with the standard set forth above,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged by a court of competent
jurisdiction after exhaustion of all appeals therefrom to be liable to the
corporation or for amounts paid in settlement to the corporation unless and only
to the extent that the court in which such action or suit was brought or other
court of competent jurisdiction determines that, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
Section 78.751 of the NGCL provides that unless indemnification is
ordered by a court, the determination to provide indemnification must be made by
the stockholders, by a majority vote of a quorum of the board of directors who
were not parties to the action, suit or proceeding, or in specified
circumstances by independent legal counsel in a written opinion. In addition,
the articles of incorporation, bylaws or an agreement made by the corporation
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may provide for the payment of the expenses of a director or officer of the
expenses of defending an action as incurred upon receipt of an undertaking to
repay the amount if it is ultimately determined by a court of competent
jurisdiction that the person is not entitled to indemnification. Section 78.751
of the NGCL further provides that, to the extent a director or officer of a
corporation has been successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to in subsection (1) and (2), or in the
defense of any claim, issue or matter therein, that person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
that person in connection therewith; that indemnification provided for by
Section 78.751 of the NGCL shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled and that the scope of
indemnification shall continue as to directors, officers, employees or agents
who have ceased to hold such positions, and to their heirs, executors and
administrators.
Finally, Section 78.752 of the NGCL provides that a corporation may
purchase and maintain insurance on behalf of a director, officer, employee or
agent of the corporation against any liability asserted against him or incurred
by him in any such capacity or arising out of his status as such whether or not
the corporation would have the authority to indemnify him against such
liabilities and expenses.
Article V of our by-laws provides SafeScience shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened or
pending action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he, his testator, or intestate is or
was a director or officer of SafeScience, or is or was serving at the request of
SafeScience as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise, or as a member of any
committee or similar body against all expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
(including appeals) or the defense or settlement thereof or any claim, issue, or
matter therein, to the fullest extent permitted by the laws of Nevada as they
may exist from time to time.
Under Section 5 of the registration rights agreement to be filed as
Exhibit 10.20 hereto, the underwriters have agreed to indemnify, under certain
conditions, SafeScience, its directors, officers, agents, employees and persons
who control SafeScience within the meaning of the Securities Act against certain
liabilities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
The following documents are an exhibit hereto:
4.1* Securities Purchase Agreement by and among SafeScience, Inc., Strong
River Investments, Inc. and Montrose Investments Ltd. dated March 29,
2000.
4.2* Form of Closing Warrant dated March 29, 2000.
4.3* Form of Adjustment Warrant dated March 29, 2000.
4.4* Registration Rights Agreement by and among SafeScience, Inc., Strong
River Investments, Inc. and Montrose Investments, Ltd. dated March 29,
2000.
5.1 Opinion of McDermott, Will & Emery as to the validity of the securities
being offered.
23.1 Consent of McDermott, Will & Emery (included in Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney (included on page II-5).
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* Previously filed with the Commission as an exhibit to, and incorporated herein
by reference from, the Registrant's Current Report on Form 8-K filed with the
Commission on April 7, 2000.
ITEM 17. UNDERTAKINGS
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
Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To reflect any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b), if, in the aggregate, the
changes in volume and price present no more than a 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(4) 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
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offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof;
(5) 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; and
(6) 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 15(d) of the Securities Exchange Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boston,
Commonwealth of Massachusetts, on August 4, 2000.
SAFESCIENCE, INC.
By: /s/Bradley J. Carver
----------------------------------------
Bradley J. Carver
Chief Executive Officer, President and Treasurer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints each of Bradley J. Carver and John W.
Burns such person's true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement (or to any
other registration statement for the same offering that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act), and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that any said attorney-in-fact and agent, or any
substitute or substitutes of any of them, may lawfully do or cause to be done by
virtue hereof.
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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Chief Executive Officer, President, Treasurer August 4, 2000
/s/ Bradley J. Carver and Director
---------------------------------------------- (Principal Executive Officer)
Bradley J. Carver
/s/ John W. Burns Chief Financial Officer and Secretary August 4, 2000
---------------------------------------------- (Principal Financial Officer)
John W. Burns
/s/ Patrick J. Joyce Controller August 4, 2000
---------------------------------------------- (Principal Accounting Officer)
Patrick J. Joyce
/s/ Brian G. R. Hughes Chairman of the Board of Directors August 4, 2000
----------------------------------------------
Brian G. R. Hughes
/s/ David W. Dube Director August 4, 2000
----------------------------------------------
David W. Dube
/s/ Theodore J. Host Director August 4, 2000
----------------------------------------------
Theodore J. Host
</TABLE>
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EXHIBIT INDEX
The following documents are an exhibit hereto:
4.1* Securities Purchase Agreement by and among SafeScience, Inc., Strong
River Investments, Inc. and Montrose Investments Ltd. dated March 29,
2000.
4.2* Form of Closing Warrant dated March 29, 2000.
4.3* Form of Adjustment Warrant dated March 29, 2000.
4.4* Registration Rights Agreement by and among SafeScience, Inc., Strong
River Investments, Inc. and Montrose Investments, Ltd. dated March 29,
2000.
5.1 Opinion of McDermott, Will & Emery as to the validity of the securities
being offered.
23.1 Consent of McDermott, Will & Emery (included in Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney (included on page II-5).
* Previously filed with the Commission as an exhibit to, and incorporated herein
by reference from, the Registrant's Current Report on Form 8-K filed with the
Commission on April 7, 2000.
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