AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 26, 2000
Registration Statement No. 333-35876
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2 TO
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. [ ]
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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.
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EXPLANATORY NOTE
The sole purpose of the Amendment No.2 to Form S-3 is to file the
exhibit filed with and attached to this Amendment No.2 and to complete the
expense table contained in Item 14 below.
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):
NATURE OF EXPENSE AMOUNT
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SEC Registration Fee......................................... $ 2,695
Nasdaq SmallCap Market Listing Fee........................... 10,238
Accounting Fees and Expenses................................. 5,000
Legal Fees and Expenses...................................... 15,000
Miscellaneous................................................ 2,067
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Total........................................................ 35,000
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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
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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
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.
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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
* 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.
**Previously filed with the Commission as an exhibit to, and incorporated herein
by reference from, the Registrant's Amendment No. 1 to Form S-3 filed with the
Commission on June 20, 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;
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(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
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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Amendment No. 2 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Boston, Commonwealth of Massachusetts, on June 26, 2000.
SAFESCIENCE, INC.
By: /s/ Bradley J. Carver
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Bradley J. Carver
Chief Executive Officer, President and Treasurer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Bradley J. Carver Chief Executive Officer, President, Treasurer June 26, 2000
and Director
---------------------------------------------- (Principal Executive Officer)
Bradley J. Carver
* Chief Financial Officer and Secretary June 26, 2000
---------------------------------------------- (Principal Financial Officer and Principal
John W. Burns Accounting Officer)
* Chairman of the Board of Directors June 26, 2000
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Brian G. R. Hughes
* Director June 26, 2000
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David W. Dube
* By: /s/ Bradley J. Carver
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Bradley J. Carver
Attorney-in-fact
</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
* 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.
**Previously filed with the Commission as an exhibit to, and incorporated by
reference from, the Registrant's Amendment No. 1 to form S-3 filed with the
Commission on June 20, 2000.
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