As filed with the Securities and Exchange Commission on May 21, 2002
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------
BOSTON LIFE SCIENCES, INC.
(Exact name of registrant as specified in its charter)
Delaware 87-0277826
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
137 Newbury Street
8/th/ Floor
Boston, Massachusetts 02116
(617) 425-0200
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
S. David Hillson
President and Chief Executive Officer
Boston Life Sciences, Inc.
137 Newbury Street
8/th/ Floor
Boston, Massachusetts 02116
(617) 425-0200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Steven A. Wilcox
Ropes & Gray
One International Place
Boston, MA 02110-2624
(617) 951-7000
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement is declared effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [__]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [__]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [__]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [__]
Calculation of Registration Fee
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Amount Proposed maximum Proposed maximum Amount of
Title of each class of to be offering price aggregate registration
Securities to be registered registered (1) per unit (2) offering price (2) fee
- ------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 2,367,773 $1.56 $3,693,726 $340
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(1) Shares of Common Stock which may be offered pursuant to this Registration
Statement include 768,205 shares issuable upon the exercise of certain
warrants (the "Warrants").
(2) In accordance with Rule 457 (c), the price shown is estimated solely for
the purposes of calculating the registration fee, and is based upon the
average of the reported high and low sales price of the Common Stock as
reported on the Nasdaq National Market on May 16, 2002.
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 this registration statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
- --------------------------------------------------------------------------------
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ The information in this prospectus is not complete and may be changed. We +
+ may not sell these securities or accept an offer to buy these securities +
+ until the registration statement filed with the Security and Exchange +
+ Commission is effective. This prospectus is not an offer to sell these +
+ securities, and we are not soliciting offers to buy these securities in +
+ any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, May 21, 2002
PROSPECTUS
2,367,773 Shares
Boston Life Sciences, Inc.
Common Stock
--------------------
These shares are being offered for sale by the selling stockholders listed
on page 16. The selling stockholders may sell the common stock at prices and on
terms determined by the market, in negotiated transactions or through
underwriters. The selling stockholders may also sell the common stock under Rule
144 of the Securities Act of 1933.
The common stock is traded on the Nasdaq National Market under the symbol
"BLSI". On May 20, 2002, the reported closing price of the common stock was
$1.84 per share.
--------------------
An investment in the shares offered hereby involves a high degree of risk.
See "Risk Factors" beginning on page 2 of this Prospectus.
--------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
--------------------
The date of this prospectus is 2002.
TABLE OF CONTENTS
PAGE
----
SUMMARY 1
RISK FACTORS ....................................................... 2
USE OF PROCEEDS .................................................... 11
ISSUANCE OF COMMON STOCK AND WARRANTS TO SELLING SHAREHOLDERS ...... 11
SELLING STOCKHOLDERS ............................................... 12
PLAN OF DISTRIBUTION ............................................... 13
LEGAL MATTERS ...................................................... 15
EXPERTS ............................................................ 15
AVAILABLE INFORMATION .............................................. 15
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE .................... 16
i
SUMMARY
Boston Life Sciences, Inc. ("BLSI" or the "Company" or "We") is a
development stage biotechnology company engaged in the research and development
of novel therapeutic and diagnostic solutions for central nervous system ("CNS")
diseases. The Company also has programs in cancer and autoimmune diseases.
Products currently in development by BLSI include the ALTROPANE(TM) imaging
agent, a radioimaging agent for the diagnosis of Parkinson's Disease ("PD") and
Attention Deficit Hyperactivity Disorder ("ADHD"); Troponin I ("Troponin"), an
anti-angiogenic factor for the treatment of solid tumor metastases; Inosine and
Axogenesis Factor 1 ("AF-1"), for the potential treatment of stroke and spinal
cord injury; PD therapeutic compounds, for the treatment of PD; C-MAF,
transcription factors that may control the expression of molecules associated
with autoimmune disease and allergies; and the FLOURATEC(TM) imaging agent, a
"second generation" technetium-based compound for the diagnosis of PD. All
technologies currently under development were invented or discovered by
researchers working at Harvard University and its affiliated hospitals ("Harvard
and its Affiliates") and have been licensed to us. Our principal executive
offices are located at 137 Newbury Street, 8th Floor, Boston, Massachusetts
02116, and the telephone number is (617) 425-0200. We expect to relocate our
offices to 20 Newbury Street, Boston, Massachusetts 02116 by the end of the
second quarter of 2002.
Our overall corporate strategy is to in-license early-stage technologies
from academic research centers, predominately Harvard University and its
affiliated hospitals ("Harvard and its Affiliates"), and to develop those
technologies within the academic laboratory through the "proof of principle"
stage. We then "extract" these potential products from the academic laboratory
and continue to develop these products through the Investigational New Drug
("IND") and clinical trials, with the goal of obtaining marketing approval for
each of the selected technologies. Finally, corporate marketing and/or
development partnerships are sought after in a manner that strategically fits
with the Company's overall goal of building shareholder value.
We currently outsource all of our research and development, preclinical and
clinical activities for all of our products, with the exception of limited
manufacturing capability for Troponin, and we expect to continue to outsource
these activities in the future.
1
RISK FACTORS
Investing in our common stock is very risky. You should be able to bear a
complete loss of your investment. This prospectus, including the documents
incorporated by reference, contains forward-looking statements that involve
risks or uncertainties. Actual events or results may differ materially from
those discussed in this prospectus. Factors that could cause or contribute to
such differences include the factors discussed below as well as those discussed
elsewhere in this prospectus and in our filings with the Securities and Exchange
Commission ("SEC").
We are a development stage company, we have always had losses from our
operations and we expect future losses. We will never be profitable unless we
develop, and obtain regulatory approval and market acceptance of, our product
candidates.
We are a development stage company and have always had losses from our
operations. We have never generated revenues from product sales and we do not
currently expect to generate revenues from product sales for at least the next
twelve months, and probably longer. There can be no guarantee that we will ever
generate revenues or operating profits, or that if we do generate revenues or
operating profits, that we will be able to continue to do so.
As of March 31, 2002, we have incurred total net losses since inception of
approximately $78 million. To date, we have dedicated most of our financial
resources to the research and development of our product candidates, preclinical
compounds, and other technologies (which we collectively refer to in this
prospectus as our "technologies"), general and administrative expenses and costs
related to obtaining and protecting patents. We expect to incur significant
operating losses for at least the next eighteen months, and probably longer,
primarily due to the continued expenditures necessary to support progress of our
research and development programs, including preclinical studies and clinical
trials.
Our ability to generate revenue and operating income in the future will
depend on many factors including:
. The progress of our research and development activities and our
clinical trials, and the degree to which we encounter the problems,
delays, and other complications frequently experienced by development
stage biotechnology companies;
. Our ability to successfully negotiate economically feasible
collaborative research, manufacturing, marketing and/or other
agreements, and subsequently meet the terms of such agreements;
. The cost and timing of, and success in, obtaining FDA and other
regulatory approvals of our products;
. The cost of protecting our patent claims and other intellectual
property rights;
. Manufacturing costs and the market acceptance of our products at
prices sufficient to generate adequate profits; and
. Competing technologies and changes in economic, regulatory or
competitive conditions of the pharmaceutical and biotechnology
industry.
We will likely require additional funding in the future in order to continue our
business and operations as currently conducted. If we are unable to secure such
funding on acceptable terms, we may need to significantly reduce or even cease
one or more of our research or development programs, or we may be
2
required to obtain funds through arrangements with others that may require us to
surrender rights to some or all of our technologies.
We spend a significant amount for research and development, including
preclinical studies and clinical trials of our technologies. We believe that the
cash, cash equivalents, and investments available at March 31, 2002 will provide
sufficient working capital to meet our anticipated expenditures for the next
twelve months. Thereafter, we may need to raise substantial additional capital
if we are unable to generate sufficient revenue from product sales or through
collaborative arrangements with third parties. To date, we have always
experienced negative cash flows from operations and have funded our operations
primarily from equity financings. If adequate funds are not readily available,
we may need to significantly reduce or even cease one or more of our research or
development programs. Alternatively, to secure such funds, we may be required to
enter financing arrangements with others that may require us to surrender rights
to some or all of our technologies. If the results of our current or future
clinical trials are not favorable, it may negatively affect our ability to raise
additional funds. If we are successful in obtaining additional equity financing,
the terms of such financing will have the effect of diluting the holdings and
the rights of our stockholders. Estimates about how much funding will be
required are based on a number of assumptions, all of which are subject to
change based on the results and progress of our research and development
activities.
Our technologies and product candidates are in the early stages of development
and may not result in marketed products at all.
Successful research and product development in the biotechnology industry
is highly uncertain, and very few research and development projects produce a
commercial product. Product candidates that appear promising in the early phases
of development, such as in preclinical study or in early human clinical trials,
may fail to reach the market for a number of reasons, such as:
. The product candidate fails to demonstrate safety and efficacy in
pivotal clinical trials even though it demonstrated positive
preclinical or early-stage clinical trial results;
. The necessary regulatory bodies (such as the FDA) fail to approve the
product candidate;
. The product candidate cannot be manufactured by or for us on an
economic basis;
. Other companies or people possess proprietary rights that prevent our
product candidate from being marketed and they will not provide us
with a license on reasonable terms, or at all; or
. The product candidate is not cost effective in light of existing
drugs.
With the exception of the ALTROPANE(TM) imaging agent, all of our
technologies and early-stage product candidates are in preclinical development
and we have not yet submitted INDs for these product candidates which will be
required before we can begin clinical trials in the United States. We may not
submit INDs for these candidates as planned and the FDA may not permit us to
proceed with clinical trials. We may abandon further development efforts before
the products reach clinical trials. We do not know what the cost to manufacture
these products in commercial quantities will be, or the dose required to treat
patients. We do not know whether any of these product candidates ultimately will
be shown to be safe and effective. If we are unable to successfully develop and
commercialize our technologies and early-stage product candidates, our business
and results of operations will be adversely affected.
If we are unable to secure adequate patent protection for our technologies, then
we may not be able to compete effectively as a biotechnology company.
3
At the present time, we do not have patent protection for all uses of our
technologies. There is significant competition in our primary scientific areas
of research and development including CNS disorders, cancer, and certain
autoimmune diseases. Such competitors will seek patent protection for their
technologies, and such patent applications or rights might conflict with the
patent protection that we are seeking for our technologies. If we do not obtain
patent protection for our technologies, or if others obtain patent rights that
block our ability to develop and market our technologies, our business prospects
may be significantly and negatively affected. Further, even if patents can be
obtained, there can be no guarantee that these patents will provide us with any
competitive advantage.
Our patent strategy is to obtain broad patent protection, in the U.S. and
in major developed countries, for our technologies and their related medical
indications. The patent application and issuance process generally takes at
least several years and is usually very expensive without any guarantee that a
patent will be issued. In many cases, our know-how and technology may not be
patentable. Risks associated with protecting our patent and proprietary rights
include the following:
. Our ability to protect our technologies could be delayed or negatively
affected if the United States Patent and Trademark Office (the
"USPTO") requires additional experimental evidence that our
technologies work;
. Our competitors may develop similar technologies or products, or
duplicate any technology developed by us;
. Our competitors may develop products which are similar to ours but
which do not infringe on our patents or products, or a third party may
successfully challenge one or more of our patents in an interference
or litigation proceeding;
. Our patents may infringe on the patents or rights of other parties
which may decide not to grant a license to us. We may have to change
our products or processes, pay licensing fees or stop certain
activities because of the patent rights of third parties which could
cause additional unexpected costs and delays;
. Patent law in the fields of healthcare and biotechnology is still
evolving and future changes in such laws might conflict with our
existing or future patent rights, or the rights of others;
. Our collaborators, employees and consultants may breach the
confidentiality agreements that we enter to protect our trade secrets
and proprietary know-how. We may not have adequate remedies for such
breach; and
. There may be disputes as to the ownership of technological information
developed by consultants, scientific advisors or other third parties
which may not be resolved in our favor.
We are dependent on expert advisors and institutional collaborations.
Most biotechnology and pharmaceutical companies have established internal
research and development programs, including their own facilities and employees
which are under their direct control. By contrast, until recently, when we
initiated limited internal research capability, we have always outsourced all of
our research and development, preclinical and clinical activities. As a result,
we are dependent upon our network of expert advisors, including the individuals
who serve on our Scientific Advisory Board, and our collaborations with key
medical and research institutions for the development of our technologies. These
expert advisors are not our employees but provide us with important information
4
and knowledge that may enhance our product development strategies and plans. Our
collaborations with key medical and research institutions are important for some
of the testing and evaluation of our technologies. The loss of relationships
with our expert advisors or medical and research institutions could harm our
ability to develop our technologies.
We cannot control the amount and timing of resources our advisors and
collaborators devote to our programs or technologies. Our advisors and
collaborators may have commitments to, or consulting or advisory contracts with,
other entities that may limit their availability to us. If any of our advisors
or collaborators were to breach or terminate their agreement with us or
otherwise fail to conduct their activities successfully and in a timely manner,
the preclinical or clinical development or commercialization of our technologies
or our research programs could be delayed or terminated. Any such delay or
termination could have a material adverse effect on our business, financial
condition or results of operations.
Disputes may arise in the future with respect to the ownership of rights to
any technology developed with our advisors or collaborators. These and other
possible disagreements could lead to delays in the collaborative research,
development or commercialization of our technologies, or could require or result
in litigation to resolve. Any such event could have a material adverse effect on
our business, financial condition or results of operations.
Our advisors and collaborators sign agreements that provide for
confidentiality of our proprietary information. We cannot provide assurance that
we will be able to maintain the confidentiality of our technology and other
confidential information in connection with every advisory or collaboration
arrangement, and any unauthorized dissemination of our confidential information
could have a material adverse effect on our business, financial condition or
results of operations. Further, there can be no assurance that any of these
advisors or collaborators will not enter into an employment or consulting
arrangement with one or more of our competitors.
If we are unable to maintain our key working relationships with Harvard and its
Affiliates, we may not be successful since substantially all of our current
technologies were licensed from, and most of our research and development
activities were performed by, Harvard and its Affiliates.
Historically, we have been heavily dependent on our relationship with
Harvard and its Affiliates because substantially all of our technologies were
licensed from, and most of our research and development activities were
performed by, Harvard and its Affiliates. Now that a portion of our early-stage
research at Harvard and its Affiliates has yielded an identified product in each
area of research, we have begun and expect to continue to conduct much of our
later stage development work and all of our formal preclinical and clinical
programs outside of Harvard and its Affiliates. Nevertheless, the originating
scientists still play important advisory roles. Each of our collaborative
research agreements is managed by a sponsoring scientist and/or researcher who
has his or her own independent affiliation with Harvard and its Affiliates.
Universities and other not-for-profit research institutions are becoming
increasingly aware of the commercial value of their findings and are becoming
more active in seeking patent protection and licensing arrangements to collect
royalties for the use of technology that they have developed. There can be no
guarantee that we will be able to obtain new technologies from Harvard and its
affiliates or that we can continue to meet our obligations under existing
arrangements.
If we are unable to retain our key personnel and/or recruit additional key
personnel in the future, then we may not be able to operate effectively.
Our success depends significantly upon our ability to attract and retain
highly qualified scientific and
5
management personnel who are able to formulate, implement and maintain the
operations of a biotechnology company such as ours. As an example, Marc E.
Lanser, our Chief Scientific Officer, was formerly on the staff of, and
maintains close affiliations with Harvard Medical School and its affiliates.
Substantially all of our technologies were licensed from Harvard and its
Affiliates. Our past ability to secure these licenses and to enter into
sponsored research and development agreements with Harvard was enhanced by Dr.
Lanser's affiliations and familiarity with the Harvard Medical School and its
affiliates.
We currently outsource most of our research and development, preclinical
and clinical activities. If we decide to increase our internal research and
development capabilities for any of our technologies, we may need to hire
additional key management and scientific personnel to assist the limited number
of employees that we currently employ. There is significant competition for such
personnel from other companies, research and academic institutions, government
entities and other organizations. If we fail to attract such personnel, it could
have a significant negative effect on our ability to develop our technologies.
There can be no guarantee that we will be successful in hiring or retaining the
personnel that may be required for such activities in the future.
If we are unable to establish, maintain and rely on new collaborative
relationships, then we may not be able to successfully develop and commercialize
our technologies.
To date, our operations have primarily focused on the pre-clinical
development of most of our technologies, as well as conducting clinical trials
for certain of our technologies. During the next eighteen months, we currently
expect that the continued development of our technologies will result in the
initiation of additional clinical trials, and the market introduction of any
product for which regulatory approval is obtained. We expect that these
developments will require us to establish, maintain and rely on new
collaborative relationships in order to successfully develop and commercialize
our technologies. There is no certainty that:
. We will be able to enter into such collaborations on economically
feasible and otherwise acceptable terms and conditions;
. That such collaborations will not require us to undertake substantial
additional obligations or require us to devote additional resources
beyond those we have identified at present;
. That any of our collaborators will not breach or terminate their
agreement with us or otherwise fail to conduct their activities on
time, thereby delaying the development or commercialization of the
technology for which the parties are collaborating; and
. The parties will not dispute the ownership rights to any technologies
developed under such collaborations.
If we are not able to establish or maintain the necessary collaborative
arrangements, we will need more money to research and develop technologies on
our own and we may encounter delays in introducing our products.
Because the current environment of rapid technological change requires
significant financial, technical and marketing resources to successfully develop
and market products, some of our competitors may have an advantage in developing
and marketing products.
The biotechnology and pharmaceutical industries are highly competitive and
are dominated by larger, more experienced and better capitalized companies. Such
greater experience and financial strength may enable them to bring their
products to market sooner than us, thereby gaining the competitive advantage
6
of being the first to market. Research on the causes of, and possible treatments
for diseases for which we are trying to develop therapeutic or diagnostic
products, including cancer, PD, ADHD, CNS disorders and certain autoimmune
diseases, are developing rapidly, and there is a potential for extensive
technological innovation in relatively short periods of time. There can be no
assurance that we will be able to keep pace with any new technological
developments. Factors affecting our ability to successfully manage the
technological changes occurring in the biotechnology and pharmaceutical
industries as well as our ability to successfully compete include:
. Many of our potential competitors have significantly greater
experience than we do in completing preclinical and clinical testing
of new pharmaceutical products and obtaining FDA and other regulatory
approvals of products;
. We compete with a number of pharmaceutical and biotechnology companies
which have financial, technical and marketing resources significantly
greater than ours; and
. Companies with established positions and prior experience in the
pharmaceutical industry may be better able to develop and market
products for the treatment of those diseases for which we are trying
to develop products.
If our technologies are unable to successfully complete, or are adversely
effected by, the extensive regulatory process, then we may not be able to market
our products and technologies.
Our technologies must undergo a rigorous regulatory approval process which
includes extensive preclinical and clinical testing to demonstrate safety and
efficacy before any resulting product can be marketed. To date, neither the FDA
nor any of its international equivalents has approved any of our technologies
for marketing. In the biotechnology industry, it has been estimated that less
than five percent of the technologies for which clinical efforts are initiated
ultimately result in an approved product. The clinical trial and regulatory
approval process can require many years and substantial cost, and there can be
no guarantee that our efforts will result in an approved product.
Our activities are regulated by a number of government authorities in the
United States and other countries, including the FDA pursuant to the Federal
Food, Drug, and Cosmetic Act. The FDA regulates pharmaceutical products,
including their testing, manufacturing and marketing. Data obtained from testing
is subject to varying interpretations which can delay, limit or prevent FDA
approval. Risks associated with the regulatory approval process include:
. Obtaining FDA clearances is time-consuming and expensive, and there is
no guarantee that such clearances will be granted or that the FDA
review process will not involve delays that significantly and
negatively affect our products. We may encounter similar delays in
foreign countries;
. Regulatory clearances may impose significant limitations on the uses
for which any approved products may be marketed;
. Any marketed product and its manufacturer are subject to periodic
reviews and audits, and any discovery of previously unrecognized
problems with a product or manufacturer could result in suspension or
limitation of approvals; and
. Changes in existing regulatory requirements could prevent or affect
the timing of our ability to achieve regulatory compliance. Federal
and state laws, regulations and policies may be changed with possible
retroactive effect, and how these rules actually operate can depend
heavily on
7
administrative policies and interpretations over which we have no
control or inadequate experience to assess their full impact upon our
business.
If we are unable to obtain adequate insurance coverage and reimbursement levels
for any of our products which are approved and enter the market, then they may
not be accepted by physicians and patients.
Substantially all biotechnology products are distributed to patients by
physicians and hospitals, and in most cases, such patients rely on insurance
coverage and reimbursement to pay for some or all of the cost of the product. In
recent years, the continuing efforts of government and third party payers to
contain or reduce health care costs have limited, and in certain cases
prevented, physicians and patients from receiving insurance coverage and
reimbursement for medical products, especially newer technologies. Our ability
to generate adequate revenues and operating profits could be adversely affected
if such limitations or restrictions are placed on the sale of our products.
Specific risks associated with medical insurance coverage and reimbursement
include:
. Significant uncertainty exists as to the reimbursement status of newly
approved health care products, and third-party payers are increasingly
challenging the prices charged for medical products and services;
. There can be no guarantee that adequate insurance coverage will be
available to allow us to charge prices for products which are adequate
for us to realize an appropriate return on our cost for developing
these technologies. If adequate coverage and reimbursement are not
provided for use of our products, the market acceptance of these
products will be negatively affected;
. Health maintenance organizations and other managed care companies may
seek to negotiate substantial volume discounts for the sale of our
products to their members thereby reducing our profit margins; and
. In recent years, bills proposing comprehensive health care reform have
been introduced in Congress that would potentially limit
pharmaceutical prices and establish mandatory or voluntary refunds.
There can be no guarantee that such proposals will not negatively
affect us. It is uncertain if any legislative proposals will be
adopted and how federal, state or private payers for health care goods
and services will respond to any health care reforms.
We have limited manufacturing capacity and marketing experience and expect to be
heavily dependent upon third parties to manufacture and market approved
products.
We currently have limited manufacturing facilities for either clinical
trial or commercial quantities of any of our technologies and currently have no
plans to obtain additional facilities. To date, we have obtained the limited
amount of quantities required for preclinical and clinical trials from contract
manufacturing companies. We intend to continue using contract manufacturing
arrangements with experienced firms for the supply of material for both clinical
trials and any eventual commercial sale, with the exception of Troponin, which
we presently plan to produce in our facility in Baltimore, Maryland.
We will depend upon third parties to produce and deliver products in
accordance with all FDA and other governmental regulations. For example, with
respect to our most advanced product candidate, the ALTROPANE(TM) imaging agent,
we have entered into an agreement with, and are highly dependent upon, MDS
Nordion. The agreement provides for MDS Nordion to manufacture the ALTROPANE(TM)
imaging agent for our future clinical trials and, if the drug is approved, for
commercial supply. The agreement
8
also provides that MDS Nordion will compile and prepare the information
regarding manufacturing that will be a required component of any NDA we file for
the ALTROPANE(TM) imaging agent in the future. There can be no guarantee that
MDS Nordion or any similar parties will consistently perform their obligations
in a timely fashion and in accordance with the applicable regulations. There can
be no guarantee that we will be able to contract with manufacturers who can
fulfill our requirements for quality, quantity and timeliness, or that we would
be able to find substitute manufacturers, if necessary. The failure by any third
party to perform their obligations may delay clinical trials, the
commercialization of products, and the ability to supply product for sale.
We do not have any experience in marketing pharmaceutical products. In
order to earn a profit on any future product, we will be required to either
enter into arrangements with third parties with respect to marketing the
products or internally develop such marketing capability. There can be no
assurance that we will be able to enter into marketing agreements with others on
acceptable terms, or that we can successfully develop such capability on our
own.
We have options and warrants outstanding which, when exercised or converted, may
cause dilution to our stockholders.
As of March 31, 2002, options and warrants to purchase approximately 9.2
million shares of our common stock were outstanding at exercise prices ranging
from $0.63-$15.00 per share. Approximately 3.0 million of these previously
granted options and warrants have exercise prices of $3.00 per share and below,
and approximately 6.2 million have exercise prices above $3.00 per share.
Approximately 1.9 million warrants contain anti-dilution provisions that will
decrease the exercise price of these instruments if we sell common stock at a
price below the exercise price of these warrants, with some limited exceptions.
Of these 1.9 million warrants, 1.7 million warrants contain additional
provisions that could result in the Company issuing additional warrants to these
warrant holders if we sell common stock at a price below the exercise price of
these warrants. Approximately 500,000 warrants contain a provision that will
decrease the exercise price of these instruments, if, on the second anniversary
of the original transaction, the market price of our common stock is less than
the exercise price on such date. In addition, the Company is also obligated to
issue to the same warrantholder additional warrants in an amount equal to 9.9%
of the increase in common stock outstanding through June 30, 2004, provided that
the total number of such additional warrants cannot exceed 240,000. Any of the
foregoing provisions could motivate the holders of these instruments, to sell
our common stock short in the public market, which could negatively affect our
stock price. The exercise of our options and warrants will dilute the percentage
ownership interest of our current stockholders. In addition, the terms upon
which we would be able to obtain additional money through the sale of our stock
may be negatively affected by the existence of these warrants and options,
because new investors may be concerned about the impact upon the future market
price of the stock if these warrants and options were consistently exercised and
the underlying stock sold.
Our stock price may continue to be volatile and can be effected by factors
unrelated to our business and operating performance.
The market prices for securities of biotechnology and emerging
pharmaceutical companies in general have been highly volatile and may continue
to be highly volatile in the future. The stock market has from time to time
experienced extreme price and volume fluctuations that have affected the market
prices for biotechnology and emerging pharmaceutical companies. These price and
volume fluctuations have often been unrelated to the operating performance of
such companies. These broad market fluctuations may adversely affect the market
price of our common stock. The following factors, in addition to other risk
factors described in this section, may have a significant impact on the market
price of our common stock:
. Announcements of technological innovations or new commercial products
by our competitors or
9
us;
. Announcements in the scientific and research community;
. Developments concerning proprietary rights, including patents;
. Delay or failure in initiating, conducting, completing or analyzing
clinical trials or problems relating to the design, conduct or results
of these trials;
. Developments concerning our collaborations;
. Publicity regarding actual or potential medical results relating to
products under development by our competitors or us;
. Conditions and publicity regarding the life sciences industry
generally;
. Regulatory developments in the U.S. and foreign countries;
. Period-to-period fluctuations in our financial results;
. Differences in actual financial results versus financial estimates by
securities analysts and changes in those estimates; and
. Litigation.
Securities class action litigation is often initiated against companies
following periods of volatility in the market price of the companies'
securities. Engaging in securities litigation could result in substantial costs
for us and divert management's attention and resources, potentially resulting in
serious harm to our business. If securities litigation against us is successful,
we could incur significant costs or damages.
We have implemented anti-takeover provisions which could discourage or prevent a
takeover, even if an acquisition would be beneficial to our stockholders.
Provisions of our shareholder rights plan, our amended and restated
certificate of incorporation and our bylaws, as well as provisions of Delaware
law, could make it more difficult for a third party to acquire us, even if doing
so would be beneficial to our stockholders. If a change of control is delayed or
prevented the market price of our common stock could suffer.
10
USE OF PROCEEDS
The net proceeds from the sale of the securities will be received by the
selling stockholders. We will not receive any proceeds from the sale of the
securities by the selling stockholders.
ISSUANCE OF COMMON STOCK AND WARRANTS
TO SELLING SHAREHOLDERS
The following is a summary description of our issuance of the common stock
and warrants which are exercisable by the selling stockholders for common stock
being offered pursuant to this prospectus.
In April 2002, the Company entered into a consulting agreement with
Alexandros Partners LLC. Under the terms of the agreement, the Company issued
warrants to purchase 25,000 shares of common stock, which are exercisable in
April 2002 at an exercise price of $2.00 per share, as partial compensation for
the services to be provided by Alexandros Partners LLC. The warrants expire in
April 2007. In addition, subject to certain exceptions, the exercise price of
the warrants will be reduced if the Company issues to the holders of its common
stock certain dividends.
In March 2002, the Company issued an aggregate of 1,599,568 shares of
common stock and warrants to purchase a total of 399,892 shares of our common
stock to certain selling stockholders in exchange for $3,439,071 in gross
proceeds. The warrants are exercisable to purchase 399,892 shares of common
stock at an exercise price of $2.75 per share. The warrants are currently
exercisable and expire in March 2007. In addition, subject to certain
exceptions, the exercise price of the warrants will be reduced if the Company
issues to the holders of its common stock certain dividends.
In March 2002, the Company issued 157,557 and 15,756 warrants to purchase
common stock at $2.75 per share to Brimberg & Co., L.P. and Celia Kupferberg,
respectively, who assisted the Company with the March 2002 financing. The
warrants are currently exercisable and expire in March 2007. In addition,
subject to certain exceptions, the exercise price of the warrants will be
reduced if the Company issues to the holders of its common stock certain
dividends.
In June 2001, the Company entered into an agreement with Pictet Global
Sector Fund-Biotech ("Pictet") whereby Pictet agreed to defer the effective date
of the reset provision contained in its existing 500,000 warrants (300,000
exercisable at $8.00 per share and 200,000 exercisable at $10.00 per share)
until June 30, 2002, at which time the exercise price will be reset to the lower
of (x) the weighted average sales price per share for the 20 trading days ending
on June 1, 2001 and (y) the greater of (i) the weighted average sales price per
share of common stock for the 20 trading days ending on June 30, 2002 and (ii)
$3.00. In addition, the agreement provided that in the event of any
reorganization, reclassification, consolidation, merger or similar transaction
involving the Company prior to June 30, 2002, the exercise price of the warrants
will be deemed to be $3.00 per share. In return, the Company issued 160,000
additional new warrants exercisable at $3.40 per share to Pictet and is also
obligated to issue additional warrants in an amount equal to 9.9% of the
increase in common stock outstanding from June 25, 2001 through June 30, 2004,
provided that the total number of such additional warrants cannot exceed
240,000. The five-year warrants are exercisable upon issuance. In addition,
subject to certain exceptions, the exercise price of the warrants will be
reduced if the Company issues to the holders of its common stock certain
dividends.
In October 2001, the Company entered into a consulting agreement with
Robert Licho. Under the terms of the agreement, the Company issued warrants to
purchase 10,000 shares of common stock, which are exercisable in October 2002,
at an exercise price of $1.90 per share as partial compensation for the
11
services to be provided by Robert Licho. The warrants expire in October 2011. In
addition, subject to certain exceptions, the exercise price of the warrants will
be reduced if the Company issues to the holders of its common stock certain
dividends.
SELLING STOCKHOLDERS
The number of shares registered in the registration statement of which this
prospectus is a part and the number of shares offered in this prospectus
represents our bona fide estimate of the number of shares issuable upon exercise
of the warrants. The number of shares that will ultimately be issued to the
selling stockholders cannot be determined at this time because it depends on (1)
whether the holders of the warrants exercise their warrants, (2) the exercise
price of the warrants at the time of exercise of the warrants.
The table below sets forth information regarding ownership of our common
stock by the selling stockholders and the number of shares that may be sold by
them, or their permitted pledges, donees, transferees or other permitted
successors in interest, under this prospectus. The number of shares set forth in
the table as being held by the selling stockholders includes the number of
shares of common stock that are issuable upon exercise of the warrants described
above as of March 12, 2002. Because the selling stockholders may offer all or
some portion of the common stock listed in the table pursuant to this prospectus
or otherwise, no estimate can be given as to the amount or percentage of common
stock that will be held by the selling stockholders upon termination of the
offering. The selling stockholders may sell all, part, or none of the shares
listed. With the exception of E. Christopher Palmer, none of the selling
stockholders has had any position, office or other material relationship with
the Company, other than as a security holder, during the past three years.
Securities Owned
Securities Owned Prior to Offering After Offering (1)
- --------------------------------------------------------------------------------- -------------------------------
Shares of
Shares of Common Stock Percent of Number of
Name of Selling Common Offered Common Shares of Percent of
Shareholder Stock (3) Hereby (3) Stock (1) Common Stock Common Stock
- ---------------------------------- ---------------- --------------- ------------- ---------------- --------------
Gerald & Mona Levine 58,140 58,140 * 0 *
Ingalls & Snyder LLC 625,000 625,000 2.78% 0 *
Gainesborough LLC 290,700 290,700 1.30% 0 *
Garret G. Thunen & Carol Thunen 87,500 87,500 * 0 *
Anthony Low-Beer IRA 31,250 31,250 * 0 *
Paris Nikolaides 25,000 25,000 * 0 *
Aeolian Investment Fund 125,000 125,000 * 0 *
Konstantine Papatheodorou 25,000 25,000 * 0 *
GDH Partners, LP 195,375(9) 145,375 * 50,000 *
Kurt A. Dasse 11,625 11,625 * 0 *
John N. Hatsopoulos 145,375 145,375 * 0 *
Paul Potamianos 29,070 29,070 * 0 *
Christos Ioannides 31,965 31,965 * 0 *
Anthony S. Loumidis 20,000 20,000 * 0 *
Costas Markides 29,070 29,070 * 0 *
KSH Strategic Investment Fund
I, LP 58,140 58,140 * 0 *
Peter S. Lynch and Carolyn A.
Lynch JROS 62,500 62,500 * 0 *
The Lynch Foundation 112,500 112,500 * 0 *
12
Peter and Carolyn Lynch
Charitable Remainder Trust 43,750 43,750 * 0 *
Thomas F. and Evelyn S. Widmer 12,500 12,500 * 0 *
Boston Private Bank & Trust
Company FBO E. Christopher
Palmer IRA ** 232,216 (5) 30,000 1.03% 202,216 (7) *
Alexandros Partners LLC 25,000 (4) 25,000 (4) * 0 *
Celia Kupferberg 15,756 (4) 15,756 (4) * 0 *
Brimberg & Co., L. P. 157,557 (4) 157,557 (4) * 0 *
Pictet Global Sector
Fund-Biotech 2,015,956 (6) 160,000 (4) 8.75% (2) 1,855,956 (8) 8.11% (2)
Robert Licho 10,000 (4) 10,000 (4) * 0 *
* Less than one percent.
** E. Christopher Palmer is a member of the Company's Board of Directors
(1) Except as otherwise indicated, the number of shares beneficially owned is
determined by rules promulgated by the SEC and the information is not
necessarily indicative of beneficial ownership for any other purpose. The
percentage of beneficial ownership is based on 22,374,210 shares of common
stock issued and outstanding on March 12, 2002.
(2) The percentage of beneficial ownership is based on 22,374,210 shares of
common stock issued and outstanding on April 15, 2002.
(3) Except as otherwise indicated, the number of shares of common stock
includes shares that are issuable upon the exercise of certain
warrants in an amount equal to 20% of the total number of shares.
(4) Represents shares issuable upon the exercise of certain warrants.
(5) Includes 179,716 shares of common stock issuable upon the exercise of
certain stock options and 6,000 shares of common stock issuable upon the
exercise of certain warrants.
(6) Includes 660,000 shares of common stock issuable upon the exercise of
certain warrants.
(7) Includes 179,716 shares of common stock issuable upon the exercise of
certain stock options.
(8) Includes 500,000 shares of common stock issuable upon the exercise of
certain warrants.
(9) Includes 29,075 shares of common stock issuable upon the exercise of
certain warrants.
PLAN OF DISTRIBUTION
BLSI is registering the shares of common stock on behalf of the selling
stockholders. The selling stockholders will act independently of BLSI in making
decisions with respect to the timing, manner and size of each sale. All costs,
expenses and fees in connection with the registration of the shares offered by
this prospectus will be borne by BLSI, other than brokerage commissions and
similar selling expenses, if any, attributable to the sale of shares which will
be borne by the selling stockholders. Sales of shares may be effected by selling
stockholders from time to time in one or more types of transactions (which may
include block transactions) on the Nasdaq National Market, in the
over-the-counter market, in negotiated transactions, through put or call options
transactions relating to the shares, or a combination of such methods of sale,
at market prices prevailing at the time of sale, or at negotiated prices. Such
transactions may or may not involve brokers or dealers. The selling stockholders
have advised BLSI that they have not entered into any agreements, understandings
or arrangements with any underwriters or broker-dealers regarding the sale of
their securities, nor is there an underwriter or coordinated broker acting in
connection with the proposed sale of shares by the selling stockholders.
Subject to the restrictions noted above, the selling stockholders may enter
into hedging transactions with broker-dealers or other financial institutions.
In connection with such transactions and subject to the restrictions noted
above, broker-dealers or other financial institutions may engage in short sales
of the shares or of securities convertible into or exchangeable for the shares
in the course of hedging positions
13
they assume with selling stockholders. The selling stockholders may also enter
into options or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker-dealers or other
financial institutions of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as amended or supplemented to reflect such transaction).
The selling stockholders may make these transactions by selling shares
directly to purchasers or to or through broker-dealers, which may act as agents
or principals. Such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from selling stockholders and/or the
purchasers of shares for whom such broker-dealers may act as agents or to whom
they sell as principal, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions).
The selling stockholders may from time to time pledge or grant a security
interest in some or all of the shares owned by them. If the selling stockholders
default in the performance of their secured obligations, the pledgees or secured
parties may offer and sell their shares from time to time under a supplement to
this prospectus or a post-effective amendment to the registration statement of
which this prospectus is a part, as applicable law may require, amending the
list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this prospectus. The
selling stockholders also may transfer the shares in other circumstances, in
which case the transferees, pledges or other successors in interest will be the
selling beneficial owners for purposes of this prospectus subject to filing any
supplement to this prospectus or post-effective amendment to the registration
statement required by applicable law.
The selling stockholders and any broker-dealers that act in connection with
the sale of shares are "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any commissions received by such broker-dealers or any
profit on the resale of the shares sold by them while acting as principals might
be deemed to be underwriting discounts or commissions under the Securities Act.
The selling stockholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the shares
against certain liabilities, including liabilities arising under the Securities
Act.
Because selling stockholders are "underwriters" within the meaning of
Section 2(11) of the Securities Act, the selling stockholders will be subject to
the prospectus delivery requirements of the Securities Act. We have informed the
selling stockholders that the anti-manipulative provisions of Regulation M
promulgated under the Exchange Act may apply to their sales in the market.
Selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act, provided
they meet the criteria and conform to the requirements of Rule 144.
Upon BLSI being notified by a selling stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing:
. the name of each such selling stockholder and of the participating
broker-dealer(s);
. the number of shares involved;
. the initial price at which such shares were sold;
14
. the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
. that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus; and
. other facts material to the transactions.
We have agreed to indemnify the selling stockholders in certain
circumstances against some liabilities, including liabilities that could arise
under the Securities Act. The selling stockholders have agreed to indemnify us,
our directors and our officers who sign the registration statement against some
liabilities, including liabilities that could arise under the Securities Act.
We have agreed to maintain the effectiveness of this registration statement
until the earlier of the sale of all the shares offered by this prospectus or
the date that each holder of such shares can sell all of the shares it holds in
any three-month period in compliance with Rule 144 promulgated under the
Securities Act, but in no event for more than five years following the
effectiveness of the registration statement of which this prospectus is a part.
No sales may be made pursuant to this prospectus after the expiration date
unless we amend or supplement this prospectus to indicate that we have agreed to
extend the period of effectiveness. The selling stockholders may sell all, some
or none of the shares offered by this prospectus.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for BLSI by Ropes & Gray, Boston, Massachusetts.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K, as amended on April 30, 2002, for
the year ended December 31, 2001 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
AVAILABLE INFORMATION
This prospectus, which constitutes a part of a registration statement on
Form S-3 (the "registration statement") filed by us with the Securities and
Exchange Commission (the "Commission") under the Securities Act, omits certain
of the information set forth in the registration statement. Reference is hereby
made to the registration statement and to the exhibits thereto for further
information with respect to us and the securities offered hereby. Copies of the
registration statement and the exhibits thereto are on file at the offices of
the Commission and may be obtained upon payment of the prescribed fee or may be
examined without charge at the public reference facilities of the Commission
described below or via the Commission's web site described below.
Statements contained herein concerning the provisions of documents are
necessarily summaries of such documents, and each statement is qualified in its
entirety by reference to the copy of the applicable document filed with the
Commission.
15
We are subject to the informational requirements of the Exchange Act, and,
accordingly, files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, NW, Washington, D.C.
20549, and at the Commission's Regional Offices located at Seven World Trade
Center, Suite 1300, New York, New York 10048 and Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
documents may also be obtained from the Public Reference Room of the Commission
at Judiciary Plaza, 450 Fifth Street, NW, Washington, D.C. 20549, at prescribed
rates. Information regarding the operation the Public Reference Room may be
obtained by calling the Commission at 1-800-SEC-0330. The Commission maintains a
web site (http://www.sec.gov) that contains material regarding issuers that file
electronically with the Commission. In addition, our common stock is traded on
the Nasdaq National Market and reports and proxy statements concerning us can be
inspected at the offices of the National Association of Securities Dealers,
Inc., 1735 K Street, NW, Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents or portions of documents filed by the Company (File
No. 0-6533) with the Commission are incorporated herein by reference:
(a) Annual Report on Form 10-K, as amended on April 30, 2002, for the
fiscal year ended December 31, 2001.
(b) Quarterly Report on Form 10-Q for the period ended March 31, 2002.
(c) Our Definitive Proxy Statement dated May 1, 2002 for the Company's
2002 Annual Meeting of Stockholders.
(d) Current Reports on Form 8-K dated March 11, 2002, as amended on Form
8-K/A dated March 12, 2002.
(e) The description of our common stock contained in our registration
statement on Form 8-A filed under the Exchange Act, including any
amendment or reports filed for the purpose of updating such
description.
All reports and other documents subsequently filed by us pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference into this Prospectus and to be a part hereof
from the date of the filing of such reports or documents. Any statement
contained in a document, all or a portion of which is incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained or incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
Upon written or oral request, we will provide without charge to each
person, including any beneficial owner, to whom this prospectus is delivered a
copy of any or all of such documents which are incorporated herein by reference
(other than exhibits to such documents unless such exhibits are specifically
incorporated by reference into the documents that this Prospectus incorporates).
Written or oral requests for copies should be directed to Joseph P. Hernon,
Executive Vice President and Chief Financial Officer, 137 Newbury Street, 8th
Floor, Boston, Massachusetts 02116, telephone number (617)
16
425-0200. We expect to relocate our offices to 20 Newbury Street, Boston,
Massachusetts 02116, by the end of the second quarter of 2002.
17
- --------------------------------------------------------------------------------
We have not authorized any dealer, salesperson or other person to give
any information or represent anything not contained in this prospectus. You must
not rely on any unauthorized information. If anyone provides you with different
or inconsistent information, you should not rely on it. This prospectus does not
offer to sell any shares in any jurisdiction where it is unlawful. The
information in this prospectus is current as of the date shown on the cover
page.
Boston Life Sciences, Inc
2,367,773 Shares of
Common Stock
-----------------
PROSPECTUS
-----------------
, 2002
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated costs and expenses of the sale
and distribution of the securities being registered, all of which are being
borne by us.
Securities and Exchange Commission filing fee .......... $ 500
Printing expenses ...................................... 2,500
Legal, accounting and other professional services ...... 30,000
Miscellaneous .......................................... 2,000
-------
Total .................................................. $35,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law authorizes us to grant indemnities to
directors and officers in terms sufficiently broad to permit indemnification of
such persons under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933.
In addition, we have obtained Directors' and Officers' Liability Insurance,
which insures its officers and directors against certain liabilities such
persons may incur in their capacities as our officers or directors.
Article 6 of the our certificate of incorporation provides as follows:
SIXTH: No director of the Corporation shall be personally liable to
the Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, as the same
exists or hereafter may be amended, or (iv) for any transaction from
which the director derived an improper personal benefit. If the
Delaware General Corporation Law hereafter is amended to authorize the
further elimination or limitation of the liability of directors, then
the liability of a director of the Corporation, in addition to the
limitation on personal liability provided herein, shall be limited to
the fullest extent permitted by the amended Delaware General
Corporation Law. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or
modification.
Article VI of the our by-laws provides in relevant part as follows:
SECTION 1. The corporation shall 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 (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, 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
equivalents, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
SECTION 2. The corporation shall 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 by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation except that no
indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
ITEM 16. EXHIBITS
The following is a list of exhibits filed as part of this registration
statement.
Exhibit
Number Description and Method of Filing
------ --------------------------------
4.1 Specimen Common Stock Certificate (1)
4.2 Form of Common Stock Purchase Warrant received by the Investors to
the March 2002 Private Placement (2)
4.3 Form of Common Stock Purchase Warrant received by Pictet (3); as
amended on March 27, 2001 and June 25, 2001 (4)
4.4 Form of Common Stock Purchase Warrant (6)
5 Opinion of Ropes & Gray (6)
10.1 Form of Subscription Agreement by and among the Company and each
investor in the private placement (2)
10.2 Registration Rights Agreement by and among the Company and the
Investors named therein (2)
10.3 Securities Purchase Agreement dated June 1, 2000 between the Pictet
and the Company (5)
10.4 Registration Rights Agreement dated June 1, 2000 between Pictet and
the Company (5)
10.5 Consulting agreement by and among the Company and Alexandros Partners
LLC (6)
23.1 Consent of Ropes & Gray (included in its opinion filed as Exhibit 5
hereto)
23.2 Consent of PricewaterhouseCoopers LLP (6)
24 Power of Attorney (included on signature pages to this registration
statement)
- --------------
(1) Incorporated by reference to Boston Life Sciences, Inc.'s Registration
Statement on Form S-3 filed with the Securities and Exchange
Commission, Registration No. 33-25955.
(2) Incorporated by reference to BLSI's Report on Form 8-K dated March 11,
2002
(3) Incorporated by reference to BLSI's Report on Form 8-K dated June 1,
2000
(4) Incorporated by reference to BLSI's Quarterly Report on Form 10-Q for
the quarter ended June 30, 2001
(5) Incorporated by reference to BLSI's Registration Statement on Form S-3
(No. 333-44298)
(6) Filed herewith.
ITEM 17. UNDERTAKINGS
A. Rule 415 Offering
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales; are being
made, a post- effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act 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 represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be, included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. Filings Incorporating Subsequent Exchange Act Documents by Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. Request for Acceleration of Effective Date
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on May 21,
2002.
BOSTON LIFE SCIENCES, INC.
By: /s/ S. DAVID HILLSON
--------------------------
S. David Hillson, Esq.
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Boston Life Sciences, Inc.,
do hereby constitute and appoint each of S. David Hillson and Joseph P. Hernon
each with full power of substitution, our true and lawful attorney-in-fact and
agent to do any and all acts and things in our names and in our behalf in our
capacities stated below, which acts and things either of them may deem necessary
or advisable to enable Boston Life Sciences, Inc. to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but not limited to, power and authority to
sign for any or all of us in our names, in the capacities stated below, any and
all amendments (including post-effective amendments) hereto; and we do hereby
ratify and confirm all that they shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ S. DAVID HILLSON Chairman, President, and Chief May 21, 2002
- --------------------------------------- Executive Officer
S. David Hillson, Esq. (Principal Executive Officer)
/s/ MARC E. LANSER Director, Executive Vice President May 21, 2002
- --------------------------------------- and Chief Scientific Officer
Marc E. Lanser, M.D.
/s/ JOSEPH P. HERNON Executive Vice President, Chief May 21, 2002
- --------------------------------------- Financial Officer and Secretary
Joseph P. Hernon, CPA (Principal Financial and
Accounting Officer)
/s/ COLIN B. BIER Director May 21, 2002
- ---------------------------------------
Colin B. Bier, Ph.D.
/s/ SCOTT WEISMAN Director May 21, 2002
- ---------------------------------------
Scott Weisman, Esq.
/s/ ROBERT LANGER Director May 21, 2002
- ---------------------------------------
Robert Langer, Sc.D.
/s/ IRA W. LIEBERMAN Director May 21, 2002
- --------------------------------------
Ira W. Lieberman Ph.D.
/s/ E. CHRISTOPHER PALMER Director May 21, 2002
- --------------------------------------
E. Christopher Palmer, CPA
EXHIBIT INDEX
Exhibit
Number Description and Method of Filing
- ------ --------------------------------
4.1 Specimen Common Stock Certificate (1)
4.2 Form of Common Stock Purchase Warrant received by the Investors to
the March 2002 Private Placement (2)
4.3 Form of Common Stock Purchase Warrant received by Pictet (3); as
amended on March 27, 2001 and June 25, 2001 (4)
4.4 Form of Common Stock Purchase Warrant (6)
5 Opinion of Ropes & Gray (6)
10.1 Form of Subscription Agreement by and among the Company and each
investor in the private placement (2)
10.2 Registration Rights Agreement by and among the Company and the
Investors named therein (2)
10.3 Securities Purchase Agreement dated June 1, 2000 between the Pictet
and the Company (5)
10.4 Registration Rights Agreement dated June 1, 2000 between Pictet and
the Company (5)
10.5 Consulting agreement by and among the Company and Alexandros Partners
LLC (6)
23.1 Consent of Ropes & Gray (included in its opinion filed as Exhibit 5
hereto)
23.2 Consent of PricewaterhouseCoopers LLP (6)
25 Power of Attorney (included on signature pages to this registration
statement)
- --------------
(1) Incorporated by reference to Boston Life Sciences, Inc.'s Registration
Statement on Form S-3 filed with the Securities and Exchange Commission,
Registration No. 33-25955.
(2) Incorporated by reference to BLSI's Report on Form 8-K dated March 11, 2002
(3) Incorporated by reference to BLSI's Report on Form 8-K dated June 1, 2000
(4) Incorporated by reference to BLSI's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2001
(5) Incorporated by reference to BLSI's Registration Statement on Form S-3 (No.
333-44298)
(6) Filed herewith.