1
As filed with the Securities and Exchange Commission on February 17, 1998
Registration No. 333-42185
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
EPL TECHNOLOGIES, INC.
(Exact name of Registrant as Specified in its Charter)
Colorado 84-0990658
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2 International Plaza, Suite 245
Philadelphia, Pennsylvania 19113-1507
(610) 521-4400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------
Paul L. Devine
Chairman, President and Chief Executive Officer
2 International Plaza, Suite 245
Philadelphia, Pennsylvania 19113-1507
(610) 521-4400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------
Copy to:
Raymond D. Agran, Esq.
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103-7599
(215) 665-8500
Approximate date of commencement of proposed sale to public:
As soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please 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: |_|
-----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
2
EXPLANATORY NOTE
This Amendment No. 2 is being filed solely to file certain exhibits to this
Registration Statement.
3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a list of the estimated expenses to be incurred by the
Registrant in connection with the issuance and distribution of the Shares being
registered hereby.
SEC Registration Fee $ 7,356
NASDAQ Listing Fee 7,500
Accountants' Fees and Expenses 10,000*
Legal Fees and Expenses 35,000*
Miscellaneous 144*
-------
TOTAL $60,000*
* As estimated and subject to change.
The Selling Shareholders will not bear any portion of the expenses of
registration of the Shares.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Article 109 of the Colorado Business Corporation Act, as amended
(the "CBCA"), the Company has the power to indemnify directors and officers
under prescribed circumstances and subject to certain limitations, against
certain costs and expenses, including attorneys' fees actually and reasonably
incurred in connection with any action, suit or proceedings, whether civil,
criminal, administrative or investigative, to which any of them is a party by
reason of his or her being a director or officer of the Company if it is
determined that he or she acted in accordance with the applicable standard of
conduct set forth in such statutory provisions.
Article VF. of the Company's Amended and Restated Articles of
Incorporation, as amended, and Article VI of the Company's Bylaws, as amended,
provide that the Company shall indemnify directors and officers of the Company
against all expenses, liability and loss incurred as a result of such person's
being a party to, or threatened to be made a party to, any proceeding (as
defined, which includes any threatened proceeding) by reason of the fact that he
or she is or was a director or officer of the Company or is otherwise the
subject of any such proceeding by reason of that person's relationship with the
Company, to the fullest extent authorized by the CBCA, if the person conducted
the activities in question in good faith, reasonably believed that the conduct
was in the Company's best interests or was not opposed to the Company's best
interests and, in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful. Article VI of the Bylaws, as amended, further
permits the Company to maintain insurance, at its expense, to protect itself and
any such director or officer of the Company against any such expenses, liability
or loss, whether or not the Company would have the power to indemnify such
person against such expenses, liability or loss under the Bylaws, as amended.
The Company has directors' and officers' liability insurance.
II-1
4
ITEM 16. EXHIBITS.
Exhibit
Number Description
3.1 Amended and Restated Articles of Incorporation of the Company, as
amended, (Incorporated by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1997 on file with the Securities and Exchange
Commission (the "SEC")).
3.2 Amended and Restated Bylaws of the Company, as amended.
(Incorporated by reference to Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
1997 on file with the SEC.)
4.1 Specimen Common Stock Certificate (Incorporated by reference to
Exhibit 4.1 to the Company's Annual Report on Form 10-K for the
eight months ended December 31, 1992 on file with the SEC).
5.1* Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the
validity of the shares of Common Stock being registered.
10.1 License Agreement dated as of April 29, 1997 by and between
Integrated Produce Systems, Inc. and Farmington Fresh.
10.2 Amendment to License Agreement, dated February 13, 1998, between
Integrated Produce Systems, Inc. and Farmington Fresh.
10.3 Operating Agreement of NewCornCo, LLC, dated July 19, 1996, between
the Registrant and Agricultural Innovation & Trade, Inc.
10.4 Fresh-Cut Corn Processing Agreement, dated July 22, 1996, between
NewCornCo, LLC, and Agricultural Innovation & Trade, Inc.
10.5 Assignment of Membership Interest, dated December 6, 1997,
between Agricultural Innovation & Trade, Inc. and Twin
Garden Sales, Inc.
10.6 Requirements Agreement, dated as of December 6, 1997, between
NewCornCo, LLC, and Twin Garden Farms.
10.7* Employment Agreement, dated January 1, 1998, between the Company and
William R. Romig
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Coopers & Lybrand, S.A.
23.3* Consent of Porter, Matthews & Marsden
23.4* Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in
Exhibit 5.1).
24.1* Power of Attorney (included in signature page).
__________
*previously filed
II-2
5
ITEM 17. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement.
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act")'
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would 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 SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the SEC
by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Township of Tinicum, Commonwealth of Pennsylvania, on
February 17, 1998.
EPL TECHNOLOGIES, INC.
/s/ Paul L. Devine
----------------------------
Paul L. Devine
Chairman, President and Chief Executive
Officer (Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Paul L. Devine Chairman, President and February 17, 1998
- --------------------- Chief Executive Officer
Paul L. Devine (Principal Executive Officer)
/s/ Timothy B. Owen* Secretary and Treasurer February 17, 1998
- ---------------------- (Principal Financial and
Timothy B. Owen Accounting Officer)
/s/ Robert D. Mattei* Director February 17, 1998
- --------------------
Robert D. Mattei
/s/ Ronald W. Cantwell* Director February 17, 1998
- ----------------------
Ronald W. Cantwell
*by: /s/ Paul L. Devine
-------------------
Paul L. Devine
attorney-in-fact
II-4
7
EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
- ------ ----------- -------------
3.1 Amended and Restated Articles of Incorporation
of the Company, as amended, (Incorporated by
reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1997 on
file with the SEC).
3.2 Amended and Restated Bylaws of the Company, as
amended, (Incorporated by reference to Exhibit
3.2 to the Company's Quarterly Report on Form
10-Q for the quarterly period ended September
30, 1997 on file with the SEC.)
4.1 Specimen Common Stock Certificate
(Incorporated by reference to Exhibit 4.1 to
the Company's Annual Report on Form 10-K for
the eight months ended December 31, 1992 on
file with the SEC).
5.1* Opinion of Ballard Spahr Andrews & Ingersoll, LLP
as to the validity of the shares of Common
Stock being registered.
10.1 License Agreement dated as of April 29, 1997 by
and between Integrated Produce Systems, Inc.
and Farmington Fresh.
10.2 Amendment to License Agreement, dated February 13,
1998, between Integrated Produce Systems, Inc.
and Farmington Fresh.
10.3 Operating Agreement of NewCornCo, LLC, dated
July 19, 1996, between the Company and
Agricultural Innovation & Trade, Inc.
10.4 Fresh-Cut Corn Processing Agreement, dated
July 22, 1996, between NewCornCo, LLC, and
Agricultural Innovation & Trade, Inc.
10.5 Assignment of Membership Interest, dated December 6, 1997,
between Agricultural Innovation & Trade, Inc. and Twin
Garden Sales, Inc.
10.6 Requirements Agreement, dated December 6, 1997,
between NewCornCo, LLC, and Twin Garden Farms.
10.7* Employment Agreement, dated January 1, 1998, between the Company
and William R. Romig
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Coopers & Lybrand, S.A.
23.3* Consent of Porter, Matthews & Marsden
23.4* Consent of Ballard Spahr Andrews & Ingersoll, LLP
(included in Exhibit 5.1).
24.1* Power of Attorney (included in signature page).
____________
*previously filed