<PAGE> 1
As filed with the Securities and Exchange Commission on May 15, 1997.
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ECOGEN INC.
(Exact name of registrant as specified in its charter)
Delaware 22-2487948
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
Mary E. Paetzold,
Vice President and Chief Financial Officer
Ecogen Inc.
2005 Cabot Boulevard West
Langhorne, Pennsylvania 19047
(215) 757-1590
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from time to
time, as determined by market conditions, after Registration Statement becomes
effective.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /x/
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed
Proposed Maximum Maximum
Title of Securities Amount to be Aggregate Price Per Aggregate Offering Amount of
to be Registered Registered Share Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 136,000 $2.72 (1) $369,920 (1) $112.09
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. Such estimate has been calculated in accordance with the Rule
457(c) and is based upon the average of the high and low prices per share of the
Registrant's Common Stock as reported by the National Association of Securities
Dealers Automated Quotation National Market System on May 8, 1997.
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 THE
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
<PAGE> 2
SUBJECT TO COMPLETION, DATED MAY 15, 1997
PROSPECTUS
ECOGEN INC.
136,000 SHARES OF COMMON STOCK
This Prospectus relates to the offering of up to an aggregate of
136,000 shares (the "Shares") of Common Stock, $.01 par value ("Common Stock"),
of Ecogen Inc., a Delaware corporation ("Ecogen" or the "Company") which may be
offered from time to time by the person (the "Selling Stockholder") named in
this Prospectus under the caption "Selling Stockholder."
The Shares may be offered for sale from time to time by the
Selling Stockholder in brokerage transactions at prevailing market prices or in
transactions at negotiated prices. No representation is made that any Shares
will or will not be offered for sale. The Company will not receive any proceeds
from the sale of the Shares. All costs, expenses and fees incurred in connection
with the registration of the Shares, estimated to be approximately $8,000, are
being borne by the Company, but all selling and other expenses incurred by the
Selling Stockholder will be borne by such Selling Stockholder. See "Plan of
Distribution."
The Selling Stockholder, and the brokers through whom sales of
Shares are made, may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act of 1933, as amended. In addition, any
profits realized by the Selling Stockholder or such brokers on the sale of the
Shares may be deemed to be underwriting commissions.
The Common Stock is traded on NASDAQ National Market System under
the symbol EECN. On May 9, 1997, the last sale price per share of the Common
Stock, as reported on the NASDAQ National Market System, was $2.50.
THE OFFERING INVOLVES A HIGH DEGREE OF RISK. FOR A DISCUSSION OF
CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN
THE SHARES, SEE "RISK FACTORS."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is May __, 1997.
<PAGE> 3
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission
("SEC") a Registration Statement on Form S-3 (together with all amendments and
exhibits thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act") with respect to the Shares offered
hereby. This Prospectus does not contain all of the information set forth in the
Registration Statement and the exhibits and schedules thereto. For further
information with respect to the Company and the offering, reference is made to
such Registration Statement, exhibits and schedules, which may be inspected
without charge at the SEC's office in Washington, D.C., and copies of all or any
part thereof may be obtained from such office after payment of fees prescribed
by the SEC.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the SEC. Copies
of reports, proxy statements and other information filed by the Company with the
SEC can be inspected and copied at the SEC's public reference facilities at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and, upon request, may be
made available at the SEC's regional offices at 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511, and at 7 World Trade Center, 13th Floor, New
York, New York 10048. In addition, the SEC maintains a Web-site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the SEC and the address of such site
is http://www.sec.gov.
The Company's Common Stock is traded on the NASDAQ National
Market System. Copies of reports, proxy statements and other information
concerning the Company can also be inspected at the offices of the National
Association of Securities Dealers, Inc., located at 1735 K Street, N.W.,
Washington, D.C. 20006.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
AVAILABLE INFORMATION .................................................. 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE ........................ 5
THE COMPANY ............................................................ 6
RISK FACTORS ........................................................... 7
SELLING STOCKHOLDER .................................................... 11
DESCRIPTION OF SECURITIES .............................................. 12
TRANSFER AGENT AND REGISTRAR ........................................... 13
PLAN OF DISTRIBUTION ................................................... 13
EXPERTS ................................................................ 13
LEGAL MATTERS .......................................................... 13
</TABLE>
3
<PAGE> 4
NO DEALER, SALESMAN OR OTHER PERSON IS AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER MADE HEREBY. IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY ECOGEN OR
THE SELLING STOCKHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY
PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR
SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF ECOGEN SINCE THE DATE HEREOF.
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<PAGE> 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the SEC are
incorporated herein by reference:
(a) The Company's Form 10-K Annual Report for the fiscal year
ended October 31, 1996, filed pursuant to Section 13 of 15(d) of the Exchange
Act.
(b) The Company's Form 10-Q Quarterly Report for the fiscal
quarter ended January 31, 1997, filed pursuant to Section 13 or 15(d) of the
Exchange Act.
(c) The description of the Company's Common Stock contained in
the Company's registration statement on Form 8-A (File No. 1-9579) filed under
the Exchange Act, including any amendments or reports filed for the purpose of
updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the
date of this Prospectus and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such reports and documents. Any statement contained in any document
incorporated by reference shall be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
The Company hereby undertakes to provide without charge to each
person, including any beneficial owner, to whom a prospectus is delivered, upon
the written or oral request of such person a copy of any and all the information
that has been incorporated by reference in this Prospectus (not including
exhibits to the information that is incorporated by reference unless such
exhibits are specifically incorporated by reference into the information that
this Prospectus incorporates.) Such request should be addressed to Ecogen Inc.,
2005 Cabot Boulevard West, Langhorne, Pennsylvania 19047, Attention: Mary E.
Paetzold, Vice President and Chief Financial Officer.
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<PAGE> 6
THE COMPANY
Ecogen, a Delaware corporation incorporated in 1983, is a
biotechnology company specializing in the development and marketing of
environmentally compatible products for the control of pests in agricultural and
related markets. Ecogen's product revenues are generated by sales of biological
insecticides derived from the bacterial microorganism Bacillus thuringiensis
("Bt"), various pest control and crop pollination products based on pheromone
and related technologies, and biological fungicide products for the control of
powdery mildew and post-harvest rot disease. In addition, Ecogen is developing
for introduction into certain niche markets insecticidal nematodes (microscopic
roundworms) for the control of insect pests. Ecogen was the first company to
sell genetically enhanced biological pesticide products which are registered
with the U.S. Environmental Protection Agency (the "U.S. EPA") for commercial
sale. In addition, Ecogen is the only Company to have received U.S. EPA
approvals to sell Bt insecticides incorporating a recombinant Bt strain.
Ecogen's principal executive offices are located at 2005 Cabot
Boulevard West, Langhorne, Pennsylvania 19047. Its telephone number is (215)
757-1590.
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<PAGE> 7
RISK FACTORS
An investment in the Shares offered hereby involves a high degree
of risk and should not be made by persons who cannot afford the loss of their
entire investment. In connection with the "safe harbor" provisions of the
Private Securities Litigation Reform Act of 1995, the Company is hereby
identifying important factors that could cause the Company's actual results to
differ materially from those projected in forward-looking statements of the
Company. The Company advises prospective investors not to place undue reliance
on any such forward-looking statements in light of the risks and uncertainties
to which they are subject. In evaluating the Company and its business,
prospective investors should carefully consider the following risk factors in
addition to the other information included herein.
LIQUIDITY AND LONG-TERM CAPITAL NEEDS. To date, the Company has
not generated positive cash flow from operations. Since the Company's inception
in 1983, the Company has financed its working capital needs primarily through
the sale of equity securities, revenues from research and development agreements
and product sales. The Company's working capital and working capital
requirements are affected by numerous factors and there is no assurance that
such factors will not have a negative impact on the Company's liquidity.
Principal among these factors are the success of its product commercialization
and marketing efforts and the efforts of its strategic partners in
commercializing and selling products based on the Company's technology, the
technological advantages and pricing of the Company's products, economic and
environmental considerations which impact agricultural crop production and the
agricultural sector generally, competitive conditions in agricultural pest
control market, and access to capital markets that can provide the Company with
the resources necessary to fund its strategic priorities. The Company will need
additional financing to support current levels of product development and
commercialization. There is no assurance that such financing will be available
on terms acceptable to the Company or at all. Over the long-term, the Company's
liquidity is dependent on market acceptance of its products and technology.
EARLY STAGE OF PRODUCT SALES. Ecogen is in its early years of
commercial sales of a line of biorational products for the control of pests in
agricultural and related markets. Currently, Ecogen's primary products include a
line of biological insecticide products, pheromone products and biofungicide
products. The Company intends to market and sell a number of newly introduced
products. There can be no assurance that Ecogen's existing or future products
will be commercially accepted.
LACK OF OPERATING PROFITS. Ecogen has incurred net losses since
its inception. Historically, Ecogen's working capital has been maintained
primarily through sales of capital stock and not through operations. To date,
Ecogen has not generated profits or positive cash flow from operations. There
can be no assurance that Ecogen will achieve operating profits or will generate
a positive cash flow. No assurance exists that the Company will be able to
market its products at prices and in quantities that will enable the Company to
achieve profitability.
DIVIDENDS. The Company has never paid a dividend on its Common
Stock and does not anticipate paying dividends on the Common Stock in the
foreseeable future. The Company currently intends to retain earnings, if any,
for use in its business. There can be no assurance that the Company will ever
pay dividends on its Common Stock.
7
<PAGE> 8
MANUFACTURING RISKS. A key to Ecogen's achieving its product
sales objectives is Ecogen's ability to mass produce its biorational products in
a timely and cost-effective manner. In order for Ecogen's product sales to be
profitable, Ecogen must be able to scale-up its production to meet anticipated
needs. Ecogen's production plans call for reliance upon third parties for most
of its product manufacturing, formulation and packaging requirements. Although
Ecogen believes that such third parties have sufficient operating capacity to
satisfy Ecogen's product manufacturing needs, the failure of any such party to
provide products to Ecogen under its product manufacturing arrangement could
have a material and adverse effect on Ecogen's ability to meet the demand for
its products.
DEPENDENCE ON KEY PERSONNEL. Ecogen's future success is dependent
upon the efforts and abilities of its employees. Ecogen has assembled a highly
qualified technical staff, many of whom have considerable prior experience with
bioinsecticides. The loss of certain key employees could materially and
adversely affect Ecogen's business. Ecogen's success will depend on its ability
to retain key employees and, if any depart, to replace them with personnel of
comparable scientific and management capability.
COMPETITION AND TECHNOLOGY. The markets in which Ecogen operates
are highly competitive. Competition is based principally on price and efficacy,
but safety and ease of application are also factors. Competitors of Ecogen
include manufacturers and marketers of synthetic chemical pesticides and
biopesticides including large chemical companies, such as Abbott Laboratories,
Novartis and Dow Elanco, as well as specialized biotechnology firms. Many of
these companies have considerably greater financial and marketing resources than
Ecogen. Competitors with respect to research and development activities also
include universities and public and private research organizations. In addition,
Ecogen's bioinsecticide products compete with certain transgenic seed and plant
products that have insecticidal capabilities. No assurance exists that the
competitive pressure will not result in a reduction in prices of the Company's
products which could adversely affect the Company's profitability. The
agricultural pesticide industry is undergoing, and is expected to continue to
undergo, rapid and significant technological change. Ecogen expects competition
to intensify as technical advances in the field are made and become more widely
known. There can be no assurance that developments by others will not render
Ecogen's products or technology obsolete or noncompetitive.
SEASONALITY. The bulk of the Company's products are marketed for
agricultural applications in the northern hemisphere, where the growing season
generally runs from spring until fall. Commercial introduction of the Company's
new products is contingent on, among other factors, completion of field testing
and receipt of required regulatory approvals. Field testing, regulatory approval
and commercial introduction of Ecogen's products not yet registered with the
U.S. EPA must occur at certain times before or during the growing season.
Unusual weather conditions during field tests or the failure to receive
regulatory approval prior to the growing season may require additional field
tests to be conducted in subsequent growing seasons, with resulting delays in
new product development and commercialization. In addition, because of the
seasonal nature of its business, Ecogen's product revenues are likely to be
concentrated in the fiscal quarters prior to and during a particular growing
season and may result in substantial variations in quarter-to-quarter financial
results. Product sales from year-to-year are also affected by unusual weather
conditions, such as droughts or floods, and the level of insect infestation in
grower areas.
GOVERNMENTAL REGULATION. Pesticides are subject to rigorous
testing and approval processes by the U.S. EPA and similar regulatory
authorities in certain states and in other countries. The process of obtaining
these approvals can be time-consuming and costly. There can be no assurance that
such approvals will be granted on a timely basis, if at all. Such delays in
obtaining necessary product registrations could have a significant impact upon
Ecogen's revenues and competitive position in the way of delayed product sales
and lost market opportunities. Additionally, while the U.S. EPA has in place a
registration procedure for
8
<PAGE> 9
biopesticides that is less burdensome in comparison to the registration
procedures for synthetic chemical pesticides, there can be no assurance that
additional requirements will not be added by the U.S. EPA which could make the
procedure more time-consuming and costly or that a particular product developed
in the future will qualify for registration as a biopesticide. There is no
assurance that any registrations that have been granted will not be revoked or
that, if the Company applies for any additional registrations or approvals, they
will be issued.
PROPRIETARY TECHNOLOGY AND TRADE SECRETS. Although Ecogen has
issued and has pending patents with respect to certain of its technologies,
there can be no assurance that any additional patents will be issued or that any
issued patents will provide adequate protection for Ecogen's products or
processes. Although Ecogen pursues a policy of seeking patent protection, both
in the United States and abroad, for its novel microorganisms and related
biopesticide compositions of matter and processes, the issuance of a patent is
not conclusive as to its validity or enforceability, nor does it provide the
patent holder with freedom to operate without infringing the patent rights of
others. A patent could be challenged by litigation and, if the outcome of such
litigation was adverse to the patent holder, competitors could be free to use
the subject matter covered by the patent, or the patent holder could be required
to license the technology to others.
Because of the uncertainty concerning patent protection, Ecogen
also relies upon unpatented proprietary technology and trade secrets. All Ecogen
employees and consultants sign confidentiality agreements under which they agree
not to use or disclose Ecogen's confidential information as long as that
information remains proprietary or, in some cases, for fixed time periods. There
can be no assurance that others have not developed or will not independently
develop such proprietary technology or substantially equivalent information and
techniques or that secrecy will not be breached. Ecogen's ability to compete
will depend, in part, on maintaining the proprietary nature of its technology.
Ecogen is aware that substantial research efforts in
biotechnology are taking place at universities, government laboratories and
public corporations around the world and that numerous patent applications have
been filed, and that patents have been issued, relating to fundamental
technologies and to specific biological pesticide products and processes. The
costs associated with the enforcement of Ecogen's patents and with obtaining
licenses, if required, under patents held by third parties can be significant
and thus could materially and adversely affect Ecogen's business. There can be
no assurance that Ecogen could obtain licenses with respect to such patents on
commercially favorable terms, if at all.
PRODUCT LIABILITY. Product liability claims may be asserted with
respect to the Company's technology or products. Although Ecogen currently has
product liability insurance, there can be no assurance that Ecogen has obtained
sufficient insurance coverage, or that Ecogen will have sufficient resources, to
satisfy any product liability claims. A successful product liability claim in
excess of the Company's insurance coverage could have a material adverse effect
on the Company.
STOCK PRICE VOLATILITY. The market prices for shares of common
stock and other securities of biotechnology companies (including Ecogen)
historically have been extremely volatile. Factors such as announcements of
technical innovations and new commercial products by Ecogen's current or
potential competitors, adverse results in Ecogen's field tests or product sales,
adverse litigation, adverse legislation, patent or proprietary rights
developments or market conditions in general may have a significant impact on
the market prices of the Shares offered hereby. In addition, the future sale of
a substantial number of shares of Common Stock by existing stockholders or by
Ecogen may have an adverse impact on the market price of the Shares offered
hereby. There can be no assurance that the trading price of the Company's Common
Stock will remain at or near its current level.
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<PAGE> 10
DILUTION. Ecogen has granted options to purchase Common Stock
under employee benefit plans and agreements with the management and directors of
Ecogen. Warrants, options and other rights to purchase Common Stock are also
outstanding under financing arrangements and other transactions. Ecogen
regularly examines opportunities to expand its technology base and product line
through means such as licenses, joint ventures and acquisition of assets or
ongoing businesses (including the acquisition of outstanding minority interests
in its Ecogen Technology I Incorporated subsidiary) and may issue securities in
connection with such transactions. Ecogen may issue additional stock, warrants
and/or options in order to raise funds or for other purposes in the future and
may also issue additional securities in connection with its employee benefit
plans. During the terms of any such options and warrants, the holders thereof
have an opportunity to profit from a future rise, if any, in the market price of
the Common Stock. The exercise of any such outstanding options or warrants or
the issuance of any such additional warrants, options or other equity or
derivative securities of the Company may adversely affect the market value of
the Shares offered hereby or adversely affect the terms on which Ecogen may
obtain additional equity financing.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS. Certain
statements contained or incorporated by reference in this Prospectus, including
without limitation statements containing the words "believes," "anticipates,"
"intends," "expects," and words of similar import, constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. Such forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause the actual results, performance
or achievements of the Company, or industry results, to be materially different
from any future results, performance or achievements expressed or implied by
such forward-looking statements. Such factors include, among others, those set
forth in this Prospectus, including under the caption "Risk Factors." Given
these uncertainties, prospective investors are cautioned not to place undue
reliance on such forward-looking statements. The Company disclaims any
obligation to update any such statements or to publicly announce any updates or
revisions to any of the forward-looking statements contained herein to reflect
any change in the Company's expectation with regard thereto or any change in
events, conditions, circumstances or assumptions underlying such statements.
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SELLING STOCKHOLDER
The following table sets forth as of May 12, 1997, and upon
completion of the offering described in this Prospectus, information with regard
to the beneficial ownership of the Company's Common Stock by the Selling
Stockholder. Such Selling Stockholder may not have a present intention of
selling the Shares and may offer less that the amount of Shares indicated.
<TABLE>
<CAPTION>
Shares Beneficially Owned
-------------------------
Shares Beneficially Shares Beneficially
Owned Prior to Offering Owned After Offering
----------------------- --------------------
Shares to
Name and Address Number Percentage be Offered Number Percentage
------ ---------- ---------- ------ ----------
<S> <C> <C> <C> <C> <C>
PruTech Research & Development Partnership II(1) 215,165 2.7% 136,000 79,165 1.0%
440 Mission Court
Suite 250
Fremont, CA 94539
</TABLE>
- --------
(1) Patrick Owen Burns, Vice President of R&D Funding Corp., a general partner
of PruTech Research & Development Partnership II, was formerly a director of the
Company. He resigned on August 21, 1996.
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DESCRIPTION OF SECURITIES
The following description does not purport to be complete and is
subject in all respects to the applicable provisions of the Company's Restated
Certificate of Incorporation, as amended, and By-Laws.
The authorized capital stock of the Company consists of
42,000,000 shares of Common Stock, par value $.01 per share and 7,500,000 shares
of Preferred Stock, par value $.01 per share. At April 30, 1997, 7,989,919
shares of Common Stock were outstanding and no shares of Preferred Stock were
outstanding.
Common Stock
The holders of shares of Common Stock are entitled to one vote
for each share of Common Stock held on all matters on which holders of Common
Stock are entitled to vote. Holders of Common Stock are entitled to receive
dividends when and as declared by the Board of Directors out of funds legally
available therefor and are entitled to receive on a pro rata basis all assets of
the Company legally available for distribution to the stockholders in the event
of the liquidation, dissolution or winding up of the Company. Holders of Common
Stock have no preemptive, subscription, redemption or conversion rights, and no
right to vote cumulatively for the election of directors.
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TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock
is American Stock Transfer & Trust Company, 40 Wall Street, New York, New York
10005.
PLAN OF DISTRIBUTION
Any or all of the Shares may be offered and sold to purchasers
directly or on behalf of such Selling Stockholder from time to time in brokerage
transactions, in the over-the-counter market, in privately negotiated
transactions, on any stock exchange on which the Shares may be listed at the
time of the sale or otherwise at prices prevailing in such market or exchange or
as may be negotiated at the time of sale. Additionally, agents, dealers or other
financial institutions may acquire the Shares or interests therein as pledgee
and may, from time to time, effect distributions of such Shares or interests in
such capacity. The Shares may also be publicly offered through agents,
underwriters or dealers. In such event, the Selling Stockholder may enter into
agreements with respect to any such offering. Such underwriters, dealers or
agents that participate in the distribution or the Shares may be deemed to be
concessions received by them may be deemed to be underwriting discounts and
commissions, under the Securities Act. The Company will not receive any of the
proceeds from the sale of the Shares by the Selling Stockholder.
In order to comply with the securities laws of certain states,
sales of the Shares to the public in such states may be made only through
broker-dealers who are registered or licensed in such states. Sales of Shares
must also be made by the Selling Stockholder in compliance with other applicable
state securities laws and regulations.
The Shares may be sold from time to time in one or more
transactions at a fixed offering price, which may be changed, or at varying
prices determined at the time of sale or at negotiated prices. Such prices will
be determined by the Selling Stockholder or by agreement between the Selling
Stockholder and underwriters, dealers or agents.
EXPERTS
The consolidated financial statements and schedule of Ecogen as
of October 31, 1996 and 1995, and for the years ended October 31, 1996 and 1995
and the ten month period ended October 31, 1994, have been incorporated by
reference herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters relating to the Shares, including the
validity thereof, will be passed upon for the Company by Paul, Hastings,
Janofsky & Walker LLP, counsel for the Company. Esteban A. Ferrer, a member of
Paul, Hastings, Janofsky & Walker LLP, is a director of the Company.
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Part II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses payable by
the Company in connection with the sale of the Shares being registered hereby.
All of the amounts shown are estimates except the registration fee.
<TABLE>
<S> <C>
Registration fee............................... $ 112.09
----------
Legal fee and expenses......................... 5,000.00
----------
Accounting fees and expenses................... 2,000.00
----------
Miscellaneous.................................. 887.91
----------
TOTAL $ 8,000.00
----------
</TABLE>
Item 15. Indemnification of Directors and Officers.
Article VIII of the By-Laws of the Company, as amended, provides
generally for indemnification of officers, directors, agents and employees of
the Company to the extent authorized by the General Corporation Law of the State
of Delaware. Pursuant to Section 145 of the Delaware General Corporation Law, a
corporation generally has the power to indemnify its present and former
directors, officers, employees and agents against expenses incurred by them in
connection with any suit to which they are, or are threatened to be made, a
party by reason of their serving in such positions so long as they acted in good
faith and in a manner they reasonably believed to be in, or not opposed to, the
best interests of a corporation, and with respect to any criminal action, they
had no reasonable cause to believe their conduct was unlawful. With respect to
suits by or in the right of a corporation, however, indemnification is not
available if such person is adjudged to be liable for negligence or misconduct
in the performance of this duty to the corporation unless the court determines
that indemnification is appropriate. In addition, a corporation has the power to
purchase and maintain insurance for such persons. The statute also expressly
provides that the power to indemnify authorized thereby is not exclusive of any
rights granted under any by-law, agreement, vote of stockholder or disinterested
directors, or otherwise.
As permitted by Section 102 of the Delaware General Corporation
Law, the Company's stockholders have approved and incorporated provisions into
the Company's Restated Certificate of Incorporation eliminating a director's
personal liability for monetary damages to the company and its stockholders
arising from a breach of a director's fiduciary duty, except for liability under
Section 174 of the Delaware General Corporation Law or liability for any breach
of the director's duty of loyalty to the Company or its stockholders, for acts
or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law or for any transaction in which the director derived an
improper personal benefit.
14
<PAGE> 15
The Company has entered into indemnification agreements with
directors and officers. These agreements provide substantially broader indemnity
rights than those provided under the Delaware General Corporation Law and the
Company's By-Laws. The indemnification agreements are not intended to deny or
otherwise limit third party or derivative suits against the Company or its
directors or officers, but to the extent a director or officer were entitled to
indemnity or contribution under the indemnification agreement, the financial
burden of a third party suit would be borne by the Company, and the Company
would not benefit from derivative recoveries against the director or officer.
Such recoveries would accrue to the benefit of the Company but would be offset
by the Company's obligations to the director or officer under the
indemnification agreement.
The above discussion of the Company's By-Laws, Restated
Certificate of Incorporation and indemnification agreements and of Section 145
of the Delaware General Corporation Law is not intended to be exhaustive and is
qualified in its entirety by such By-Laws, Restated Certificate of
Incorporation, indemnification agreements and statute.
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1* Restated Certificate of Incorporation of Ecogen Inc., filed
with the Secretary of State of the State of Delaware on
October 16, 1992. (Form 10-K for fiscal year ended December
31, 1992.)
3.2* By-Laws of Ecogen Inc., as amended. (Form S-1 Registration
Statement, File No. 33-14119.)
5. Opinion of counsel as to legality of securities being
registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of counsel. (The consent of counsel is included in
Exhibit 5.)
24. Power of Attorney executed by certain officers of the
Company and individual members of the Board of Directors
authorizing certain officers of the Company to file
amendments to the Company's Registration Statement on Form
S-3 (contained on the signature page attached hereto).
</TABLE>
- -----------------------
* These items are hereby incorporated by reference from the exhibits of the
filing or report indicated and are made a part of this Registration
Statement.
15
<PAGE> 16
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus
required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus
any facts or events arising after the effective date of this 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 this Registration Statement; and
(iii) to include any material
information with respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs
(A)(1)(i) and (ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13(a) or Section 15(d) of 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 the 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 Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or 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 for 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.
16
<PAGE> 17
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 Langhorne, the Commonwealth of Pennsylvania, on May
14, 1997.
ECOGEN INC.
By: /s/ James P. Reilly, Jr.
----------------------------------------
Name: James P. Reilly, Jr.
Title: Chairman and Chief
Executive Officer
17
<PAGE> 18
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James P. Reilly, Jr. and Mary E.
Paetzold, or either of them, his or her attorney-in-fact, each with the power of
substitution and to act alone, for him or her in any and all capacities, to sign
any amendments to this Registration Statement, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby notifying and confirming all that
each of said attorney-in-fact, or his or her substitute or substitutes, may do
or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 14th day of May, 1997.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ James P. Reilly, Jr. Chairman of the Board, President May 14, 1997
- -------------------------------- and Chief Executive Officer
James P. Reilly, Jr. (Principal Executive Officer)
/s/ Mary E. Paetzold Vice President and Chief Financial May 14, 1997
- -------------------------------- Officer and Director
Mary E. Paetzold (Principal Financial and Accounting
Officer)
/s/ John E. Davies Director May 14, 1997
- --------------------------------
John E. Davies
Director May __, 1997
- --------------------------------
Jack D. Early
/s/ Esteban A. Ferrer Director May 14, 1997
- --------------------------------
Esteban A. Ferrer
/s/ Lowell N. Lewis Director May 14, 1997
- --------------------------------
Lowell N. Lewis
Director May __, 1997
- --------------------------------
John R. Sutley
</TABLE>
18
<PAGE> 19
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Sequential Page
- ----------- ----------- ---------------
<S> <C> <C>
5 Opinion of counsel as to legality 20
of securities being registered
23.1 Consent of KPMG Peat Marwick LLP 22
</TABLE>
19
<PAGE> 1
EXHIBIT 5
Opinion of Counsel as to Legality of Securities Being Registered
20
<PAGE> 2
May 15, 1997
Ecogen Inc.
2005 Cabot Boulevard West
Langhorne, Pennsylvania 19047
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as special counsel to Ecogen Inc. (the "Company")
in connection with the preparation and filing with the Securities and Exchange
Commission (the "Commission") of a Registration Statement on Form S-3 (the
"Registration Statement"), pursuant to which the Company is registering for sale
136,000 shares (the "Shares") of Common Stock of the Company, which may be
offered from time to time by the person named in the Prospectus which is part of
the Registration Statement as the Selling Stockholder. You have requested that
we furnish our opinion as to the matters set forth below.
In this connection, we have examined the Registration Statement
as filed with the Commission on the date hereof, the Restated Certificate of
Incorporation and By-laws of the Company, each as in effect as of the date
hereof, records of corporate proceedings of the Company, and such other
documents as we have deemed relevant as a basis for this opinion, in each case
as made available to us by the Company. We have assumed the legal capacity to
sign, and the genuineness of the signatures, of all persons executing
instruments or documents examined or relied upon by us and have assumed the
conformity with original documents of all copies of documents examined by us.
Based on the foregoing, and in reliance thereon, we are of the
opinion that the Shares have been duly authorized and are legally and validly
issued, fully paid and nonassessable.
We hereby consent to the reference to this Firm under the caption
"Legal Matters" in the Prospectus and to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Paul, Hastings, Janofsky & Walker LLP
21
<PAGE> 1
EXHIBIT 23.1
Consent of KPMG Peat Marwick LLP
22
<PAGE> 2
EXHIBIT 23.1
The Board of Directors
Ecogen Inc.
We consent to the use of our report incorporated
herein by reference and to the reference to our firm under the heading "Experts"
in the prospectus.
KPMG Peat Marwick LLP
Short Hills, New Jersey
May 14, 1997
23
