<PAGE>
As filed with the Securities and Exchange Commission on February 27, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
UTILX CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<CAPTION>
<S> <C>
DELAWARE 91-1171716
- -------------------------------------------------------------- -------------------------------------
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number)
</TABLE>
P.O. BOX 97009
KENT, WASHINGTON 98064-9709
(253) 395-0200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
CRAIG E. DAVIES
CHIEF EXECUTIVE OFFICER
UTILX CORPORATION
P.O. BOX 97009
KENT, WASHINGTON 98064-9709
(253) 395-0200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
Copies to:
EVELYN CRUZ SROUFE
PERKINS COIE LLP
1201 THIRD AVENUE, 40TH FLOOR
SEATTLE, WASHINGTON 98101-3099
(206) 583-8888
-----------------------------
Approximate date of commencement of proposed sale to the public: FROM TIME TO
TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS DETERMINED BY
THE SELLING SHAREHOLDERS.
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 of 1933, 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 of 1933, 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
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
TITLE OF EACH CLASS PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED AMOUNT TO BE AGGREGATE OFFERING REGISTRATION FEE
REGISTERED PRICE(1)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock, par value $.01 per share ................. 182,474 shares $1,077,737 $318
- -------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based on the high and
low sales prices of the Common Stock on February 23, 1998 ($5.90625).
-------------------------
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 SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
PROSPECTUS
- ----------
182,474 Shares
UTILX CORPORATION
--------------------------
COMMON STOCK
--------------------------
This Prospectus relates to up to 182,474 shares of Common Stock, par value
$0.01 per share (the "Common Stock") of UTILX Corporation ("UTILX" or the
"Company"). The Common Stock is traded on the Nasdaq National Market under the
symbol "UTLX." On February 26, 1998, the last reported sales price of the
Common Stock on the Nasdaq National Market was $6.0625 per share.
--------------------------
The shares of Common Stock of UTILX offered hereby (the "Shares") may be
sold from time to time by a certain stockholder of the Company (the "Selling
Stockholder") in transactions in the over-the-counter market through the Nasdaq
National Market ("Nasdaq"), or on one or more other securities markets and
exchanges, in privately negotiated transactions, or otherwise, at fixed prices
that may be changed, at market prices prevailing at the time of sale, at prices
relating to such prevailing market prices or at negotiated prices. The Selling
Stockholder may effect such transactions by selling the Shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions, or commissions from the Selling Stockholder and/or the
purchasers of the Shares for whom such broker-dealers may act as agents or to
whom they may sell as principals, or both. The Company will not receive any of
the proceeds from the sale of the Shares. The expenses incurred in registering
the Shares, including legal and accounting fees, will be paid by the Company.
The Shares offered hereby were acquired by the Selling Stockholder from the
Company on January 29, 1998, in connection with the exercise of a warrant and a
holder's put option pursuant to a Stock Purchase Warrant dated June 14, 1993,
and are "restricted securities" under the Securities Act of 1933, as amended
(the "Act"), prior to their sale hereunder. This Prospectus has been prepared
for the purpose of registering the Shares under the Act to allow for future
sales by the Selling Stockholder to the public without restriction. In
connection with any sales, the Selling Stockholder and any brokers participating
in such sales may be deemed to be "underwriters" within the meaning of the Act.
See "Plan of Distribution."
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
BEGINNING ON PAGE 5.
-----------------------------
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 _________, 1998.
<PAGE>
TABLE OF CONTENTS
Forward-Looking Information. . . . . . . . . . . . . . . . . . . . . . . . 2
Available Information. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Documents
by Reference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Selling Stockholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
FORWARD-LOOKING INFORMATION
This Prospectus includes "forward-looking statements" within the meaning of
the Private Securities Litigation Reform Act of 1995 (the "PSLRA"). The PSLRA
provides a "safe harbor" for such statements to encourage companies to provide
prospective information about themselves so long as such information is
identified as forward-looking and is accompanied by meaningful cautionary
statements identifying important factors that could cause actual results to
differ materially from those projected in the information. All statements other
than statements of historical fact made in this Prospectus or incorporated by
reference are forward-looking. In particular, the statements herein regarding
industry prospects and the Company's future results of operations or financial
position are forward-looking statements. Forward-looking statements represent
management's current expectations and are inherently uncertain. Investors are
warned that the Company's actual results may differ significantly from
management's expectations and, therefore, from the results discussed in such
forward-looking statements. Factors that might cause such differences include,
but are not limited to, the "Risk Factors" described herein.
AVAILABLE INFORMATION
UTILX is subject to the information and reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at certain regional offices of the Commission
located at Northwest Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and 7 World Trade Center, 13th Floor, New York, New
York 10048. Copies of such materials can be obtained at prescribed rates from
the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549. In addition, the Commission maintains a web site
(http://www.sec.gov) that contains certain reports, proxy statements and other
information regarding UTILX. Material filed by UTILX can also be inspected at
the offices of the National Association of Securities Dealers, Inc., Reports
Section, 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a registration statement on
Form S-3 (together with all amendments and exhibits, the "Registration
Statement") under the Securities Act. This Prospectus does not contain all of
the information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission. The
Registration Statement and any amendments thereto, including exhibits filed as a
part thereof, also are available for inspection and copying as set forth above.
Statements contained in this Prospectus as to the contents of any contract or
other document referred to herein are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement, each such statement being qualified
in all respects by such reference.
2
<PAGE>
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE THAT ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH
PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED,
UPON SUCH PERSON'S WRITTEN OR ORAL REQUEST, COPIES OF ANY SUCH DOCUMENTS, OTHER
THAN EXHIBITS TO SUCH DOCUMENTS THAT ARE NOT SPECIFICALLY INCORPORATED BY
REFERENCE THEREIN. REQUESTS SHOULD BE DIRECTED TO THE SECRETARY, UTILX
CORPORATION, P.O. Box 97009, KENT, WASHINGTON 98064-9709, TELEPHONE NUMBER
(253) 395-0200.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 0-16821)
pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
March 31, 1997;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
June 30, September 30 and December 31, 1997; and
3. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission on
April 29, 1988, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of any offering of securities made by this Prospectus
shall be deemed to be incorporated by reference into this Prospectus and to be a
part hereof from their respective dates of filing.
Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein 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. Any statement so modified shall not be deemed to
constitute a part of this Prospectus except as so modified, and any statement so
superseded shall not be deemed to constitute part of this Prospectus.
THE COMPANY
UTILX is a specialty service provider to electric, telecommunications,
natural gas and other utilities and contractors, primarily in the United
States. Additionally, UTILX provides drilling equipment to contractors and
other users outside of the United States. The Company's primary service,
which it markets primarily under the FlowMole-Registered Trademark- name, is
installing and replacing underground cables and pipes using its trenchless
drilling technology. The Company sells its FlowMole drilling systems and
related products in international markets. The Company also provides its
CableCure-Registered Trademark- service to utility customers for injecting a
silicon fluid into electric and telephone cables to repair or prevent water
damage. The Company acquired worldwide exclusive licensing rights to the
CableCure process in 1991. UTILX is a Delaware corporation. The mailing
address of UTILX's principal executive offices is P.O. Box 97009, Kent,
Washington 98064-9709, and its telephone number is (253) 395-0200.
3
<PAGE>
RISK FACTORS
THE COMPANY IDENTIFIES THE FOLLOWING IMPORTANT FACTORS WHICH COULD CAUSE
ACTUAL RESULTS TO DIFFER MATERIALLY FROM ANY RESULTS THAT MIGHT BE PROJECTED,
FORECAST, ESTIMATED OR BUDGETED BY THE COMPANY AS FORWARD-LOOKING INFORMATION.
ALL SUCH FACTORS ARE DIFFICULT TO PREDICT AND THE MAJORITY ARE BEYOND THE
CONTROL OF THE COMPANY. PROSPECTIVE PURCHASERS SHOULD CAREFULLY REVIEW THE
INFORMATION CONTAINED ELSEWHERE IN THIS PROSPECTUS AND SHOULD PARTICULARLY
CONSIDER THE INFORMATION STATED BELOW. SEE "FORWARD-LOOKING INFORMATION."
COMPETITION
The Company has experienced a long-term trend of declining prices for
guided boring (FlowMole) services, particularly for smaller diameter utility
installations, due to competitive pressures and changes in utility bidding
practices. This trend has also caused the Company to lower its prices for
CableCure injection services, which are priced at a discount to replacement
costs, including replacement via guided boring. In addition, the Company's
utility customers are increasing their requests for "turnkey" installation,
replacement and restoration services, requiring their drilling contractors to
take responsibility for switching circuits, terminating circuits, and other
non-incidental tasks. These tasks require additional equipment and labor, and
the cost increases can offset any price increase the Company is able to
negotiate for the expansion of its services. The overall trend of falling
prices for installation and replacement services is expected to continue into
the future, as more customers award work based on competitive bidding, more
customers require their drilling contractors to perform additional tasks as part
of the drilling contract, and more conventional contractors acquire drilling
capabilities in order to enter into this segment of the construction industry.
This trend will continue to put downward pressure on the market price for
CableCure Services. The Company cannot predict the ultimate duration or the
magnitude of these decreases.
SEASONAL FACTORS
Weather and other seasonal factors may decrease the Company's revenues and
profits in any given period. Adverse weather may preclude the Company from
operating its FlowMole drilling systems or providing its CableCure services at
certain times of the year. In addition, the Company believes that the regular
budgetary cycles of certain of its North American utility customers tend to
concentrate demand for the Company's services during the third quarter of its
fiscal year (the fourth quarter of the calendar year), although other budgetary
factors described below may override this trend in any given quarter. As a
result of these factors, results of operation in any given fiscal quarter are
not necessarily indicative of results in any other fiscal quarter.
UTILITIES' BUDGETARY CONSIDERATIONS
Budgetary considerations arising from unfavorable regulatory determinations
on matters such as rate-setting, capitalization of services performed by the
Company, or siting of power production facilities; or from reductions in new
housing starts, reductions in electric utility revenues due to mild weather, and
general economic downturns have affected the ability of some of the Company's
utility customers to sustain their cable replacement or other maintenance
programs and accordingly adversely impact the Company's revenues and profits.
Although the Company has broadened its customer base, one customer generates a
significant portion of the Company's consolidated revenues, and a small number
of customers generate more than half of its CableCure revenues. Because cable
replacement, restoration and other maintenance programs are, to a substantial
extent, deferrable and the Company's contracts with its utility customers permit
termination of orders on relatively short notice, postponement or cancellation
of such programs by customers can interject substantial volatility into the
Company's revenues and profits. Such factors resulted in deferrals of
significant CableCure projects scheduled for the third quarter of fiscal 1998.
DOW CORNING CORPORATION
The Company purchases its CableCure fluid exclusively from Dow Corning. In
May 1995, Dow Corning filed for protection under Chapter 11. While the Company
has been informed by Dow Corning that it intends to continue the CableCure
business, there can be no assurance that Dow Corning or the bankruptcy court
will not take action to amend or terminate the CableCure license agreement.
4
<PAGE>
FLORIDA SUBCONTRACT NEGOTIATIONS
The Company is a party to an agreement (the "underlying agreement") under
which it utilizes a single Florida-based subcontractor for performance of
certain CableCure injection tasks for Florida Power & Light through
January 2000. The underlying agreement calls for the Company to pay the
subcontractor a percentage of the amount charged to Florida Power & Light for
certain services defined in the underlying agreement. The Company agreed to new
pricing in its contract with Florida Power & Light in the first quarter of
fiscal 1998. The Company is in a dispute with this subcontractor, over amounts
to be paid to the subcontractor effective April 1, 1997. An interim agreement,
subject to retroactive adjustments, was agreed to by the Company and the
subcontractor for the period April 1, 1997 to May 31, 1997. The subcontractor is
continuing to perform the injection services required by the Company under the
underlying agreement. The Company believes that payments made to the
subcontractor subsequent to April 1, 1997 are in conformity with the underlying
agreement. The subcontractor claims to be entitled to a percentage of
additional amounts. On October 31, 1997, the Company filed suit against the
subcontractor in Florida, seeking resolution of the price dispute, among other
matters. There can be no assurance that the final price settled upon for
payments to the subcontractor will not result in any adverse effect on the gross
profit realized by the Company under its contract with Florida Power & Light.
Based on the footage injected by the subcontractor during the first three
quarters of fiscal 1998, management of the Company does not anticipate that the
final resolution of this matter will result in any material adverse impact on
the results of operations or on the Company's consolidated financial position or
liquidity. The subcontractor may continue injection services until this matter
is resolved, which will serve to increase the total amount of footage subject to
the pricing dispute.
YEAR 2000 COMPLIANCE
The Company has determined that many of its computer software applications
do not accurately adjust for the year 2000. The Company has decided to replace
virtually all of its management information systems with new enterprise wide
software. The software selected is certified by the vendor to be year 2000
compliant. The Company expects to incur an increased level of operating
expenses during the fourth quarter of fiscal 1998, largely due to costs
associated with the planning and design of the software. Total expenditures are
anticipated to be between $2 million and $3 million, including internal labor
costs. However, there can be no assurance that the Company will not determine
that it is necessary to incur additional expenditures, which could be material.
The implementation of the new system is scheduled for no later than the third
quarter of fiscal 1999.
The Company has begun contacting its major vendors and customers to obtain
their assurance that systems affecting the Company are year 2000 compliant. To
date, the Company is unaware of any situations of noncompliance that would
adversely affect its operations. The Company has also analyzed its equipment
and its operations and has not identified any processes that depend upon
software that is date sensitive or otherwise subject to risks associated with
the year 2000.
REVENUES FROM ASIA
Due to adverse developments affecting the general economy in many Asian
countries, the Company does not expect significant levels of sales of FlowMole
drilling equipment to customers in Asia in the foreseeable future. However,
because the Company's largest markets for equipment sales in Asia are Japan and
Taiwan, countries less adversely impacted by economic factors than other Asian
countries, the Company does expect to continue to complete some level of
equipment sales. Also, the Company's Korean CableCure licensee has temporarily
suspended much of its operations. Revenue from Korea CableCure activities was
not material in the nine months ended December 31, 1997.
Because of the adverse developments affecting the general economy in Asian
countries, the Company may be required to pay for drilling systems that it
ordered in early 1997 in advance of opportunities to sell those drilling
systems. The Company ordered 55 drilling systems, and the delivery of 34 drills
and 24 field power units had been accepted as of December 31, 1997. The Company
will be required to accept delivery of the remaining drilling systems by the end
of fiscal 1999. The total committed expenditures for such equipment to be
delivered after December 31, 1997 is approximately $2.5 million. This equipment
may also be used to add capacity in the Company's North American operations;
however, there can be no assurance of the Company's ability to absorb all of the
remaining drilling systems in its internal operations.
5
<PAGE>
FOREIGN CURRENCY FLUCTUATIONS
The Company's financial results are affected by fluctuations in certain
foreign currencies, particularly the British Pound Sterling and the German
Deutschemark. Most of the Company's exposure to foreign currency fluctuations
is derived from the operations of the Company's wholly-owned subsidiary in the
United Kingdom.
SELLING STOCKHOLDER
The following table provides certain information regarding the Selling
Stockholder and the number of Shares being offered by it.
<TABLE>
<CAPTION>
SHARES THAT MAY BE SOLD SHARES BENEFICIALLY OWNED AFTER OFFERING
-------------------------- ----------------------------------------
SHARES BENEFICIALLY PERCENTAGE OF
OWNED PRIOR TO COMMON STOCK PERCENTAGE OF COMMON
NAME AND ADDRESS OFFERING AMOUNT OUTSTANDING AMOUNT STOCK OUTSTANDING
- ---------------------------------- ------------ ------------ ----------- ------------ ------------------------
<S> <C> <C> <C> <C> <C>
FlowMole Partners, a Research and 182,474 182,474 2.5% 0 --
Development Limited Partnership, a
Washington limited partnership
c/o Waterjet Technology, Inc.
General Partner
21414 68th Ave. South
Kent, Washington 98032
</TABLE>
The securities offered hereby are for the account of FlowMole Partners, a
Research and Development Limited Partnership, a Washington limited partnership
("FM Partners"). Prior to the offering contemplated hereby, FM Partners
beneficially owned 182,474 shares. Up to 182,474 shares may be sold in the
offering.
In the past, UTILX has had several contracts with FM Partners, including
research and development agreements and licensing agreements. Pursuant to a
Settlement Agreement dated June 14, 1993, under which disputes concerning
various agreements between the parties were settled, FM Partners received a
Stock Purchase Warrant (the "Warrant") to purchase 600,000 shares of the
Company's Common Stock at $5.50 per share. FM Partners acquired the Shares on
January 29, 1998, when it exercised the Warrant and a holder's option, which
allowed FM Partners to put the shares back to the Company at their current
value. As permitted by the Warrant, the Company elected to pay the difference
between the Warrant exercise price and the current value of the Warrant shares
by issuing 182,474 shares of Common Stock to FM Partners.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Common Stock
offered hereby.
PLAN OF DISTRIBUTION
The shares of Common Stock of UTILX are traded on the Nasdaq National
Market. The Shares may be sold from time to time by the Selling Stockholder in
transactions in the over-the-counter market through Nasdaq, or on one or more
other securities markets and exchanges, in privately negotiated transactions, or
otherwise, at fixed prices that may be changed, at market prices prevailing at
the time of sale, at prices relating to such prevailing market prices or at
negotiated prices. The Selling Stockholder may effect such transactions by
selling the Shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions, or commissions from
the Selling Stockholder and/or the purchasers of the Shares for whom such
broker-dealers may act as agents or to whom they may sell as
6
<PAGE>
principals, or both. In connection with any sales, the Selling Stockholder and
any broker-dealers who participate in a sale of shares of Common Stock may be
deemed to be "underwriters" as defined in the Securities Act. Any commissions
paid or any discounts or concessions allowed to any such broker-dealers, and, if
any such broker-dealers purchase shares of Common Stock as principal, any
profits received on the resale of such shares of Common Stock, may be deemed to
be underwriting discounts and commissions under the Securities Act.
The rules of the Commission generally prohibit underwriters, brokers,
dealers and certain other persons engaged or participating in the distribution
of the Shares from making a market in such Shares during the "cooling off"
period preceding the commencement of such distribution.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Shares may not be sold unless it has been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Pursuant to a Registration Rights Agreement with the Selling Stockholder,
UTILX has agreed to bear all expenses of registering the shares. Additionally,
UTILX has agreed to indemnify the Selling Stockholder, and any underwriters
offering securities on behalf of the Selling Stockholder, against certain
liabilities, including liabilities under the Act.
There can be no assurance that the Selling Stockholder will sell any or all
of the shares of Common Stock offered hereunder. It is anticipated that this
offering will remain in effect for 120 days or until the shares offered
hereunder have been sold, whichever is earlier.
EXPERTS
The consolidated financial statements of UTILX Corporation as of March
31, 1997 and 1996 and for each of the three years in the period ended March
31, 1997, incorporated by reference in this prospectus, have been
incorporated herein in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon for
the Company by Perkins Coie LLP, Seattle, Washington.
7
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE
SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. 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 THE COMPANY SINCE THE DATE
HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE.
--------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
182,474 SHARES
UTILX CORPORATION
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
-----------------------
PROSPECTUS
-----------------------
, 1998
----------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts payable, by the Registrant in connection with the sale of
Common Stock being registered. All amounts are estimates except the Commission
registration fee and the Nasdaq National Market listing fee.
<TABLE>
<S> <C>
Commission registration fee . . . . . . . . . . . . . . . . $ 318
Nasdaq National Market listing fee. . . . . . . . . . . . . 3,730
Printing and engraving expenses . . . . . . . . . . . . . . 2,500
Legal fees and expenses . . . . . . . . . . . . . . . . . . 10,000
Accounting fees and expenses. . . . . . . . . . . . . . . . 5,000
Miscellaneous fees and expenses . . . . . . . . . . . . . . 452
-------
Total. . . . . . . . . . . . . . . . . . . . . . . . . $ 22,000
-------
-------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner he or she
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
cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted under similar standards,
except that no indemnification may 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 that despite the
adjudication of liability, such person is fairly and reasonably entitled to be
indemnified for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145 of the DGCL further provides that to the extent a director or
officer of a Delaware corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections 145(a) and (b) or in the
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses actually and reasonably incurred by such person in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
such person or incurred by him or her in any such capacity or arising out of his
or her status as such whether or not the corporation would have the power to
indemnify such person against such liabilities under Section 145.
Section 10 of the Registrant's Amended and Restated Bylaws (the "Bylaws")
requires indemnification to the fullest extent permitted under Delaware law.
Subject to any restrictions imposed by Delaware law, the Bylaws provide an
unconditional right to indemnification for all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) actually and reasonably incurred or suffered by
any person entitled
II-1
<PAGE>
to indemnification in connection with any actual or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was serving as a director or officer of the
Registrant or that, being or having been a director or officer or an employee of
the Registrant, such person is or was serving at the request of the Registrant
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including an employee benefit plan.
However, Board approval is required with respect to indemnification for any
proceeding initiated by a person entitled to indemnification. The Bylaws also
provide that the Registrant may, by action of its Board of Directors, provide
indemnification to its employees and agents with the same scope and effect as
the foregoing indemnification of directors and officers.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) payments of unlawful dividends or unlawful
stock repurchases or redemptions, or (iv) any transaction from which the
director derived an improper personal benefit.
Article 16 of the Registrant's Restated Certificate of Incorporation
provides that, to the fullest extent that the DGCL, as it now exists or may
hereafter be amended, permits the limitation or elimination of the liability of
directors, a director of the Registrant shall not be liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Any amendment to or repeal of such Article 16 shall not adversely
affect any right or protection of a director of the Registrant for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
The Registrant's officers and directors are covered by insurance (with
certain exceptions and limitations) that indemnifies them against losses for
which the Registrant grants them indemnification and for which they become
legally obligated to pay on account of claims made against them for "wrongful
acts" committed before or during the policy period. Additionally, the
Registrant's outside directors are covered by a similar insurance policy.
ITEM 16. EXHIBITS
5.1 Opinion of Perkins Coie, counsel to the
Registrant
23.1 Consent of Coopers & Lybrand L.L.P.,
independent accountants
23.3 Consent of Perkins Coie (contained in
Exhibit 5.1)
24.1 Power of attorney (contained on Page II-4)
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 to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this 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; and
(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 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
II-2
<PAGE>
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
statement relating to the securities offered herein, 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 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 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 of 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.
D. The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial BONA FIDE offering thereof.
II-3
<PAGE>
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 Kent, State of Washington, on the 24th day of
February, 1998.
UTILX CORPORATION
/s/ Craig E. Davies
----------------------------------
By: Craig E. Davies
President and
Chief Executive Officer
Each person whose individual signature appears below hereby authorizes
Craig E. Davies, Larry D. Pihl, Thomas L. Markl or any of them, as
attorneys-in-fact with full power of substitution, to execute in the name and on
the behalf of each person, individually and in each capacity stated below, and
to file, any and all amendments to this Registration Statement, including any
and all post-effective amendments, and any related Rule 462(b) Registration
Statement and any amendment thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 24th day of February, 1998.
SIGNATURE TITLE
---------- -------
/s/ Craig E. Davies
- ---------------------------- President and Chief Executive Officer (Principal
Craig E. Davies Executive Officer)
/s/ Larry D. Pihl
- ---------------------------- Vice President, Chief Financial Officer and
Larry D. Pihl Treasurer (Principal Financial Officer and
Principal Accounting Officer)
/s/ Stanley J. Bright Director
- -----------------------------
Stanley J. Bright
/s/ John D. Durbin Director
- -----------------------------
John D. Durbin
/s/ John W. Ellis Director
- -----------------------------
John W. Ellis
/s/ Walter M. Higgins Director
- -----------------------------
Walter M. Higgins
/s/ Robert E. Runice Director
- -----------------------------
Robert E. Runice
/s/ William M. Weisfield Director
- -----------------------------
William M. Weisfield
II-4
<PAGE>
EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBER
NUMBER PAGE
- ------- -------------
5.1 Opinion of Perkins Coie, counsel to the Registrant
23.1 Consent of Coopers & Lybrand L.L.P., independent accountants
23.3 Consent of Perkins Coie (contained in Exhibit 5.1)
24.1 Power of attorney (contained on Page II-4)
II-5
<PAGE>
[PERKINS COIE LLP LETTERHEAD]
Exhibit 5.1
February 27, 1998
UTILX Corporation
P.O. Box 97009
Kent, WA 98064-9709
Gentlemen and Ladies:
We have acted as counsel to you in connection with the registration under
the Securities Act of 1933, as amended, by UTILX Corporation (the "Company") of
approximately 182,474 shares of Common Stock (the "Shares"). The Shares are to
be offered and sold by a securityholder of the Company. In this regard, we have
participated in the preparation of a Registration Statement on Form S-3 relating
to the Shares (the "Registration Statement") which you are filing with the
Securities and Exchange Commission.
We have examined the Registration Statement and such documents and records
of the Company and other documents as we have deemed necessary for the purpose
of this opinion. Based upon the foregoing, we are of the opinion that the
Shares have been duly authorized and validly issued and are fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and any amendment thereto, including any and all
post-effective amendments, and to the reference to our firm in the Prospectus of
the Registration Statement under the heading "Legal Matters." In giving such
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act.
Very truly yours,
PERKINS COIE
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report dated May 9, 1997, on our audits of the consolidated
financial statements of UTILX Corporation as of March 31, 1997 and 1996 and for
each of the three years in the period ended March 31, 1997. We also consent to
the reference to our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
Seattle, Washington
February 24, 1998
