<PAGE>
As filed with the Securities and Exchange Commission on August 20, 1997
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
ENVIROGEN, INC.
(Exact Name of Registrant as Specified in Its Charter)
---------------
Delaware 22-2899415
(State of Incorporation) (I.R.S. Employer Identification Number)
Harcharan S. Gill, President
Envirogen, Inc.
4100 Quakerbridge Road 4100 Quakerbridge Road
Lawrenceville, New Jersey 08648 Lawrenceville, New Jersey 08648
(609) 936-9300 (609) 936-9300
(Address, Including Zip Code, (Name, Address, Including Zip Code,
and Telephone Number, Including and Telephone Number, Including Area
Area Code, of Registrant's Code, of Agent for Service)
Principal Executive Offices)
---------------
Copy to:
John E. Stoddard III, Esq.
Drinker Biddle & Reath LLP
105 College Road East
Princeton, NJ 08542-0627
(609) 716-6504
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 market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Shares to be Offering Price Aggregate Registration
to be Registered Registered Per Share (1) Offering Price(1) Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 10,385,715 $2.625 $27,262,501 $8,261
============================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(c).
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+Information contained herein is subject to completion or amendment. A +
+registration statement relating to these securities has been filed with the +
+Securities and Exchange Commission. These securities may not be sold nor may +
+offers to buy be accepted prior to the time the registration statement becomes+
+effective. This prospectus shall not constitute an offer to sell or the +
+solicitation of an offer to buy nor shall there be any sale of these +
+securities in any State in which such offer, solicitation or sale would be +
+unlawful prior to registration or qualification under the securities laws of +
+any such State. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED AUGUST 20, 1997
PROSPECTUS
- ----------
10,385,715 Shares
ENVIROGEN, INC.
Common Stock
This Prospectus relates to 10,385,715 shares (the "Shares") of Common
Stock, par value $.01 per share (the "Common Stock"), of Envirogen, Inc.
("Envirogen" or the "Company"). The Shares are being offered for sale pursuant
to this Prospectus (the "Offering"), from time to time, by or for the account of
the stockholders named herein (the "Selling Stockholders"). See "Selling
Stockholders." The Company will not receive any of the proceeds of this
Offering. See "Use of Proceeds."
The Selling Stockholders, either directly, through agents designated
or to be designated from time to time by them, or through underwriters or
dealers, may sell the Shares from time to time on terms to be determined by the
Selling Stockholders at the time of sale. The Selling Stockholders may also
seek, to the extent permitted by applicable laws, to sell the Shares in
transactions under Rule 144 of the Securities Act of 1933, as amended (the
"Securities Act").
All expenses of this Offering, other than commissions or discounts of
broker-dealers, will be borne by the Company. It is estimated that such expenses
to be borne by the Company will approximate $15,000.
The Selling Stockholders and any broker-dealers, agents, underwriters
or dealers that participate with the Selling Stockholders in the distribution of
the Shares may be deemed to be "underwriters" within the meaning of the
Securities Act, and any commissions received by them and any profit on the
resale of the Shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
The Common Stock is currently traded on the Nasdaq SmallCap Market
under the symbol "ENVG." The closing sale price of the Common Stock on the
Nasdaq SmallCap Market on August 18, 1997 was $2.56 per share.
----------------------
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON
PAGE 4 OF THIS PROSPECTUS FOR INFORMATION THAT SHOULD BE CONSIDERED BY
PROSPECTIVE PURCHASERS.
----------------------
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.
----------------------
, 1997
<PAGE>
AVAILABLE INFORMATION
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, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's Regional Offices at Seven World
Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
also can be obtained from the Public Reference Section of the Commission, at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
maintains a web site at http://www.sec.gov that contains reports, proxy and
information statements and other information regarding registrants, like the
Company, that file electronically with the Commission. The Company's Common
Stock is quoted on the Nasdaq Smallcap Market, and reports and other information
concerning the Company may be inspected at the National Association of
Securities Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006-1500.
The Company has filed with the Commission a Registration Statement on
Form S-3 (together with any amendments thereto, the "Registration Statement")
under the Securities Act with respect to the securities offered hereby. As
permitted by the rules and regulations of the Commission, this Prospectus does
not contain all of the information set forth in the Registration Statement and
exhibits thereto. Statements contained in this Prospectus or in any document
incorporated by reference in this Prospectus as to the contents of any contract
or other document referred to herein or therein are not necessarily complete,
and in each instance where such contract or document has been filed as an
exhibit to the Registration Statement, or other document incorporated by
reference, reference is made to the copy of such contract or other document,
each such statement being qualified in all respects by such reference. Any
statement contained in a document 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 such statement so
modified or superseded, except as so modified or superseded, shall not be deemed
to constitute a part of this Prospectus.
-2-
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates herein by reference the following documents
filed with the Commission under the Exchange Act:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996;
(b) The Company's Current Reports on Form 8-K dated January 14, 1997
and April 10, 1997;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997;
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997; and
(e) The description of the Company's Common Stock contained in the
registration statement (File No. 0-20404) filed by the Company to register such
securities under the Exchange Act, including all amendments and reports filed
for the purpose of updating such description prior to the termination of the
Offering of the Shares hereby.
All documents and reports subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to termination of the Offering of the Shares shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents or reports.
The Company will provide without charge to each person to whom a copy
of this Prospectus has been delivered, upon the written or oral request of such
person, a copy of any or all of the documents incorporated herein by reference,
other than exhibits to such documents unless they are specifically incorporated
by reference into such documents. Requests for such copies should be directed
to: Investor Relations, Envirogen, Inc., 4100 Quakerbridge Road, Lawrenceville,
New Jersey 08648, telephone (609) 936-9300.
-3-
<PAGE>
RISK FACTORS
Prospective investors should consider carefully the following risk
factors relating to the business of the Company before purchasing any of the
securities offered hereby.
History of Operating Losses and Accumulated Deficit. The Company has
had net losses since its inception, has only recently begun to receive revenues
from the use or sale of its biological degradation systems and had an
accumulated deficit of $22,424,090 at June 30, 1997. The Company expects to
incur additional expenditures for the continued development of its biological
degradation systems and the commercialization of its technologies. There can be
no assurance that the Company will generate sufficient revenues to achieve
profitability.
Competition and Risk of Technological Obsolescence. The environmental
remediation industry is highly competitive and subject to rapid and significant
technological change. Others may independently develop technologies similar or
superior to those of the Company, which may result in the Company's processes or
systems becoming less competitive or obsolete. Competition from other
environmental biotechnology companies, as well as from engineering and waste
management service companies, universities, research institutions and others,
may increase as advances in the treatment and remediation of wastes are made.
Many of the Company's competitors have substantially greater financial and
marketing resources and capabilities than Envirogen. In addition, some
competitors, particularly waste management service companies, may be able to
offer a more complete solution to a client's environmental problems than the
Company will be able to offer.
Technology Rights. The Company intends to rely primarily on
confidentiality agreements and the expertise of its scientists and consultants
to maintain the proprietary nature of its technology. Under certain
circumstances, the Company may also seek patent protection for unique
microorganisms (including genetically-modified forms) or for novel processes
which it develops that degrade hazardous wastes, although the Company does not
believe that patents are critical to the successful development of commercially
viable biodegradation systems. In general, due to the newness and complexity of
the science involved in biotechnology, the application of the patent laws to
biotechnology is presently unclear and is undergoing a developing and evolving
process. There can be no assurance that the Company's pending patent
applications will be granted or, if granted, that their claims will be sustained
if challenged. Certain competitors of the Company have been issued patents or
have filed applications for patents or have proprietary rights to
microorganisms, systems or processes competitive with those of the Company. If
patents or proprietary technology rights are obtained by competitors, the
Company may be restricted in the utilization of certain of its microorganisms,
systems or processes. If the Company is unable to maintain the proprietary
nature of its technologies, the Company's financial condition and results of
operations could be materially adversely affected.
To date the Company's research and development agreements have not
placed significant restrictions on the Company's use of technology developed
under such agreements. In certain cases, the agreements provide for a sharing of
rights to the technology which is jointly developed by the Company and the other
party, and/or provide for the payment by the Company of limited royalties on the
use of technology developed solely by the other party or developed jointly,
and/or grant the other party a non-exclusive license to utilize technology
developed by the Company under the agreement for its own facilities but not for
other purposes (such as commercialization through third parties). In those cases
where the other party is granted a license to use portions of the technology
developed under the agreement, the Company may lose that party as a potential
commercial customer or the scope of services the Company might otherwise render
to such customer may be limited. The Company is not able to
-4-
<PAGE>
predict the extent to which future agreements may impose restrictions on the
Company's ability to utilize any technology developed under a particular
agreement or require the Company to pay royalties on the use of such technology.
In addition, the Company may seek licenses to other parties'
technology in order to develop, manufacture and market certain technologies in
the future. However, the Company may not be able to obtain necessary licenses or
such licenses may not be available on commercially acceptable terms. Even if
such licenses are available, the patents or proprietary rights underlying the
licenses may prove to be invalid or unenforceable.
Reliance on Corporate and Governmental Relationships. The Company has
relied and will continue to rely on contracts with corporate and governmental
sponsors to fund a significant portion of its research and development
activities. No assurance can be given that funding from research and development
agreements will continue or, if continued, will be at levels or on terms
satisfactory to the Company. The elimination or significant reduction in funding
from research and development agreements could narrow the scope of the Company's
long-term research and development efforts.
No Assurance of Additional Financing. The Company may require
additional funds to develop and commercialize certain of its technologies.
However, the Company may not be successful in raising additional funds to meet
its capital requirements or, if successful, the terms of such arrangements may
not be advantageous to the Company.
Governmental Regulations and Approvals. Microorganisms and systems
under development by the Company are subject to regulation by various federal,
state and local agencies. Such regulation applies to all stages of field testing
and to the manufacture and use of the Company's systems and microorganisms.
Prior to the manufacture, sale and use of certain of its systems and
microorganisms, the Company will be required to conduct extensive toxicology and
environmental testing to demonstrate safety. The regulatory process could be
costly and time consuming and could delay or prevent research, development,
production or marketing of the Company's technologies. Failure to comply with
environmental or other related laws could result in the Company facing fines or
penalties which could be material in amount or injunctive relief which could
materially adversely affect the business of the Company. Furthermore, the
Company may encounter objections to the release of its microorganisms into the
environment by special interest groups which could deter governmental agencies
from granting the requisite approvals or doing so on a timely basis or otherwise
might adversely affect the Company's ability to field test and market its
products.
Reliance on Environmental Regulation. Federal, state and local
legislation and regulations that require substantial expenditures to meet
minimum environmental quality standards and that impose penalties for
noncompliance are and will continue to be a principal factor affecting demand
for the systems and services being developed or offered by the Company. In
addition, the level of enforcement activities by federal, state and local
environmental protection agencies will also affect demand. To the extent that
the scope or enforcement of such laws and regulations may be eased, the business
of the Company could be materially adversely affected.
Control by Officers and Directors and Their Affiliates. At June 30,
1997, the Company's executive officers and directors and their affiliates,
including certain of the Selling Stockholders, owned approximately 52% of the
outstanding shares of the Company's Common Stock and, accordingly, may have the
effective ability to control the Company. See "Selling Stockholders."
-5-
<PAGE>
Limited Manufacturing and Marketing Capability. The Company has had
limited experience in manufacturing and marketing its biological degradation
systems. The Company does not intend to develop its own bioreactor manufacturing
capability as there are a number of independent contractors with experience in
specialty fabrication of enclosed vessels and related controls engineering to
manufacture bioreactors to the Company's specifications. The Company is building
a technical sales force to market the Company's systems and services. There can
be no assurance, however, that the Company will successfully develop
manufacturing or marketing capabilities either independently or in conjunction
with third parties.
Environmental and Product Liability Risks. Product liability and
environmental impairment claims may be asserted against the Company with respect
to the testing or use of the Company's technologies. Although the Company has a
$5,000,000 contractor's pollution and product liability insurance policy, there
can be no assurance that environmental or product liabilities that may be
incurred by the Company will be covered by its insurance, that the dollar amount
of covered liabilities will not exceed policy limits or that such insurance will
continue to be available to the Company on economical terms, if at all.
Accordingly, an uninsured judgment against the Company could have a materially
adverse effect on the Company. The Company will attempt to mitigate some of the
uninsured risks by typically not transporting or taking title to its customers'
waste, although such measures are not sufficient to avoid all potential
liability.
Possible Acquisition of Related Businesses or Technologies. The
Company from time to time evaluates and investigates possible acquisitions,
through purchase, license or otherwise, of related businesses or technologies.
There are certain risks associated with acquisitions, including, among others,
incorrectly assessing the asset quality and the extent of possible liabilities
of a particular business being acquired and encountering greater than
anticipated costs of incorporating acquired businesses into the Company. In
addition, stockholders of the Company may also experience dilution in the event
that the Company uses its Common Stock as consideration for acquisitions or to
obtain licenses of new technologies.
Shares Eligible for Future Sale. Sales in the public market of
substantial amounts of the Company's Common Stock (including the Shares offered
hereby) could have an adverse effect on the market price of the Common Stock and
may make it more difficult for the Company to sell its equity securities in the
future at times and prices which its deems appropriate. Substantially all of the
outstanding shares of the Company's Common Stock (including the Shares offered
hereby) have been registered under the Securities Act or are eligible for resale
under Rule 144 under the Securities Act or otherwise. At June 30, 1997 the
Company also had outstanding options and warrants to purchase approximately
4,020,479 shares of Common Stock.
Possible Volatility of Stock Price. There has been significant
volatility in the market prices of publicly traded shares of emerging growth
companies. Many factors, including, among others, announcements of technical
developments, establishment of corporate relationships, governmental regulation,
patent or proprietary rights, developments or public concern as to safety or
other implications of the biodegradation of hazardous wastes and general market
conditions, may have a significant impact on the market price of the Company's
securities.
Absence of Common Stock Dividends. The Company has not paid any cash
dividends on its Common Stock since its inception and does not anticipate paying
any cash dividends on its Common Stock in the foreseeable future.
-6-
<PAGE>
THE COMPANY
Envirogen is an environmental biotechnology company combining unique
scientific, engineering and management expertise to provide innovative solutions
for treating hazardous wastes. Envirogen's strategic approach includes isolating
natural organisms, in some cases enhancing their performance through genetic
modification, and then developing engineered systems to optimize their activity
for biodegradation. The Company also employs complementary, non-biological
technologies where appropriate. Through its wholly-owned subsidiary, Fluid
Management, Inc., the Company also offers a broad range of specialized
environmental consulting services, including remedial investigation, design and
construction; solid waste and landfill management; air sciences and engineering;
and environmental engineering and compliance management. Envirogen offers
solutions for both pollution prevention and remediation problems of corporations
and government agencies.
Envirogen's capabilities mirror the needs of the marketplace, and its
acceleration into commercial activity could not be more timely. The
Environmental Protection Agency is currently believed to be more receptive to
innovative approaches than at any time before. In addition, new regulations that
create more stringent requirements for chemical releases, and that now require
the destruction of specific, difficult compounds, have produced a need for new
biological systems to cost-effectively meet these standards. Envirogen's
capabilities for providing technologies to reduce remediation and operating
costs, and for destroying recalcitrant contaminants, are well suited to meet
these growing market needs. During 1996, Envirogen spent approximately $2.4
million on research and development projects.
Envirogen was incorporated in Delaware in June 1988. Envirogen's
principal office is located at 4100 Quakerbridge Road, Lawrenceville, New Jersey
08648, and its telephone number is (609) 936-9300.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares, which are being sold by the Selling Stockholders.
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<PAGE>
SELLING STOCKHOLDERS
The following table lists the names of the persons whose Shares are
covered by this Prospectus (the "Selling Stockholders"), and for each, the
number of Shares beneficially owned at the commencement of the Offering, the
number of Shares being offered for sale and the number of Shares to be
beneficially owned after the Offering.
<TABLE>
<CAPTION>
Number of Shares
Owned at Number of
Commencement Shares Being Shares Owned
Selling Stockholders of Offering Offered After Offering
- -------------------- ----------------- ------------ --------------
<S> <C> <C> <C>
Warburg, Pincus Ventures,
L.P(1)(2)...............................6,095,238 6,095,238 0
William C. Smith(1)(3)..................1,048,620(5) 1,047,620 1,000
Douglas W. Jacobson(1)(4)...............1,047,619(5) 1,047,619 0
Gary W. Hawk(1).........................1,047,619(5) 1,047,619 0
Richard W. Schowengerdt(1)..............1,047,619(5) 1,047,619 0
N.V. VAM................................ 158,140 100,000 58,140
- -----------------------
</TABLE>
(1) Warburg, Pincus Ventures, L.P. and Messrs. Smith, Jacobson, Hawk and
Schowengerdt have agreed not to sell the Shares held by each of them until
April 9, 1998 without the prior written consent of the Company.
(2) Robert S. Hillas, a director of the Company, is a general partner of
Warburg, Pincus & Co., the sole general partner of Warburg, Pincus Ventures,
L.P.
(3) Mr. Smith is a director and the Chairman of the Board of the Company.
(4) Mr. Jacobson is the Senior Vice President of Marketing of the Company.
(5) Includes 104,762 Shares held in escrow (the "Escrow Shares") on behalf of
each of Messrs. Smith, Jacobson, Hawk and Schowengerdt with respect to
certain indemnification obligations arising out of the Merger Agreement
dated January 14, 1997 among the Company, Fluid Management, Inc. and Messrs.
Smith, Jacobson, Hawk and Schowengerdt. Any Escrow Shares that are not
utilized to satisfy such indemnification obligations may be sold after such
indemnification obligations have terminated, which is not expected to occur
prior to April 10, 1998.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time to purchasers directly by any
of the Selling Stockholders, or, alternatively, any of the Selling Stockholders
may from time to time offer the Shares through dealers or agents, who may
receive compensation in the form of underwriting discounts, concessions or
commissions from the Selling Stockholders and/or the purchasers of the Shares
for whom they may act as agent. Any discounts, commissions or concessions
received by any such dealers or agents and any profits on the sale of Shares by
them may be deemed to be underwriting discounts and commissions under the
Securities Act.
The Shares may be sold from time to time in one or more transactions
at a fixed offering price, which may be changed, at varying prices determined at
the time of sale, or at negotiated prices. Such prices will be determined by the
Selling Stockholders or by agreement between the Selling Stockholders and/or
dealers. The Shares are listed on the Nasdaq SmallCap Market and may also be
sold in transactions on the Nasdaq SmallCap Market. In addition, the Shares may
be sold, to the extent permitted, from time to time in transactions effected in
accordance with the provisions of Rule 144 under the Securities Act.
Notwithstanding the foregoing, Messrs. Smith, Hawk, Jacobson and
Schowengerdt and Warburg, Pincus Ventures, L.P. have agreed not to sell the
Shares held by each of them until April 9, 1998 without the prior written
consent of the Company.
-8-
<PAGE>
In connection with the offer and sale of the Shares, various state
securities laws and regulations require that any such offer and sale should be
made only through the use of a broker-dealer registered as such in any state
where a Selling Stockholder engages such broker-dealer and in any state where
such broker-dealer intends to offer and sell the Shares.
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of the Shares may not bid for or purchase the
Shares until after such person has completed his or her participation in such
distribution, including the period of five business days prior to the
commencement of such distribution. In addition to and without limiting the
foregoing, the Selling Stockholders and any other person participating in such
distribution will be subject to other applicable provisions of the Exchange Act
and the rules and regulations thereunder, including without limitation
Regulation M, which provisions may affect the timing of purchases and sales of
any of the Shares by the Selling Stockholders and any such other person. All of
the foregoing may affect the marketability of the Shares and the ability of any
person or entity to engage in market making activities with respect to the
Shares.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
the Company by Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania, counsel
for the Company. Morgan R. Jones, a partner in Drinker Biddle & Reath LLP, is
the Secretary of the Company.
EXPERTS
The consolidated balance sheets as of December 31, 1996 and 1995 and
the consolidated statements of operations, changes in stockholders' equity and
cash flows of Envirogen, Inc. for each of the three years in the period ended
December 31, 1996, 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.
The balance sheets as of December 31, 1996 and December 31, 1995 and
the related statements of operations, shareholder's deficit and cash flows of
Fluid Management, Inc. for each of the three years in the period ended December
31, 1996, 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 said firm as experts in giving said
report.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses payable by the
Registrant in connection with this Registration Statement.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee ........$ 8,261.00
Legal Fees and Expenses .................................... 5,000.00
Miscellaneous Expenses .................................... 1,739.00
-----------
Total ......................................................$ 15,000.00
===========
</TABLE>
Item 15. Indemnification of Directors and Officers.
The Restated Certificate of Incorporation of the Registrant provides as
follows:
A director of the Corporation shall have no personal liability to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director except to the extent that Section 102(b)(7)
(or any successor provision) of the Delaware General Corporation Law, as
amended from time to time, expressly provides that the liability of a
director may not be eliminated or limited.
The Registrant's By-Laws generally require the Registrant to indemnify
directors and officers to the full extent permissible under Delaware law.
The Registrant has insurance coverage with Zurich Insurance Company that
provides coverage to the Company's directors and officers in the amount of up to
$2,000,000.
Reference is also made to the last Undertaking contained in Item 17
hereof.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits:
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
5 Opinion of Drinker Biddle & Reath LLP
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Drinker Biddle & Reath LLP (included in
Exhibit 5)
24 Powers of Attorney
</TABLE>
II-1
<PAGE>
(b) Financial Statement Schedules:
The following financial statement schedule of the Company is incorporated
by reference to the pages indicated in parentheses of the Company's Annual
Report on Form 10-K for the year ended December 31, 1996:
Schedule II - Valuation and Qualifying Accounts (Page 37)
Report of Independent Accountants (Page 38)
Schedules not filed herewith are omitted because of the absence of
conditions under which they are required.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represents
a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in the volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-2
<PAGE>
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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 Lawrenceville, State of New Jersey, on August 20,
1997.
ENVIROGEN, INC.
By: /s/ Harcharan S. Gill
-------------------------------------
Harcharan S. Gill, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons, in the
capacities indicated, on August 20, 1997.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Harcharan S. Gill President, Chief Executive Officer
- -------------------------- and Director (Principal Executive Officer)
Harcharan S. Gill
William C. Smith* Chairman of the Board, Acting Chief
- -------------------------- Financial Officer and Director (Principal
William C. Smith Financial Officer)
/s/ Patricia A. McQueary Controller (Principal Accounting Officer)
- --------------------------
Patricia A. McQueary
Robert F. Hendrickson* Director
- --------------------------
Robert F. Hendrickson
Robert S. Hillas* Director
- --------------------------
Robert S. Hillas
Robert F. Johnston* Director
- --------------------------
Robert F. Johnston
Robert C. Miller* Director
- --------------------------
Robert C. Miller
Peter J. Neff* Director
- --------------------------
Peter J. Neff
</TABLE>
___________________
*Harcharan S. Gill, pursuant to a Power of Attorney executed by each of the
directors noted above and filed with the Securities and Exchange Commission as
Exhibit 24 to this Registration Statement on Form S-3, by signing his name
hereto, does hereby sign and execute this Registration Statement on Form S-3 on
behalf of each of the persons noted above, in the capacities indicated, and does
hereby sign and execute this Registration Statement on Form S-3 on his own
behalf, in the capacities indicated.
/s/ Harcharan S. Gill
---------------------------------
Harcharan S. Gill
II-4
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
5 Opinion of Drinker Biddle & Reath LLP
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Drinker Biddle & Reath LLP (included in
Exhibit 5)
24 Powers of Attorney
</TABLE>
<PAGE>
Exhibit 5
---------
DRINKER BIDDLE & REATH LLP
105 College Road East, Suite 300
P.O. Box 627
Princeton, NJ 08542-0627
Phone: (609) 716-6500
August 20, 1997
Envirogen, Inc.
4100 Quakerbridge Road
Lawrenceville, New Jersey 08648
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Envirogen, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission of a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended, relating
to the public offering of 10,385,715 shares of the Company's common stock, par
value $.01 per share (the "Shares").
In this connection, we have examined the originals or copies, certified or
otherwise identified to our satisfaction, of the Certificate of Incorporation
and the By-laws of the Company, as amended and restated, resolutions of the
Company's Board of Directors, and such other documents and corporate records
relating to the Company and the issuance and sale of the Shares as we have
deemed appropriate. This opinion is based exclusively on the laws of the State
of New Jersey and the General Corporation Law of the State of Delaware.
On the basis of the foregoing, we are of the opinion that the Shares have
been validly issued and are fully paid and non-assessable by the Company.
We hereby consent to the reference to our firm under the caption "Legal
Matters" in the prospectus included in the Registration Statement and to the
filing of this opinion as an exhibit to the Registration Statement. In giving
this consent, we do not admit that we come within the categories of persons
whose consent is required under Section 7 of the Securities Act of 1933.
We advise that Morgan R. Jones, Esq., a partner in our firm, is the
Secretary of the Company.
Very truly yours,
/s/ Drinker Biddle & Reath LLP
DRINKER BIDDLE & REATH LLP
<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 February 20, 1997, on our audits of the
consolidated financial statements and financial statement schedule of Envirogen,
Inc. We further consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 21, 1997, on our audits of
the financial statements of Fluid Management, Inc. as of December 31, 1996 and
1995, and the years ended December 31, 1996, 1995 and 1994, included in
Envirogen, Inc.'s previously filed Form 8-K dated April 14, 1997. We also
consent to the reference to our firm under the caption "Experts".
/s/ Coopers & Lybrand L.L.P.
Princeton, New Jersey
August 20, 1997
<PAGE>
Exhibit 24
----------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned does hereby constitute
and appoint Harcharan S. Gill and Patricia A. McQueary, or either of them acting
alone, his true and lawful attorney-in-fact and agent, with full power of
substitution and revocation for him and in his name, place and stead, in any and
all capacities, to sign the Registration Statement on Form S-3 of Envirogen,
Inc., relating to the offer and sale of shares of its Common Stock and any and
all amendments (including post-effective amendments) to the Registration
Statement and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 9th day
of July, 1997.
/s/ William C. Smith
-------------------------------
William C. Smith
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned does hereby constitute
and appoint Harcharan S. Gill and Patricia A. McQueary, or either of them acting
alone, his true and lawful attorney-in-fact and agent, with full power of
substitution and revocation for him and in his name, place and stead, in any and
all capacities, to sign the Registration Statement on Form S-3 of Envirogen,
Inc., relating to the offer and sale of shares of its Common Stock and any and
all amendments (including post-effective amendments) to the Registration
Statement and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 9th day
of July, 1997.
/s/ Robert F. Hendrickson
-------------------------------
Robert F. Hendrickson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned does hereby constitute
and appoint Harcharan S. Gill and Patricia A. McQueary, or either of them acting
alone, his true and lawful attorney-in-fact and agent, with full power of
substitution and revocation for him and in his name, place and stead, in any and
all capacities, to sign the Registration Statement on Form S-3 of Envirogen,
Inc., relating to the offer and sale of shares of its Common Stock and any and
all amendments (including post-effective amendments) to the Registration
Statement and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 9th day
of July, 1997.
/s/ Robert F. Johnston
-------------------------------
Robert F. Johnston
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned does hereby constitute
and appoint Harcharan S. Gill and Patricia A. McQueary, or either of them acting
alone, his true and lawful attorney-in-fact and agent, with full power of
substitution and revocation for him and in his name, place and stead, in any and
all capacities, to sign the Registration Statement on Form S-3 of Envirogen,
Inc., relating to the offer and sale of shares of its Common Stock and any and
all amendments (including post-effective amendments) to the Registration
Statement and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 9th day
of July, 1997.
/s/ Robert S. Hillas
-------------------------------
Robert S. Hillas
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned does hereby constitute
and appoint Harcharan S. Gill and Patricia A. McQueary, or either of them acting
alone, his true and lawful attorney-in-fact and agent, with full power of
substitution and revocation for him and in his name, place and stead, in any and
all capacities, to sign the Registration Statement on Form S-3 of Envirogen,
Inc., relating to the offer and sale of shares of its Common Stock and any and
all amendments (including post-effective amendments) to the Registration
Statement and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 9th day
of July, 1997.
/s/ Robert C. Miller
-------------------------------
Robert C. Miller
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned does hereby constitute
and appoint Harcharan S. Gill and Patricia A. McQueary, or either of them acting
alone, his true and lawful attorney-in-fact and agent, with full power of
substitution and revocation for him and in his name, place and stead, in any and
all capacities, to sign the Registration Statement on Form S-3 of Envirogen,
Inc., relating to the offer and sale of shares of its Common Stock and any and
all amendments (including post-effective amendments) to the Registration
Statement and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 9th day
of July, 1997.
/s/ Peter J. Neff
-------------------------------
Peter J. Neff
