<PAGE>
As filed with the Securities and Exchange Commission on December 30, 1998
Registration No. 333-
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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)
_______________
<TABLE>
<S> <C>
DELAWARE 22-2899415
(State of Incorporation) (I.R.S. Employer Identification Number)
ROBERT S. HILLAS, PRESIDENT
4100 QUAKERBRIDGE ROAD ENVIROGEN, INC.
LAWRENCEVILLE, NEW JERSEY 08648 4100 QUAKERBRIDGE ROAD
(609) 936-9300 LAWRENCEVILLE, NEW JERSEY 08648
(609) 936-9300
(Address, Including Zip Code, and (Name, Address, Including Zip Code, and
Telephone Number, Including Area Telephone Number, Including Area Code,
Code, of Registrant's Principal of Agent for Service)
Executive Offices)
</TABLE>
_______________________
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
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=============================================================================================================
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
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 83,334 $1.031 $85,917.35 $25.35
==========================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 30, 1998
PROSPECTUS ENVIROGEN, INC.
83,334 SHARES 4100 Quakerbridge Road
COMMON STOCK Lawrenceville, N.J. 08648
($.01 Par Value) (609) 936-9300
www.envirogen.com
The stockholder of Envirogen, Inc. identified in the section titled "Selling
Stockholder" in this prospectus is offering and selling 83,334 shares of
Envirogen common stock under this prospectus. The selling stockholder may offer
his Envirogen common stock through public or private transactions, on or off the
United States exchanges, at prevailing market prices, or at privately negotiated
prices. Envirogen will not receive any of the proceeds from the sale of the
shares offered hereby. Envirogen will pay for all expenses of this offering,
other than commissions or discounts of broker-dealers. Such expenses are
estimated to be approximately $10,000.
Envirogen's common stock is currently traded on the Nasdaq SmallCap Market
under the symbol "ENVG." The closing sale price of one share of Envirogen
common stock on the Nasdaq SmallCap Market on December 29, 1998 was $1 3/32 per
share.
--------------------------------------------
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
BEGINNING ON PAGE 2 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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January __, 1999
<PAGE>
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING FACTORS AND OTHER INFORMATION
IN THIS PROSPECTUS BEFORE DECIDING TO INVEST IN THE SHARES OF ENVIROGEN COMMON
STOCK. SOME OF THE STATEMENTS CONTAINED IN THIS PROSPECTUS AND IN THE DOCUMENTS
INCORPORATED BY REFERENCE IN THIS PROSPECTUS ARE FORWARD-LOOKING. ACTUAL
RESULTS MAY DIFFER MATERIALLY FROM THOSE SUGGESTED BY THE FORWARD-LOOKING
STATEMENTS FOR VARIOUS REASONS, INCLUDING THOSE DISCUSSED IN THE FOLLOWING RISK
FACTORS.
History of Operating Losses and Accumulated Deficit. Envirogen has never
made a profit on an annual basis, has only recently begun to receive revenues
from the use or sale of its systems that biologically degrade hazardous waste
and had an accumulated deficit of $48,802,801 at September 30, 1998. Envirogen
expects to spend additional funds for the continued development of its
degradation systems and the commercialization of its technologies. Envirogen
cannot guaranty that it will generate sufficient revenues to achieve
profitability.
Uncertainty Regarding PECFA Reimbursement. In April 1997, Envirogen
acquired Fluid Management, Inc., the business of which is now operated as
Envirogen's Fluid Management Operations Group. The Group performs environmental
cleanup work for its clients, part of the cost of which is reimbursable to its
clients under the Wisconsin Petroleum Environmental Cleanup Fund Act ("PECFA").
On April 17, 1998, Wisconsin adopted new PECFA emergency rules that reduce the
amount of funds available for reimbursement under the PECFA program. This
regulatory event dramatically reduced the expected revenue, net income and cash
flow for the Group. Wisconsin may in the future adopt additional regulatory
rules, or eliminate the PECFA program in its entirety, resulting in further
reductions in the expected revenue, net income and cash flow of the Group.
Highly Competitive Nature of Environmental Treatment Industry. The
environmental treatment industry is highly competitive and subject to rapid and
significant technological change. Envirogen's processes or systems may become
less competitive or obsolete as a result of the independent development of
technologies similar or superior to those of Envirogen. Competition from other
environmental treatment 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 Envirogen'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
Envirogen will be able to offer.
Protection and Use of Envirogen's Technology Rights. Envirogen relies
primarily on confidentiality agreements and the expertise of its scientists and
consultants to maintain the confidentiality of its technology. Under certain
circumstances, Envirogen may also seek patent protection for unique
microorganisms (including genetically-modified forms) or for novel processes
which it develops that degrade hazardous wastes. However, Envirogen does not
believe that patents are critical to the successful development of marketable
systems. In general, due to the newness and complexity of the science involved
in biotechnology, the application of the patent laws to this field is presently
unclear. Envirogen cannot guaranty that its pending patent applications will be
granted or, if granted, that their claims will be sustained if challenged.
Certain competitors of Envirogen have been issued patents or have filed
applications for patents or have
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<PAGE>
proprietary rights to microorganisms, systems or processes competitive with
those of Envirogen. If patents or proprietary technology rights are obtained by
competitors, Envirogen may not be permitted to use certain of its
microorganisms, systems or processes which could materially adversely affect
Envirogen's financial condition and results of operations.
Envirogen's research and development agreements have not placed significant
restrictions on Envirogen's use of the technology developed under such
agreements. In certain cases, the agreements provide for (1) a sharing of
rights to the technology which is jointly developed by Envirogen and the other
party to the agreement, and/or (2) the payment by Envirogen of limited royalties
on the use of technology developed solely by the other party or developed
jointly, and/or (3) the grant to the other party of a non-exclusive license to
utilize technology developed by Envirogen 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, Envirogen may lose
that party as a potential commercial customer or the scope of services Envirogen
might otherwise render to such customer may be limited. Envirogen cannot
predict the extent to which future agreements may impose restrictions on
Envirogen's ability to utilize any technology developed under a particular
agreement or require Envirogen to pay royalties on the use of such technology.
In addition, Envirogen may seek licenses to other parties' technology in
order to develop, manufacture and market certain technologies in the future.
However, Envirogen 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. Envirogen 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.
Envirogen cannot guaranty that funding from research and development agreements
will continue or, if continued, will be at levels or on terms that it deems
satisfactory. The elimination or significant reduction in funding from research
and development agreements could narrow the scope of Envirogen's long-term
research and development efforts.
Compliance with Nasdaq Listing Requirements. On September 23, 1998,
Envirogen received a notice from The Nasdaq National Stock Market, Inc. that the
shares of Envirogen common stock listed on the Nasdaq SmallCap Market had failed
to maintain a closing bid price of at least $1.00 per share for 30 consecutive
trading days, subjecting such shares to possible delisting. On November 24,
1998, Envirogen effected a one-for-six reverse split of its common stock to
raise the per share price of its common stock to at least $1.00. Following the
reverse split, the shares of Envirogen common stock traded at a per share price
greater than $1.00 for ten consecutive trading days, thereby satisfying Nasdaq's
continued listing requirements.
On December 29, 1998, the per share price of Envirogen common stock was $1
3/32. If the per share price of Envirogen common stock falls below $1.00 for 30
consecutive trading days, shares of Envirogen common stock will again be subject
to possible delisting by Nasdaq. Envirogen cannot guaranty that the per share
price of its common stock will remain above $1.00, that if it falls below $1.00,
Envirogen's stockholders will again approve a reverse split of common stock to
increase the per share price, or that it will be able to satisfy the other
Nasdaq continued listing requirements.
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<PAGE>
If Envirogen common stock ceases to be listed and traded on the Nasdaq
SmallCap Market, (1) it will likely be quoted in the "pink sheets" maintained by
the National Quotation Bureau, Inc., (2) the spread between the bid and the ask
price of the common stock is likely to be greater than at present and (3)
stockholders may experience a greater degree of difficulty in engaging in trades
of shares of the common stock. If Envirogen common stock is delisted from the
Nasdaq SmallCap Market, and if Envirogen thereafter attempts to have its common
stock relisted on the Nasdaq SmallCap Market, Envirogen (in connection with such
relisting application) would incur additional costs and would be required to
satisfy initial listing requirements that are more stringent than the continued
listing requirements that Envirogen must currently satisfy.
In addition, if Envirogen common stock is delisted from the Nasdaq SmallCap
Market and the trading price of the common stock were to remain below $5.00 per
share, trading in the common stock could also be subject to the requirements of
certain rules promulgated under the Securities Exchange Act of 1934, which
require additional disclosure by broker-dealers in connection with any trades
involving "penny stock" (generally, any non-Nasdaq equity security that has a
market price of less than $5.00 per share, subject to certain exceptions). The
additional burdens imposed upon broker-dealers by such requirements could
discourage broker-dealers from effecting transactions in Envirogen common stock,
which could severely limit the market liquidity of the common stock and the
ability of investors to trade shares of the common stock.
Possible Need for Additional Financing. Envirogen may require additional
funds to develop and commercialize certain of its technologies. However,
Envirogen 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 Envirogen.
Governmental Regulations and Approvals. Various federal, state and local
agencies regulate the technologies under development by Envirogen. Such
regulation applies to all stages of field testing and to the manufacture and use
of Envirogen's technologies. Prior to the manufacture and use of certain of its
technologies, Envirogen will be required to conduct extensive toxicology and
environmental testing to demonstrate its safety. This regulatory process could
be costly and time consuming and could delay or prevent research, development,
production or marketing of such technologies. If it fails to comply with this
regulatory process, Envirogen could face material fines or penalties or
injunctive relief which could materially adversely affect its business.
Furthermore, special interest groups may object to the release of Envirogen's
microorganisms into the environment and deter governmental agencies from
granting the requisite approvals on a timely basis or at all, or otherwise
adversely affect Envirogen's ability to field test and market its products.
Reliance on Environmental Regulation. Federal, state and local legislation
and regulations require substantial expenditures to meet minimum environmental
quality standards and impose significant penalties for noncompliance. Federal,
state and local environmental protection agencies often strictly enforce such
laws and regulations. These are principal factors affecting the demand for the
systems and services being developed or offered by Envirogen. Envirogen's
business could be materially adversely affected by the easing of the scope or
enforcement of such laws and regulations.
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<PAGE>
Control by Officers and Directors and Their Affiliates. At November 30,
1998, Envirogen's executive officers and directors and their affiliates owned
approximately 48% of the outstanding shares of Envirogen's common stock and,
accordingly, may have the effective ability to control Envirogen.
Limited Manufacturing and Marketing Capability. Envirogen has had limited
experience in manufacturing and marketing its degradation systems. Envirogen
intends to continue to rely upon experienced independent contractors to
manufacture degradation systems to its specifications. However, Envirogen is
building a technical sales force to market its systems and services. Envirogen
cannot guaranty that it will successfully develop manufacturing or marketing
capabilities either independently or in conjunction with third parties.
Environmental and Product Liability Risks. Third parties may assert
product liability and environmental impairment claims against Envirogen with
respect to the testing or use of Envirogen's technologies. Envirogen cannot
guaranty that such environmental or product liability claims will be covered by
its $5,000,000 contractor's pollution and product liability insurance policy,
that the dollar amount of covered liabilities will not exceed policy limits or
that such insurance will continue to be available to Envirogen on economical
terms, or at all. An uninsured or partially covered judgment against Envirogen
could have a materially adverse effect on Envirogen. Envirogen 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. Envirogen from
time to time evaluates and investigates possible purchase, license or other
acquisitions of related businesses or technologies. Such acquisitions have
certain risks, 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 Envirogen. In addition, stockholders of Envirogen may also
experience dilution in the event that Envirogen 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 Envirogen's common stock (including the shares offered in this
prospectus) could have an adverse effect on the market price of Envirogen's
common stock and may make it more difficult for Envirogen to sell its equity
securities in the future at acceptable times and prices. Substantially all of
the outstanding shares of Envirogen's common stock (including the shares offered
in this prospectus) have been registered under the Securities Act of 1933 or may
be sold under Rule 144 under the Securities Act of 1933 or otherwise. At
November 30, 1998, Envirogen also had outstanding options and warrants to
purchase approximately 509,615 shares of its common stock.
Possible Volatility of Stock Price. The market prices of publicly traded
shares of emerging growth companies such as Envirogen have been volatile. The
market price of Envirogen's common stock may be significantly impacted by 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.
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No Common Stock Dividends. Envirogen 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.
Disclosure of Year 2000 Readiness. Envirogen believes that its financial,
operational and other information systems, with limited modifications, will
function properly with respect to dates in the year 2000 and thereafter. Many
of Envirogen's systems and related software are presently Year 2000 compliant.
Envirogen is in the process of bringing the remaining systems and software into
compliance and expects to complete this process during the first half of 1999.
To date, Envirogen has not incurred any material costs related to the assessment
of, and preliminary efforts in connection with, its Year 2000 issues and does
not anticipate future expenditures to have a material impact on its financial
position or operating results.
In addition to in-house efforts, Envirogen is requesting that its material
vendors, customers, banks and other third parties whose systems failures
potentially could have a significant impact on Envirogen's business or results
of operations verify their Year 2000 readiness and expects to complete this
process during the first half of 1999. Envirogen will not be able to completely
assess its Year 2000 readiness until such third parties assure Envirogen of
their Year 2000 compliance. Envirogen has not been notified of any such
noncompliance by any material third party. However, there can be no assurance
that these third parties will not have Year 2000 problems that will affect
Envirogen.
Based on the activities performed to date and subject to verification from
major vendors, customers, banks and other third parties, Envirogen does not
believe that the Year 2000 issue will have a material adverse effect on its
business or results of operations. However, Envirogen's or any material third
party's failure to correct a Year 2000 problem could result in an interruption
or failure in Envirogen's operations. Such interruption or failure could
adversely affect Envirogen's results of operations, cash flows and financial
condition.
At this time, Envirogen does not have a comprehensive contingency plan with
respect to the Year 2000 issue. However, if Envirogen identifies significant
risks related to Year 2000 noncompliance by Envirogen or any material third
parties, Envirogen will develop contingency plans as deemed necessary at that
time.
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ABOUT ENVIROGEN
Envirogen is an environmental services and systems company combining unique
scientific, engineering and management expertise to provide innovative solutions
for treating hazardous wastes. Envirogen's strategic approach for systems
development includes isolating natural organisms, in some cases enhancing their
performance through genetic modification, and then developing engineered systems
to optimize their activity for biodegradation.
Envirogen offers a broad range of specialized environmental consulting
services and systems, including (1) remedial investigation; (2) design and
construction; (3) solid waste and landfill management; (4) air sciences and
engineering; and (5) environmental engineering and compliance management.
Envirogen offers solutions for both pollution prevention and remediation
problems of corporations and government agencies.
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. Envirogen maintains a web site at
http://www.envirogen.com.
WHERE YOU MAY FIND ADDITIONAL INFORMATION
Envirogen files annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms at 450 Fifth Street, N.W., Washington, D.C.
20549, at Seven World Trade Center, Suite 1300, New York, New York 10048 or at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
You may obtain information on the operation of the public reference rooms by
calling the SEC at 1-800-SEC-0330. Envirogen's SEC filings are also available to
the public from the SEC's website at http://www.sec.gov. Envirogen's common
stock is quoted on the Nasdaq Smallcap Market, and reports and other information
concerning Envirogen may be inspected at the National Association of Securities
Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006-1500.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until the selling stockholder sells all of the
shares of Envirogen common stock offered pursuant to this prospectus:
(a) Envirogen's Annual Report on Form 10-K for the year ended December 31,
1997;
(b) Envirogen's Current Reports on Form 8-K dated April 17, 1998, October
28, 1998 and November 24, 1998;
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(c) Envirogen's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 1998; and
(d) The description of Envirogen's common stock contained in the
registration statement (File No. 0-20404) filed by Envirogen to register such
securities under the Securities Exchange Act of 1934, including all amendments
and reports filed to update such description prior to the termination of the
offering of the shares of Envirogen common stock under this prospectus.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address: INVESTOR RELATIONS, ENVIROGEN, INC.,
4100 QUAKERBRIDGE ROAD, LAWRENCEVILLE, NEW JERSEY 08648; TELEPHONE (609) 936-
9300.
This prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information incorporated by reference or provided in
this prospectus or any supplement to this prospectus. We have not authorized
anyone else to provide you with different information. The selling stockholder
will not make an offer of these shares of Envirogen common stock in any state
where the offer is not permitted. You should not assume that the information in
this prospectus or any supplement to this prospectus is accurate as of any date
other than the date on the front of those documents.
USE OF PROCEEDS
Envirogen will not receive any of the proceeds from the sale of the shares
of Envirogen common stock by the selling stockholder.
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SELLING STOCKHOLDER
Robert S. Hillas, currently the Chairman, President and Chief Executive
Officer and a director of Envirogen, is the selling stockholder. As of the date
of this prospectus, Mr. Hillas beneficially owned 107,134 shares of Envirogen
common stock, 83,334 shares of which are being offered for sale by this
prospectus. After the sale of all of the shares of Envirogen common stock being
offered for sale by this prospectus, Mr. Hillas will beneficially own 23,800
shares of Envirogen common stock.
PLAN OF DISTRIBUTION
The selling stockholder may offer his shares of Envirogen common stock at
various times in one or more public or private transactions on or off the Nasdaq
SmallCap Market. He may sell at market prices prevailing at the time of sale, at
prices related to such prevailing market prices, at negotiated prices or at
fixed prices. In addition, the shares may be sold, to the extent permitted, from
time to time in transactions effected in accordance with Rule 144 under the
Securities Act of 1933. This prospectus may be used by pledgees, donees,
transferees or other successors in interest to the selling stockholder to offer
and sell the shares of Envirogen common stock, provided that this prospectus has
been supplemented appropriately to disclose the name and the number of shares
beneficially owned by such person.
Various state securities laws and regulations require that the sale of the
shares of Envirogen common stock under this prospectus be made only through the
use of a broker-dealer registered in any state where the selling stockholder
engages such broker-dealer and in any state where such broker-dealer intends to
offer and sell the shares. The selling stockholder may use broker-dealers to
sell his shares of Envirogen common stock in such states or in any other state,
in which case the broker-dealers will either receive discounts, commissions or
concessions on such sales from the selling stockholder or from purchasers of
such shares for whom they acted as agents. Any discounts, commissions or
concessions received by any such broker-dealer and any profits on the sale of
shares by them may be deemed to be underwriting discounts and commissions under
the Securities Act of 1933.
Under the Securities Exchange Act of 1934, any person engaged in a
distribution of the shares offered under this prospectus may not bid for or
purchase the shares until after such person has completed his participation in
such distribution, including the period of five business days prior to the
commencement of such distribution. In addition, the selling stockholder and any
other person participating in such distribution will be subject to other
applicable provisions of the Securities Exchange Act of 1934, including
Regulation M, which provisions may affect the timing of purchases and sales of
any of the shares by the selling stockholder 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.
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LEGAL MATTERS
Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania, counsel for Envirogen,
will issue a legal opinion addressing the validity of the securities offered in
this prospectus. Morgan R. Jones, a partner in Drinker Biddle & Reath LLP, is
the Secretary of Envirogen.
EXPERTS
The consolidated balance sheets as of December 31, 1997 and 1996 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, 1997, incorporated by reference in this prospectus, have been
incorporated herein in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses payable by the
registrant in connection with this Registration Statement.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee $ 25.35
Legal Fees and Expenses 5,000
Miscellaneous Expenses 4974.65
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Total............................................... $ 10,000
========
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and 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 registrant'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.
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EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
5 Opinion of Drinker Biddle & Reath LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Drinker Biddle & Reath LLP (included in Exhibit 5)
24 Powers of Attorney
</TABLE>
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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; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (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.
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
II-2
<PAGE>
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 December 30,
1998.
ENVIROGEN, INC.
By: /s/ Robert S. Hillas
-----------------------------------
Robert S. Hillas, 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 December 30, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------- -----
<S> <C>
/s/ Robert S. Hillas Chairman of the Board, President, Chief
- ----------------------------- Executive Officer and Director
Robert S. Hillas (Principal Executive Officer)
/s/ Mark J. Maten Vice President of Finance and Chief
- ----------------------------- Financial Officer (Principal Financial
Mark J. Maten and Accounting Officer)
Robert F. Hendrickson* Director
- -----------------------------
Robert F. Hendrickson
Robert F. Johnston* Director
- -----------------------------
Robert F. Johnston
Nicholas J. Lowcock* Director
- -----------------------------
Nicholas J. Lowcock
Robert C. Miller* Director
- -----------------------------
Robert C. Miller
Peter J. Neff* Director
- -----------------------------
Peter J. Neff
William C. Smith* Director
- -----------------------------
William C. Smith
</TABLE>
___________________
*Robert S. Hillas, 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.
/s/ Robert S. Hillas
----------------------------------
Robert S. Hillas
II-4
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<C> <S>
5 Opinion of Drinker Biddle & Reath LLP
23.1 Consent of PricewaterhouseCoopers LLP
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
December 30, 1998
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 83,334 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 19, 1998 on our audits of the consolidated
financial statements and financial statement schedule of Envirogen, Inc. We
also consent to the reference to our firm under the caption "Experts".
/s/ PricewaterhouseCoopers LLP
Florham Park, New Jersey
December 30, 1998
<PAGE>
Exhibit 24
----------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned does hereby
constitute and appoint Robert S. Hillas and Mark J. Maten, 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
18th day of December, 1998.
/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 Robert S. Hillas and Mark J. Maten, 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
18th day of December, 1998.
/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 Robert S. Hillas and Mark J. Maten, 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
21st day of December, 1998.
/s/ Nicholas J. Lowcock
---------------------------------
Nicholas J. Lowcock
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned does hereby
constitute and appoint Robert S. Hillas and Mark J. Maten, 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
18th day of December, 1998.
/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 Robert S. Hillas and Mark J. Maten, 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
18th day of December, 1998.
/s/ Peter J. Neff
---------------------------------
Peter J. Neff
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned does hereby
constitute and appoint Robert S. Hillas and Mark J. Maten, 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
18th day of December, 1998.
/s/ William C. Smith
---------------------------------
William C. Smith
