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As filed with the Securities and Exchange Commission on August 7, 1996.
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
-------------------
EPL TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Colorado 84-0990658
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
200 Four Falls Corporate Center, Suite 315
West Conshohocken, Pennsylvania 19428
(610) 834-9600
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
PAUL L. DEVINE
Chairman, President and Chief Executive Officer
EPL Technologies, Inc.
200 Four Falls Corporate Center, Suite 315
West Conshohocken, Pennsylvania 19428
(610) 834-9600
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
-------------------
Copy to:
RAYMOND D. AGRAN, ESQ.
BALLARD SPAHR ANDREWS & INGERSOLL
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103-7599
(215) 665-8500
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
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, 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. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to Be Amount to Offering Price Aggregate Amount of
Registered Be Registered Per Share(1) Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock ($.001 par value) 8,216,312 shares $6.375 $52,378,989 $18,062
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Common Stock underlying Warrants 270,684 shares $6.375 $1,725,610 $595
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Common Stock underlying Options 45,000 shares $6.375 $286,875 $99
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Common Stock issuable upon
conversion of Preferred Stock 3,319,999 shares $6.375 $21,164,994 $7,298
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Total 11,851,995 shares $6.375 $75,556,468 $26,054
====================================================================================================================================
</TABLE>
(1) Calculated in accordance with Rule 457(c) on the basis of the average of
the high and low price for the Registrant's Common Stock on August 5, 1996.
-------------------
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE> 2
***************************************************************************
* *
* 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
PRELIMINARY PROSPECTUS DATED AUGUST 7, 1996
PROSPECTUS
11,851,995 Shares
EPL TECHNOLOGIES, INC.
Common Stock
(par value $.001 per share)
This Prospectus relates to 11,851,995 shares (the "Shares") of
common stock, par value $.001 per share ("Common Stock"), of EPL Technologies,
Inc., a Colorado corporation (the "Company"), which may be offered for sale
from time to time by certain shareholders of the Company (the "Selling
Shareholders"), or by their respective pledgees, donees, transferees or other
successors in interest, to or through underwriters or directly to other
purchasers or through agents, in one or more transactions, at varying prices
determined at the time of sale or at negotiated prices (the "Offering"). See
"PLAN OF DISTRIBUTION."
270,684 of the Shares are issuable to Selling Shareholders by the
Company pursuant to the terms of certain outstanding warrants (the "Warrants").
45,000 of the Shares are issuable to Selling Shareholders by the Company
pursuant to the terms of certain outstanding options (the "Options").
3,319,999 of the Shares are issuable to Selling Shareholders by the Company
upon conversion of outstanding shares of the Company's Series A 10% Cumulative
Convertible Preferred Stock (the "Series A Preferred Stock"). Although the
Company will receive the exercise price of any Warrants or Options which are
exercised, the Company will not receive any of the proceeds from the sale of
any Shares by the Selling Shareholders. The expenses of registration of the
Shares which may be offered hereby under the Securities Act of 1933, as amended
(the "Securities Act"), will be paid by the Company.
The Common Stock is traded on the Nasdaq Small Cap Market under the
symbol "EPTG". On August 5, 1996, the closing price of the Common Stock was
$6 3/8.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR INFORMATION THAT SHOULD
BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE SECURITIES OFFERED HEREBY.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS ___________, 1996
<PAGE> 3
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, THE SELLING SHAREHOLDERS OR ANY OTHER PERSON. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH AN OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE SUCH DATE.
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TABLE OF CONTENTS
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Page
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<TABLE>
<S> <C>
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . . . . . . . 3
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SELLING SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
2
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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"). Reports, proxy
statements and other information concerning the Company filed with the
Commission may be inspected and copied at the public reference facilities
maintained by the Commission at its office at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, as well as at the Regional Offices of the
Commission at Citicorp Center, 300 West Madison Street, Chicago, Illinois
60661, and Seven World Trade Center, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Shares of
the Company's Common Stock are traded on the Nasdaq Small Cap Market.
The Company has filed a registration statement on Form S-3 (herein,
together with all amendments and exhibits thereto, the "Registration
Statement"), under the Securities Act with respect to the securities offered
pursuant to this Prospectus. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information, reference is made to the Registration Statement and the
exhibits filed as a part thereof. Statements contained herein concerning any
document filed as an exhibit are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement. Each such statement is qualified in its entirety
by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to the
Exchange Act (File No. 0-28444) are hereby incorporated by reference into this
Prospectus: (a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, as amended by Form 10-K/A, (b) the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996, (c) the Company's
Current Reports on Form 8-K dated February 20, 1996, July 12, 1996 and July 19,
1996, (d) the Company's Current Report on Form 8-K dated September 19, 1995, as
amended on November 14, 1995 and (e) the description of the Common Stock
contained in the Company's Registration Statement on Form 8-A dated
April 30, 1996.
All other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the Offering pursuant to this
Prospectus shall be deemed to be incorporated by reference and to be a part of
this Prospectus from the date of filing of such documents. 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
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a
copy of this Prospectus is delivered, upon oral or written request of any such
person, a copy of any or all of the documents incorporated herein by reference,
other than the exhibits to such documents (unless such exhibits are
specifically incorporated by reference into the information that this
Prospectus incorporates). Requests should be directed to Timothy B. Owen, EPL
Technologies, Inc. 200 Four Falls Corporate Center, Suite 315, West
Conshohocken, Pennsylvania 19428, telephone (610) 834-9600.
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<PAGE> 5
RISK FACTORS
Each prospective investor should carefully consider the following
factors inherent in and affecting the business of the Company and this Offering
before making a decision to purchase the Shares offered hereby.
Losses Since Inception; Uncertainty of Future Profitability. To
date, the Company has generated limited revenues from operations. Primarily as
a result of expenses incurred in organization and reorganization, research and
development and marketing activities, the Company has incurred net losses
aggregating approximately $11,362,545 from its inception through December 31,
1995. The Company expects that it will continue to incur significant operating
losses until such time, if ever, that the Company is able to attain sales
levels for its products and services sufficient to support its operations. The
Company's continuation as a going concern is dependent ultimately upon
attaining profitable operations. There can be no assurance that the Company's
products can be successfully marketed or that the Company will ever achieve
significant revenues or profitable operations.
Future Capital Needs; Uncertainty of Additional Funding. The
Company's capital requirements have been fairly significant, and the Company's
continued ability to operate is dependent upon its ability to maintain adequate
financing and to achieve levels of revenue necessary to support its cost
structure. There can be no assurance the Company will be successful in
obtaining additional financing on commercially acceptable terms, or at all.
Failure to obtain additional financing could materially limit the Company's
ability to fund its operations.
New Industry Uncertainty. The Company is involved in the business
of maintaining the integrity of fresh cut produce, serving a relatively new but
rapidly expanding market. New products are continually being introduced,
although their demand and market acceptance is uncertain. In light of the
evolving nature of the market, there can be no assurance as to the ultimate
level of demand for or market acceptance of the Company's products.
Multiple Product Lines. The Company currently is engaged in two
lines of business, processing aids and packaging, designed to maintain the
integrity of fresh-cut produce. Although the Company believes these two
segments are complementary and present cross-marketing opportunities, there can
be no assurance that they in fact can be successfully cross marketed.
Additionally, if problems are encountered with either line of business, the
financial and personnel resources available to a business of the size of the
Company may be diverted from the other line of business, which could have a
material adverse effect on the Company's business, financial condition and
results of operations.
Competition. Since the U.S. Food and Drug Administration ("FDA")
originally banned the use of sulfites on freshly processed fruits and
vegetables (a ban which was subsequently overturned), other "sulfite
substitutes" have appeared in the marketplace. The Company faces competition
from these products as well as various alternative preservation and packaging
technologies. The Company faces competition in each of its markets from
numerous enterprises, some of which are larger and more established than the
Company and have greater resources. There can be no assurance that the Company
will be able to compete effectively.
Product Obsolescence. The market for technologies used in
maintaining the integrity of fresh cut produce may be characterized by rapidly
changing technology and evolving industry standards, which could result in
product obsolescence or short product life cycles. Therefore, the Company's
ability to achieve and maintain profitability will be dependent upon its
ability to continually enhance and improve its products and its applications
technology. The Company will also be required to develop products and services
to satisfy evolving industry or customer requirements, and may have to expend
significant funds and resources to do so. Additionally, there can be no
assurance that the Company will be successful in improving its current products
or developing new products.
Risks Associated With Food Processing Products. Although all of
the ingredients used in the Company's food processing formulations are detailed
as generally recognized as safe ("GRAS," under the definition of the FDA) the
Company is subject to risks generally associated with food processing products.
These risks include, among
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others, that (i) production defects may occur; (ii) an ingredient used in the
Company's products may be banned, or its use limited; and (iii) sales may be
limited or discontinued due to perceived health concerns, adverse publicity or
other reasons beyond the control of the Company. Regulations applicable to the
Company and its products, including the FDA's current "good manufacturing
practices" and labelling requirements applicable to food, may change, which
could have a material adverse effect on the Company, although the Company is
not aware of any pending regulatory changes that would have such effect.
Extended Sales and Product Commercialization Process. The Company
markets its products to processors of fresh fruits and vegetables for inclusion
in integrated produce processing systems. The testing process involves
numerous stages of product formulation, testing and evaluation by the Company
and the processor, becoming steadily more sophisticated during the process,
before any possible production decision can be made. Introduction of the
Company's products to new produce applications may require product
re-formulation, which can be a time-consuming process. The testing and
evaluation process can also be lengthy and may consume significant time and
resources, particularly if unexpected problems are encountered. Although the
Company believes it has substantially refined and improved its sales efforts,
the sales process remains lengthy and time-consuming, and can limit the rate of
expansion of the Company's customer base. The Company does not believe that
its sales process is likely to shorten significantly and there can be no
assurance that the Company will be successful in creating a broad customer base
for its products.
Possible Adverse Effect of Rapid Expansion. The Company has
significantly increased the scope of its operations within the past twelve
months through numerous acquisitions. There can be no assurance that the
Company's management and financial controls, personnel, computer systems and
other corporate support systems will be adequate to manage the resulting
increase in the size and scope of the Company's operations. In addition,
acquisitions involve a number of special risks, including adverse short-term
effects on the Company's reported operating results, the diversion of
management's attention, the dependence on retention, hiring and training of key
personnel, the amortization of acquired intangible assets and risks associated
with unanticipated problems or legal liabilities, some or all of which could
have a material adverse effect on the Company's operations and financial
performance.
No Assurance that the Company Can Attract or Retain Key Employees.
The Company's success may be dependent upon the efforts of certain key
personnel, including Paul L. Devine, Chairman, President and Chief Executive
Officer. Although the Company has entered into a two-year employment agreement
with Mr. Devine, some key employees do not have employment agreements.
Moreover, the loss of the services of Mr. Devine or other key employees could
have an adverse effect on the Company's business and prospects. Additional
suitably qualified staff will also need to be recruited to expand the business
as planned. There can be no assurance that the Company will be able to recruit
any such personnel, to the extent necessary.
Possible Volatility of Share Price and Absence of Dividends. The
Company's Common Stock began trading on the Nasdaq Small Cap Market on July 9,
1996 in relatively small volume. Previously, the Common Stock was quoted on
the National Association of Securities Dealers "bulletin board", and trading
volume in the Common Stock was therefore more limited. Such limited "float" of
the Company's Common Stock may generate inefficiencies in the Common Stock's
pricing and liquidity. In addition, factors such as operating results, new
customer contracts, developments relating to the Company's products or its
competitors, as well as changes within the industry, may have a significant
effect on the market price of the Common Stock. Other than in connection with
the payment of dividends on its Series A Preferred Stock, the Company intends
to retain earnings, if any, which may be generated from operations to finance
the expansion and development of its business. No cash dividends have been
paid to date on its Common Stock and the Company does not expect to pay cash
dividends to the holders of its Common Stock in the foreseeable future.
Patents, Proprietary Information and Trademarks. The Company's
success is dependent in part on its ability to obtain patent protection for its
products, maintain trade secret protection and operate without infringing
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the proprietary rights of others. The Company currently has two U.S. patents,
two U.S. patents pending and numerous others under review for application.
Furthermore, it has one overseas patent and patents pending in 26 overseas
countries for its main technology, with others under review. There can be no
assurance that patents issued to or licensed by the Company will provide the
Company with any competitive advantages or adequate protection for its
products. Moreover, no assurance can be given that any patents issued to or
licensed by the Company will not be challenged, invalidated or circumvented by
others. The Company's patent rights on its products might conflict with the
patent rights of others, whether existing now or in the future. Alternatively,
the products of others could infringe the patent rights of the Company. The
defense and prosecution of patent claims is both costly and time consuming,
even if the outcome were favorable to the Company. An adverse outcome could
subject the Company to significant liabilities to third parties, require
disputed rights to be licensed from third parties or require the Company to
cease selling its products.
The Company also relies on trade secrets and proprietary know-how,
which it seeks to protect in part by confidentiality agreements with its
collaborators, employees and consultants. There can be no assurance that these
agreements will not be breached, that the Company will have adequate remedies
for any such breach or that the Company's trade secrets will not otherwise
become known or be independently developed by competitors.
Although the Company intends to defend its proprietary intellectual
property rights, there can be no assurance that the Company will have the
financial or other resources necessary to enforce or defend a patent or
proprietary rights violation action.
International Sales. A significant portion of the Company's
revenues are earned outside of the United States and therefore are subject to
the risks associated with international sales, including economic or political
instability in the Company's markets, shipping delays, fluctuations in foreign
currency exchange rates and various trade restrictions, all of which could have
a significant impact on the Company's ability to deliver products on a
competitive and timely basis. Future imposition of, or significant increases
in the level of, customs, duties, export quotas or other trade restrictions,
could have an adverse effect on the Company's business, financial condition and
results of operations. In addition, the laws of certain foreign countries do
not protect the Company's intellectual property rights to the same extent as do
the laws of the United States, although this effect is lessened in countries
that adhere to the General Agreement on Tariffs and Trade.
Outstanding Options. At July 26, 1996, approximately 2,505,500
options have been granted, exercisable at various dates within the next five
years, and 1,359,500 shares remain available for issuance under the Company's
1994 Stock Incentive Plan. The Company also may consider amending the 1994
Stock Incentive Plan to increase the number of shares available for issuance
thereunder. To the extent that the options (or any other future options issued
under the 1994 Stock Incentive Plan or any other stock option plan that the
Company may adopt hereafter) are exercised, material and substantial dilution
to the interests of the Company's stockholders will occur. Moreover, the terms
upon which the Company will be able to obtain additional equity capital may be
adversely affected since the holders of the options can be expected to exercise
them at a time when the Company would, in all likelihood, be able to obtain any
needed capital on terms more favorable to the Company than those provided in
the options or any other such options.
Shares Eligible for Future Sale. Future sales by existing
shareholders could adversely affect the prevailing market price of the Common
Stock. Upon completion of the Offering, assuming exercise in full of all of the
Warrants and Options and the conversion of the Series A Preferred Stock, the
Company will have 19,285,733 shares of Common Stock outstanding. All of the
Shares offered hereby will be eligible for immediate sale in the public market
without restriction. Other unregistered shares outstanding or issuable upon
conversion of Series A Preferred Stock may be eligible for immediate resale,
subject in some cases to compliance with the notice, volume and other
limitations of Rule 144 promulgated under the Securities Act. In addition, the
Company has effective registration statements covering an aggregate of
2,320,000 shares issued or issuable upon the exercise of options granted under
its 1994 Stock Incentive Plan and another plan (collectively, the "Stock Option
Plans"). The Company
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intends to file a registration statement covering an additional 1,500,000
shares of Common Stock underlying options to be granted under the 1994 Stock
Incentive Plan, as recently amended. As of July 26, 1996 approximately
2,320,000 shares had been issued or were issuable upon the exercise of options
and are eligible for immediate sale in the public market.
THE COMPANY
EPL Technologies, Inc. is in the business of maintaining the
integrity of fresh-cut produce. It offers its own patented and proprietary
technology to processors of fresh fruits and vegetables as part of the
processors' integrated produce processing systems. The Company's proprietary
technology includes processing aids, all of which the Company formulates at its
own facilities. All of the ingredients used in the Company's food processing
formulations are identified by the U.S. Food and Drug Administration as "GRAS"
("generally recognized as safe") and the Company believes its products are
safe, environmentally friendly and add significant value to the business of its
customers. The Company's goal is to become a world class provider of products
designed to maintain the integrity of fresh produce. As consumer awareness of
the possible health hazards of preservatives continues to grow, management
believes interest in the Company's products will increase. The Company also is
continually searching for new ways to market its products and expand
operations, both organically and, where appropriate opportunities can be
identified, through strategic acquisitions, although the Company has currently
no agreements in principle with respect to any such acquisitions.
As part of its objective to develop and integrate technologies that
maintain the integrity of fresh-cut produce, in September 1994 the Company
acquired Respire Films, Inc. This acquisition provided the Company access to a
packaging-related technology in the fresh-cut produce industry, complementary
to other products and services offered by the Company, thus allowing the
Company to pursue its plan of providing the industry with a full systems
approach to maintaining product integrity. The acquisition has also afforded
the Company cross-marketing opportunities for such other products and services.
In September 1995 the Company acquired Bakery Packaging Services
Limited ("BPS"). BPS, based in northwest England, manufactures and sells
packaging materials, principally perforated packaging materials used by leading
companies in the fresh-cut produce and institutional bakery industries. BPS
also produces wax-coated packaging used principally in the confectionery
industry. The Company believes the acquisition of BPS provides it with an
additional source of packaging, access to new packaging technologies and an
opportunity for additional cross-marketing activities. BPS' operations
currently provide the Company's largest single source of revenue.
In February 1996, the Company executed a letter of intent with
Potanden Produce LLC, which markets products under the Green Giant label under
license from The Pillsbury Company, for an exclusive North American license and
technical assistance agreement relating to the Company's Potato Fresh(TM)
product, subject to negotiation and execution of a definitive agreement. This
agreement is currently under negotiation and although there can be no assurance
that a definitive agreement in fact will be completed, the Company expects to
file a Report on Form 8-K regarding the eventual completion or the termination
of these negotiations.
In April 1996, through a newly formed, wholly-owned subsidiary,
Pure Produce, Inc. ("PPI"), the Company acquired certain assets of Pure
Produce. PPI is engaged in the business of providing companies in the food
industry, especially those involved with fresh and minimally processed produce,
with analyses, protocols and plans relating to food and quality assurance
programs, including microbial testing. The Company believes that this further
extends the range of products and services it can offer the fresh produce
industry via its total systems approach.
In July 1996 the Company acquired, through a newly formed
wholly-owned UK subsidiary, EPL Flexible Packaging Limited ("EPL Flexible"),
certain fixed assets of Printpack Europe (St Helens) Limited ("Printpack St
Helens"). EPL Flexible also assumed a lease of real estate located in
Gainsborough, Lincolnshire, UK, and offered employment to some of the employees
of Printpack St Helens. EPL Flexible will specialize in the printing of
flexible packaging films serving primarily the snackfood industry. The Company
is considering the transfer of certain printing functions from BPS to the
Gainsborough facility to achieve economies of scale and increase production at
the Gainsborough facility, while freeing plant capacity at BPS for expanded
film perforation production.
Also in July 1996, through a new wholly-owned US subsidiary,
Crystal Specialty Films, Inc., the Company acquired the assets and assumed some
of the liabilities of Crystal Plastics, Inc., based in Illinois. Crystal uses
"K" and polystyrene resins to manufacture a range of proprietary films for a
variety of applications. Crystal
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will serve as the site for installation of proprietary gas flame perforation
equipment which the Company has had custom-built in the UK and which is planned
to be the basis for penetration of the U.S. film perforation market, which the
Company is currently serving, to a limited degree, from the U.K. The Company
currently is providing to a U.S. film manufacturer, under an interim purchase
order, the Company's proprietary gas flame perforation of film, which film the
Company is currently shipping, at this U.S. customer's expense, to and from the
Company's perforation facility in the U.K. The Company currently is negotiating
with this U.S. customer to convert this interim purchase order into a long-term
supply agreement, although there can be no assurance that a definitive
agreement in fact will be completed. The Company expects to file a Report on
Form 8-K regarding the eventual completion or termination of these
negotiations.
In addition, also in July 1996, the Company formed NewCornCo LLC, a
jointly owned limited liability company in which the Company owns a 51%
interest. The other member of NewCornCo is Underwood Ranches, the trade name
of Agricultural Innovation and Trade, Inc.("AIT"). The new company will
utilize the Company's proprietary processing aid and packaging technologies and
AIT's existing corn processing and distribution capabilities to develop a
year-round, national, value-added market for fresh corn products.
The Company's executive offices are located at 200 Four Falls
Corporate Center, Suite 315, West Conshohocken, Pennsylvania 19428, and its
telephone number is (610) 834-9600.
USE OF PROCEEDS
The net proceeds from the sale of the Shares will be received by
the Selling Shareholders. The Company will not receive any of the proceeds
from any sale of the Shares by the Selling Shareholders, but will receive the
exercise price of any Options or Warrants exercised by the Selling
Shareholders, up to a maximum of approximately $873,533. Any proceeds
received from the exercise of the Options or Warrants will be used for working
capital and general corporate purposes.
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<PAGE> 10
SELLING SHAREHOLDERS
The table below sets forth information as of July 26, 1996 with
respect to the Selling Shareholders, including names, holdings of shares of
Common Stock prior to the offering of the Shares, the number of Shares being
offered for each account, and the number and percentage of shares of Common
Stock to be owned by the Selling Shareholders immediately following the sale of
the Shares, assuming all of the offered Shares are sold.
<TABLE>
<CAPTION>
Shares Beneficially Owned Shares Beneficially Owned
Before the Offering(1) After the Offering(1)(2)
------------------------- -------------------------
Shares Being
Name Number Percent Offered Number Percent
---- ------ ------- ------- ------ -------
<S> <C> <C> <C> <C> <C>
Alis & Co. 125,000 * 125,000 0 *
Minos Athanassiadis 15,000(3) * 15,000 0 *
Andy Baxter 40,000(4) * 40,000 0 *
Boyd & Co. 225,000 1.5% 225,000 0 *
Aubrey Brocklebank 25,000 * 25,000 0 *
Brown Brothers Harriman & Company 6,667 * 6,667 0 *
Nicholas A. Buoniconti 100,000 * 100,000 0 *
W. Ward Carey 37,500 * 37,500 0 *
Robert M. Chasson Trust 41,995(5) * 41,995 0 *
Shawn J. Collins 113,500(6) * 2,500 111,000 *
Lee E. Cooper 50 * 50 0 *
Laura Cowan 8,000(7) * 2,500 5,500 *
Paul L. Devine 1,140,833(6)(7) 7.0 340,833 800,000 4.9%
William Dickinson 4,800(8) * 4,800 0 *
Virginia Finnerty 127,500(6) * 2,500 125,000 *
Barry L. Friedson 7,500 * 7,500 0 *
Hesham A. Gawad 42,500(6) * 2,500 40,000 *
Joseph Giamanco 100,000 * 100,000 0 *
John Goepfert 8,667(9) * 8,667 0 *
Robert E. Goldschmidt 50,000 * 50,000 0 *
Harvest Investments 16,000(10) * 16,000 0 *
Hyprom S.A. 166,667 1.1 166,667 0 *
Mark Jephcott 22,400(11) * 22,400 0 *
Sandra Jones 750(9) * 750 0 *
Jungbunzlauer Holding AG 687,332 4.5 687,332 0 *
Bernice Kaminski 2,667(9) * 2,667 0 *
Jack Kehoe 208,633(12) 1.2 138,633 70,000 *
Veronica M. Kehoe 22,500(13) * 2,500 20,000 *
Keyway Investments Ltd. 100,000 * 100,000 0 *
Jane Kidd 16,000(14) * 16,000 0 *
Lancer Partners LP 2,494,664(15) 16.2 2,494,664 0 *
Robert H. Langman 12,500(6) * 2,500 10,000 *
Ethan K. Liebermann 5,000 * 5,000 0 *
Ruth K. Liebermann 90,000 * 90,000 0 *
Nyssa K. Liebermann 5,000 * 5,000 0 *
Joel Longstreth 140,000(16) * 70,000 70,000 *
Sandra Kay Longstreth 70,000(17) * 70,000 0 *
</TABLE>
9
<PAGE> 11
<TABLE>
<CAPTION>
Shares Beneficially Owned Shares Beneficially Owned
Before the Offering(1) After the Offering(1)(2)
------------------------- -------------------------
Shares Being
Name Number Percent Offered Number Percent
---- ------ ------- ------- ------ -------
<S> <C> <C> <C> <C> <C>
Robert D. Mattei 393,531(18) 2.5 213,531 180,000 1.2
Denise Mattei 20,000(19) * 20,000 0 *
Phyllis Meier 33,333(20) * 33,333 0 *
Janet Morgan 400(9) * 400 0 *
Jenny Muir 25,000 * 25,000 0 *
Timothy B. Owen 225,000(6) 1.4 25,000 200,000 1.3
Quaestas S.A. 525,000(21) * 525,000 0 *
Pence Revington 500 * 500 0 *
Jim Roberts 15,000(3) * 15,000 0 *
S.W. Ryan & Company Inc. 66,667 * 66,667 0 *
Robert R. Sargert 32,500(6) * 2,500 30,000 *
Bruce Schermerhorn 82,500(6) * 2,500 80,000 *
Bruce Slovin 113,333(22) * 113,333 0 *
Linda K. Sorens 10,000 * 10,000 0 *
John M. Surgent 9,000 * 9,000 0 *
Taglich Brothers, D'Amadeo, Wagner
& Co., Inc. 5,000 * 5,000 0 *
Robert Taglich 7,500 * 7,500 0 *
Michael Taglich 7,500 * 7,500 0 *
Trilon Dominion Partners LLC 5,579,606(23) 30.8 5,579,606 0 *
Craig Underwood 15,000(3) * 15,000 0 *
TRP Partners 96,000(24) * 96,000 0 *
Elizabeth Watters 11,000(9) * 1,000 10,000 *
Joe Whitesides 48,000(25) * 48,000 0 *
Thomas Whitesides 8,500(6) * 2,500 6,000 *
</TABLE>
____________________
* Less than 1%.
(1) Beneficial ownership is determined in accordance with rules of the
Securities and Exchange Commission, and includes generally voting power
and/or investment power with respect to securities. Shares of Common
Stock subject to options or warrants currently exercisable or exercisable
within 60 days of July 26, 1996 are deemed outstanding for computing the
percentage of the person holding such options but are not deemed
outstanding for computing the percentage of any other person. Except as
indicated by footnote, the persons named in the table above have sole
voting and investment power with respect to all shares of Common Stock
shown as beneficially owned by them.
(2) Assumes all Shares offered hereby are sold in the Offering.
(3) All of such shares of Common Stock are issuable pursuant to the exercise
of Options.
(4) Includes 33,333 shares of Common Stock issuable upon conversion of Series
A Preferred Stock and 6,667 shares of Common Stock issuable upon exercise
of Warrants.
(5) Such shares are held by Robert M. Chasson as trustee.
10
<PAGE> 12
(6) Includes the following number of shares of Common Stock issuable upon the
exercise of options granted under the Company's Stock Option Plans:
<TABLE>
<S> <C>
Shawn J. Collins 111,000
Laura Cowan 5,500
Paul L. Devine 800,000
Virginia Finnerty 125,000
Hesham A. Gawad 40,000
Robert H. Langman 10,000
Timothy B. Owen 200,000
Robert R. Sargent 30,000
Bruce Schermerhorn 80,000
Thomas Whitesides 6,000
</TABLE>
(7) Includes 66,667 shares of Common Stock issuable upon conversion of Series
A Preferred Stock and 13,333 shares of Common Stock issuable upon
exercise of Warrants.
(8) Includes 4,000 shares of Common Stock issuable upon conversion of Series
A Preferred Stock and 800 shares of Common Stock issuable upon exercise
of Warrants.
(9) All of such shares of Common Stock are issuable upon exercise of
Warrants.
(10) Includes 13,333 shares of Common Stock issuable upon conversion of Series
A Preferred Stock and 2,667 shares of Common Stock issuable upon exercise
of Warrants.
(11) Includes 18,667 shares of Common Stock issuable upon conversion of Series
A Preferred Stock and 3,733 shares of Common Stock issuable upon exercise
of Warrants.
(12) Includes 50,000 shares of Common Stock issuable upon exercise of options
granted pursuant to the Company's Stock Incentive Plan and 10,000 shares
of Common Stock issuable upon exercise of Warrants. Does not include
22,500 shares beneficially owned by Mr. Kehoe's spouse, as to which he
disclaims beneficial ownership. (See Note 13.)
(13) Does not include 188,633 shares of Common Stock beneficially owned by
Mrs. Kehoe's spouse, as to which she disclaims beneficial ownership.
(See Note 12.)
(14) Includes 13,333 shares of Common Stock issuable upon conversion of Series
A Preferred Stock and 2,667 shares of Common Stock issuable upon exercise
of Warrants.
(15) Includes 730,000 shares of Common Stock owned by Lancer Off-Shore, Inc.,
which is under common control with Lancer Partners, L.P.
(16) Includes 70,000 shares of Common Stock issuable upon exercise of options
granted under the Company's Stock Incentive Plan. Does not include
70,000 shares of Common Stock owned by Mr. Longstreth's spouse, as to
which he disclaims beneficial ownership. (See Note 17.)
11
<PAGE> 13
(17) Does not include 140,000 shares of Common Stock beneficially owned by
Mrs. Longstreth's spouse, as to which she disclaims beneficial ownership.
(See Note 16.)
(18) Includes 180,000 shares of Common Stock issuable upon exercise of options
granted under the Company's Stock Option Plans. Does not include 20,000
shares beneficially owned by Mr. Mattei's spouse, as to which he
disclaims beneficial ownership. (See Note 19.)
(19) Does not include 393,531 shares beneficially owned by Mrs. Mattei's
spouse, as to which shares she disclaims beneficial ownership. (See Note
18.)
(20) Includes 33,333 shares of Common Stock issuable upon conversion of Series
A Preferred Stock.
(21) Includes 400,000 shares of Common Stock issuable upon conversion of
Series A Preferred Stock and 80,000 shares of Common Stock issuable upon
the exercise of Warrants.
(22) Includes 13,333 shares of Common Stock issuable upon the exercise of
Warrants.
(23) Includes 2,617,333 shares of Common Stock issuable upon conversion of
Series A Preferred Stock and 100,000 shares of Common Stock issuable upon
the exercise of Warrants.
(24) Includes 80,000 shares of Common Stock issuable upon conversion of Series
A Preferred Stock and 16,000 shares of Common Stock issuable upon the
exercise of Warrants.
(25) Includes 40,000 shares of Common Stock issuable upon conversion of Series
A Preferred Stock and 8,000 shares of Common Stock issuable upon the
exercise of Warrants.
RELATIONSHIPS BETWEEN THE COMPANY AND THE SELLING SHAREHOLDERS
Paul L. Devine has served as the Company's Chairman, President and
Chief Executive Officer since March 1992.
Timothy B. Owen was appointed European Financial Controller of the
Company in 1995 and prior thereto, from 1992 until 1995, performed financial
and accounting services for the Company as an independent consultant.
Shawn Collins has served as the Company's Treasurer since July
1994, Secretary since October 1994, and Controller since July 1993.
Joel Longstreth has served as President of Respire Films, Inc., a
wholly-owned subsidiary of the Company, since the Company's acquisition of
Respire in September 1994. In connection with such acquisition, as the
controlling shareholder of Respire, Mr. Longstreth and his spouse each received
70,000 shares of the Company's Common Stock in exchange for the common stock of
Respire.
Robert Mattei has served as a Director of the Company since
February 1988.
Aubrey Brocklebank serves as a director of EPL Limited, a
wholly-owned UK subsidiary of the Company with limited operations.
Laura Cowan, Virginia Finnerty, Hesham A. Gawad, Robert H. Langman,
Robert R. Sargert, Bruce Schermerhorn and Thomas Whitesides are employees of
the Company.
Barry L. Friedson and Linda K. Sorens are former employees of the
Company.
12
<PAGE> 14
The Company had a revolving line of credit under an agreement
originally obtained from Dominion Capital, Inc. ("Dominion"), a related party
of Trilon Dominion Partners LLC ("Trilon"), which was to have expired on March
21, 1998, bearing interest at prime plus 2.5%. In July 1995, Dominion
transferred its interest in this line of credit to Trilon. On October 2, 1995
Trilon agreed to convert the outstanding principal amount of $4,050,000 under
the line of credit into 2,025,000 shares of Common Stock and Warrants to
purchase 100,000 shares of Common Stock for $2.00 per share. The Company also
issued 162,613 shares of Common Stock in settlement of accrued interest of
$310,164, and 46,500 shares of Common Stock in settlement of commitment fees.
The Company currently obtains all of its requirements for certain
raw materials from a subsidiary of Jungbunzlauer Holding AG. In the years
ended December 31, 1995 and 1994, these purchases totaled $35,760 and $30,514,
respectively. Dr. Rainer G. Bichlbauer, a director of the Company since July
1994, serves as Director of Finance and Marketing of Jungbunzlauer Holding AG.
Minos Athanassiadis, Jim Roberts and Craig Underwood are
shareholders of AIT, which holds a 49% interest in NewCornCo LLC. Messrs.
Athanassiadis, Roberts and Underwood each were issued Options to purchase
15,000 shares of Common Stock for $7.00 per share in connection with the
creation of NewCornCo LLC.
Jack Kehoe is the founder of Kehoe White & Savage & Co., Inc., which
has been the primary provider of significant public relations and other
consulting services to the Company on an ongoing basis since 1993. Sandra
Jones, Janet Morgan and Elizabeth Watters are employees of Kehoe White & Savage
& Co., Inc.
PLAN OF DISTRIBUTION
Any distribution of the Shares by the Selling Shareholders, or by
their pledgees, donees, transferees or other successors in interest, may be
effected from time to time in one or more of the following transactions: (a) to
underwriters who will acquire the Shares for their own account and resell them
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale (any
public offering price and any discount or concessions allowed or reallowed or
paid to dealers may be changed from time to time); (b) through brokers, acting
as principal or agent, in transactions (which may involve block transactions)
on the Nasdaq Stock Market or on one or more exchanges on which the Shares are
then listed, in special offerings, exchange distributions pursuant to the rules
of the applicable exchanges or in the over-the-counter market, or otherwise, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices or at fixed prices; (c) directly
or through brokers or agents in private sales at negotiated prices; or (d) by
any other legally available means.
The Selling Shareholders and such underwriters, brokers, dealers or
agents, upon effecting a sale of the Shares, may be considered "underwriters"
as that term is defined by the Securities Act.
Underwriters participating in any offering made pursuant to this
Prospectus (as amended or supplemented from time to time) may receive
underwriting discounts and commissions, discounts or concessions may be allowed
or reallowed or paid to dealers, and brokers or agents participating in such
transaction may receive brokerage or agent's commissions or fees.
Upon the Company being notified by any Selling Shareholder that a
material arrangement has been entered into with a broker or dealer for the sale
of shares through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplemented
Prospectus will be filed, if required, pursuant to Rule 424(c) under the
Securities Act, disclosing (a) the name of each such broker-dealer, (b) the
number of shares involved, (c) the price at which such shares were sold, (d)
the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (e) that such broker-dealer(s) did not
conduct any
13
<PAGE> 15
investigation to verify the information set out or incorporated by reference in
this Prospectus, as supplemented, and (f) other facts material to the
transaction.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions, if required, only
through registered or licensed brokers or dealers. In addition, in certain
states the Shares may not be sold unless the Shares have been registered or
qualified for sale in such state or an exemption from registration or
qualification is available and complied with.
The Company has agreed that it will bear all costs, expenses and
fees in connection with the registration of the Shares.
LEGAL MATTERS
The validity of the Shares offered hereby is being passed upon for
the Company by Ballard Spahr Andrews & Ingersoll, Philadelphia, Pennsylvania
and Denver, Colorado.
EXPERTS
The consolidated financial statements incorporated in this
prospectus by reference from the Company's Annual Report on Form 10-K/A for the
years ended December 31, 1995 and 1994 have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference and have been so incorporated in reliance upon the report of
such firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements of EPL Technologies, Inc. and
subsidiaries for the year ended December 31, 1993 included in the Company's
Annual Report on Form 10-K/A have been audited by Schalleur & Company,
independent auditors, as set forth in their report thereon. Such consolidated
financial statements are included herein in reliance upon such report given
upon the authority of such firm as experts in accounting and auditing.
The financial statements of Bakery Packaging Services Limited for
the years ended November 30, 1994 and 1993 included in the Company's Current
Report on Form 8-K dated September 19, 1995, as amended on November 14, 1995
have been audited by Porter Matthews & Marsden, independent auditors, as set
forth on their report thereon. Such financial statements are included herein
in reliance upon such report given upon the authority of such firm as experts
in accounting and auditing.
14
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a list of the estimated expenses to be incurred by
the Registrant in connection with the issuance and distribution of the Shares
being registered hereby.
<TABLE>
<S> <C>
SEC Registration Fee . . . . . . . . . . . . . $ 26,054
Accountants' Fees and Expenses . . . . . . . . *
Legal Fees and Expenses . . . . . . . . . . . . *
Miscellaneous . . . . . . . . . . . . . . . . . *
----------
TOTAL . . . . . . . . . . . . . . . . . . $ *
</TABLE>
____________________
* To be supplied by amendment (as estimated and subject to change).
The Selling Shareholders will not bear any portion of the
expenses of registration of the Shares.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Article 109 of the Colorado Business Corporation Act, as amended
(the "CBCA"), the Company has the power to indemnify directors and officers
under prescribed circumstances and subject to certain limitations against
certain costs and expenses, including attorneys' fees actually and reasonably
incurred in connection with any action, suit or proceeding, whether civil,
criminal, administrative or investigative, to which any of them is a party by
reason of his or her being a director or officer of the Company if it is
determined that he or she acted in accordance with the applicable standard of
conduct set forth in such statutory provisions.
Article V F. of the Company's Articles of Incorporation, as amended
and Article VI of the Company's Bylaws, as amended, provide that the Company
shall indemnify directors and officers of the Company against all expenses,
liability and loss incurred as a result of such person's being a party to, or
threatened to be made a party to, any proceeding (as defined, which includes
any threatened proceeding) by reason of the fact that he or she is or was a
director or officer of the Company or is otherwise the subject of any such
proceeding by reason of that person's relationship with the Company, to the
fullest extent authorized by the CBCA, if the person conducted the activities
in question in good faith, reasonably believed that the conduct was in the
Company's best interests or was not opposed to the Company's best interests
and, in the case of a criminal proceeding, had no reasonable cause to believe
the conduct was unlawful. Article VI of the Bylaws further permits the Company
to maintain insurance, at its expense, to protect itself and any such director
or officer of the Company against any such expenses, liability or loss, whether
or not the Company would have the power to indemnify such person against such
expenses, liability or loss under the Bylaws. The Company has directors' and
officers' liability insurance.
II-1
<PAGE> 17
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
3.1* Amended and Restated Articles of Incorporation of the Company.
3.2 Amended and Restated Bylaws of the Company (Incorporated by reference to Exhibit 3.2 to
the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994 on
file with the Commission).
4.1 Specimen Common Stock Certificate (Incorporated by reference to Exhibit 4.1 to the
Company's Annual Report or Form 10-K for the eight months ended December 31, 1992 on
file with the Commission)
4.2 Specimen Series A Preferred Stock Certificate (Incorporated by reference to Exhibit 4.2
to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993
on file with the Commission).
4.3 Specimen Series A Preferred Stock, Subscription Agreement (Incorporated by reference to
Exhibit 4.3 to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 on file with the Commission).
5.1** Opinion of Ballard Spahr Andrews & Ingersoll as to the validity of the shares of Common
Stock being registered.
24.1* Consent of Schalleur & Company.
24.2* Consent of Porter Matthews & Marsden
24.3* Consent of Deloitte & Touche LLP.
24.4** Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5.1).
</TABLE>
* Filed herewith.
** To be filed by amendment.
ITEM 17. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the "Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high 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
II-2
<PAGE> 18
more than a 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do
not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Securities and Exchange Commission (the "Commission") by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that for purposes
of determining any liability under the Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the 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> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of West Conshohocken,
Commonwealth of Pennsylvania, on August 6, 1996.
EPL TECHNOLOGIES, INC.
By: /s/ Paul L. Devine
------------------------------------
Paul L. Devine
Chairman, President and Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below in so signing also makes, constitutes and appoints Paul
L. Devine as his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution for him and in his name, place and stead, in
any and all capacities to execute and cause to be filed with the Securities and
Exchange Commission any and all amendments (including pre-effective and
post-effective amendments) to this Registration Statement, with exhibits
thereto and other documents in connection therewith, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully as to all intents and purposes as he might or could do in
person, and hereby ratifies and confirms all that said attorney-in-fact and
agent or his substitute may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Paul L. Devine Chairman, President and August 6, 1996
- --------------------------- Chief Executive Officer
Paul L. Devine (Principal Executive Officer)
/s/ Timothy B. Owen Principal Financial and August 6, 1996
- --------------------------- Accounting Officer
Timothy B. Owen
/s/ William J. Hopke Director August 6, 1996
- ---------------------------
William J. Hopke
/s/ Robert D. Mattei Director August 6, 1996
- ---------------------------
Robert D. Mattei
/s/ Rainer G. Bichlbauer Director August 6, 1996
- ---------------------------
Dr. Rainer G. Bichlbauer
</TABLE>
II-4
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------ ----------- ------------
<S> <C> <C>
3.1* Amended and Restated Articles of Incorporation of the Company.
3.2 Amended and Restated Bylaws of the Company (Incorporated by
reference to Exhibit 3.2 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1994 on file with
the Commission).
4.1 Specimen Common Stock Certificate (Incorporated by reference to
Exhibit 4.1 to the Company's Annual Report or Form 10-K for the
eight months ended December 31, 1992 on file with the
Commission)
4.2 Specimen Series A Preferred Stock Certificate (Incorporated by
reference to Exhibit 4.2 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1993 on file with
the Commission).
4.3 Specimen Series A Preferred Stock, Subscription Agreement
(Incorporated by reference to Exhibit 4.3 to the Company's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 on file with the Commission).
5.1** Opinion of Ballard Spahr Andrews & Ingersoll as to the validity
of the shares of Common Stock being registered.
24.1* Consent of Schalleur & Company.
24.2* Consent of Porter Matthews & Marsden
24.3* Consent of Deloitte & Touche LLP.
24.4** Consent of Ballard Spahr Andrews & Ingersoll (included in
Exhibit 5.1).
</TABLE>
* Filed herewith.
** To be filed by amendment.
<PAGE> 1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
EPL TECHNOLOGIES, INC.
Pursuant to the provisions of the Colorado Business
Corporation Act, the undersigned corporation (the "Corporation") adopts the
following Amended and Restated Articles of Incorporation. The Corporation
certifies as follows:
FIRST: The name of the Corporation is EPL Technologies, Inc.
SECOND: Paragraph A of Article V of the Articles of Incorporation
has been amended to read as it appears below. The
amendment was adopted on July 22, 1996 by a vote of the
shareholders. The number of shares voted for the
amendment was sufficient for approval.
THIRD: The following restatement of the Articles of Incorporation was
adopted on July 22, 1996 by the Board of Directors of the
Corporation without shareholder action, as shareholder action
was not required for such restatement.
FOURTH: The following articles correctly set forth the provisions
of the Articles of Incorporation, as amended, and
supersede the original Articles of Incorporation and all
amendments thereto:
ARTICLE I
The name of the Corporation is EPL Technologies, Inc.
ARTICLE II
The period of duration of the Corporation shall be perpetual.
ARTICLE III
The purposes for which the Corporation is organized are: The
transaction of all lawful business for which corporations may be incorporated
pursuant to the laws of the State of Colorado, whether acting singly or in
conjunction with any other person or entity.
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ARTICLE IV
In furtherance of the purposes set forth in Article III of
these Articles of Incorporation, the Corporation shall have and may exercise all
of the rights, powers, and privileges now or hereafter conferred upon
corporations organized under and pursuant to the laws of the State of Colorado.
ARTICLE V
A. Authorized Shares. The Corporation shall have the authority to issue
fifty million (50,000,000) shares of common stock with a par value $0.001 per
share, three million two hundred fifty thousand (3,250,000) shares of Series A
10% Cumulative Convertible Preferred Stock with a par value of $1.00 per share
("Series A Preferred Stock") and two million (2,000,000) shares of preferred
stock with a par value of $.01 per share ("Board Designated Preferred Stock").
The Board of Directors of the Corporation may determine, in whole or in part,
the preferences, limitations, and relative rights of the Board Designated
Preferred Stock, within the limits set forth in Section 7-106-101 of the
Colorado Business Corporation Act, of any class of the Board Designated
Preferred Stock, before the issuance of any shares of that class, or one or more
series within a class of the Board Designated Preferred Stock before the
issuance of any shares of that series. The Board of Directors may issue, in one
or more classes or series, shares of the Board Designated Preferred Stock with
full, limited, multiple, fractional or no voting rights, and with such
designations, preferences, qualifications, privileges, limitations,
restrictions, options, conversion rights, or other special or relative rights as
shall be fixed from time to time by the Board of Directors, except for and
subject to, in each case, the limits set forth in Section 7-106-101 of the
Colorado Business Corporation Act and in accordance with the provisions and
requirements of Section 7-106-102 of the Colorado Business Corporation Act.
B. Transfer Restrictions. The Corporation shall have the right, by
appropriate action, to impose restrictions upon the transfer of any shares of
its stock or any interest therein, from time to time provided that any
restrictions imposed, or notice of the substance thereof, shall be set forth
upon the face or back of the Certificates representing the Corporation's shares
of stock.
C. Preemptive Rights. The holders of the shares of the common stock of
the Corporation shall not be entitled, as of right, to purchase or subscribe for
any unissued or treasury stock of any class, or any additional stock of any
class to be issued by reason of any increase of the authorized shares of the
Corporation of any class, or any bonds, certificates of indebtedness, debenture,
or other securities, rights, warrants or options convertible into
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shares of the Corporation or carrying any right to purchase shares of any class
in accordance with their proportionate equity in the Corporation.
D. Cumulative Voting. The cumulative system of voting for Directors or
for any other purpose shall not be allowed.
E. Series A Preferred Stock. The terms, preferences and relative,
participating, optional or other special rights of the Series A Preferred Stock
and the limitations and restrictions thereof are as follows:
Dividend Rights. Holders of the Series A Preferred Stock are entitled
to dividends at the rate of 10% per annum of the par value of the
stock. At the option of the Corporation, these dividends may be paid
either in cash or in common stock. If the dividends are paid in common
stock, the common stock will be valued at the conversion price, which
is $0.75 per share (subject to adjustment for stock splits, stock
dividends, the effect of mergers and the like). If the dividends are
not paid, the right to receive unpaid dividends will accumulate, but
without interest. No dividends may be paid on the common stock at a
time when payment of dividends on the Series A Preferred Stock is in
arrears.
Terms of Conversion. Each share of Series A Preferred Stock may be
converted into that number of full shares of common stock of the
Corporation determined by dividing $1.00 by the Conversion Price of
$0.75 per share (subject to adjustment for stock splits, stock
dividends, the effect of mergers and the like). Conversion may be
elected by the holder of the Series A Preferred Stock at any time prior
to payment of a distribution in liquidation with respect to the Series
A Preferred Stock. Payment in cash will be made in lieu of issuance of
fractional shares.
Voting Rights. Each holder of Series A Preferred Stock is entitled to
the number of votes equal to the number of whole shares of common stock
into which the shares of Series A Preferred Stock are convertible.
Except when voting by class or series is required by law or the
Articles of Incorporation, holders of the Series A Preferred Stock
shall vote together with the holders of the common stock as a single
class.
Liquidation Rights. In the event of the liquidation, dissolution or
winding up of the Corporation, the holders of shares of Series A
Preferred Stock are entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders $1.00 per
share (subject to adjustment for stock splits, stock dividends, the
effect of mergers and the like affecting the Series A Preferred Stock).
This payment
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shall be made in full by the Corporation prior to any payment being
made to the holders of the common stock.
No Other Rights. The Series A Preferred Stock will not have the benefit
of any sinking fund provisions, any redemption provisions, any
preemptive rights to subscribe to any additional shares of any class or
series of the Corporation's stock, or any liability to further calls or
assessments. The Series A Preferred Stock will not have any right to
elect a separate class of Directors of the Corporation. There is no
restriction on the repurchase or redemption of any shares of the
Corporation while there is any arrearage in the payment of dividends on
the Series A Preferred Stock.
F. Indemnification. The Corporation shall, to the fullest extent
permitted by law, indemnify Incorporators, Directors, Officers, employees,
fiduciaries, agents, consultants or other parties whom it shall have power to
indemnify from and against any expenses (including attorney's fees),
liabilities, claims or other matters arising by reason of the person's
relationship with the Corporation. The Corporation may obtain and pay for
insurance for that purpose. The indemnification provided for herein shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under these Articles or any Bylaw, agreement, vote of shareholders, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. This indemnification shall continue
as to a person who has terminated his position for actions occurring during the
period of his relationship with the Corporation, and shall inure to the benefit
of the heirs, executors, personal representatives, and administrators of such a
person.
ARTICLE VI
The Board of Directors of the Corporation shall consist of not
less than three (3) nor more than seven (7) directors, as set forth in the
Bylaws of the Corporation, who need not be shareholders of the Corporation or
residents of the State of Colorado.
ARTICLE VII
No contract or other transaction between the Corporation and
one or more of its Directors, Officers, agents or employees or any other
corporation, firm, association or entity in which one or more of its Directors,
Officers, agents or employees are directors or officers or are financially
interested in shall be either void or voidable because of such relationship or
interest, or because such Directors or Officers are present at a meeting of the
Board of Directors or a Committee thereof which authorizes, approves or
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ratifies such contract or transaction, or because their votes were counted for
such purpose if:
A. The fact of such relationship or interest is disclosed or
known to the Board of Directors or Committee which authorizes, approves or
ratifies the contract or transaction by a majority vote of uninterested
Directors; or
B. The fact of such relationship or interest is disclosed or
known to the shareholders entitled to vote and they authorize, approve or ratify
such contract or transaction by vote or written consent; or
C. The contract or transaction is fair and reasonable to the
Corporation.
Interested Directors or Officers may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction.
ARTICLE VIII
In addition to the other powers now or hereafter conferred
upon the Board of Directors by these Articles of Incorporation, the Bylaws of
the Corporation, or by the law of Colorado, the Board of Directors may from time
to time distribute to the shareholders in partial liquidation, out of the stated
capital or the capital surplus of the Corporation, a portion of the corporate
assets, in cash or in kind; subject, however, to the limitations contained in
the Colorado Business Corporation Act.
ARTICLE IX
With respect to any action to be taken by shareholders of this
Corporation, a vote or concurrence of the holders of a majority of the
outstanding shares present or represented at a meeting and entitled to vote
thereon shall be required.
ARTICLE X
The address of the Registered Office of the Corporation is
1675 Broadway, Denver, Colorado 80202. The name of the Registered Agent of the
Corporation at such address is The Corporation Company.
ARTICLE XI
The Corporation reserves the right to amend, alter, change or
repeal any provision contained in, or to add any
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provisions to, its Articles of Incorporation from time to time, in any manner
permitted by law.
EPL TECHNOLOGIES, INC.
By: /s/ SHAWN J. COLLINS
-----------------------------
Name: Shawn J. Collins
Title: Secretary
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EXHIBIT 24.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of EPL Technologies, Inc. on Form S-3 of our report dated March 21,
1994 appearing in the Annual Report on Form 10-K of EPL Technologies, Inc. for
the year ended December 31, 1995, and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ SCHALLEUR & COMPANY
SCHALLEUR & COMPANY
Blue Bell, PA
August 6, 1996
<PAGE> 1
EXHIBIT 24.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of EPL Technologies, Inc. on Form S-3 of our report dated 7 August
1995, included on the EPL Technologies, Inc.'s current report on Form 8-K dated
19 September 1995, as amended on 14 November 1995, and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ PORTER MATTHEWS & MARSDEN
PORTER MATTHEWS & MARSDEN
Blackburn, England
6 August 1996
<PAGE> 1
EXHIBIT 24.3
[DELOITTE & TOUCHE LLP LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
EPL Technologies, Inc. on Form S-3 of our report dated April 2, 1996, appearing
in the Annual Report on Form 10-K/A of EPL Technologies, Inc. for the year
ended December 31, 1995 and to the reference to us under the heading "Experts"
in this Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
August 5, 1996
