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As filed with the Securities and Exchange Commission on December 12, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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 No.)
2 International Plaza, Suite 245
Philadelphia, Pennsylvania 19113-1507
(610) 521-4400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Paul L. Devine
Chairman, President and Chief Executive Officer
2 International Plaza, Suite 245
Philadelphia, Pennsylvania 19113-1507
(610) 521-4400
(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
Approximate date of commencement of proposed sale to public:
As soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please 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: |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share (1) Price (1) Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001
per share 375,720 shares $ 6.16 $ 2,314,435 $ 683
- ---------------------------------------------------------------------------------------------------------------------
Common Stock underlying
warrants 527,714 shares $ 6.16 $ 3,250,718 $ 959
- ---------------------------------------------------------------------------------------------------------------------
Common Stock issuable upon
conversion of Series C
Convertible Preferred Stock 144,444 shares $ 6.16 $ 889,775 $ 262
- ---------------------------------------------------------------------------------------------------------------------
Common Stock issuable upon
conversion of Series D
Convertible Preferred Stock 3,000,000 shares (2) $ 6.16 $18,480,000 $ 5,452
- ---------------------------------------------------------------------------------------------------------------------
Total 4,047,878 shares(2) $ 6.16 $24,934,928 $ 7,356
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, as amended,
based upon the average of the high and low prices of the Registrant's
Common Stock, as reported on the Nasdaq SmallCap Market on December 8,
1997.
(2) For purposes of estimating the number of shares of Common Stock to be
included in this Registration Statement, the Company calculated 150% of
the number of shares of Common Stock issuable in connection with the
conversion of the Company's Series D Convertible Preferred Stock based on
a conversion price of $6.25 per share, in addition to the estimated number
of shares set forth in the table, in accordance with Rule 416 of the
Securities Act of 1933, as amended ("Rule 416"). Also in accordance with
Rule 416, the amount to be registered includes an indeterminate number of
shares issuable upon conversion of or in respect of the Series D Convertible
Preferred Stock, as such number may be adjusted as a result of stock
splits, stock dividends and antidilution provisions (including floating
rate conversion prices).
-----------------
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> 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, DATED DECEMBER 12, 1997
PROSPECTUS
4,047,878 Shares
EPL TECHNOLOGIES, INC.
Common Stock
(par value $.001 per share)
This Prospectus relates to 4,047,878 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
that receive such Shares as a gift, partnership distribution or other non-sale
related transfer (the "Offering"). The offer and sale 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 SmallCap 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; (d) short sales; (e) by any other legally available
means; or (f) any combination of the foregoing. The number of Shares that may
actually be sold by each of the Selling Shareholders will be determined by such
Selling Shareholder. See "PLAN OF DISTRIBUTION."
375,720 of the Shares are currently held by the Selling Shareholders.
144,444 of the Shares are issuable to Selling Shareholders by the Company upon
conversion of outstanding shares of the Company's Series C Convertible Preferred
Stock (the "Series C Preferred Stock"). 527,714 of the Shares are issuable to
Selling Shareholders by the Company pursuant to the terms of certain outstanding
warrants (the "Warrants") (403,228 of which are issuable upon the exercise of
warrants which were issued in connection with the Series D Preferred Stock
defined below (the "Series D Warrants")). 3,000,000 of the Shares are issuable
to Selling Shareholders by the Company upon conversion of outstanding shares of
the Company's Series D Convertible Preferred Stock (the "Series D Preferred
Stock"). The number of Shares set forth above with respect to the Series D
Preferred Stock represents an estimate of the number of shares of Common Stock
issuable upon conversion of the Series D Preferred Stock, based on 150% of the
shares of Common Stock issuable at a conversion price of $6.25 per share, in
accordance with Rule 416 ("Rule 416") under the Securities Act of 1933, as
amended (the "Securities Act"). In addition to such estimated number of shares,
in accordance with Rule 416, the number of shares of Common Stock underlying the
Series D Preferred Stock and offered for sale hereby includes such additional
number of shares as may be issued or issuable upon conversion of the Series D
Preferred Stock by reason of the floating rate conversion price mechanism or
other adjustment mechanisms described in the Certificate of Designation for the
Series D Preferred Stock, or by reason of any stock split, stock dividend or
similar transaction involving the Common Stock, in order to prevent dilution.
Although the Company will receive the exercise price of any Warrants 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, will be paid by the
Company.
The Common Stock is traded on the Nasdaq SmallCap Market under the symbol
"EPTG". On December 10, 1997, the closing price of the Common Stock was $6.25.
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 DECEMBER __, 1997
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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 to any person in any jurisdiction in which such offer or solicitation
would be unlawful or to any person to whom it would be unlawful to make such an
offer or solicitation. 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.
TABLE OF CONTENTS
Page
----
AVAILABLE INFORMATION ..................................................... 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE ........................... 3
RISK FACTORS .............................................................. 4
THE COMPANY ............................................................... 8
USE OF PROCEEDS ........................................................... 9
SELLING SHAREHOLDERS ...................................................... 10
PLAN OF DISTRIBUTION ...................................................... 11
LEGAL MATTERS ............................................................. 13
EXPERTS ................................................................... 13
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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 and information statements and other information
with the Securities and Exchange Commission (the "SEC"). Reports, proxy
statements and other information concerning the Company filed with the SEC can
be inspected and copied at the public reference facilities maintained by the SEC
at its office at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, as
well as at the Regional Offices of the SEC at Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661, and Seven World Trade Center, Suite
1300, New York, New York 10048. Copies of such material can be obtained from the
Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The SEC maintains a Web site (http://www.sec.gov)
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the SEC. Shares of the
Company's Common Stock are traded on the Nasdaq SmallCap Market. Such reports,
proxy and information statements and other information can also be inspected and
copied at the offices of The Nasdaq Stock Market, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
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 SEC. 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
references.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC 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, 1996, (b) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997, June 30, 1997, and September 30, 1997, (c) the Company's
Current Report on Form 8-K filed on September 26, 1997, October 3, 1997 and
October 24, 1997 and (d) the description of the Common Stock contained in the
Company's registration statements 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., 2 International Plaza, Suite 245, Philadelphia, Pennsylvania 19113-1507,
telephone (610) 521-4400.
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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 result of
expenses incurred in organization and reorganization, research and development
and marketing activities, the Company has incurred net losses aggregating
approximately $15,658,464 from its inception through December 31, 1996. 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 that the Company will be successful in obtaining additional
financing on commercially acceptable terms, or at all. Failure to obtain
additional financing on terms satisfactory to the Company 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 rapidly expanding and,
in some instances, newly defined or emerging markets. 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 or continuing level of demand for or market
acceptance of the Company's products.
Extended Sales and Product Commercialization Process. The Company markets
its processing aid products to processors of fresh fruits and vegetables for use
in integrated produce processing systems. Before any potential customer will use
the Company's products, substantial product testing generally is required. The
testing process involves numerous stages of product 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 time-consuming. The testing and evaluation process
also can 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 could 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.
Multiple Product Lines. The Company currently is engaged in three lines of
business focused primarily on the fresh-cut produce industry: processing aids,
packaging and food safety, and scientific services. Although the Company
believes these 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 any line of
business, the financial and personnel resources available to a business of the
size of the Company may be diverted from the other lines of business, which
could have a material adverse effect on the Company's business, financial
condition and results of operations.
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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. Although the Company's products do not constitute
"preservatives," 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.
Risks Associated With Food Processing Products. Although the ingredients
used in the Company's food processing formulations are identified by the FDA as
products "generally recognized as safe" ("GRAS") the Company is subject to risks
generally associated with food processing products. These risks include, among
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. Moreover, although use of the
Company's processing aids in accordance with the Company's recommended protocols
does not carry with it any labeling requirements, and production of the
Company's processing aids and packaging materials has not been subject to
intensive regulation, regulations applicable to the Company and its products,
including the FDA's requirements regarding current "good manufacturing
practices" and labelling requirements applicable to food, may change, which
could have a material adverse effect on the Company. The Company is not aware of
any pending regulatory changes that would have such effect.
Integration of Acquisitions; Possible Adverse Effect of Rapid Expansion.
An element of the Company's business strategy is to pursue acquisitions that
either expand or complement its business. There can be no assurance that the
Company will be able to identify and acquire acceptable acquisition candidates
on terms favorable to the Company and in a timely manner to the extent necessary
to fulfill its expansion plans. The Company may require additional debt or
equity financing for future acquisitions, which additional financing may not be
available on terms favorable to the Company, if at all. The failure to complete
acquisitions and continue its expansion could have a material adverse effect on
the Company's financial performance. As the Company proceeds with its
acquisition strategy, 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.
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 its products and its applications technology. The Company
will also be required to develop products and services to satisfy evolving
industry and 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.
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 an employment agreement with Mr. Devine
for a rolling three year term, some key employees do not have long term
employment agreements. The loss of the services of Mr. Devine or other key
employees could have an adverse effect on the Company's business and prospects.
5
<PAGE> 7
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 market
price of the Common Stock may be highly volatile. 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 10% Cumulative
Convertible Preferred Stock (the "Series A Preferred Stock"), Series B
Convertible Preferred Stock and Series C Preferred Stock (collectively with the
Series D Preferred Stock, the "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 the Common Stock or Preferred Stock. The Company does not expect to pay
cash dividends to the holders of the Common Stock in the foreseeable future and
no such dividends will be paid until all accrued dividends on the Preferred
Stock have been paid.
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 the proprietary
rights of others. The Company currently has two U.S. patents, three U.S. patents
pending and numerous others under review for application. Furthermore, the
Company has two patents outside the U.S. and 26 pending in countries outside the
U.S. for its main processing aid technology, with others under review. There can
be no assurance that patent applications owned by or licensed to the Company
will be issued or 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, as much of the Company's technology
may not be patentable. 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 right 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 no 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.
6
<PAGE> 8
Outstanding Options. As of December 9, 1997, approximately 3,616,750
options granted under the Company's 1994 Stock Incentive Plan (the "Option
Plan") were outstanding and exercisable at various dates within the next five
years (the "Options"), and 924,750 shares remain available for issuance under
the Option Plan. In the future, the Company may amend the Option Plan to
increase the number of options available for issuance thereunder. To the extent
that the Options (or any other future options issued under the Option Plan) are
exercised, material and substantial dilution to the interests of the Company's
shareholders could occur.
Shares Eligible for Future Sale. As of December 9, 1997, there were
18,042,132 shares of Common Stock outstanding. 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, Series C Preferred Stock and Series D Preferred
Stock (based on 150% of the number of Shares issuable upon conversion of the
Series D Preferred Stock at a conversion price of $6.25 per share and in
accordance with Rule 416), the Company will have 28,302,555 shares of Common
Stock outstanding. The shares offered hereby will be freely tradeable without
restrictions or further registration under the Securities Act. Substantially all
of the remaining shares are either registered with the SEC pursuant to effective
registration statements or are otherwise freely tradeable without restriction,
except for any shares held by "affiliates" of the Company within the meaning of
the Securities Act, which will be subject to the resale limitations of Rule 144.
Therefore, future sales of substantial amounts of Common Stock (including shares
issued upon the exercise of outstanding options and warrants) in the public
market or the prospect of such sales could adversely affect the market price of
the Common Stock and may have a material adverse effect on the Company's ability
to raise any necessary capital to fund its future operations.
Potential for Dilution. As of December 9, 1997, 12,500 shares of the
Series D Preferred Stock were issued and outstanding. Each share of the Series D
Preferred Stock is convertible into such number of shares of Common Stock as is
determined by dividing the stated value ($1,000) of each share of Series D
Preferred Stock (as such value is increased by a 4% (annualized) premium based
on the number of days the Series D Preferred Stock is held) by the then current
conversion price of the Series D Preferred Stock (which is determined by
reference to 94% of the then current market price) with a maximum conversion
price of $11.63. Based on a conversion price of $6.25 per share and in
accordance with Rule 416, the Series D Preferred Stock would be convertible into
approximately 2,000,000 shares of Common Stock. The number of shares issuable
upon conversion may be less than or greater than this number, depending upon the
market price of the Common Stock at the time of conversion. In the event of a
decrease in the trading price of the Common Stock, holders of the Common Stock
could experience dilution upon conversion of the Series D Preferred Stock. The
shares of Common Stock into which the Series D Preferred Stock may be converted
or which are otherwise issuable with respect to the Series D Preferred Stock are
being registered pursuant to this Registration Statement. See "Selling
Shareholders."
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<PAGE> 9
THE COMPANY
The Company and its subsidiaries are principally engaged in the
development, manufacture and marketing of proprietary processing aids, packaging
technologies and food safety, and scientific services that facilitate the
maintenance of the quality and integrity of fresh produce.
The Company targets its current and expected future operations to develop
an international sales, marketing, distribution and scientific services network
for fresh produce processing and packaging technologies. Toward that goal the
Company began in 1994 to seek strategic acquisitions which would add incremental
resources and capabilities towards a systems approach in the fresh produce
industry that would complement its internally developed proprietary processing
aid technologies base.
On September 30, 1994, the Company acquired Respire Films, Inc.
("Respire"), a U.S.-based business involved in the marketing of packaging films
that are contract-manufactured under the Respire name. The Company believes that
this acquisition provided synergy to the Company's processing aid business in
the fresh-cut produce market and since its acquisition has represented a growing
source of revenues.
On September 19, 1995, the Company acquired Bakery Packaging Services
Limited ("BPS"), based in northwest England. BPS has developed a proprietary
perforating technology for packaging materials which is used by leading
companies in the fresh-cut produce and institutional bakery industries. BPS also
produces, in substantially smaller volumes, wax-coated packaging used
principally in the confectionery industry. The Company believes that the
acquisition of BPS provides an additional proprietary technology to enhance the
Company's strategic position together with providing an incremental source of
packaging revenue, and an opportunity for additional cross-marketing activities
between the U.S. and U.K. markets. The latter has been demonstrated by the
installation of BPS' proprietary gas flame equipment in the U.S. for the
servicing of U.S. customers.
On April 19, 1996, the Company acquired the tangible and intangible assets
of Pure Produce, a Massachusetts general partnership, through a wholly-owned
subsidiary, Pure Produce, Inc. ("Pure Produce"), a Massachusetts corporation.
Pure Produce is in the business of providing companies in the food industry,
especially those involved with fresh and minimally processed produce, with
analysis, protocols and plans relating to food and quality assurance programs,
including microbial testing. The Company believes that this acquisition extends
the range of technical support services it can offer as part of its systems
approach, as well as raising the overall scientific content of the Company in
its relationship with the fresh-cut produce and food services industry. This
acquisition was complemented by the Company's acquisition of California
Microbiological Consulting, Inc., as described below.
In July 1996, the Company acquired, through a newly formed, wholly-owned
U.K. subsidiary, EPL Flexible Packaging Limited ("EPL Flexible"), some of the
fixed assets of a division of Printpack Europe (St. Helens) Limited located at
Gainsborough, Lincolnshire, England. EPL Flexible specializes in the printing of
flexible packaging films serving primarily the snack food industry. The Company
believes that this acquisition broadens the range of printed packaging materials
it can offer its customers, as well as increasing productive capacity. Since
this acquisition, the printing press previously located at BPS has been
relocated to EPL Flexible and BPS and EPL Flexible both operate under the trade
name "EPL Flexible." The Company believes that this will lead to economies of
scale by concentrating printing at one location, as well as freeing up
productive space at BPS's Runcorn, England, location. Additionally, the BPS
Runcorn facility has been reorganized to facilitate an increase in higher margin
film perforation and conversion capacity.
In addition, also in July 1996, the Company formed NewCorn Co. L.L.C.
("NewCorn Co."), a jointly owned Delaware limited liability company in which the
Company owns a 51% membership interest. The other founding member of NewCorn
8
<PAGE> 10
Co. is Underwood Ranches ("Underwood"), the trade name of Agricultural
Innovation and Trade, Inc. NewCorn Co. utilizes the Company's proprietary
processing aid and packaging technologies and Underwood's existing corn
processing and distribution capabilities with the aim of developing a
year-round, national, value-added market for fresh corn products which may
include adding new members to NewCorn Co.
Also in July 1996, the Company acquired, through a wholly-owned U.S.
subsidiary, Crystal Specialty Films, Inc. ("Crystal"), the assets and assumed
some of the liabilities of Crystal Plastics, Inc., based in Illinois. Crystal
uses "K" resin and polystyrene resins to manufacture a range of proprietary
films for a variety of applications. Crystal serves as the site for the
proprietary gas flame perforation equipment which the Company had custom-built
in the U.K., shipped to and installed at Crystal and which is planned to be the
basis for penetration of the U.S. film perforation market. This planned
penetration is based on the initial contract the Company has with E.I. du Pont
de Nemours & Company ("DuPont") for the perforation of Dupont Mylar(R) film.
Dupont is shipping film to the Crystal location, where it is being perforated
according to required specifications and then shipped back either to DuPont or
to DuPont customers.
In October 1997, the Company acquired California Microbiological
Consulting, Inc. ("CMC"). CMC specializes in food safety, forensic testing and
microbiological consulting. The Company expects to use CMC as a West Coast
facility to complement its East Coast-based Pure Produce facility. CMC and Pure
Produce, acting in concert, will provide increased market test and contract
support as well as HACCP (Hazard Analysis Critical Control Point) and TQM (Total
Quality Management) program services.
In December 1997, the Company acquired, through a wholly-owned Spanish
subsidiary, Fabbri Artes Graficas Valencia S.A. ("Fabbri"), a printer and
marketer of specialty flexible packaging, based in Valencia, Spain, which
principally serves the European citrus fruit market. Valencia is a significant
agricultural growing and processing area in Southern Europe and Fabbri's
packaging plant is central to major processing activities in broccoli and
lettuce, in addition to being located in the regional center for citrus
products. The Company believes that the acquisition of Fabbri will complement
and enhance the Company's existing U.K.-based packaging business by providing
incremental unused capacity for more efficient management of combined product
mix as well as a strategic foothold on the European continent for the launch of
the Company's related processing aid and scientific support services businesses.
The Company's executive offices are located at 2 International Plaza,
Suite 245, Philadelphia, Pennsylvania 19113-1507, and its telephone number is
(610) 521-4400.
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 Warrants exercised by the Selling Shareholders, up to a maximum of
approximately $4,686,968. Any proceeds received from the exercise of the
Warrants will be used for working capital and general corporate purposes.
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<PAGE> 11
SELLING SHAREHOLDERS
The table below sets forth information as of December 9, 1997 with respect
to the Selling Shareholders, including names, the number of shares of Common
Stock owned 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. In the case of the
shares of Common Stock underlying the Series D Preferred Stock, the number of
shares of Common Stock owned and offered for sale hereby represents an estimate
of the number of shares of Common Stock issuable upon conversion of the Series D
Preferred Stock, based on 150% of the shares of Common Stock issuable at a
conversion price of $6.25 per share. This estimate could be greater than or less
than the actual number of shares issued upon conversion. See footnote 5 to the
table below for a detailed description.
<TABLE>
<CAPTION>
Shares Beneficially
Owned Shares Shares Beneficially
Before the Being Owned
Offering(1) Offered After the Offering(1)(2)
----------- ------- ------------------------
Name Number Percent
---- ------ -------
<S> <C> <C> <C> <C>
Willbro Nominees Ltd. 293,930(3) 293,390 0 --
Norwich Union Investment
Management Limited 962,500(4) 312,500 650,000 3.6%
Clifford M. Coles 78,000 38,220 39,780 *
RGC International Inventors, LDC 1,905,808(5) 1,905,808 0 --
Capital Ventures International 680,645(5) 680,645 0 --
Halifax Fund, L.P. 816,775(5) 816,775 0 --
</TABLE>
* Less than 1%.
(1) Except as set forth in footnote (5) below, beneficial ownership is
determined in accordance with Rule 13d-3 of the Exchange Act. Shares of
Common Stock subject to options or warrants currently exercisable or
exercisable within 60 days of December 9, 1997 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. 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) Includes 144,444 shares of Common Stock issuable upon conversion of Series
C Preferred Stock and 61,986 shares of Common Stock issuable upon exercise
of Warrants.
(4) Includes 62,500 shares of Common Stock issuable upon exercise of Warrants.
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<PAGE> 12
(5) In accordance with Rule 416, the number of shares of Common Stock set
forth in the table represents a good faith estimate of the number of shares of
Common Stock to be offered by the Selling Shareholder, based on 150% of the
number of shares of Common Stock that would have been issuable upon conversion
of the Series D Preferred Stock at a conversion price of $6.25 per share, in
accordance with Rule 416 and exercise of the Series D Warrants. The actual
number of shares of Common Stock issuable upon conversion of the Series D
Preferred Stock is determined by a formula based on the market price at the time
of conversion, is therefore subject to adjustment and could be materially less
or more than such estimated number depending on factors which cannot be
predicted by the Company. Specifically, at any given time, the Series D
Preferred Stock is convertible into a number of shares of Common Stock
determined by dividing the sum of (a) the stated value of the Series D Preferred
Stock and (b) a premium amount equal to 4% (on an annualized basis) of the
stated value of the Series D Preferred Stock, by the then applicable conversion
price (calculated as 94% of the average closing bid prices of the Common Stock
for any five (5) consecutive trading days in the twenty-five (25) trading day
period ending one trading day prior to the date of conversion) with a maximum
conversion price of $11.63, subject to certain restrictions. Such 150% estimate
assumes no accrual of the premium on the conversion price since the issuance of
the Series D Preferred Stock. Additional shares also may be issued in the event
certain other agreements associated with the Series D Preferred Stock require
satisfaction, including certain redemption rights in certain circumstances and
liquidated damages provisions. All of such shares, to the extent issued (if
ever), are included in the shares underlying the Series D Preferred Stock as
presented in this table and offered hereby. The Shares offered hereby, and
included in the Registration Statement of which this Prospectus is a part, also
include such additional number of shares of Common Stock as may be issued or
issuable upon conversion of the Series D Preferred Stock by reason of the
floating rate conversion price mechanism or other adjustment mechanisms
described in the Certificate of Designation for the Series D Preferred Stock, or
by reason of any stock split, stock dividend or similar transaction involving
the Common Stock, in order to prevent dilution. The number of shares of Common
Stock beneficially owned and being offered by RGC International Investors, LDC,
Capital Ventures International, and Halifax Fund, L.P. includes 1,680,000,
600,000 and 720,000 shares of Common Stock issuable upon conversion of the
Series D Preferred Stock, respectively, and 225,808, 80,645 and 96,775 shares of
Common Stock, respectively, issuable upon exercise of the Series D Warrants,
which are exercisable for a period of five (5) years at $10.08 each. Pursuant to
the terms of the Series D Preferred Stock and the Series D Warrants, the shares
of Series D Preferred Stock and the Series D Warrants are convertible or
exercisable by any holder only to the extent that the number of shares of Common
Stock thereby issuable, together with the number of shares of Common Stock owned
by such holder and its affiliates (but not including shares of Common Stock
underlying unconverted shares of Series D Preferred Stock or unexercised
portions of the Series D Warrants) would not exceed 4.99% of the then
outstanding Common Stock as determined in accordance with Section 13(a) of the
Exchange Act. Accordingly, the number of shares of Common Stock set forth in the
table for this Selling Shareholder may exceed the number of shares of Common
Stock that this Selling Shareholder could own beneficially at any given time
through this Selling Shareholder's ownership of the Series D Preferred Stock and
the Series D Warrants. In that regard, beneficial ownership of this Selling
Shareholder set forth in the table is not determined in accordance with Rule
13d-3 under the Exchange Act.
Relationships Between the Company and the Selling Shareholders
Clifford M. Coles is the President of CMC. In connection with the
Company's acquisition of CMC in October 1997, as the former controlling
shareholder of CMC, Mr. Coles received, among other things, 78,000 shares of
Common Stock in exchange for the common stock of CMC.
PLAN OF DISTRIBUTION
The offer and sale 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,
11
<PAGE> 13
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 concession 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 SmallCap
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; (d) short sales; (e) by
other legally available means; or (f) any combination of the foregoing. The
number of Shares that may actually be sold by each of the Selling Shareholders
will be determined by such Selling Shareholder.
The sale price to the public may be the market price prevailing at the
time of sale, a price related to such prevailing market price or such other
price as the Selling Shareholders determine from time to time. The Shares may
also be sold pursuant to Rule 144.
The Selling Shareholders or their respective pledgees, donees, transferees
or other successors in interest, may also sell the Shares directly to market
makers acting as principals and/or broker-dealers acting as agents for
themselves or their customers. Brokers acting as agents for the Selling
Shareholders will receive usual and customary commissions for brokerage
transactions, and market makers and block purchasers purchasing the Shares will
do so for their own account and at their own risk. It is possible that a Selling
Shareholder will attempt to sell shares of Common Stock in block transactions to
market makers or other purchasers at a price per share which may be below the
then market price. There can be no assurance that all or any of the Shares
offered hereby will be sold by the Selling Shareholders. The Selling
Shareholders and any brokers, dealers or agents, upon effecting the sale of any
of the Shares offered hereby, may be deemed "underwriters" as that term is
defined under the Securities Act or the Exchange Act, or the rules and
regulations thereunder.
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.
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 any of
the 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
investigation to verify the information set out or incorporated by reference in
this Prospectus, as supplemented, and (f) other facts material to the
transaction.
The Selling Shareholders and any other persons participating in the sale
or distribution of the Shares may be subject to applicable provisions of the
Securities Act and Exchange Act and the rules and regulations thereunder,
including Regulation M, which provisions may limit the timing of purchases and
sales of any of the Shares by the Selling Shareholders or any other such person.
The foregoing may affect the marketability of the Shares.
In connection with the Offering, the Company has agreed to indemnify the
Selling Shareholders, or their transferees or assignees, against certain
liabilities, including liabilities under the Securities Act, or to contribute to
payments the Selling Shareholders or their respective pledgees, donees,
transferees or other successors in interest, may be required to make in respect
thereof.
12
<PAGE> 14
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 for the year ended
December 31, 1996 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.
13
<PAGE> 15
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.
SEC Registration Fee $ 7,356
NASDAQ Listing Fee 7,500
Accountants' Fees and Expenses 10,000*
Legal Fees and Expenses 10,000*
Miscellaneous 144*
TOTAL $35,000*
* 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 proceedings, 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 VF. of the Company's Amended and Restated 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, as amended, 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, as amended.
The Company has directors' and officers' liability insurance.
14
<PAGE> 16
ITEM 16. EXHIBITS.
Exhibit
Number Description
3.1 Amended and Restated Articles of Incorporation of the Company, as
amended, (Incorporated by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1997 on file with the Securities and Exchange
Commission (the "SEC")).
3.2 Amended and Restated Bylaws of the Company, as amended.
(Incorporated by reference to Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
1997 on file with the SEC.)
4.1 Specimen Common Stock Certificate (Incorporated by reference to
Exhibit 4.1 to the Company's Annual Report on Form 10-K for the
eight months ended December 31, 1992 on file with the SEC).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll as to the validity of
the shares of Common Stock being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit
5.1).
24.1 Power of Attorney (included in signature page).
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 "Securities 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 end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no 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;
15
<PAGE> 17
(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 SEC
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
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at 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 Securities
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 SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
16
<PAGE> 18
\
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 Township of Tinicum, Commonwealth of Pennsylvania, on
December 12, 1997.
EPL TECHNOLOGIES, INC.
/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.
We, the undersigned directors and officers of EPL Technologies, Inc., do
hereby constitute and appoint each of Paul L. Devine and Timothy B. Owen, each
with full power of substitution, our true and lawful attorney-in-fact and agent
to do any and all acts and things in our names and in our behalf in our
capacities stated below, which acts and things either of them may deem necessary
or advisable to enable EPL Technologies, Inc. to comply with the Securities Act
of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but not limited to, power and authority to
sign for any or all of us in our names, in the capacities stated below, any and
all amendments (including post-effective amendments) hereto, and any
registration statement filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended; and we do hereby ratify and confirm all that they shall do or
cause to be done by virtue hereof.
Signature Title Date
- --------- ----- ----
/s/ Paul L. Devine Chairman, President and December 12, 1997
- --------------------- Chief Executive Officer
Paul L. Devine (Principal Executive Officer)
/s/ Timothy B. Owen Principal Financial and December 12, 1997
- ---------------------- Accounting Officer
Timothy B. Owen
/s/ Robert D. Mattei Director December 12, 1997
- --------------------
Robert D. Mattei
/s/ Ronald W. Cantwell Director December 12, 1997
- ----------------------
Ronald W. Cantwell
17
<PAGE> 19
EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
- ------ ----------- -------------
3.1 Amended and Restated Articles of Incorporation
of the Company, as amended, (Incorporated by
reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1997 on
file with the SEC).
3.2 Amended and Restated Bylaws of the Company, as
amended, (Incorporated by reference to Exhibit
3.2 to the Company's Quarterly Report on Form
10-Q for the quarterly period ended September
30, 1997 on file with the SEC.)
4.1 Specimen Common Stock Certificate
(Incorporated by reference to Exhibit 4.1 to
the Company's Annual Report on Form 10-K for
the eight months ended December 31, 1992 on
file with the SEC).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll
as to the validity of the shares of Common
Stock being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll
(included in Exhibit 5.1).
24.1 Power of Attorney (included in signature page).
18
<PAGE> 1
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL]
EXHIBIT 5.1
December 12, 1997
EPL Technologies, Inc.
2 International Plaza
Suite 245
Philadelphia, PA 19113-1507
Gentlemen:
We have acted as your counsel in connection with the proposed sale
of common stock by certain Selling Shareholders named in the Registration
Statement on Form S-3 filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended.
In this connection, we have examined and relied upon such corporate
records and other documents, instruments and certificates and have made such
other investigation as we deemed appropriate as the basis for the opinion set
forth below.
Based upon the foregoing, we are of the opinion that the shares of
common stock to be sold by the Selling Shareholders have been duly authorized
and, when duly executed, delivered and paid for, will be duly and validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus forming a part thereof.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll
<PAGE> 1
Exhibit 23.1
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 March 28, 1997, appearing
in the Annual Report on Form 10-K of EPL Technologies, Inc., for the year ended
December 31, 1996, and to the reference to us under the heading "Experts" in
such Registration Statement.
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
December 11, 1997
