Zila Inc - Securities Registration: Employee Benefit Plan (S-8)
June 18 2008 - 11:30AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on June 18, 2008
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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86-0619668
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer Identification No.)
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5227 North 7th Street, Phoenix, Arizona
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85014-2800
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(Address of Principal Executive Offices)
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(Zip Code)
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Zila, Inc. 1997 Stock Award Plan
(Full Title of the Plan)
David
R. Bethune
Chief Executive Officer
Zila, Inc.
5227 North 7th Street
Phoenix, Arizona 85014-2800
(Name and Address of Agent for Service)
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Gary V. Klinefelter, Esq.
Vice President and General Counsel
Zila, Inc.
5227 North 7th Street
Phoenix, Arizona 85014-2800
(602) 266-6700
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer
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Accelerated
filer
þ
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Maximum
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Amount of
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Title of Securities To Be
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Amount To Be
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Offering Price
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Aggregate
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Registration
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Registered
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Registered
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Per Share(1)
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Offering Price(1)
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Fee
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Common Stock, $.001 par
value per share
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3,000,000
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$.39
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$1,170,000
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$45.98
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(1)
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Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended (the
Securities Act), solely for purposes of calculating the registration fee. The calculation
is based on the average of the high and low prices as quoted on the Nasdaq Global Market on
June 16, 2008 (the Market Price).
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TABLE OF CONTENTS
EXPLANATORY NOTE
This Registration Statement is filed pursuant to General Instruction E of Form S-8 for the
purpose of registering an additional 3,000,000 shares of common stock, par value $.001 per share
(the Common Stock) of Zila, Inc., a Delaware corporation (the Registrant), issuable pursuant to
the Registrants 1997 Stock Award Plan (amended and restated as of November 6, 2007). The
Registrants previously filed Registration Statements on Form S-8, Nos. 333-42769, 333-54960 and
333-124671, as filed with the Securities and Exchange Commission (the Commission) on December 19,
1997, February 5, 2001 and May 6, 2005, respectively, are hereby incorporated by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference into this Registration Statement:
(a) the Registrants Annual Report on Form 10-K for the fiscal year ended July 31, 2007; (b) the
Registrants Quarterly Reports on Form 10-Q for the quarterly
periods ended October 31, 2007, January 31, 2008 and
April 30, 2008; (c) the
Registrants Current Reports on Form 8-K filed since July 31, 2007; and (d) the description of the
Registrants capital stock contained in the Registrants Registration Statement on Form 8-A dated
March 8, 1989 and filed with the Commission pursuant to Section 12 of the
Securities Exchange Act of 1934 (the Exchange Act).
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such documents. Any
statements contained in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or replaced for purposes hereof to the extent that a statement
contained herein (or in any other subsequently filed document which is also incorporated or deemed
to be incorporated by reference herein) modifies or replaces such statement. Any statement so
modified or replaced shall not be deemed, except as so modified or replaced, to constitute a part
hereof.
Item 8. Exhibits.
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Exhibit
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Number
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Description
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4.1*
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Zila, Inc. 1997 Stock Award Plan (amended and restated as of November 6, 2007)
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5.1**
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Opinion of counsel as to legality of securities being registered
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23.1**
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Consent of counsel (contained in Exhibit 5.1 hereto)
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23.2**
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Consent of BDO Seidman, LLP
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*
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Incorporated by reference to the Companys Definitive Proxy Statement on
Schedule 14A, filed with the Securities and Exchange Commission on November 9, 2007.
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**
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Filed herewith.
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2
Item 9. 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;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represents a fundamental
change in the information set forth in the registration statement;
(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 (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required to be
included in a post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purposes of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Act of 1934 (and, where applicable, each filing
of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered 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 of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being offered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of such issue.
3
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the undersigned, hereunto
duly authorized, in the City of Phoenix, State of Arizona, on this
17th day of June, 2008.
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ZILA, INC.
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By:
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/s/
David R. Bethune
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David R. Bethune
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Chief Executive Officer
(
Principal Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities indicated:
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SIGNATURE
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TITLE
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DATE
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/s/ David R. Bethune
David R. Bethune
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Chief Executive Officer and Chairman of the Board of Directors
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June 17, 2008
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/s/ Diane E. Klein
Diane E. Klein
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Vice President Finance
(
Principal Financial and
Accounting Officer
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June 17, 2008
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/s/ J. Steven Garrett
J. Steven Garrett
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Director
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June 17, 2008
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/s/ Leslie H. Green
Leslie H. Green
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Director
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June 17, 2008
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/s/ O.B. Parrish
O.B. Parrish
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Director
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June 17, 2008
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/s/ George J. Vuturo
George J. Vuturo
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Director
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June 17, 2008
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4
ZILA, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
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Exhibit
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Number
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Description
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4.1*
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Zila, Inc. 1997 Stock Award Plan (amended and restated as of November 6, 2007)
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5.1**
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Opinion of counsel as to legality of securities being registered
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23.1**
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Consent of counsel (contained in Exhibit 5.1 hereto)
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23.2**
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Consent of BDO Seidman, LLP
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Incorporated by reference to the Companys Definitive Proxy Statement on Schedule 14A,
filed with the Securities and Exchange Commission on November 9, 2007.
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**
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Filed herewith.
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