- Additional Proxy Soliciting Materials (definitive) (DEFA14A)
June 26 2009 - 4:28PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported) June 25, 2009
ZILA, INC.
(Exact Name of Registrant as Specified in Charter)
|
|
|
|
|
Delaware
|
|
0-17521
|
|
86-0619668
|
|
|
|
|
|
(State or Other Jurisdiction
of Incorporation)
|
|
(Commission File
Number)
|
|
(I.R.S. Employer
Identification No.)
|
16430 North Scottsdale Road, Suite 450, Scottsdale, Arizona 85254-1770
(Address of Principal Executive Offices)
(602) 266-6700
(Registrants telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions (
see
General Instruction A.2. below):
|
|
|
o
|
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
|
|
|
þ
|
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
|
|
|
o
|
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
|
|
|
o
|
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
TABLE OF CONTENTS
|
|
|
Item 1.01
|
|
Entry into a Material Definitive Agreement.
|
On June 25, 2009, Zila, Inc. (ZILA), TOLMAR Holding, Inc. (TOLMAR), and Project Z
Acquisition Sub, Inc. (Acquisition Sub) entered into an Agreement and Plan of Merger (the Merger
Agreement). Under the Merger Agreement, Acquisition Sub will merge with and into ZILA, with ZILA
surviving as a wholly-owned subsidiary of TOLMAR (the Merger). ZILA entered into the Merger
Agreement following the approval of the entire Board of Directors of ZILA (the Board) (with the
exception of J. Steven Garrett, who did not participate in the consideration of the Merger
Agreement or the proposed Merger because he is employed by TOLMAR) of the Merger Agreement and the
transactions contemplated by the Merger Agreement and the determination by the Board that the
Merger Agreement and the transactions contemplated by the Merger Agreement (including the Merger)
are fair, advisable and in the best interests of ZILA and its stockholders. TOLMAR is not
affiliated with or related to ZILA in any way.
Pursuant to the Merger Agreement, at the effective time of the Merger, (i) holders of shares
of ZILA common stock, other than shares held by TOLMAR, Acquisition Sub, or direct or indirect
wholly-owned subsidiaries of ZILA, shares owned by ZILA as treasury stock or shares for which
holders have perfected appraisal rights under Delaware law, will receive a cash payment of $0.38
per share (without interest) and (ii) holders of Series B Convertible Preferred Stock, other than
shares held by TOLMAR, Acquisition Sub, or direct or indirect wholly-owned subsidiaries of ZILA,
shares owned by ZILA as treasury stock or shares for which holders have perfected appraisal rights
under Delaware law, will receive a cash payment of $0.44 per share (without interest).
The Merger Agreement contains customary representations, warranties and covenants including,
among others, covenants requiring ZILA to (i) call a special meeting of stockholders in order to
consider and vote on the adoption of the Merger Agreement and related transactions and (ii) carry
on ZILAs business in the ordinary course of business during the period between the date of signing
the Merger Agreement and the closing of the Merger.
Each of ZILA and TOLMAR may terminate the Merger Agreement under certain specified
circumstances, including ZILAs right to terminate if the Board determines in good faith that it
has received an alternative proposal that is superior to the terms of the Merger Agreement and it
otherwise complies with certain terms of the Merger Agreement. If the Merger Agreement is
terminated under certain circumstances specified in the Merger Agreement, ZILA will be required to
pay TOLMARs expenses (including legal fees) incurred in connection with the Merger Agreement (not
to exceed $200,000) and/or a termination fee of $300,000.
The Merger Agreement requires ZILA to immediately cease and terminate any solicitation,
encouragement, discussions or negotiations with any third-party with respect to an alternative
acquisition proposal. The Merger Agreement restricts ZILAs ability to solicit, initiate,
facilitate, participate in, or encourage discussions or negotiations with a third-party regarding
an alternative acquisition proposal.
ZILAs and TOLMARs obligations to consummate the Merger are subject to the satisfaction or
waiver of customary conditions, including, without limitation, (i) approval of the Merger Agreement
by holders of a majority of the shares of ZILA common stock at the special meeting, (ii) the
accuracy of the representations and warranties of the other party, (iii) material compliance by the
other party with its covenants, and (iv) all governmental authorizations and other consents
required to be obtained in connection with the Merger must be obtained. In addition, TOLMARs
obligations to consummate the Merger are also subject to the satisfaction or waiver of the
following conditions (among others): (i) the number of dissenting shares in the form of ZILA common
stock must not exceed 15% of the total number
of shares of ZILA common stock entitled to vote at the special meeting and, (ii) ZILA must
receive certain third-party consents required under the Merger Agreement.
Upon completion of the proposed Merger, shares of ZILA common stock will no longer be listed
on the NASDAQ Capital Market.
The foregoing description of the Merger and the Merger Agreement does not purport to be
complete and is qualified in its entirety by reference to the Merger Agreement, which is filed as
Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The Merger Agreement (and the exhibits thereto) are included to provide investors and security
holders with information regarding their terms. They are not intended to provide any other factual
information about ZILA. The Merger Agreement contains representations and warranties the parties
thereto made to and solely for the benefit of each other as of specific dates. The assertions
embodied in those representations and warranties (i) were made solely for the purposes of the
Merger Agreement, (ii) are subject to important exceptions, qualifications and limitations agreed
by TOLMAR and ZILA in connection with negotiating its terms, including being qualified by
confidential disclosures, (iii) were made for the purposes of allocating contractual risk between
the parties to the Merger Agreement instead of establishing these matters as facts, and (iv) may be
subject to standards of materiality applicable to the contracting parties that differ from those
applicable to investors
.
Accordingly, security holders and others should not rely on the
representations and warranties or descriptions thereof as characterizations of the actual state of
facts. Moreover, information concerning the subject matter of the representations and warranties
may change after the date of the Merger Agreement, which subsequent information may or may not be
fully reflected in ZILAs public disclosures.
Important Additional Information and Where to Find It
ZILA plans to file with the Securities and Exchange Commission (the SEC) and mail to its
stockholders a proxy statement in connection with the proposed Merger. The proxy statement will
contain important information about ZILA, the proposed Merger and related matters. STOCKHOLDERS ARE
URGED TO READ THE PROXY STATEMENT AND RELATED MATERIALS IN THEIR ENTIRETY WHEN THEY BECOME
AVAILABLE. SUCH MATERIALS WILL CONTAIN IMPORTANT INFORMATION ABOUT ZILA, TOLMAR AND THE PROPOSED
MERGER TRANSACTION, AND STOCKHOLDERS SHOULD CAREFULLY CONSIDER THEM BEFORE MAKING ANY VOTING OR
INVESTMENT DECISIONS IN CONNECTION WITH THE PROPOSED MERGER TRANSACTION.
Investors and stockholders will be able to obtain free copies of the proxy statement for the
proposed Merger (when it is available) and other documents filed with the SEC by ZILA through the
website maintained by the SEC at
www.sec.gov
. In addition, investors and stockholders will be able
to obtain free copies of the proxy statement for the proposed Merger (when it is available) by
contacting Zila, Inc., 16430 North Scottsdale Road, Suite 450, Scottsdale, Arizona, 85254-1770,
Attention: Gary V. Klinefelter, Vice President, General Counsel and Secretary or by calling (602)
266-6700.
ZILA, its directors, executive officers and other members of its management and employees may
be deemed to be participants in the solicitation of proxies from ZILAs stockholders in favor of
the transaction contemplated by the Merger Agreement with TOLMAR. Information regarding ZILAs
directors and executive officers and their respective interests in the proposed Merger (which may
be different from those of ZILAs stockholders generally) is included in the proxy statements, the
Annual Reports on Form 10-K and the Quarterly Reports on Form 10-Q that ZILA has previously filed
with the SEC. When it becomes available, the proxy statement relating to the proposed Merger
transaction will include information regarding all of ZILAs participants in the solicitation of
proxies in favor of
approving the Merger. Stockholders of ZILA can obtain free copies of these documents by using
the contact information provided above.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
These forward-looking statements are based largely on ZILAs expectations or forecasts of future
events, can be affected by inaccurate assumptions and are subject to various business risks and
known and unknown uncertainties, a number of which are beyond ZILAs control. Forward-looking
statements include, but are not limited to, statements about the proposed Merger involving ZILA and
TOLMAR, including the timing of the closing of the proposed Merger and other statements that are
not historical facts. The following factors, among others, could cause actual results to differ
from those set forth in the forward-looking statements: the failure of ZILAs stockholders to
approve the proposed Merger; the failure of ZILA or TOLMAR to satisfy any other condition to the
completion of the proposed Merger; and the risk that the proposed Merger will be delayed.
Additional factors that may affect future results are discussed in ZILAs Form 10-K for its fiscal
year ended July 31, 2008 and Form 10-Q for the quarter ended April 30, 2009. ZILA disclaims any
obligation to update and/or revise statements contained in these materials based on new information
or otherwise.
On June 25, 2009, ZILA issued a press release related to the Merger Agreement. A copy of the
press release is filed as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated
herein by reference.
|
|
|
Item 9.01
|
|
Financial Statements and Exhibits.
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
|
2.1
|
|
Agreement and Plan of Merger, dated June 25, 2009, by and
among TOLMAR Holding, Inc., Project Z Acquisition Sub, Inc.
and Zila, Inc.
|
|
|
|
99.1
|
|
Press Release of Zila, Inc., dated June 25, 2009 and entitled
Zila Enters into Merger Agreement with TOLMAR.
|
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: June 26, 2009
|
|
|
|
|
|
ZILA, INC.
|
|
|
/s/
|
|
Gary V. Klinefelter
|
|
|
By:
|
|
Gary V. Klinefelter
|
|
|
|
|
Vice President and General Counsel
|
|
|
EXHIBIT INDEX
|
|
|
Exhibit No.
|
|
Description
|
|
|
|
2.1
|
|
Agreement and Plan of Merger, dated June 25, 2009, by and
among TOLMAR Holding, Inc., Project Z Acquisition Sub, Inc.
and Zila, Inc.
|
|
|
|
99.1
|
|
Press Release of Zila, Inc., dated June 25, 2009 and entitled
Zila Enters into Merger Agreement with TOLMAR.
|
Zila (NASDAQ:ZILA)
Historical Stock Chart
From May 2024 to Jun 2024
Zila (NASDAQ:ZILA)
Historical Stock Chart
From Jun 2023 to Jun 2024