<PAGE> 1
DRAFT OF: June 14, 1996
THE INFORMATION CONTAINED
IN THIS DOCUMENT IS
------------------------------------------------------------------
CONFIDENTIAL
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(LOGO)O
Bowne
of
Phoenix (602) 223-4455
FAX (602) 223-4456
<PAGE> 2
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 1996
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ZILA, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 86-0619668
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
5227 NORTH 7TH STREET
PHOENIX, ARIZONA 85014
(602) 266-6700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
MR. JOSEPH HINES
ZILA, INC.
5227 NORTH 7TH STREET
PHOENIX, ARIZONA 85014-2800
(602) 266-6700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE OF SERVICE)
------------------------
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
KEVIN J. TOUREK, ESQ.
STREICH LANG, P.A.
2 NORTH CENTRAL AVENUE
PHOENIX, ARIZONA 85004-2391
(602) 229-5200
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
PUBLIC: From time to time after the Registration Statement becomes effective as
determined by market conditions and the needs of the Selling Securityholders.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITY AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value......... 1,245,478 shares $8.375 $10,430,878.25 $3,596.85
================================================================================================================
</TABLE>
(1) In the event of a stock split, stock dividend, or similar transaction
involving the Company's Common Stock, in order to prevent dilution, the
number of shares registered shall automatically be increased to cover the
additional shares in accordance with Rule 416(a) under the Securities Act.
(2) Estimated solely for the purpose of calculating the registration fee based
upon the average of the bid and asked price for the common Stock on June 10,
1996
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE> 3
ZILA, INC.
1,245,478 SHARES OF COMMON STOCK, $0.001 PAR VALUE
------------------------
The securities offered hereby (the "Offered Securities") are 1,245,478
shares of common stock, $.001 par value ("Common Stock"), of Zila, Inc., a
Delaware corporation (the "Company"). Of the 1,245,478 shares of the Common
Stock, (i) 601,360 shares are issuable upon the exercise of outstanding warrants
to purchase shares of Common Stock (the "Warrants") and (ii) 644,118 shares were
previously issued in connection with private placements of the Company's Common
Stock and are presently outstanding.
All the securities being offered hereby may be sold from time to time by
certain Selling Securityholders. See "SELLING SECURITYHOLDERS." The Company will
not receive any of the proceeds from the sale of the Offered Securities by the
Selling Securityholders. The Offered Securities may be offered from time to time
in one or more transactions in the over-the-counter market, pursuant to Rule 144
under the Securities Act of 1933, or otherwise, at market prices prevailing at
the time of sale, at prices relating to such prevailing market prices, or at
negotiated prices, and without payment of any underwriting discounts or
commissions except for usual and customary selling commissions paid to brokers
or dealers. All expenses in connection with the registration of the securities
will be borne by the Company. See "RISK FACTORS," "PLAN OF DISTRIBUTION" and
"SELLING SECURITYHOLDERS."
The Common Stock is listed on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ") under the Symbol "ZILA." On June
10, 1996, the average of the closing bid and asked quotations per share of the
Common Stock, as provided by market makers in the Common Stock who report
through NASDAQ was $8.375 per share.
SEE "RISK FACTORS" ON PAGE 4 FOR A DISCUSSION OF CERTAIN RISKS
RELATED TO AN INVESTMENT IN THE COMMON STOCK.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1996.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed with the Commission can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C., and at the Commission's regional offices at 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and 7 World Trade Center, 13th
Floor, New York, New York 10048. Copies of such material can also be obtained at
prescribed rates from the Public Reference section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). As permitted by the rules and
regulations of the Commission, this Prospectus omits certain information
contained in the Registration Statement, and reference is made to the
Registration Statement and related exhibits for further information with respect
to the Company and the securities offered hereby. Any statements contained
herein concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission are not
necessarily complete, and in each instance reference is made to the copy of such
document so filed. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Commission
are incorporated by reference into this Prospectus: (i) the Company's Annual
Report on Form 10-K for the fiscal year ended July 31, 1995; (ii) the Company's
Quarterly Report on Form 10-Q for the quarterly period ended October 31, 1995;
(iii) the Company's Current Report on Form 8-K dated (date of earliest event
reported) February 1, 1996; (iv) the Company's Quarterly Report on Form 10-Q for
the quarterly period ended January 31, 1996; (v) the Company's Current Report on
Form 8-K dated (date of earliest event reported) April 3, 1996; (vi) the
Company's Current Report on Form 8-K dated (date of earliest event reported)
June 3, 1996; (vii) the Company's Quarterly Report on Form 10-Q for the
quarterly period ended April 30, 1996; and (vii) the description of the Common
Stock contained in the Company's Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the Securities Exchange Act of 1934 on Form
8-A dated March 1, 1989, as amended from time to time.
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 made hereby shall be deemed to be
incorporated by reference herein and to be part hereof from the date of the
filing of such reports and documents.
Any statement contained in a document incorporated or deemed 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 that is also deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person,
including a beneficial owner, to whom a Prospectus is delivered upon written or
oral request of each person, a copy of any document incorporated herein by
reference, (not including exhibits to the document that have been incorporated
herein by reference unless such exhibits are specifically incorporated by
reference in the document which this Prospectus incorporates). Requests should
be directed to President, Zila, Inc., 5227 North 7th Street, Phoenix Arizona
85014-2800; telephone (602) 266-6700.
2
<PAGE> 5
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to the more
detailed information and financial statements appearing elsewhere in and
incorporated by reference into this Prospectus. The shares offered hereby are
speculative and involve a high degree of risk. See "RISK FACTORS."
THE COMPANY
The Company's primary emphasis is on the marketing of three
over-the-counter, non-prescription products, ZILACTIN(R), ZILACTIN(R)-L
(formerly ZILACTOL(R)) and ZILACTIN(R)-B. These products are over-the-counter,
non-prescription gels and liquids used topically for symptomatic relief of
canker sores (oral mucosal ulcers), cold sores, fever blisters and abrasions.
The ZILACTIN(R) treatment composition is covered by patents owned by the
Company. ZILACTIN(R), ZILACTIN(R)-L and ZILACTIN(R)-B formulas incorporate these
proprietary treatment compositions. First manufactured in 1984, ZILACTIN(R) was
introduced in major drug stores in the Phoenix area and is currently carried by
major drug stores and retail chains throughout the United States. The Company is
also seeking government approval from the Food and Drug Administration (the
"FDA") and the countries of the European Union ("EU") to distribute OraTest
(previously known as Orascan) , a fourth product, in the United States and
Europe. OraTest has been approved for distribution in the United Kingdom, Canada
and Australia. OraTest is a diagnostic for oral cancer and site delineation
device for biopsy and surgical excision.
The Company is incorporated in the State of Delaware. The Company's
principal executive offices are located at 5227 North Seventh Street, Phoenix,
Arizona 85014-2800 and its telephone number is (602) 266-6700.
THE OFFERING
<TABLE>
<S> <C>
Securities offered.......................... 1,245,478 shares of Common Stock
Common Stock outstanding as of April 30,
1996...................................... 25,038,960 shares of Common Stock
NASDAQ Symbol............................... ZILA
</TABLE>
3
<PAGE> 6
RISK FACTORS
This offering involves a high degree of risk. Prospective investors should
carefully consider, among other factors, the following risks relating to the
Company, its business and this offering:
1. No Assurance of Profitable Operations. For the fiscal years ended July
31, 1995 and 1994, the Company had net losses of $862,920 and $995,205,
respectively, compared with net income of $369,949 for the fiscal year ended
July 31, 1993. The Company has had profitable operations in only one of its last
three fiscal years. There can be no assurance that the Company will, in the
future, return to profitability or that the Company's plan for expanded
operations will be successful.
2. Litigation. On April 13, 1994, the Company filed a complaint in the
United States District Court for the District of Arizona against the
Colgate-Palmolive Company ("Colgate") (CIV No. 94-0756 PHX-CAM) alleging that
Colgate's manufacture and distribution of Orabase Gel infringes on certain
Zila-owned patents. The complaint also requests an award of damages in an
appropriate amount. On May 27, 1994, Colgate filed its answer denying
infringement and asserting that the patent is invalid and unenforceable. The
Company has received an opinion of Drummond & Duckworth, its patent counsel,
that the patent is valid and enforceable and that Colgate is infringing. The
Company intends to vigorously prosecute its claims. If the Company is
unsuccessful and a determination is made that the patent is invalid and
unenforceable, such a determination could have a material adverse affect on the
Company.
3. Competition; Research and Development. The pharmaceutical industry is
highly competitive. A number of companies, many of which have greater financial
resources, marketing capabilities and research and development capacity than the
Company, are actively engaged in the development of products similar to those
products produced and marketed by the Company. The Company relies on outside
sources for its on-going research and development needs in much the same manner
as the Company relies on outside sources for manufacturing. The pharmaceutical
industry is characterized by extensive and on-going research efforts. Other
companies may succeed in developing products superior to those marketed by the
Company. Such companies may even succeed in developing a cure for herpes simplex
virus, which would substantially reduce the potential market for symptomatic
treatments such as ZILACTIN(R).
4. Government Regulation. The approval and sale of pharmaceutical products
is heavily regulated by the Food and Drug Administration (the "FDA") and other
federal and state regulatory agencies. Such regulation encompasses pricing,
safety and efficacy, testing, advertising and promotion, labeling of
pharmaceutical products and other matters. Compliance with such regulations is
both costly and time consuming. In order to be legally marketed over-the-counter
("OTC"), a product must either be the subject of a New Drug Application ("NDA")
approved by the FDA, be the subject of an applicable FDA monograph designating
the product generally recognized as safe and effective or, if no FDA monograph
exists, the FDA may designate a product as "grandfathered" (i.e. the sale of
such product is permissible because of the safe use of such product or similar
products prior to December 5, 1975). ZILACTIN(R) and its family of products have
been "grandfathered" and a letter has been received by the Company from the FDA
confirming that status. ZILACTIN(R) is currently being marketed for the
symptomatic relief of canker sores (oral mucosal ulcers or lesions), cold sores,
and fever blisters. ZILACTIN(R)-L (for the treatment of fever blisters and cold
sores before they erupt) is also marketed as a "grandfathered" product. Neither
of these products may be marketed as a treatment for genital herpes or herpes
zoster (commonly known as "shingles") without an effective new drug application.
Depending principally on the time and expense involved, NDAs seeking approval
for marketing ZILACTIN(R) and/or ZILACTIN(R)-L as topical applications for the
treatment of shingles and genital herpes may be filed by the Company. There can
be no assurance that any NDA will be filed with/or approved by the FDA. Any
challenge by the FDA of the Company's sale of or claims for ZILACTIN(R) would
materially adversely affect the business and prospects of the Company. The
Company is also seeking FDA and EU approval of OraTest, an oral cancer
diagnostic. There can be no assurance that FDA or EU approval of OraTest will be
obtained.
5. Dependence on Key Personnel. The operations of the Company depend to a
great extent on the technical expertise and management efforts of Mr. Joseph
Hines, President of the Company, Mr. Clarence Baudhuin, Executive Vice President
of the Company, Mr. Edwin Pomerantz, Vice President of Regulatory and Technical
Affairs, and Ms. Janice Backus, Vice President and Corporate Secretary. The loss
of
4
<PAGE> 7
Messrs. Hines, Baudhuin or Pomerantz or Ms. Backus could materially adversely
affect the Company's business. The Company maintains key person life insurance
coverage on Messrs. Hines, Baudhuin and Pomerantz.
6. Patents and Trademarks. The Company holds three United States patents
and one Canadian patent which cover the ZILACTIN(R) treatment composition,
certain extended applications of the basic treatment composition formula and the
film-forming properties of the product. The ZILACTIN(R) formula was granted a
United States patent on August 25, 1981, a United States patent covering
extended applications of the basic ZILACTIN formula was granted on April 26,
1983, and a United States patent covering the film forming properties of the
ZILACTIN formula containing an added medical ingredient was issued on January
14, 1992. Such patents were granted for a period of seventeen years from the
grant dates. The Canadian patent, which covers the composition and extended
applications was granted on December 3, 1985 and expires December 3, 2002. In
1992, the Company acquired an exclusive license to the rights of the Department
of Commerce's patent regarding a certain method of substantially eliminating
false positive tests for the detection of oral cancer. The patent underlying
this license expires March 23, 1999. In 1994, the Company acquired the rights to
a second patent which describes a stable form of the liquid used in oral cancer
tests. This patent is scheduled to expire on December 31, 2011; however, the
expiration date of this patent, as well as the Department of Commerce patent,
will be delayed due to certain ongoing studies being conducted by the Company.
The respective expiration dates will be delayed for a period equal to the length
of the studies. No assurance can be given that the validity of any patents
issued to or held by the Company would be confirmed in a court test or that the
scope of these patents is adequate to effectively limit competition against the
Company.
The Company has also registered the trademark ZILACTIN(R) with the United
States Patent and Trademark Office effective July 9, 1985 and has also
registered the trademarks "ZILA", ZILACTIN(R)-B, ZilaDent and ZILACTIN(R)-L in
the United States. ZILA(R) and ZILACTIN(R) are also registered in Canada. If the
Company is unable to adequately protect its mark or marks against use of similar
marks or names, the Company's business could be materially adversely affected.
7. Possible Claims Relating to Products. The Company could be exposed to
possible claims for personal injury resulting from allegedly defective products
manufactured by third parties with which it has entered into manufacturing
agreements. The Company maintains product liability insurance coverage for
claims arising from the use of all its products. However, there can be no
assurance that the Company will not be subject to product liability claims in
excess of its insurance coverage. Any significant product liability claims not
within the scope of the Company's insurance coverage could have a material
adverse effect on the Company.
8. No Cash Dividends. Although the Company is not restricted in its
ability to pay cash dividends, the Company has never paid cash dividends on its
Common Stock and does not contemplate paying cash dividends in the foreseeable
future.
9. Charter and Bylaw Provisions. The Company's Certificate of
Incorporation, as amended, and Bylaws contain provisions that limit or eliminate
director liability for certain actions. These provisions could, in some
instances, prevent redress by stockholders for certain actions taken by the
Company's directors.
10. Warrants and Options. At April 30, 1996, 2,407,803 shares of Common
Stock are issuable upon the exercise of outstanding options and warrants to
purchase shares of Common Stock, including warrants to purchase 601,630 shares
covered by this Prospectus. For the life of such options and warrants, the
option and warrant holders will have the opportunity to profit from a rise in
the price of the Common Stock, with a resulting dilution in the interest of
other holders of the Common Stock. The existence of such options and warrants
may adversely affect the terms on which the Company can obtain additional
financing. Further, the warrant and option holders can be expected to exercise
their warrants and options at a time when the Company would, in all likelihood,
be able to obtain additional capital by an offering of its unissued Common Stock
on terms more favorable to the Company than those provided by such options and
warrants.
11. Shares Eligible for Future Sale. As of April 30, 1996, the Company had
25,038,960 shares of Common Stock outstanding. An additional 2,407,803 shares of
Common Stock are issuable upon exercise of outstanding options and warrants to
purchase Common Stock, including warrants to purchase 601,360 shares
5
<PAGE> 8
of the Common Stock covered by this prospectus. Such shares, subject to certain
limitations, may be available in the future for resale in the open market
pursuant to Rule 144 promulgated under the Securities Act, as amended or
pursuant to registration of such shares under the Securities Act. The foregoing
resales, if any, may have an adverse effect on the market price of the Common
Stock.
USE OF PROCEEDS
The net proceeds of this offering will be received directly by each Selling
Securityholder. No proceeds will be received by the Company from the sale of the
Common Stock offered hereby.
DETERMINATION OF OFFERING PRICE
This Prospectus may be used from time to time by the Selling
Securityholders who offer the Common Stock registered hereby for sale. The
offering price of such Common Stock will be determined by the Selling
Securityholder and may be based on market prices prevailing at the time of sale,
at prices relating to such prevailing market prices, or at negotiated prices.
6
<PAGE> 9
SELLING SECURITYHOLDERS
The following table provides certain information with respect to the Common
Stock beneficially owned by the Selling Securityholders who are entitled to use
this Prospectus. The information in the table is as of the date of this
Prospectus. Except as described below, no Selling Securityholder has had a
material relationship with the Company within the past three years other than as
a result of the ownership of Common Stock.
Upon the completion of the offering and assuming the sale by the Selling
Securityholders of all the shares of Common Stock available for sale under this
Prospectus, none of the Selling Securityholders shall own more than one percent
of the outstanding Common Stock of the Company.
The Common Stock offered by this Prospectus may be offered from time to
time by the Selling Securityholders named below or their nominees:
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
1. Daleco Capital Corporation(4)............ 120,101 120,101 120,101 0
3333 West Coast Highway
Fourth Floor
Newport Beach, CA 92663
2. Daleco ZILA Partners II, L.P.(4)......... 48,248 48,248 48,248 0
3333 West Coast Highway
Fourth Floor
Newport Beach, CA 92663
3. Aragon Financial Services................ 223 223 223 0
555 Point Drive
Building 3, Ste. 204
Brea, CA 92621
4. Berthel, Fisher & Company................ 676 676 676 0
P.O. Box 74250
Cedar Rapids, IA 52407-4250
5. Norm Marland............................. 313 313 313 0
P.O. Box 339
Southport, CT 06490
6. Patricia Means........................... 1,519 1,519 1,519 0
2716 Beaver Dam Circle
Pinetop, AZ 85935
7. Russ Tafoya.............................. 134 134 134 0
21 Shorecliff
Aliso Viejo, CA 92656
8. Financial Investment Analysts, Inc....... 357 357 357 0
900 Washington Avenue
Carnegie, PA 15106
9. VSR Financial Services, Inc.............. 581 581 581 0
8012 State Line, Suite 204
Leawood, KS 66208
10. World Invest Corporation................. 44 44 44 0
2730 S.W. Third Avenue,
Fifth Floor
Miami, FL 33129
11. Daleco Securities, Inc.(4)............... 1,746 45 45 1,701
3333 West Coast Highway,
Fourth Floor
Newport Beach, CA 92663
12. Parker Dale.............................. 10,050 10,050 10,050 0
221 Via Genoa
Newport Beach, CA 82663
</TABLE>
7
<PAGE> 10
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
13. Michael G. Dale.......................... 10,050 10,050 10,050 0
26631 Laurel Crest
Laguna Hills, CA 92653
14. Dan S. Abbey IRA......................... 700 700 700 0
First Trust Corp.,
TTEE #593777-0001
P.O. Box 173301
Denver, CO 80217
15. Anne B. Abbott IRA....................... 560 560 560 0
First Trust Corp.,
TTEE #582092-0001
P.O. Box 173301
Denver, CO 80217
16. William Abbott IRA....................... 560 560 560 0
First Trust Corp.,
TTEE #582091-0001
P.O. Box 173301
Denver, CO 80217
17. Linda J. Adkins IRA...................... 1,850 350 350 1,500
First Trust Corp.,
TTEE #608875-0001
P.O. Box 173301
Denver, CO 80217
18. Richard B. Adkins IRA.................... 420 420 420 0
First Trust Corp,
TTEE #608877-0001
P.O. Box 173301
Denver, CO 80217
19. Mason Ahearn, M.D. IRA................... 1,624 1,624 1,624 0
First Trust Corp.,
TTEE #107446-0001 Dtd. 7-28-94
P.O. Box 173301
Denver, CO 80217
20. A. Mason Ahearn.......................... 2,380 2,380 2,380 0
Self-Directing IRA/Claire Orthopedics
442 North Collins Meadow Drive
Georgetown, SC 29440
21. Jon Ahrendsen............................ 420 420 420 0
Becky Ahrendsen
#0D2-170046
728 Maple lane
Clarion, IA 50525
22. Enide Allison............................ 2,100 2,100 2,100 0
20700 Saratoga Hills Road
Saratoga, CA 95070
23. Clarence M. Anderson, Jr................. 2,100 2,100 2,100 0
RR 1, Box 27
Hastings, NE 68901
24. Fred H. Appleton & Carol................. 2,720 1,120 1,120 1,600
5709 Tonyawatha Trail
Madison, WI 53716
25. Hermann Attinger......................... 16,211 4,900 4,900 11,311
f Nancy B. Attinger
700 Benvenue Avenue
Los Altos, CA 94024
</TABLE>
8
<PAGE> 11
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<C> <S> <C> <C> <C> <C>
26. John Attinger............................ 1,120 1,120 1,120 0
1297 First Avenue, #4N
New York, NY 10021
27. Catherine E. Bahr........................ 700 700 700 0
3660 Grand #230
Des Moines, IA 50312
28. Jack E. Balkenhol........................ 2,800 1,400 1,400 1,400
Lorene V. Balkenhol
6526 -- 20th Avenue NW
Seattle, WA 98117
29. Mary Ann Balkenhol #1988-01.............. 1,400 1,400 1,400 0
Republic Bank CFBO
c/o Qualified Pensions, Inc.
300 West Glenoaks #302
Glendale, CA 91202
30. Wayne J. Balkenhol #1988-00.............. 1,400 1,400 1,400 0
Republic Bank CFBO
Qualified Pensions, Inc.
300 West Glenoaks #302
Glendale, CA 91202
31. Leon O. Banks, M.D....................... 8,841 1,120 1,120 7,721
3655 Homeway Drive
Los Angeles, CA 90008
32. Orton S. Barnes.......................... 2,100 2,100 2,100 0
Patricia N. Barnes
6010 North Mardelle Circle
Tucson, AZ 85704
33. Donald L. Barrigar IRA................... 1,400 1,400 1,400 0
Mernat & Co., Custodian
Attn: Rick Cooper Evans
222 -- 2nd Avenue SE
Cedar Rapids, IA 52401
34. Herman Dean Bates IRA.................... 7,476 1,820 1,820 5,656
First Trust Corp., TTEE
#600165-0001
P.O. Box 173301
Denver, CO 80217
35. Bothel Family Trust Dtd. 7-25-89......... 2,100 2,100 2,100 0
Douglas R. Bothel & Rebecca
S. Bothel, Co-Trustees
4621 Edenvale Avenue
La Mesa, CA 91941
36. Margaret L. Bradley, TR as............... 2,100 2,100 2,100 0
Trustee for Margaret L.
Bradley Trust U/A 1-23-89
6726 Oakridge Road
San Diego, CA 92120
37. Ira Brandell............................. 16,561 2,800 2,800 13,761
4111 Higura Road
San Jose, CA 95148
38. Ira Brandell IRA......................... 4,760 4,760 4,760 0
First Trust Corp, TTEE
#603392-0001
P.O. Box 173301
Denver, CO 80217
</TABLE>
9
<PAGE> 12
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
39. Sandra Britt............................. 2,100 2,100 2,100 0
One Park Lane
Mount Vernon, NY 10552
40. Sophia Broekhuis......................... 8,368 2,100 2,100 6,268
217 Arbolado Drive
La Selva Beach, CA 95076
41. Charles L. Bukowski...................... 2,800 1,400 1,400 1,400
Grace E. Bukowski
1919 West Jalisco Place
Tucson, Arizona 85745
42. Michael E. Burke......................... 2,800 2,800 2,800 0
Deanna L. Burke
1227 Magnolia Avenue
San Jose, CA 95126
43. James R. Burrus.......................... 2,100 2,100 2,100 0
Norma L. Burrusa
4261 McKinnon Drive
San Jose, CA 95130
44. First National Bank Onaga,............... 2,100 2,100 2,100 0
CUST
FBO James R. Burrus
Acct #4100557100
301 Leonard Street
Onaga, KS 66521
45. David H. Buss, M.D....................... 2,100 2,100 2,100 0
Karen M. Buss
237 Grandview Drive
Winston-Salem, NC 27104
46. Donald W. Carothers IRA.................. 5,180 5,180 5,180 0
First Trust Corp., TTEE
P.O. Box 173301
Denver, CO 80217
47. Vincent J. Cavalea....................... 20,400 2,800 2,800 17,600
54 Boulder Brook Road
Wilton, CT 06897
48. Joseph E. Clay........................... 420 420 420 0
4144 -- 15th Street
Des Moines, IA 50313
49. Joseph E. Clay &......................... 700 700 700 0
Jenny Clay Trust
Joseph E. Clay, Trustee
4144 -- 15th Street
Des Moines, IA 50313
50. Gary Clure............................... 700 700 700 0
22562 Montova
Laguna Hills, CA 92653
51. Gary Clure IRA........................... 980 980 980 0
First Trust Corp, TTEE
P.O. Box 173301
Denver, CO 80217
52. Ralph Eugene Clure IRA................... 770 770 770 0
First Trust Corp., TTEE
#101903-0001 Dtd. 4-20-94
P.O. Box 173301
Denver, CO 80217
</TABLE>
10
<PAGE> 13
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
53. Ralph E. Clure IRA....................... 7,000 7,000 7,000 0
Lincoln Trust Company, Cust.
#6077439
P.O. Box 5831, T.A.
Denver, CO 80217
54. Ari Cohn................................. 420 420 420 0
First Trust Corp., TTEE
#102767-0001 Dtd. 4-19-94
P.O. Box 173301
Denver, CO 80217
55. Lyle W. & Patricia S. Crouse............. 2,100 2,100 2,100 0
TTEE's of the Crouse 1983
Family Trust
399 South Pin High Drive
Pueblo, West, CO 81007
56. William F. Deitsch, Jr. and.............. 1,400 1,400 1,400 0
Darlene M. Deitsch, Trustees for
the Deitsch Family Trust
22 Hornet Court
Danville, CA 94526
57. David M. Dirks........................... 700 700 700 0
#0D2-169285
2311 NW 84th Avenue
Ankeny, IA 50021
58. William M. Dolan Money................... 4,900 4,900 4,900 0
Purchase
Pension Plan, William M. Dolan and
Virginia C. Dolan, TTEE's
771 Woodstock Lane
Los Altos, CA 94022
59. Edwin Downs.............................. 2,400 1,400 1,400 1,000
Box 207
St. Charles, IA 50240
60. Clifford L. Drake, Trustee............... 1,400 1,400 1,400
C. Drake & Associates Profit Sharing Plan
12434 Woodbridge Drive
Garden Grove, CA 92643
61. Martha Easter-Wells...................... 3,500 3,500 3,500 0
2630 Iowa Street
Davenport, IA 52803
62. Michael K. Engle......................... 2,800 2,800 2,800 0
Cheryl D. Engle
1465 Sowego Road
Catlett, VA 22019
63. Donald R. Fabean......................... 2,100 2,100 2,100 0
Noreen A. Fabean
5269 Dunleigh Drive
Burke, VA 22015
64. William Fabean IRA #19129................ 3,150 2,800 2,800 350
Sterling Trust Co., TTEE
P.O. Box 2526
Waco, TX 76702
</TABLE>
11
<PAGE> 14
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
65. Harold W. Ferguson....................... 10,600 2,100 2,100 8,500
Barbara S. Ferguson
6939 Plantation Road North
Roanoke, VA 24019
66. Margot S. Forrest IRA.................... 1,400 1,400 1,400 0
First Trust Corp., TTEE
Acct #608914-0001
P.O. Box 173301
Denver, CO 80217
67. Dale G. & Florence Foster,............... 2,400 1,400 1,400 1,000
TTEE for the Dale & Florence Foster Trust
dtd. 5-30-79
1223 South Gaymont Street
Anaheim, CA 92804
68. The Freeman Family Trust................. 2,100 2,100 2,100 0
Peter & Edna Freeman, Trustees
418 Loma Vista Street
El Segundo, CA 90245
69. Tony S. Gentle........................... 14,000 14,000 14,000 0
Mary Angela Gentle
1616 Cottrell
Iowa Falls, IA 50126
70. Kenneth A. George........................ 2,100 2,100 2,100 0
204 Josselyn Lane
Woodside, CA 94062
71. Mario J. Geraci.......................... 44,323 4,200 4,200 40,123
Doris A. Geraci
1995 Stafford Street
Santa Clara, CA 95050
72. David Gott............................... 31 31 31 0
408 Q Street, Box 168
South Amana, IA 52334
73. Greenfield Equipment Co.................. 1,400 1,400 1,400 0
Dennis Davis, President
2093 State Hwy 92
Greenfield, IA 50849
74. Sterling Trust Company................... 2,800 2,800 2,800 0
FBO Erick G. Greenberg, DRA #13309
P.O. Box 2526
Waco, TX 76702
75. Kurt L. Gressman IRA..................... 1,400 1,400 1,400 0
First Trust Corp., TTEE
IRA #612649-0001
P.O. Box 173301
Denver, CO 80217
76. Arthur C. Gully.......................... 10,322 560 560 9,762
Ellen P. Gully
4119 Suffolk Way
Pleasanton, CA 94566
77. Marilyn L. Hahne......................... 19,561 980 980 18,581
5313 Silver Point Way
San Jose, CA 95138
</TABLE>
12
<PAGE> 15
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
78. Lincoln Trust Co., CUST.................. 1,745 1,120 1,120 625
FBO Scott Havens
IRA #60380692
P.O. Box 5831
Denver, CO 80217
79. Scott Havens............................. 1,325 700 700 625
675 Beardsley Road
Norwalk, IA 50211
80. Lincoln Trust Co., CUST.................. 700 700 700 0
FBO Theresa K. Havens
IRA #60380683
P.O. Box 5831
Denver, CO 80217
81. Bertram W. Hoare......................... 2,100 2,100 2,100 0
Marian E. Hoare
510 South Palouse
Walla Walla, WA 99362
82. First National Bank of Onaga,............ 2,100 2,100 2,100 0
Cust.
FBO Kenneth D. Hopkins
IRA #4100179800
301 Leonard Street
Onaga, KS 66521
83. Stephen T. Horlander..................... 2,100 2,100 2,100 0
Margaret E. Horlander
1952 Birch Bluff Drive
Okemos, MI 48864
84. Quads Trust Co., Cust.................... 2,100 2,100 2,100 0
FBO Charles W. Hoyt
048-28-7252-1002
P.O. Box 4310
Frederick, MD 21705
85. Dennis D. Huedepohl...................... 980 980 980 0
Connie K. Huedepohl
RR 2, Box 32
Williamsburg, IA 52361
86. John W. Humphries, Jr.................... 2,100 2,100 2,100 0
Tina K. Humphries, Jr.
2124 Dressler Drive,
INTERVALE
Covington, VA 24426
87. James K. Ide IRA......................... 840 840 840 0
First Trust Corp., TTEE
#603608-0001 Dtd. 10-21-92
P.O. Box 173301
Denver, CO 80217
88. James K. Ide............................. 700 700 700 0
6322 Grand Bahama Circle
Tampa, FL 33615
89. George H. Iseri.......................... 1,400 1,400 1,400 0
Stella E. Iseri
644 Forbes Avenue
Montebello, CA 90640
90. Sarah A. James........................... 1,400 1,400 1,400 0
673 Georgetown Court
Sunnyvale, CA 94087
</TABLE>
13
<PAGE> 16
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
91. Sarah A. James IRA....................... 13,600 7,000 7,000 6,600
First Trust Corp., TTEE
#535600-0001
P.O. Box 173301
Denver, CO 80217
92. John G. Sellers, TTEE.................... 700 700 700 0
JGS FAM TRST #3QV234084
Pershing Sec., Attn: Mary Neal
1 Pershing Plaza, 6th Floor
Jersey City, NY 07399
93. Carol M. Jinkins......................... 560 560 560 0
202 Madison
San Antonio, TX 78204
94. William Ben Johnson...................... 2,400 1,400 1,400 1,000
Nancy Johnson
2901 Jordan Grove
West Des Moines, IA 50265
95. Carl N. Johnson, III..................... 119 119 119 0
6723 Brookview Drive
Urbandale, IA 50322
96. Carolee M. Johnson....................... 3,150 3,150 3,150 0
35 Asmara Way
Easton, CT 06612
97. Gareth R.P. Johnson as Trustee........... 2,100 2,100 2,100 0
of Gareth R.P. Johnson Trust Dtd.
9-11-93
P.O. Box 1233
Independence, MO 64051
98. Ross W. Johnson.......................... 2,100 2,100 2,100 0
The Johnson Partnership
128 Route 28
Kingston, NY 12401
99. Annette Jones, M.D. &.................... 700 700 700 0
James E. Thompson
6520 Hirabayashi Drive
San Jose, CA 95120
100. Janet Jones IRA.......................... 3,430 3,430 3,430 0
First Trust Corp., TTEE
#573662-0001
P.O. Box 173301
Denver, CO 80217
101. Tomiko Kagoshima......................... 2,100 2,100 2,100 0
18629 Martha Avenue
Saratoga, CA 950070
102. Virginia Kelehan......................... 2,400 1,400 1,400 1,000
317 -- 43rd Street
Des Moines, IA 50312
103. Richard L. Kelly......................... 560 560 560 0
Barbara J. Kelly
594 West Helton
Marengo, IA 52301
104. David A. Kinser IRA...................... 2,240 2,240 2,240 0
First Trust Corp., TTEE
#609491-0001
P.O. Box 173301
Denver, CO 80217
</TABLE>
14
<PAGE> 17
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
105. Norma P. Kinser IRA...................... 2,100 2,100 2,100 0
First Trust Corp., TTEE
#609489-0001
P.O. Box 173301
Denver, CO 80217
106. William M. Kinsey........................ 4,900 4,900 4,900 0
Bobbie C. Kinsey
913 Catawba Drive
Salem, VA 24153
107. Daniel J. Klemmedson..................... 1,400 1,400 1,400 0
Maria Adaline Klemmedson
4501 North Paseo Imuris
Tucson, Arizona 85750
108. Casimir S. Klimowski..................... 17,027 4,200 4,200 12,827
Darlene Klimowski
737 Elm Drive
Petaluma, CA 94952
109. Suzanne Keohler IRA #17766............... 2,100 2,100 2,100 0
Sterling Trust Company, TTEE
P.O. Box 2526
Waco, Texas 76702
110. William Kirke............................ 676 676 676 0
5419 Welker
Des Moines, IA 50312
111. Deborah L. Kopcho........................ 700 700 700 0
5865 Cactus Way
La Jolla, CA 92037
112. Gloria T. Kubota......................... 4,320 1,820 1,820 2,500
18781 Allendale Avenue
Saratoga, CA 95070
113. Grace M. Kubota Ybarra................... 9,638 2,310 2,310 7,328
Profit Sharing Plan
4007 Cranford Circle
San Jose, CA 95124
114. Cole Taylor Bank, Cust. FBO.............. 1,120 1,120 1,120 0
Marilyn G. Kunz IRA #8133
850 West Jackson Boulevard
Chicago, IL 60607
115. Roger E. Laman........................... 12,011 700 700 11,311
315 Cardeno Circle
Litchfield Park, AZ 85340
116. Wade Leech............................... 1,410 1,400 1,400 10
Leslie Leech
215 West Phillip Street
Covington, VA 24426
117. L.O. LeVan............................... 6,451 700 700 5,751
Betty V. LeVan
4721 Calle De Tosca
San Jose, CA 95118
118. Shirley M. Lindstrom IRA................. 2,030 1,330 1,330 700
First Trust Corp., TTEE
#100389-0001 Dtd. 4-8-94
P.O. Box 173301
Denver, CO 80217
</TABLE>
15
<PAGE> 18
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
119. Reatha M. Linkenhoker.................... 1,400 1,400 1,400 0
William D. Linkenhoker
3590 Hartland Road SW
Roanoke, VA 24015
120. Glenn W. Lipp............................ 705 700 700 5
Mildred B. Lipp
RR #1, Box 26
Gerlaw, FL 61435
121. Shelly E. Liss IRA....................... 7,000 7,000 7,000 0
First Trust Corp., TTEE
#619222-0001 Dtd. 3-8-94
P.O. Box 173301
Denver, CO 80217
122. Joel D. Lofton........................... 840 840 840 0
Barbara A. Lofton
P.O. Box 144
Thayer, MO 65791
123. Loren Const. Corp. Money Purchase........ 7,136 2,100 2,100 5,036
Pension Plan, Kendall & Cecyle
A. Walker
Co-TTEE's, U/A 1-1-86
P.O. Box 2718
Carefree, AZ 85377
124. Carleton J. Luehrs IRA................... 1,960 1,960 1,960 0
First Trust Corp., TTEE
#100382-0001 Dtd. 4-8-94
P.O. Box 173301
Denver, CO 80217
125. Mary E. Luehrs IRA....................... 560 560 560 0
First Trust Corp., TTEE
#100388-0001 Dtd. 4-8-94
P.O. Box 173301
Denver, CO 80217
126. Ulf Bertil Lundh IRA..................... 14,100 5,600 5,600 8,500
First Trust Corp., TTEE
#585109-0001 Dtd. 10-31-91
P.O. Box 173301
Denver, CO 80217
127. Shirley Maher, Trustee of................ 4,800 3,500 3,500 1,300
the Maher Family Trust
Route 9, Box 73-SM
Santa Fe, NM 87505
128. Vijay Marathe............................ 2,100 2,100 2,100 0
20015 Puente Court
Saratoga, CA 95070
129. Republic Bank CFBO John Martin........... 700 700 700 0
IRA #001-2671-00 c/o Qualified Pensions,
Inc.
300 West Glenoaks Boulevard, Suite 302
Glendale, CA 91202
130. Kreg A. Martin........................... 3,300 2,100 2,100 1,200
19161 Cozette Lane
Cupertino, CA 95014
</TABLE>
16
<PAGE> 19
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
131. First National Bank Onaga................ 2,100 2,100 2,100 0
CUST FBO James G. Mathios
IRA #4100557400
301 Leanard Street
Onaga, KS 66521
132. Joseph M. Mattheis....................... 1,400 1,400 1,400 0
Amy W. Mattheis
5909 Bayberry Lane
Raleigh, NC 27612
133. Joseph F. Mazzone........................ 2,100 2,100 2,100 0
Ida Mazzone
17 Coley Road
Wilton, CT 06897
134. The Victor C. McKenzie, Sr............... 700 700 700 0
Rachelle McKenzie Revocable Trust
Victor/Rachelle McKenzie, TTEE
36396 Barnard Street
Newark, CA 94560
135. First National Bank of Onaga............. 2,100 2,100 2,100 0
Cust. FBO Ron Meyer IRA
#41003539
301 Leonard Street
Onaga, KS 66521
136. Jane K. Milloff.......................... 28,221 2,660 2,660 25,561
802 Kingfisher Terrace
Sunnyvale, CA 94087
137. Nancy J. Millhoff........................ 280 280 280 0
802 Kingfisher Terrace
Sunnyvale, CA 94087
138. John A. and Virginia H. Mitchem.......... 9,178 1,260 1,260 7,918
as Co-Trustees of the Mitchem Family
Trust
Dated 6-4-86
3876 Sophist Drive
San Jose, CA 85231
139. Timothy S. Momany........................ 700 700 700 0
Elizabeth T. Momany
603 -- 38th
P.O. Box 40 Amana, IA 52203
140. Dale E. Montgomery....................... 5,338 2,800 2,800 2,538
Pamela A. Guido Montgomery
1861 Forest View
Prescott, AZ 86301
141. Montgomery Insurance..................... 139,000 56,000 56,000 83,000
Services, Inc.
4316 Grand #11
Des Moines, IA 50312
142. The Myers Trust.......................... 1,260 1,260 1,260 0
Christine K. Myers TTEE Dated
7-8-92
2330 Arabian Court
Morgan Hill, CA 95037
143. Mark B. Nevejans......................... 3,500 3,500 3,500 0
Lucia I. Nevejans
2193 Windemere Court
Morgan Hill, CA 95037
</TABLE>
17
<PAGE> 20
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
144. William E. Newbauer, Jr.................. 2,100 2,100 2,100 0
20 Putney Chapel Way
Stratford, CT 06497
145. William E. Newbauer, Jr. TTEE............ 2,100 2,100 2,100 0
Newbauer Family Trust
20 Putney Chapel Way
Stratford, CT 06497
146. Anita J. Peck IRA........................ 1,540 1,540 1,540 0
First Trust Corp., TTEE
#109885-0001 Dtd. 9-16-94
P.O. Box 173301
Denver, CO 80217
147. Eugene T. Peck IRA....................... 630 630 630 0
First Trust Corp., TTEE
#109884-0001 Dtd. 9-16-94
P.O. Box 173301
Denver, CO 80217
148. Leonard P. Piazzon....................... 19,511 700 700 18,811
Anne L. Piazzon
6161 Silberman Drive
San Jose, CA 95120
149. Floris O. Pittman IRA #15017............. 1,400 1,400 1,400 0
Sterling Trust Co., Trustee
P.O. Box 2526
Waco, TX 76702
150. Susan A. Platt........................... 3,948 1,120 1,120 2,828
830 West 38th
Eugene, OR 97405
151. Michael R. Pope IRA Dtd. 6-6-94.......... 420 420 420 0
West Bank, Custodian
1601 -- 22nd Street
West Des Moines, IA 50266
152. Mary Lou M. Porter....................... 5,820 1,820 1,820 4,000
14225 Lora Drive #39
Los Gatos, CA 95030
153. W.E. Prall IRA Dtd. 10-17-94............. 280 280 280 0
West Bank, Custodian
1601 -- 22nd Street
West Des Moines, IA 50266
154. David S. Price........................... 1,400 1,400 1,400 0
Gail L. Price
4123 Eagle Circle
Roanoke, VA 24018
155. Taft Randall............................. 6,340 4,340 4,340 2,000
Alma I. Randall
Route 6, Box 1150
Bassett, VA 24055
156. John A. Reno............................. 700 700 700 0
309 Court, Suite 510
Des Moines, IA 50309
157. John M. Renshaw.......................... 2,100 2,100 2,100 0
Dorothy M. Renshaw
2506 Bona Road Chalfonte
Wilmington, DE 19810
</TABLE>
18
<PAGE> 21
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
158. Nicolasa L. Reyes, TTE REYES............. 280 280 280 0
1993 Living Trust/10-22-93
1608 Foxworthy Avenue
San Jose, CA 95118
159. The Reynolds Trust Dtd. 8-1-93........... 700 700 700 0
Kenneth & Rose Reynolds,
TTEEs
608 -- 275 Avenue
Little York, IL 61453
160. Bonnie L. Ricci.......................... 2,100 2,100 2,100 0
3781 Crete Street
San Diego, CA 92117
161. Peter N. Richter......................... 13,557 2,100 2,100 11,457
26 Ledgebrook Drive
Norwalk, CT 06854
162. William J. Riley......................... 4,200 4,200 4,200 0
Shirley H. Riley
100 Waller Avenue
Covington, VA 24426
163. Richard H. Robinson IRA.................. 1,080 280 280 800
#619175-0001 Dtd. 3-7-94
First Trust Corp., TTEE
P.O. Box 173301
Denver, CO 80217
164. Gary Rumack IRA.......................... 700 700 700 0
First Trust Corp., TTEE
#604729-0001
P.O. Box 173301
Denver, CO 80217
165. Lindamira M. Rumack IRA.................. 700 700 700 0
First Trust Corp., TTEE
#604730-0001
P.O. Box 173301
Denver, CO 80217
166. Steve S. Ryan............................ 1,120 1,120 1,120 0
Account #85942308
15 Dudley Avenue #3
Venice, CA 90291
167. Steve Staszak Ryan IRA................... 210 210 210 0
First Trust Corp., TTEE
P.O. Box 173301
Denver, CO 80217
168. Carlton Saunders......................... 2,100 2,100 2,100 0
108 Dover Street
Los Gatos, CA 95032
169. Suzanne Scaramella IRA................... 280 280 280 0
First Trust Corp., TTEE
P.O,. Box 173301
Denver, CO 80217
170. Robert J. Schauer IRA.................... 2,800 2,800 2,800 0
#619011-0001 Dtd. 3-2-94
First Trust Corp., TTEE
P.O. Box 173301
Denver, CO 80217
</TABLE>
19
<PAGE> 22
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
171. Richard Schaefer......................... 700 700 700 0
RR 1, Box 137
Williamsburg, IA 52361
172. Cole Taylor Bank, Cust. FBO.............. 1,260 1,260 1,260 0
Catherine J. Schell IRA #8132
850 West Jackson Boulevard
Chicago, IL 60607
173. Lincoln Trust Co. CUST FBO............... 1,200 700 700 500
Kayleen A. Scholl
#60381986
P.O. Box 5831
Denver, CO 80217
174. William C. Scholl........................ 1,900 1,400 1,400 500
Kayleen A. Scholl
210 Lindhardt Road
Carlisle, IA 50047
175. William L. Sheafer....................... 4,828 1,050 1,050 3,778
458 Beaver Street
Beaver, PA 15009
176. Darold Sindt............................. 1,400 1,400 1,400 0
308 -- 4th Avenue
Box 278
Keystone, IA 52249
177. Rodney M. Smith.......................... 700 700 700 0
Donna Wheeling Smith
P.O. Box 1384
Salem, VA 24153
178. James E. Snook........................... 2,100 2,100 2,100 0
1703 Delaware Avenue
Santa Cruz, CA 95060
179. Warren A. Spence......................... 2,100 2,100 2,100 0
M. Christine Spence
20 Briar Oak Drive
Weston, CT 06883
180. Brian Stewart Trust...................... 2,100 2,100 2,100 0
Sterling Trust Co., Trustee
PSP, K01049
7227 Navajo Road #212
San Diego, CA 92119
181. Billie B. Stites IRA..................... 1,120 1,120 1,120 0
First Trust Corp., TTEE
P.O. Box 173301
Denver, CO 80217
182. Colonel W. Stites........................ 700 700 700 0
Mark B. Stites
16189 Alum Rock Avenue
San Jose, CA 95124
183. Colonel W. Stites IRA.................... 1,330 1,330 1,330 0
First Trust Corp., TTEE
#608709-0001
P.O. Box 173301
Denver, CO 80217
</TABLE>
20
<PAGE> 23
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
184. Christy Lynn Stone Trust................. 2,800 1,400 1,400 1,400
Dtd. 12-30-82
Bonnie S. Hodges TTEE
1519 Kenmar Drive
Martinsville, VA 24112
185. Robert N. Stone, Jr. Trust............... 2,800 1,400 1,400 1,400
Bonnie S. Hodges, TTEE
1519 Kenmar Drive
Martinsville, VA 24112
186. First Trust Corp., Trustee............... 3,080 1,540 1,540 1,540
FBO Robert N. Stone IRA
#601269-0001
P.O. Box 173301
Denver, CO 80217
187. Leroy W. Stutz and Karen L. Stutz........ 22,011 2,800 2,800 19,211
Trustees for LWS KLS
Revocable Living Trust
10401 SE 57th
Oklahoma City, OK 73150
188. Diana L. Sylvester....................... 840 840 840 0
2 Fallon Place #27
San Francisco, CA 94133
189. Linda K. Sylvester....................... 2,060 1,260 1,260 800
925 Jackson Boulevard
Bel Air, MD 21014
190. Alfred C. & Rachel B. Taylor............. 1,400 1400 1,400 0
Trust Dated 10-5-93
5405 Indian Hill Avenue
Las Vegas, NV 89130
191. J. Paul Thorin........................... 19,723 2,100 2,100 17,623
2167 El Capitan Avenue
Santa Clara, CA 95050
192. W. David Ward IRA........................ 700 700 700 0
Lincoln Trust Co., Custodian
P.O. Box 5831
Denver, CO 80217
193. Peter B. Webber.......................... 280 280 280 0
Marcia M. Webber
144 Oakhurst Road
Cape Elizabeth, ME 04107
194. Gary Weber............................... 2,100 2,100 2,100 0
Ellen Weber
480 County Line Road
Cumming, IA 50061
195. John Wedeking............................ 2,800 2,800 2,800 0
406 SW Country Club Lane
Ankeny, IA 50021
196. Cole Taylor Bank, Cust................... 700 700 700 0
FBO Rose B. West IRA #8418
850 West Jackson Boulevard
Chicago, IL 60607
197. Samuel C. Winchester..................... 30,255 22,800 22,800 7,455
Sylvia W. Winchester
100 Lochstone Lane
Cary, NC 27511
</TABLE>
21
<PAGE> 24
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES AVAILABLE OWNED AFTER
NAME AND ADDRESS OF SELLING BENEFICIALLY FOR SALE UNDER COMPLETION OF
SECURITYHOLDER(1) OWNED(2) WARRANTS(3) THIS PROSPECTUS THE OFFERING
----------------------------------------- ------------ ----------- ---------------- -------------
<S> <C> <C> <C> <C>
198. Peter Yaholkovsky........................ 560 560 560 0
1267 Vicente Drive #144
Sunnyvale, CA 94086
199. Peter Yaholkovsky IRA.................... 1,260 1,260 1,260 0
First Trust Corp., TTEE
#611948-0001
P.O. Box 173301
Denver, CO 80217
200. Rosie M. Yoshida......................... 980 980 980 0
527 Westlake Drive
San Jose, CA 95117
201. Mark K. Malmros(5)....................... 352,465 0 322,059 30,406
2 A Taylor Way
Washington Crossing, PA 18977-1046
202. Pier J. Cipriani(5)...................... 352,665 0 322,059 30,606
285 Senteniel Avenue
Newtown, PA 18940
--------- --------- ------------ ----------
Total 1,735,162 601,360 1,245,478 489,684
======== ========= ============ ==========
</TABLE>
- ---------------
(1) None of the Selling Securityholders currently hold or previously have had
any position, office or material relationship with the Company within the
last three years.
(2) Includes the shares owned prior to this offering and the shares which are
issuable upon the exercise of the warrants to acquire shares held by the
Selling Securityholders. The number of shares being offered hereby is shown
in the "Shares Available for Sale Under this Prospectus" column. See
footnote (3) below.
(3) Warrants for the purchase of the individual and aggregate number of shares
of Common Stock shown below.
(4) Affiliated entities. Shares for one entity are not included in the shares
owned by either of the other entities.
(5) Mr. Malmros and Mr. Cipriani are each 30.82 percent shareholders of an
entity that owns 6,342 shares of Zila, Inc. Common Stock. For purposes of
attributing beneficial ownership, Mr. Malmros and Mr. Cipriani have each
been deemed to beneficially own 1,950 of such shares.
Because (1) a Selling Securityholder may offer all or some of the shares of
Common Stock which it holds pursuant to the offerings contemplated by this
Prospectus, (2) the offerings of shares of Common Stock are not necessarily
being underwritten on a firm commitment basis, and (3) a Selling Securityholder
could purchase additional shares of Common Stock from time to time, no estimate
can be given as to the amount of shares of Common Stock that will be held by any
Selling Securityholder upon termination of such offerings. See "PLAN OF
DISTRIBUTION."
22
<PAGE> 25
PLAN OF DISTRIBUTION
The Selling Securityholders may from time to time offer the shares of
Common Stock through underwriters, dealers or agents, who may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Securityholders and/or the purchasers of the Common Stock for
whom they may act as agent. The Selling Securityholders and any underwriter,
dealer or agent that participate in the distribution of the Common Stock may be
deemed to be underwriters, and any profit on the sale of the Common Stock by
them and any discounts, commissions or concessions received by any such
underwriters, dealers or agents might be deemed to be underwriting discounts and
commissions under the Securities Act. At the time a particular offering of
Common Stock is made, to the extent required, a Prospectus Supplement will be
distributed with this Prospectus which will set forth the aggregate number of
shares being offered and the terms of the offering, including the names of any
underwriters, dealers or agents, any discount, commissions and other items
constituting compensation from the Selling Securityholders and any discounts or
concessions allowed or reallowed or paid to dealers. In the event a Selling
Securityholder sells the Common Stock through the use of an underwriter, it may
be necessary to file a post-effective amendment to the Registration Statement
registering the Common Stock.
Alternatively, the Selling Securityholders may from time to time effect
sales of the shares of Common Stock offered hereunder in one or more
transactions in the over-the-counter market pursuant to Rule 144 under the
Securities Act, or otherwise, at market prices prevailing at the time of sale,
at prices relating to such prevailing market prices, or at negotiated prices. It
is anticipated that broker-dealers participating in such sales of Common Stock
will receive the usual and customary selling commissions.
The Company will pay substantially all of the expenses incident to the
registration of the Common Stock. The Company will not pay any expenses incident
to the offering and sale of the Common Stock to the public, including, but not
limited to commissions and discounts of underwriters, dealers or agents.
LEGAL MATTERS
The legality of the securities offered hereby has been passed upon for the
Company by Streich Lang, P.A., Phoenix, Arizona. Certain matters relating to the
validity of certain of the Company's patents have been passed upon for the
Company by Drummond & Duckworth, Newport Beach, California.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the fiscal year ended July 31, 1995 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
are incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
23
<PAGE> 26
MATERIAL CHANGES
Bio-Dental Technologies. The Company has announced that it has signed a
letter of intent with Bio-Dental Technologies Corporation ("Bio-Dental") for the
merger of Bio-Dental into Zila. The transaction will involve the exchange of
Zila stock for all of Bio-Dental's outstanding capital stock. It is the
intention of the parties that the merger be treated as a "pooling of interests"
transaction. The terms of the letter of intent provide for a per share exchange
rate of between 0.75 and 0.825 share of Zila common stock for each share of
Bio-Dental common stock. Bio-Dental had 6,427,134 shares of common stock
outstanding at March 31, 1996. The completion of the transaction is subject to a
number of conditions, including the satisfactory completion of due diligence by
both parties, the negotiation and execution of definitive agreements and the
approval of Bio-Dental shareholders.
CTM Associates. Zila announced that it has acquired the remaining
two-thirds of the outstanding shares of CTM Associates ("CTM"). The acquisition
of this two-thirds interest together with Zila's previously announced
acquisition of CTM common stock brings Zila's interest in CTM to 100 percent.
The acquisition of CTM eliminates Zila's obligation to pay royalties to CTM on
revenues generated on the sale or other distribution of OraTest. The acquisition
also results in a complete settlement of certain litigation between Zila and
CTM. As consideration for the acquisition of the CTM common stock, Zila issued
644,118 shares of Zila common stock to CTM shareholders and assumed certain
liabilities of approximately $70,000.
Procter & Gamble. On Wednesday April 3, 1996, The Procter & Gamble Company
("P&G") notified Zila that it was terminating its license agreement with the
Company to market Zila's oral cancer diagnostic, OraTest. Such termination will
be effective on July 3, 1996. P&G informed Zila that its decision to terminate
the Zila agreement was based upon the P&G decision to refocus its resources on
its core product lines. The terms of the license agreement provide that P&G had
the right to terminate the agreement upon 90-days notice. Under such provisions,
P&G is required to continue to pay certain nonrefundable licensing fees to Zila
during such 90-day period notwithstanding the termination. The Company is
confident in the viability of the OraTest product and expects to begin marketing
OraTest in certain foreign countries in approximately two months. The Company
will continue with the FDA approval process for OraTest. In addition, the
Company is reviewing its options relative to the introduction of OraTest in the
United States once FDA approval is received. The Company has recently entered
into a letter of intent to acquire Bio-Dental Technologies Corporation (See
Bio-Dental Technologies above) a marketer of professional dental products.
24
<PAGE> 27
======================================================
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES
OTHER THAN THE REGISTERED SECURITIES TO WHICH IT RELATES OR AN OFFER TO ANY
PERSON IN ANY JURISDICTION IN WHICH SUCH AN OFFER WOULD BE UNLAWFUL. NEITHER
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT INFORMATION CONTAINED HEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO THE DATE OF THIS PROSPECTUS.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
Prospectus Summary.................... 3
Risk Factors.......................... 4
Use of Proceeds....................... 6
Determination of Offering Price....... 6
Selling Securityholders............... 7
Plan of Distribution.................. 23
Legal Matters......................... 23
Experts............................... 23
Material Changes...................... 24
</TABLE>
======================================================
======================================================
ZILA, INC.
1,245,478 SHARES
$0.001 PAR VALUE
---------------------
PROSPECTUS
---------------------
, 1996
======================================================
<PAGE> 28
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated costs and expenses of the
Company in connection with the offering described in the Registration Statement.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee....................... $ 3,600
Legal Fees and Expenses................................................... 5,000
Accounting Fees and Expenses.............................................. 5,000
Other Expenses............................................................ 2,500
-------
Total Expenses.................................................. $16,100
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 11 of the Company's Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), limits, to the full extent permitted by
Delaware law, directors' personal liability to the Company or its stockholders
for monetary damages for breach of fiduciary duty. Section 102 of the Delaware
General Corporation Law, as amended, enables a corporation to eliminate or limit
personal liability of members of its board of directors for violations of their
fiduciary duty of care. However, Delaware law does not permit the elimination of
a director's liability for breaching his duty of loyalty, failing to act in good
faith, engaging in intentional misconduct, knowingly violating a law, unlawfully
paying a dividend or approving a stock repurchase or obtaining an improper
personal benefit. The limitation of liability provided by the statute continues
after a director has ceased to occupy such position. The statute has no effect
on the availability of equitable remedies, such as an injunction or rescission,
for breach of fiduciary duty.
Article X of the Company's Bylaws requires indemnification of directors and
officers of the Company to the full extent permitted by Delaware law for claims
against them in their official capacities, including stockholders' derivative
actions. Article X requires that the Company advance expenses incurred in the
defense of such claims and continue the right of indemnification for persons who
have ceased to be directors or officers, and permits the Company to enter into
indemnification agreements with its directors and officers.
Section 145 of the Delaware General Corporation Law, as amended, applies to
the Company and provides for the indemnification of officers and directors in
specified instances. It permits a corporation, pursuant to a bylaw provision in
an indemnity contract, to pay an officer's or director's litigation expenses in
advance of a proceeding's final disposition, and provides that rights arising
under an indemnity agreement or bylaw provision may continue as to a person who
has ceased to be a director or officer.
The Company currently maintains directors' and officers' liability
insurance to supplement the protection provided in the Company's Certificate of
Incorporation and Bylaws and to fund any indemnification payments that the
Company may be required to make. Such insurance is renewable annually and is
subject to standard terms and conditions, including exclusions from coverage.
The above discussion is qualified in its entirety by reference to the
Company's Certificate of Incorporation and Bylaws. See Exhibits 4-A and 4-B to
this Registration Statement.
II-1
<PAGE> 29
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE NUMBER
NUMBER DESCRIPTION METHOD OF FILING
- ------ --------------------------------------- ---------------------------------------
<S> <C> <C>
4-A Certificate of Incorporation, as Incorporated by reference to Exhibit
amended 3-A of the Company's Annual Report on
Form 10-K for the fiscal Year ended
July 31, 1988. (the "1988 10-K")
4-B Bylaws Incorporated by reference to Exhibit
3-B of the 1988 10-K.
4-C Specimen Common Stock Certificate Incorporated by reference to Exhibit
4-A of the 1988 10-K.
4-D Specimen Warrant Certificate Incorporated by reference to Exhibit
4-C filed with Amendment No. 2 to the
Company's Registration Statement on
Form S-4, Registration No. 33-19647.
5-A Opinion of Streich Lang, P.A. as to the *
legality of securities being registered
5-B Opinion of Drummond & Duckworth as to *
the enforceability of certain patent
rights
23-A Consent of Deloitte & Touche LLP *
23-B Consent of Streich Lang, P.A. See Exhibit 5-A
23-C Consent of Drummond & Duckworth See Exhibit 5-B
24-A Power of Attorney of James E. Tinnell, *
M.D.
24-B Power of Attorney of Joseph Hines *
24-C Power of Attorney of Patrick M. *
Lonergan
24-D Power of Attorney of Michael S. Lesser *
24-E Power of Attorney of Carl A. Schroeder *
24-F Power of Attorney of H. Ray Cox *
24-G Power of Attorney of Clarence J. *
Baudhuin
</TABLE>
- ---------------
* Filed herewith.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, 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 Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and
II-2
<PAGE> 30
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, That paragraphs (a)(1)(i) and (a)(1)(ii) of this section
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 Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's 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.
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 provisions described
in Item 15 above, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 31
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Zila, Inc.
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 on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Phoenix and State of Arizona on June 14, 1996.
ZILA, INC., a Delaware corporation
By /s/ CLARENCE J. BAUDHUIN
Clarence J. Baudhuin
Executive Vice President of Finance
and Administration, Treasurer and
Director (Principal Financial
and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- ------------------------------------------------------
<S> <C> <C>
/s/ JOSEPH HINES Chairman of the Board, President, June 14, 1996
- ------------------------------- Chief Executive Officer
Joseph Hines
/s/ CLARENCE J. BAUDHUIN Executive Vice President of Finance June 14, 1996
- ------------------------------- and Administration, Treasurer and
Clarence J. Baudhuin Director
* Director June 14, 1996
- -------------------------------
Dr. James E. Tinnell, M.D.
* Director June 14, 1996
- -------------------------------
Patrick M. Lonergan
* Director June 14, 1996
- -------------------------------
Carl A. Schroeder
* Director June 14, 1996
- -------------------------------
H. Ray Cox
* Director June 14, 1996
- -------------------------------
Michael S. Lesser
*By /s/ CLARENCE J. BAUDHUIN
- --------------------------------
Clarence J. Baudhuin
Attorney-in-Fact
</TABLE>
S-1
<PAGE> 1
[LETTERHEAD OF STREICH LANG]
June 14, 1996
Writer's Direct Line:
(602) 229-5509
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Zila, Inc.
Ladies and Gentlemen:
This firm is counsel for Zila, Inc., a Delaware corporation (the
"Company"). As such, we are familiar with the Certificate of Incorporation and
Bylaws of the Company. We have also acted as counsel for the Company with
respect to certain matters in connection with the preparation of a Registration
Statement on Form S-3 registering 1,245,478 shares of Common Stock, $.001 par
value (the "Shares") under the Securities Act of 1933. In addition, we have
examined such documents and undertaken such further inquiry as we consider
necessary for rendering the opinion hereinafter set forth below.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the State of Delaware.
2. The Shares, when issued, will be duly and validly issued, fully
paid and nonassessable.
We acknowledge that we are referred to under the heading "Legal Matters" of
the Prospectus which is part of the Registration Statement and we hereby consent
to the use of our name in such Registration Statement. We further consent to the
filing of this opinion as Exhibit 5-A to the Registration Statement and with the
state regulatory agencies in such states as may require such filing in
connection with the registration of the Shares for offer and sale in such
states.
Very truly yours,
/s/ KEVIN J. TOUREK
Kevin J. Tourek
FOR THE FIRM
EXHIBIT 5-A
<PAGE> 1
[LETTERHEAD OF DRUMMOND & DUCKWORTH]
June 4, 1996
Joseph Hines, President
Zila Pharmaceuticals, Inc.
5227 North Seventh Street
Phoenix, Arizona 85014-2800
Re: Zila Pharmaceuticals, Inc. v. Colgate-Palmolive Co.
Status Report and Opinion
Dear Mr. Hines:
Background: On April 13, 1994, Zila filed a Complaint in the United States
District Court for the District of Arizona, titled Zila Pharmaceuticals, Inc. v.
Colgate-Palmolive Company, Civil Action No. 94-0756
PHX-CAM. This Complaint was served on Colgate on May 10, 1994.
Zila's Complaint alleges that Colgate's "OraBase Gel" product infringes
Zila's U.S. Patent No. 5,081,158 (the "'158 Patent"), which covers Zila's
non-prescription, film-forming, bio-adhesive medications sold nationwide in food
and drug stores. The Complaint seeks to enjoin Colgate's manufacture and
distribution of OraBase Gel and requests an award of appropriate damages for
past infringement.
On May 27, 1994, Colgate filed its Answer to the Zila Complaint, denying
infringement and asserting that the '158 Patent is valid and unenforceable.
Status: All pretrial discovery by both parties has been completed and the
parties are ready to complete the various required pretrial procedures.
Meanwhile, Colgate has filed a motion requesting the Court to enter summary
judgment that the '158 Patent is invalid. Zila has filed its opposition to this
motion and the parties are awaiting the Court's decision on this motion. Under
Local Court Rules, the decision should be rendered by mid July. If Colgate's
Motion for Summary Judgement is denied, the case will be set for trial and,
within sixty days, the parties will complete pretrial procedures.
Opinion: After completion of discovery procedures and assessment of
Colgate's Motion for Summary Judgment, my opinion remains, as previously stated,
that the '158 Patent is valid and enforceable, that Colgate's OraBase Gel
product infringes the Patent and that Zila should prevail at trial. Further, it
is my opinion that the Court should deny Colgate's Motion for Summary Judgment.
We acknowledge that we are referred to under the heading "Legal Matters" of
the Prospectus which is part of the Registration Statement on Form S-3
registering 1,245,478 shares of Common Stock, $.001 par value under the
Securities Act of 1933 (the "Shares"), and we hereby consent to the use of our
name in such Registration Statement. We further consent to the filing of this
opinion as Exhibit 5-B to the Registration Statement and with the state
regulatory agencies in such states as may require such filing in connection with
the registration of the Shares for offer and sale in such states.
If any further information or clarification is required, please contact me
at your convenience.
Yours very truly,
DRUMMOND AND DUCKWORTH
/s/ WILLIAM H. DRUMMOND
William H. Drummond
EXHIBIT 5-B
<PAGE> 1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Zila, Inc. on Form S-3 of our reports dated October 12, 1995, appearing in
the Annual Report on Form 10-K of Zila, Inc. for the year ended July 31, 1995
and to the reference to us under the heading "Experts" in the Prospectus, which
is part of this Registration Statement.
/S/DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Phoenix, Arizona
June 14, 1996
EXHIBIT 23-A
<PAGE> 1
EXHIBIT 24-A
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints JOSEPH HINES and CLARENCE J. BAUDHUIN, and each of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign a Form S-3 Registration Statement for filing with the
Securities and Exchange Commission respecting the registration of shares of
Common Stock, $.001 par value, of Zila, Inc., a Delaware corporation, together
with any and all amendments (including post-effective amendments) to such
Registration Statement, and to file the same with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or each of them, may lawfully do or cause to be
done by virtue hereof.
DATED: June 4, 1996
/s/ DR. JAMES E. TINNELL
--------------------------------------
DR. JAMES E. TINNELL
STATE OF Nevada
ss.
County of Clark
On this 4th day of June, 1996, before me, the undersigned Notary Public,
personally appeared Dr. James E. Tinnell, known to me to be the person whose
name is subscribed to the within instrument and acknowledged that he executed
the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ SANDRA ANDERSON
--------------------------------------
Notary Public
My commission expires:
October 26, 1997
<PAGE> 1
EXHIBIT 24-B
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints CLARENCE J. BAUDHUIN his true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign a Form S-3 Registration
Statement for filing with the Securities and Exchange Commission respecting the
registration of shares of Common Stock, $.001 par value, of Zila, Inc., a
Delaware corporation, together with any and all amendments (including
post-effective amendments) to such Registration Statement, and to file the same
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting such attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorney-in-fact and agent may lawfully do or cause to
be done by virtue hereof.
DATED: June 3, 1996
/s/ JOSEPH HINES
--------------------------------------
JOSEPH HINES
STATE OF Arizona
ss.
County of Maricopa
On this 3rd day of June, 1996, before me, the undersigned Notary Public,
personally appeared Joseph Hines, known to me to be the person whose name is
subscribed to the within instrument and acknowledged that he executed the same
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ JANICE BACKUS
--------------------------------------
Notary Public
My commission expires:
October 23, 1997
<PAGE> 1
EXHIBIT 24-C
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints JOSEPH HINES and CLARENCE J. BAUDHUIN, and each of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign a Form S-3 Registration Statement for filing with the
Securities and Exchange Commission respecting the registration of shares of
Common Stock, $.001 par value, of Zila, Inc., a Delaware corporation, together
with any and all amendments (including post-effective amendments) to such
Registration Statement, and to file the same with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or each of them, may lawfully do or cause to be
done by virtue hereof.
DATED: June 4, 1996
/s/ PATRICK M. LONERGAN
--------------------------------------
PATRICK M. LONERGAN
STATE OF Arizona
ss.
County of Maricopa
On this 4th day of June, 1996, before me, the undersigned Notary Public,
personally appeared Patrick M. Lonergan, known to me to be the person whose name
is subscribed to the within instrument and acknowledged that he executed the
same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ JANICE BACKUS
--------------------------------------
Notary Public
My commission expires:
October 23, 1997
<PAGE> 1
EXHIBIT 24-D
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints JOSEPH HINES and CLARENCE J. BAUDHUIN, and each of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign a Form S-3 Registration Statement for filing with the
Securities and Exchange Commission respecting the registration of shares of
Common Stock, $.001 par value, of Zila, Inc., a Delaware corporation, together
with any and all amendments (including post-effective amendments) to such
Registration Statement, and to file the same with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or each of them, may lawfully do or cause to be
done by virtue hereof.
DATED: June 4, 1996
/s/ MICHAEL S. LESSER
--------------------------------------
MICHAEL S. LESSER
STATE OF Arizona
ss.
County of Maricopa
On this 4th day of June, 1996, before me, the undersigned Notary Public,
personally appeared Michael Lesser, known to me to be the person whose name is
subscribed to the within instrument and acknowledged that he executed the same
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ JANICE BACKUS
--------------------------------------
Notary Public
My commission expires:
October 23, 1997
<PAGE> 1
EXHIBIT 24-E
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints JOSEPH HINES and CLARENCE J. BAUDHUIN, and each of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign a Form S-3 Registration Statement for filing with the
Securities and Exchange Commission respecting the registration of shares of
Common Stock, $.001 par value, of Zila, Inc., a Delaware corporation, together
with any and all amendments (including post-effective amendments) to such
Registration Statement, and to file the same with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or each of them, may lawfully do or cause to be
done by virtue hereof.
DATED: June 6, 1996
/s/ CARL A. SCHROEDER
--------------------------------------
CARL A. SCHROEDER
STATE OF Arizona
ss.
County of Maricopa
On this 6th day of June, 1996, before me, the undersigned Notary Public,
personally appeared Carl A. Schroeder, known to me to be the person whose name
is subscribed to the within instrument and acknowledged that he executed the
same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ JANICE BACKUS
--------------------------------------
Notary Public
My commission expires:
October 23, 1997
<PAGE> 1
EXHIBIT 24-F
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints JOSEPH HINES and CLARENCE J. BAUDHUIN, and each of them, his true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign a Form S-3 Registration Statement for filing with the
Securities and Exchange Commission respecting the registration of shares of
Common Stock, $.001 par value, of Zila, Inc., a Delaware corporation, together
with any and all amendments (including post-effective amendments) to such
Registration Statement, and to file the same with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or each of them, may lawfully do or cause to be
done by virtue hereof.
DATED: June 4, 1996
/s/ H. RAY COX
--------------------------------------
H. RAY COX
STATE OF Arizona
ss.
County of Maricopa
On this 4th day of June, 1996, before me, the undersigned Notary Public,
personally appeared H. Ray Cox, known to me to be the person whose name is
subscribed to the within instrument and acknowledged that he executed the same
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ JANICE BACKUS
--------------------------------------
Notary Public
My commission expires:
October 23, 1997
<PAGE> 1
EXHIBIT 24-G
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints JOSEPH HINES his true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign a Form S-3 Registration Statement for
filing with the Securities and Exchange Commission respecting the registration
of shares of Common Stock, $.001 par value, of Zila, Inc., a Delaware
corporation, together with any and all amendments (including post-effective
amendments) to such Registration Statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting such attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that such
attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.
DATED: June 3, 1996
/s/ CLARENCE J. BAUDHUIN
--------------------------------------
CLARENCE J. BAUDHUIN
STATE OF Arizona
ss.
County of Maricopa
On this 3rd day of June, 1996, before me, the undersigned Notary Public,
personally appeared Clarence J. Baudhuin, known to me to be the person whose
name is subscribed to the within instrument and acknowledged that he executed
the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ JANICE BACKUS
--------------------------------------
Notary Public
My commission expires:
October 23, 1997
