<PAGE> 1
As filed with the Securities and Exchange Commission on December 19, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
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 (I.R.S. Employer
incorporation or organization) Identification No.)
5227 North 7th Street Phoenix, Arizona 85014
(Address of Principal Executive Offices) (Zip Code)
1997 Stock Option Award Plan
(Full title of the plan)
Joseph Hines, 5227 North 7th Street Phoenix,
Arizona 85014 (Name and address of agent
for service)
(602) 266-6700
(Telephone number, including area code, of agent for service)
With copy to:
Kevin J. Tourek, Esq.
Streich Lang, P.A.
Renaissance One
Two North Central Avenue
Phoenix, Arizona 85004-2391
(602) 229-5200
Approximate Date of Commencement of Proposed Sale: As soon as practicable after
the Registration Statement becomes effective.
Page 1 of 8
Exhibit Index on Page 8
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed Aggregate Amount of
Securities To Be Maximum Maximum Offering Price * Registration Fee
Registered Amount To Be Offering Price
Registered Per Share*
<S> <C> <C> <C> <C>
Common Stock, 1,000,000 shares 6.21875 $6,218,750 $1,805.00
$.001 par value
</TABLE>
* Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities
Act of 1933, on the basis of the average of the high and low prices for
shares of Common Stock on December 18, 1997.
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<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to employees in accordance with Form S-8 and Securities
Act Rule 428.
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<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference into this
Prospectus: (a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended July 31, 1997; (b) all reports filed with the Securities and Exchange
Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 since July 31, 1997; and (c) the description of the Registrant's capital
stock contained in the Registrant's Registration Statement on Form 8-A filed
with the Securities and Exchange Commission pursuant to Section 12 of the
Securities Act of 1934.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment to this Registration Statement which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Bylaws require the Registrant to indemnify its
directors and officers to the full extent provided by Delaware law. The
Registrant has also entered into separate indemnification agreements with its
directors and officers which would require the Registrant, among other things,
to indemnify them against certain liabilities that may arise by reason of their
status or service as directors or officers, other than liabilities arising from
fraud, actual dishonesty, willful misconduct, or violation of Section 16(b) of
the Securities Exchange Act of 1934. The agreements would also require the
Registrant to advance directors and officers' expenses in certain circumstances.
The Registrant currently maintains directors' and officers' liability
insurance.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
Exhibit Index located at Page 8.
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
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<PAGE> 5
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represents a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purposes of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Act of 1934 (and, where applicable, each filing of an employee
benefit 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being offered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, and the State of Arizona, on December 11,
1997.
ZILA, INC.
By: /s/ Clarence J. Baudhuin
Clarence J. Baudhuin
Executive Vice President of Finance
and Administration and Director
(Principal Financial and Accounting Officer)
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<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
date(s) indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
President, Chairman of the Board, December 11, 1997
/s/ Joseph Hines Chief Executive Officer and Director
- -----------------------------
JOSEPH HINES
Executive Vice President of Finance December 11, 1997
/s/ Clarence J. Baudhuin and Administration, Treasurer and
- ----------------------------- Director (Principal Financial and
CLARENCE J. BAUDHUIN Accounting Officer)
Director
*
- -----------------------------
CARL A. SCHROEDER
Director
*
- -----------------------------
PATRICK M. LONERGAN
Director
*
- -----------------------------
MICHAEL S. LESSER
Director
*
- -----------------------------
DOUGLAS L. AYER
Director
*
- -----------------------------
CURTIS M. ROCCA III.
*By /s/ Clarence J. Baudhuin December 11, 1997
---------------------------------
CLARENCE J. BAUDHUIN
Attorney-in-Fact
</TABLE>
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<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page or
Number Description Method of Filing
- ------ ----------- ----------------
<S> <C> <C>
4.1 1997 Stock Option Award Plan *
4.2 Form of Stock Option Agreement *
5 Form of opinion rendered by *
Streich Lang, P.A., counsel
for the Registrant
24.1 Consent of Deloitte & Touche LLP *
24.2 Consent of Grant Thornton, LLP *
24.3 Consent of Streich Lang, P.A. See Exhibit 5
25.1 Power of Attorney of Joseph Hines *
25.2 Power of Attorney of Clarence J. Baudhuin *
25.3 Power of Attorney of Carl A. Schroeder *
25.4 Power of Attorney of Patrick M. Lonergan *
25.5 Power of Attorney of Michael S. Lesser *
25.6 Power of Attorney of Douglas L. Ayer *
25.7 Power of Attorney of Curtis M. Rocca III. *
</TABLE>
* Filed Herewith
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<PAGE> 1
EXHIBIT 4.1
ZILA, INC.
1997 STOCK OPTION AWARD PLAN
1. DEFINITIONS.
The following definitions shall be applicable throughout the Plan:
(a) "Board" means the Board of Directors of the Company.
(b) "Certificate of Incorporation" means the Company's
Certificate of Incorporation, as amended or restated from time to time.
(c) "Code" means the Internal Revenue Code of 1986, as amended
from time to time. Reference in the Plan to any Section of the Code
shall be deemed to include any amendments or successor provisions to
such Section and any rules or regulations under such Section.
(d) "Committee" means the committee appointed by the Board to
administer the Plan as referred to in Section 4.
(e) "Commission" means the Securities and Exchange Commission
or any successor agency.
(f) "Company" means Zila, Inc., a Delaware corporation.
(g) "Date of Grant" means the date on which the granting of an
Option is authorized by the Board or such later date as may be
specified by the Board in such authorization as referred to in Section
7.
(h) "Eligible Employee" means any person regularly employed by
the Company or a Subsidiary on a full-time salaried basis who satisfies
all of the requirements of Section 6.
(i) "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, and the rules and regulations promulgated
thereunder.
(j) "Fair Market Value" shall mean, with respect to the date a
given Option is granted or exercised, the value determined by the Board
in good faith using a generally accepted valuation method and, in the
case of Incentive Stock Options, determined in accordance with
applicable Treasury regulations; provided, however, that where there is
a public market for the Stock, the Fair Market Value per Share
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<PAGE> 2
shall be the mean of the final bid and asked prices of the Stock on the
date of grant, as reported in The Wall Street Journal (or, if not so
reported, as otherwise reported by the National Association of
Securities Dealers Automated Quotation System) or, in the event the
Stock is listed on a stock exchange, the Fair Market Value per Share
shall be the closing price on such exchange on the date of grant of the
Option, as reported in the Wall Street Journal.
(k) "Holder" means an employee of the Company or a Subsidiary
who has been granted an Option.
(l) "Incentive Stock Option" means any Option intended to be
and designated as an "incentive stock option" within the meaning of
Section 422 of the Code.
(m) "Non-Employee Director" means a member of the Board who
qualifies as a "Non-employee Director" as defined in Rule 16b-3, as
promulgated by the Commission under the Exchange Act or any successor
definition adopted by the Commission.
(n) "Non-Qualified Options" means an Option which is not an
Incentive Stock Option
(o) "Normal Termination" means termination at retirement
pursuant to the Company or Subsidiary retirement plan then in effect.
(p) "Option" means an award granted under Section 6 of the
Plan and includes both Non-Qualified Options and Incentive Stock
Options.
(q) "Plan" means the Zila, Inc. 1997 Stock Option Award Plan.
(r) "Securities Act" means the Securities Act of 1933, as
amended from time to time, and the rules and regulations promulgated
thereunder.
(s) "Share" means a share of Stock.
(t) "Stock" means common stock of the Company as described in
the Certificate of Incorporation.
(u) "Subsidiary" means "subsidiary corporation" as defined in
Section 424(f) of the Code.
(v) "Termination" means separation from employment with the
Company or any of its Subsidiaries for any reason except due to death.
(w) "Treasury" means the Department of the Treasury of the
United States of America.
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<PAGE> 3
2. PURPOSE.
The purpose of the Plan is to provide a means through which the Company
and its Subsidiaries may attract able persons to enter the employ of the Company
or its Subsidiaries and to provide a means whereby employees upon whom the
responsibilities of the successful administration and management of the Company
and its Subsidiaries rest, and whose present and potential contributions to the
welfare of the Company and its Subsidiaries are of importance, can acquire and
maintain stock ownership, thereby strengthening their commitment to the welfare
of the Company and its Subsidiaries and their desire to remain in its employ. A
further purpose of the Plan is to provide such employees with additional
incentive and reward opportunities designed to enhance the profitable growth of
the Company. So that the appropriate incentive can be provided, the Plan
provides for granting Non-Qualified Options and Incentive Stock Options, or any
combination of the foregoing.
3. EFFECTIVE DATE, DURATION, SCOPE AND STOCKHOLDER APPROVAL.
The Plan is effective as of February 5, 1997. The grant of any
Incentive Stock Options under the Plan is effective only upon the approval of
the Plan by the stockholders. Options may be granted as provided herein for a
period of ten years after such date. The Plan shall continue in effect until all
matters relating to the payment of Options granted under the Plan and
administration of the Plan have been settled.
4. ADMINISTRATION.
The Plan shall be administered by the Board or a Committee appointed by
the Board in accordance with Rule 16b-3 of the Exchange Act ("Rule 16b-3"). Any
Committee which has been delegated the duty of administering the Plan by the
Board shall be composed of two or more persons each of whom (i) is a
Non-Employee Director and (ii) is an "outside director" as defined in Section
162(m)(4) of the Code. To the extent reasonable and practicable, the Plan shall
be consistent with the provisions of Rule 16b-3 to the degree necessary to
ensure that transactions authorized pursuant to the Plan are exempt from the
operation of Section 16(b) of the Exchange Act. Any reference herein to the
Board shall, where appropriate, encompass a Committee appointed to administer
the Plan in accordance with this Section 4.
The Board shall, from time to time, in its discretion, determine which
of the Eligible Employees are to be granted Options and the form, amount and
timing of such Options and, unless otherwise provided herein, the terms and
provisions thereof and the form of payment of an Option, if applicable, and such
other matters specifically delegated to It under this Plan. Subject to the
express provisions of the Plan, the Board shall have authority to interpret the
Plan and Options granted hereunder, to prescribe, amend and rescind rules and
regulations relating to the Plan, and to make all other determinations necessary
or advisable in administering the Plan, all of which determinations shall be
final and binding upon all persons. A quorum of the Board shall consist of a
majority of its members and the Board may act by vote of a majority of its
members at a meeting at which a quorum is present, or without a meeting by a
written consent to the action taken signed
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<PAGE> 4
by all members of the Board. No member of the Board shall be liable for any
action, interpretation or construction made in good faith with respect to the
Plan or any Option granted hereunder.
5. OPTIONS, SHARES SUBJECT TO THE PLAN.
The Board may, from time to time, grant Options to one or more
employees determined by it to be eligible for participation in the Plan, in
accordance with the provisions of Section 6; provided, however, that:
(a) Subject to Section 9, the aggregate number of Shares made
subject to Options under this Plan may not exceed 1,000,000.
(b) Such Shares shall be deemed to have been used in the
exercise of Options whether actually delivered or whether the Fair
Market Value equivalent of such Share is paid in cash. To the extent
that an Option lapses or the rights of its Holder terminate, such
Shares subject to such Option shall again be available for the grant of
an Option.
(c) Stock delivered or retained by the Company in settlement
under the Plan may be authorized and unissued Stock or Stock held in
the treasury of the Company.
6. ELIGIBILITY.
Officers and other employees of the Company and its Subsidiaries who,
in the opinion of the Board, are responsible for the continued growth and
development and financial success of the business of the Company or of its
Subsidiaries shall be eligible to be granted Options under the Plan. Subject to
the provisions of the Plan, the Board shall, from time to time, select from such
eligible persons those to whom Options shall be granted and determine the number
of Options to be granted. Non-Employee Directors shall not be eligible to
receive Options under the Plan.
7. STOCK OPTIONS.
Stock Options under the Plan may be of two types: Incentive Stock
Options and Non-Qualified Options. Any Stock Option granted under the Plan will
be in such form as the Board may from time to time approve.
The Board will have the authority to grant any optionee Incentive Stock
Options, Non-Qualified Options or both types of Options. Incentive Stock Options
may only be granted to Eligible Employees. To the extent that any Option is not
designated as an Incentive Stock Option or even if so designated does not
qualify as an Incentive Stock Option, it will be deemed to be a Non-Qualified
Option.
Options will be evidenced by Option agreements, the terms and
provisions of which may differ. An Option agreement will indicate on its face
whether it is an agreement for an Incentive
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<PAGE> 5
Stock Option, a Non-Qualified Option, or both. The Date of Grant of an Option
will be the date the Committee by resolution selects an individual to be a
participant in any grant of an Option, determines the number of Shares to be
subject to such Option to be granted to such individual and specifies the terms
and provisions of the Option. The Company will notify a participant of any grant
of an Option, and a written option agreement or agreements shall be duly
executed and delivered by the Company to the participant.
Anything in the Plan to the contrary notwithstanding, no term of the
Plan relating to Incentive Stock Options will be interpreted, amended or altered
nor shall any discretion or authority granted under the Plan be exercised so as
to disqualify the Plan under Section 422 of the Code or, without the consent of
the optionee, to disqualify any Incentive Stock Option under such Section 422.
Options granted under the Plan will be subject to the following terms
and conditions and will contain such additional terms and conditions as the
Committee shall deem desirable:
(a) Option Price. The Option price per Share shall be set by
the Board but shall in no instance be less than the Fair Market Value
at the Date of Grant in the case of Incentive Stock Options (110% of
the Fair Market Value in the case of a grant of Incentive Stock Options
to Eligible Employees owning 10% or more of the combined voting power
of all classes of stock of the Company). The Option price per Share for
Shares to be issued pursuant to exercise of a Non-Qualified Option
shall be determined by the Board.
(b) Form of Payment. At the time of the exercise of the
Option, the Option price (plus the applicable withholding tax) shall be
payable in (i) cash, (ii) withheld Shares upon exercise of an Option
having a Fair Market Value at the time the Option is exercised equal to
the Option price (plus the applicable withholding tax) with the prior
approval of the Company, (iii) a manner acceptable to the Company,
(iii) with Shares owned by the Holder upon exercise of an Option having
a Fair Market Value at the time the Option is exercised equal to the
Option Price (plus the applicable withholding tax) with the prior
approval of the Company, or (iv) any combination of the foregoing.
(c) Other Terms and Conditions. If the Holder has not died or
terminated employment, the Option shall become exercisable in such
manner and within such period or periods, not to exceed ten years (in
the case of Incentive Stock Options, not to exceed five years for
Eligible Employees owning 10% or more of the combined voting power of
all classes of stock of the Company) from its Date of Grant as shall be
set forth in the Stock Option Agreement relating to such grant. An
Option may be exercised as to such number of Shares and at such times
as set forth in the Stock Option Agreement; provided, however, no
Option shall be exercised for less than the lesser of 100 Shares or the
full number of Shares for which the Option is then exercisable. An
Option shall lapse under the following circumstances:
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<PAGE> 6
(i) Ten years after it is granted, three months after
Normal Termination, twelve months after the date of Termination if due
to permanent disability, three months after any other Termination or
any earlier time set by the grant.
(ii) If the Holder dies within the Option period, the
Option shall lapse unless it is exercised within the Option period and
in no event later than twelve months after the date of his death by the
Holder's legal representative or representatives or by the person or
persons entitled to do so under the Holder's last will and testament
or, if the Holder shall fail to make testamentary disposition of such
Option or shall die intestate, by the person or persons entitled to
receive said Option under the applicable laws of descent and
distribution.
(iii) Notwithstanding the foregoing, in no event
shall the period of exercise be less than thirty days after Normal
Termination or the death of the Holder; provided, however, that in no
event shall an Incentive Stock Option be exercised more than ten years
after the Date of Grant.
(d) Stock Option Agreement. Each Option granted under the Plan
shall be evidenced by a "Stock Option Agreement" between the Company
and the Holder of the Option containing provisions determined by the
Board. The provisions shall be subject to the following terms and
conditions:
(i) Any Option or portion thereof that is exercisable
shall be exercisable as to such number of Shares and at such times as
set forth in the Stock Option Agreement, except as limited by the terms
of the Plan heretofore.
(ii) Every Share purchased through the exercise of an
Option shall be paid for in full at the time of the exercise. Each
Option shall cease to be exercisable, as to any Share, when the Holder
purchases the Share, or when the Option lapses.
(iii) Options shall not be transferable by the Holder
except by will or the laws of descent and distribution and shall be
exercisable during the Holder's lifetime only by the Holder.
(iv) An unexpired Option shall become immediately
exercisable (1) automatically on the Holder's Normal Termination, (2)
at the discretion of the Board, in whole or in part, on the date the
Holder becomes eligible to receive early retirement benefits, as
defined under the retirement plan of the Company then in effect, and
(3) under such other circumstances as the Board may direct.
(e) Individual Dollar Limitations. In the case of an Incentive
Stock Option, the aggregate Fair Market Value (determined as of the
time such Option is granted) of the Stock with respect to which the
Incentive Stock Option is exercisable
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<PAGE> 7
for the first time by an individual during any calendar year (under all
such plans of the Company or Subsidiaries) shall not exceed $100,000.
(f) Restriction on Stock Subject to Option. The Board may
require in connection with the grant of an Option that the Holder
remain in the employ of the Company or a Subsidiary for at least one
year following the exercise. The terms of such restriction shall be set
forth in the Stock Option Agreement.
8. GENERAL.
(a) Government and Other Regulations. Shares shall not be
issued pursuant to the exercise of an Option unless the exercise of
such Option and the issuance and delivery of such Shares pursuant
thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act, the Exchange Act, and the
requirements of any stock exchange upon which the Shares may then be
listed and shall be further subject to the approval of counsel for the
Company with respect to such compliance. Inability of the Company to
obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been
obtained.
(b) Reservation of Shares. The Company, during the term of
this Plan, will at all times reserve and keep available such number of
Shares as shall be sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares
hereunder, shall relieve the Company of any liability in respect of the
failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
(c) Tax Withholding. The employee or other person receiving
Stock upon exercise of an Option may be required to pay to the Company
or to a Subsidiary, as appropriate, the amount of any such taxes which
the Company or Subsidiary is required to withhold with respect to such
Stock. In connection with such obligation to withhold tax, the Company
may defer making delivery of such Stock unless and until indemnified on
such withholding liability to its satisfaction.
(d) Claim to Options and Employment Rights. No employee or
other person shall have any claim or right to be granted an Option
under the Plan. Neither this Plan nor any action taken hereunder shall
be construed as giving any employee any right to be retained in the
employ of the Company or a Subsidiary.
(e) Beneficiaries. Any payment of Options due under this Plan
to a deceased participant shall be paid to the beneficiary designated
by the participant and
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<PAGE> 8
filed with the Board. If no such beneficiary has been designated or
survives the participant, payment shall be made to the participant's
legal representative. A beneficiary designation may be aged or revoked
by a participant at any time provided the change or revocation is filed
with the Board. The designation by a married participant of one or more
persons other than the participant's spouse must be consented to by the
spouse.
(f) Nontransferability. A person's rights and interests under
the Plan, including amounts payable, may not be assigned, pledged, or
transferred except, in the event of an employee's death, to a
designated beneficiary as provided in the Plan, or in the absence of
such designation, by will or the laws of descent and distribution.
(g) Indemnification. Each person who is or shall have been a
member of the Board shall be indemnified and held harmless by the
Company against and from any loss, cost, liability, or expense that may
be imposed upon or reasonably incurred by him in connection with or
resulting from any claim, action, suit, or proceeding to which he may
be a party or in which he may be involved by reason of any action or
failure to act under the Plan and against and from any and all amounts
paid by him in satisfaction of judgment in such action, suit, or
proceeding against him. He shall give the Company an opportunity, at
its own expense, to handle and defend the same before he undertakes to
handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the
Company's Bylaws or Certificate of Incorporation, as a matter of law,
or otherwise, or any power that the Company may have to indemnify them
or hold them harmless.
(h) Reliance on Reports. Each member of the Board shall be
fully justified in relying or acting in good faith upon any report made
by the independent public accountants of the Company and its
Subsidiaries and upon any other information furnished in connection
with the Plan by any person or persons other than himself. In no event
shall any person who is or shall have been a member of the Board be
liable for any determination made or other action taken, including the
furnishing of information, or failure to act, if in good faith.
(i) Relationship to Other Benefits. No payment under the Plan
shall be taken into account in determining any benefits under any
pension, retirement, savings, profit sharing, group insurance, welfare
or other benefit plan of the Company or any Subsidiary.
(j) Expenses. The expenses of administering the Plan shall be
borne by the Company and its Subsidiaries.
(k) Pronouns. Masculine pronouns and other words of masculine
gender shall refer to both men and women.
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<PAGE> 9
(l) Titles and Headings. The titles and headings of the
Sections in the Plan are for convenience of reference only, and in the
event of any conflict, the text of the Plan, rather than such titles or
headings, shall control.
(m) Fractional Shares. No fractional Shares shall be issued
and the Board shall determine whether cash shall be given in lieu of
fractional Shares or whether such fractional Shares shall be eliminated
by rounding up or rounding down unless otherwise provided in the Plan.
(n) Construction of Plan. The place of administration of the
Plan shall be in the State of Arizona, and the validity, construction,
interpretation, administration and effect of the Plan and of its rules
and regulations, and rights relating to the Plan, shall be determined
in accordance with the laws of the State of Arizona.
9. CHANGES IN CAPITAL STRUCTURE.
(a) If the outstanding Stock of the Company shall at any time
be changed or exchanged by declaration of a stock dividend, split-up,
combination of Shares, recapitalization, merger, consolidation, or
other corporate reorganization in which the Company is the surviving
corporation, the number and kind of Shares subject to the Plan or
subject to any Options theretofore granted, and the Option prices,
shall be appropriately and equitably adjusted so as to maintain the
proportionate number of Shares without changing the aggregate Option
price and the Board may make any other adjustments as the Board deems
appropriate for purposes of the Plan. The determination of the Board as
to the terms of any adjustment shall be conclusive except to the extent
governed by Treasury regulations applicable to Incentive Stock Options.
(b) In the event of a liquidation or dissolution of the
Company, sale of all or substantially all of its assets, or a merger,
consolidation or other corporate reorganization in which the Company is
not the surviving corporation, or any merger or other reorganization in
which the Company is the surviving corporation but the holders of its
Stock receive securities of another corporation, or in the event a
person makes a tender offer to the stockholders of the Company, the
Board may, but need not, accelerate the time at which unexercised
Options may be exercised. Nothing herein contained shall prevent the
substitution of a new Option by the surviving or acquiring corporation.
10. AMENDMENTS AND TERMINATION.
The Board may at any time or from time to time (i) amend, terminate or
suspend the Plan and, if suspended, reinstate the Plan in whole or in part, or
(ii) with the express written consent of an individual participant, cancel,
reduce or otherwise alter such participant's outstanding Options under the Plan;
provided, however, that any such amendment, termination, suspension,
cancellation,
- A-9 -
<PAGE> 10
reduction or alteration shall be further approved by the shareholders of the
Company if such approval is required to preserve or comply with any exemption,
whether under Rule 16b-3 or otherwise, from Section 16(b) of the Exchange Act or
to preserve the status of Incentive Stock Options within the meaning of
Section 422 of the Code.
As approved by the Board of Directors as of February 5, 1997.
/s/ Joseph Hines
------------------------------
JOSEPH HINES
Chairman
ATTEST:
/s/ Janice L. Backus
------------------------------
JANICE L. BACKUS
Secretary
- A-10 -
<PAGE> 1
EXHIBIT 4.2
ZILA, INC.
FORM OF STOCK OPTION AWARD AGREEMENT
BY THIS STOCK OPTION AWARD AGREEMENT (the "Agreement"), ZILA, INC., a
Delaware corporation (the "Company"), and the undersigned, an eligible employee
of the Company (the "Optionee"), desire to establish the terms and conditions
upon which the Company is willing to grant the Optionee, and upon which the
Optionee is willing to accept from the Company, an Option to purchase Stock from
the Company, pursuant to the terms and conditions of the Company's 1997 Stock
Option Award Plan (the "Plan"). The Company and the Optionee hereby agree as
follows:
1. The Plan All the terms, conditions and definitions of the Plan are
hereby incorporated by reference into this Agreement, as if fully set forth
herein.
2. Terms of Grant
(a) Option Exercise price: $____________________
(b) Nonqualified Options
to purchase Stock: _______________ shares
(c) Incentive Stock Options
to purchase Stock ________________ shares
(d) Date of Grant(s) ______________________
Dated:
ZILA, INC., a Delaware corporation
By ___________________________
Its Vice President/Corporate Secretary
OPTIONEE
_______________________________
(Signature)
<PAGE> 1
EXHIBIT 5
STREICH
LANG
Phoenix Office A Professional Association
Renaissance One Attorneys
Two North Central
Phoenix, Arizona 85004-2391
602 229-5200
Fax: 602 229-5690
December 18, 1997
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-8 registering 1,000,000 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 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
<PAGE> 1
EXHIBIT 24.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Zila, Inc. on Form S-8 of our report dated October 28, 1997, appearing in the
Annual Report on Form 10-K of Zila, Inc. for the year ended July 31, 1997.
/s/ DELOITTE & TOUCHE LLP
Phoenix, Arizona
December 17, 1997
<PAGE> 1
EXHIBIT 24.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Zila, Inc. on Form S-8 of our report dated April 11, 1997, appearing in the
Annual Report on Form 10-K of Zila, Inc. for the year ended July 31, 1997.
/s/ GRANT THORNTON LLP
Sacramento, California
December 17, 1997
<PAGE> 1
EXHIBIT 25.1
POWER OF ATTORNEY OF JOSEPH HINES
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-8 Registration
Statement for filing with the Securities and Exchange Commission respecting the
registration of 1,000,000 shares of Common Stock, $.001 par value, of Zila,
Inc., a Delaware corporation, subject to the 1997 Stock Option Award Plan,
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: December 11, 1997
/s/ Joseph Hines
---------------------------
JOSEPH HINES
State of Arizona )
) ss.
County of Maricopa )
On this December 11, 1997, 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 L. Backus
------------------------------------
Notary Public
My commission expires:
- -------------------
<PAGE> 1
EXHIBIT 25.2
POWER OF ATTORNEY OF CLARENCE J. BAUDHUIN
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-8 Registration Statement for
filing with the Securities and Exchange Commission respecting the registration
of 1,000,000 shares of Common Stock, $.001 par value, of Zila, Inc., a Delaware
corporation, subject to the 1997 Stock Option Award Plan, 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: December 11, 1997
/s/ Clarence J. Baudhuin
---------------------------
CLARENCE J. BAUDHUIN
State of Arizona )
) ss.
County of Maricopa )
On this December 11, 1997, 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 L. Backus
------------------------------------
Notary Public
My commission expires:
- -------------------
<PAGE> 1
EXHIBIT 25.3
POWER OF ATTORNEY OF CARL A. SCHROEDER
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints Joseph Hines and Clarence J. Baudhuin, or each of them, his true and
lawful attorneys-in-fact and agents 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-8 Registration Statement for filing with the
Securities and Exchange Commission respecting the registration of 1,000,000
shares of Common Stock, $.001 par value, of Zila, Inc., a Delaware corporation,
subject to the 1997 Stock Option Award Plan, 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: December 11, 1997
/s/ Carl A. Schroeder
---------------------------
CARL A. SCHROEDER
State of Arizona )
) ss.
County of Maricopa )
On this December 11, 1997, 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 L. Backus
------------------------------------
Notary Public
My commission expires:
- -------------------
<PAGE> 1
EXHIBIT 25.4
POWER OF ATTORNEY OF PATRICK M. LONERGAN
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints Joseph Hines and Clarence J. Baudhuin, or each of them, his true and
lawful attorneys-in-fact and agents 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-8 Registration Statement for filing with the
Securities and Exchange Commission respecting the registration of 1,000,000
shares of Common Stock, $.001 par value, of Zila, Inc., a Delaware corporation,
subject to the 1997 Stock Option Award Plan, 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: December 11, 1997
/s/ Patrick M. Lonergan
---------------------------
PATRICK M. LONERGAN
State of Arizona )
) ss.
County of Maricopa )
On this December 11, 1997, 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 L. Backus
------------------------------------
Notary Public
My commission expires:
- -------------------
<PAGE> 1
EXHIBIT 25.5
POWER OF ATTORNEY OF MICHAEL S. LESSER
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints Joseph Hines and Clarence J. Baudhuin, or each of them, his true and
lawful attorneys-in-fact and agents 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-8 Registration Statement for filing with the
Securities and Exchange Commission respecting the registration of 1,000,000
shares of Common Stock, $.001 par value, of Zila, Inc., a Delaware corporation,
subject to the 1997 Stock Option Award Plan, 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: December 11, 1997
/s/ Michael S. Lesser
---------------------------
MICHAEL S. LESSER
State of Arizona )
) ss.
County of Maricopa )
On this December 11, 1997, before me, the undersigned Notary Public,
personally appeared Michael S. 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 L. Backus
------------------------------------
Notary Public
My commission expires:
- -------------------
<PAGE> 1
EXHIBIT 25.6
POWER OF ATTORNEY OF DOUGLAS L. AYER
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints Joseph Hines and Clarence J. Baudhuin, or each of them, his true and
lawful attorneys-in-fact and agents 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-8 Registration Statement for filing with the
Securities and Exchange Commission respecting the registration of 1,000,000
shares of Common Stock, $.001 par value, of Zila, Inc., a Delaware corporation,
subject to the 1997 Stock Option Award Plan, 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: December 11, 1997
/s/ Douglas L. Ayer
---------------------------
DOUGLAS L. AYER
State of Arizona )
) ss.
County of Maricopa )
On this December 11, 1997, before me, the undersigned Notary Public,
personally appeared Douglas L. Ayer, 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 L. Backus
------------------------------------
Notary Public
My commission expires:
- -------------------
<PAGE> 1
EXHIBIT 25.7
POWER OF ATTORNEY OF CURTIS M. ROCCA III.
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, constitutes and
appoints Joseph Hines and Clarence J. Baudhuin, or each of them, his true and
lawful attorneys-in-fact and agents 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-8 Registration Statement for filing with the
Securities and Exchange Commission respecting the registration of 1,000,000
shares of Common Stock, $.001 par value, of Zila, Inc., a Delaware corporation,
subject to the 1997 Stock Option Award Plan, 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: December 11, 1997
/s/ Curtis M. Rocca III.
---------------------------
CURTIS M. ROCCA III.
State of Arizona )
) ss.
County of Maricopa )
On this December 11, 1997, before me, the undersigned Notary Public,
personally appeared Curtis M. Rocca III., 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 L. Backus
------------------------------------
Notary Public
My commission expires:
- -------------------
