As filed with the Securities and Exchange Commission on November 4, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ZONAGEN, INC.
(Exact name of registrant as specified in its charter)
Delaware 76-0233274
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2408 Timberloch Place, Suite B-4 77380
The Woodlands, Texas (Zip Code)
(Addres of Principal Executive Offices)
1996 NONEMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
Joseph S. Podolski
President and Chief Executive Officer
Zonagen, Inc.
2408 Timberloch Place, Suite B-4
The Woodlands, Texas 77380
(Name and address of agent for service)
(281) 367-5892
(Telephone number, including area code, of agent for service)
---------------------------
copy to:
Jeffrey L. Wade
Andrews & Kurth L.L.P.
2170 Buckthorne Place, Suite 150
The Woodlands, Texas 77380
(713) 220-4801
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================ =================== ==================================== =================
Proposed
Maximum Proposed Maximum
Amount Offering Price Aggregate Amount of
Title of Securities to be Registered to be registered Per Share (1) Offering Price (1) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.001 per share 400,000 shares $32.56 $13,025,000 $3,947
============================================ =================== ==================================== =================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h), based upon the average of the high and low
sales prices per share of the Registrant's Common Stock reported on The
Nasdaq Stock Market on October 30, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Zonagen, Inc. (the "Company") incorporates herein by reference the
following documents as of their respective dates as filed with the Securities
and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K (File No. 0-21198)
for the year ended December 31, 1996, as amended by the
First Amendment and Second Amendment thereto on Form 10-K/A;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997; and
(d) The description of the Company's common stock, par value
$0.001 per share (the "Common Stock"), contained in the
Company's Registration Statement on Form 8-A filed with the
Commission on February 2, 1993, as amended by Amendment No.
1 thereto filed with the Commission on February 12, 1993 and
Amendment No. 2 thereto filed with the Commission on March
25, 1993.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all such 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.
The information required by Item 4 is not applicable to this
Registration Statement because the class of securities to be offered is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by Item 5 is not applicable to this
Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL"), inter
alia, empowers a Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. Similar
indemnity is authorized for such persons against expenses (including attorneys'
fees) actually and reasonably incurred in connection with the defense or
settlement of any such threatened, pending or completed action or suit if such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and provided further that
(unless a court of competent jurisdiction otherwise provides) such person shall
not have been adjudged liable to the corporation. Any such indemnification may
be made only as authorized in each specific case upon a determination by the
II-2
<PAGE>
stockholders or disinterested directors or by independent legal counsel in a
written opinion that indemnification is proper because the indemnitee has met
the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145. The Company
maintains policies insuring its and its subsidiaries' officers and directors
against certain liabilities for actions taken in such capacities, including
liabilities under the Securities Act of 1933, as amended (the "Securities Act").
The Company's Restated Certificate of Incorporation and Restated Bylaws
require the Company to indemnify the Company's directors to the fullest extent
permitted under Delaware law or any other applicable law in effect, but if such
statute or law is amended, the Company may change the standard of
indemnification only to the extent that such amended statute or law permits the
Company to provide broader indemnification rights to the Company's directors.
Pursuant to employment agreements entered into by the Company with its executive
officers and certain other key employees, the Company must indemnify such
officers and employees in the same manner and to the same extent that the
Company is required to indemnify its directors under its Restated Certificate of
Incorporation and Restated Bylaws. The Company's Restated Certificate of
Incorporation limits the personal liability of a director to the Company or its
stockholders to damages for breach of the director's fiduciary duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
Item 8. Exhibits.
Exhibit
Number Description
------ -----------
4.1+ Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.3 to the Company's Registration
Statement on Form SB-2 (No. 33-57728-FW)).
4.2+ Certificate of Designation of the Company's Series B
Convertible Preferred Stock (incorporated by reference to
Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1996).
4.3+ Restated Bylaws (incorporated by reference to Exhibit 3.4 to
the Company's Registration Statement on Form SB-2 (No.
33-57728-FW)).
4.4+ Specimen Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to the Company's Registration Statement on
Form SB-2 (No. 33-57728-FW)).
5.1* Opinion of Andrews & Kurth L.L.P.
23.1* Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1).
23.2* Consent of Arthur Andersen LLP
24.1* Power of Attorney (set forth on the signature page contained
in Part II of this Registration Statement).
99.1+ Zonagen, Inc. 1996 Nonemployee Directors' Stock Option Plan
(incorporated by reference to Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1997).
---------------------------
+ Incorporated herein by reference.
* Filed herewith.
II-3
<PAGE>
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in this
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 this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Company 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 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 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
Company's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in this 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 Company pursuant to the foregoing provisions, or otherwise, the
Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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-4
<PAGE>
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 The Woodlands, Texas, on the 31st day of October,
1997.
ZONAGEN, INC.
By: /s/ Joseph S. Podolski
-------------------------------
Joseph S. Podolski
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Zonagen, Inc. (the "Company") hereby constitutes and appoints
Joseph S. Podolski and Louis Ploth, Jr., and each of them (with full power to
each of them to act alone), his true and lawful attorney-in-fact and agent, with
full power of substitution, for him and on his behalf and in his name, place and
stead, in any and all capacities, to sign, execute and file this Registration
Statement under the Securities Act of 1933, as amended, and any or all
amendments (including, without limitation, post-effective amendments), with all
exhibits and any and all documents required to be filed with respect thereto,
with the Securities and Exchange Commission or any regulatory authority,
granting unto 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 order to effectuate the same, as fully to all intents
and purposes as he himself might or could do if personally present, hereby
ratifying and confirming all that such attorneys-in-fact and agents, or any of
them, or their substitute or substitutes, may lawfully do or cause to be done.
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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/Martin P. Sutter Chairman of the Board of Directors October 31, 1997
- ---------------------------------------
Martin P. Sutter
/s/Joseph S. Podolski President and Chief Executive Officer and October 31, 1997
- --------------------------------------- Director (Principal Executive Officer)
Joseph S. Podolski
/s/Louis Ploth, Jr. Vice President-Business Development, October 31, 1997
- ---------------------------------------
Louis Ploth, Jr. Chief Financial Officer and Secretary
(Principal Accounting Officer and
Principal Financial Officer)
/s/Steven Blasnik Director October 31, 1997
- ---------------------------------------
Steven Blasnik
/s/James L. Currie Director October 31, 1997
- ---------------------------------------
James L. Currie
/s/Timothy McInerney Director October 31, 1997
- ---------------------------------------
Timothy McInerney
/s/David B. McWilliams Director October 31, 1997
- ---------------------------------------
David B. McWilliams
/s/David W. Ortlieb Director October 31, 1997
- ---------------------------------------
David W. Ortlieb
</TABLE>
II-5
EXHIBIT 5.1
October 31, 1997
Board of Directors
Zonagen, Inc.
2408 Timberloch Place, Suite B-4
The Woodlands, Texas 77380
Gentlemen:
We have acted as counsel to Zonagen, Inc. (the "Company") in connection
with the Company's Registration Statement on Form S-8 (the "Registration
Statement") relating to the registration under the Securities Act of 1933, as
amended, of the issuance of up to 400,000 shares (the "Shares") of the Company's
Common Stock, par value $0.01 per share (the "Common Stock"), pursuant to the
Zonagen, Inc. 1996 Nonemployee Directors' Stock Option Plan (the "Plan").
In connection herewith, we have examined copies of such statutes,
regulations, corporate records and documents, certificates of public and
corporate officials and other agreements, contracts, documents and instruments
as we have deemed necessary as a basis for the opinion hereafter expressed. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the original documents of all documents submitted to us as copies. We have
also relied, to the extent we deem such reliance proper, upon information
supplied by officers and employees of the Company with respect to various
factual matters material to our opinion.
Based upon the foregoing and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares have
been duly authorized, and that such Shares will, when issued in accordance with
the terms of the Plan, be duly authorized, fully paid and validly issued.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ ANDREWS & KURTH L.L.P.
EXHIBIT 23.2
CONSENT OF INDEPENDENT
PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 relating
to the Zonagen, Inc. 1996 Nonemployee Directors' Stock Option Plan, of our
report dated March 11, 1997 included in the Annual Report on Form 10-K of
Zonagen, Inc. for the year ended December 31, 1996, as amended, and to all
references to our firm included in this Registration Statement.
/s/ARTHUR ANDERSEN LLP
The Woodlands, Texas
November 3, 1997
