<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 22, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
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 (IRS Employer Identification No.)
incorporation or organization)
--------------
2408 TIMBERLOCH PLACE, SUITE B-4
THE WOODLANDS, TEXAS 77380
(281) 367-5892
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
---------------
JOSEPH S. PODOLSKI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ZONAGEN, INC.
2408 TIMBERLOCH PLACE, SUITE B-4
THE WOODLANDS, TEXAS 77380
(281) 367-5892
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
---------------
COPIES TO:
ANDREWS & KURTH L.L.P. COOLEY GODWARD LLP
2170 BUCKTHORNE PLACE, SUITE 150 FIVE PALO ALTO SQUARE
THE WOODLANDS, TEXAS 77380 3000 EL CAMINO REAL
(713) 220-4801 PALO ALTO, CALIFORNIA 94306
ATTENTION: JEFFREY L. WADE (415) 843-5000
ATTENTION: BRIAN C. CUNNINGHAM
JULIA L. DAVIDSON
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
---------------
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. [_]
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. [x] 333-28945
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 the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
TITLE OF EACH CLASS AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED/(1)/ OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE/(2)/ PRICE/(2)/
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.001 per share 287,500 shares $30.625 $8,804,688 $2,668
==========================================================================================================================
</TABLE>
/(1)/ Includes shares of Common Stock issuable upon exercise of the
Underwriters' over-allotment option.
/(2)/ Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, based on the
average of the high and low sale prices of the Common Stock on the Nasdaq
Small Cap Market on July 21, 1997.
================================================================================
<PAGE>
EXPLANATORY NOTE
This Registration Statement is being filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended. The contents of the Registration
Statement on Form S-3 (Registration No. 333-28945) filed by Zonagen, Inc. (the
"Company") with the Securities and Exchange Commission on June 10, 1997, as
amended by the Amendment No. 1 thereto filed on June 30, 1997 and Amendment
No. 2 thereto filed on July 16, 1997, which was declared effective July 21,
1997, are incorporated herein by reference.
<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
THE REQUIREMENTS FOR FILING ON FORM S-3 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, STATE OF TEXAS, ON JULY 21, 1997.
ZONAGEN, INC.
By: /s/ Joseph S. Podolski
----------------------------------------
Joseph S. Podolski
President and Chief Executive 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 DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Martin P. Sutter* Chairman of the Board of Directors July 21, 1997
- ------------------------------
Martin P. Sutter
/s/ Joseph S. Podolski Director, President and Chief Executive July 21, 1997
- ------------------------------ Officer (Principal Executive Officer)
Joseph S. Podolski
/s/ Louis Ploth, Jr. Vice President - Business Development July 21, 1997
- ------------------------------ Chief Financial Officer and Secretary
Louis Ploth, Jr. (Principal Accounting Officer and
Principal Financial Officer)
Steven Blasnik* Director July 21, 1997
- ------------------------------
Steven Blasnik
James L. Currie* Director July 21, 1997
- ------------------------------
James L. Currie
Timothy McInerney* Director July 21, 1997
- ------------------------------
Timothy McInerney
David B. McWilliams* Director July 21, 1997
- ------------------------------
David B. McWilliams
David W. Ortlieb* Director June 21, 1997
- ------------------------------
David W. Ortlieb
Allan D. Rudzik* Director July 21, 1997
- ------------------------------
Allan D. Rudzik
*By /s/ Joseph S. Podolski
--------------------------
Joseph S. Podolski
Attorney-in-fact
</TABLE>
II-1
<PAGE>
EXHIBITS
Exhibit Number Description
- -------------- -----------
*1.1 Underwriting Agreement.
5.1 Opinion of Andrews & Kurth L.L.P., as to the validity of
the Common Stock.
23.1 Consent of Andrews & Kurth L.L.P. (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Marshall, O'Toole, Gerstein, Murray & Borun.
24.1 Power of Attorney
* Incorporated by reference to the Company's Registration Statement on Form S-3,
as amended, Registration No. 333-28945.
II-2
<PAGE>
EXHIBIT 5.1
ANDREWS & KURTH L.L.P.
2170 Buckthorne Place, Suite 150
The Woodlands, Texas 77380
July 21, 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-3 (the
"Registration Statement") relating to the registration under the Securities Act
of 1933, as amended (the "Act"), of the offering and sale of up to 287,500
additional shares (the "Shares") of the Company's Common Stock, par value $0.001
per share ( "Common Stock"), registered pursuant to Rule 462(b) under the Act in
connection with the underwritten public offering registered pursuant to the
Company's Registration Statement on Form S-3, as amended (No. 333-28945),
declared effective on July 21, 1997. The Shares will be offered by the several
underwriters represented by Volpe Brown Whelan & Company LLC and Raymond James &
Associates, Inc.
As the basis for the opinion hereinafter expressed, we have examined
such statutes, regulations, corporate records and documents, certificates of
corporate and public officials, and other instruments as we have deemed
necessary or advisable for the purposes of this opinion. In such examination we
have assumed 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.
Based on the foregoing and on such legal considerations as we deem
relevant for purposes of this opinion, we are of the opinion that the Shares
have been duly and validly authorized by all necessary corporate action by the
Company and, assuming the due execution and delivery of the certificates for the
Shares against payment therefor, the Shares will be validly issued, fully-paid
and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the incorporation by reference into this
Registration Statement of the reference to our firm contained in the
Registration Statement on Form S-3 of Zonagen, Inc. (No. 333-28945) under the
caption "Experts."
Very truly yours,
/s/ Andrews & Kurth L.L.P.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference and inclusion in this registration statement of our report dated
March 11, 1997 included in Zonagen, Inc.'s Form 10K/A for the year ended
December 31, 1996 and to the incorporation by reference into this Registration
Statement of the reference to our Firm contained in the Registration Statement
on Form S-3 of Zonagen, Inc.
ARTHUR ANDERSEN LLP
Houston, Texas
July 21, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF MARSHALL, O'TOOLE, GERSTEIN, MURRAY & BORUN
We hereby consent to the incorporation by reference into this Registration
Statement of the reference to our firm contained in the Registration Statement
on Form S-3 of Zonagen, Inc. (No. 333-28945) under the caption "Experts."
MARSHALL, O'TOOLE, GERSTEIN, MURRAY & BORUN
By /s/ Michael F. Borun
-----------------------------------------
July 21, 1997
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
We the undersigned, directors and officers of Zonagen, Inc. (the
"Company"), do hereby severally constitute and appoint Joseph S. Podolski and
Louis Ploth, Jr. and each or either of them, our 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 registration
statement (the "Registration Statement") filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, to register the offer and sale by the
Company of additional shares of the Company's Common Stock in connection with
the offering contemplated by the Company's Registration Statement on Form S-3
(No. 333-28945) and any and all amendments or post-effective amendments to the
Registration Statement, and to file the same with all exhibits thereto, and all
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys and agents, and each or any of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Martin P. Sutter Chairman of the Board of Directors July 21, 1997
- --------------------------
Martin P. Sutter
/s/ Joseph S. Podolski Director, President and Chief Executive July 21, 1997
- -------------------------- Officer (Principal Executive Officer)
Joseph S. Podolski
/s/ Louis Ploth, Jr. Vice President--Business Development-- July 21, 1997
- -------------------------- Chief Financial Officer and Secretary
Louis Ploth, Jr. (Principal Accounting Officer and
Principal Financial Officer)
/s/ Steven Blasnik Director July 21, 1997
- --------------------------
Steven Blasnik
/s/ James L. Currie Director July 21, 1997
- --------------------------
James L. Currie
/s/ Timothy McInerney Director July 21, 1997
- --------------------------
Timothy McInerney
/s/ David B. McWilliams Director July 21, 1997
- --------------------------
David B. McWilliams
/s/ David W. Ortlieb Director July 21, 1997
- --------------------------
David W. Ortlieb
/s/ Allan D. Rudzik Director July 21, 1997
- --------------------------
Allan D. Rudzik
</TABLE>
