UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No.
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Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a-12
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ZILA, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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Title of each class of securities to which transaction applies:
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Aggregate number of securities to which transaction applies:
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Per unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated
and state how it was determined):
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Proposed maximum aggregate value of transaction:
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Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid previously.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
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Amount Previously Paid:
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Form, Schedule or Registration Statement No.:
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ZILA,
INC.
16430
North Scottsdale Road, Suite 450
Scottsdale, Arizona,
85254-1770
August 17,
2009
Scottsdale, Arizona
To the
Holders of Capital Stock of Zila, Inc.:
You are cordially invited to attend a special meeting of
stockholders of Zila, Inc., a Delaware corporation
(ZILA), on Friday, September 18, 2009, at
8:00 a.m. Arizona time. The special meeting will be
held at the Hampton Inn & Suites,
16620 North Scottsdale Road, Scottsdale, Arizona 85254.
On June 25, 2009, our Board of Directors approved and we
entered into an Agreement and Plan of Merger with TOLMAR
Holding, Inc., a Delaware corporation (TOLMAR), and
Project Z Acquisition Sub, Inc., a Delaware corporation and a
wholly-owned subsidiary of TOLMAR (Acquisition Sub).
On July 28, 2009, we entered into a First Amendment to
Agreement and Plan of Merger with TOLMAR and Acquisition Sub
(the Agreement and Plan of Merger, as amended, shall be referred
to herein as the Merger Agreement). Pursuant to the
Merger Agreement, Acquisition Sub will merge with and into ZILA,
with ZILA surviving as a wholly-owned subsidiary of TOLMAR (the
Merger). If the Merger is completed,
(i) holders of shares of our common stock will be entitled
to receive $0.45 in cash, without interest and less any
applicable withholding taxes, for each share of ZILA common
stock that they own immediately prior to the completion of the
Merger, and (ii) holders of our Series B Convertible
Preferred Stock (the Series B Preferred) will
be entitled to receive $0.50 in cash, without interest and less
any applicable withholding taxes, for each share of
Series B Preferred that they own immediately prior to the
completion of the Merger, as more fully described in the
enclosed proxy statement. This per share consideration is
subject to equitable adjustment in the event of any stock split,
stock dividend, reverse stock split or other change in the
number of outstanding ZILA shares (or securities convertible or
exchangeable into or exercisable for ZILA shares) between the
date of the Merger Agreement and the effective time of the
Merger. Copies of the Agreement and Plan of Merger and First
Amendment to Agreement and Plan of Merger are attached as
Annexes A and B, respectively, to the accompanying proxy
statement. You are encouraged to read the Merger Agreement (as
amended) in its entirety. If the Merger is completed, ZILA will
no longer be a publicly traded company.
At the special meeting, holders of our common stock will be
asked to approve the Merger Agreement and to approve the
transactions contemplated by the Merger Agreement, including the
Merger. After careful consideration, our Board of Directors has
unanimously (with the exception of J. Steven Garrett, who did
not participate in the consideration of the Merger Agreement or
the proposed Merger because he is employed by TOLMAR, Inc., an
affiliate of TOLMAR) approved the Merger Agreement and the
transactions contemplated by the Merger Agreement (including the
Merger) and determined that the Merger Agreement and the
transactions contemplated by the Merger Agreement (including the
Merger) are fair, advisable and in the best interests of ZILA
and its stockholders. In addition, Columbia West Capital, LLC
rendered a written opinion to our Board of Directors dated
June 10, 2009 to the effect that, as of that date and based
upon and subject to the matters stated in the opinion, the
merger consideration to be paid by TOLMAR in connection with the
Merger is fair to ZILAs stockholders from a financial
point of view.
Accordingly, our Board of Directors recommends
that you vote FOR the adoption of the Merger
Agreement and the approval of the transactions contemplated by
the Merger Agreement, including the Merger
. Holders of
record of our common stock and the Series B Preferred at
the close of business on August 12, 2009, the record date
for the special meeting, are entitled to receive notice of and
to attend the special meeting. Only holders of our common stock
as of the close of business on August 12, 2009 are entitled
to vote at the special meeting or any adjournment thereof.
The proxy statement attached to this letter provides you with
information about the Merger Agreement, the proposed Merger and
the special meeting. I encourage you to read the entire proxy
statement carefully. You may also obtain information about ZILA
from us or from documents filed with the Securities and Exchange
Commission.
Your vote is very important.
The Merger cannot
be completed unless the Merger Agreement is approved by the
affirmative vote of holders of at least a majority of the
outstanding shares of ZILA common stock that are entitled to
vote at the special meeting. Whether or not you plan to attend
the special meeting, we request that you cast your vote either
by completing and returning the enclosed proxy card as promptly
as possible or by submitting your proxy or voting instructions
by telephone or Internet. If you hold your shares through a
broker or other nominee, you should follow the procedures
provided by your broker or nominee
. If you fail to vote by
proxy, or fail to instruct your broker on how to vote, it will
have the same effect as a vote against the adoption of the
Merger Agreement and the approval of the Merger.
Sincerely,
David R. Bethune
Chairman and Chief Executive Officer
Neither the Securities and Exchange Commission nor any state
securities regulatory agency has approved or disapproved the
Merger, passed upon the merits or fairness of the Merger or
passed upon the adequacy or accuracy of the disclosure in this
document. Any representation to the contrary is a criminal
offense.
This proxy statement is dated August 17, 2009 and is first
being mailed to the stockholders on or about August 19,
2009.
ZILA,
INC.
16430
North Scottsdale Road, Suite 450
Scottsdale, Arizona,
85254-1770
NOTICE OF SPECIAL MEETING OF
STOCKHOLDERS
TO BE HELD ON FRIDAY,
SEPTEMBER 18, 2009
August 17,
2009
Scottsdale, Arizona
The Board of Directors of Zila, Inc., a Delaware corporation
(ZILA), is furnishing you with this proxy statement
in connection with its solicitation of your proxy, in the form
enclosed, for use at a special meeting of stockholders to be
held on Friday, September 18, 2009, at
8:00 a.m. Arizona time. The special meeting will be
held at the Hampton Inn & Suites,
16620 North Scottsdale Road, Scottsdale, Arizona 85254.
The purpose of the special meeting is to:
1. Consider and vote upon a proposal to adopt the Agreement
and Plan of Merger, dated June 25, 2009, by and among
TOLMAR Holding, Inc., a Delaware corporation
(TOLMAR), Project Z Acquisition Sub, Inc., a
Delaware corporation (Acquisition Sub), and ZILA, as
amended by the First Amendment to Agreement and Plan of Merger,
dated July 28, 2009, by and among TOLMAR, Acquisition Sub
and ZILA (collectively, the Merger Agreement), a
copy of which is attached as Annex A to the accompanying
proxy statement (with the First Amendment to Agreement and Plan
of Merger being attached as Annex B to the accompanying proxy
statement), and to approve the transactions contemplated
thereunder (including the merger of Acquisition Sub with and
into ZILA, with ZILA surviving as a wholly-owned subsidiary of
TOLMAR, which is referred to in the attached proxy statement as
the Merger);
2. Consider and vote upon a proposal to approve one or more
adjournments of the special meeting, if necessary or
appropriate, including adjournments to permit further
solicitation of proxies in favor of adopting the Merger
Agreement and approving the Merger; and
3. Consider and take action upon any other matter that may
properly come before the special meeting of stockholders or any
adjournment(s) or postponement(s) of the meeting.
After careful consideration, our Board of Directors has
unanimously (with the exception of J. Steven Garrett, who did
not participate in the consideration of the Merger Agreement
because he is employed by TOLMAR, Inc., an affiliate of TOLMAR)
approved the Merger Agreement, and determined that the Merger
Agreement and the transactions contemplated by the Merger
Agreement (including the Merger) are fair to, advisable and in
the best interests of ZILA and its stockholders.
Accordingly,
our Board of Directors recommends that you vote FOR
the adoption of the Merger Agreement and the approval of the
transactions contemplated by the Merger Agreement, including the
Merger.
Holders of record of our common stock and our Series B
Convertible Preferred Stock (the Series B Preferred)
at the close of business on August 12, 2009, the record
date for the special meeting, are entitled to receive notice of
and to attend the special meeting. Only holders of record of our
common stock as of the close of business on August 12, 2009
are entitled to vote at the special meeting or any adjournment
thereof. These proxy solicitation materials are being sent to
our stockholders entitled to vote at the special meeting on or
about August 19, 2009.
Your proxy is being solicited by ZILAs Board of
Directors.
We urge you to vote as soon as
possible whether or not you plan to attend the special meeting
to assure your representation at such meeting. For your
convenience, and to help reduce expenses, you may vote through
the telephone or the Internet as instructed on the enclosed
proxy card. Alternatively, you can complete, sign and mail the
enclosed proxy. We have enclosed a return envelope for that
purpose, which requires no postage if mailed in the United
States. You may revoke a previously delivered proxy at any time
prior to the meeting. If you decide to attend the meeting and
wish to change your proxy vote, you may do so automatically by
voting in person at the special meeting.
Holders of ZILAs common stock who do not vote in favor of
the proposal to adopt the Merger Agreement will have the right
to seek appraisal of the fair value of their shares of common
stock if the Merger is completed, subject to the satisfaction of
the requirements for exercising and perfecting such rights under
Delaware law, which are summarized in the attached proxy
statement. Holders of the Series B Preferred are not
entitled to vote at the special meeting but do have the right to
seek appraisal of the fair value of their shares.
IMPORTANT
NOTICE
FOR THE MERGER AGREEMENT TO BE APPROVED BY OUR STOCKHOLDERS,
A MAJORITY OF OUR OUTSTANDING SHARES OF COMMON STOCK (AS OF
THE RECORD DATE FOR THE SPECIAL MEETING) MUST BE VOTED IN FAVOR
OF THE MERGER AGREEMENT. ACCORDINGLY, IF YOU DO NOT VOTE YOUR
SHARES, IT WILL HAVE THE SAME EFFECT AS A VOTE AGAINST THE
ADOPTION OF THE MERGER AGREEMENT AND THE APPROVAL OF THE MERGER.
PLEASE VOTE YOUR SHARES.
TABLE OF
CONTENTS
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ZILA,
INC.
16430
North Scottsdale Road, Suite 450
Scottsdale, Arizona,
85254-1770
PROXY
STATEMENT FOR THE SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON FRIDAY, SEPTEMBER 18, 2009
The enclosed proxy is solicited on behalf of the Board of
Directors (the Board) of Zila, Inc., a Delaware
corporation, for use at the special meeting of stockholders to
be held on Friday, September 18, 2009 at
8:00 a.m. Arizona time, and at any adjournment or
postponement thereof, at the Hampton Inn & Suites,
16620 North Scottsdale Road, Scottsdale, Arizona 85254. These
proxy solicitation materials will be mailed on or about
August 19, 2009 to all stockholders entitled to vote at the
special meeting.
References to ZILA, the Company,
we, our or us in this proxy
statement refer to Zila, Inc. and its subsidiaries unless the
context indicates otherwise.
SUMMARY
TERM SHEET
The following summary highlights selected information in this
proxy statement and may not contain all of the information that
is important to you. Accordingly, we encourage you to read
carefully this entire proxy statement, its annexes and the
documents referred to or incorporated by reference in this proxy
statement. Each item in this summary includes a page reference
directing you to a more complete description of that topic. See
Where You Can Find More Information beginning on
page 61.
The
Special Meeting (See Page 18)
Proposal
At the special meeting of stockholders, you will be asked to
consider and vote upon a proposal to adopt the Agreement and
Plan of Merger, dated June 25, 2009, by and among TOLMAR
Holding, Inc., a Delaware corporation (TOLMAR),
Project Z Acquisition Sub, Inc., a Delaware corporation and a
wholly-owned subsidiary of TOLMAR (Acquisition Sub),
and ZILA, as amended by the First Amendment to Agreement and
Plan of Merger, dated July 28, 2009, by and among TOLMAR,
Acquisition Sub and ZILA (collectively, the Merger
Agreement) and to approve the transactions contemplated
under the Merger Agreement, including the merger of Acquisition
Sub with and into ZILA, with ZILA surviving as a wholly-owned
subsidiary of TOLMAR (the Merger).
Record
Date
All holders of record of our common stock and the Series B
Convertible Preferred Stock (the Series B
Preferred) as of the close of business on August 12,
2009, which is the record date for the special meeting, are
entitled to notice of and to attend the special meeting. At the
special meeting holders of our common stock will be entitled to
cast one vote for each share of common stock that they owned as
of the record date. Holders of the Series B Preferred are
not entitled to vote at the special meeting. On the record date,
there were 10,455,059.72 shares of common stock issued and
outstanding and entitled to vote at the special meeting. There
were 100,000 shares of Series B Preferred issued and outstanding
as of the record date.
Quorum
The holders of a majority of the shares of our common stock that
were issued and outstanding on the record date and entitled to
vote, present in person or represented by proxy, will constitute
a quorum at the special meeting.
Proxies;
Revocation
You may vote by returning the enclosed proxy, submitting a proxy
by telephone or Internet or by appearing and voting at the
special meeting in person. If you hold your shares through a
broker or other nominee, you should follow the procedures
provided by your broker or nominee.
Proxies may be revoked if you: (i) deliver a signed,
written revocation letter prior to the special meeting of
stockholders, dated later than the proxy, to Gary V.
Klinefelter, Vice President, General Counsel and Secretary of
Zila, Inc., at 16430 North Scottsdale Road, Suite 450,
Scottsdale, Arizona,
85254-1770;
(ii) deliver a signed proxy prior to the special meeting of
stockholders, dated later than the first one, to Computershare
Investor Services, Proxy Unit, 350 Indiana Street,
Suite 800, Golden, Colorado 80401; (iii) vote your
shares by telephone or the Internet prior to the special meeting
of stockholders differently than you did originally, using the
same procedures for those methods; or (iv) attend the
special meeting of stockholders and vote in person or by proxy.
Simply attending the special meeting will not constitute
revocation of your proxy. If you wish to revoke your previously
submitted proxy at the special meeting, you must deliver a
completed proxy card with a later date in person or complete a
ballot to be made available at the special meeting.
Vote
Required
The affirmative vote of the holders of a majority of the
outstanding shares of our common stock entitled to vote at the
special meeting is required to adopt the Merger Agreement and to
approve the Merger. In other words, holders of
5,227,530 shares of our common stock must vote in favor of
the proposed Merger for it to be approved.
Because the
required vote is based on the number of shares of our common
stock issued and outstanding rather than on the number of votes
cast, failure to vote your shares of our common stock (including
as a result of broker non-votes and abstentions) will have the
same effect as voting against the Merger.
As noted above,
holders of our Series B Preferred are not entitled to vote
at the special meeting of stockholders.
Approval of the adjournment proposal will require the
affirmative vote of the holders of a majority of the shares
present in person or represented by proxy at the special meeting
and entitled to vote on the adjournment proposal.
ZILAs directors and executive officers (with the exception
of J. Steven Garrett, who did not participate in the
consideration of the Merger Agreement or the proposed Merger
because he is employed by TOLMAR, Inc., an affiliate of TOLMAR
and Wade F. Brooksby, who does not own any ZILA common stock and
owns stock options that do not give Mr. Brooksby a right to
vote on the Merger Agreement) have executed Transaction Support
Agreements with TOLMAR (the Transaction Support
Agreements). The Transaction Support Agreements provide,
among other things, that, unless the Merger Agreement is
terminated, the directors and executive officers will vote their
shares in favor of adopting the Merger Agreement and approving
the Merger. A form of the Transaction Support Agreements, each
of which contains substantially similar terms, is attached as
Annex C to this proxy statement. Collectively, our
directors and executive officers (excluding Messrs. Garrett
and Brooksby) owned 311,825 shares of our common stock as
of the record date for the special meeting. Such shares
represented 3.0% of ZILAs outstanding common stock as of
that date.
On July 27, 2009, TOLMAR completed its purchase from Visium
Balanced Master Fund, Ltd. and Atlas Master Fund, Ltd. (the
Original Noteholders) of our Third Amended and
Restated Senior Secured Convertible Notes (the Senior
Secured Notes), which are currently outstanding in the
aggregate principal amount of $12,000,001, are currently
convertible into up to 678,123 shares of our common stock,
and have a stated maturity date of July 31, 2010. TOLMAR
has indicated it currently does not plan to convert the Senior
Secured Notes prior to completion of the Merger. TOLMAR acquired
the Senior Secured Notes for $6,500,000 in cash pursuant to a
Senior Note Purchase Agreement with the Original Noteholders,
dated May 6, 2009 (the Senior Note Purchase
Agreement), and a Side Letter with the Original
Noteholders, dated July 27, 2009. In connection with its
acquisition of the Senior Secured Notes, TOLMAR also acquired
435,084 shares of our common stock previously owned by the
Original Noteholders. Such shares represented 4.2% of our
outstanding common stock as of the record date.
2
After considering the 311,825 shares of our common stock
owned by our directors and executive officers (which will be
voted in favor of the Merger pursuant to the Transaction Support
Agreements) and the 435,084 shares of our common stock that
TOLMAR is expected to vote in favor of the Merger, holders of
4,480,621 shares of our common stock must vote in favor of
the Merger for it to be approved at the special meeting. Such
shares represent 42.9% of all shares of our common stock issued
and outstanding as of the record date, and 46.2% of the shares
issued and outstanding as of the record date that were not owned
by our directors or executive officers or TOLMAR.
Section 203
of the Delaware General Corporation Law
Section 203 of the General Corporation Law of the State of
Delaware (the DGCL) restricts the ability of
Delaware corporations, such as ZILA, from engaging in
business combinations with interested
stockholders for a period of three years following the
transaction that resulted in the stockholder becoming an
interested stockholder unless specified conditions are met. For
example, such a business combination could proceed prior to the
expiration of the three-year waiting period if it were to be
approved by holders of at least
66
2
/
3
%
of the outstanding shares of the corporations voting stock
not owned by the interested stockholder.
Under Delaware law, the term interested stockholder
means any person that owns 15% or more of the outstanding voting
stock of a corporation, and certain of such persons
affiliates. If a person has a binding voting agreement (i.e.,
more than a revocable proxy) with respect to shares of a
corporations stock, the person is deemed to own those
shares for purposes of the 15% calculation.
Section 203 of the DGCL does not apply to the Merger
because TOLMAR is not presently, and was not at any time prior
to the time the Board approved the Merger Agreement, an
interested stockholder of ZILA. While the Senior
Note Purchase Agreement included an agreement by the Original
Noteholders to vote their issued and outstanding shares of our
common stock in favor of adopting the Merger Agreement and
approving the Merger, those shares did not cause TOLMAR to be
deemed the owner of 15% or more of our outstanding voting stock.
As of May 11, 2009, the date that TOLMAR, Inc. entered into
the Senior Note Purchase Agreement, neither TOLMAR nor TOLMAR,
Inc. owned any shares of our common stock. As of such date, the
Original Noteholders owned of record 1,206,850 shares of
our common stock, representing approximately 11.5% of our
outstanding common stock. As to the shares issuable to the
Original Noteholders upon conversion of the Senior Secured
Notes, even if such shares were attributed to TOLMAR for
purposes of Section 203 of the DGCL as a result of the
contingent ability of TOLMAR to acquire the Senior Secured Notes
per the Senior Note Purchase Agreement and then to convert such
notes, such shares would not have caused TOLMAR to be deemed an
interested stockholder because, per the terms of the
Senior Note Purchase Agreement, pending the closing of the
acquisition of the Senior Secured Notes, the Original
Noteholders were prohibited from converting into any shares of
our common stock, and, in any event, per the terms of the Senior
Secured Notes themselves, the number of shares issuable to any
holder upon conversion is capped, by a non-waivable provision of
such notes, to the extent necessary to ensure that the total
number of shares beneficially owned by such holder and its
affiliates does not exceed 9.999% of our outstanding common
stock. Further, per the terms of the Senior Note Purchase
Agreement, the voting provisions of such agreement were to
terminate (and did terminate) at the time TOLMAR, Inc. (or its
assignee) acquired the Senior Secured Notes. Accordingly, TOLMAR
was not and is not an interested stockholder of
ZILA, and Section 203 of the DGCL (including the
supermajority vote requirement contained therein) is not
implicated by the Merger.
The
Parties to the Merger (See Page 21)
ZILA, headquartered in Scottsdale, Arizona, is a diagnostic
company dedicated to the prevention, detection and treatment of
oral cancer and periodontal disease. We manufacture and market
ViziLite
®
Plus with
TBlue
®
(ViziLite
®
Plus), our flagship product for the early detection of
oral abnormalities that could lead to cancer.
ViziLite
®
Plus is an adjunctive medical device cleared by the
U.S. Food and Drug Administration (FDA) for use
in a population at increased risk for oral cancer. In addition,
ZILA designs, manufactures and markets a suite of proprietary
products sold exclusively and directly to dental professionals
for periodontal disease, including the
Rotadent
®
Professional Powered Brush, the Pro-Select
Platinum
®
ultrasonic scaler and a portfolio of oral pharmaceutical
products for both in-office and home-care use. All of our
products are marketed and sold in the United States and Canada
primarily through our direct field sales force and telemarketing
organization. Our products are marketed and sold in other
international markets through the sales forces of third party
distributors.
3
Historically, our marketing programs have reached most
U.S. dental offices by direct marketing efforts and various
media outlets. However, because of cost control and cash
preservation initiatives, during fiscal 2009 we have
significantly reduced our marketing efforts, which has impacted
our reach to new and existing customers. We are an approved
American Dental Association continuing education provider and
recently submitted our renewal applicable to the Academy of
General Dentistry to continue as an approved continuing
education provider.
TOLMARs primary operating subsidiary, TOLMAR, Inc., is a
Colorado-based pharmaceutical research, development,
manufacturing and commercial operations company. TOLMAR, Inc.
develops and manufacturers both proprietary and generic
pharmaceutical products with specific focus in therapeutic areas
of dental, dermatology, and oncology. The companys
strengths include a proven developmental, clinical, regulatory
and manufacturing infrastructure with highly trained and
experienced staff. TOLMAR, Inc.s lead dental product is
ATRIDOX
®
,
which is the only locally applied antimicrobial that is
clinically proven for all three of the following indications:
gain in clinical attachment, reduction in probing depth, and
reduction in bleeding on probing. TOLMAR, Inc. also manufactures
and sells
ATRISORB
®
FreeFlow
tm
and
Atrisorb
®
-D
FreeFlow
tm
,
which are bioabsorbable guided tissue regeneration barriers
indicated for use in periodontal surgical procedures.
Acquisition Sub was formed solely for the purpose of completing
the Merger. Acquisition Sub is a wholly-owned subsidiary of
TOLMAR and has not engaged in any business except for activities
incidental to its formation and as contemplated by the Merger
Agreement.
The
Merger (See Page 21)
Upon the terms and subject to the conditions of the Merger
Agreement, at the effective time, Acquisition Sub will merge
with and into ZILA, with ZILA surviving as a wholly-owned
subsidiary of TOLMAR. Each holder of shares of common stock of
ZILA will be entitled to receive $0.45 in cash, without interest
and less any applicable withholding taxes, for each share of
common stock such holder owns immediately prior to the
completion of the Merger (the Common Stock Merger
Consideration), and each holder of ZILAs
Series B Preferred will be entitled to receive $0.50 in
cash, without interest and less any applicable withholding
taxes, for each share of Series B Preferred such holder
owns immediately prior to the completion of the Merger, as more
fully described in the enclosed proxy statement. This per share
consideration is subject to equitable adjustment in the event of
any stock split, stock dividend, reverse stock split or other
change in the number of outstanding ZILA shares (or securities
convertible or exchangeable into or exercisable for ZILA shares)
between the date of the Merger Agreement and the effective time
of the Merger.
Certain
Effects of the Merger (See Page 34)
As a result of the Merger, ZILA will cease to be a publicly
traded company. Holders of our common stock and Series B
Preferred will not own any shares of the surviving corporation
and will not have any continuing rights as a stockholder.
Treatment
of Warrants, Options and Restricted Stock (See
Page 47)
Warrants.
By virtue of the Merger, our
outstanding warrants with an exercise price of $15.54 per share
will automatically become rights to receive the Common Stock
Merger Consideration in exchange for payment of their exercise
price. At the time the Merger Agreement was entered into, we had
outstanding other warrants (with an exercise price of $14.63 per
share) and we had agreed to attempt to cancel such warrants
prior to the closing of the Merger; all of such warrants have
been cancelled as of the date of this proxy statement.
Stock Options.
Immediately prior to the
effective time of the Merger, all outstanding options to
purchase common stock under our equity incentive plans will
become immediately vested and exercisable in full. At the
effective time of the Merger, each then outstanding option will,
by virtue of the Merger, be converted into and will become a
right to receive an amount in cash, without interest and less
any applicable withholding taxes, with respect to each share
subject thereto, equal to the excess, if any, of the Common
Stock Merger Consideration over the per share exercise price of
such option, and each such option will terminate at the
effective time. Only 50,000 stock options have an exercise price
less than the Common Stock Merger Consideration and thus will
receive any payment in connection with the Merger.
4
Restricted Stock.
At the effective time and by
virtue of the Merger, the restrictions on the restricted stock
issued and outstanding immediately before the effective time
will lapse, and such restricted stock will be treated as common
stock for purposes of receiving the merger consideration.
Recommendation
of Our Board (See Page 31)
After careful consideration, our Board has unanimously (with the
exception of J. Steven Garrett, who did not participate in the
consideration of the Merger Agreement because he is employed by
TOLMAR, Inc., an affiliate of TOLMAR) approved the Merger
Agreement and the transactions contemplated by the Merger
Agreement and determined that the Merger Agreement and the
transactions contemplated by the Merger Agreement (including the
Merger) are fair, advisable and in the best interests of ZILA
and its stockholders. In addition, our Board engaged Columbia
West Capital, LLC (Columbia West), an investment
bank, to advise it in connection with considering the proposed
Merger. Columbia West has rendered a written opinion to our
Board dated June 10, 2009 to the effect that, as of that
date and based upon and subject to the matters stated in the
opinion, the merger consideration to be paid by TOLMAR in
connection with the Merger is fair to ZILAs stockholders
from a financial point of view.
Accordingly, our Board
recommends that you vote FOR the adoption of the
Merger Agreement and the approval of the transactions
contemplated by the Merger Agreement, including the Merger
.
In reaching its decision, our Board evaluated a variety of
business, financial and market factors and consulted with our
management team and our legal and financial advisors. See
The Merger Reasons for the Merger
beginning on page 28 for a description of the factors that
the Board considered in reaching its decision.
Interests
of ZILAs Directors and Executive Officers in the Merger
(See Page 35)
Our directors and executive officers may have interests in the
Merger that are different from, or in addition to, the interests
of our stockholders. Specifically:
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our directors and executive officers will be entitled to receive
the consideration for their cancelled stock awards described
under Treatment of Warrants, Options and Restricted
Stock beginning on page 47;
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certain of our executive officers and other key management
employees with whom we have entered into employment letters may
be entitled to severance benefits if they are not retained by
TOLMAR and the surviving corporation;
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our directors and executive officers will be entitled to the
continuation of certain indemnification and directors and
officers liability insurance arrangements following the
Merger; and
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certain of our directors and executive officers have past or
present relationships with TOLMAR
and/or
its
employees.
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Payment
for Shares of Stock; Procedure for Receiving Merger
Consideration (See Page 47)
Promptly following the effective time of the Merger, a payment
agent will mail a letter of transmittal and instructions to you
and the other ZILA stockholders. The letter of transmittal will
tell you how to surrender your stock certificates in exchange
for the merger consideration. You should not return your stock
certificates with the proxy card, but you should return your
stock certificates with the letter of transmittal.
Opinion
of ZILAs Financial Advisor (See Page 31)
Our Board considered the financial analyses and opinion of
Columbia West delivered orally to our Board and confirmed in
writing, to the effect that, as of June 10, 2009, and based
upon and subject to the factors and assumptions set forth
therein, the total value of the proposed merger consideration to
be received in the aggregate by the holders of shares of our
common stock and Series B Preferred pursuant to the Merger
Agreement, which amounts were proposed to be $0.28 per share and
$0.32 per share, respectively, as of the date on which the
letter was delivered, was fair from a financial point of view to
our stockholders as a whole. The full text of the written
opinion of Columbia West, dated June 10, 2009, which sets
forth assumptions made, procedures followed, matters
5
considered and limitations on the review undertaken in
connection with the opinion, is attached as Annex D and is
incorporated in this proxy statement by reference.
Columbia West provided its opinion for the information and
assistance of our Board in connection with its consideration of
the Merger. Columbia Wests opinion does not constitute a
recommendation as to how any holder of shares of common stock
should vote with respect to the adoption of the Merger Agreement
or any other matter.
Material
United States Federal Income Tax Consequences (See
Page 38)
The exchange of shares for cash pursuant to the Merger Agreement
generally will be a taxable transaction for U.S. federal
income tax purposes. Stockholders who exchange their shares in
the Merger will generally recognize gain or loss in an amount
equal to the difference, if any, between the cash received in
the Merger and their adjusted tax basis in their shares
surrendered. Because individual circumstances may differ, we
urge you to consult your tax advisor for a complete analysis of
the effect of the Merger on your federal, state and local
and/or
foreign taxes.
Conditions
to the Merger (See Page 52)
Before we can complete the Merger, the following conditions must
be satisfied:
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the Merger Agreement must be adopted by holders of a majority of
the shares of our common stock entitled to vote at the special
meeting;
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the number of dissenting shares in the form of ZILA common stock
must not exceed 15% of the total number of shares of our common
stock entitled to vote at the special meeting;
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we must receive certain third-party consents required under the
Merger Agreement (which include consents from our counterparties
under certain real property lease agreements, as well as
business agreements);
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the representations and warranties of all parties to the Merger
Agreement set forth therein must have been true and correct in
all respects as of the date of the Merger Agreement;
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certain specified representations and warranties of ZILA must be
true and correct in all material respects (unless qualified by
materiality, in which case they must be true and correct in all
respects) as of the effective time of the Merger;
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certain specified representations and warranties of ZILA must be
true and correct in all respects as of the effective time of the
Merger, except for inaccuracies that would not constitute a
material adverse change with respect to ZILA;
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all parties to the Merger Agreement must have performed and
complied with all of their respective covenants specified in the
Merger Agreement in all material respects (unless qualified by
materiality, in which case they must have performed and complied
with such covenants in all respects) through the closing of the
Merger;
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no injunction, judgment, order, decree, ruling or charge shall
be in effect that would (i) prevent the consummation of the
transactions contemplated by the Merger Agreement,
(ii) cause any of the transactions contemplated by the
Merger Agreement to be rescinded following consummation,
(iii) adversely affect TOLMARs right to own the
capital stock of and control the surviving corporation and its
subsidiaries after the Merger, or (iv) adversely affect the
right of the surviving corporation
and/or
its
subsidiaries to own their assets and operate their business;
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all parties to the Merger Agreement must have delivered the
closing certificates prescribed thereunder;
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all governmental authorizations and other consents required to
be obtained in connection with the Merger must be obtained; and
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TOLMAR and Acquisition Sub must receive the resignations
(effective as of the closing of the Merger) of each director of
ZILA and our subsidiaries.
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6
Under the Merger Agreement, TOLMAR is entitled to waive, in
writing, certain of the above conditions to the Merger
including, without limitation, the condition that the number of
dissenting shares in the form of our common stock not exceed 15%
of the total number of shares of our common stock.
Restrictions
on Solicitations of Other Offers (See Page 51)
The Merger Agreement requires us to immediately cease and
terminate any solicitation, encouragement, discussions or
negotiations with any third-party with respect to an acquisition
proposal relating to ZILA. The Merger Agreement prohibits us
from initiating, facilitating or encouraging any offers from a
third-party regarding an alternative acquisition of ZILA, and it
prohibits us from engaging in discussions or negotiations, or
actually entering into an agreement with a third-party regarding
an alternative acquisition of ZILA. Notwithstanding these
prohibitions, under certain circumstances required for our Board
to comply with its fiduciary duties, our Board may respond to an
unsolicited alternative acquisition proposal that is (or would
reasonably be expected to lead to) a superior proposal (as that
term is defined in the Merger Agreement).
Termination
of the Merger Agreement (See Page 53)
The Merger Agreement may be terminated at any time prior to the
consummation of the Merger, whether before or after stockholder
approval has been obtained, upon the following:
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by mutual agreement of ZILA, TOLMAR and Acquisition Sub;
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by TOLMAR if:
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we have breached any representation, warranty or covenant in the
Merger Agreement that would, if such breach were continuing at
the effective time of the Merger, cause a closing condition to
not be satisfied, TOLMAR or Acquisition Sub has notified us in
writing of the breach, and the breach has continued without cure
for a period of 30 days after the written notice of breach;
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the Merger is not consummated by November 22, 2009 (unless
the failure results primarily from TOLMAR or Acquisition Sub
breaching any representation, warranty or covenant contained in
the Merger Agreement); or
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our Board has (i) (A) withdrawn or modified in a manner
adverse to TOLMAR, the approval or recommendation by our Board
of the Merger, (B) approved or recommended any alternative
acquisition proposal, (C) approved or recommended, or
allowed ZILA to enter into, any letter of intent, acquisition
agreement or any similar agreement or understanding
(x) constituting or related to, or that is intended to or
could reasonably be expected to lead to, any alternative
acquisition proposal or (y) requiring ZILA to abandon,
terminate or fail to consummate the Merger or (D) effected
any transaction contemplated by any alternative acquisition
proposal or (ii) taken a position contemplated by
Rule 14e-2(a)
of the Securities Exchange Act of 1934, as amended (the
Exchange Act), with respect to any alternative
acquisition proposal other than recommending rejection of such
alternative acquisition proposal.
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TOLMAR or Acquisition Sub has breached any representation,
warranty or covenant in the Merger Agreement in any material
respect, we have notified TOLMAR and Acquisition Sub in writing
of the breach, and the breach has continued without cure for a
period of 30 days after the written notice of breach;
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the Merger is not consummated by November 22, 2009 (unless
the failure results primarily from ZILA breaching any
representation, warranty or covenant contained in the Merger
Agreement);
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prior to obtaining stockholder approval of the Merger Agreement
in order to enter into an agreement relating to a superior
proposal, but only if (i) such superior proposal did not
result, directly or indirectly, from a breach by ZILA of
Section 5.8 of the Merger Agreement, and (ii) (A) our
Board has first provided prior written notice to TOLMAR that it
is prepared to terminate the Merger Agreement to enter into an
agreement with respect to a superior proposal, and
(B) TOLMAR does not make, within five business days
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7
after the receipt of such notice, a binding, written and
complete proposal that ZILAs Board determines in good
faith, after consultation with its legal and financial advisors,
that causes the alternative acquisition proposal that had
constituted a superior proposal to no longer constitute a
superior proposal; or
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by either TOLMAR or ZILA by giving written notice to the other
party if our stockholders do not adopt the Merger Agreement at
the special meeting.
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Termination
Fees and Expenses (See Page 54)
We will be required to pay TOLMARs expenses (including
legal fees and expenses) incurred in connection with the Merger
Agreement, not to exceed $200,000, as well as a termination fee
of $300,000 if:
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the Merger Agreement is terminated by TOLMAR because our Board
has (i) (A) withdrawn or modified, in a manner adverse to
TOLMAR, the approval or recommendation by our Board of the
Merger, (B) approved or recommended any alternative
acquisition proposal, (C) approved or recommended, or
allowed ZILA to enter into, any letter of intent, acquisition
agreement or any similar agreement or understanding
(x) constituting or related to, or that is intended to or
could reasonably be expected to lead to, any alternative
acquisition proposal or (y) requiring ZILA to abandon,
terminate or fail to consummate the Merger or (D) effected
any transaction contemplated by any alternative acquisition
proposal or (ii) taken a position contemplated by
Rule 14e-2(a)
of the Exchange Act with respect to any alternative acquisition
proposal other than recommending rejection of such alternative
acquisition proposal;
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the Merger Agreement is terminated by ZILA in order for ZILA to
enter into an agreement relating to a superior proposal; or
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the Merger Agreement is terminated by TOLMAR because ZILA
breached a representation, warranty or covenant in the Merger
Agreement, which breach would have, if such breach were
continuing at the effective time of the Merger, caused a closing
condition to not be satisfied.
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In addition, if the Merger Agreement is terminated because our
stockholders do not adopt the Merger Agreement or the Merger is
not consummated by November 22, 2009, and at or before the
date of termination an alternative acquisition proposal has been
made or announced, then:
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we will be required to pay TOLMARs expenses (including
legal fees) incurred in connection with the Merger Agreement,
not to exceed $200,000, if, within 12 months after the
termination, ZILA enters into an agreement with respect to such
alternative acquisition proposal; and
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we will be required to pay TOLMAR a termination fee of $300,000
if, within 12 months after the termination, any such
alternative acquisition is consummated.
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Appraisal
Rights (See Page 58)
Under Delaware law, if you do not vote for adoption of the
Merger Agreement and, prior to the adoption of the Merger
Agreement at the special meeting, you make a written demand and
you strictly comply with the other statutory requirements of the
DGCL, you may elect to receive, in cash, the fair value of your
shares of common stock in lieu of the Common Stock Merger
Consideration, as determined by the Delaware Court of Chancery.
Holders of the Series B Preferred are not entitled to vote
at the special meeting, but do have the right to seek appraisal
of the fair value of their shares of Series B Preferred in
lieu of the $0.50 per share otherwise payable to them under the
terms of the Merger Agreement. The judicially determined
appraisal amount could be more or less than, or the same as, the
consideration provided for under the Merger Agreement.
In order to exercise appraisal rights, you must demand and
perfect the rights in accordance with Section 262 of the
DGCL, the full text of which is set forth in Annex E to
this proxy statement. Your failure to follow the procedures set
forth in Section 262 will result in the loss of your
appraisal rights.
8
Market
Price of Common Stock (See Page 56)
Our common stock is listed on the NASDAQ Capital Market under
the trading symbol ZILA. The closing sale price of
common stock on the NASDAQ Capital Market on June 24, 2009,
the last trading day prior to Board approval of the Merger
Agreement, was $0.32 per share. The $0.45 per share to be paid
for each share of common stock in the Merger represents a
premium of approximately 41% to the closing price on
June 24, 2009. The closing sale price of our common stock
as reported on August 14, 2009, the last trading day before
the date of this proxy statement, was $0.44.
TOLMAR
Purchase of Senior Secured Notes (See Page 41)
On July 27, 2009, TOLMAR completed its purchase from the
Original Noteholders of the Senior Secured Notes, which are
currently outstanding in the aggregate principal amount of
$12,000,001, are currently convertible into up to
678,123 shares of our common stock, and have a stated
maturity date of July 31, 2010. TOLMAR acquired the Senior
Secured Notes for $6,500,000 in cash pursuant to the Senior Note
Purchase Agreement and a Side Letter with the Original
Noteholders, dated as of July 27, 2009. TOLMAR also
acquired 435,084 shares of our common stock previously
owned by the Original Noteholders. Such shares represented 4.2%
of our outstanding common stock as of the record date. Other
than in connection with their holdings of our securities, the
Original Noteholders were not affiliated with ZILA, and to our
knowledge, the Original Noteholders were and are not affiliated
with TOLMAR.
Following TOLMARs purchase of the Senior Secured Notes
from the Original Noteholders, TOLMAR, ZILA, and certain of
ZILAs subsidiaries entered into a Forbearance Agreement
(the Forbearance Agreement), pursuant to which
TOLMAR agreed to forbear, for a certain period of time and
subject to certain conditions, from exercising its rights under
the Senior Secured Notes to accelerate the payment of all or
part of the outstanding principal amount of the Senior Secured
Notes and accrued and unpaid interest (the aggregate amount of
which was $1,104,666.84 as of July 28, 2009) as a
result of (i) ZILAs past failure to make the payments
(due and payable on January 31, 2009 and April 30,
2009, respectively) of accrued and unpaid interest on the
principal amount of the Senior Secured Notes and
(ii) ZILAs anticipated failure to make the payments
(due and payable on July 31, 2009 and October 31,
2009) of accrued and unpaid interest then due and payable
on the principal amount of the Senior Secured Notes. Since the
execution of the Forbearance Agreement, ZILA failed to make the
interest payment due under the Senior Secured Notes on
July 31, 2009.
Under the terms of the Forbearance Agreement, if the Merger
Agreement is terminated prior to the completion of the Merger,
TOLMARs forbearance obligations would end. If that occurs,
there can be no assurance that TOLMAR will continue to forbear
from exercising its rights under the Senior Secured Notes.
Moreover, the terms of the Senior Secured Notes provide that the
holder thereof may redeem the notes for 110% of the aggregate
principal amount at maturity (i.e., $13,200,000) in the event of
certain change of control transactions with respect to ZILA
(e.g. a merger in which ZILA is not the survivor or a sale of
substantially all of ZILAs assets). In other words, if the
Merger Agreement with TOLMAR is terminated and ZILA completes a
change of control transaction with a third party, TOLMAR may
have the right (in addition to its other rights under the Senior
Secured Notes, and to the termination-related payments discussed
in this proxy statement) to immediately demand payment in the
amount of $13,200,000. These facts may deter third parties from
making competing proposals to acquire us unless such third
parties are willing to acquire ZILA subject to (and with the
expectation of satisfying in full) the debt obligation evidenced
by the Senior Secured Notes.
Certain
Litigation Relating to the Merger (See Page 43)
Background
of Litigation
As described in the Background of the Merger section
of this proxy statement beginning at page 22, Intelident
Solutions, Inc. (Intelident) was among several
parties that expressed an interest in entering into a strategic
transaction with ZILA. To facilitate discussions between ZILA
and Intelident regarding such a transaction possibility, the
parties entered into a non disclosure agreement on June 11,
2009 (the Intelident NDA). Subsequently, and as it
reconfirmed just minutes before ZILA executed the Merger
Agreement, Intelident indicated that it was only interested in
acquiring us through a Section 363 sale under
Chapter 11 of the Federal Bankruptcy
9
Code, which would likely result in little or no consideration
being paid to ZILAs stockholders. As such, and based on
other factors considered by it, our Board determined that the
Merger would provide the highest reasonably possible value to
our stockholders in connection with a change of control
transaction.
After we filed a
Form 8-K
with the Securities and Exchange Commission (the
SEC) announcing the proposed merger and disclosing
the terms of the Merger Agreement, Intelident made a non-binding
offer to acquire ZILA on July 1, 2009. On July 7,
2009, Intelident submitted a revised proposal to acquire ZILA,
which it publicly announced by filing a press release in spite
of its confidentiality obligations under the Intelident NDA.
Intelidents proposed merger consideration was $0.42 per
share of common stock and $0.48 per share of Series B
Preferred, but the offer was expressly contingent upon
Intelidents ability to acquire the Senior Secured Notes on
terms substantially similar to those set forth in the Senior
Note Purchase Agreement.
Because TOLMAR was entitled under the Senior Note Purchase
Agreement to purchase the Senior Secured Notes regardless of
whether the Merger was consummated (and did so on July 27,
2009), and because Intelident made no indication as to how it
expected to fulfill that condition to its proposal, our Board
determined on July 10, 2009 that Intelidents offer
was not a Superior Proposal (as defined in the
Merger Agreement) and could not be reasonably expected to lead
to a Superior Proposal. In determining that Intelidents
proposal was not superior to the Merger Agreement, our Board
also noted the possibility that Intelident was attempting to
force ZILA into the type of bankruptcy situation that Intelident
had expressed interest in earlier in its discussions with our
management.
Intelident
Solutions, Inc. v. Zila, Inc. et al.
On July 14, 2009, Intelident filed a Verified Complaint for
Injunctive and Declaratory Relief (the Complaint)
and a Motion to Expedite Proceedings (the Motion to
Expedite) in the Court of Chancery of the State of
Delaware (the Chancery Court) against ZILA, TOLMAR,
Acquisition Sub, and the members of our Board. In the Complaint,
Intelident alleged that ZILA and TOLMAR had entered into
unlawful contract provisions (in the Merger Agreement and Senior
Note Purchase Agreement) that prevented ZILAs directors
from properly exercising their fiduciary duties to ensure that
our stockholders receive the highest possible value resulting
from a change of control of ZILA. Specifically, Intelident made
the following allegations, which it subsequently voluntarily
dismissed:
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the members of our Board breached their fiduciary duties by
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agreeing to cause ZILA to enter into the Merger Agreement, which
(when combined with the terms of the Senior Note Purchase
Agreement) unreasonably preclude ZILA from entering into an
agreement to be acquired by a party other than TOLMAR;
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concluding that Intelidents contingent proposal was not
superior to the proposed Merger; and
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withholding their consent to allow Intelident to take certain
actions prohibited under the Intelident NDA, including
Intelidents ability to issue press releases regarding or
to solicit ZILAs stockholders to support its proposal;
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TOLMAR and Acquisition Sub aided and abetted in the breaches of
fiduciary duty described above;
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ZILA and Mr. Bethune fraudulently induced Intelident to
enter into the Intelident NDA by falsely representing that
Intelident could negotiate a purchase of the Senior Secured
Notes from the Original Noteholders; and
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ZILA and the members of our Board breached the covenant of good
faith and fair dealing by refusing to grant Intelidents
request to be released from certain provisions set forth in the
Intelident NDA.
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In the Complaint, Intelident sought, among other things,
preliminary and permanent injunctive relief enjoining ZILA and
TOLMAR from taking further actions under the Senior Note
Purchase Agreement, the Merger Agreement and the Intelident NDA,
including the consummation of the Merger. Intelident also sought
to be excused from certain of its obligations under the
Intelident NDA.
10
Procedural
Posture; Current Status; Potential Impact on
Merger
On July 16, 2009, ZILA and TOLMAR submitted their
opposition to Intelidents Motion to Expedite to the
Chancery Court. ZILA and TOLMAR argued, among other things, that
Intelident lacked standing to challenge the Senior Note Purchase
Agreement
and/or
the
Merger Agreement because it did not own any shares of ZILA
common stock when those agreements were entered into. We (and
members of our Board), as well as TOLMAR and Acquisition Sub,
also denied Intelidents allegations of breaches of
fiduciary duties and other unlawful conduct.
On the same day, the Chancery Court denied Intelidents
Motion to Expedite and ruled that Intelident lacked standing to
seek an injunction with respect to the Senior Note Purchase
Agreement
and/or
the
Merger Agreement. The Chancery Court allowed Intelident to file
an amended motion on its claim with respect to the Intelident
NDA. On July 20, 2009, Intelident filed an Amended Motion
for Preliminary Injunction and an Amended Motion to Expedite
Proceedings (together, the Amended Motions),
seeking, among other things, to enjoin ZILA from enforcing
certain provisions of the Intelident NDA. ZILA and TOLMAR filed
their oppositions to the Amended Motions on July 21, 2009
with the Chancery Court. ZILA and TOLMAR subsequently filed
separate Motions to Dismiss.
On August 4, 2009, and without our prior knowledge,
Intelident filed a Notice of Voluntary Dismissal with the
Chancery Court, pursuant to which Intelident voluntarily
dismissed its Complaint without prejudice. On the same day,
Intelidents counsel sent our counsel an
e-mail
message indicating that (i) Intelident did not wish to have
further discussions regarding a potential transaction with ZILA
and (ii) Intelident intended to discontinue its litigation
proceedings against us. Accordingly, ZILA does not believe that
the litigation described above presents a material risk that we
will not be able to consummate the Merger within the timeframe
contemplated in this proxy statement.
11
QUESTIONS
AND ANSWERS ABOUT THE SPECIAL MEETING
The following questions and answers are intended to address
briefly some commonly asked questions regarding the Merger, the
Merger Agreement and the special meeting. These questions and
answers may not address all questions that may be important to
you. Please refer to the Summary Term Sheet and the
more detailed information contained elsewhere in this proxy
statement, the annexes to this proxy statement and the documents
referred to or incorporated by reference in this proxy
statement, which you should read carefully. See Where You
Can Find More Information beginning on page 61.
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Q.
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What is the proposed transaction?
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A.
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The proposed transaction involves the acquisition of ZILA and
its subsidiaries by TOLMAR. Once the Merger Agreement has been
adopted by the stockholders and other closing conditions under
the Merger Agreement have been satisfied or waived, Acquisition
Sub, a wholly-owned subsidiary of TOLMAR, will merge with and
into ZILA, with ZILA surviving as a wholly-owned subsidiary of
TOLMAR, and you will no longer own any interest in ZILA. ZILA
will cease to be a publicly traded company following the
completion of the Merger.
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Q.
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As a stockholder, what will I receive in the Merger?
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A.
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If you own shares of our common stock, upon completion of the
Merger, unless you have properly and validly perfected your
statutory rights of appraisal with respect to the Merger, you
will be entitled to receive $0.45 in cash, without interest and
less any applicable withholding taxes, for each share of common
stock that you own immediately prior to completion of the
Merger. You will not own any shares in the surviving corporation.
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If you own shares of our Series B Preferred, upon
completion of the Merger, unless you have properly and validly
perfected your statutory rights of appraisal with respect to the
Merger, you will be entitled to receive $0.50 in cash, without
interest and less any applicable withholding taxes, for each
share of Series B Preferred that you own immediately prior
to the completion of the Merger. You will not own any shares in
the surviving corporation.
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Q:
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How will warrants, stock options and restricted stock be
treated in the Merger?
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A.
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Warrants.
By virtue of the Merger, our
outstanding warrants with an exercise price of $15.54 per share
will automatically become rights to receive the Common Stock
Merger Consideration in exchange for payment of their exercise
price. At the time the Merger Agreement was entered into, we had
outstanding other warrants (with an exercise price of $14.63 per
share) and we had agreed to attempt to cancel such warrants
prior to the closing of the Merger; all of such warrants have
been cancelled as of the date of this proxy statement.
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Stock Options
. Immediately prior to the
effective time of the Merger, all outstanding options to
purchase common stock under our equity incentive plans will
become immediately vested and exercisable in full. At the
effective time, each then outstanding option will, by virtue of
the Merger, be converted into and will become a right to receive
an amount in cash, without interest and less any applicable
withholding taxes, with respect to each share subject thereto,
equal to the excess, if any, of the Common Stock Merger
Consideration over the per share exercise price of such option,
and each such option will terminate at the effective time. Only
50,000 stock options have an exercise price less than the Common
Stock Merger Consideration and thus will receive any payment in
connection with the Merger.
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Restricted Stock
. At the effective time and by
virtue of the Merger, the restrictions on the restricted stock
issued and outstanding immediately before the effective time
will lapse, and such restricted stock shall be treated as common
stock for purposes of receiving the merger consideration.
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Q:
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When do you expect the Merger to be completed?
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A:
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If ZILAs stockholders approve the Merger Agreement at the
special meeting, the Merger will be completed as soon as
practicable thereafter.
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Q:
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If the Merger is completed, when can I expect to receive the
merger consideration for my shares of stock?
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A:
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Immediately after the completion of the Merger, you will receive
a letter of transmittal describing how you may exchange your
shares of stock for the merger consideration. You should not
send your stock certificates to us or anyone else until you
receive these instructions.
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Q.
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When and where is the special meeting?
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A.
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The special meeting will be held on Friday, September 18,
2009 at 8:00 a.m. Arizona time, at the Hampton
Inn & Suites, 16620 North Scottsdale Road, Scottsdale,
Arizona 85254.
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Q.
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Who can vote at and attend the special meeting?
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A:
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All holders of record of ZILA common stock and the Series B
Preferred at the close of business on August 12, 2009, the
record date for the special meeting, are entitled to receive
notice of and attend the special meeting. Only holders of our
common stock as of the close of business on August 12, 2009
are entitled to vote at the special meeting or any adjournments
or postponements thereof. Each share of our common stock
entitles its holder to one vote on each matter properly brought
before the special meeting. Holders of the Series B
Preferred are not entitled to vote at the special meeting.
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Q.
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What vote is required for ZILAs stockholders to approve
the proposal?
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A.
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An affirmative vote of the holders of a majority of the votes
entitled to be cast by the shares of common stock outstanding on
the record date is required to approve the proposal to adopt the
Merger Agreement. Because the required vote is based on the
number of shares of our common stock outstanding rather than on
the number of votes cast, failure to vote your shares (including
as a result of broker non-votes and abstentions) will have the
same effect as voting against the adoption of the Merger
Agreement and the approval of the transactions contemplated by
the Merger Agreement, including the Merger.
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Approval of the adjournment proposal will require the
affirmative vote of the holders of a majority of the shares
present in person or represented by proxy at the special meeting
and entitled to vote on the adjournment proposal. Abstentions
have the same effect as voting against the adjournment proposal.
Broker non-votes will not affect whether the adjournment
proposal is approved.
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ZILAs directors and executive officers (with the exception
of J. Steven Garrett, who did not participate in the
consideration of the Merger Agreement or the proposed Merger
because he is employed by TOLMAR, Inc., an affiliate of TOLMAR
and Wade F. Brooksby, who does not own any ZILA common stock and
owns stock options that do not give Mr. Brooksby a right to
vote on the Merger Agreement) have executed Transaction Support
Agreements with TOLMAR. The Transaction Support Agreements
provide, among other things, that, unless the Merger Agreement
is terminated, the directors and executives officers will vote
their shares in favor of adopting the Merger Agreement and
approving the Merger. A form of the Transaction Support
Agreements, each of which contains substantially similar terms,
is attached as Annex C to this proxy statement.
Collectively, our directors and executive officers (excluding
Messrs. Garrett and Brooksby) owned 311,825 shares of
our common stock as of the record date for the special meeting.
Such shares represented 3.0% of ZILAs outstanding common
stock as of that date.
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On July 27, 2009, TOLMAR completed its purchase from the
Original Noteholders of the Senior Secured Notes. TOLMAR
acquired the Senior Secured Notes for $6,500,000 in cash
pursuant to the Senior Note Purchase Agreement and a Side Letter
with the Original Noteholders, dated as of July 27, 2009.
In connection with its acquisition of the Senior Secured Notes,
TOLMAR also acquired 435,084 shares of common stock
previously owned by the Original Noteholders. Such shares
represented 4.2% of our outstanding common stock as of the
record date.
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After considering the 311,825 shares of our common stock
owned by our directors and executive officers (which will be
voted in favor of the Merger pursuant to the Transaction Support
Agreements) and the 435,084 shares of our common stock that
TOLMAR is expected to vote in favor of the Merger, holders of
4,480,621 shares of our common stock must vote in favor of
the Merger for it to be approved at the special meeting. Such
shares represent 42.9% of all shares of our common stock issued
and outstanding as of the record date, and 46.2% of
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the shares issued and outstanding as of the record date that
were not owned by our directors or executive officers or TOLMAR.
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Q.
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How does the merger consideration compare to the market price
of common stock?
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A:
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The cash consideration of $0.45 for each share of our common
stock represents a premium of approximately 41% to the closing
price of our common stock on June 24, 2009, the last
trading day before the Board approved entering into the Merger
Agreement.
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Q.
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How does ZILAs Board recommend that I vote?
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A.
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Our Board unanimously (with the exception of J. Steven Garrett,
who did not participate in the consideration of the Merger
Agreement because he is employed by TOLMAR, Inc., an affiliate
of TOLMAR) recommends that you vote FOR the Merger
Agreement and approve the Merger. The Board also recommends that
you vote FOR the adjournment proposal.
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Q.
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What effects will the proposed Merger have on ZILA?
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A.
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As a result of the proposed Merger, ZILA will cease to be a
publicly-traded company and will be wholly-owned by TOLMAR. You
will no longer be a stockholder of ZILA and no longer have any
interest in ZILA. Following consummation of the Merger, the
registration of our common stock and our reporting obligations
with respect to our common stock under the Exchange Act will be
terminated upon application to the SEC. In addition, upon
completion of the proposed Merger, shares of our common stock
will no longer be listed on the NASDAQ Capital Market or any
other stock exchange.
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Q.
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What happens if the Merger is not approved?
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A.
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If the Merger Agreement is not adopted by the stockholders,
stockholders will not receive any payment for their shares in
connection with the Merger. Instead, ZILA will remain an
independent, publicly traded company, and our common stock will
continue to be listed and traded on the NASDAQ Capital Market
(subject to our ability to comply with the requirements for
continued listing prescribed by NASDAQ).
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Following TOLMARs acquisition of the Senior Secured Notes,
TOLMAR, ZILA, and certain of ZILAs subsidiaries entered
into the Forbearance Agreement, pursuant to which TOLMAR agreed
to forbear, for a certain period of time and subject to certain
conditions, from exercising its rights under the Senior Secured
Notes to accelerate the payment of all or part of the
outstanding principal amount of the Senior Secured Notes and
accrued and unpaid interest as a result of (i) ZILAs
past failure to make the payments (due and payable on
January 31, 2009 April 30, 2009, respectively) of
accrued and unpaid interest on the principal amount of the
Senior Secured Notes and (ii) ZILAs anticipated
failure to make the payments (due and payable on July 31,
2009 and October 31, 2009) of accrued and unpaid
interest then due and payable on the principal amount of the
Senior Secured Notes. Since the execution of the Forbearance
Agreement, ZILA failed to make the interest payment due under
the Senior Secured Notes on July 31, 2009.
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As noted above, we are not in compliance with the terms of the
Senior Secured Notes with respect to the quarterly interest
payments due January 31, 2009, April 30, 2009 and
July 31, 2009, which have not been made as of the date of
this filing. The failures to make these payments are events of
default under the Senior Secured Notes. Upon an event of
default, the Senior Secured Notes may be accelerated and
immediately become due and payable. As described above, TOLMAR
has agreed to forbear, for a certain period of time and subject
to certain conditions, from exercising its rights under the
Senior Secured Notes to accelerate the payment of all or part of
the outstanding principal amount of the Senior Secured Notes and
accrued and unpaid interest. If the Merger Agreement is
terminated or if we default on requirements under the Senior
Secured Notes other than the interest payments identified in the
Forbearance Agreement, there can be no assurance TOLMAR will
continue to forbear from declaring an event of default and
accelerating the Senior Secured Notes.
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We do not have sufficient resources to repay the Senior Secured
Notes. In the event of acceleration, we would likely be forced
to file for protection under Chapter 11 of the Federal
Bankruptcy Code or liquidate ZILA under Chapter 7 of the
Federal Bankruptcy Code, which would likely result in our common
stock becoming worthless.
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Q.
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How do I vote?
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A:
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If you are a stockholder of record, you may vote in person at
the special meeting or submit a proxy for the special meeting.
You can submit your proxy by completing, signing, dating and
returning the enclosed proxy card in the accompanying
pre-addressed, postage-paid envelope or, if you prefer, by
following the instructions on your proxy card for telephonic or
Internet proxy authorization.
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Q.
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If my shares are held in street name by my
broker, bank or other nominee, will my broker, bank or other
nominee vote my shares for me?
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A.
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Yes, but only if you instruct your broker, bank or other nominee
how to vote. You should follow the procedures provided by your
broker, bank or other nominee regarding the voting of your
shares. If your broker, bank or other nominee does not have
discretionary authority to vote your shares and if you do not
instruct your broker, bank or other nominee to vote your shares,
your shares will not be voted and the effect will be the same as
a vote AGAINST the proposal to adopt the Merger
Agreement and approve the Merger.
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Q.
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How can I change or revoke my vote?
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A.
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You have the right to change or revoke your proxy at any time
before the vote taken at the special meeting:
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by delivering a signed, written revocation letter
prior to the special meeting of stockholders, dated later than
the proxy, to Gary V. Klinefelter, Vice President, General
Counsel and Secretary of Zila, Inc.,
at 16430 North Scottsdale Road, Suite 450,
Scottsdale, Arizona,
85254-1770;
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by delivering a signed proxy prior to the special
meeting of stockholders, dated later than the first one, to
Computershare Investor Services, Proxy Unit, 350 Indiana Street,
Suite 800, Golden, Colorado 80401;
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by voting your shares by telephone or the Internet
prior to the special meeting of stockholders differently than
you did originally, using the same procedures for those methods;
or
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by attending the special meeting of stockholders and
voting in person or by proxy. Attending the meeting alone will
not revoke your proxy.
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If you have instructed a broker, bank or other nominee to vote
your shares, the above instructions do not apply and instead you
must follow the directions received from your broker, bank or
other nominee to change those instructions.
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Q.
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What do I do if I receive more than one proxy or set of
voting instructions?
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A.
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If your shares are registered differently or are in more than
one account, you may receive more than one proxy and/or set of
voting instructions relating to the special meeting. These
should each be completed, signed and/or returned separately as
described elsewhere in this proxy statement in order to ensure
that all of your shares are voted.
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Q.
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What happens if I sell my shares before the special
meeting?
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A.
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The record date of the special meeting is earlier than the
special meeting and the date that the Merger is expected to be
completed. If you transfer your shares of common stock after the
record date but before the special meeting, you will retain your
right to vote at the special meeting, but will have transferred
the right to receive the merger consideration to be received by
our stockholders in the Merger. In order to receive the merger
consideration, you must hold your shares through completion of
the Merger.
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Q.
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Am I entitled to exercise appraisal rights instead of
receiving the merger consideration for my shares?
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A.
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Yes. As a holder of our common stock or the Series B
Preferred, you are entitled to appraisal rights under Delaware
law in connection with the Merger if you meet certain
conditions. See Dissenters Rights of Appraisal
beginning on page 58.
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Q.
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Should I send in my stock certificates now?
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A.
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No. After the Merger is completed, you will be sent a
letter of transmittal with detailed written instructions for
exchanging your stock certificates for the merger consideration.
If your shares are held in street name by your
broker, bank or other nominee you will receive instructions from
your broker, bank or other nominee as to how to complete the
surrender of your street name shares in exchange for
the merger consideration. Please do not send your certificates
to ZILA or anyone else at this time.
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Q.
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Who will bear the cost of this solicitation?
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A:
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This solicitation is being made on behalf of ZILA. Accordingly,
the expenses of preparing, printing and mailing this proxy
statement and the proxies solicited hereby as well as the fees,
costs and expenses of a proxy solicitor will be borne by ZILA.
Additional solicitation may be made in person, by telephone, or
by facsimile by certain directors, officers, employees or agents
of ZILA, none of whom will receive additional compensation
therefor. ZILA will, upon request, reimburse brokerage houses
and other custodians, nominees and fiduciaries for their
reasonable expenses for forwarding material to the beneficial
owners of shares held of record by others.
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Q.
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Who can help answer my other questions?
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A:
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If you have more questions about the Merger Agreement, you
should contact:
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Zila, Inc.
16430 North Scottsdale Road, Suite 450
Scottsdale, Arizona,
85254-1770
Attention: Gary V. Klinefelter, Vice President, General Counsel
and Secretary
(602) 266-6700
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Georgeson Shareholder, which ZILA has retained to assist it with
soliciting proxies for the special meeting, can be contacted
toll-free at
(877) 278-9674.
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16
CAUTIONARY
STATEMENT CONCERNING FORWARD-LOOKING INFORMATION
This proxy statement includes forward-looking
statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the
Exchange Act. In some cases, you can identify these statements
by the use of forward-looking words such as may,
will, should, anticipate,
estimate, expect, plan,
believe, predict, potential,
project or intend. The forward-looking
information is based on various factors and was derived using
numerous assumptions. The forward-looking statements only
reflect predictions and are not a guarantee of future
performance. These statements, which are based on information
currently available to us, are not guarantees of future
performance and may involve risks and uncertainties that could
cause our actual growth, results of operations, performance and
business prospects, and opportunities to materially differ from
those expressed in, or implied by, these statements. These
forward-looking statements speak only as of the date on which
the statements were made and we expressly disclaim any
obligation to release publicly any updates or revisions to any
forward-looking statement included in this proxy statement or
elsewhere. In addition to other factors and matters contained or
incorporated in this document, these statements are subject to
risks, uncertainties and other factors, including, among others:
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the inability to complete the Merger due to the failure to
obtain stockholder approval or the failure to satisfy other
conditions to consummate the Merger;
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the failure of the Merger to be consummated for any other reason;
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risks that the proposed transaction disrupts current plans and
operations of ZILA;
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the effect of the announcement of the Merger on our business and
customer relationships, operating results and business generally;
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the amount of the costs, fees, expenses and charges related to
the Merger;
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the outcome of any legal proceedings that may be instituted
against ZILA and others relating to the Merger Agreement;
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the occurrence of any event, change or other circumstances that
could give rise to the termination of the Merger Agreement;
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the risk that ZILA could be forced to seek protection under
Chapter 11 of the Federal Bankruptcy Code if a transaction
like the Merger is not completed; and
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other risks detailed in our current filings with the SEC,
including our most recent filings on
Forms 8-K,
10-Q
and
10-K,
including but not limited to the risks detailed in the sections
entitled Risk Factors. See Where You Can Find
More Information beginning on page 61.
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Many of the factors that will determine our future results are
beyond our ability to control or predict. In light of the
significant uncertainties inherent in the forward-looking
statements contained herein, readers should not place undue
reliance on forward-looking statements, which reflect
managements views only as of the date hereof. We cannot
guarantee any future results, levels of activity, performance or
achievements.
17
THE
SPECIAL MEETING
ZILA is furnishing this proxy statement to you, as a stockholder
of ZILA, as part of the solicitation of proxies by our Board for
use at the special meeting of stockholders and any adjournments
or postponements of the special meeting.
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The special meeting of stockholders will be held on Friday,
September 18, 2009, at 8:00 a.m. Arizona time.
The special meeting will be held at the Hampton Inn &
Suites, 16620 North Scottsdale Road, Scottsdale, Arizona 85254.
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Close of business on August 12, 2009. If you were a holder
of common stock at that time, you may vote at the meeting. Each
share of common stock is entitled to one vote. You may not
cumulate votes. As of the record date, there were
10,455,059.72 shares of our common stock issued and
outstanding.
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The purposes of the special meeting are to consider and act upon
the following matters:
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1. Consider and vote upon a proposal to adopt the Merger
Agreement (a copy of which is attached as Annex A hereto
with the First Amendment to Agreement and Plan of Merger being
attached as Annex B hereto), and to approve the
transactions contemplated thereunder, including the Merger;
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2. Consider and vote upon a proposal to approve one or more
adjournments of the special meeting, if necessary or
appropriate, including adjournments to permit further
solicitation of proxies in favor of the proposal to adopt the
Merger Agreement and approve the Merger; and
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3. Consider and take action upon any other matter that may
properly come before the special meeting of stockholders or any
adjournment(s) or postponement(s) of the meeting.
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Georgeson Shareholder
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ZILA will bear the costs of soliciting proxies for the meeting.
No additional compensation will be paid to directors, officers
or other regular employees in connection with the solicitation
of proxies. ZILA retained Georgeson Shareholder to assist with
the solicitation of proxies for a fee not to exceed $8,000, plus
reimbursement for
out-of-pocket
expenses. We will reimburse banks, brokers, custodians, nominees
and fiduciaries for reasonable expenses that they incur in
sending these proxy materials to you if you are a beneficial
holder of our shares.
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We will mail this proxy statement on or about August 19,
2009.
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Stockholders whose shares are registered in their own names may
vote their shares by telephone, the Internet, mail or in person
at the meeting.
Voting by telephone or the Internet are the
least expensive and fastest methods of voting
. Your proxy
card contains instructions for voting by telephone or the
Internet. To vote by mail, complete and sign your proxy card and
return it in the enclosed business reply envelope.
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If your shares are held not in your name but in the street
name of a bank, broker or other holder of record (a
nominee), then your name will not appear in our
register of stockholders and the nominee will be entitled to
vote your shares. In order to be admitted to the special meeting
of stockholders, you must bring a letter or account statement
showing that you beneficially own the shares held by the
nominee. Even if you attend the special meeting of stockholders,
you will not be able to vote the shares that you hold in street
name. Rather, you should instruct your nominee how to vote those
shares on your behalf.
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The proxies will follow your voting instructions. Unless you
tell us on the proxy card to vote differently, the proxies will
vote signed, returned proxies FOR the proposals to
(i) adopt the Merger Agreement and approve the Merger and
(ii) approve any adjournments of the special meeting deemed
necessary to solicit additional proxies to approve the Merger
proposal. With respect to any other matters that may properly
come before the special meeting, your shares will be voted in
accordance with the discretion of the persons appointed as
proxies.
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Proxies may be revoked if you:
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Deliver a signed, written revocation
letter prior to the special meeting of stockholders, dated later
than the proxy, to Gary V. Klinefelter, Vice President, General
Counsel and Secretary of Zila, Inc., at 16430 North Scottsdale
Road, Suite 450, Scottsdale, Arizona,
85254-1770;
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Deliver a signed proxy prior to the
special meeting of stockholders, dated later than the first one,
to Computershare Investor Services, Proxy Unit, 350 Indiana
Street, Suite 800, Golden, CO 80401;
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Vote your shares by telephone or the
Internet prior to the special meeting of stockholders
differently than you did originally, using the same procedures
for those methods; or
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Attend the special meeting of
stockholders and vote in person or by proxy. Attending the
meeting alone will not revoke your proxy.
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The presence in person or by proxy of stockholders entitled to
cast a majority of the votes entitled to be cast at the special
meeting of stockholders is necessary to constitute a quorum at
the special meeting. Shares represented at the special meeting
but not voted, including shares for which proxies have been
received but for which stockholders have abstained, will be
treated as present at the special meeting for purposes of
determining the presence or absence of a quorum. If a quorum is
not present at the special meeting, ZILA expects that the
special meeting will be adjourned to solicit additional proxies.
Broker non-votes will be counted as present for purposes of
determining the existence of a quorum. A broker
non-vote occurs when a broker is not permitted to vote
because the broker does not have specific voting instructions
from the beneficial owner of the shares.
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The affirmative vote of holders of a majority of the outstanding
shares of ZILA common stock as of the record date for the
special meeting is required to approve the proposal to adopt the
Merger Agreement and approve the Merger. A failure to submit a
proxy card or vote at the ZILA special meeting, or an
abstention, vote withheld or broker non-vote with
respect to the proposal to adopt the Merger Agreement will have
the same effect as a vote against the adoption of the Merger
Agreement and the approval of the Merger.
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The affirmative vote of the holders of a majority of ZILAs
common stock present and entitled to vote at the special meeting
is required to approve the adjournment of the special meeting
for the purpose of soliciting additional proxies to approve the
proposal to adopt the Merger Agreement. An abstention will have
the same effect as a vote against the proposal to adjourn the
special meeting for the purpose of soliciting additional
proxies. A failure to submit a proxy card or vote at the special
meeting or a broker non-vote will have no effect on
the outcome of the proposal to adjourn the special meeting for
the purpose of soliciting additional proxies.
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ZILAs directors and executive officers (with the exception
of J. Steven Garrett, who did not participate in the
consideration of the Merger Agreement or the proposed Merger
because he is employed by TOLMAR, Inc., an affiliate of TOLMAR
and Wade F. Brooksby, who does not own any ZILA common stock and
owns stock options that do not give Mr. Brooksby a right to
vote on the Merger Agreement) have executed Transaction Support
Agreements with TOLMAR. The Transaction Support Agreements
provide, among other things, that, unless the Merger Agreement
is terminated, the directors and executives officers will vote
their shares in favor of adopting the Merger Agreement and
approving the Merger. A form of the Transaction Support
Agreements, each of which contains substantially similar terms,
is attached as Annex C to this proxy statement.
Collectively, our directors and executive officers (excluding
Messrs. Garrett and Brooksby) owned 311,825 shares of
our common stock as of the record date for the special meeting.
Such shares represented 3.0% of ZILAs outstanding common
stock as of that date.
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On July 27, 2009, TOLMAR completed its purchase from the
Original Noteholders of the Senior Secured Notes. TOLMAR
acquired the Senior Secured Notes for $6,500,000 in cash
pursuant to the Senior Note Purchase Agreement and a Side Letter
with the Original Noteholders, dated as of July 27, 2009.
In connection with its acquisition of the Senior Secured Notes,
TOLMAR also acquired 435,084 shares of our common stock
previously owned by the Original Noteholders. Such shares
represented 4.2% of our outstanding common stock as of the
record date.
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After considering the 311,825 shares of our common stock
owned by our directors and executive officers (which will be
voted in favor of the Merger pursuant to the Transaction Support
Agreements) and the 435,084 shares of our common stock that
TOLMAR is expected to vote in favor of the Merger, holders of
4,480,621 shares of our common stock must vote in favor of
the Merger for it to be approved at the special meeting. Such
shares represent 42.9% of all shares of our common stock issued
and outstanding as of the record date, and 46.2% of the shares
issued and outstanding as of the record date that were not owned
by our directors or executive officers or TOLMAR.
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PLEASE
VOTE YOUR VOTE IS IMPORTANT
20
THE
MERGER
This discussion of the Merger is qualified by reference to
the Merger Agreement. A copy of the Agreement and Plan of Merger
is attached to this proxy statement as Annex A and a copy
of the First Amendment to Agreement and Plan of Merger is
attached hereto as Annex B. You should read the entire
Merger Agreement (as amended) carefully as it is the legal
document that governs the Merger.
Parties
to the Merger
Zila,
Inc.
Zila, Inc.
16430 North Scottsdale Road, Suite 450
Scottsdale, Arizona 85254
(602) 266-6700
ZILA, headquartered in Scottsdale, Arizona, is a diagnostic
company dedicated to the prevention, detection and treatment of
oral cancer and periodontal disease. We manufacture and market
ViziLite
®
Plus with
TBlue
®
(ViziLite
®
Plus), our flagship product for the early detection of
oral abnormalities that could lead to cancer.
ViziLite
®
Plus is an adjunctive medical device cleared by the
U.S. Food and Drug Administration (FDA) for use
in a population at increased risk for oral cancer. In addition,
ZILA designs, manufactures and markets a suite of proprietary
products sold exclusively and directly to dental professionals
for periodontal disease, including the
Rotadent
®
Professional Powered Brush, the Pro-Select
Platinum
®
ultrasonic scaler and a portfolio of oral pharmaceutical
products for both in-office and home-care use. All of our
products are marketed and sold in the United States and Canada
primarily through our direct field sales force and telemarketing
organization. Our products are marketed and sold in other
international markets through the sales forces of third party
distributors. Historically, our marketing programs have reached
most U.S. dental offices by direct marketing efforts and
various media outlets. However, because of cost control and cash
preservation initiatives, during fiscal 2009 we have
significantly reduced our marketing efforts, which has impacted
our reach to new and existing customers. We are an approved
American Dental Association continuing education provider and
recently submitted our renewal applicable to the Academy of
General Dentistry to continue as an approved continuing
education provider.
TOLMAR
Holding, Inc.
c/o TOLMAR,
Inc.
701 Centre Avenue
Fort Collins, Colorado 80526
(970) 212-4500
TOLMARs primary operating subsidiary, TOLMAR, Inc., is a
Colorado-based pharmaceutical research, development,
manufacturing and commercial operations company. TOLMAR, Inc.
develops and manufacturers both proprietary and generic
pharmaceutical products with specific focus in therapeutic areas
of dental, dermatology, and oncology. The companys
strengths include a proven developmental, clinical, regulatory
and manufacturing infrastructure with highly trained and
experienced staff. TOLMAR, Inc.s lead dental product is
ATRIDOX
®
,
which is the only locally applied antimicrobial that is
clinically proven for all three of the following indications:
gain in clinical attachment, reduction in probing depth, and
reduction in bleeding on probing. TOLMAR, Inc. also manufactures
and sells
ATRISORB
®
FreeFlow
tm
and
Atrisorb
®
-D
FreeFlow
tm
,
which are bioabsorbable guided tissue regeneration barriers
indicated for use in periodontal surgical procedures.
Project Z
Acquisition Sub, Inc.
Project Z Acquisition Sub, Inc.
c/o TOLMAR,
Inc.
701 Centre Avenue
Fort Collins, Colorado 80526
(970) 212-4500
21
Acquisition Sub, a Delaware corporation, was formed solely for
the purpose of completing the proposed Merger. Acquisition Sub
is a wholly-owned subsidiary of TOLMAR and has not engaged in
any business except for activities incidental to its formation
and as contemplated by the Merger Agreement.
General
Description of the Merger
Under the terms of the Merger Agreement, TOLMAR will acquire
ZILA and its subsidiaries through the merger of Acquisition Sub
with and into ZILA, with ZILA surviving as a wholly-owned
subsidiary of TOLMAR. In the Merger, each share of our common
stock issued and outstanding immediately prior to the effective
time of the Merger will be converted into the right to receive
$0.45 in cash, without interest and less any applicable
withholding taxes. Each share of our Series B Preferred
issued and outstanding immediately prior to the effective time
of the Merger will be converted into the right to receive $0.50
in cash, without interest and less any applicable withholding
taxes.
The Merger will become effective under all applicable laws upon
the filing of a certificate of merger with the Secretary of
State of the State of Delaware. We sometimes use the term
effective time in this proxy statement to describe
the time that the Merger will become effective under all
applicable laws. If the Merger Agreement proposal is approved at
the special meeting on Friday, September 18, 2009, we
expect to complete the Merger on or about September 21,
2009. The affirmative vote of holders of a majority of the
outstanding shares of ZILA common stock as of the record date
for the special meeting is required to approve the adoption of
the Merger Agreement.
Background
of the Merger
During 2008 and 2009, through investment bankers, asset lenders,
private equity and public and private institutional fund
managers, and senior dental management contacts, ZILA had
extensive discussions regarding prospective strategic or capital
raising transactions with 31 strategic buyers, 10 of which,
including TOLMAR, executed non disclosure agreements; seven
individual equity investors, three of whom executed non
disclosure agreements; and 19 investment and private equity
firms, 14 of which executed non disclosure agreements. The names
of the parties that executed non disclosure agreements are
subject to confidentiality and cannot be disclosed.
During this same period of time, ZILA attempted repeatedly to
negotiate with the Original Noteholders, without success, to
allow ZILA to use its accounts receivable and inventory to
secure a working capital line of credit that could be used to
grow and develop the business.
On September 23, 2008, ZILA engaged William
Blair & Company (Blair) as its exclusive
investment banker to provide financial advice with respect to
strategic alternatives and to advise it in connection with debt
restructuring and mergers and acquisition transactions.
On October 23, 2008, ZILA was contacted by several
shareholders of a company that by virtue of various business
dispositions had limited current operations but a significant
amount of cash (the Prospective Merger Partner). The
shareholders expressed interest in a merger of ZILA and the
Prospective Merger Partner.
On October 27, 2008, ZILA contacted the Prospective Merger
Partners Chief Executive Officer concerning this inquiry.
On October 30, 2008, David R. Bethune, our Chairman and
Chief Executive Officer, and Diane E. Klein, our Vice President
of Finance and Treasurer, met with the Chief Executive Officer,
an outside director and a group of shareholders of Prospective
Merger Partner to discuss a possible merger transaction.
On November 7, 2008, after indicating its doubts about the
possibility of ZILA being able to arrange for a repurchase of
the Senior Secured Notes at a discount acceptable to potential
purchasers and with no interest from strategic buyers, Blair
terminated its engagement letter with ZILA.
On November 7, 2008, Mr. Bethune sent the Prospective
Merger Partner a letter indicating ZILAs interest in
pursuing a merger of the two companies.
On November 14, 2008, a mutual confidentiality and
standstill agreement was executed by ZILA and the Prospective
Merger Partner.
22
On November 17, 2008, the Prospective Merger Partner sent
ZILA a list of questions regarding its history, business and
prospects. ZILA responded to that inquiry on the same day.
On November 20, 2008, ZILA sent a merger proposal to the
Prospective Merger Partners Board of Directors.
On or about November 21, 2008, Mr. Bethune sent the
Prospective Merger Partners directors a proposed term
sheet for a merger with ZILA.
On November 24, 2008, ZILA engaged Lyon Partners, Ltd.
(Lyon) on a non exclusive basis to act as agent,
consultant and advisor for the purposes of providing financial
advice, including but not limited to restructuring of its senior
notes and the raising of equity capital.
On December 11, 2008, our Board met and discussed the
status of discussions with the Prospective Merger Partner and
negotiations with the Original Noteholders regarding a possible
discount upon prepayment.
On December 15, 2008, Mr. Bethune sent another letter
to the directors of the Prospective Merger Partner with a
modified merger proposal.
On December 17, 2008, the Chief Executive Officer of the
Prospective Merger Partner responded to the December 15,
2008 letter and requested certain additional information from
ZILA.
On December 19, 2008, ZILA responded to the
December 17, 2008 letter enclosing the information
requested by the Prospective Merger Partners Chief
Executive Officer.
On January 5, 2009, Mr. Bethune sent a letter to the
Chief Executive Officer of the Prospective Merger Partner
proposing a $10,000,000 investment in ZILA, which would result
in the Prospective Merger Partner owning a majority of ZILA.
In spite of the persistence on the part of ZILA, on
January 15, 2009, discussions with the Prospective Merger
Partner were terminated at the request of the Prospective Merger
Partner.
On January 27, 2009, our Board met via teleconference. At
the meeting, ZILAs legal counsel from Snell &
Wilmer L.L.P. discussed the duties of directors in the context
of financial restructurings. In addition, Mr. Bethune gave
an update on the Senior Secured Notes discount negotiation
status, including the fact that the Original Noteholders were
unwilling to discuss any significant discount to the Senior
Secured Notes.
On January 31, 2009, ZILA failed to make its quarterly
interest payment due on the Senior Secured Notes.
In early February, 2009, ZILA approached a number of dental
companies, including TOLMAR, and representatives of TOLMAR began
discussions with Mr. Bethune about a potential investment
in ZILA. (During the summer of 2008, ZILA had included
TOLMARs products in its educational seminars, in exchange
for which TOLMAR paid ZILA aggregate fees of approximately
$60,000.) On February 11, 2009, TOLMAR representatives meet
with Mr. Bethune and other ZILA employees to learn more
about ZILA in order to consider a potential investment in, or
acquisition of, ZILA.
On March 10, 2009, ZILA entered into a confidentiality
agreement with a large public dental company (Large Public
Dental Company) for the purpose of exploring a possible
merger. Significant due diligence commenced and continued for
two months with visits to all of the ZILA facilities and an in
depth sales and marketing review.
On March 23, 2009, ZILA received a proposal for the
acquisition of ZILA by TOLMAR. The proposed purchase price was
$3,000,000, reduced by the amount of all contractual obligations
of ZILA payable upon a change in control. The proposal was
conditioned upon TOLMARs ability to acquire the Senior
Secured Notes for a purchase price not to exceed $5,000,000. The
proposal involved the purchase of all of ZILAs outstanding
capital stock or a purchase of assets.
On March 31, 2009, ZILA received a preliminary offer from a
financial buyer (Financial Buyer) offering to
recapitalize ZILA by repurchasing the Senior Secured Notes and
providing working capital necessary for ZILA to reach
profitability. Up to $4,000,000 would be used to retire the
Senior Secured Notes and the remainder would be used for general
corporate purposes. The offer was contingent upon ZILAs
ability to negotiate the retirement of the Senior Secured Notes
for no more than $4,000,000 with the proceeds. In return for the
$8,000,000, the Financial
23
Buyer would receive at least 80% of our outstanding equity. The
preliminary offer was subject to ZILA reaching an agreement with
the Original Noteholders and completing due diligence. The
Original Noteholders were contacted and they were unwilling to
retire the Senior Secured Notes for $4,000,000.
On April 1, 2009, TOLMAR submitted a due diligence request
list to ZILA.
On April 3, 2009, TOLMAR submitted a slightly revised
proposal to our Board proposing to purchase all of ZILAs
outstanding capital stock for up to $3,000,000 reduced by any
contractual obligations payable upon change of control. Such
purchase would be conditioned upon TOLMARs ability to
acquire all of the Senior Secured Notes on terms acceptable to
TOLMAR. On the same day, TOLMAR proposed to purchase the Senior
Secured Notes from the Original Noteholders for up to $5,000,000
in cash, conditioned upon TOLMARs completion of its
proposed acquisition of ZILA.
During the week of April 6, 2009, representatives of TOLMAR
met in person with ZILA management and key personnel to review
various aspects of the ZILAs sales, marketing and
operations activities. They also visited ZILAs Batesville,
Arkansas facilities.
On April 6 and 7, 2009, our Board met and discussed various
strategic alternatives under consideration. During that meeting,
the Board, having received and intending to consider possible
change in control transactions, including the proposal submitted
by TOLMAR, considered potential conflicts of interest by J.
Steven Garrett, a member of the Board who is employed by TOLMAR,
Inc., an affiliate of TOLMAR, and by Mr. Bethune, who has
an adult son who is employed by TOLMAR as a sales manager and
who was formerly the chairman and chief executive officer of
Atrix Laboratories, Inc. (Atrix). In 2004 Atrix was
sold to QLT USA Inc. (QLT USA) and Mr. Bethune
ended his relationship with Atrix. Subsequent to
Mr. Bethunes departure, some of the assets that QLT
USA acquired in the Atrix transaction were sold to TOLMAR. The
Board also acknowledged that Mr. Bethune had a prior
working relationship with TOLMARs current chief executive
officer. The Board resolved that Dr. Garrett should not be
involved in any way with the Boards consideration or
negotiation of any strategic transactions (he had not been
involved in any such consideration or negotiation prior to
April 6, 2009). With respect to Mr. Bethune, the Board
recognized his considerable efforts to generate as many
strategic and financial options as possible, as well as his
commitment to obtain the best reasonably available terms and the
best price for the shareholders and holders of the Senior Notes
in connection with the Boards consideration of various
transactions. After having considered all the facts and
circumstances that the Board deemed relevant, the Board
determined that (i) Mr. Bethunes past
relationship with TOLMARS Chief Executive Officer and his
present relationship with his son do not give rise to any
material financial or other personal interest (whether direct or
indirect); (ii) it was advisable and in the best interest
of ZILA for Mr. Bethune to participate in the consideration
of the potential transactions; and (iii) it was not
necessary to form a special committee of the Board to consider
and negotiate any transactions provided that Dr. Garrett is
not involved in such process.
On April 7, 2009, Mr. Bethune sent a letter to Lyon
confirming a conversation earlier in the day in which
Mr. Bethune asked Lyon to consider an $8,000,000 equity
investment in ZILA at a market price of $.20 per share in
exchange for approximately 80% of ZILAs total outstanding
stock. ZILA would use the proceeds from such sale to retire the
Senior Secured Notes with $5,000,000 of such proceeds and use
the remaining $3,000,000 to fund sales and marketing programs to
grow the business. Lyon never responded to this proposal.
On April 8, 2009, at the request of ZILA, TOLMAR executed
an agreement to refrain from soliciting ZILA employees to become
employed by TOLMAR. In addition, on that date, TOLMAR submitted
a revised legal due diligence request to ZILA.
On April 14, 2009, TOLMAR submitted to ZILA an initial
draft of a merger agreement. On April 24, 2009, ZILA
provided its initial comments on the draft merger agreement
presented by TOLMAR. At various periods between April 24,
2009 and June 16, 2009, ZILA and TOLMAR continued
negotiating the terms and conditions of a potential merger
including negotiating the Merger Agreement and related documents.
On April 15, 2009, ZILA entered into a confidentiality
agreement with a small public dental company (Small Public
Dental Company) for the purpose of exploring the
possibility selling substantially all of the assets of ZILA,
while retaining the Senior Secured Notes and
ViziLite
®
Plus.
24
On April 20, 2009, ZILA received a letter of interest from
another financial buyer (Other Financial Buyer)
proposing, in general terms, the acquisition of the Senior
Secured Notes and their conversion to equity.
On April 21, 2009, ZILA established an electronic data room
for TOLMAR and other interested parties.
On April 30, 2009, ZILA failed to make its quarterly
interest payment due on the Senior Secured Notes.
On May 8, 2009, the Large Public Dental Company notified
ZILA that it was no longer pursuing an acquisition by merger
with ZILA.
On May 11, 2009, TOLMAR and the Original Noteholders
executed the Senior Note Purchase Agreement, which is dated and
effective as of May 6, 2009, pursuant to which TOLMAR
agreed to purchase and the Noteholders agreed to sell the Senior
Secured Notes for $5,000,000, subject to certain terms and
conditions. Although ZILA was aware of the existence of
negotiations between TOLMAR and the Original Noteholders and has
had numerous typical and customary lender/borrower contacts with
the Original Noteholders from time to time since its issuance of
the Senior Secured Notes in 2006, ZILA did not participate in
such negotiations and is not a party to the Senior Note Purchase
Agreement. Subsequently, the purchase price paid by TOLMAR for
the Senior Secured Notes was increased to $6,500,000 pursuant to
its Side Letter with the Original Noteholders, dated as of
July 27, 2009.
On May 14, 2009, a representative of TOLMAR provided ZILA
with a copy of the executed Senior Note Purchase Agreement.
Neither ZILA nor our counsel had received the Senior Note
Purchase Agreement or any draft thereof prior to this date.
On May 27, 2009, ZILA engaged Columbia West to provide a
fairness opinion in connection with the proposed merger
transaction with TOLMAR.
On May 29, 2009, the draft merger agreement included for
the first time merger consideration of $3,000,000 expressed in
an amount per share of common stock. The draft indicated a
payment of $0.28 per share of common stock and $0.32 per share
of the Series B Preferred.
On June 3, 2009, ZILA received a letter of intent for the
acquisition of ZILA from an investor group headed by a
non-management stockholder of a dental products company (the
Investor Group). No diligence had been completed at
the time of ZILAs receipt of the letter of intent.
On June 8, 2009, ZILA received a revised letter of intent
from the Other Financial Buyer whereby such buyer would acquire
the Senior Secured Notes for $5,500,000 and such notes would be
amended so they would automatically convert to common stock at
$0.20 per share following ZILAs achievement of two
consecutive quarters of positive EBITA and other conditions that
were not fully disclosed. This proposal was subject to due
diligence that had not yet been significantly begun.
On June 9, 2009, ZILA received a communication from the
Small Public Dental Company indicating that the ZILA business
had declined to the point where they were no longer interested
in pursuing a purchase.
Also on June 9, 2009, ZILA received a third letter of
intent from the Investor Group proposing the purchase of up to
$5,000,000 in common stock and $5,000,000 in convertible
debentures with $6,000,000 of such proceeds payable to the
holders of the Senior Secured Notes in satisfaction thereof and
the remainder used for general corporate purposes. Again, this
proposal was offered with no diligence having been completed and
no confirmation of the funding source.
On June 10, 2009, ZILA sent the Investor Group a request
for additional clarity regarding its most recent proposal.
On June 11, 2009, ZILA entered into the Intelident NDA.
On June 17, 2009, the Other Financial Buyer withdrew its
offer from consideration in light of the advanced state of
negotiations between ZILA and TOLMAR.
On June 19, 2009, our Board met and after receiving a
report on ZILAs current financial condition,
Mr. Bethune updated the Board on the status of various
strategic alternatives, including TOLMAR, the Investor Group and
five other interested parties that were in early stages of
evaluating a possible transaction. The Board
25
reviewed in detail TOLMARs merger agreement proposal
which was in substantially final form. The Board also reviewed
the fairness opinion and received a presentation from Columbia
West regarding the same. Representatives of Columbia West
advised the Board that based upon and subject to the assumptions
made, the matters considered and the scope of the review
undertaken, the TOLMAR merger was fair from a financial point of
view to the shareholders of ZILA. Following a review of the
terms of the TOLMAR merger agreement, the status of the other
alternatives and the execution risk associated with the other
alternatives given that no party other than TOLMAR had completed
due diligence or proposed definitive documentation and the fact
that the holders of the Senior Secured Notes had executed the
Senior Note Purchase Agreement with TOLMAR, the Board expressed
support for the TOLMAR Merger Agreement provided that the
purchase price could be increased to an amount in excess of the
then-current market price. During a break in the Board meeting,
Mr. Bethune called representatives of TOLMAR and indicated
that the Board required a higher price to agree to an
acquisition of ZILA. Also during that meeting, ZILA received a
presentation from the lead investor in the Investor Group.
On June 24, 2009, representatives of TOLMAR called
Mr. Bethune and indicated it was willing to increase its
offer to $0.38 per share of common stock.
On June 25, 2009, Intelident indicated that they were only
interested in acquiring the assets of ZILA through a
Chapter 11 Section 363 sale.
On June 25, 2009, our Board met via conference call and
after asking a variety of questions, approved the Merger and
authorized ZILA to enter into the Merger Agreement at the higher
$0.38 per share price offered by TOLMAR.
Also on June 25, 2009, after the meeting of our Board, but
before the execution of the Merger Agreement or its public
announcement, the Investor Group withdrew from consideration due
to its lack of funding.
Later on June 25, 2009, the Merger Agreement was executed
and delivered by ZILA and TOLMAR. ZILA issued a press release
announcing the execution of the Merger Agreement and the
proposed Merger on the same day.
On June 26, 2009, ZILA filed a
Form 8-K
with the SEC disclosing its entry into the Merger Agreement.
On June 30, 2009, a representative of Intelident placed an
unsolicited call to Mr. Bethune notifying him of the
likelihood and timing of an offer to acquire ZILA. Later that
day, ZILA responded with an
e-mail
message reminding Intelident of its obligations under the
Intelident NDA. A representative of Intelident acknowledged
receipt of the
e-mail
message, as well as Intelidents continuing obligations
pursuant to the Intelident NDA.
On July 1, 2009, Intelident submitted a non-binding
proposal to acquire all of the common stock of ZILA for $0.42
per share and all of the Series B Preferred for $0.48 per
share. The proposal stated that Intelident anticipated, as part
of its acquisition, negotiating the purchase of the Senior
Secured Notes, which was outside of ZILAs control.
Intelident further indicated that it would provide additional
terms and information with respect to its proposal on or before
July 8, 2009.
On July 2, 2009, ZILA filed a preliminary proxy statement
relating to a special meeting of ZILAs stockholders, at
which the Board indicated it would seek stockholders
adoption of the Merger Agreement and approval of the Merger.
On July 7, 2009, Intelident submitted a revised proposal to
acquire ZILA, which included
mark-ups
of
the Merger Agreement and related transaction documents.
Intelidents proposal was expressly contingent upon
Intelidents ability to acquire the Senior Secured Notes on
terms similar to those provided for in the Senior Note Purchase
Agreement among TOLMAR and the Original Noteholders. Intelident
further proposed to provide ZILA with $500,000 (in exchange for
ZILAs issuance of a promissory note in the same amount) to
be used to pay any termination fees or similar obligations to
TOLMAR arising in connection with a termination of the Merger
Agreement. On the same day, Intelident issued a press release
publicly announcing its proposal to acquire ZILA.
On July 8, 2009, ZILAs legal counsel sent outside
counsel to Intelident a letter stating, among other things, that
Intelidents issuance of the July 7, 2009 press
release constituted a violation of Intelident NDA. Subsequently,
the parties legal counsel exchanged additional
correspondence relating to the Senior Note Purchase Agreement
among TOLMAR and the Original Noteholders and the Intelident NDA.
26
On July 10, 2009, after careful review of Intelidents
proposal to acquire ZILA, the Board concluded that the
Intelident proposal was not superior to TOLMARs proposal
under the Merger Agreement. The Board noted that Intelident did
not provide any detail regarding how it would satisfy (or cause
to be satisfied) the condition that Intelident acquire the
Senior Secured Notes on terms similar to those set forth in the
Senior Note Purchase Agreement. The Board also authorized the
execution of any future amendment of the Merger Agreement
providing for a higher price per share.
Later on July 10, 2009, ZILA issued a press release
announcing the Boards determination that the Intelident
proposal was not superior to the Merger Agreement because of the
contingencies that it contained.
On July 14, 2009, Intelident filed the Complaint in the
Chancery Court seeking to enjoin ZILA from proceeding with the
Merger and accusing the Board of breaching their fiduciary
duties. In its complaint, Intelident accused TOLMAR of aiding
and abetting in the Boards fiduciary breaches. Intelident
also filed a Motion to Expedite Proceedings.
On July 15, 2009, Intelident issued a press release
announcing its filing of the Complaint with the Chancery Court
seeking to enjoin ZILA from proceeding with the Merger. Later on
July 15, 2009, ZILA issued a press release responding to
the complaint filed by Intelident in the Chancery Court.
On July 16, 2009, ZILA filed its opposition to
Intelidents Motion to Expedite Proceedings with the
Chancery Court.
At a July 16, 2009 hearing on Intelidents Motion to
Expedite Proceedings, the Chancery Court, after commenting on
the contingent nature of the Intelident proposal, denied
Intelidents motion, ruling that Intelident lacked standing
to challenge the Merger and the Senior Note Purchase Agreement
because Intelident did not own stock in ZILA at the time the
Merger Agreement was executed or at the time the Senior Note
Purchase Agreement was executed. The Chancery Court did,
however, allow Intelident to file a narrow, focused motion for
preliminary injunction solely on the issue of whether Intelident
should be relieved of its obligations under the Intelident NDA.
On July 17, 2009, representatives of ZILA requested from
TOLMAR a limited waiver of Section 5.8 of the Merger
Agreement, which prohibits ZILA from amending or waiving its
rights under confidentiality agreements like the Intelident NDA,
that would allow the Board to permit Intelident to communicate
with TOLMAR.
On July 20, 2009, representatives of ZILA sent a letter to
Intelidents outside counsel confirming that ZILA had
received a limited waiver from TOLMAR with respect to
Section 5.8 of the Merger Agreement, and that Intelident
was permitted to communicate with TOLMAR notwithstanding the
terms of the Intelident NDA.
Also on July 20, 2009, Intelident filed an Amended Motion
to Expedite Proceedings (with respect to its objections relating
to the enforcement of the Intelident NDA) with the Chancery
Court.
Between July 20, 2009 and July 28, 2009, legal counsel
to ZILA and Intelident exchanged requests for production and
responsive documents and correspondence.
Also between July 20, 2009 and July 28, 2009, ZILA and
TOLMAR negotiated the terms of the First Amendment to Agreement
and Plan of Merger and the Forbearance Agreement. These
negotiations were the product of a continuing dialogue between
representatives of ZILA and TOLMAR regarding the value of ZILA
and the terms of the Merger Agreement.
On July 21, 2009, ZILA filed its opposition to
Intelidents Amended Motion to Expedite Proceedings with
the Chancery Court.
On July 24, 2009, ZILA filed a Motion to Dismiss
Intelidents claims (as they related to the members of
ZILAs Board named as defendants in the Complaint).
On July 27, 2009, TOLMAR entered into a Side Letter with
the Original Noteholders, pursuant to which TOLMAR completed its
acquisition of the Senior Secured Notes for $6,500,000 in cash.
27
On July 28, 2009:
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ZILA, TOLMAR and Acquisition Sub entered into the First
Amendment to Agreement and Plan of Merger to modify certain
terms of the Merger Agreement, including, without limitation, an
increase in the merger consideration of $0.38 per share to $0.45
per share for holders of shares of our common stock and an
increase in the merger consideration of $0.44 per share to $0.50
per share for holders of the Series B Preferred. Pursuant
to the amendment, certain conditions to the completion of the
Merger were also deleted.
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TOLMAR, ZILA, and certain of ZILAs subsidiaries entered
into the Forbearance Agreement, the principal terms of which are
described above.
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ZILA issued a press release announcing its entry into the
amendment to the Merger Agreement and the higher price to be
received by holders of our common stock and the Series B
Preferred in connection with the Merger.
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On July 29, 2009, Intelidents counsel submitted to
ZILAs counsel an expression of interest in formally making
a revised proposal to acquire ZILA. The revised proposal was to
include per share merger consideration of $0.52 per share of
ZILA common stock and $0.55 per share of Series B
Preferred, and Intelident proposed to provide ZILA with $500,000
to pay TOLMAR any termination fees and expenses prescribed by
the Merger Agreement. According to the letter received by
ZILAs counsel, the proposal assumed that certain payments
of accrued but unpaid interest would be funded by Intelident and
paid by ZILA at closing in an effort to cure the defaults
existing under the Senior Secured Notes.
Also on July 29, 2009, ZILA received a comment letter from
the SECs Division of Corporation Finance with respect to
the preliminary proxy statement on Schedule 14A that ZILA
filed on July 2, 2009.
On July 30, 2009, our counsel responded to the
July 29, 2009 letter from Intelidents counsel to ask
certain clarifying questions with respect to the revised
proposal described therein in order to assist the Board in its
determination of whether Intelidents proposal constituted
or would reasonably be expected to lead to a Superior Proposal
(as defined in the Merger Agreement). Also on that date,
Intelidents counsel contacted TOLMARs counsel to
request a telephone conference the following week between
principals of Intelident and TOLMAR.
On July 31, 2009, ZILA failed to make its quarterly
interest payment due on the Senior Secured Notes and filed a
Form 8-K
with the SEC disclosing such event.
Also on July 31, 2009, Intelidents counsel called our
counsel to respond to its July 30, 2009 letter and provide
certain clarifications with respect to Intelidents
proposal.
On August 4, 2009, without our prior knowledge and before
providing written clarification of its proposal so the Board
could act on it, Intelident filed a Notice of Voluntary
Dismissal with the Chancery Court, pursuant to which Intelident
voluntarily dismissed its Complaint without prejudice. On the
same day, Intelidents counsel sent an
e-mail
message to our counsel stating that, in light of
Intelidents Notice of Voluntary Dismissal, we do not
believe it is necessary to have any further exploratory calls or
discussions regarding a possible transaction and all litigation
events are now off calendar. Also on that date, Intelident
canceled the previously scheduled call with TOLMAR.
Reasons
for the Merger
After careful consideration, our Board unanimously (with the
exception of J. Steven Garrett, who did not participate in the
consideration of the Merger Agreement because he is employed by
TOLMAR, Inc., an affiliate of TOLMAR) approved the Merger
Agreement, and determined that the Merger Agreement and the
transactions contemplated by the Merger Agreement (including the
Merger) are fair, advisable and in the best interests of ZILA
and its stockholders.
In reaching its conclusion that the Merger Agreement and the
proposed Merger are fair to, and in the best interests of, ZILA
and its stockholders, the Board consulted with the
Companys management, as well as its
28
financial and legal advisors, and considered a number of
factors that it believed supported the Boards decision,
including the following:
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the likelihood that the Merger will be completed in a timely
manner;
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the value of the consideration provided for in the Merger
Agreement compared to the market price of our common stock,
including the fact that the per-share merger consideration
represents:
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an 41% premium over the $0.32 per share closing price of our
common stock on the trading day immediately prior to the
Boards approval of the Merger Agreement, and
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a 32% premium over the $0.34 per share volume-weighted average
price of our common stock for the 30 trading day-period
immediately prior to the Boards approval of the Merger
Agreement;
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the fact that our stockholders will receive the consideration
provided for in the Merger Agreement in cash, which provides
certainty of value with respect to such consideration (as
opposed to a transaction in which stockholders received stock in
a development-stage company, or some other form of consideration
involving less certainty
and/or
liquidity);
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the opinion of Columbia West, delivered in writing to the Board
on June 10, 2009, that as of such date, and based upon and
subject to certain assumptions made, matters considered and
scope of the review undertaken by Columbia West, the cash
consideration then proposed to be paid for each share of ZILA
common stock and each share of ZILA Series B Preferred
pursuant to the Merger (which has been subsequently increased
twice since the date of the fairness opinion) was fair, from a
financial point of view, to our stockholders as a whole;
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that, as of the date on which the Board approved the Merger
Agreement, the Board and the Companys management had, both
themselves and through their financial advisors, actively
solicited alternative proposals (both financial and strategic)
to maximize value for ZILAs stockholders;
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ZILAs inability, despite the Boards and
managements efforts to solicit additional offers from
other potential strategic and financial partners, to receive a
superior offer;
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the Boards belief, after considering the risks and
uncertainties associated with other alternatives (including the
alternative of remaining a stand-alone, independent company),
that the terms of the Merger are more favorable to ZILAs
stockholders than any other alternative reasonably available to
the Company and the stockholders;
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several factors relating to the Senior Secured Notes, which are
currently outstanding in the aggregate principal amount of
$12,000,001, are currently convertible into up to
678,123 shares of our common stock, and have a stated
maturity date of July 31, 2010, including:
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the fact that ZILA did not make its quarterly interest payments
due under the Senior Secured Notes on each of January 31,
2009, April 30, 2009 and July 31, 2009, which
non-payments entitle TOLMAR to (i) declare an event of
default and accelerate all amounts payable under the Senior
Secured Notes and (ii) collect a default interest rate
equal to 15% annually (as compared to the 7% stated annual
interest rate);
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the fact that ZILA does not anticipate being able to pay its
quarterly interest payment due under the Senior Secured Notes on
October 31, 2009, given its need to conserve cash and the
fact that issuing shares of ZILAs common stock to make the
interest payment is prohibited, in the absence of stockholder
approval, under NASDAQ listing rules due to the market price of
our common stock;
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the fact that the Senior Secured Notes mature in their entirety
on July 31, 2010, and that ZILA does not anticipate being
able to pay off the $12,000,001 principal amount under the
Senior Secured Notes, either from income generated by operations
and/or
proceeds from financing activities;
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the fact that the Senior Secured Notes are secured by
substantially all of ZILAs assets, which has impaired and
continues to impair our ability to obtain any additional
financing; and
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the fact that TOLMAR has agreed to forbear, for a certain period
of time and subject to certain conditions, from exercising its
rights under the Senior Secured Notes to accelerate the payment
of all or part of the outstanding principal amount of the Senior
Secured Notes and accrued and unpaid interest, but that if the
Merger is not completed, there can be no assurance TOLMAR will
continue to forbear from declaring an event of default and
accelerating the Senior Secured Notes;
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the current financial condition of ZILA, including the fact that
declining revenues have led to continued operating losses,
contributed to liquidity problems and impaired the
Companys ability to invest in marketing and other
strategic tools to grow its business;
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the substantial likelihood that, without completing a
transaction similar to the Merger, we would have to file for
protection under Chapter 11 of the Federal Bankruptcy Code,
which would likely result in our common stock becoming worthless;
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the decline in the market price of ZILAs common stock,
which could result in the Company being delisted from the NASDAQ
Capital Market and exacerbate liquidity problems for both the
Company and its stockholders;
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the belief that ZILA would be more effective as a part of a
larger organization with greater resources;
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that the Merger Agreement:
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permits ZILA to consider and respond to unsolicited proposals
under certain circumstances prior to stockholder approval of the
Merger;
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permits ZILA to terminate the Merger Agreement in order to
accept a superior acquisition proposal, subject to paying TOLMAR
a termination fee of $300,000 and reimbursing it for transaction
expenses (not to exceed $200,000); and
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does not contain a financing contingency;
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the amount of the termination fee, which the Board believed
should not unduly discourage parties that would otherwise be
interested in pursuing an alternative transaction with
ZILA; and
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the availability of appraisal rights to holders of our capital
stock who comply with all of the required procedures under
Delaware law, which allows such holders to seek appraisal of the
fair value of their shares if certain conditions are met.
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In the course of its deliberations, the Board also identified
and considered a variety of risks and other countervailing
factors related to entering into the Merger Agreement, including
the following:
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the risk that the Merger might not be completed in a timely
manner or at all due to failure to satisfy the closing
conditions, some of which are outside of ZILAs control;
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if the Merger is not completed, the potential adverse effect of
the public announcement of any termination of the Merger or the
Merger Agreement on ZILAs reputation;
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the restrictions on the conduct of ZILAs business prior to
completion of the Merger, which require ZILA to conduct its
business only in the ordinary course of business, subject to
specific limitations or TOLMARs consent, and might delay
or prevent ZILA from undertaking business opportunities that
could arise pending the completion of the Merger;
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the termination and expense reimbursement fees that ZILA would
have to pay in connection with a termination of the Merger
Agreement under certain circumstances;
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the possibility that such fees
and/or
the
fact that TOLMAR has acquired the Senior Secured Notes might
deter parties from submitting superior offers to acquire
ZILA; and
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the potential interests of ZILAs directors and executive
officers in the Merger, as described in more detail in the
section entitled Interests of ZILAs Directors and
Executive Officers in the Merger, which begins on
page 35 of this proxy statement.
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30
The foregoing discussion of the factors considered by our Board
is not intended to be exhaustive, but does set forth the
principal factors considered by the Board. The Board unanimously
(with the exception of J. Steven Garrett, who did not
participate because he is employed by TOLMAR, Inc., an affiliate
of TOLMAR) reached the conclusion to approve the Merger
Agreement in light of the various factors described above and
other factors that each director deemed relevant. In view of the
wide variety of factors considered by the members of the Board
in connection with their evaluation of the Merger Agreement and
the complexity of these matters, the Board did not consider it
practical, and did not attempt, to quantify, rank or otherwise
assign relative weights to the specific factors it considered in
reaching its decision and did not undertake to make any specific
determination as to whether any particular factor, or any aspect
of any particular factor, was favorable or unfavorable to the
ultimate determination of the Board. Rather, the Board made its
decision based on the totality of information presented to and
considered by it. In considering the factors discussed above,
individual directors may have given different weights to
different factors.
Recommendation
of ZILAs Board of Directors
The Board recommends that ZILAs stockholders vote
FOR
the Merger Agreement and approval of the
Merger.
The recommendation of the Board was made
after careful consideration of all the material factors, both
positive and negative, as described above and elsewhere in this
proxy statement.
The
Merger Consideration
Each share of our common stock issued and outstanding
immediately prior to the effective time of the Merger will be
converted into the right to receive $0.45 in cash, and each
share of Series B Preferred issued and outstanding
immediately prior to the effective time of the Merger will be
converted into the right to receive $0.50 in cash, in each case
without interest and less any applicable withholding taxes,
other than the following shares:
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shares held by a stockholder who is entitled to demand and has
made a demand for payment of such shares in accordance with
Section 262 of the DGCL and has not voted in favor of
adoption of the Merger Agreement, until such time as such holder
fails to perfect or otherwise loses such holders appraisal
rights under Section 262 of the DGCL;
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shares owned by ZILA as treasury stock immediately prior to the
effective time of the Merger, which will be cancelled without
any payment;
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shares owned by TOLMAR or Acquisition Sub immediately prior to
the effective time of the Merger, which will be cancelled
without any payment; and
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shares owned by any direct or indirect wholly-owned subsidiary
of ZILA, which shall remain outstanding.
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The per share merger consideration is subject to equitable
adjustment in the event of any stock split, stock dividend,
reverse stock split or other change in the number of outstanding
shares of our capital stock (or securities convertible or
exchangeable into, or exercisable for, shares of our capital
stock) between the date of the Merger Agreement and the
effective time of the Merger.
Opinion
of ZILAs Financial Advisor
Columbia West has provided a fairness opinion to our Board in
connection with its consideration of the Merger Agreement and
the financial terms of the proposed Merger. Columbia West is an
investment banking firm focused on providing investment banking
services to companies in a wide array of key industry sectors.
In May 2009, ZILA contacted and interviewed five investment
banking firms regarding the fairness option. Following the
interviews and after determining that it had no prior
relationship with ZILA or TOLMAR, ZILA selected Columbia West.
At the June 19, 2009 meeting of our Board, representatives
of Columbia West delivered its oral opinion, which was also
confirmed in writing, to our Board to the effect that, as of
June 10, 2009, based upon and subject to the assumptions
made, matters considered and limits of the review undertaken by
Columbia West, the cash consideration to be paid for each share
of ZILA common stock and each share of ZILA Series B
Preferred pursuant to the Merger (which amounts were proposed to
be $0.28 per share and $0.32 per share, respectively, as of the
date on
31
which the letter was delivered) was fair, from a financial point
of view, to our stockholders as a whole. Columbia West did not
opine specifically as to the fairness of the Merger Agreement.
The full text of Columbia Wests written opinion, dated
June 10, 2009, which sets forth, among other things, the
assumptions made, matters considered and limits on the review
undertaken by Columbia West in connection with the opinion, is
attached as Annex D to this proxy statement and is
incorporated herein by reference. We urge stockholders to read
and consider the Columbia West opinion in its entirety.
Columbia West provided its opinion for the information and
assistance of our Board in connection with its consideration of
the Merger. Columbia West did not express any opinion as to the
underlying decision of our Board to recommend the Merger, nor as
to the fairness, from a financial point of view, as to the
allocation of consideration paid and payable pursuant to the
Merger Agreement among the two classes of our capital stock. The
Columbia West opinion is not a recommendation as how holders of
our common stock should vote with respect to the Merger. In
connection with Columbia West arriving at its opinion, Columbia
West has, among other things:
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reviewed ZILAs financial statements for several years
ended July 31, 2008 as well as those monthly statements up
to April 30, 2009 and various closing documents, accounting
and other related records;
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reviewed certain information, including financial forecasts,
relating to the business, earnings and cash flows and assets of
ZILAs business;
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conducted numerous discussions with members of the management of
ZILA concerning its business and prospects;
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compared the results of operations of ZILAs business with
those of certain other companies which it deemed relevant;
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conducted a review of the financial condition of ZILA with
respect to liquidity and capital position as of the date of the
opinion;
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compared the financial terms of the Merger with the financial
terms of certain other mergers and acquisitions which it deemed
relevant;
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reviewed the Merger Agreement; and
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performed such other analyses and reviewed and analyzed such
other information as it deemed relevant.
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In rendering the opinion, Columbia West did not assume
responsibility for independently verifying, and did not
independently verify, any financial or other information
concerning ZILA furnished to it by ZILA, or the
publicly-available financial and other information regarding
ZILA and other companies used in its analysis. Columbia West
assumed that all such information was accurate and complete.
Columbia West further relied on assurances of management of ZILA
that they were not aware of any facts that would make such
financial or other information relating to such entities
inaccurate, incomplete or misleading.
With respect to forecasts and financial projections prepared by
ZILAs management provided to Columbia West, Columbia West
assumed, with the consent of the Board, that they were
reasonably prepared on a basis reflecting the best currently
available estimates and judgments of ZILAs management.
Columbia West further relied upon the assurances of ZILAs
management that they were not aware of any facts or
circumstances that would make any information provided to
Columbia West, when considered in light of all of the
information provided to it, inaccurate or misleading. In
addition, Columbia West did not make, and was not provided with,
any independent evaluation or appraisal of specific assets and
liabilities (contingent or otherwise) of ZILA. The opinion was
based only on information available to Columbia West and the
financial, market, economic, regulatory and other conditions,
facts, and circumstances as they existed and were subject to
evaluation on the date of its opinion.
The following is a summary of the material financial analyses
delivered by Columbia West to our Board in connection with
rendering the opinion described above. The following summary,
however, does not purport to be a complete description of the
financial analyses performed by Columbia West, nor does the
order of analyses described represent relative importance or
weight given to those analyses by Columbia West. Some of the
summaries of the financial analyses include information
presented in tabular format. The tables must be read
32
together with the full text of each summary and are alone not a
complete description of Columbia Wests financial analyses.
Except as otherwise noted, the following quantitative
information, to the extent that it is based on market data, is
based on market data as it existed on or before June 10,
2009 and is not necessarily indicative of current market
conditions.
Selected
Companies Analysis
Columbia West reviewed and compared certain financial
information for ZILA to corresponding financial information,
ratios and public market multiples for the following publicly
traded companies in the dental supply/point-of-care diagnostic
companies, which Columbia West refers to collectively as the
comparable public companies:
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Align Technology Inc.
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DENTSPLY International Inc.
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Henry Schein Inc.
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Patterson Companies Inc.
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Sirona Dental Systems Inc.
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Young Innovations Inc.
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Abaxis Inc.
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Inverness Medical Innvations Inc.
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National Dentex Corp.
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OraSure Technologies Inc.
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Quidel Corp.
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These companies were selected, among other reasons, because they
share similar business characteristics to ZILA and they operate
in a similar industry as ZILA.
In this analysis, Columbia West compared the Enterprise Value
being paid for ZILA as implied by the aggregate consideration
being paid, expressed as a multiple of ZILAs last twelve
months (LTM) revenue and EBITDA, to the respective
multiples of LTM of the comparable companies implied by the
public trading prices of their common stock.
Discounted
Cash Flow Analysis
Columbia West performed a discounted cash flow analysis on ZILA
using ZILAs managements projections. Columbia West
calculated indications of present values of unlevered free cash
flows for ZILA for fiscal years 2008 through 2012.
The preparation of a fairness opinion is a complex process and
is not necessarily susceptible to partial analysis or summary
description. Selecting portions of the analyses or of the
summary set forth above, without considering the analyses as a
whole, could create an incomplete view of the processes
underlying the Columbia West opinion. In arriving at its
fairness determination, Columbia West considered the results of
all of its analyses and did not attribute any particular weight
to any factor or analysis considered by it. Rather, Columbia
West made its determination as to fairness on the basis of its
experience and professional judgment after considering the
results of all of its analyses. The conclusions by Columbia West
may involve significant elements of subjective judgment and
qualitative analysis. In performing its analyses, Columbia West
considered general economic, market and financial conditions and
other matters, many of which are beyond our control.
Columbia West prepared these analyses for purposes of providing
its opinion to our Board as to the fairness from a financial
point of view to ZILAs stockholders as a whole of the
consideration to be paid to the holders of the shares of common
stock and Series B Preferred pursuant to the Merger
Agreement. These analyses do not purport to
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be appraisals nor do they necessarily reflect the prices at
which businesses or securities actually may be sold. Analyses
based upon forecasts of future results are not necessarily
indicative of actual future results, which may be significantly
more or less favorable than suggested by these analyses. Because
these analyses are inherently subject to uncertainty, being
based upon numerous factors or events beyond the control of the
parties or their respective advisors, none of ZILA, TOLMAR,
Acquisition Sub or any other person assumes responsibility if
future results are materially different from those forecast.
The merger consideration to be paid pursuant to the Merger
Agreement was determined through arms length negotiations
between ZILA and TOLMAR and was approved by our Board. Columbia
West provided advice to ZILA during these negotiations. Columbia
West did not, however, recommend any specific amount of
consideration to ZILA or our Board or that any specific amount
of consideration constituted the only appropriate consideration
for the Merger.
As described above, the Columbia West opinion to our Board was
one of many factors taken into consideration by our Board in
making its determination to approve the Merger Agreement. The
foregoing summary does not purport to be a complete description
of the analyses performed by Columbia West in connection with
the fairness opinion, a copy of which is attached as
Annex D.
Certain
Effects of the Merger
If the Merger Agreement is adopted by ZILAs stockholders
and the other conditions to the closing of the Merger are either
satisfied or waived, Acquisition Sub will be merged with and
into ZILA, and ZILA will be the surviving corporation. When the
Merger is completed, ZILA will cease to be a publicly traded
company and will instead become a wholly-owned subsidiary of
TOLMAR.
When the Merger is completed, each share of ZILA common stock
issued and outstanding immediately prior to the effective time
of the Merger (other than certain excluded shares identified in
the section entitled The Merger Consideration, which
begins on page 46 of this proxy statement) will be
converted into the right to receive $0.45 in cash, without
interest and less any applicable withholding taxes, and each
share of Series B Preferred issued and outstanding
immediately prior to the effective time of the Merger will be
converted into the right to receive $0.50 in cash, without
interest and less any applicable withholding taxes.
Warrants.
By virtue of the Merger, our
outstanding warrants with an exercise price of $15.54 per share
will automatically become rights to receive the Common Stock
Merger Consideration in exchange for payment of their exercise
price. At the time the Merger Agreement was entered into, we had
outstanding other warrants (with an exercise price of $14.63 per
share) and we had agreed to attempt to cancel such warrants
prior to the closing of the Merger; all of such warrants have
been cancelled as of the date of this proxy statement.
Stock Options.
Immediately prior to the
effective time of the Merger, all outstanding options to
purchase common stock under our equity incentive plans, will
become immediately vested and exercisable in full. At the
effective time, each then outstanding option will, by virtue of
the Merger, be converted into and will become a right to receive
an amount in cash, without interest and less any applicable
withholding taxes, with respect to each share subject thereto,
equal to the excess, if any, of the Common Stock Merger
Consideration over the per share exercise price of such option,
and each such option will terminate at the effective time. Only
50,000 stock options have an exercise price less than the Common
Stock Merger Consideration and thus will receive any payment in
connection with the Merger.
Restricted Stock.
At the effective time and by
virtue of the Merger, the restrictions on the restricted stock
issued and outstanding immediately before the effective time
will lapse, and such restricted stock shall be treated as common
stock for purposes of receiving the merger consideration.
At the effective time of the Merger, ZILAs current
stockholders will cease to have ownership interests in ZILA or
rights as ZILA stockholders. Therefore, ZILAs current
stockholders will not participate in any of ZILAs future
earnings or growth and will not benefit from any subsequent
appreciation in ZILAs value.
ZILAs common stock is currently registered under the
Exchange Act and is traded on the NASDAQ Capital Market under
the symbol ZILA. As a result of the Merger, ZILA
will no longer be a publicly traded company, and
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there will be no public market for ZILA common stock. After the
Merger, ZILA common stock will cease to be traded on the NASDAQ
Capital Market, and price quotations with respect to sales of
shares of common stock in the public market will no longer be
available. In addition, registration of ZILA common stock under
the Exchange Act will be terminated. This termination will make
certain provisions of the Exchange Act, such as the requirement
of furnishing a proxy or information statement in connection
with stockholders meetings, no longer applicable to ZILA.
After the effective time of the Merger, ZILA will also no longer
be required to file periodic reports with the SEC on account of
ZILAs common stock.
If the Merger Agreement is terminated under certain
circumstances described in greater detail in The Merger
Agreement Termination of the Merger Agreement
on page 53 of this proxy statement, ZILA will be obligated
to reimburse TOLMAR for its expenses (including legal fees and
expenses) incurred in connection with the Merger Agreement, not
to exceed $200,000, and pay a termination fee of $300,000.
Interests
of ZILAs Directors and Executive Officers in the
Merger
In considering the recommendation of ZILAs Board to vote
FOR the Merger Agreement, holders of shares of
ZILAs common stock should be aware that ZILAs
directors and executive officers may have interests in the
Merger that may be different from, or in addition to, those of
ZILAs stockholders generally. These interests may create
potential conflicts of interest. Our Board was aware of these
potential conflicts of interest and considered them, among other
matters, in reaching its decision to approve the Merger
Agreement and to recommend that ZILA stockholders vote in favor
of adopting the Merger Agreement.
Stock,
Stock Options and Restricted Stock
As of the record date, there were approximately
404,809 shares of our common stock subject to stock
options, of which approximately 130,022 were unvested, and
approximately 9,524 shares of unvested restricted stock
granted to our executive officers and directors. Our executive
officers and directors owned an aggregate of 317,196 shares
of our common stock as of the record date.
The Merger Agreement provides that, immediately prior to the
effective time of the Merger, all outstanding options to
purchase common stock under our equity incentive plans, will
become immediately vested and exercisable in full. At the
effective time and by virtue of the Merger, the restrictions on
the restricted stock issued and outstanding immediately before
the effective time will lapse, and such restricted stock shall
be treated as common stock for purposes of receiving the merger
consideration. Certain of our current and former directors and
executive officers may be entitled to receive consideration for
their options and restricted stock. Such consideration is
summarized under The Merger Agreement Stock
Options and Restricted Stock.
35
The following table summarizes (i) the vested and unvested
stock options with exercise prices less than the per share
merger consideration, (ii) the unvested restricted stock
awards held by each of our executive officers and directors in
each case as of August 17, 2009, and (iii) the merger
consideration that each of our directors and executive officers
(including any person serving in such capacities since
August 1, 2008) will receive with respect to their
stock options and unvested restricted stock awards in connection
with the Merger. The information with respect to options is
based on the treatment of the options as provided in the Merger
Agreement.
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No. of Shares
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No. of Shares of
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Underlying
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Restricted Common
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In-the-Money
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Resulting Merger
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Stock
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Options
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Consideration
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Executive Officers:
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David R. Bethune
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5,191
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$
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2,336
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Gary V. Klinefelter
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714
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$
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321
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Diane E. Klein
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2,857
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$
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1,286
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David Barshis*
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Directors:
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Wade F. Brooksby
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10,000
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$
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1,100
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J. Steven Garrett
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10,000
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$
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1,100
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Leslie H. Green
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10,000
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$
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1,100
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O.B. Parrish
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10,000
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$
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1,100
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Jon M. Plexico
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George J. Vuturo
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10,000
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$
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1,100
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David Goldman*
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*
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Former executive officer or director
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Employment
Letters
The consummation of the Merger will constitute a change in
control under the employment letters that we have entered
into with David R. Bethune, Gary V. Klinefelter and Diane E.
Klein. As a result, such individuals would be entitled to
receive the following compensation in the event they were
terminated by TOLMAR without cause within a specified period of
time (which varies by agreement) following the completion of the
Merger:
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Compensation upon Termination w/o
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Cause after Change in Control
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David R. Bethune
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$
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700,000
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Gary V. Klinefelter
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$
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480,000
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Diane E. Klein
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$
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277,500
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TOLMAR has advised us that it does not expect to terminate the
employment of any of the individuals listed above as of the
effective time of the Merger. The employment letters also
provide for the same severance benefits if such executive
officers decide to terminate their employment for good
reason (defined as a material diminution in base salary or
job responsibilities, a material breach of the employment letter
by ZILA or a material change in the location at which they
perform services).
Indemnification
and Insurance
The Merger Agreement provides that for a period of
60 months after the Merger effective time, ZILA will
provide, at its sole expense, each individual who served as a
director or officer of ZILA at any time prior to the effective
time with liability insurance containing the same coverage and
in the same amount as ZILAs policies in effect immediately
prior to the effective time; provided, however
,
in the
event that the cost of liability insurance for such coverage
exceeds 150% of the annual cost of such insurance in effect
immediately before the effective time, ZILA may reduce the
coverage and amount of liability insurance only to the extent
necessary so that the annual cost
36
of liability insurance does not exceed 150% of the annual cost
of the insurance in effect immediately before the effective time.
In addition, for a period of 60 months after the effective
time, ZILA must fulfill and honor in all respects the
obligations of ZILA and its subsidiaries pursuant to any
indemnification provision and any exculpation provision set
forth in the organizational documents of ZILA or any of its
subsidiaries as in effect on the date of the Merger Agreement.
During such period, the organizational documents of ZILA must
contain the provisions with respect to indemnification and
exculpation from liability set forth in ZILAs
organizational documents on the date of the Merger Agreement,
and such provisions are not to be amended, repealed or otherwise
modified in any manner (including any amendment accomplished
through merger, recapitalization, consolidation or
reorganization) that could adversely affect the rights of any
indemnified party thereunder.
Other
Relationships
J. Steven Garrett, a member of the Board, is employed by TOLMAR,
Inc. as its Vice President of Clinical Development. Due to his
conflict of interest, Mr. Garrett completely recused
himself from and had no involvement in the process of
discussing, considering and negotiating the terms of the
proposed Merger (or any other proposed strategic transaction) on
behalf of ZILA. Mr. Garrett was not present at the
Boards meetings on June 19, June 25 and July 10,
2009, at which this transaction was discussed by the Board.
David R. Bethune, Chairman of the Board and our Chief Executive
Officer, has certain relationships with ex-Atrix employees who
are now employed by TOLMAR, which are described below:
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Mr. Bethune was the Chairman and Chief Executive Officer of
Atrix until it was sold under Mr. Bethunes leadership
to QLT USA in 2004. Subsequent to that transaction, after
Mr. Bethune was no longer involved in any way with Atrix or
QLT USA, certain assets acquired by QLT USA were sold to TOLMAR,
Inc. in 2006.
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During his tenure at Atrix, Mr. Bethune had a working
relationship the current Chief Executive Officer of TOLMAR, who
was at the time employed by Atrix.
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Mr. Bethune has an adult son who is employed by TOLMAR,
Inc. as a sales manager but who, to the best of the Boards
knowledge, does not have a material interest (financial or
otherwise) in the outcome of the Merger.
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The Board considered Mr. Bethunes relationships with
current TOLMAR employees and determined that he did not have any
material financial or other personal interest (whether direct or
indirect) in connection with the proposed Merger. Accordingly,
and because the Board recognized Mr. Bethunes
extraordinary efforts to generate strategic and financial
alternatives to maximize value for ZILAs stockholders, it
determined that it was advisable and in ZILAs best
interests for Mr. Bethune to participate in the process of
considering TOLMARs proposal, discussing and negotiating
the Merger Agreement and determining whether to approve the
Merger.
Plans for
ZILA if the Merger is Not Completed
It is expected that if the Merger is not completed, the current
management of ZILA, under the direction of the Board, will
continue to manage ZILA as an ongoing business. It is expected
that, from time to time, ZILA will evaluate and review its
business operations, properties and capitalization, among other
things, make such changes as are deemed appropriate and
continuing to seek to identify strategic alternatives to enhance
stockholder value. If the Merger is not consummated for any
reason, there can be no assurance that any other transaction
acceptable to ZILA will be offered or that ZILAs business
and operations will not be adversely affected.
Following TOLMARs acquisition of the Senior Secured Notes,
TOLMAR, ZILA, and certain of ZILAs subsidiaries entered
into the Forbearance Agreement, pursuant to which TOLMAR agreed
to forbear, for a certain period of time and subject to certain
conditions, from exercising its rights under the Senior Secured
Notes to accelerate the payment of all or part of the
outstanding principal amount of the Senior Secured Notes and
accrued and unpaid interest as a result of (i) ZILAs
past failure to make the payments (due and payable on
January 31, 2009 and April 30, 2009, respectively) of
accrued and unpaid interest on the principal amount of the
Senior Secured
37
Notes and (ii) ZILAs anticipated failure to make the
payments (due and payable on July 31, 2009 and
October 31, 2009) of accrued and unpaid interest then
due and payable on the principal amount of the Senior Secured
Notes. Since the execution of the Forbearance Agreement, ZILA
failed to make the interest payment due under the Senior Secured
Notes on July 31, 2009.
As noted above, we are not in compliance with the terms of the
Senior Secured Notes with respect to the quarterly interest
payments due January 31, 2009, April 30, 2009 and
July 31, 2009, which have not been made as of the date of
this filing. The failures to make these payments are events of
default under the Senior Secured Notes. Upon an event of
default, the Senior Secured Notes may be accelerated and
immediately become due and payable. As described above, TOLMAR
has agreed to forbear, for a certain period of time and subject
to certain conditions, from exercising its rights under the
Senior Secured Notes to accelerate the payment of all or part of
the outstanding principal amount of the Senior Secured Notes and
accrued and unpaid interest. If the Merger Agreement is
terminated or if we default on requirements under the Senior
Secured Notes other than the interest payments identified in the
Forbearance Agreement, there can be no assurance TOLMAR will
continue to forbear from declaring an event of default and
accelerating the Senior Secured Notes.
We do not have sufficient resources to repay the Senior Secured
Notes. In the event of acceleration, we would likely be forced
to file for protection under Chapter 11 of the Federal
Bankruptcy Code or liquidate ZILA under Chapter 7 of the
Federal Bankruptcy Code, which would likely result in our common
stock becoming worthless.
Discussion
of Certain Material United States Federal Income Tax
Considerations
In accordance with 31 C.F.R. § 10.35(b)(5), we
hereby notify you that both the discussion of the tax aspects
provided herein and any discussion of tax issues throughout this
proxy statement (i) is not intended or written to be relied
upon, and cannot be used by any person, for the purpose of
avoiding any federal tax penalties, and (ii) was written to
support the promotion or marketing of the transactions or
matters addressed herein, including the solicitation of an
approval of the Merger. Each stockholder should seek advice
based on such persons particular circumstances from an
independent tax advisor.
The following is a discussion of certain material United States
(U.S.) federal income tax consequences of the Merger
applicable to holders of shares of ZILA stock whose shares are
converted into the right to receive cash in accordance with the
Merger Agreement. This discussion does not purport to be a
complete analysis of all of the potential U.S. federal
income tax issues that might (i) be relevant to holders of
shares of ZILA stock, or (ii) relate to the Merger. This
discussion is for general information purposes only and does not
constitute legal advice. This discussion does not describe the
federal estate, federal gift, state, local, or foreign tax
consequences associated with the matters addressed herein.
The following discussion is based on the Internal Revenue Code
of 1986, as amended (the Code), existing Treasury
Department regulations (the Treasury Regulations),
and administrative rulings and judicial decisions interpreting
the Code as in effect at the time this Proxy Statement was
drafted. All of these authorities may change without notice,
possibly affecting the tax consequences discussed herein on a
retroactive basis.
This discussion is limited to holders of shares of ZILA stock
who hold such shares of stock as capital assets
within the meaning of Code § 1221. This discussion
does not describe the U.S. federal income tax issues that
may be relevant to a holder of shares of ZILA stock in light of
such holders particular circumstances or to holders
subject to special rules such as dealers or traders in
securities or currencies; persons holding shares of stock as
part of a straddle, hedge, wash
sale, synthetic security,
conversion, or similar integrated transaction;
banks; insurance companies; financial institutions;
organizations generally exempt from U.S. federal income
taxation under Code § 501(a) or Code § 401;
partnerships; trusts; estates; custodians, nominees, or similar
financial intermediaries holding stock for others; persons
subject to the alternative minimum tax; or former citizens or
former residents of the U.S. (
i.e.
, expatriates).
This discussion does not describe the U.S. federal income
tax issues that may be relevant to a holder of warrants, stock
options or restricted stock, or receipt of Merger consideration
in connection with the Merger by any such holder. In addition,
with respect to
Non-U.S. Holders
(defined below), this discussion only generally addresses
certain U.S. federal income tax issues that may be relevant
to such
Non-U.S. Holder
with respect to the Merger. This discussion does not discuss the
application of any tax treaties or conventions, the terms of
which may benefit a
Non-U.S. Holder,
nor does this discussion describe the U.S. federal
38
income tax issues that may be relevant to a
Non-U.S. Holder
that is either (i) a controlled foreign
corporation under Code § 957(a), or (ii) a
passive foreign investment company under Code
§ 1297(a). Holders of ZILA stock, such as the ones
described in this paragraph, should consult their tax advisors
regarding the U.S. federal income tax consequences of the
Merger.
If an entity that is classified as a partnership for
U.S. federal income tax purposes holds shares of ZILA
stock, then the U.S. federal income tax consequences to
such partnership and its partners generally will depend on the
activities of the partnership and the status of each of its
partners. Partners of entities that are classified as
partnerships for U.S. federal income tax purposes should
consult their tax advisors regarding the U.S. federal
income tax consequences of the Merger.
ZILA has not and does not intend to obtain an opinion from
counsel with respect to this discussion of certain material
U.S. federal income tax considerations. In addition, no
rulings have been or will be requested from the Internal Revenue
Service (IRS) with respect to the matters discussed
herein. Therefore, there can be no assurances that the IRS or
any other governmental agency or taxing jurisdiction will agree
with the statements set forth below.
Holders of shares of ZILA stock should consult with their own
respective tax advisors concerning their situations and the
impact which the Merger may have on their U.S. federal
income tax liability as well as how state, local, and foreign
income and other tax laws, including the tax laws of any foreign
taxing jurisdiction and any applicable tax treaty, may apply to
them. In evaluating the Merger, each holder of shares of ZILA
stock should take into account the cost of obtaining such advice.
U.S.
Holders
As used herein, the term U.S. Holder means a
beneficial owner of shares of ZILA stock that is, for
U.S. federal income tax purposes: (i) an individual
citizen or resident of the U.S. (as defined in Treasury
Regulations § 301.7701(b)-1), (ii) a corporation
or any other entity created or organized in or under the laws of
the U.S. or any of its political subdivisions, or
(iii) an estate or trust, the income of which is subject to
U.S. federal income taxation regardless of the source of
such income.
Exchange
of Shares for Cash Pursuant to the Merger Agreement
In general, the U.S. federal income tax consequences of the
Merger, specifically the exchange of shares of ZILA stock for
cash pursuant to the Merger Agreement, will be a taxable
transaction for U.S. federal income tax purposes. In
general, a holder of shares of ZILA stock whose shares are
converted into the right to receive cash in the Merger will
recognize gain or loss for U.S. federal income tax purposes
equal to the difference, if any, between (i) the amount of
cash received with respect to such shares, and (ii) the
stockholders adjusted tax basis in such shares. In
general, gain or loss is determined separately for each
holders block of shares (
i.e.
, shares acquired at
the same cost in a single transaction). ZILA anticipates that
gain or loss recognized by a U.S. Holder upon consummation
of the Merger will be capital gain or loss for U.S. federal
income tax purposes. Whether such capital gain will be long-term
or short-term will depend on such U.S. Holders
particular facts and circumstances. In general, gain or loss is
long-term if the shares disposed of have been held for more than
twelve (12) months at the time of the consummation of the
Merger. In general, long-term capital gains of U.S. Holders
who are individuals are eligible for reduced rates of taxation.
In general, there are limitations to the deductibility of
capital losses.
Information
Reporting and Backup Withholding
In general, unless an exemption applies, information reporting
requirements will apply to certain non-corporate
U.S. Holders of shares of ZILA stock with respect to
payments to such U.S. Holders pursuant to the Merger
Agreement.
39
In addition, under the backup withholding laws applicable to
certain non-corporate U.S. Holders, withholding at a rate
of twenty eight percent (28%) may be required on the amount of
any payments made to such U.S. Holder pursuant to the
Merger Agreement. Backup withholding generally applies if the
U.S. Holder:
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fails to furnish his or her Social Security or other taxpayer
identification number within a reasonable time after the request
for it;
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furnishes an incorrect taxpayer identification number;
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is notified by the IRS that he or she has failed to properly
report interest, dividends, or original issue discount; or
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fails, under specified circumstances, to provide a certified
statement (
e.g.
, IRS
Form W-9
or its equivalent), signed under penalties of perjury, that the
taxpayer identification number provided is the correct number
and that he or she is not subject to backup withholding.
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In addition, if a U.S. Holder does not provide correct
information then, in addition to subjecting payments to such
holder to backup withholding, such holder may also be subject to
penalties imposed by the IRS.
To prevent backup withholding, a U.S. Holder should
complete, sign and return to the paying agent a certification on
the Substitute
Form W-9
that such U.S. Holder will receive with the letter of
transmittal following the Merger. Backup withholding is not an
additional tax and any amounts withheld under the backup
withholding rules may be refunded or credited against a
U.S. Holders U.S. federal income tax liability,
if any, provided that such U.S. Holder furnishes the
required information to the IRS in a timely manner.
Non-U.S.
Holders
As used herein, the term
Non-U.S. Holder
means a beneficial owner of shares of ZILA stock that is, for
U.S. federal income tax purposes, not a U.S. Holder
(as such term is defined above).
Exchange
of Shares for Cash Pursuant to the Merger Agreement
A
Non-U.S. Holder
of shares of ZILA stock generally will not be subject to
U.S. withholding tax in respect of any gain on the taxable
disposition of shares of ZILA stock pursuant to the Merger so
long as:
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in the case of a
Non-U.S. Holder
that is an individual, such
Non-U.S. Holder
is not present in the U.S. for 183 days or more in the
taxable year of the Merger (and certain other conditions are
met);
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the gain is not effectively connected with a trade or business
carried on by the
Non-U.S. Holder
within the U.S. (and, if a tax treaty applies, the gain is
not attributable to a U.S. permanent establishment
maintained by such
Non-U.S. Holder); and
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ZILA is not and has not been a U.S. real property
holding corporation (a USRPHC) for
U.S. federal income tax purposes at any time during the
five (5)-year period preceding such sale, exchange or other
taxable disposition (the applicable testing period).
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Gain realized by a
Non-U.S. Holder
that is effectively connected with such
Non-U.S. Holders
conduct of a U.S. trade or business (or U.S. permanent
establishment if a tax treaty applies) generally will be subject
to U.S. federal income tax on a net basis, and at graduated
rates, in substantially the same manner as a U.S. Holder
(except as otherwise provided by an applicable tax treaty).
Additionally, in such a case, if, for U.S. federal income
tax purposes, such
Non-U.S. Holder
is a corporation, then such
Non-U.S. Holder
may also be subject to a branch profits tax at a thirty percent
(30%) rate (or such lower rate as may be specified by an
applicable tax treaty).
Generally, a corporation such as ZILA, would constitute a USRPHC
if, during the applicable testing period, the fair market value
of its U.S. real property interests equals or exceeds fifty
percent (50%) of the sum of the fair market value of its
worldwide real property interests and its other assets used or
held for use in a trade or business. ZILA does not believe that
it is or has been, during the applicable testing period, a
USRPHC nor does ZILA anticipate becoming one.
40
Information
Reporting and Backup Withholding
In general, payments of proceeds on the disposition of shares of
ZILA stock made to a
Non-U.S. Holder
may be subject to information reporting. Pursuant to tax
treaties or other similar agreements, the IRS may make such
information available to tax authorities in a
Non-U.S. Holders
country of residence.
In addition, payments of proceeds on the disposition of shares
of ZILA stock made to a
Non-U.S. Holder
may be subject to backup withholding unless (i) the
Non-U.S. Holder
establishes an exemption, for example, by properly certifying
under penalties of perjury its
non-U.S. status
on an IRS
Form W-8BEN
or other appropriate version of IRS
Form W-8
(
e.g.
, IRS
Form W-8IMY),
and (ii) the payor does not have actual knowledge or reason
to know that such holder is a U.S. person, as such term is
defined in the Code and the Treasury Regulations, or
U.S. Holder.
To prevent backup withholding, each
Non-U.S. Holder
should complete, sign (under penalties of perjury) and return to
the paying agent a certification of foreign status on the
applicable IRS
Form W-8,
unless an applicable exemption exists and is provided in a
timely and satisfactory manner. Backup withholding is not an
additional tax and any amounts withheld under the backup
withholding rules may be refunded or credited against a
Non-U.S. Holders
U.S. federal income tax liability, if any, provided that
such
Non-U.S. Holder
furnishes the required information to the IRS in a timely manner.
Appraisal
Rights
U.S. Holders and
Non-U.S. Holders
considering the exercise of their appraisal rights should
consult their own tax advisors concerning the application of the
U.S. federal income tax laws to their particular situation,
as well as any consequences of the exercise of such rights
arising under the laws of any other taxing jurisdiction.
Possible
Changes in U.S. Federal Tax Laws
The Code is subject to change by Congress, and interpretations
of the Code may be modified or affected by (i) judicial
decisions, (ii) the Treasury Department, through changes in
Treasury Regulations, and (iii) the IRS, through its audit
policy, announcements, and published and private rulings.
Significant tax law changes affecting holders of shares of ZILA
stock or the Merger may be enacted by Congress. Although
significant changes historically have been given prospective
application, no assurance can be given that any changes made in
the tax law affecting holders of shares of ZILA stock or the
Merger would be limited to prospective effect. Accordingly, the
ultimate effect on a holders tax situation may be governed
by laws, regulations or interpretations of laws or regulations
which have not yet been proposed, passed or made, as the case
may be.
Importance
of Obtaining Professional Advice
No rulings have been or will be requested from the IRS and no
opinions from counsel have been or will be obtained with respect
to any of the U.S. federal income tax matters discussed in
this Proxy Statement. No assurances can be given that the IRS
will agree with the above discussion of certain material
U.S. federal income tax considerations. The foregoing is
not intended to be a substitute for careful tax planning.
Accordingly, each holder of shares of ZILA stock should consult
with and rely on such holders own advisors with respect to
the possible tax consequences of the Merger.
Regulatory
Approvals and Requirements
We believe that we are not required to make any filings or
obtain any governmental consents or approvals prior to the
completion of the Merger.
TOLMAR
Purchase of Senior Secured Notes
Pursuant to the Senior Note Purchase Agreement, TOLMAR, Inc., an
affiliate of TOLMAR, agreed to purchase for $5,000,000 in cash
(which amount was subsequently increased to $6,500,000 in
connection with the execution of the Side Letter referenced
below) all of the Senior Secured Notes, which are currently
outstanding in the aggregate principal amount of $12,000,001,
are currently convertible into up to 678,123 shares of our
common
41
stock, and have a stated maturity date of July 31, 2010.
The Senior Note Purchase Agreement provided, among other things,
that:
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until the closing or earlier termination of the agreement (the
closing occurred on July 27, 2009), the Original
Noteholders were prohibited from:
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soliciting, making, initiating or encouraging the submission of
an Alternative Acquisition Proposal (which is
defined to include a proposal involving the acquisition,
purchase, prepayment, redemption, exchange, refunding,
refinancing, replacement, swap, pledge or other similar
transaction involving the Senior Secured Notes);
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participating in any discussions or negotiations regarding any
Alternative Acquisition Proposal;
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furnishing information with respect to an Alternative
Acquisition Proposal to any person other than TOLMAR, Inc.;
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entering into a letter of intent, memorandum of understanding or
contract contemplating an Alternative Acquisition
Proposal; or
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assisting or participating in, or facilitation in another
manner, an effort or attempt by any person to do or seek any of
the foregoing;
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without TOLMAR, Inc.s prior written consent, the holders
of the Senior Secured Notes were prohibited (except in certain
limited circumstances relating to ZILAs bankruptcy or
insolvency) from exercising certain rights and remedies
available to them under the terms of the Senior Secured
Notes; and
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the Original Noteholders were obligated to vote all shares of
ZILA common stock held by them in favor of adopting the Merger
Agreement and approving the Merger and against any Alternative
Acquisition Proposal relating to ZILA.
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TOLMAR, Inc.s obligation to purchase the Senior Secured
Notes was conditioned upon certain things and events, including
(i) the condition that the Merger be completed and
(ii) the condition that no suit or proceeding shall be
pending before any court, administrative agency or arbitrator
wherein an unfavorable judgment would prevent consummation (or
cause rescission of the consummation) of any of the transactions
contemplated by the Senior Note Purchase Agreement. That the
condition above be satisfied was, in turn, a condition in the
Merger Agreement that would have been required to be satisfied
in order for TOLMAR to be required to consummate the Merger.
Even though TOLMAR, Inc.s obligation to purchase the
Senior Secured Notes was conditioned upon the completion of the
Merger, TOLMAR, Inc. was entitled under the terms of the Senior
Note Purchase Agreement to waive that condition and purchase the
Senior Secured Notes regardless of whether the Merger was
consummated. The Senior Note Purchase Agreement was terminable
by either or both of the parties under certain circumstances,
including mutual written consent.
On July 27, 2009, TOLMAR completed its purchase from the
Original Noteholders of the Senior Secured Notes for $6,500,000
in cash, pursuant to the Senior Note Purchase Agreement and a
Side Letter with the Original Noteholders, dated as of
July 27, 2009. TOLMAR also acquired 435,084 shares of
common stock previously owned by the Original Noteholders. Such
shares represented 4.2% of our outstanding common stock as of
the record date. Other than in connection with their holdings of
our securities, the Original Noteholders were not affiliated
with ZILA, and to our knowledge, the Original Noteholders were
and are not affiliated with TOLMAR (except by virtue of the
Senior Note Purchase Agreement).
Following TOLMARs purchase of the Senior Secured Notes,
TOLMAR, ZILA, and certain of ZILAs subsidiaries entered
into the Forbearance Agreement, pursuant to which TOLMAR agreed
to forbear, for a certain period of time and subject to certain
conditions, from exercising its rights under the Senior Secured
Notes to accelerate the payment of all or part of the
outstanding principal amount of the Senior Secured Notes and
accrued and unpaid interest (the aggregate amount of which was
$1,104,666.84 as of July 28, 2009) as a result of
(i) ZILAs past failure to make the payments (due and
payable on January 31, 2009 and April 30, 2009,
respectively) of accrued and unpaid interest on the principal
amount of the Senior Secured Notes and (ii) ZILAs
anticipated failure to make the payments (due and payable on
July 31, 2009 and October 31, 2009) of accrued
and unpaid interest then due and
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payable on the principal amount of the Senior Secured Notes.
Since the execution of the Forbearance Agreement, ZILA failed to
make the interest payment due under the Senior Secured Notes on
July 31, 2009.
Under the terms of the Forbearance Agreement, if the Merger
Agreement is terminated prior to the completion of the Merger,
TOLMARs forbearance period would end. If that occurs,
there can be no assurance that TOLMAR will continue to forbear
from exercising its rights under the Senior Secured Notes.
Moreover, the terms of the Senior Secured Notes provide in some
cases that the holder thereof may redeem the notes for 110% of
the aggregate principal amount at maturity (i.e., $13,200,000)
in the event of certain change of control transactions with
respect to ZILA (e.g. a merger in which ZILA is not the survivor
or a sale of substantially all of ZILAs assets). In other
words, if the Merger Agreement with TOLMAR is terminated and
ZILA completes a change of control transaction with a third
party, TOLMAR may have the right (in addition to its other
rights under the Senior Secured Notes, and to the
termination-related payments discussed in this proxy statement)
to immediately demand payment in the amount of $13,200,000.
These facts may deter third parties from making competing
proposals to acquire us, unless such third parties are willing
to acquire ZILA subject to (and with the expectation of
satisfying in full) the debt obligation evidenced by the Senior
Secured Notes.
Certain
Litigation Relating to the Merger
Background
of Litigation
As described in the Background of the Merger section
of this proxy statement beginning at page 22, Intelident
was among several parties that expressed an interest in entering
into a strategic transaction with ZILA. To facilitate
discussions between ZILA and Intelident regarding such a
transaction possibility, the parties entered into the Intelident
NDA. Subsequently, and up until minutes before ZILA executed the
Merger Agreement, Intelident indicated that it was only
interested in acquiring us through a Section 363 sale under
Chapter 11 of the Federal Bankruptcy Code, which would
likely result in little or no consideration being paid to
ZILAs stockholders. As such, and based on other factors
considered by it, our Board determined that the Merger would
provide the highest reasonably possible value to our
stockholders in connection with a change of control transaction.
After we filed a
Form 8-K
with the SEC announcing the proposed merger and disclosing the
terms of the Merger Agreement, Intelident made a non-binding
offer to acquire ZILA on July 1, 2009. On July 7,
2009, Intelident submitted a revised proposal to acquire ZILA,
which it publicly announced by filing a press release in spite
of its confidentiality obligations under the Intelident NDA.
Intelidents proposed merger consideration was $0.42 per
share of common stock and $0.48 per share of preferred stock,
but the offer was expressly contingent upon Intelidents
ability to acquire the Senior Secured Notes on terms
substantially similar to those set forth in the Senior Note
Purchase Agreement.
Because TOLMAR was entitled under the Senior Note Purchase
Agreement to purchase the Senior Secured Notes regardless of
whether the Merger was consummated (and did so on July 27,
2009), and because Intelident made no indication as to how it
expected to fulfill that condition to its proposal, our Board
determined on July 10, 2009 that Intelidents offer
was not a Superior Proposal (as defined under the
Merger Agreement) and could not be reasonably expected to lead
to a Superior Proposal. In determining that Intelidents
proposal was not superior to the Merger Agreement, our Board
also noted the possibility that Intelident was attempting to
delay its Merger with TOLMAR to force ZILA into the type of
bankruptcy situation that Intelident had expressed interest in
earlier in its discussions with our management.
Intelident
Solutions, Inc. v. Zila, Inc. et al.
On July 14, 2009, Intelident filed a Complaint and the
Motion to Expedite in the Chancery Court against ZILA, TOLMAR,
Acquisition Sub, and the members of our Board. In the Complaint,
Intelident alleged that ZILA and TOLMAR had entered into
unlawful contract provisions (in the Merger Agreement and Senior
Note Purchase Agreement) that prevented ZILAs directors
from properly exercising their fiduciary duties to ensure that
our
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stockholders receive the highest possible value resulting from a
change of control of ZILA. Specifically, Intelident alleged that:
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the members of our Board breached their fiduciary duties by
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agreeing to cause ZILA to enter into the Merger Agreement, which
(when combined with the terms of the Senior Note Purchase
Agreement) unreasonably preclude ZILA from entering into an
agreement to be acquired by a party other than TOLMAR;
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concluding that Intelidents proposal was not superior to
the proposed Merger; and
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withholding their consent to allow Intelident to take certain
actions prohibited under the Intelident NDA, including
Intelidents ability to issue press releases regarding or
to solicit ZILAs stockholders to support its proposal;
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TOLMAR and Acquisition Sub aided and abetted in the breaches of
fiduciary duty described above;
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ZILA and Mr. Bethune fraudulently induced Intelident to
enter into the Intelident NDA by falsely representing that
Intelident could negotiate a purchase of the Senior Secured
Notes from the Original Noteholders; and
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ZILA and the members of our Board breached the covenant of good
faith and fair dealing by refusing to grant Intelidents
request to be released from certain provisions set forth in the
Intelident NDA.
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In the Complaint, Intelident sought, among other things,
preliminary and permanent injunctive relief enjoining ZILA and
TOLMAR from taking further actions under the Senior Note
Purchase Agreement, the Merger Agreement and the Intelident NDA,
including the consummation of the Merger. Intelident also sought
to be excused from certain of its obligations under the
Intelident NDA.
Although the issue was not raised as a count in the Complaint,
Intelident also alleged that the proposed Merger implicated
Section 203 of the DGCL, which restricts the ability of
Delaware corporations, such as ZILA, from engaging in
business combinations with interested
stockholders for a period of three years following the
transaction that resulted in the stockholder becoming an
interested stockholder unless specified conditions are met. For
example, such a business combination could proceed prior to the
expiration of the three-year waiting period if it were to be
approved by holders of at least
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2
/
3
%
of the outstanding shares of the corporations voting stock
not owned by the interested stockholder. Intelident suggested
that the Original Noteholders agreement in the Senior Note
Purchase Agreement to vote their shares in favor of the Merger
made TOLMAR an interested stockholder and required that
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2
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3
%
of ZILAs non-interested stockholders approve the proposed
Merger.
Under Delaware law, the term interested stockholder
means any person that owns 15% or more of the outstanding voting
stock of a corporation, and certain of such persons
affiliates. If a person has a binding voting agreement (i.e.,
more than a revocable proxy) with respect to shares of a
corporations stock, the person is deemed to own those
shares for purposes of the 15% calculation.
Section 203 of the DGCL does not apply to the Merger
because TOLMAR is not presently, and was not at any time prior
to the time the Board approved the Merger Agreement, an
interested stockholder of ZILA. While the Senior
Note Purchase Agreement included an agreement by the Original
Noteholders to vote their issued and outstanding shares of our
common stock in favor of adopting the Merger Agreement and
approving the Merger, those shares did not cause TOLMAR to be
deemed the owner of 15% or more of our outstanding voting stock.
As of May 11, 2009, the date that TOLMAR, Inc. entered into
the Senior Note Purchase Agreement, neither TOLMAR nor TOLMAR,
Inc. owned any shares of our common stock. As of such date, the
Original Noteholders owned of record 1,206,850 shares of
our common stock, representing approximately 11.5% of our
outstanding common stock. As to the shares issuable to the
Original Noteholders upon conversion of the Senior Secured
Notes, even if such shares were attributed to TOLMAR for
purposes of Section 203 of the DGCL as a result of the
contingent ability of TOLMAR to acquire the Senior Secured Notes
per the Senior Note Purchase Agreement and then to convert such
notes, such shares would not have caused TOLMAR to be deemed an
interested stockholder because, per the terms of the
Senior Note Purchase Agreement, pending the closing of the
acquisition of the Senior Secured Notes, the Original
Noteholders were prohibited from converting into any shares of
our common stock,
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and, in any event, per the terms of the Senior Secured Notes
themselves, the number of shares issuable to any holder upon
conversion is capped, by a non-waivable provision of such notes,
to the extent necessary to ensure that the total number of
shares beneficially owned by such holder and its affiliates does
not exceed 9.999% of our outstanding common stock. Further, per
the terms of the Senior Note Purchase Agreement, the voting
provisions of such agreement were to terminate (and did
terminate) at the time TOLMAR, Inc. (or its assignee) acquired
the Senior Secured Notes. Accordingly, TOLMAR was not and is not
an interested stockholder of ZILA, and
Section 203 of the DGCL (including the supermajority vote
requirement contained therein) is not implicated by the Merger.
Procedural
Posture; Current Status; Potential Impact on
Merger
On July 16, 2009, ZILA and TOLMAR submitted their
opposition to Intelidents Motion to Expedite to the
Chancery Court. ZILA and TOLMAR argued, among other things, that
Intelident lacked standing to challenge the Senior Note Purchase
Agreement
and/or
the
Merger Agreement because it did not own any shares of ZILA
common stock when those agreements were entered into. We (and
members of our Board) also denied Intelidents allegations
of breaches of fiduciary duties and other unlawful conduct.
On the same day, the Chancery Court denied Intelidents
Motion to Expedite and ruled that Intelident lacked standing to
seek an injunction with respect to the Senior Note Purchase
Agreement
and/or
the
Merger Agreement. The Chancery Court allowed Intelident to file
an amended motion on its claim with respect to the Intelident
NDA. On July 20, 2009, Intelident filed the Amended
Motions, seeking, among other things, to enjoin ZILA from
enforcing certain provisions of the Intelident NDA. ZILA and
TOLMAR filed their oppositions to the Amended Motions on
July 21, 2009 with the Chancery Court. ZILA and TOLMAR
subsequently filed separate Motions to Dismiss.
On August 4, 2009, and without our prior knowledge,
Intelident filed a Notice of Voluntary Dismissal with the
Chancery Court, pursuant to which Intelident voluntarily
dismissed its Complaint without prejudice. On the same day,
Intelidents counsel sent our counsel an
e-mail
message indicating that (i) Intelident did not wish to have
further discussions regarding a potential transaction with ZILA
and (ii) Intelident intended to discontinue its litigation
proceedings against us. Accordingly, ZILA does not believe that
the litigation described above presents a material risk that we
will not be able to consummate the Merger within the timeframe
contemplated in this proxy statement.
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THE
MERGER AGREEMENT
This section of the proxy statement describes the material
provisions of the Merger Agreement but does not purport to
describe all of the terms of the Merger Agreement. A copy of the
Agreement and Plan of Merger is attached to this proxy statement
as Annex A, and a copy of the First Amendment to Agreement
and Plan of Merger is attached as Annex B. We urge you to read
the full text of the Merger Agreement (as amended) because it is
the legal document that governs the Merger. It is not intended
to provide you with any other factual information about us. Such
information can be found elsewhere in this proxy statement and
in the public filings we make with the SEC, as described in
Where You Can Find More Information beginning on
page 61.
Structure
of the Merger
The Merger Agreement provides for the Merger of Acquisition Sub
with and into ZILA upon the terms, and subject to the
conditions, of the Merger Agreement. As the surviving
corporation (the Surviving Corporation), ZILA will
continue to exist following the Merger as a wholly-owned
subsidiary of TOLMAR. Upon consummation of the Merger, the
directors and officers of Acquisition Sub will be the initial
directors and officers of the Surviving Corporation.
Effective
Time
The Merger will be effective at the time the certificate of
merger is filed with the Secretary of State of the State of
Delaware (or at a later time, if agreed upon by the parties and
specified in the certificate of merger). We expect to complete
the Merger as promptly as practicable after our stockholders
adopt the Merger Agreement and approve the Merger.
Merger
Consideration
Each share of our common stock issued and outstanding
immediately prior to the effective time of the Merger will be
converted into the right to receive $0.45 in cash, and each
share of Series B Preferred issued and outstanding
immediately prior to the effective time of the Merger will be
converted into the right to receive $0.50 in cash, in each case
without interest and less any applicable withholding taxes,
other than the following shares:
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shares held by a stockholder who is entitled to demand and has
made a demand for payment of such shares in accordance with
Section 262 of the DGCL and has not voted in favor of
adoption of the Merger agreement, until such time as such holder
fails to perfect or otherwise loses such holders appraisal
rights under Section 262 of the DGCL;
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shares owned by ZILA as treasury stock immediately prior to the
effective time of the Merger, which will be cancelled without
any payment;
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shares owned by TOLMAR or Acquisition Sub immediately prior to
the effective time of the Merger, which will be cancelled
without any payment; and
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shares owned by any direct or indirect wholly-owned subsidiary
of ZILA, which shall remain outstanding.
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The per share merger consideration is subject to equitable
adjustment in the event of any stock split, stock dividend,
reverse stock split or other change in the number of outstanding
shares of our capital stock (or securities convertible or
exchangeable into, or exercisable for, shares of our capital
stock) between the date of the Merger Agreement and the
effective time of the Merger.
After the Merger is effective, each holder of a certificate
representing any shares of common sock or Series B
Preferred (other than shares for which appraisal rights have
been properly and validly perfected) will no longer have any
rights with respect to the shares, except for the right to
receive the merger consideration. See Dissenters
Rights of Appraisal beginning on page 58.
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Treatment
of Warrants, Options and Restricted Stock
Warrants.
By virtue of the Merger, our
outstanding warrants with an exercise price of $15.54 per share
will automatically become rights to receive the Common Stock
Merger Consideration in exchange for payment of their exercise
price. At the time the Merger Agreement was entered into, we had
outstanding other warrants (with an exercise price of $14.63 per
share) and we had agreed to attempt to cancel such warrants
prior to the closing of the Merger; all of such warrants have
been cancelled as of the date of this proxy statement.
Stock Options.
Immediately prior to the
effective time of the Merger, all outstanding options to
purchase common stock under our equity incentive plans, will
become immediately vested and exercisable in full. At the
effective time, each then outstanding option will, by virtue of
the Merger, be converted into and will become a right to receive
an amount in cash, without interest and less any applicable
withholding taxes, with respect to each share subject thereto,
equal to the excess, if any, of the Common Stock Merger
Consideration over the per share exercise price of such option,
and each such option will terminate at the effective time. Only
50,000 stock options have an exercise price less than the Common
Stock Merger Consideration and thus will receive any payment in
connection with the Merger.
Restricted Stock.
At the effective time and by
virtue of the Merger, the restrictions on the restricted stock
issued and outstanding immediately before the effective time
will lapse, and such restricted stock shall be treated as common
stock for purposes of receiving the merger consideration.
Payment
for the Shares of Stock; Procedure for Receiving Merger
Consideration
Immediately following the effective time of the Merger, TOLMAR
will deposit, or cause to be deposited, with Computershare
Trust Company, ZILAs transfer agent and the paying
agent for the Merger, an amount of cash sufficient for the
paying agent to make full payment of the merger consideration to
the record holders of ZILA common stock and Series B
Preferred issued and outstanding immediately before the
effective time (other than certain excluded shares identified in
the section entitled Merger Consideration, which
begins on page 46 of this proxy statement).
Immediately following the effective time of the Merger, TOLMAR
will cause the paying agent to mail to you a letter of
transmittal and instructions advising you how to surrender your
certificates in exchange for the merger consideration. The
paying agent will pay you your merger consideration after you
have (i) surrendered your certificates to the paying agent
and (ii) provided to the paying agent your signed letter of
transmittal and any other items specified by the letter of
transmittal. Interest will not be paid or accrued in respect of
the merger consideration. The paying agent may reduce the amount
of any merger consideration paid to you by any applicable
withholding taxes.
YOU SHOULD NOT FORWARD YOUR STOCK
CERTIFICATES TO THE PAYING AGENT WITHOUT A LETTER OF
TRANSMITTAL, AND YOU SHOULD NOT RETURN YOUR STOCK CERTIFICATES
WITH THE ENCLOSED PROXY
.
Any portion of the funds deposited with the paying agent that
remain undistributed to holders of common stock and
Series B Preferred for 180 days after the effective
time will be delivered to the Surviving Corporation, together
with interest and other income received by the paying agent.
Holders of common stock and Series B Preferred who at that
time have not yet complied with the exchange procedures outlined
above shall thereafter look only to the Surviving Corporation,
as general creditors of the Surviving Corporation, for delivery
of any merger consideration, without interest and less any
applicable withholding taxes, that may be payable upon due
surrender of their respective share certificates.
If the paying agent is to pay some or all of your merger
consideration to a person other than you, as the registered
owner of a stock certificate, you must have your certificates
properly endorsed and otherwise in proper form for transfer, and
you must pay any transfer or other taxes payable by reason of
the transfer or establish to the satisfaction of TOLMAR (or any
agent designated by TOLMAR) that the taxes have been paid or are
not required to be paid.
The transmittal instructions will tell you what to do if you
have lost your certificate, or if it has been stolen or
destroyed. You will have to provide an affidavit to that fact
and, if required by the Surviving Corporation, post a bond in an
amount that the Surviving Corporation reasonably directs as
indemnity against any claim that may be
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made against TOLMAR, the Surviving Corporation or the paying
agent with respect to the lost, stolen or destroyed certificate.
Representations
and Warranties
The Merger Agreement contains representations and warranties
made by us to TOLMAR and Acquisition Sub and representations and
warranties made by TOLMAR and Acquisition Sub to us. Some of
those representations and warranties may not be accurate or
complete as of any particular date because they are subject to a
contractual standard of materiality or material adverse effect
different from that generally applicable to public disclosures
to stockholders or used for the purpose of allocating risk
between the parties to the Merger Agreement rather than
establishing matters of fact. For the foregoing reasons, you
should not rely on the representations and warranties contained
in the Merger Agreement as statements of factual information.
In the Merger Agreement, ZILA made representations and
warranties relating to:
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our due organization, valid existence, good standing and power
and authority to carry on the business of ZILA and its
subsidiaries, as well as our compliance with our charter
documents;
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our capitalization;
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our power and authority to execute and deliver, and to perform
our obligations under, the Merger Agreement, and to consummate
the Merger, as well as the enforceability of the Merger
Agreement against us;
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the standard and threshold for our stockholders to adopt the
Merger Agreement;
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the absence of conflicts with or defaults under our
organizational documents, other contracts and applicable laws;
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any requirements for us to obtain third-party consents in
connection with the Merger;
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the nature of our SEC filings and the financial statements
contained therein, as well as the absence of certain liabilities;
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the absence of any material adverse change with respect to us
and certain other changes and events since January 31,
2009, as well as our maintenance of certain levels of working
capital and available cash;
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the absence of legal proceedings affecting ZILA;
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the absence of any brokers or finders fees payable
by us in connection with the Merger;
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the intellectual property used, owned or licensed by us
and/or
our
subsidiaries;
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our good title to, and use of, our properties and assets;
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our leases;
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our material contracts and the absence of any breach or
violation of, or default under, any such material contract;
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our compliance with all laws and governmental permits;
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tax matters affecting us;
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our employee benefit plans;
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labor matters affecting us;
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environmental matters affecting us;
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our insurance policies;
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required regulatory filings and consents and approvals of
governmental entities;
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the absence of material claims with respect to our product
warranties;
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the absence of certain interested party transactions; and
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the inapplicability of Delaware and Arizona anti-takeover
statutes.
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In the Merger Agreement, TOLMAR and Acquisition Sub made
representations and warranties relating to:
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their due organization, valid existence, good standing and power
and authority to carry on their business;
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their power and authority to execute and deliver, and to perform
their obligations under, the Merger Agreement, and to consummate
the Merger, as well as the enforceability of the Merger
Agreement against TOLMAR;
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the absence of conflicts with or defaults under their
organizational documents, other contracts and applicable laws;
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the absence of any brokers or finders fees payable
by them in connection with the Merger;
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the accuracy and completeness of information that TOLMAR and
Acquisition Sub have supplied for use in this proxy statement;
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the fact that neither TOLMAR nor Acquisition Sub is an
interested stockholder of ZILA, as such term is used
in the Delaware anti-takeover statute;
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the fact that TOLMAR has sufficient funds to consummate the
Merger; and
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there being no other representations or warranties other than as
set forth in the Merger Agreement.
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Covenants
Under the Merger Agreement, ZILA, TOLMAR and Acquisition Sub
agreed to the following with respect to the period from and
after the execution of the Merger Agreement:
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all parties agreed to take all actions necessary to consummate
the transactions contemplated by the Merger Agreement;
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ZILA agreed to give all required notices to third parties and
use its best efforts to obtain any third-party consents;
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all parties agreed to give notices to, make filings with and use
best efforts to obtain any authorizations, consents and
approvals of any governmental entity;
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ZILA agreed to file this proxy statement with the SEC as soon as
practicable after the execution of the Merger Agreement;
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ZILA agreed to call a special meeting of its stockholders (to be
held as soon as practicable) in order to consider and vote on
the adoption of the Merger Agreement;
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ZILA agreed to (i) carry on its business in the ordinary
course of business, (ii) take all actions necessary in
order to timely pay all of its obligations, (iii) notify
TOLMAR of any receipt of any notice of default of a material
contract, (iv) use its reasonable best efforts to preserve
its present business organization, keep available the services
of its officers and key employees, preserve its assets and
properties and relationships with its customers, suppliers,
distributors, licensors, licensees and others with which it has
significant business dealings and (v) take all actions
necessary to ensure the representations and warranties are true
and correct;
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ZILA agreed to not, and to not permit of any its subsidiaries to
do the following without the prior written consent of TOLMAR:
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authorize or effect any change to ZILAs (or any
subsidiarys) certificate of incorporation, bylaws or
similar governing instruments;
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grant any options, warrants or other rights to acquire any
shares of ZILAs (or any subsidiarys) stock;
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issue, sell or otherwise dispose of any of ZILAs (or any
subsidiarys) stock;
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declare or pay any dividend or make any other distribution with
respect to our capital stock, or redeem any of our capital stock;
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issue any note, bond or other debt security or create, incur,
assume or guarantee any indebtedness for borrowed money or
capitalized lease obligation;
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impose any lien upon our assets outside the ordinary course of
business;
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make any capital investment in, make any loan to or acquire the
securities or assets of any other person or entity, if doing so
would be outside the ordinary course of business or would
involve amounts in excess of $100,000;
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enter into, adopt or amend any bonus, profit sharing,
compensation, severance, termination, change of control, option,
restricted stock, stock appreciation right, phantom stock,
performance units, stock equivalent, share purchase agreement,
pension, retirement, deferred compensation, employment,
severance or other employee benefit agreement trust, plan, fund,
policy or other arrangement of ZILA or any of its subsidiaries
related to the compensation, benefit or welfare of any current
or former director, independent contractor, officer or employee
in any manner, or increase in any manner the compensation or
fringe benefits of any current or former director, independent
contractor, officer or employee of ZILA or any of its
subsidiaries or pay any bonus, remuneration, or benefit to any
current or former director, independent contractor, officer or
employee not required by any plan or arrangement as in effect as
of the date of the Merger Agreement;
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sell, transfer, lease or license to any third party any material
assets of ZILA;
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enter into any contract outside the ordinary course of business,
enter into, amend or terminate any of our material contracts or
waive, release or assign any material rights or claims under any
of our material contracts;
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change our methods of account or accounting practices in any
material respect;
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revalue any of our assets;
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make or change any material tax election;
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make any capital expenditure other than the capital expenditures
contemplated in the Merger Agreement;
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settle or compromise any pending or threatened legal proceeding
or initiate any legal proceeding;
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propose or adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization; or
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take any action that would result in any of our representations
or warranties becoming untrue or incorrect.
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ZILA agreed to permit representatives of TOLMAR to have
reasonable access to all premises, properties, personnel, books,
records, contracts and documents of or pertaining to ZILA and
each of its subsidiaries;
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each party agreed to give prompt notice of any material adverse
development causing a breach of its own representations and
warranties;
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each party agreed to take all actions necessary to delist our
common stock from the NASDAQ Capital Market and to terminate
registration under the Exchange Act, such delisting and
deregistration to be effective after the effective time of the
Merger;
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ZILA agreed to establish appropriate reserves for the payment of
taxes due and payable by ZILA and its subsidiaries for the
period from January 31, 2009 through the effective time;
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the Surviving Corporation agreed to make offers of employment in
comparable positions to all of the employees of ZILA; and
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the Surviving Corporation agreed to recognize service completed
by the continuing employees while employed by ZILA or any of its
subsidiaries for purposes of (a) continuing eligibility for
participation and vesting in the Surviving Corporations
benefit plans, if applicable, and (b) calculating any
severance or vacation accrual benefits, if any, provided by the
Surviving Corporation to continuing employees after the
effective time.
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Restrictions
on Solicitations of Other Offers
The Merger Agreement requires us to immediately cease and
terminate any solicitation, encouragement, discussions or
negotiations with any third-party with respect to an Acquisition
Proposal (as defined below). The Merger Agreement prohibits us
from initiating, facilitating or encouraging any offers from a
third-party regarding an Acquisition Proposal, and it prohibits
us from engaging in discussions or negotiations, or actually
entering into an agreement, with a third-party regarding an
Acquisition Proposal.
Notwithstanding the forgoing prohibitions, if, prior to
obtaining the requisite stockholder approval required under the
terms of the Merger Agreement and following the receipt by ZILA
of a bona fide written Acquisition Proposal from any person, our
Board determines in good faith, after consultation with its
financial advisors and its outside legal counsel, that
(i) such Acquisition Proposal constitutes or would
reasonably be expected to lead to a Superior Proposal (as
defined below) and (ii) the failure to respond to such
Acquisition Proposal would be inconsistent with its fiduciary
duties, then ZILA may in response to such Acquisition Proposal
(A) furnish information with respect to ZILA to the person
who has made such Acquisition Proposal pursuant to a
confidentiality agreement and (B) participate in
discussions and negotiations regarding such Acquisition Proposal.
ZILA is required to, within three business days after receipt of
an Acquisition Proposal, advise TOLMAR orally and in writing of
the receipt of any Acquisition Proposal specifying the material
terms and conditions and the identity of the party making such
Acquisition Proposal and ZILA will provide to TOLMAR a copy of
all written materials provided to ZILA in connection with any
such Acquisition Proposal.
An Acquisition Proposal means any proposal or offer
from any person (other than TOLMAR, Acquisition Sub or any of
their respective affiliates) or group (as defined in Section
13(d) of the Exchange Act) relating to any direct or indirect
acquisition or purchase of 15% or more of the assets of ZILA and
its subsidiaries, taken as a whole, or 15% or more of the total
outstanding voting securities of ZILA or any of its subsidiaries
then outstanding, any tender offer, exchange offer or equity
issuance that if consummated would result in any person
beneficially owning 15% or more of the total outstanding voting
securities of ZILA or any of its subsidiaries then outstanding,
and any merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar
transaction involving ZILA, other than the transactions
contemplated by the Merger Agreement.
Superior Proposal means any bona fide written
Acquisition Proposal not solicited or initiated in violation of
the Merger Agreement that (a) relates to an acquisition by
a person or group (as defined in Section 13(d) of the
Exchange Act) of either (i) more than 50% of the voting
securities of ZILA pursuant to a tender offer, equity issuance,
merger or otherwise or (ii) more than 50% of the assets
used in the conduct of the business of ZILA,
(b) ZILAs Board determines in its good faith judgment
(after consultation with its financial advisors and, after
considering, among other things, the financial, legal and
regulatory aspects of such Acquisition Proposal) would, if
consummated, result in a transaction that is more favorable to
ZILAs stockholders from a financial point of view than the
transactions contemplated by the Merger Agreement, (c) the
potential acquirer has the financial wherewithal to consummate
without having to obtain new financing other than financing as
to which it has obtained binding commitments from reputable
sources and (d) ZILAs Board determines in good faith
(after consultation with its financial advisors and its outside
legal counsel) is reasonably capable of being consummated.
We are not entitled to enter into any agreement with respect to
a Superior Proposal unless the Merger Agreement has been or is
concurrently terminated in accordance with its terms and we have
concurrently paid to TOLMAR the $300,000 termination fee and up
to $200,000 in expenses as described in further detail in
Termination Fees and Expenses beginning on
page 54.
51
Indemnification
and Insurance for Directors and Officers
The Merger Agreement provides that for a period of
60 months after the effective time of the Merger, ZILA will
provide, at its sole expense, each individual who served as a
director or officer of ZILA at any time prior to the effective
time with liability insurance containing the same coverage and
in the same amount as ZILAs policies in effect immediately
prior to the effective time; provided, however
,
in the
event that the cost of liability insurance for such coverage
exceeds 150% of the annual cost of such insurance in effect
immediately before the effective time, ZILA may reduce the
coverage and amount of liability insurance only to the extent
necessary so that the annual cost of liability insurance does
not exceed 150% of the annual cost of the insurance in effect
immediately before the effective time.
In addition, for a period of 60 months after the effective
time, ZILA is required to fulfill and honor in all respects the
obligations of ZILA and its subsidiaries pursuant to any
indemnification provision and any exculpation provision set
forth in the organizational documents of ZILA or any of its
subsidiaries as in effect on the date of the Merger Agreement.
During such period, the organizational documents of ZILA must
contain the provisions with respect to indemnification and
exculpation from liability set forth in ZILAs
organizational documents on the date of the Merger Agreement,
and such provisions are not to be amended, repealed or otherwise
modified in any manner (including any amendment accomplished
through merger, recapitalization, consolidation or
reorganization) that could adversely affect the rights of any
indemnified party thereunder.
Conditions
to the Merger
The obligations of the parties to complete the Merger are
subject to the following conditions:
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the Merger Agreement must be adopted by holders of a majority of
the shares of our common stock entitled to vote at the special
meeting;
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the number of dissenting shares in the form of ZILA common stock
must not exceed 15% of the total number of shares of our common
stock entitled to vote at the special meeting;
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we must receive certain third-party consents required under the
Merger Agreement (which include consents from our counterparties
under certain real property and equipment lease agreements as
well as routine business agreements);
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the representations and warranties of all parties to the Merger
Agreement set forth therein must have been true and correct in
all respects as of the date of the Merger Agreement;
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certain specified representations and warranties of ZILA must be
true and correct in all material respects (unless qualified by
materiality, in which case they must be true and correct in all
respects) as of the effective time of the Merger;
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certain specified representations and warranties of ZILA must be
true and correct in all respects as of the effective time of the
Merger, except for inaccuracies that would not constitute a
material adverse change with respect to ZILA;
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all parties to the Merger Agreement must have performed and
complied with all of their respective covenants specified in the
Merger Agreement in all material respects (unless qualified by
materiality, in which case they must have performed and complied
with such covenants in all respects) through the closing of the
Merger;
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no injunction, judgment, order, decree, ruling or charge shall
be in effect that would (i) prevent the consummation of the
transactions contemplated by the Merger Agreement,
(ii) cause any of the transactions contemplated by the
Merger Agreement to be rescinded following consummation,
(iii) adversely affect TOLMARs right to own the
capital stock of and control the surviving corporation and its
subsidiaries after the Merger, or (iv) adversely affect the
right of the surviving corporation
and/or
its
subsidiaries to own their assets and operate their business;
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all parties to the Merger Agreement must have delivered the
closing certificates prescribed thereunder;
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all governmental authorizations and other consents required to
be obtained in connection with the Merger must be obtained; and
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52
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TOLMAR and Acquisition Sub must receive the resignations
(effective as of the closing of the Merger) of each director of
ZILA and our subsidiaries.
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Under the Merger Agreement, TOLMAR is entitled to waive, in
writing, certain of the above conditions to the Merger,
including without limitation, the condition that the number of
dissenting shares in the form of our common stock not exceed 15%
of the total number of shares of our common stock entitled to
vote at the special meeting.
Termination
of the Merger Agreement
The Merger Agreement may be terminated at any time prior to the
consummation of the Merger, as follows:
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by mutual agreement of ZILA, TOLMAR and Acquisition Sub;
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by TOLMAR if:
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we have breached any representation, warranty or covenant in the
Merger Agreement in any material respect, TOLMAR or Acquisition
Sub has notified us that would, if such breach were continuing
at the effective time of the Merger, cause a condition to not be
satisfied, and the breach has continued without cure for a
period of 30 days after the written notice of breach;
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the Merger is not consummated by November 22, 2009 (unless
the failure results primarily from TOLMAR or Acquisition Sub
breaching any representation, warranty or covenant contained in
the Merger Agreement); or
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our Board has (i) (A) withdrawn or modified in a manner
adverse to TOLMAR, the approval or recommendation by our Board
of the Merger, (B) approved or recommended any Acquisition
Proposal, (C) approved or recommended, or allowed ZILA to
enter into, any letter of intent, acquisition agreement or any
similar agreement or understanding (x) constituting or
related to, or that is intended to or could reasonably be
expected to lead to, any Acquisition Proposal or
(y) requiring ZILA to abandon, terminate or fail to
consummate the Merger or (D) effected any transaction
contemplated by any Acquisition Proposal or (ii) taken a
position contemplated by
Rule 14e-2(a)
of the Exchange Act, with respect to any Acquisition Proposal
other than recommending rejection of such Acquisition Proposal.
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TOLMAR or Acquisition Sub has breached any representation,
warranty or covenant in the Merger Agreement in any material
respect, we have notified TOLMAR and Acquisition Sub in writing
of the breach, and the breach has continued without cure for a
period of 30 days after the written notice of breach;
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the Merger is not consummated by November 22, 2009 (unless
the failure results primarily from ZILA breaching any
representation, warranty or covenant contained in the Merger
Agreement); or
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prior to obtaining stockholder approval of the Merger Agreement
in order to enter into an agreement relating to a Superior
Proposal, but only if (i) such superior proposal did not
result, directly or indirectly, from a breach by ZILA of
Section 5.8 of the Merger Agreement, and (ii) (A) our
Board has first provided prior written notice to TOLMAR that it
is prepared to terminate the Merger Agreement to enter into an
agreement with respect to a superior proposal, and
(B) TOLMAR does not make, within five business days after
the receipt of such notice, a binding, written and complete
proposal that ZILAs Board determines in good faith, after
consultation with its legal and financial advisors, that causes
the Acquisition Proposal that had constituted a superior
proposal to no longer constitute a Superior Proposal.
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by either TOLMAR or ZILA by giving written notice to the other
party if our stockholders do not adopt the Merger Agreement at
the special meeting.
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Under certain circumstances, if the Merger Agreement is
terminated by us, we must pay TOLMAR a termination fee
and/or
reimburse TOLMAR for certain expenses, as described in further
detail in Termination Fees and Expenses below.
53
Termination
Fees and Expenses
We will be required to pay TOLMARs expenses (including
legal fees and expenses) incurred in connection with the Merger
Agreement, not to exceed $200,000, and a termination fee of
$300,000 if:
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the Merger Agreement is terminated by TOLMAR because our Board
has (i) (A) withdrawn or modified, in a manner adverse to
TOLMAR, the approval or recommendation by our Board of the
Merger, (B) approved or recommended any Acquisition
Proposal, (C) approved or recommended, or allowed ZILA to
enter into, any letter of intent, acquisition agreement or any
similar agreement or understanding (x) constituting or
related to, or that is intended to or could reasonably be
expected to lead to, any Acquisition Proposal or
(y) requiring ZILA to abandon, terminate or fail to
consummate the Merger or (D) effected any transaction
contemplated by any Acquisition Proposal or (ii) taken a
position contemplated by
Rule 14e-2(a)
of the Exchange Act with respect to any Acquisition Proposal
other than recommending rejection of such Acquisition Proposal;
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the Merger Agreement is terminated by ZILA in order for ZILA to
enter into an agreement relating to a Superior Proposal; or
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the Merger Agreement is terminated by TOLMAR because ZILA
breached a representation, warranty or covenant in the Merger
Agreement, which breach would have, if such breach were
continuing at the effective time of the Merger, caused a closing
condition to not be satisfied.
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In addition, if the Merger Agreement is terminated because our
stockholders do not adopt the Merger Agreement or the Merger is
not consummated by November 22, 2009, and at or before the
date of termination an Acquisition Proposal has been made or
announced, then:
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we will be required to pay TOLMARs expenses (including
legal fees) incurred in connection with the Merger Agreement,
not to exceed $200,000, if, within 12 months after the
termination, ZILA enters into an agreement with respect to such
Acquisition Proposal; and
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we will be required to pay TOLMAR a termination fee of $300,000
if, within 12 months after the termination, any such
Acquisition Proposal is consummated.
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Amendment
and Waiver
The parties may amend the Merger Agreement at any time, except
that after our stockholders have adopted the Merger Agreement,
there shall be no amendment that by law requires further
approval by our stockholders without such approval having been
obtained. All amendments to the Merger Agreement must be
approved by the parties respective boards of directors and
shall be in a writing signed by us, TOLMAR and Acquisition Sub.
Governing
Law
The Merger Agreement is governed by and will be construed in
accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles
of conflicts of laws.
54
MATTERS
BEING SUBMITTED TO A VOTE OF STOCKHOLDERS
Proposal No. 1:
Adoption of the Merger Agreement and Approval of the
Merger
At the special meeting, ZILA common stockholders will be asked
to consider and vote upon a proposal to adopt the Merger
Agreement and approve the transactions contemplated under the
Merger Agreement, including the Merger. The Merger Agreement
provides that at the effective time of the Merger, Acquisition
Sub will be merged with and into ZILA. As a result of the
Merger, ZILA will cease to be a publicly traded company and will
become a wholly-owned subsidiary of TOLMAR.
The terms of, reasons for and other aspects of the Merger
Agreement and the Merger are described in detail in the other
sections of this proxy statement.
Vote
Required; Recommendation of Board
The affirmative vote of holders of a majority of the outstanding
shares of ZILAs common stock as of the record date for the
special meeting is required to adopt the Merger Agreement and
approve the Merger.
A failure to submit a proxy card or vote at the ZILA special
meeting, or an abstention, vote withheld or broker
non-vote for the adoption of the Merger Agreement will
have the same effect as a vote against the proposal to adopt the
Merger Agreement and approve the Merger.
THE ZILA BOARD RECOMMENDS THAT ZILAS STOCKHOLDERS VOTE
FOR PROPOSAL NO. 1 TO ADOPT THE MERGER
AGREEMENT AND APPROVE THE MERGER.
Proposal No. 2:
Approval of Possible Adjournment of the Special
Meeting
If ZILA fails to receive a sufficient number of votes to adopt
the Merger Agreement and approve the Merger, ZILA may propose to
adjourn the ZILA special meeting, for a period of not more than
30 days, for the purpose of soliciting additional proxies
to approve Proposal No. 1. ZILA currently does not
intend to propose adjournment at the special meeting if there
are sufficient votes to approve the proposal to adopt the Merger
Agreement and approve the Merger.
Vote
Required; Recommendation of Board
The affirmative vote of the holders of a majority of ZILAs
common stock present in person or represented by proxy at the
special meeting and entitled to vote is required to approve the
adjournment of the special meeting for the purpose of soliciting
additional proxies to approve the proposal to adopt the Merger
Agreement.
An abstention will have the same effect as a vote against
Proposal No. 2. A failure to submit a proxy card or
vote at the special meeting or a broker non-vote
will have no effect on the outcome of this proposal.
THE ZILA BOARD RECOMMENDS THAT ZILAS STOCKHOLDERS VOTE
FOR PROPOSAL NO. 2 TO ADJOURN THE SPECIAL
MEETING, IF NECESSARY, TO SOLICIT ADDITIONAL PROXIES IF THERE
ARE NOT SUFFICIENT VOTES IN FAVOR OF THE PROPOSAL TO ADOPT
THE MERGER AGREEMENT AND APPROVE THE MERGER.
55
MARKET
PRICE OF COMMON STOCK
Our common stock is quoted on the NASDAQ Capital Market under
the symbol ZILA. The following table sets forth, for
the periods indicated, the high and low sale prices of our
common stock as reported by the NASDAQ Capital Market.
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Common Stock
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High
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Low
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Fiscal Year ending July 31, 2009
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First Quarter
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$
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1.60
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$
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0.21
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Second Quarter
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0.72
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0.13
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Third Quarter
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0.85
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0.12
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Fourth Quarter
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0.80
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0.03
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Fiscal Year ending July 31, 2008
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First Quarter
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$
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10.85
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$
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6.16
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Second Quarter
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8.40
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5.46
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Third Quarter
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7.49
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1.12
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Fourth Quarter
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3.29
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1.47
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Fiscal Year ending July 31, 2007
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First Quarter
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$
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22.89
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$
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14.14
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Second Quarter
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20.30
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13.02
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Third Quarter
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16.80
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13.65
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Fourth Quarter
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14.21
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7.00
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The closing sale price of our common stock on the NASDAQ Capital
Market on June 24, 2009, the last trading day prior to our
Boards approval of the Merger Agreement, was $0.32 per
share. On August 14, 2009, the most recent practicable date
before this proxy statement was printed, closing sale price of
our common stock on the NASDAQ Capital Market was $0.44 per
share. You are encouraged to obtain current market quotations
for common stock in connection with voting your shares.
Dividends
We have not paid dividends on our common stock and we do not
presently intend to do so. The policy of our Board has been to
retain earnings to finance the growth and development of our
business. Furthermore, the payment of cash dividends on our
common stock is prohibited by the terms of the Senior Secured
Notes.
56
SECURITIES
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following tables list the ownership of our common stock for
the persons or the groups specified. Ownership includes direct
and indirect (beneficial) ownership, as defined by the
SECs rules. To our knowledge, each person, along with his
or her spouse, has sole voting and investment power over the
shares unless otherwise noted. The following tables set forth
information concerning the beneficial owners of our common stock
by (i) the directors, (ii) the named executive
officers (as such term is defined under SEC rules),
(iii) any person holding at least 5% of our shares, and
(iv) all current directors and executive officers of ZILA
as a group. Beneficial ownership and percentage ownership of
shares of our common stock is as of the record date,
August 12, 2009, based on 10,455,059.72 shares of our
common stock issued and outstanding.
Certain
Beneficial Owners
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Amount and Nature
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of Beneficial
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Percent
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Title of Class
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Name and Address of Beneficial Owner
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Ownership
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Of Class
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Common Stock
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TOLMAR Holding, Inc.
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1,113,207
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(1)
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9.9
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%
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c/o TOLMAR,
Inc.
701 Centre Avenue
Fort Collins, Colorado 80526
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(1)
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Represents (a) 435,084 shares of our common held of
record by TOLMAR Holding, Inc. and (b) up to
678,123 shares of our common stock issuable to TOLMAR
Holding, Inc. upon conversion of the Senior Secured Notes. The
number of shares issuable upon conversion of the Senior Secured
Notes is capped, by a non-waivable provision of such notes, to
the extent necessary to ensure that the total number of shares
beneficially owned by TOLMAR Holding, Inc. and its affiliates
does not exceed 9.999% of our outstanding common stock. TOLMAR
Holding, Inc. is a wholly-owned subsidiary of Dillford Company
S.A. Due to its control over TOLMAR Holding, Inc., Dillford
Company S.A. may be deemed to be the beneficial owner of such
shares reported above. The managing directors of Dillford
Company S.A. are J.R. Manso and A.C. Ortiz.
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Directors
and Executive Officers
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(A)
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Common
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(B)
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Stock-
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Options-
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Percent
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Beneficial
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Beneficial
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of
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Name
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Position(s)
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Ownership
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|
|
Ownership
|
|
|
Total
|
|
|
Class
|
|
|
David R. Bethune
|
|
Chairman and Chief
Executive Officer
|
|
|
58,315
|
|
|
|
30,000
|
|
|
|
88,315
|
|
|
|
|
*
|
Gary V. Klinefelter
|
|
Vice President, General Counsel and Secretary
|
|
|
13,636
|
|
|
|
20,000
|
|
|
|
33,636
|
|
|
|
|
*
|
Diane E. Klein
|
|
Vice President and Treasurer
|
|
|
6,940
|
|
|
|
39,286
|
|
|
|
46,226
|
|
|
|
|
*
|
Wade F. Brooksby
|
|
Director
|
|
|
|
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
|
*
|
J. Steven Garrett
|
|
Director
|
|
|
5,371
|
|
|
|
15,680
|
|
|
|
21,051
|
|
|
|
|
*
|
Leslie H. Green
|
|
Director
|
|
|
9,200
|
|
|
|
29,048
|
|
|
|
38,248
|
|
|
|
|
*
|
O.B. Parrish
|
|
Director
|
|
|
8,452
|
|
|
|
16,265
|
|
|
|
24,717
|
|
|
|
|
*
|
Jon M. Plexico
|
|
Director
|
|
|
205,281
|
(C)
|
|
|
|
|
|
|
205,281
|
|
|
|
2.0
|
%
|
George J. Vuturo
|
|
Director
|
|
|
10,000
|
|
|
|
16,605
|
|
|
|
26,605
|
|
|
|
|
*
|
Named executive officers and directors, as a group
(9 persons)
|
|
|
|
|
317,196
|
|
|
|
176,884
|
|
|
|
494,080
|
|
|
|
4.7
|
%
|
|
|
|
*
|
|
Denotes ownership of less than one percent.
|
|
|
|
(A)
|
|
Direct ownership; includes unvested shares of restricted common
stock.
|
|
(B)
|
|
Options exercisable as of the record date or within 60 days
thereof.
|
|
|
|
(C)
|
|
Represents shares of common stock held of record by Stonepine
Capital, LP, the co-managing members of which are Jon M. Plexico
and Timothy Lynch. Messrs. Plexico and Lynch share voting
and investment power with respect to such shares.
|
57
DISSENTERS
RIGHTS OF APPRAISAL
Under the DGCL, holders of ZILA common stock and Series B
Preferred have the right to dissent from the Merger and to
receive payment in cash for the fair value of their shares as
determined by the Delaware Court of Chancery, together with a
fair rate of interest, if any, as determined by the court, in
lieu of the consideration
he/she
would
otherwise be entitled to pursuant to the Merger Agreement. These
rights are known as appraisal rights. ZILAs stockholders
electing to exercise appraisal rights must comply with the
provisions of Section 262 of the DGCL in order to perfect
their rights. ZILA will require strict compliance with the
statutory procedures.
The following is intended as a brief summary of the material
provisions of the Delaware statutory procedures required to be
followed by a stockholder in order to dissent from the Merger
and perfect appraisal rights.
This summary, however, is not a complete statement of all
applicable requirements and is qualified by reference to
Section 262 of the DGCL, the full text of which appears in
Annex E to this proxy statement. Failure to precisely
follow any of the statutory procedures set forth in
Section 262 of the DGCL may result in a termination or
waiver of your appraisal rights.
Section 262 requires that stockholders be notified that
appraisal rights will be available not less than twenty
(20) days before the stockholders meeting to vote on
the Merger. A copy of Section 262 must be included with
such notice. This proxy statement constitutes ZILAs notice
to its stockholders of the availability of appraisal rights in
connection with the Merger in compliance with the requirements
of Section 262. If you wish to consider exercising your
appraisal rights, you should carefully review the text of
Section 262 contained in Annex E since failure to
timely and properly comply with the requirements of
Section 262 will result in the loss of your appraisal
rights under the DGCL.
If you elect to demand appraisal of your shares, you must
satisfy each of the following conditions:
|
|
|
|
|
You must deliver to ZILA a written demand for appraisal of your
shares before the vote with respect to the Merger is taken. This
written demand for appraisal must be in addition to and separate
from any proxy or vote abstaining from or voting against the
adoption of the Merger Agreement. Voting against or failing to
vote for the adoption of the Merger Agreement by itself does not
constitute a demand for appraisal within the meaning of
Section 262; and
|
|
|
|
You must not vote in favor of or consent to the adoption of the
Merger Agreement. A vote in favor of the adoption of the Merger
Agreement, by proxy or in person, will constitute a waiver of
your appraisal rights and will nullify any previously filed
written demands for appraisal. If you fail to comply with either
of these conditions and the Merger is completed, you will be
entitled to receive the cash payment for your shares as provided
for in the Merger Agreement, but you will have no appraisal
rights with respect to your shares.
|
All demands for appraisal should be addressed to Zila, Inc.,
16430 North Scottsdale Road, Suite 450, Scottsdale,
Arizona,
85254-1770,
Attention: Gary V. Klinefelter, Vice President, General Counsel
and Secretary, must be delivered before the vote on the Merger
Agreement is taken at the special meeting and should be executed
by, or on behalf of, the record holder of the shares. The demand
must reasonably inform ZILA of the identity of the stockholder
and the intention of the stockholder to demand appraisal of his,
her or its shares.
To be effective, a demand for appraisal by a stockholder must be
made by, or in the name of, such registered stockholder, fully
and correctly, as the stockholders name appears on his or
her stock certificate(s).
Beneficial owners who do not also
hold the shares of record may not directly make appraisal
demands to ZILA. The beneficial holder must, in such cases, have
the registered owner, such as a broker or other nominee, submit
the required demand in respect of those shares
. If shares
are owned of record in a fiduciary capacity, such as by a
trustee, guardian or custodian, execution of a demand for
appraisal should be made by or for the fiduciary; and if the
shares are owned of record by more than one person, as in a
joint tenancy or tenancy in common, the demand should be
executed by or for all joint owners. An authorized agent,
including an authorized agent for two or more joint owners, may
execute the demand for appraisal for a stockholder of record;
however, the agent must identify the record owner or owners and
expressly disclose the fact that, in executing the demand, he or
she is acting as agent for the record owner. A record owner,
such as a broker, who holds shares as a nominee for others, may
exercise his or her rights of appraisal with respect to the
shares held for one or more beneficial owners, while not
exercising this
58
right for other beneficial owners. In that case, the written
demand should state the number of shares as to which appraisal
is sought. Where no number of shares is expressly mentioned, the
demand will be presumed to cover all shares held in the name of
the record owner.
If you hold your shares in a brokerage account or in other
nominee form and you wish to exercise appraisal rights, you
should consult with your broker or the other nominee to
determine the appropriate procedures for the making of a demand
for appraisal by the nominee.
Within ten (10) days after the effective time of the
Merger, the Surviving Corporation must give written notice that
the Merger has become effective to each ZILA stockholder who has
properly filed a written demand for appraisal and who did not
vote in favor of or consent to the Merger Agreement. At any time
within sixty (60) days after the effective time of the
Merger, any stockholder who has demanded an appraisal but has
not commenced an appraisal proceeding or joined an appraisal
proceeding as a named party has the right to withdraw the demand
and to accept the cash payment specified by the Merger Agreement
for his or her shares. Within one hundred twenty (120) days
after the effective date of the Merger, any stockholder who has
complied with Section 262 shall, upon written request to
the Surviving Corporation, be entitled to receive a written
statement setting forth the aggregate number of shares not voted
in favor of the Merger Agreement and with respect to which
demands for appraisal rights have been received and the
aggregate number of holders of such shares. Such written
statement will be mailed to the requesting stockholder within
ten (10) days after such written request is received by the
Surviving Corporation or within ten (10) days after
expiration of the period for delivery of demands for appraisal,
whichever is later. Within one hundred twenty (120) days
after the effective time of the Merger, either the Surviving
Corporation or any stockholder who has complied with the
requirements of Section 262 may file a petition in the
Delaware Court of Chancery demanding a determination of the fair
value of the shares held by all stockholders entitled to
appraisal. Upon the filing of the petition by a stockholder,
service of a copy of such petition shall be made upon the
Surviving Corporation. The Surviving Corporation has no
obligation to file such a petition in the event there are
dissenting stockholders. Accordingly, the failure of a
stockholder to file such a petition within the period specified
could nullify the stockholders previously written demand
for appraisal.
If a petition for appraisal is duly filed by a stockholder and a
copy of the petition is delivered to the Surviving Corporation,
the Surviving Corporation will then be obligated, within twenty
(20) days after receiving service of a copy of the
petition, to provide the Chancery Court with a duly verified
list containing the names and addresses of all stockholders who
have demanded an appraisal of their shares and with whom
agreements as to the value of their shares have not been reached
by the Surviving Corporation. After notice, if so ordered by the
Chancery Court, to dissenting stockholders who demanded
appraisal of their shares, the Chancery Court is empowered to
conduct a hearing upon the petition, and to determine those
stockholders who have complied with Section 262 and who
have become entitled to the appraisal rights provided thereby.
The Chancery Court may require the stockholders who have
demanded payment for their shares to submit their stock
certificates to the Register in Chancery for notation thereon of
the pendency of the appraisal proceedings; and if any
stockholder fails to comply with that direction, the Chancery
Court may dismiss the proceedings as to that stockholder.
After determination of the stockholders entitled to appraisal of
their shares, the Chancery Court will appraise the shares,
determining their fair value exclusive of any element of value
arising from the accomplishment or expectation of the Merger,
together with interest, if any, from the effective date of the
Merger through the date of payment of the judgment, which shall
be compounded quarterly and shall accrue at a default rate 5%
over the Federal Reserve discount rate (including any surcharge)
as established from time to time during the period between the
effective date of the Merger and the date of payment of the
judgment. When the value is determined, the Chancery Court will
direct the payment of such value, with interest, if any, to the
stockholders entitled to receive the same, upon surrender by
such holders of the certificates representing those shares.
In determining fair value, the Chancery Court is required to
take into account all relevant factors.
You should be aware
that the fair value of your shares as determined under
Section 262 could be more than, the same as, or less than
the value that you are entitled to receive under the terms of
the Merger Agreement
.
Costs of the appraisal proceeding may be imposed upon the
Surviving Corporation and the stockholders participating in the
appraisal proceeding by the Chancery Court as the Chancery Court
deems equitable in the circumstances. Upon the application of a
stockholder, the Chancery Court may order all or a portion of
the expenses
59
incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable
attorneys fees and the fees and expenses of experts, to be
charged pro rata against the value of all shares entitled to
appraisal. Any stockholder who had demanded appraisal rights
will not, after the effective time of the Merger, be entitled to
vote shares subject to that demand for any purpose or to receive
payments of dividends or any other distribution with respect to
those shares, other than with respect to payment as of a record
date prior to the effective time of the Merger; however, if no
petition for appraisal is filed within one hundred twenty
(120) days after the effective time of the Merger, or if
the stockholder delivers a written withdrawal of his or her
demand for appraisal and an acceptance of the terms of the
Merger within sixty (60) days after the effective time of
the Merger, then the right of that stockholder to appraisal will
cease and that stockholder will be entitled to receive the cash
payment for his, her or its shares pursuant to the Merger
Agreement. Any withdrawal of a demand for appraisal made more
than sixty (60) days after the effective time of the Merger
may only be made with the written approval of the Surviving
Corporation. In addition, no appraisal proceeding may be
dismissed as to any stockholder without the approval of the
Chancery Court, and such approval may be conditioned upon such
terms as the Chancery Court deems just.
In view of the complexity of Section 262, stockholders
who may wish to dissent from the Merger and pursue appraisal
rights should consult their legal advisors.
SUBMISSION
OF STOCKHOLDER PROPOSALS
If the Merger is consummated, we will not have public
stockholders and there will be no public participation in any
future meeting of stockholders. However, if the Merger is not
completed or if we are otherwise required to do so under
applicable law, we would hold a 2009 annual meeting of
stockholders. Any stockholder proposals to be considered timely
for inclusion in the proxy statement for such meeting must be
submitted in writing to our principal executive offices, to
Zila, Inc., 16430 North Scottsdale Road, Suite 450,
Scottsdale, Arizona,
85254-1770,
Attention: Gary V. Klinefelter, Vice President, General Counsel
and Secretary. Such proposals must also comply with the
SECs rules concerning the inclusion of stockholder
proposals in company-sponsored proxy materials as set forth in
Rule 14a-8
promulgated under the Exchange Act and our bylaws.
Pursuant to
Rule 14a-8
under the Exchange Act, shareholder proposals for the 2009
annual meeting would have needed to be received at our principal
executive offices by July 13, 2009 to be considered for
inclusion in our proxy materials relating to such meeting. Any
notice of a shareholder proposal submitted outside the process
of
Rule 14a-8
of the Exchange Act after July 13, 2009 will be considered
untimely. We reserve the right to reject, rule out of order, or
take other appropriate action with respect to any proposal that
does not comply with these and all other applicable requirements.
HOUSEHOLDING
OF PROXY MATERIALS
The SEC has adopted rules that permit companies and
intermediaries (such as brokers) to satisfy the delivery
requirements for proxy statements and annual reports with
respect to two or more stockholders sharing the same address by
delivering a single proxy statement addressed to those
stockholders. This process, which is commonly referred to as
householding, potentially means extra convenience
for stockholders and cost savings for companies.
This year, a number of brokers with account holders who are our
stockholders will be householding our proxy
materials. A single copy of this notice and proxy statement will
be delivered to multiple stockholders sharing an address unless
contrary instructions have been received from the affected
stockholders. Once you have received notice from your broker
that they will be householding communications to
your address, householding will continue until you
are notified otherwise or until you revoke your consent. If, at
any time, you no longer wish to participate in
householding and would prefer to receive a separate
proxy statement, please notify your broker or direct your
written request to Zila, Inc., 16430 North Scottsdale Road,
Suite 450, Scottsdale, Arizona,
85254-1770,
Attention: Gary V. Klinefelter, Vice President, General Counsel
and Secretary, or contact our Vice President, General Counsel
and Secretary at
(800) 922-7887.
Stockholders who currently receive multiple copies of the proxy
60
statement at their address and would like to request
householding of their communications should contact
their broker.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any
document we file at the SECs public reference room located
at 100 F Street, N.E., Room 1580,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the public reference room. Our SEC
filings are also available to the public at the SECs
website at
http://www.sec.gov.
Any person, including any beneficial owner, to whom this proxy
statement is delivered may request copies of reports, proxy
statements or other information concerning us, without charge,
by written or telephonic request directed to Zila, Inc., 16430
North Scottsdale Road, Suite 450, Scottsdale, Arizona,
85254-1770,
Attention: Gary V. Klinefelter, Vice President, General Counsel
and Secretary, or contact our Vice President, General Counsel
and Secretary at
(800) 922-7887.
Georgeson Shareholder, which ZILA has retained to assist it with
soliciting proxies for the special meeting, can be contacted
toll-free at
(877) 278-9674.
No persons have been authorized to give any information or to
make any representations other than those contained in this
proxy statement and, if given or made, such information or
representations must not be relied upon as having been
authorized by us or any other person. This proxy statement is
dated August 17, 2009. You should not assume that the
information contained in this proxy statement is accurate as of
any date other than that date, and the mailing of this proxy
statement to stockholders shall not create any implication to
the contrary.
Sincerely,
David R. Bethune
Chairman and Chief Executive Officer
61
ANNEX A
AGREEMENT
AND PLAN OF MERGER
AMONG
TOLMAR HOLDING, INC.
as Parent
PROJECT Z ACQUISITION SUB, INC.,
as Acquisition Sub, and
ZILA, INC.
as Target
Dated as of June 25, 2009
TABLE
OF CONTENTS
|
|
|
|
|
|
|
ARTICLE I Definitions and References
|
|
|
A-1
|
|
1.1
|
|
General Definitions
|
|
|
A-1
|
|
1.2
|
|
References, Titles and Construction
|
|
|
A-7
|
|
|
|
|
|
|
ARTICLE II The Merger
|
|
|
A-8
|
|
2.1
|
|
Merger
|
|
|
A-8
|
|
2.2
|
|
Closing
|
|
|
A-8
|
|
2.3
|
|
Actions at Closing
|
|
|
A-8
|
|
2.4
|
|
Effect of Merger
|
|
|
A-8
|
|
2.5
|
|
Treatment of Warrants, Options and Restricted Stock
|
|
|
A-9
|
|
2.6
|
|
Procedure for Payment
|
|
|
A-9
|
|
2.7
|
|
Closing of Transfer Records
|
|
|
A-10
|
|
|
|
|
|
|
ARTICLE III Targets Representations and Warranties
|
|
|
A-10
|
|
3.1
|
|
Due Organization; Good Standing; Certificate of Incorporation
and Bylaws
|
|
|
A-10
|
|
3.2
|
|
Capitalization, Etc
|
|
|
A-11
|
|
3.3
|
|
Authority; Binding Nature of Agreement
|
|
|
A-11
|
|
3.4
|
|
Non-Contravention; Consents
|
|
|
A-12
|
|
3.5
|
|
SEC Filings; Financial Statements
|
|
|
A-12
|
|
3.6
|
|
Absence of Certain Changes
|
|
|
A-13
|
|
3.7
|
|
Legal Proceedings; Orders
|
|
|
A-13
|
|
3.8
|
|
Brokers; Schedule of Fees and Expenses
|
|
|
A-13
|
|
3.9
|
|
Intellectual Property
|
|
|
A-13
|
|
3.10
|
|
Title to Assets; Real Property
|
|
|
A-16
|
|
3.11
|
|
Contracts
|
|
|
A-17
|
|
3.12
|
|
Compliance with Laws
|
|
|
A-17
|
|
3.13
|
|
Tax Matters
|
|
|
A-17
|
|
3.14
|
|
Employee Benefit Plans
|
|
|
A-18
|
|
3.15
|
|
Labor and Employment Matters
|
|
|
A-20
|
|
3.16
|
|
Environmental Matters
|
|
|
A-20
|
|
3.17
|
|
Insurance
|
|
|
A-20
|
|
3.18
|
|
Regulatory Compliance
|
|
|
A-21
|
|
3.19
|
|
Product Warranties
|
|
|
A-22
|
|
3.20
|
|
Transactions with Affiliates
|
|
|
A-22
|
|
3.21
|
|
State Anti-Takeover Statutes
|
|
|
A-22
|
|
|
|
|
|
|
ARTICLE IV Parents and Acquisition Subs
Representations and Warranties
|
|
|
A-23
|
|
4.1
|
|
Due Organization and Good Standing
|
|
|
A-23
|
|
4.2
|
|
Authority; Binding Nature of Agreement
|
|
|
A-23
|
|
4.3
|
|
Non-Contravention; Consents
|
|
|
A-23
|
|
4.4
|
|
Brokers
|
|
|
A-23
|
|
4.5
|
|
Definitive Proxy Materials
|
|
|
A-23
|
|
4.6
|
|
Not an Interested Stockholder
|
|
|
A-23
|
|
4.7
|
|
Funds
|
|
|
A-23
|
|
4.8
|
|
No Other Representations or Warranties
|
|
|
A-23
|
|
A-i
|
|
|
|
|
|
|
ARTICLE V Covenants
|
|
|
A-24
|
|
5.1
|
|
General
|
|
|
A-24
|
|
5.2
|
|
Notices and Consents
|
|
|
A-24
|
|
5.3
|
|
Press Releases
|
|
|
A-24
|
|
5.4
|
|
Regulatory Matters and Stockholder Approval
|
|
|
A-24
|
|
5.5
|
|
Operation of Business
|
|
|
A-25
|
|
5.6
|
|
Access
|
|
|
A-26
|
|
5.7
|
|
Notice of Developments
|
|
|
A-26
|
|
5.8
|
|
Exclusivity; Acquisition Proposals
|
|
|
A-26
|
|
5.9
|
|
Director and Officer Insurance and Indemnification
|
|
|
A-27
|
|
5.10
|
|
Delisting
|
|
|
A-27
|
|
5.11
|
|
Tax Reserves
|
|
|
A-27
|
|
5.12
|
|
Continuing Employees
|
|
|
A-27
|
|
5.13
|
|
Service Credit
|
|
|
A-27
|
|
|
|
|
|
|
ARTICLE VI Conditions to Obligations to Close
|
|
|
A-28
|
|
6.1
|
|
Conditions to Parents and Acquisition Subs Obligation
|
|
|
A-28
|
|
6.2
|
|
Conditions to Targets Obligation
|
|
|
A-29
|
|
|
|
|
|
|
ARTICLE VII Termination
|
|
|
A-30
|
|
7.1
|
|
Termination of Agreement
|
|
|
A-30
|
|
7.2
|
|
Effect of Termination
|
|
|
A-31
|
|
7.3
|
|
Fees and Expenses; Termination Fees
|
|
|
A-31
|
|
|
|
|
|
|
ARTICLE VIII Miscellaneous
|
|
|
A-31
|
|
8.1
|
|
Survival
|
|
|
A-31
|
|
8.2
|
|
No Third-Party Beneficiaries
|
|
|
A-31
|
|
8.3
|
|
Entire Agreement
|
|
|
A-32
|
|
8.4
|
|
Succession and Assignment
|
|
|
A-32
|
|
8.5
|
|
Counterparts
|
|
|
A-32
|
|
8.6
|
|
Notices
|
|
|
A-32
|
|
8.7
|
|
Governing Law; Venue; Waiver of Jury Trial
|
|
|
A-33
|
|
8.8
|
|
Amendments and Waivers
|
|
|
A-33
|
|
8.9
|
|
Severability
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A-33
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8.10
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Specific Performance
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A-33
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Exhibit A Certificate of Merger
Exhibit B Form of Bylaws
Disclosure Schedule Exceptions to Representations
and Warranties
A-ii
AGREEMENT
AND PLAN OF MERGER
This Agreement and Plan of Merger (this
Agreement
), dated as of June 25, 2009,
is among
TOLMAR Holding, Inc.
, a Delaware corporation
(
Parent
),
Project Z Acquisition Sub,
Inc.
, a Delaware corporation (
Acquisition
Sub
), and
Zila, Inc.
, a Delaware corporation
(
Target
). Parent, Acquisition Sub and Target
sometimes are referred to collectively herein as the
Parties.
Recitals
A. This Agreement contemplates a transaction in which
Parent will acquire all of Targets outstanding stock for
cash through a reverse subsidiary merger of Acquisition Sub with
and into Target.
B. The board of directors of Target has unanimously (other
than with respect to one director, who recused himself from the
vote) (i) determined that it is fair to and in the best
interests of Target and its stockholders, and declared it
advisable, to enter into this Agreement with Parent and
Acquisition Sub providing for the merger (the
Merger
) of Acquisition Sub with and into
Target in accordance with the General Corporation Law of the
State of Delaware, as amended (the
DGCL
),
upon the terms and subject to the conditions set forth herein,
(ii) approved this Agreement in accordance with the DGCL,
upon the terms and subject to the conditions set forth herein
and (iii) resolved to recommend the adoption of this
Agreement by the stockholders of Target.
C. Parent has entered into a Senior Note Purchase Agreement
(such agreement, as it may be amended, restated, supplemented or
otherwise modified from time to time, the
Note Purchase
Agreement
) with Visium Balanced Master Fund, Ltd. and
Atlas Master Fund, Ltd. (collectively, the
Noteholders
), whereby, among other things,
Parent expects, at the Effective Time (as defined below), to
purchase for cash all of the outstanding Third Amended and
Restated Senior Secured Convertible Notes, dated
November 28, 2006, made by Target (the
Senior
Notes
).
D. The current officers and directors of Target who own
Target Shares (as defined below) have agreed to enter into
transaction support agreements in favor of Parent and
Acquisition Sub with respect to, among other things, voting such
shares in favor of the Merger.
Agreement
In consideration of the representations, warranties, covenants
and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are
acknowledged, the Parties agree as follows:
ARTICLE I
Definitions
and References
1.1
General Definitions
.
As
used herein the terms Agreement, Parent,
Acquisition Sub, Target,
Parties, Merger, DGCL,
Note Purchase Agreement, Noteholders and
Senior Notes shall have the meanings ascribed
thereto above, and the following terms shall have the following
meanings:
Acquisition Proposal
means any
proposal or offer (whether or not binding) from any Person
(other than Parent, Acquisition Sub or any of their respective
Affiliates) or group (as defined in Section 13(d) of the
Securities Exchange Act) relating to any direct or indirect
acquisition or purchase of 15% or more of the assets of Target
and its Subsidiaries, taken as a whole, or 15% or more of the
total outstanding voting securities of Target or any of its
Subsidiaries then outstanding, any tender offer, exchange offer
or equity issuance that if consummated would result in any
Person beneficially owning 15% or more of the total outstanding
voting securities of Target or any of its Subsidiaries then
outstanding, and any merger, consolidation, business
combination, recapitalization, liquidation, dissolution or
similar transaction involving Target, other than the
transactions contemplated by this Agreement.
Affiliate
has the meaning set forth in
Rule 12b-2
of the regulations promulgated under the Securities Exchange Act.
A-1
Available Free Cash
has the meaning
set forth in Section 3.6(b).
Business Day
means any day on which
banks are not required or authorized by Law to close in New
York, New York.
Certificate of Merger
has the meaning
set forth in Section 2.3.
Closing
has the meaning set forth in
Section 2.2.
Closing Date
has the meaning set forth
in Section 2.2.
Code
shall mean the Internal Revenue
Code of 1986, as amended.
Common Stock Merger Consideration
has
the meaning set forth in Section 2.4(e).
Continuing Employees
has the meaning
set forth in Section 5.12.
Contract
means any contract,
subcontract, agreement, commitment, note, bond, mortgage,
indenture, lease, license, sublicense or other instrument or
binding arrangement or understanding of any kind or character,
whether oral or in writing.
Copyrights
means all registered and
unregistered copyrights in both published and unpublished works,
rights in mask works and mask works applications, all
sui
generis
rights in data and databases, and any other rights
of authorship in any other published and unpublished works,
including all moral rights therein.
Covered D&Os
has the
meaning set forth in Section 5.9(a).
CSA
has the meaning set forth in
Section 3.18(a).
Current Assets
has the meaning set
forth in Section 3.6(b).
Current Liabilities
has the meaning
set forth in Section 3.6(b).
Definitive Proxy Materials
means the
definitive proxy materials relating to the Special Meeting.
Disclosure Schedule
has the meaning
set forth in ARTICLE III.
Dissenting Share
means any Target
Share, issued and outstanding immediately before the Effective
Time, and held of record by any holder who or that has properly
exercised his, her or its appraisal rights under the DGCL with
respect to the proposal for the Merger.
Effective Time
has the meaning set
forth in Section 2.4(a).
Entity
means any corporation
(including any non-profit corporation), general partnership,
limited partnership, limited liability partnership, joint
venture, estate, trust, company (including any company limited
by shares, limited liability company or joint stock company),
firm, society or other enterprise, association, organization or
entity.
Environmental Law
means any Law
relating to pollution or protection of the environment
(including, without limitation, Laws relating to recycling,
reuse, product content and product take-back requirements as
well as any carbon emission reduction legislation), worker
safety or the exposure of any individual to any hazardous
materials including any regulated emissions, discharges or
releases of the following which shall all be deemed hazardous
materials hereunder: chemicals, pollutants, contaminants,
emissions, wastes, hazardous substances and toxic substances,
radioactive and biological materials and wastes, and petroleum
and petroleum related products and wastes.
ERISA
means the Employee Retirement
Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder, or any successor statue,
rules and regulations thereto.
ERISA Affiliate
means any trade or
business (whether or not incorporated) that, together with
Target, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer under Section 414
of the Code.
A-2
Facilities
means any real property or
interest in real property that is being used or has ever been
used by Target or any of its Subsidiaries and all buildings,
structures or other improvements thereon.
FDA
has the meaning set forth in
Section 3.18(b).
FDCA
has the meaning set forth in
Section 3.18(a).
GAAP
means United States generally
accepted accounting principles as in effect from time to time,
consistently applied.
Governmental Authorization
means any
permit, license, registration, qualification or authorization
granted by any Governmental Entity.
Governmental Entity
means any Federal,
state, local, tribal or foreign government or any court of
competent jurisdiction, administrative or regulatory body,
agency, bureau or commission, governing body of any national
securities exchange or other governmental authority or
instrumentality in any domestic or foreign jurisdiction and any
appropriate division of any of the foregoing.
Health Care Laws
has the meaning set
forth in Section 3.18(g).
Intellectual Property
means any
intellectual property that may exist under the Laws of any
jurisdiction throughout the world, including all Marks, Patents,
Copyrights and Trade Secrets, any applications for registration
and registrations of the foregoing property and the foregoing
rights (whether pending, existing, abandoned or expired), and
any physical embodiments of the foregoing property and the
foregoing rights.
Knowledge
means, in the case of
Target, the actual awareness by one or more of the current
officers of Target of such fact or matter.
Law
means any applicable Federal,
state, local, municipal, foreign, tribal or other law, statute,
legislation, constitution, principle of common law, resolution,
ordinance, code, edict, decree, proclamation, treaty,
convention, rule, regulation, ruling, directive, pronouncement,
requirement, specification, determination, decision, opinion or
interpretation that is, has been or may in the future be issued,
enacted, adopted, passed, approved, promulgated, made,
implemented or otherwise put into effect, whether legislative,
municipal, administrative or judicial in nature.
Legal Proceeding
means any action,
claim, counterclaim, suit, litigation, hearing, arbitration,
grievance, proceeding (public or private), criminal prosecution
or investigation by or before any Governmental Entity.
License-In Contract
means any Contract
under which Target or any of its Subsidiaries has acquired,
obtained, or been granted any license, permission or any other
right to utilize or otherwise exploit any Intellectual Property.
License-Out Contract
means any
Contract under which Target or any of its Subsidiaries has
licensed, permitted or otherwise granted any right to any Person
to utilize or otherwise exploit any Intellectual Property.
Licensed-In IP
means the rights or
permissions to any Intellectual Property acquired, obtained or
granted under or through a License-In Contract.
Lien
means any mortgage, pledge,
assessment, security interest, lease, lien, adverse claim, levy,
charge, preference, restriction on the right of possession or
use, encroachment, negative pledge, right of first refusal or
offer, preemptive right, community or other marital property
interest, imperfection of title, or other encumbrance of any
kind, including any conditional sales Contract, title retention
Contract or other Contract to give any of the foregoing.
Marks
means all registered or
unregistered trademarks, service marks, trade names, fictitious
business names, and general intangibles of a similar nature
(including corporate names, logos, trade dress, slogans, and
product names), and the goodwill associated therewith, and all
rights in internet web sites, internet domain names, uniform
resource locators, and keywords and purchased search terms.
A-3
Material Adverse Change
means any
effect, change, condition, event or development that,
individually or in the aggregate, would be (or could reasonably
be expected to be) materially adverse, whether in the near-term
or the long-term, to the business, properties, assets,
liabilities, capitalization, stockholders equity,
condition (financial or otherwise), operations, licenses,
results of operations or prospects of Target or any of its
Subsidiaries, as determined from the perspective of a reasonable
person in the Parents position, excluding any adverse
effect, change, condition, event or development (unless such
effect, change, condition, event or development adversely
impacts Target and its Subsidiaries disproportionately compared
to other companies operating in the same industry) arising from
or relating to: (a) any general social, political or
economic condition or event, including stock market
fluctuations, acts of war or terrorism or the consequences of
any of the foregoing, (b) any change in currency exchange
rates or interest rates, (c) any legislative changes or
other changes in Law and (d) natural disasters.
Merger Consideration
has the meaning
set forth in Section 2.4(e).
Most Recent Balance Sheet
means the
balance sheet as of the Most Recent Fiscal Quarter End included
in the financial statements Target has filed with the SEC on
Form 10-Q
for the fiscal quarter ended as of the Most Recent Fiscal
Quarter End.
Most Recent Fiscal Quarter End
has the
meaning set forth in Section 3.5.
Net Working Capital
has the meaning
set forth in Section 3.6(b).
Option Proceeds
has the meaning set
forth in Section 2.5(b).
Ordinary Course of Business
means an
action taken by Target or any of its Subsidiaries if such action
is (a) consistent in nature, scope and magnitude with the
past practices of such Person, (b) taken in the ordinary
course of the normal
day-to-day
operations of such Person, (c) taken in accordance with
sound and prudent business practices and (d) not required
to be authorized by the stockholders or other equity owners of
such Person, the board of directors of such Person or any
committee of the board of directors of such Person, and does not
require any other separate or special authorization of any
nature.
Organizational Documents
means the
articles or certificate of incorporation or formation, articles
of incorporation, organization or association, general or
limited partnership agreement, limited liability company or
operating agreement, bylaws and other agreements, documents or
instruments relating to the organization, management or
operation of any Person that is an entity or relating to the
rights, duties and obligations of the equityholders of any such
Person, including any equityholders agreements, voting
agreements, voting trusts, joint venture agreements,
registration rights agreements or similar agreements.
Parent-owned Share
means any Target
Share, issued and outstanding immediately before the Effective
Time, that Parent or Acquisition Sub owns of record.
Patents
means any United States and
non-United
States patents, patent applications, patent disclosures,
invention disclosures or other rights relating to the protection
of inventions throughout the world (and all rights related
thereto, including any continuations, continuations in part,
divisionals, extensions, renewals, reissues or reexaminations of
any of the foregoing).
Paying Agent
has the meaning set forth
in Section 2.6(a).
Payment Fund
has the meaning set forth
in Section 2.6(a).
Permitted Investments
means
investments in short-term obligations of the United States with
maturities of no more than 30 days or guaranteed by the
United States and backed by the full faith and credit of the
United States or in commercial paper obligations rated
A-1
or
P-1
or
better by Moodys Investors Service, Inc. or
Standard & Poors Corporation, respectively.
Permitted Lien
means (a) with
respect to any capital stock, membership interests or other
similar equity interests of any Subsidiary of Target,
(i) the provisions of the Governing Documents of such
Subsidiary and (ii) the restrictions on the transfer of
securities provided in the Securities Act and any state or
blue sky securities Laws, and (b) with respect
to any other asset, property or right, (i) Liens for Taxes
not yet due or
A-4
delinquent and (ii) statutory Liens arising in the Ordinary
Course of Business by operation of Law, including
mechanics, materialmens, repairmens,
employees, contractors, operators and other
similar liens to the extent relating to an obligation that is
not yet due or delinquent.
Person
means an individual, an Entity
or a Governmental Entity.
PHSA
has the meaning set forth in
Section 3.18(a).
Prime Rate
means a rate per annum
equal to the floating commercial loan rate as published in the
Wall Street Journal (Western Edition) from time to time as the
Prime Rate, adjusted in each case as of the banking
day in which a change in the Prime Rate occurs, as reported in
The Wall Street Journal (Western Edition);
provided,
however
, that if such rate is no longer published in The
Wall Street Journal, then it shall mean an annual rate of
interest which equals the floating commercial loan rate of
Citibank N.A., or its successors and assigns, announced from
time to time as its base rate, adjusted in each case
as of the banking day in which a change in the base rate occurs.
Product
has the meaning set forth in
Section 3.9(a).
Requisite Stockholder Approval
means
the affirmative vote in favor of this Agreement and the Merger
of the holders of a majority of the outstanding Target Common
Stock on the record date for the Special Meeting.
SEC
means the Securities and Exchange
Commission.
Securities Act
means the Securities
Act of 1933, as amended.
Securities Exchange Act
means the
Securities Exchange Act of 1934, as amended.
Software
means all computer software
and all versions, forms and embodiments thereof, including all
source code, object code, executable code, binary code, files,
objects, comments, screens, user interfaces, report formats,
templates, menus, buttons and icons and all data, materials,
manuals, design notes and other items and documentation related
thereto or associated with the foregoing.
Special Meeting
has the meaning set
forth in Section 5.4(b).
Specified Representations
has the
meaning set forth in Section 6.1(e).
Subsidiary
means, with respect to any
Person at any time of determination, any corporation, limited
liability company, partnership, association or other business
entity of which (a) if a corporation, a majority of the
total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of
directors thereof is at the time owned or controlled, directly
or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof or
(b) if a limited liability company, partnership,
association or other business entity (other than a corporation),
a majority of the membership, partnership or other similar
ownership interests thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof and for
this purpose, such Person, Subsidiaries or combination owns a
majority ownership interest in such a business entity (other
than a corporation) if such Person, Subsidiaries or combination
is allocated a majority of such business entitys gains or
losses or is or controls any managing director or general
partner of such business entity (other than a corporation). The
term Subsidiary shall include all Subsidiaries of
such Subsidiary.
Superior Proposal
means any bona fide
written Acquisition Proposal not solicited or initiated in
violation of Section 5.8 that (a) relates to an
acquisition by a Person or group (as defined in
Section 13(d) of the Securities Exchange Act) of either
(i) more than 50% of the voting securities of Target
pursuant to a tender offer, equity issuance, merger or otherwise
or (ii) more than 50% of the assets used in the conduct of
the business of Target, (b) Targets board of
directors determines in its good faith judgment (after
consultation with its financial advisors and, after considering,
among other things, the financial, legal and regulatory aspects
of such Acquisition Proposal) would, if consummated, result in a
transaction that is more favorable to Targets stockholders
from a financial point of view than the transactions
contemplated by this Agreement (taking into account any
alterations to this Agreement agreed to by Parent in response
thereto in accordance with
A-5
Section 7.1(f) as well as any payments resulting from the
termination of this Agreement), (c) the potential acquirer
has the financial wherewithal to consummate without having to
obtain new financing other than financing as to which it has
obtained binding commitments from reputable sources and
(d) Targets board of directors determines in good
faith (after consultation with its financial advisors and its
outside legal counsel) is reasonably capable of being
consummated.
Surviving Corporation
has the meaning
set forth in Section 2.1.
Target Benefit Plans
has the meaning
set forth in Section 3.14.
Target Black Diamond Warrant
means
that certain amended and restated warrant to purchase
171,429 shares of Target Common Stock at an exercise price
of $15.54 per share issued to BDC Finance, L.L.C. by Target on
June 6, 2006.
Target Bylaws
has the meaning set
forth in Section 3.1.
Target Certificate of Incorporation
has the meaning set forth in Section 3.1.
Target Common Stock
means the common
stock, $0.001 par value per share, of Target.
Target Equity Plans
means
Targets 1997 Stock Award Plan, as amended and restated,
and any other compensatory option plans or Contracts of Target,
including any employee stock purchase plan and any option plans
or Contracts assumed by Target pursuant to a merger or
acquisition.
Target Expense Reimbursement Amount
means an amount in cash equal to Parents expenses
(including legal fees and expenses) incurred in connection with
this Agreement (not to exceed $200,000).
Target Intellectual Property
means any
Intellectual Property (or portion thereof): (a) owned or
licensed by Target or any of its Subsidiaries or which Target or
any of its Subsidiaries otherwise has rights in or to; or
(b) utilized in, necessary for, useful in, or incident to
the conduct of the business of Target or any of its Subsidiaries
in any manner as currently conducted or as proposed to be
conducted.
Target Material Contracts
has the
meaning set forth in Section 3.11.
Target Non-Disclosure and Invention Assignment
Contract
has the meaning set forth in
Section 3.9(i).
Target Options
means any outstanding
options to purchase Target Shares, whether granted by Target
pursuant to the Target Equity Plans or otherwise.
Target PIPE Warrants
means those
certain warrants to purchase an aggregate of
1,212,995 shares of Target Common Stock at an exercise
price of $14.63 per share issued to various investors by Target
on or about November 29, 2006 and December 14, 2006.
Target Preferred Stock
means the
preferred stock, $0.001 par value per share, of Target.
Target Restricted Stock
means the
Target Common Stock issued pursuant to, and that is subject to
vesting and other restrictions set forth in, Targets 1997
Stock Award Plan, as amended and restated.
Target SEC Documents
has the meaning
set forth in Section 3.5.
Target Series B Convertible Preferred
Stock
means the Target Preferred Stock designated
as Series B Convertible Preferred Stock.
Target Share
means any share of Target
Common Stock (including the Target Restricted Stock) or Target
Preferred Stock (including Target Series B Convertible
Preferred Stock).
Target Software
means all Software,
(a) owned or licensed by Target or any of its Subsidiaries,
or (b) utilized in, necessary for, useful in, or incident
to the conduct of the business of Target or any of its
Subsidiaries in any manner, as currently conducted or as
proposed to be conducted.
Target Stockholder
means any Person
who or that holds any Target Share.
Target Termination Fee
means an amount
in cash equal to $300,000.
A-6
Target Warrants
means the Target PIPE
Warrants and the Target Black Diamond Warrant.
Tax
or
Taxes
means all forms of taxation or duties imposed, or required to be
collected or withheld, including without limitation any United
States federal, state or local, or
non-United
States, income, gross receipts, franchise, estimated,
alternative minimum, add-on minimum, sales, use, transfer,
registration, value added, excise, natural resources, severance,
stamp, withholding, occupation, premium, windfall profit,
environmental, customs, duties, real property, personal
property, capital stock, net worth, intangibles, social
security, unemployment, disability, payroll, license, employee
or other tax or similar levy, of any kind whatsoever, together
with any interest, penalties or additions to tax in respect of
the foregoing and any transferee liability in respect of the
foregoing payable by reason of contract, assumption, transferee
liability, operation of Law,
Section 1.1502-6(a)
of the Treasury Regulations (or any predecessor or successor
thereof or any analogous or similar provision under Law) or
otherwise.
Tax Authority
means any Governmental
Entity having jurisdiction over the assessment, determination,
collection or imposition of any Tax.
Tax Return
means any return,
declaration, report, claim for refund, information return or
other document (including any related or supporting estimates,
elections, schedules, statements or information) filed or
required to be filed in connection with the determination,
assessment or collection of any Tax or the administration of any
Law relating to any Tax, and where permitted or required,
combined or consolidated returns for any group of entities.
Trade Secrets
means all information
that derives economic value from not being generally known to
other Persons, and any other information that is proprietary or
confidential to Target or any of its Subsidiaries, including
trade secrets, know-how, ideas, inventions, processes,
documentation, information, data, information, customer lists,
Software (in both object code and source code form), data,
products, processes, technology, plans, drawings, designs,
systems and specifications.
Treasury Regulations
means the
regulations issued by the U.S. Department of Treasury under
the Code.
United States
and
U.S
. means the United States of
America.
USPTO has the meaning set forth in
Section 3.9(m).
WARN has the meaning set forth in Section 3.15.
1.2
References, Titles and
Construction
.
All references in this
Agreement to Exhibits, Schedules, Articles, Sections and other
subdivisions refer to the Exhibits, Schedules, Articles,
Sections and other subdivisions of this Agreement unless
expressly provided otherwise. All Exhibits and Schedules
identified in this Agreement are incorporated herein by
reference and made a part of this Agreement. Titles and section
headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement. The words this
Agreement, herein, hereby,
hereunder and words of similar import refer to this
Agreement as a whole and not to any particular subdivision
unless expressly so limited. The word or is not
exclusive, and including (and its various
derivatives), means including without limitation.
Pronouns in masculine, feminine and neuter gender shall be
construed to include any other gender. Words in the singular
form shall be construed to include the plural and words in the
plural form shall be construed to include the singular, unless
the context otherwise requires. A reference to a federal, state,
local or
non-U.S. statute
or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires
otherwise. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the
Parties and no presumption or burden of proof shall arise
favoring or disfavoring a Party by virtue of the authorship of
any of the provisions of this Agreement.
A-7
ARTICLE II
The
Merger
2.1
Merger
.
On and subject
to the terms and conditions of this Agreement, Acquisition Sub
will merge with and into Target at the Effective Time. Target
shall be the corporation surviving the Merger (the
Surviving Corporation
).
2.2
Closing
.
The closing of
the transactions contemplated by this Agreement (the
Closing
) shall take place at the offices of
Holme Roberts & Owen LLP, 1700 Lincoln Street,
Suite 4100, Denver, Colorado commencing at 9:00 a.m.
local time on the second Business Day following the satisfaction
or waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than
conditions with respect to actions the respective Parties will
take at the Closing itself) or such other date as the Parties
may mutually determine (the
Closing Date
).
2.3
Actions at Closing
.
At
the Closing, (a) Target will deliver to Parent and
Acquisition Sub the various certificates, instruments and
documents referred to in Section 6.1, (b) Parent and
Acquisition Sub will deliver to Target the various certificates,
instruments and documents referred to in Section 6.2,
(c) Target and Acquisition Sub will file with the Secretary
of State of the State of Delaware a Certificate of Merger in the
form attached hereto as
Exhibit A
(the
Certificate of Merger
), and (d) Parent
will cause Surviving Corporation to deliver the Payment Fund to
the Paying Agent in the manner provided below in
Section 2.6.
2.4
Effect of Merger
.
(a)
General
.
The Merger shall
become effective at the time (the
Effective
Time
) Target and Acquisition Sub file the Certificate
of Merger with the Secretary of State of the State of Delaware.
The Merger shall have the effect set forth in the DGCL.
Surviving Corporation may, at any time after the Effective Time,
take any action (including executing and delivering any
document) in the name and on behalf of either Target or
Acquisition Sub in order to carry out and effectuate the
transactions contemplated by this Agreement.
(b)
Certificate of
Incorporation
.
The certificate of
incorporation of Target shall be the certificate of
incorporation of Surviving Corporation.
(c)
Bylaws
.
The bylaws of
Surviving Corporation shall be amended and restated at and as of
the Effective Time to conform to the bylaws attached hereto as
Exhibit B
.
(d)
Directors and Officers
.
The
directors of Acquisition Sub immediately before the Effective
Time shall become the directors of Surviving Corporation at the
Effective Time. The officers of Acquisition Sub immediately
before the Effective Time shall become the initial officers of
the Surviving Corporation at the Effective Time, each to hold
office until the earlier of his or her resignation or removal.
(e)
Conversion of Target
Shares
.
At the Effective Time and by virtue
of the Merger and without any action by any of the Parties or
the holders of Target Shares, (i) each share of Target
Common Stock issued and outstanding immediately before the
Effective Time (other than any Dissenting Share, Parent-owned
Share or Target Share held in the treasury of Target) shall be
converted into the right to receive an amount equal to $0.38 in
cash, without interest (the
Common Stock Merger
Consideration
), (ii) each share of Target
Series B Convertible Preferred Stock issued and outstanding
immediately before the Effective Time (other than any Dissenting
Share, Parent-owned Share or Target Share held in the treasury
of Target) shall be converted into the right to receive an
amount equal to $0.44 in cash, without interest (together with
the Common Stock Merger Consideration, the
Merger
Consideration
), (iii) each Dissenting Share shall
be converted into the right to receive payment from Surviving
Corporation with respect thereto in accordance with the
provisions of the DGCL, (iv) each Parent-owned Share issued
and outstanding immediately before the Effective Time and each
Target Share held in the treasury of Target immediately before
the Effective Time shall be cancelled, and (v) Target
Shares issued and outstanding immediately before the Effective
Time held of record by wholly-owned Subsidiaries of Target shall
remain outstanding;
provided, however,
that the Merger
Consideration shall be subject to equitable adjustment in the
event of any stock split, stock dividend, reverse stock split or
other change in the number of outstanding Target Shares (or
securities convertible or exchangeable into or exercisable for
Target Shares) between the date of this Agreement and the
Effective Time. For the avoidance of doubt, any fractional share
of Target Common Stock shall be entitled to the
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same rights as whole shares of Target Common Stock with respect
to conversion into Common Stock Merger Consideration, provided
that a fractional share of Target Common Stock shall be
converted into a pro rata amount of Common Stock Merger
Consideration. No Target Share shall be deemed to be outstanding
or to have any rights other than those set forth above in this
Section 2.4(e) after the Effective Time.
(f)
Conversion of Acquisition Subs Capital
Stock
.
At the Effective Time, each share of
Acquisition Subs common stock, $0.0001 par value per
share, shall be converted into one share of Surviving
Corporations common stock, $0.001 par value per share.
2.5
Treatment of Warrants, Options and
Restricted Stock
.
(a)
Treatment of Warrants
.
Target
shall use its reasonable best efforts to cause all of the
outstanding Target PIPE Warrants to be terminated and cancelled
at or before the Effective Time. In exchange for such
cancellation, Target shall not pay any holder of a Target PIPE
Warrant any amount in excess of the Black-Scholes valuation
thereof and no consideration for the cancellation thereof shall
be payable by Parent, Acquisition Sub, Target or the Surviving
Corporation after the Effective Time. Each unexercised Target
Black Diamond Warrant outstanding immediately prior to the
Effective Time shall, in accordance with and subject to its
terms, cease to represent a right to acquire Target Common Stock
and, as of and following the Effective Time no consideration
shall be payable by Parent, Acquisition Sub, Target or the
Surviving Corporation therefor.
(b)
Cancellation of Options
.
No
outstanding Target Options shall be assumed, continued or
substituted for by Parent. Target shall take all action
necessary under the applicable Target Equity Plans to ensure
that as of no later than immediately before the Effective Time,
and contingent upon the effectiveness of the Merger, each then
outstanding Target Option shall become immediately vested and
exercisable in full. At the Effective Time, each then
outstanding Target Option shall, by virtue of the Merger, be
converted into and shall become a right to receive an amount in
cash, without interest, with respect to each share subject
thereto, equal to the excess, if any, of the Common Stock Merger
Consideration over the per share exercise price of such Target
Option (such amount being hereinafter referred to as the
Option Proceeds
), and each such Target Option
shall terminate at the Effective Time. Surviving Corporation
shall pay the Option Proceeds to the holders of Target Options
promptly following the Effective Time. Prior to the Effective
Time, Target shall provide all notices, obtain all necessary
consents or releases from the holders of Target Options and
shall take all other lawful action as may be necessary to
provide for and give effect to the transactions contemplated by
this Section 2.5(b).
(c)
Treatment of Restricted
Stock
.
At the Effective Time and by virtue of
the Merger and without any action by any of the Parties or the
holders of Target Restricted Stock, the restrictions on the
Target Restricted Stock issued and outstanding immediately
before the Effective Time shall lapse, and such Target
Restricted Stock shall be treated in accordance with
Section 2.4(e).
2.6
Procedure for Payment
.
(a) Immediately after the Effective Time, (i) Parent
will cause Surviving Corporation to furnish to Computershare
Trust Company (the
Paying Agent
) an
amount of cash (the
Payment Fund
) sufficient
for the Paying Agent to make full payment of the Merger
Consideration to the record holders of Target Shares issued and
outstanding immediately before the Effective Time (other than
any Dissenting Shares, Parent-owned Shares and Target Shares
held in the treasury of Target) and (ii) Parent will cause
the Paying Agent to mail a letter of transmittal (which shall be
in customary form and shall provide instructions for its use) to
each record holder of Target Shares issued and outstanding
immediately before the Effective Time (other than any Dissenting
Shares, Parent-owned Shares and Target Shares held in the
treasury of Target) for the holder to use in surrendering the
certificates that represented his, her or its Target Shares
against payment of the Merger Consideration. Upon surrender of
such Target Shares, together with such letter of transmittal,
duly executed, and such other documents as may reasonably be
required by the Paying Agent, the Paying Agent shall promptly
pay to the holders thereof the aggregate Merger Consideration
into which such Target Shares shall have been converted pursuant
to Section 2.4(e). No interest will accrue or be paid to
the holder of any outstanding Target Shares.
(b) Surviving Corporation may cause the Paying Agent to
invest the cash included in the Payment Fund in one or more
Permitted Investments, provided that the terms and conditions of
the investments shall be such as to permit the Paying Agent to
make prompt payment of the Merger Consideration as necessary.
Surviving Corporation may
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cause the Paying Agent to pay over to Surviving Corporation any
net earnings with respect to the investments, and Surviving
Corporation shall replace promptly any portion of the Payment
Fund that the Paying Agent loses through the investments.
(c) Surviving Corporation may cause the Paying Agent to pay
over to Surviving Corporation any portion of the Payment Fund
(including any earnings thereon) remaining 180 days after
the Effective Time, and thereafter all former stockholders shall
be entitled to look to Surviving Corporation (subject to
abandoned property, escheat, and other similar Laws) as general
creditors thereof with respect to the cash payable upon
surrender of their certificates. Any Merger Consideration
remaining unclaimed as of a date which is immediately prior to
such time as such amounts would otherwise escheat to or become
property of any Governmental Entity shall, to the extent
permitted by applicable Law, become the property of Surviving
Corporation free and clear of any claims or interests of any
Person previously entitled thereto.
(d) Surviving Corporation shall pay all charges and
expenses of the Paying Agent.
(e) Notwithstanding anything in this Agreement to the
contrary, Parent, Surviving Corporation and the Paying Agent
shall be entitled to deduct and withhold from the consideration
otherwise payable to any former holder of Target Shares or
Target Options pursuant to this Agreement any amount as may be
required to be deducted and withheld with respect to the making
of such payment under applicable Tax Laws. To the extent that
amounts are so properly withheld by Parent, Surviving
Corporation or the Paying Agent, as the case may be, and are
paid over to the appropriate Governmental Entity in accordance
with applicable Law, such withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the holder
of the Target Shares or Target Options in respect of which such
deduction and withholding was made by Parent, Surviving
Corporation or the Paying Agent, as the case may be.
2.7
Closing of Transfer
Records
.
After the Effective Time, the stock
transfer books of Target shall be closed and thereafter there
shall be no further registration of transfers of Target Shares
that were outstanding prior to the Effective Time.
ARTICLE III
Targets
Representations and Warranties
Target represents and warrants to Parent and Acquisition Sub
that the statements contained in this ARTICLE III are
correct and complete, except as set forth in (i) the
disclosure schedule accompanying this Agreement (the
Disclosure Schedule
) or (ii) specific
disclosures of events, facts or circumstances which have already
occurred or already exist and are set forth in reasonable detail
in the Target SEC Documents, but only to the extent it is
reasonably apparent that any such disclosure set forth in the
Target SEC Documents would qualify the representations and
warranties contained herein and only to the extent that such
disclosure is not deemed to modify any statement contained in
this ARTICLE III that includes a specific reference to the
Disclosure Schedule (unless the Disclosure Schedule includes a
reference to the specific location of the disclosure set forth
in the Target SEC Documents), and excluding (A) any
exhibits to the Target SEC Documents, (B) any items
included therein that are incorporated by reference to other
filings or documents, (C) any risk factor disclosures or
other predictive or forward-looking disclosures contained
therein and (D) any Target SEC Documents that are filed
after the date of this Agreement. The Disclosure Schedule will
be arranged in paragraphs corresponding to the lettered and
numbered paragraphs contained in this ARTICLE III.
3.1
Due Organization; Good Standing;
Certificate of Incorporation and Bylaws
.
Each
of Target and its Subsidiaries is duly organized, validly
existing and in good standing (with respect to jurisdictions
that recognize the concept of good standing) under the Laws of
the jurisdiction in which it is organized, and has all the
corporate power and authority required to carry on its business
as it is now being conducted and to own and use the properties
owned and used by it. Each of Target and its Subsidiaries is
duly qualified or licensed to do business in each jurisdiction
in which the nature of the business conducted by it or the
character of the properties owned or used by it makes such
qualification or license necessary. Target has delivered or made
available to Parent and Acquisition Sub a complete and correct
copy of Targets certificate of incorporation, as amended
to date (the
Target Certificate of
Incorporation
), and Targets amended and restated
bylaws, as currently in effect (the
Target
Bylaws
). The Target
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Certificate of Incorporation and the Target Bylaws are in full
force and effect and no other Organizational Documents are
applicable to or binding on Target. Target is not in violation
of any provisions of the Target Certificate of Incorporation or
the Target Bylaws.
3.2
Capitalization, Etc
.
(a) The entire authorized capital stock of Target consists
of 32,500,000 shares, divided into 30,000,000 shares
of Target Common Stock and 2,500,000 shares of Target
Preferred Stock. Of the Target Preferred Stock,
100,000 shares are designated as Target Series B
Convertible Preferred Stock. As of June 25, 2009, there are
(i) 10,455,821.72 shares of Target Common Stock issued
and outstanding, (ii) 31,202 shares of Target Common
Stock held in treasury, (iii) 100,000 shares of Target
Series B Convertible Preferred Stock issued and
outstanding, (iv) an aggregate of 404,809.07 shares of
Target Common Stock issuable on the exercise of outstanding
Target Options, with a weighted average exercise price of $10.58
per share, (v) an aggregate of 779,221 shares of
Target Common Stock issuable on conversion of the Senior Notes,
with a conversion price of $15.40 per share, (vi) an
aggregate of 1,384,424 shares of Target Common Stock
issuable on the exercise of Target Warrants, with a weighted
average exercise price of $14.76 per share and (vii) an
aggregate of 100,000 shares of Target Common Stock issuable
on conversion of the Target Series B Convertible Preferred
Stock. All of the issued and outstanding Target Shares have been
duly authorized and are validly issued, fully paid and
non-assessable. Target has delivered or made available to Parent
and Acquisition Sub a complete and correct copy of the Target
Equity Plans, which cover the Target Options and restricted
stock awards granted by Target that are outstanding as of the
date of this Agreement, and the forms of all Target Option
agreements and restricted stock award agreements evidencing such
Target Options and stock awards.
(b) All of the issued and outstanding shares of capital
stock, membership interests or other similar equity interests,
as applicable, of each of Targets Subsidiaries are held of
record or owned beneficially by one or more of Target and its
Subsidiaries free and clear of all Liens, other than Permitted
Liens, and have been duly authorized and are validly issued,
fully paid and non-assessable. Section 3.2(b) of the
Disclosure Schedule lists all Subsidiaries of Target, together
with the jurisdiction of organization of each such Subsidiary.
Except for the Subsidiaries listed in Section 3.2(b) of the
Disclosure Schedule, neither Target nor any of its Subsidiaries
owns or has any right to acquire, directly or indirectly, any
outstanding capital stock, membership interests or other similar
equity interests, as applicable, of any Entity.
(c) Except as set forth in Section 3.2(a) of the
Disclosure Schedule, (i) there are no outstanding or
authorized (A) shares of capital stock or other voting
securities of Target, except for Target Common Stock issued
pursuant to the exercise of Target Options in accordance with
their terms, (B) securities of Target convertible into or
exchangeable for shares of capital stock or voting securities of
Target or any of its Subsidiaries or (C) options, warrants,
purchase rights, subscription rights, conversion rights,
exchange rights or other contracts or commitments that could
require Target or any of its Subsidiaries to issue, sell or
otherwise cause to become outstanding any capital stock of
Target or any of its Subsidiaries and (ii) there are no
outstanding obligations of Target or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any of such shares,
securities, options, warrants, rights, contracts or commitments.
There are no outstanding or authorized stock appreciation,
phantom stock, profit participation or similar rights with
respect to Target or any of its Subsidiaries. No Target Shares
are held by any Subsidiary of Target.
3.3
Authority; Binding Nature of
Agreement
.
Target has all the power and
authority required to execute and deliver this Agreement, to
perform its obligations under this Agreement and, subject to
obtaining the Requisite Stockholder Approval, to consummate the
Merger. The board of directors of Target has unanimously (other
than with respect to one director, who recused himself from the
vote) (a) determined that the Merger is fair to, and in the
best interests of, Targets stockholders,
(b) authorized and approved the execution, delivery and
performance of this Agreement by Target, (c) declared that
this Agreement is advisable and (d) resolved to recommend
the Agreement and Merger to Targets stockholders. This
Agreement has been duly executed and delivered by Target and
constitutes the legal, valid and binding obligation of Target,
enforceable against Target in accordance with its terms. The
Requisite Stockholder Approval is the only vote of the holders
of any class or series of Targets capital stock necessary
to adopt this Agreement or approve the Merger.
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3.4
Non-Contravention;
Consents
.
Neither the execution and delivery
of this Agreement by Target, nor the consummation of the
transactions contemplated hereunder by Target, does or will
(a) violate or conflict with any of the provisions of the
Organizational Documents of Target or any of its Subsidiaries,
(b) violate any Law to which Target or any of its
Subsidiaries is subject or (c) (i) materially conflict
with, (ii) result in a material breach or default (or cause
an event that with or without giving of notice or lapse of time
or both would become a material breach or default) under,
(iii) result in the termination of, (iv) accelerate
the performance required by, (v) result in a right of
termination or acceleration under any Target Material Contract
(or result in the imposition of any Lien on any of its material
assets). Except as may be required by the Securities Exchange
Act or the DGCL and except as set forth in Section 3.4 of
the Disclosure Schedule, neither Target nor any of its
Subsidiaries is required to give any notice to, make any filing
with or obtain any authorization, consent or approval from any
Person in order for the Parties to consummate the transactions
contemplated by this Agreement.
3.5
SEC Filings; Financial Statements
.
(a) Target has timely filed (after giving effect to any
extended time for filing under
Rule 12b-25
under the Securities Exchange Act) all forms, reports,
statements, certifications and other documents (including all
exhibits, amendments and supplements thereto) required to be
filed with or furnished to the SEC since July 31, 2007
(collectively the
Target SEC Documents
). Each
of the Target SEC Documents, as amended before the date of this
Agreement, complied in all material respects with the applicable
requirements of the Securities Act or the Securities Exchange
Act, as in effect when filed. None of the Target SEC Documents
contained, when filed, or if amended before the date of this
Agreement, as of the date of such amendment, any untrue
statement of a material fact or omitted to state a material fact
required to be stated in order to make the statements therein,
in the light of the circumstances under which they were made,
not misleading. True and correct copies of all Target SEC
Documents filed before the date of this Agreement have been
delivered to Parent or are publicly available in the Electronic
Data Gathering, Analysis and Retrieval (EDGAR) database of the
SEC. None of Targets Subsidiaries is required to file, or
files, any form, report or other document with the SEC.
(b) Target is in compliance with, and has complied, in all
material respects with the applicable provisions of the
Sarbanes-Oxley Act of 2002 and the related rules and regulations
promulgated under such Act or the Securities Exchange Act. The
management of Target has (i) implemented disclosure
controls and procedures (as defined in
Rule 13a-15(e)
of the Securities Exchange Act) to ensure that material
information relating to Target and its Subsidiaries is made
known to the management of Target by others within those
Entities and (ii) disclosed, based on its most recent
evaluation, to Targets outside auditors and the audit
committee of the board of directors of Target (A) all
significant deficiencies and material weaknesses in the design
or operation of internal controls (as defined in
Rule 13a-15(f)
of the Securities Exchange Act) that are reasonably likely to
materially affect Targets ability to record, process
summarize and report financial data and (B) any fraud,
whether or not material, that involves management or other
employees who, in each case, have a significant role in
Targets internal controls.
(c) Since January 31, 2009, none of Target,
Targets board of directors of Target nor any committee of
such board has received any oral or written notification of any
(i) significant deficiency in the internal
controls over financial reporting of Target,
(ii) material weakness in the internal controls
over financial reporting of Target or (iii) fraud, whether
or not material, that involves management or other employees of
Target or any of its Subsidiaries who have a significant role in
the internal controls over financial reporting.
(d) Target has filed quarterly reports on
Form 10-Q
for the fiscal quarters ended as of January 31, 2009 (the
Most Recent Fiscal Quarter End
) and
October 31, 2008 and an annual report on
Form 10-K
for the fiscal year ended July 31, 2008. The financial
statements (including related notes and schedules) included in
or incorporated by reference into these Target SEC Documents
have been prepared in accordance with GAAP applied on a
consistent basis (except as may be disclosed in the notes to
such financial statements) throughout the periods and at the
dates covered thereby and fairly present the financial position
of Target and its Subsidiaries as of the respective dates
thereof and the results of operations, stockholders equity
and cash flows of Target and its Subsidiaries for the periods
covered thereby;
provided, however,
that the financial
statements included in the quarterly reports are subject to
normal year-end adjustments.
(e) Neither Target nor any of its Subsidiaries has any
liability (whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated,
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and whether due or to become due), including any liability for
Taxes, except for (i) liabilities set forth on the face of
the balance sheet as of the Most Recent Fiscal Quarter End
(rather than in any notes thereto) and (ii) liabilities
that have arisen after the Most Recent Fiscal Quarter End in the
Ordinary Course of Business (none of which results from, arises
out of, relates to, is in the nature of, or was caused by any
breach of contract, breach of warranty, tort, infringement or
violation of a Law).
3.6
Absence of Certain Changes
.
(a) Since the Most Recent Fiscal Quarter End,
(i) there has not been any Material Adverse Change,
(ii) Target and its Subsidiaries have conducted their
business in the Ordinary Course of Business and
(iii) neither Target nor any of its Subsidiaries has
(A) suffered any material loss, damage or destruction to
any of its assets or (B) except as expressly contemplated
by this Agreement, taken any action that, if taken after the
date hereof, would have constituted a breach of
Section 5.5(b).
(b) Since the Most Recent Fiscal Quarter End, Target has
maintained a positive Net Working Capital balance of at least
$1,000,000 and has maintained a positive Available Free Cash
balance of at least $1,000,000. The Parties agree that Net
Working Capital, Current Assets, Current Liabilities and
Available Free Cash shall be calculated using accounting
principles, methodologies and practices consistent with GAAP as
applied on a consistent basis with the principles, methodologies
and practices used with respect to the Most Recent Balance
Sheet. For purposes of this Agreement,
Net Working
Capital
means the aggregate amount of Current Assets,
minus
the aggregate amount of Current Liabilities. For
purposes of this Agreement,
Current Assets
means all current assets of Target and its Subsidiaries,
including trade receivables (net of allowances), inventories
(net), prepaid expenses, other current assets, cash and cash
equivalents. For purposes of this Agreement,
Current
Liabilities
means all current liabilities of Target
and its Subsidiaries, including accounts payable and accrued
liabilities, but excluding all other current liabilities
(including deferred gain on sale leaseback, deferred revenue,
short-term borrowings, current portion of long-term debt
(including the Senior Notes) and current liabilities of
discontinued operations). For purposes of this Agreement,
Available Free Cash
means the aggregate
amount of all cash and cash equivalents of Target and its
Subsidiaries.
3.7
Legal Proceedings;
Orders
.
There is no Legal Proceeding pending
or, to the Knowledge of Target, threatened against Target or any
of its Subsidiaries or any of its or their respective properties
or rights or any of its or their respective officers or
directors in their capacity as such, nor any internal
investigations (other than investigations in the ordinary course
of Targets or any of its Subsidiaries compliance
programs) being conducted by Target or any of its Subsidiaries
nor have any acts of alleged misconduct by Target or any of its
Subsidiaries been reported to Target or any of its Subsidiaries.
Neither Target nor any of its Subsidiaries, nor any of its or
their respective properties is subject to any order, judgment,
injunction, ruling, charge or decree related to the conduct of
the respective businesses of Target and its Subsidiaries. To the
Knowledge of Target, no Person is challenging the right of
Target or any Subsidiary to design, manufacture, license, offer
or sell any Products.
3.8
Brokers; Schedule of Fees and
Expenses
.
Neither Target nor any of its
Subsidiaries has any liability or obligation to pay any
brokerage, finders or other similar fee or commission to
any broker, finder, agent or investment banker with respect to
the transactions contemplated by this Agreement. A good faith
estimate, as the date of this Agreement, of all third party fees
and expenses, including any fees that may be payable upon the
consummation of the transactions contemplated by this Agreement,
such as success fees and the like, of any accountant, broker,
financial advisor, consultant, legal counsel or other person
retained by Target in connection with this Agreement or the
transactions contemplated hereby incurred or to be incurred or
expected to be incurred by Target or any of its Subsidiaries
with respect to this Agreement and the transactions contemplated
by this Agreement is set forth on Section 3.8 of the
Disclosure Schedule.
3.9
Intellectual Property
.
(a) Each product developed, manufactured, marketed,
distributed, performed, licensed, sold, rendered, provided,
offered, performed or planned in writing by Target or any of its
Subsidiaries (
Product
) since January 1,
2005 through Closing is set forth in Section 3.9(a) of the
Disclosure Schedule.
(b) All Target Intellectual Property owned in whole or in
part at any time by Target, and to the Knowledge of Target all
other Target Intellectual Property, that is or at any time has
been subject to an application or registration
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for protection under the Laws of any jurisdiction throughout the
world (whether now pending, existing, abandoned or expired) are
set forth in Section 3.9(b) of the Disclosure Schedule,
specifying as to all such Target Intellectual Property:
(i) the type of the Target Intellectual Property;
(ii) the owner of the Target Intellectual Property (and, in
the case that Target or any of its Subsidiaries is not the
owner, the nature of the rights held by Target or its
Subsidiaries, as applicable);
(iii) the jurisdictions by or in which such Target
Intellectual Property has been issued or registered or in which
an application for such issuance or registration has been filed,
including the respective registration or application numbers and
dates of issuance, registration or filing; and
(iv) each Product to which the Target Intellectual Property
relates.
Other than the Target Intellectual Property set forth on
Section 3.9(b) of the Disclosure Schedule, there are no
other Intellectual Property material to or necessary for the
conduct of the business of Target or any of its Subsidiaries as
currently conducted and as proposed to be conducted that is or
at any time has been subject to an application or registration
for protection under the laws of any jurisdiction throughout the
world (whether now pending, existing, abandoned or expired).
(c) In Section 3.9(c) of the Disclosure Schedule,
Target has accurately identified and described each filing,
payment, and action that must be made or taken on or before the
date that is 120 days after the date of this Agreement in
order to maintain any applications and registrations for all
Target Intellectual Property owned by Target or any of its
Subsidiaries. Target has provided to Parent complete and
accurate copies of all applications, registrations,
correspondence and other material documents filed, or to be
filed, with the applicable Governmental Entity related to the
Target Intellectual Property during such
120-day
period. All registrations and applications for Target
Intellectual Property owned by Target or any of its Subsidiaries
are registered in the name of Target or one of its Subsidiaries,
and Target or one of its Subsidiaries is in possession of all
applications, registrations (and certificates of registration
and letters patent), renewals, reissues, extensions and all
other instruments evidencing ownership of the Target
Intellectual Property.
(d) Target has provided Parent with accurate and complete
copies of all License-In Contracts, all of which are set forth
on Section 3.9(d) of the Disclosure Schedule. For each
License-In Contract, Section 3.9(d) of the Disclosure
Schedule further specifies the parties to, and the nature of the
rights held by Target or any of its Subsidiaries in the Target
Intellectual Property subject to, the License-In Contract. Each
License-In Contract is binding against all parties to such
License-In Contract, fully exercisable and enforceable by Target
or its applicable Subsidiary, and in full force and effect. The
License-In Contracts provide Target or its applicable Subsidiary
with all rights, licenses, authorizations and other permissions
to any Intellectual Property owned by any Person other than
Target or its applicable Subsidiary necessary for the conduct
the business of Target and its Subsidiaries in any manner, as
currently conducted or as proposed to be conducted. The rights
acquired under each License-In Contract will be fully
exercisable and enforceable by Parent on and after the Closing
to the same extent as by Target and its Subsidiaries prior to
the Closing. Neither Target nor any of its Subsidiaries have any
obligation to compensate or account to any Person an amount in
excess of $10,000 for the use of any Intellectual Property.
(e) Target has provided Parent with accurate and complete
copies of all License-Out Contracts, all of which are set forth
on Section 3.9(e) of the Disclosure Schedule. For each
License-Out Contract, Section 3.9(e) of the Disclosure
Schedule further specifies the parties to, and the nature of the
rights held by Target and its Subsidiaries in the Target
Intellectual Property subject to, the License-Out Contract. Each
License-Out Contract is binding against all parties to such
License-Out Contract, fully exercisable and enforceable by
Target or its applicable Subsidiary, and in full force and
effect. Each License-Out Contract will be fully exercisable and
enforceable by Parent on and after the Closing to the same
extent as by Target or its applicable Subsidiary before the
Closing.
(f) Except for the Licensed-In IP subject to a License-In
Contract set forth on Section 3.9(d) of the Disclosure
Schedule, (i) Target or one of its Subsidiaries is the sole
and exclusive owner of all right, title and interest in and to
the Target Intellectual Property free and clear of all Liens or
other rights, licenses, equities or claims; (ii) all Target
Intellectual Property (or portion thereof) are valid, fully
enforceable, and in full force and effect, and following
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Closing will remain, to the Knowledge of Target, valid, fully
enforceable, and in full force and effect; and (iii) the
Surviving Corporation will be the sole and exclusive owner free
and clear of all Liens or other rights, licenses, equities or
claims, of all right, title and interest in and to all of the
Target Intellectual Property (or portion thereof) on and after
the Closing, to the Knowledge of Target, without seeking the
authorization, consent or approval of any Person and without
payments to any Person other than as set forth in this Agreement.
(g) (i) Neither Target nor any of its Subsidiaries has
received any notice of any claim or allegation of infringement,
misappropriation or other violation from any Person with respect
to the Target Intellectual Property; (ii) the Target
Intellectual Property and the operation of the business of
Target and its Subsidiaries as currently conducted and as
proposed to be conducted are not currently infringing on, in
conflict with, misappropriating, or otherwise violating any
Intellectual Property of any Person and, to the Knowledge of
Target, are not subject to any pending or threatened litigation
or other adverse claim of infringement or misappropriation by
any Person; (iii) except for as listed in
Section 3.9(g) of the Disclosure Schedule, within the last
10 years, neither Target nor any of its Subsidiaries has
threatened, initiated or contemplated any claim or allegation
against any Person alleging that the Person infringes,
misappropriates or otherwise violates any Target Intellectual
Property; (iv) to the Knowledge of Target, no Person has
infringed or otherwise misappropriated or is now infringing or
misappropriating any Target Intellectual Property; (v) to
the Knowledge of Target, all of the Target Intellectual Property
is valid, subsisting and enforceable on the Closing;
(vi) there have been no threats received by Target or any
of its Subsidiaries alleging that any Target Intellectual
Property is invalid or unenforceable; and (vii) to the
Knowledge of Target, there has been no prior use of any Target
Intellectual Property (or portion thereof) by any Person that
would confer upon such Person superior rights in such Target
Intellectual Property (or portion thereof). Each of Target and
its Subsidiaries has taken reasonable steps to preserve and
maintain records relating to the Target Intellectual Property.
(h) No interference, opposition, reissue, reexamination or
other proceeding of any nature is or has been pending or
threatened, in which the scope, validity or enforceability of
any Target Intellectual Property is being, has been or could
reasonably be expected to be contested or challenged.
(i) Each of Target and its Subsidiaries has used best
efforts to protect and preserve the security, confidentiality
and value of the Target Intellectual Property. Without limiting
the foregoing, each of Target and its Subsidiaries has at all
times enforced a policy requiring each of its employees,
consultants and contractors, and any other Person involved in
the creation or development of any Target Intellectual Property,
to enter into a valid and enforceable non-disclosure and
invention assignment agreement with Target or its applicable
Subsidiary substantially in Targets standard form, a copy
of which is included as Section 3.9(i) of the Disclosure
Schedule (
Target Non-Disclosure and Invention
Assignment Contract
). All current and former
employees, consultants and contractors of Target or any of its
Subsidiaries, and any other Person involved in the creation or
development of any Target Intellectual Property (or portion
thereof), have executed a valid and enforceable Target
Non-Disclosure and Invention Assignment Contract and a copy of
each such Target Non-Disclosure and Invention Assignment
Contract has been delivered to Parent. No Person other than
Target and its Subsidiaries has any claim, right (whether or not
currently exercisable) or interest to or in any Target
Intellectual Property (or portion thereof). There has been no
misappropriation of confidential information of Target or any of
its Subsidiaries.
(j) Neither Target nor any of its Subsidiaries is utilizing
in its business, nor will Surviving Corporation be required to
utilize in the business of the Surviving Corporation after
Closing: (i) any inventions of any employees of Target or
any of its Subsidiaries made, or any Trade Secrets (including
confidential information) of any Person to which such employees
were exposed, prior to their employment by Target or any of its
Subsidiaries; and (ii) any Trade Secrets (including
confidential information) of another Person to which any
independent contractors or consultants of Target or any of its
Subsidiaries have been exposed.
(k) None of the Target Software: (i) contains, to the
Knowledge of Target, any bug, defect or error (including any
bug, defect or error relating to or resulting from the display,
manipulation, processing, storage, transmission or use of date
data) that materially and adversely affects the use,
functionality or performance of such Target Software or any
product or system containing or used in conjunction with such
Target Software; or (ii) fails to comply with any
applicable warranty or other contractual commitment relating to
the use, functionality or performance of the Target Software or
any product or system containing or used in conjunction with
such Target Software. No Target Software is, in whole or in
part, subject to the provisions of any open source, quasi-open
source or any other
A-15
Contract obligating Target or any of its Subsidiaries to make
source code available to third parties or to publish source code
under any circumstances. No source code for any Target Software
has been delivered, licensed or made available to any escrow
agent or other Person who is not, as of the date of this
Agreement an employee of Target or any of its Subsidiaries.
Neither Target nor any of its Subsidiaries has any duty or
obligation (whether present, contingent or otherwise) to
deliver, license or make available the source code for any
Target Software to any escrow agent or other Person who is not,
as of the date of this Agreement, an employee of Target or one
of its Subsidiaries.
(l) Neither Target nor any of its Subsidiaries has made any
submission or suggestion to, or otherwise participated in, and
is not subject to any Contract with, any standards bodies or
other entities that could obligate Target or any of its
Subsidiaries to grant licenses or rights with respect to or
otherwise impair its control of Target Intellectual Property. No
funding, facilities or personnel of any Governmental Entity or
educational institution were used, directly or indirectly, to
develop or create, in whole or in part, any of the Target
Intellectual Property.
(m) Target and its Subsidiaries exercised reasonable
diligence with respect to the filing, prosecution and
maintenance of all Intellectual Property owned or exclusively
licensed by Target or any of its Subsidiaries. For each patent
or patent application owned by Target or any of its
Subsidiaries, (i) all inventors have been properly
identified and named; (ii) all inventors have executed an
assignment of rights to Target or its applicable Subsidiary and,
at Closing, Target or its applicable Subsidiary shall be the
sole assignee; and (iii) to the Knowledge of Target, the
United States Patent and Trademark Office (the
USPTO
) has been provided full disclosure,
including prior art (in accordance with 37 C.F.R. §
1.56) and best mode at the time of filing (in accordance with
35 U.S.C. § 112). For each patent or patent
application licensed by Target or any of its Subsidiaries,
(1) to the Knowledge of Target, all inventors have been
properly identified and named; (2) to the Knowledge of
Target, the USPTO has been provided full disclosure, including
prior art (in accordance with 37 C.F.R. § 1.56) and
best mode at the time of filing (in accordance with
35 U.S.C. § 112); and (3) any royalties due to
third parties have been fully set forth in Section 3.9(m)
of the Disclosure Schedule.
(n) Any filing, registration, issuance, maintenance and
renewal fees due in connection with the Target Intellectual
Property (or portion thereof) have been paid on or before the
final deadline for paying such fees and all documents,
certificates and other material necessary to maintain such
Target Intellectual Property (or portion thereof) have been
filed on or before the final deadline for paying such fee with
the relevant Governmental Entity. Target and its Subsidiaries
have complied with any and all obligations pertaining to listing
any relevant Patents included in the Target Intellectual
Property in the FDA Orange Book and have also complied with any
and all obligations under the Bayh-Dole Act. Except as set forth
in Section 3.9(n) of the Disclosure Schedule, no Person has
submitted and, to the Knowledge of Target, no Person has
indicated any plan to submit, an Abbreviated New Drug
Application that includes a certification as defined in
21 U.S.C. 355(j)(2)(A)(vii)(IV) citing any Patent listed in
the FDA Orange Book for any Product.
3.10
Title to Assets; Real Property
.
(a) One or more of Target and its Subsidiaries has good
title to, or a valid leasehold interest in, the properties and
assets used by them, located on their premises or reflected on
the Most Recent Balance Sheet or acquired after the date
thereof, free and clear of any Liens, other than Permitted
Liens, except for property and assets disposed of in the
Ordinary Course of Business since the Most Recent Fiscal Quarter
End. One or more of Target and its Subsidiaries own or lease all
buildings, machinery, equipment and other tangible assets
necessary for the conduct of their business as presently
conducted.
(b) Section 3.10(b) of the Disclosure Schedule
contains a complete and accurate list of all of the existing
leases, subleases, licenses or other agreements (collectively,
the
Real Property Leases
) under which Target
or any of its Subsidiaries uses or occupies or has the right to
use or occupy, now or in the future, any real property (the
Leased Real Property
). Target has delivered
or otherwise made available to Parent true, correct and complete
copies of all Real Property Leases (including all modifications
and side agreements in connection therewith). Except as set
forth in the Real Property Leases, neither Target nor any of its
Subsidiaries have transferred or assigned any interest in any
Real Property Lease, nor have they subleased or otherwise
granted rights of use or occupancy of any of the premises
described therein to any other Person. Section 3.10(b) of
the Disclosure Schedule contains a complete and accurate list of
all of the real property owned in fee by Target or its
Subsidiaries (the
Owned Real Property
).
Neither Target nor any of its Subsidiaries have subleased or
otherwise granted rights of
A-16
use or occupancy to any other Person of any Owned Real Property.
There are no outstanding agreements, options, rights of first
offer or rights of first refusal on the part of any Person to
purchase any Owned Real Property. The Leased Real Property, the
Owned Real Property and the personal property owned or leased by
Target or any of its Subsidiaries are in good operating
condition and repair and free from any material defects,
reasonable wear and tear excepted, and are suitable for the uses
for which they are being used in all material respects.
3.11
Contracts
.
Section 3.11
of the Disclosure Schedule contains a complete and accurate list
of all Contracts to which Target or any of its Subsidiaries is a
party or by which Target, any of its Subsidiaries or any of
their respective assets is bound that (a) is a
material contract (as defined in
Item 601(b)(10) of
Regulation S-K
of the SEC), (b) restricts or limits in any way the ability
of Target or any of its Subsidiaries to conduct business,
including to compete in any geographic area or line of business,
(c) is a partnership, joint venture, product development,
research and development or other agreement involving an
allocation or sharing of profits, losses, costs or liabilities,
(d) is a Contract to allocate, share or otherwise indemnify
for Taxes, (e) involves aggregate payments of more than
$100,000 annually, (f) is between one or more of Target and
its Subsidiaries and any director or officer of Target or any
Person beneficially owning five percent or more of any class of
the outstanding Target Shares, (g) is an employment or
consulting Contract, (h) provides for benefits (including
severance pay, accelerated vesting, bonuses and relocation
expenses) to be provided to any employee, director or officer
upon or in connection with a change in control of Target or any
of its Subsidiaries, (i) provides for indemnification or a
guaranty by Target or any of its Subsidiaries to any Person,
(j) is a loan or credit agreement, indenture, mortgage,
note, guaranty or other Contract evidencing indebtedness for
money borrowed, (k) grants most favored nation or
customer status that, following the Merger, would apply to
Parent or its Affiliates (including Target and Targets
Subsidiaries), (l) prohibits or limits the right of Target
or any of its Subsidiaries (or, after the Effective Time, Parent
or its Affiliates) to make, develop, sell or distribute any
Products or use, transfer, license, distribute or enforce any of
the Target Intellectual Property, (m) would prevent or
impair Targets ability to consummate the Merger,
(n) could require the disposition of any material assets or
line of business of Target or any of its Subsidiaries (or, after
the Effective Time, Parent or its Affiliates), (o) contains
a put, call or similar right pursuant to which Target or any of
its Subsidiaries (or, after the Effective Time, Parent or its
Affiliates) could be required to purchase or sell, as
applicable, any equity interests of any Person, (p) is a
Real Property Lease, (q) is a Contract the term of which
exceeds one year and is not terminable by Target or any of its
Subsidiaries, as applicable, on notice of 60 days or less,
(r) relates to the acquisition, sale or disposition of any
material business unit or product line of Target or any of its
Subsidiaries, (s) relates to the creation of a Lien on any
asset of Target or any of its Subsidiaries, (t) is a
commercial Contract with any Governmental Entity, (u) is a
non-disclosure, confidentiality, standstill, non-solicitation,
non-hire or similar agreement or (v) was not negotiated and
entered into on an arms-length basis. The foregoing
Contracts, together with the License-In Contracts, the
License-Out Contracts and the Target Non-Disclosure and
Invention Assignment Agreements, are collectively referred to
herein as
Target Material Contracts
. Neither
Target nor any of its Subsidiaries is, or has received any
notice or has any Knowledge that any other party is, in breach
or default in any respect under any Target Material Contract,
and there has not occurred any event that with the lapse of
time, the giving of notice or both would constitute such breach
or default. Each Target Material Contract is valid, binding and
enforceable in accordance with its terms and is in full force
and effect with respect to one or more of Target and its
Subsidiaries, as applicable. Target has delivered or otherwise
made available to Parent true, correct and complete copies (or
in the case of oral Contracts, a true and correct written
summary of the material terms) of each Target Material Contract,
together with all amendments and supplements thereto.
3.12
Compliance with
Laws
.
Without limiting the generality of any
other provision herein, each of Target and its Subsidiaries is
currently in compliance, and since January 1, 2005 has
complied, in all material respects with all Laws and
Governmental Authorizations applicable to their business or
respective assets, and, since January 1, 2005, no Legal
Proceeding has been filed or commenced and no complaint, claim,
demand or notice has been made against Target or any of its
Subsidiaries alleging any failure to so comply.
3.13
Tax
Matters
.
Notwithstanding any information set
forth in any Target SEC Document:
(a) All Tax Returns required to have been filed by Target
and its Subsidiaries (i) have been filed on or before the
applicable due date (as such due date may have been extended),
and (ii) have been prepared in compliance with applicable
Laws. All Taxes due and owing by Target and its Subsidiaries
(whether or not
A-17
shown on any Tax Return) have been paid. Target is not and has
never been a United States real property holding corporation
within the meaning of section 897(c)(2) of the Code.
(b) The Most Recent Balance Sheet fully reflects all
accrued liabilities of Target and its Subsidiaries for Taxes
with respect to all periods through the time period on such Most
Recent Balance Sheet in accordance with GAAP. Since June 1,
2006, neither the Target nor any of its Subsidiaries has
incurred any liability for Taxes arising from extraordinary
gains or losses, as that term is used in GAAP, outside the
Ordinary Course of Business.
(c) Each of Target and its Subsidiaries have timely
withheld and paid all Taxes required to have been withheld and
paid in connection with any amounts paid or owing to any
employee, independent contractor, creditor, stockholder or other
third party.
(d) Neither the Target nor any of its Subsidiaries expects
any Tax Authority to assess any additional Tax for any period in
which Tax Returns have been filed. As of the date of this
Agreement, (i) there are no examinations or audits of any
Tax Return currently underway, (ii) no extension or waiver
of the limitation period applicable to any Tax Return is in
effect, (iii) no Legal Proceeding is pending or threatened,
in writing, by any Tax Authority against Target or any of its
Subsidiaries in respect of any material Tax, (iv) there are
no unsatisfied liabilities for Taxes with respect to any written
notice of deficiency or similar document received by Target or
any of its Subsidiaries with respect to any Tax (other than
liabilities for Taxes asserted under any such notice of
deficiency or similar document which are being contested in good
faith), and (v) there are no Liens for Taxes upon any of the
assets of Target or any of its Subsidiaries. Target is not
required to include any adjustment in taxable income for any Tax
period ending after the Closing Date as a result of any change
in method of accounting. Target has not been a member of any
combined, consolidated or unitary group (other than the group of
which Target is currently a member) for which it is currently or
will be liable for Taxes under principles of
Section 1.1502-6
of the Treasury Regulations.
(e) Neither Target nor any of its Subsidiaries has
constituted either a distributing corporation or a
controlled corporation in a distribution of stock
intended to qualify for tax-free treatment under
Section 355 of the Code (i) in the two years prior to
the date of this Agreement or (ii) in a distribution which
otherwise constitutes part of a plan or series
of related transactions (within the meaning of
Section 355(e) of the Code) that includes the Merger.
(f) Neither Target nor any of its Subsidiaries has engaged
in a reportable transaction, as set forth in
Section 1.6011-4(b)
of the Treasury Regulations, including any listed
transaction as defined in
Section 1.6011-4(b)(2)
of the Treasury Regulations.
(g) Neither Target nor any of its Subsidiaries have
received a written notice from any Governmental Entity in any
jurisdiction in which Target and its Subsidiaries do not
currently pay Tax claiming that either Target or any of its
Subsidiaries is subject to Tax in such jurisdiction.
(h) There is no agreement between Target or any of its
Subsidiaries and any employee or independent contractor of
Target or any of its Subsidiaries that will give rise to any
material payment that would not be deductible pursuant to
Section 280G or Section 162(m) of the Code. Neither
Target nor any of its Subsidiaries is a party to any Tax
indemnity agreement, Tax sharing agreement, Tax allocation
agreement or similar Contract, except as contemplated under
principles of
Section 1.1502-6
of the Treasury Regulations.
(i) Zila Limited, a United Kingdom limited corporation, is
and has at all times been properly treated as a disregarded
entity for federal Tax purposes, and has properly filed an IRS
Form 8832 to elect to be so treated as of the date of its
formation.
3.14
Employee Benefit Plans
.
(a) Target has provided or made available to Parent copies
of all employee benefit plans, policies, practices, Contracts,
agreements, programs or other arrangements providing for
compensation, bonus, change of control, severance, termination
pay, pension, retirement, disability, insurance, vacation,
deferred compensation, stock or stock related awards, fringe
benefits, welfare benefits or other remuneration maintained or
contributed to by Target or any of its Subsidiaries or under
which Target or any of its Subsidiaries or any ERISA Affiliate
has or may have
A-18
any liability for the benefit of any current or former employee,
independent contractor or director (the
Target Benefit
Plans
).
(b) Each Target Benefit Plan that is intended to be
qualified under Section 401(a) of the Code or any
non-U.S. jurisdiction
has received a favorable determination letter (or opinion
letter, if applicable) from the U.S. Internal Revenue
Service or applicable Governmental Entity stating that such
Target Benefit Plan is so qualified. Each Target Benefit Plan
has been operated in compliance with its terms and with all
applicable Laws.
(c) All contributions, premiums and other payments required
to be made with respect to any Target Benefit Plan have been
timely made under applicable Laws, any applicable collective
bargaining agreement and the terms of such Target Benefit Plan.
No event has occurred and there currently exists no condition or
set of circumstances in connection with which Target or any of
its Subsidiaries could reasonably be expected to be subject to
any material liability under the terms of any Target Benefit
Plan, ERISA, the Code or codes of practice issued by any
Governmental Entity, collective bargaining agreement or any
other applicable Laws. Except as required by Laws, neither
Target nor any of its Subsidiaries has any plan or commitment to
amend or establish any new Target Benefit Plan or to increase
any benefits under any Target Benefit Plan.
(d) There are no Legal Proceedings pending or threatened on
behalf of or against any Target Benefit Plan, the assets of any
trust under any Target Benefit Plan, or the plan sponsor, plan
administrator or any fiduciary or any Target Benefit Plan with
respect to the administration or operation of such plans, other
than routine claims for benefits that have been or are being
handled through an administrative claims procedure.
(e) None of Target, any of its Subsidiaries, or, to the
Knowledge of Target, any of their respective directors,
officers, employees or agents has, with respect to any Target
Benefit Plan, engaged in or been a party to any non-exempt
prohibited transaction, as such term is defined in
Section 4975 of the Code or Section 406 of ERISA,
which could reasonably be expected to result in the imposition
of a material penalty assessed pursuant to Section 502(i)
of ERISA or a material Tax imposed by Section 4975 of the
Code, in each case applicable to Target, any of its Subsidiaries
or any Target Benefit Plan or for which Target or any of its
Subsidiaries has any indemnification obligation.
(f) No Target Benefit Plan is (1) a defined
benefit plan (as defined in Section 414 of the Code),
(2) a multiemployer plan (as defined in
Section 3(37) of ERISA), (3) a multiple employer
plan (as defined in Section 4063 or 4064 of ERISA) or
(4) subject to Section 302 of ERISA, Section 412
of the Code or Title IV of ERISA.
(g) No Target Benefit Plan that is a welfare benefit
plan within the meaning of Section 3(1) of ERISA
provides benefits to former employees of Target or its ERISA
Affiliates, other than pursuant to Section 4980B of the
Code or any similar state, local or foreign law.
(h) Each non-qualified deferred compensation plan or
arrangement subject to Section 409A of the Code has been
operated and administered in good faith compliance with
Section 409A of the Code from the period beginning after
December 31, 2004 through the date hereof.
(i) Each Target Option or other similar right to acquire
Target Common Stock or other equity interests of Target
(i) has an exercise price that is not less than the fair
market value of the underlying equity as of the date such Target
Option or other similar right was granted in accordance with all
governing documents and in compliance with all applicable Law,
(ii) has no feature for the deferral of compensation other
than the deferral of recognition of income until the later of
exercise or disposition of such Target Option or other similar
right, (iii) to the extent it was granted after
December 31, 2004, was granted with respect to a class of
stock of Target that is service recipient stock
(within the meaning of applicable regulations and other guidance
issued with respect to Section 409A of the Code), and
(iv) has at all times been properly accounted for in
accordance with GAAP in Targets audited financial
statements included in documents filed with the SEC and provided
to Parent.
(j) No deduction for federal Tax purposes has been, nor is
any such deduction expected by Target to be, disallowed for
remuneration paid by Target or any of its Subsidiaries by reason
of Section 162(m) of the Code, including by reason of the
transactions contemplated by this Agreement.
A-19
(k) Except as required by applicable Laws or except as
otherwise expressly permitted under this Agreement, no condition
or term under any relevant Target Benefit Plan exists which
would prevent Parent or the Surviving Corporation or any of its
Subsidiaries from terminating or amending any Target Benefit
Plan at any time for any reason without liability to Parent or
the Surviving Corporation or any of its Subsidiaries (other than
ordinary administration expenses or routine claims for accrued
benefits).
(l) Except as expressly contemplated by this Agreement, the
execution and delivery of this Agreement and the consummation of
the Merger (i) will not materially increase the benefits
payable by Target under any Target Benefit Plan and
(ii) will not result in any acceleration of the time of
payment or vesting of any material benefits payable by Target
under any Target Benefit Plan.
3.15
Labor and Employment
Matters
.
Neither Target nor any of its
Subsidiaries is a party to any collective bargaining agreement
with any labor organization or other representative of any
employees, nor is any such agreement presently being negotiated
by Target or any of its Subsidiaries. To the Knowledge of
Target, there are no union organizing activities concerning any
employees of Target or any of its Subsidiaries. There are no
unfair labor practice charges, grievances or complaints pending
against Target or any of its Subsidiaries before the National
Labor Relations Board or any other labor relations tribunal or
authority, domestic or foreign. There are no strikes, work
stoppages, slowdowns, lockouts, arbitrations or grievances, or
other labor disputes pending or, to the Knowledge of Target,
threatened in writing against or involving Target or any of its
Subsidiaries. During the preceding two years, Target has not
effectuated a plant closing (as defined in Worker
Adjustment and Retraining Notification Act,
WARN
) or a mass lay-off (as
defined in WARN), in either case affecting any site of
employment or facility of Target or any of its Subsidiaries,
except in accordance with WARN.
3.16
Environmental
Matters
.
Each of Target and its Subsidiaries
has complied with all applicable Environmental Laws applicable
to their business or respective assets. To the Knowledge of
Target, no current or prior owner of any property leased or
controlled by Target or any of its Subsidiaries has received any
written notice from a Governmental Entity that such current or
prior owner or Target or any of its Subsidiaries is materially
violating any Environmental Law. There has been no release of
any hazardous materials at or from the Facilities and there are
otherwise no hazardous materials present in, on or under the
Facilities or at any other locations where any hazardous
materials were generated, manufactured, refined, transferred,
stored, produced, imported, used, processed from or disposed of
by Target or any of its Subsidiaries that would reasonably be
expected to result in a material liability to Target or any of
its Subsidiaries. Neither Target nor any of its Subsidiaries has
disposed of, emitted, discharged, handled, stored, transported,
used or released any hazardous materials, distributed, sold or
otherwise placed on the market hazardous materials or any
product containing hazardous materials, arranged for the
disposal, discharge, storage or release of any hazardous
materials, or exposed any employee or other individual to any
hazardous materials, which would reasonably be expected to
result in material liability or material corrective or remedial
obligation under any Environmental Laws. Neither Target nor any
of its Subsidiaries have entered into any Contract that may
require any of them to guarantee, reimburse, pledge, defend,
hold harmless or indemnify any other party with respect to
liabilities arising out of Environmental Laws or hazardous
materials related activities of Target or any of its
Subsidiaries or any other Person. To the Knowledge of Target,
there is no fact or circumstance that could involve Target or
any of its Subsidiaries in any material environmental litigation
or impose upon Target or any of its Subsidiaries any material
environmental liability. Target has delivered or made available
to Parent all material records any of Target and its
Subsidiaries have concerning their respective hazardous
materials activities and all environmental audits and
environmental assessments of the Facilities conducted at the
request of, or otherwise in the possession of, Target or any of
its Subsidiaries.
3.17
Insurance
.
Target and
its Subsidiaries have all material policies of insurance
covering Target, its Subsidiaries or any of their respective
employees, properties or assets, including policies of property,
fire, workers compensation, products liability,
directors and officers liability and other casualty
and liability insurance, that is in a form and amount that, to
the Knowledge of Target, is customarily carried by persons
conducting business similar to that of Target and its
Subsidiaries and which Target believes is adequate for the
operation of its business. All such insurance policies are in
full force and effect and there is no existing default or event
which, with the giving of notice or lapse of time or both, would
constitute a default, by any insured thereunder. Since
December 1, 2006, neither Target nor any of its
Subsidiaries has received any written communication notifying
Target or any of its Subsidiaries of any (a) cancellation
or invalidation of any material insurance policy held by Target
or any of its Subsidiaries
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(except with respect to policies that have been replaced with
similar policies), (b) refusal of any coverage or rejection
of any material claim under any material insurance policy held
by Target or any of its Subsidiaries or (c) material
adjustment in the amount of the premiums payable with respect to
any insurance policy held by Target or any of its Subsidiaries.
There is no pending claim by Target under any insurance policy
held by Target or any of its Subsidiaries.
3.18
Regulatory Compliance
.
(a) Each Product that is subject to the jurisdiction of the
Federal Food, Drug, and Cosmetic Act of 1938, as amended (the
FDCA
), the Public Health Service Act, as
amended (the
PHSA
), the Controlled Substances
Act, as amended (the
CSA
), and the
regulations promulgated thereunder or similar Laws in any
foreign jurisdiction, is being developed, manufactured, stored,
tested, marketed, promoted
and/or
distributed in compliance with all applicable requirements under
FDCA, the PHSA, the CSA and the regulations promulgated
thereunder or similar Laws in any foreign jurisdiction.
(b) All manufacturing operations relating to any Product or
conducted by, or on behalf of, Target or any of its Subsidiaries
have been and are being, to the extent required by applicable
Laws, conducted in compliance with the Federal Food and Drug
Administration (the
FDA
) regulations for
current Good Manufacturing Practice, including but not limited
to 21 C.F.R. Parts 210, 211, and 820, and applicable
guidance documents, as amended from time to time, and all
applicable similar requirements in other jurisdictions.
(c) All pre-clinical and clinical studies relating to
Products conducted by or on behalf of Target and any of its
Subsidiaries have been, or are being, conducted in compliance
with the requirements of the FDAs Good Laboratory Practice
regulations and FDAs guidance on Good Clinical Practice
and the conduct of clinical trials , as set forth in regulations
under 21 C.F.R. Parts 50, 54, 56, 58, 312, 812 and
applicable FDA guidance documents, as amended from time to time,
the Animal Welfare Act, and all applicable similar requirements
in other jurisdictions, and all requirements relating to
protection of human subjects and, to the extent it would not
reasonably be expected to result in a material liability to
Target, the provisions governing the privacy of patient medical
records under the Health Insurance Portability and
Accountability Act of 1996 and the implementing regulations of
the United States Department of Health and Human Services.
Target has not received any notice that the FDA or any state or
federal government authority or institutional review board has
initiated, or threatened to initiate, any clinical hold or other
action to suspend any clinical trial or suspend or terminate any
Investigational New Drug Application or Investigational Device
Exemption Application sponsored by or on behalf of Target
or otherwise restrict the preclinical research on or clinical
study of any Products.
(d) All applications, notifications, submissions,
information, claims, reports and statistics, and other data and
conclusions derived therefrom, utilized as the basis for or
submitted in connection with any and all requests for marketing
authorization from the FDA or other Governmental Entity relating
to Target or any of its Subsidiaries, and its respective
business and Products, when submitted to the FDA or other
Governmental Entity, were true, complete and correct in all
material respects as of the date of submission and any necessary
or required updates, changes, corrections or modification to
such applications, submissions, information and data have been
or are in the process of being submitted to the FDA or other
Governmental Entity.
(e) No Product has been voluntarily recalled, suspended or
discontinued by Target or any of its Subsidiaries at the request
of the FDA or any other Governmental Entity, nor has Target or
any of its Subsidiaries received any notice from the FDA or any
other Governmental Entity that it is not in compliance with
applicable requirements under FDCA, the PHSA, the CSA and the
regulations promulgated thereunder or similar Laws in any
foreign jurisdiction, including verbal notice or notice in the
form of inspectional observations in a
Form FDA-483,
warning letter or any other writing; nor has Target or any of
its Subsidiaries received any notice from the FDA or any other
Governmental Entity that it has commenced, or threatened to
initiate, any action to withdraw approval, place sales or
marketing restrictions on or request the recall of any Product,
or that it has commenced or threatened to initiate any action to
enjoin or place restrictions on the production of any Product.
(f) No officer, employee or agent of Target or any of its
Subsidiaries has made an untrue statement of a material fact or
fraudulent statement to the FDA or any other Governmental
Entity, failed to disclose a material fact required to be
disclosed to the FDA or any other Governmental Entity, or
committed an act, made a statement or
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failed to make a statement that, at the time such disclosure was
made, would reasonably be expected to provide a basis for the
FDA or any other Governmental Entity to invoke its policy
respecting Fraud, Untrue Statements of Material Facts,
Bribery, and Illegal Gratuities, set forth in 56 Fed. Reg.
46191 (September 10, 1991) or any similar policy.
Neither Target nor any of its Subsidiaries has employed or used
in any capacity the services of any individual or entity
debarred under 21 U.S.C. § 335a(a) or any similar Laws
in connection with a Product, and neither Target nor any of its
Subsidiaries, nor any of their respective directors, officers,
agents or employees, has engaged in any conduct that has
resulted, or would reasonably be expected to result, in
debarment under 21 U.S.C. § 335a(a) or any similar
Laws.
(g) Neither Target nor any of its Subsidiaries, nor any of
their respective directors, officers, agents or employees, has
engaged in any conduct that has resulted or would reasonably be
expected to result in any material violation of the Federal
Antikickback Statute (42 U.S.C. §
1320a-7(b)),
the civil False Claims Act (31 U.S.C. § 3729 et seq.),
the Anti-Inducement Law (42 U.S.C. §
1320a-7a(a)(5)),
the administrative False Claims Law (42 U.S.C.
§ 1320a-7b(a)),
the Health Insurance Portability and Accountability Act of 1996
(42 U.S.C. § 1320d et seq.), the exclusion laws
(42 U.S.C. §
1320a-7),
the FDCA (21 U.S.C. §§ 301 et seq.), the Medicare
Program (Title XVIII of the Social Security Act), the
Medicaid Program (Title XIX of the Social Security Act),
the regulations promulgated pursuant to such Laws, and any other
similar Law or guidance, including the collection and reporting
requirements, and the processing of any applicable rebate,
chargeback or adjustment owed by Target or any of its
Subsidiaries, under applicable rules and regulations relating to
the Medicaid Drug Rebate Program (42 U.S.C. §
1396r-8)
and
any state supplemental rebate program, Medicare average sales
price reporting (42 U.S.C. §
1395w-3a),
the PHSA (42 U.S.C. § 256b), the VA Federal Supply
Schedule (38 U.S.C. § 8126) or under any state
pharmaceutical assistance program or U.S. Department of
Veterans Affairs agreement, and any successor government
programs (collectively,
Health Care Laws
).
None of Target or any of its Subsidiaries has received any
written notification, correspondence or any other written
communication from any Governmental Entity, including, without
limitation, the FDA, the Centers for Medicare and Medicaid
Services and the Department of Health and Human Services Office
of Inspector General, of potential or actual material
non-compliance by, or liability of, Target or any of its
Subsidiaries, under any Health Care Laws.
(h) Target, its Subsidiaries and their respective employees
are in compliance with the Foreign Corrupt Practices Act of
1977, as amended, any rules or regulations thereunder and any
other United States or foreign anti-corruption or anti-bribery
Laws.
(i) Target and its Subsidiaries are in compliance in all
respects with the U.S. export laws and regulations,
including, but not limited to, the International Traffic in Arms
Regulations, the FDA, if applicable, and the Export
Administration Regulations, and including but not limited to
compliance with all regulations, orders and licensing
requirements relating to the exportation or reexportation of
goods or technology to any sanctioned country. Neither Target
nor its Subsidiaries have since January 1, 2005, nor are
they are currently, transacting business with any Person
identified as a Specifically Designated National or Blocked
Person by the Office of Foreign Assets Control of the
U.S. Department of Treasury or listed on either the Denied
Person list or Entity List of the Bureau of Industry and
Security of the U.S. Department of Commerce.
3.19
Product
Warranties
.
There are no material claims
pending or, to the Knowledge of Target, being threatened against
Target or any of its Subsidiaries with respect to any warranties
provided by Target or any of its Subsidiaries with respect to
any Product.
3.20
Transactions with
Affiliates
.
Since the date of Targets
last proxy statement filed with the SEC, no event has occurred
that would be required to be reported by Target pursuant to
Item 404 of
Regulation S-K
promulgated by the SEC.
3.21
State Anti-Takeover
Statutes
.
The board of directors of Target
has taken or will take all action necessary to render
Section 203 of the DGCL, and any other similar applicable
state anti-takeover law or regulation, inapplicable to this
Agreement, the transaction support agreements and the
transactions contemplated hereby and thereby.
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ARTICLE IV
Parents
and Acquisition Subs Representations and
Warranties
Each of Parent and Acquisition Sub jointly and severally
represents and warrants to Target that the statements contained
in this ARTICLE IV are correct and complete as of the date
of this Agreement and will be correct and complete as of the
Effective Time (as though made then and as though the Effective
Time were substituted for the date of this Agreement throughout
this ARTICLE IV), except as set forth in the Disclosure
Schedule. The Disclosure Schedule will be arranged in paragraphs
corresponding to the numbered and lettered paragraphs contained
in this ARTICLE IV.
4.1
Due Organization and Good
Standing
.
Each of Parent and Acquisition Sub
is duly organized, validly existing and in good standing (with
respect to jurisdictions that recognize the concept of good
standing) under the Laws of the jurisdiction in which it is
organized, and has all the corporate power and authority
required to carry on its business as it is now being conducted
and to own and use the properties owned and used by it. Parent
owns all of the outstanding capital stock of Acquisition Sub
free and clear of all Liens, other than Permitted Liens.
4.2
Authority; Binding Nature of
Agreement
.
Each of Parent and Acquisition Sub
has all the power and authority required to execute and deliver
this Agreement, to perform its obligations under this Agreement
and to consummate the Merger. The board of directors of Parent
and the board of directors of Acquisition Sub have authorized
and approved the execution, delivery and performance of this
Agreement by Parent and Acquisition Sub, as applicable. This
Agreement has been duly executed and delivered by Parent and
Acquisition Sub and constitutes the legal, valid and binding
obligation of Parent and Acquisition Sub, enforceable against
Parent and Acquisition Sub in accordance with its terms.
4.3
Non-Contravention;
Consents
.
Neither the execution and delivery
of this Agreement by Parent or Acquisition Sub, nor the
consummation of the transactions contemplated hereunder by
Parent or Acquisition Sub, does or will (a) violate or
conflict with any of the provisions of the Organizational
Documents of Parent or Acquisition Sub, (b) violate any Law
to which Parent or Acquisition Sub is subject or (c)
(i) materially conflict with, (ii) result in a
material breach or default (or cause an event that with or
without giving of notice or lapse of time or both would become a
material breach or default) under, (iii) result in the
termination of, (iv) accelerate the performance required by
or (v) result in a right of termination or acceleration
under any Contract to which Parent or Acquisition Sub is a party
or by which it is bound or to which any of its assets is subject
(or result in the imposition of any Lien on any of its material
assets). Except as may be required by the Securities Exchange
Act or the DGCL, neither Parent nor Acquisition Sub is required
to give any notice to, make any filing with or obtain any
authorization, consent or approval from any Person in order for
the Parties to consummate the transactions contemplated by this
Agreement.
4.4
Brokers
.
Neither Parent
nor Acquisition Sub has any liability or obligation to pay any
brokerage, finders or other similar fee or commission to
any broker, finder, agent or investment banker with respect to
the transactions contemplated by this Agreement.
4.5
Definitive Proxy
Materials
.
None of the information that
Parent or Acquisition Sub will supply specifically for use in
the Definitive Proxy Materials will contain any untrue statement
of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
4.6
Not an Interested
Stockholder
.
Neither Parent nor Acquisition
Sub is nor at any time during the past three years has been an
interested stockholder (as such term is defined in
Section 203 of the DGCL) of Target or any of its
Subsidiaries (other than as contemplated by this Agreement).
4.7
Funds
.
Parent has, or at
the Effective Time will have, available cash resources in an
amount sufficient to enable Acquisition Sub to furnish the
Paying Agent with the Merger Consideration pursuant to
Section 2.6.
4.8
No Other Representations or
Warranties
.
Parent and Acquisition Sub
acknowledge that: (a) except for the representations and
warranties of Target set forth in ARTICLE III, Parent and
Acquisition Sub are not relying and have not relied on any
representations or warranties whatsoever regarding the subject
matter of this Agreement, express or implied; (b) the
representations and warranties of Target set forth in
ARTICLE III constitute the sole and
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exclusive representations and warranties to Parent and
Acquisition Sub in connection with the transactions contemplated
by this Agreement; and (c) no other representation or
warranty, of any kind or nature, express or implied, has been
made by Target, or by any current or former officer, director,
employee, shareholder, affiliate or advisor of Target;
provided, however
, that, notwithstanding the foregoing,
nothing in this Section 4.8 shall relieve any Person of
liability for fraud or intentional misrepresentation.
ARTICLE V
Covenants
The Parties agree as follows with respect to the period from and
after the execution of this Agreement:
5.1
General
. Each of the
Parties will use its reasonable best efforts to take all actions
and to do all things reasonably necessary, proper or advisable
in order to consummate and make effective the transactions
contemplated by this Agreement (including satisfaction, but not
waiver, of the Closing conditions set forth in ARTICLE VI).
5.2
Notices and
Consents
. Target will give any required
notices (and will cause each of its Subsidiaries to give any
notices) to third parties, and will use its reasonable best
efforts to obtain (and will cause each of its Subsidiaries to
use its reasonable best efforts to obtain) any third-party
consents set forth in Section 3.4 of the Disclosure
Schedule.
5.3
Press Releases
. No later
than the first Business Day following execution of this
Agreement, Parent and Target shall issue a joint press release
announcing this Agreement and the contemplated merger, which
press release shall be reasonably acceptable to both Parent and
Target. Except as set forth above, no Party shall issue any
press release or make any public announcement relating to the
subject matter of this Agreement without the prior written
approval of the other Parties;
provided, however,
that
any Party may make any public disclosure it believes in good
faith is required by applicable Law or any listing or trading
agreement concerning its publicly traded securities (in which
case the disclosing Party will use its reasonable best efforts
to advise the other Party with reasonable advance notice prior
to making the disclosure).
5.4
Regulatory Matters and Stockholder
Approval
. Each of the Parties will (and
Target will cause each of its Subsidiaries to) give any notices
to, make any filings with, and use its reasonable best efforts
to obtain any authorizations, consents and approvals of any
Governmental Entity in connection with the matters referred to
in Section 3.4 and Section 4.3. Without limiting the
generality of the foregoing:
(a)
Proxy Materials Under Securities Exchange
Act
.
As soon as reasonably practicable
following the date of this Agreement (but in no event later than
15 days after the date of this Agreement), Target will
prepare and file with the SEC preliminary proxy materials under
the Securities Exchange Act relating to the Special Meeting.
Target will use its reasonable best efforts to respond to the
comments of the SEC thereon and will make any further filings
(including amendments and supplements) in connection therewith
that may be necessary, proper, or advisable. Target will not
file the preliminary proxy statement with the SEC, or any
further filings with respect thereto, without first providing
Parent a reasonable opportunity to review and comment on them
(which comments shall be reasonably considered by Target).
Target shall, as soon as reasonably practicable, notify Parent
of the receipt of any comments from the SEC with respect to the
preliminary proxy statement and provide Parent with copies of
any written correspondence between Target and the SEC with
respect to the preliminary proxy statement. Parent will provide
Target with whatever information and assistance in connection
with the foregoing filings that Target may reasonably request.
(b)
Special Meeting of
Stockholders
.
Target will call a special
meeting of its stockholders (the
Special
Meeting
) to be held as soon as practicable (but in no
event later than August 14, 2009, assuming that the SEC
provides no comments on the preliminary proxy statement, or
August 28, 2009 if the SEC provides comments on the
preliminary proxy statement) in order that the stockholders of
Target may consider and vote upon the adoption of this Agreement
and the approval of the Merger in accordance with the DGCL.
Target will mail the Definitive Proxy Materials to its
stockholders as soon as practicable. The Definitive Proxy
Materials will contain the affirmative recommendation of the
board of directors of Target in favor of the adoption of this
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Agreement and the approval of the Merger;
provided, however,
that no director or officer of Target shall be required to
violate any fiduciary duty or other requirement imposed by Law
in connection therewith.
5.5
Operation of Business
.
(a)
Affirmative Covenants
.
Target
shall, and shall cause each of its Subsidiaries to,
(i) carry on its business in the Ordinary Course of
Business in compliance in all respects with all applicable Laws,
(ii) take all actions and do all things necessary, proper
or advisable in order to pay all its obligations (including
debts and Taxes) when due and payable, (iii) promptly
notify Parent of its receipt of any notice of default or breach
with respect to any Target Material Contract, including the
Senior Notes, (iv) use its reasonable best efforts,
consistent with past practices and policies, to
(A) preserve intact its present business organization,
(B) keep available the services of its present officers and
key employees, (C) preserve its assets and properties and
(D) preserve its relationships with customers, suppliers,
distributors, licensors, licensees and others with which it has
significant business dealings and (v) take all actions
necessary, proper or advisable to ensure the representations or
warranties of Target in ARTICLE III are true and correct at
all times from the date hereof through the Effective Time.
(b)
Negative Covenants
.
Target
shall not, and shall not permit any of its Subsidiaries to,
engage in any practice, take any action or enter into any
transaction, in each case, outside the Ordinary Course of
Business. Without limiting the generality of the foregoing,
except as otherwise contemplated by this Agreement or set forth
in Schedule 5.5(b) attached hereto, Target shall not, and
shall not permit any of its Subsidiaries to (without the prior
written consent of Parent):
(i) authorize or effect any change in its Organizational
Documents,
(ii) grant any options, warrants or other rights to
purchase or obtain any of its stock or issue, sell or otherwise
dispose of any of its capital stock (except upon the conversion
or exercise of Target Options, Target Warrants, Target
Series B Convertible Preferred Stock, Senior Notes and
other rights outstanding on the date hereof and in accordance
with their respective terms in effect on the date hereof),
(iii) except with respect to dividends due and payable
pursuant to the terms of the Target Series B Convertible
Preferred Stock, declare, set aside or pay any dividend or
distribution with respect to its capital stock (whether in cash
or in kind), or redeem, repurchase or otherwise acquire any of
its capital stock (except upon the conversion or exercise of
Target Options, Target Warrants, Target Series B
Convertible Preferred Stock, Senior Notes and other rights
outstanding on the date hereof and in accordance with their
respective terms in effect on the date hereof),
(iv) issue any note, bond or other debt security or create,
incur, assume or guarantee any indebtedness for borrowed money
or capitalized lease obligation outside the Ordinary Course of
Business,
(v) impose any Lien, other than any Permitted Lien, upon
any of its assets outside the Ordinary Course of Business,
(vi) make any capital investment in, make any loan to or
acquire the securities or assets of any other Person, if doing
so would be outside the Ordinary Course of Business or would
involve amounts in excess of $100,000,
(vii) enter into, adopt or amend (including acceleration or
vesting of) any bonus, profit sharing, compensation, severance,
termination, change of control, option, restricted stock, stock
appreciation right, phantom stock, performance units, stock
equivalent, share purchase agreement, pension, retirement,
deferred compensation, employment, severance or other employee
benefit agreement trust, plan, fund, policy or other arrangement
of Target or any of its Subsidiaries related to the
compensation, benefit or welfare of any current or former
director, independent contractor, officer or employee in any
manner, or increase in any manner the compensation or fringe
benefits of any current or former director, independent
contractor, officer or employee of Target or any of its
Subsidiaries or pay any bonus, remuneration, or benefit to any
current or former director, independent contractor, officer or
employee not required by any plan or arrangement as in effect as
of the date of this Agreement,
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(viii) sell, transfer, lease or license to any third party
any material assets of Target or any of its Subsidiaries,
(ix) enter into any Contract outside the Ordinary Course of
Business, enter into, amend or terminate any Target Material
Contracts or waive, release or assign any material rights or
claims under any Target Material Contracts,
(x) change any of its methods of accounting or accounting
practices in any material respect other than changes required
under GAAP or applicable Law,
(xi) revalue any of its assets (whether tangible or
intangible), including writing off notes or accounts receivable,
settle, discount or compromise any accounts receivable, or
reverse any reserves other than in the Ordinary Course of
Business,
(xii) make or change any material Tax election, file any
material Tax Return or any amended Tax Return unless a copy of
such amended Tax Return has been delivered to Parent for review
and comment a reasonable time prior to filing, settle or
compromise any material Tax claim or assessment or adopt or
change any Tax accounting method,
(xiii) make any capital expenditure that is not
contemplated by the capital expenditure budget set forth in
Schedule 5.5(b)(xiii) attached hereto,
(xiv) settle or compromise any pending or threatened Legal
Proceeding, or initiate any Legal Proceeding,
(xv) propose or adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of Target or any of its
Subsidiaries,
(xvi) take any action that would result in any of the
representations or warranties of Target in ARTICLE III
becoming untrue or incorrect at any time from the date hereof
through the Effective Time or that would result in any of the
conditions to the Closing set forth in ARTICLE VI to not be
satisfied or
(xvii) commit to any of the foregoing.
5.6
Access
. Target will (and
will cause each of its Subsidiaries to) permit representatives
of Parent (including legal counsel, accountants and other
agents) to have reasonable access to all premises, properties,
personnel, books, records (including Tax records), contracts and
documents of or pertaining to Target and each of its
Subsidiaries.
5.7
Notice of
Developments
. Each Party will give prompt
written notice to the others of any material adverse development
causing a breach of any of its own representations and
warranties in ARTICLE III and ARTICLE IV. No
disclosure by any Party pursuant to this Section, however, shall
be deemed to amend or supplement the Disclosure Schedule or to
prevent or cure any misrepresentation, breach of warranty or
breach of covenant.
5.8
Exclusivity; Acquisition Proposals
.
(a) Target shall (i) immediately cease and cause to be
terminated any solicitation, encouragement, discussions or
negotiations with any Person with respect to an Acquisition
Proposal and (ii) not modify, waive, amend or release any
standstill, confidentiality or similar agreements.
(b) Except as expressly permitted by Section 5.8(c),
Target shall not (i) solicit, initiate, facilitate or
encourage (including by way of furnishing non-public information
or providing access to its properties, books, records or
personnel) any inquiries regarding an Acquisition Proposal, or
the making of any Acquisition Proposal or any offer
constituting, or that could reasonably be expected to lead to,
an Acquisition Proposal or (ii) have any discussions or
participate in any negotiations regarding an Acquisition
Proposal, or execute or enter into any agreement, understanding
or arrangement with respect to an Acquisition Proposal.
(c) Notwithstanding anything to the contrary in this
Agreement, if, prior to obtaining the Requisite Stockholder
Approval and following the receipt by Target of a bona fide
written Acquisition Proposal from any Person (which Acquisition
Proposal may not contain any condition or requirement that
prevents or hinders Target from
A-26
fully complying with its notification obligations in this
Section 5.8(c)), Targets board of directors
determines in good faith, after consultation with its financial
advisors and its outside legal counsel, that (i) such
Acquisition Proposal constitutes or would reasonably be expected
to lead to a Superior Proposal and (ii) the failure to take
the actions set forth in clauses (A) and (B) of this
Section 5.8(c) with respect to such Acquisition Proposal
would be inconsistent with its fiduciary duties, then Target may
in response to such Acquisition Proposal (A) furnish
information with respect to Target to the Person who has made
such Acquisition Proposal pursuant to a confidentiality
agreement (provided that all such information has previously
been provided to Parent or is provided to Parent substantially
concurrently with the time it is provided to such Person) and
(B) participate in discussions and negotiations regarding
such Acquisition Proposal. Target shall, in each case within
three Business Days after receipt thereof, advise Parent orally
and in writing of the receipt of any Acquisition Proposal or any
inquiry with respect to, or that could reasonably be expected to
lead to, any Acquisition Proposal, specifying the material terms
and conditions thereof and the identity of the party making such
Acquisition Proposal or inquiry, and Target shall provide to
Parent (within such timeframe), a copy of all written materials
provided to Target in connection with any such Acquisition
Proposal or inquiry.
5.9
Director and Officer Insurance and
Indemnification
.
(a) For a period of 60 months after the Effective
Time, Surviving Corporation will provide, at its sole expense,
each individual who served as a director or officer of Target at
any time prior to the Effective Time (collectively, the
Covered D&Os
) with liability
insurance no less favorable in coverage and amount than the
applicable insurance in effect immediately prior to the
Effective Time;
provided, however,
in the event that the
cost of liability insurance for such coverage exceeds 150% of
the annual cost of such insurance in effect immediately before
the Effective Time, the Surviving Corporation may reduce the
coverage and amount of liability insurance only to the extent
necessary so that the annual cost of liability insurance does
not exceed 150% of the annual cost of the insurance in effect
immediately before the Effective Time. For the avoidance of
doubt, except as provided in the immediately preceding sentence
of this Section 5.9(a), the Surviving Corporation shall not
be permitted to reduce or limit the coverage or policy limits of
such insurance.
(b) For a period of 60 months after the Effective
Time, Surviving Corporation shall fulfill and honor in all
respects the obligations of Target and its Subsidiaries pursuant
to any indemnification provision and any exculpation provision
for directors and officers set forth in the Organizational
Documents of Target or any of its Subsidiaries as in effect on
the date of this Agreement. During such period, the
Organizational Documents of Surviving Corporation shall contain
the provisions with respect to indemnification and exculpation
from liability for directors and officers set forth in
Targets Organizational Documents on the date of this
Agreement, and such provisions shall not be amended, repealed or
otherwise modified in any manner (including any amendment
accomplished through merger, recapitalization, consolidation or
reorganization) that could adversely affect the rights of any
indemnified party thereunder;
provided, however
, that
such indemnification shall be subject to any limitation imposed
from time to time under applicable Law.
(c) If at any time Surviving Corporation is unable for any
reason to fulfill its obligations set forth in this
Section 5.9, Parent hereby unconditionally guarantees to
fulfill the obligations of Surviving Corporation set forth in
this Section 5.9.
5.10
Delisting
. Each of the
Parties shall cooperate with each other to take, or cause to be
taken, all actions necessary, proper or advisable to delist the
Target Common Stock from The NASDAQ Capital Market and to
terminate registration under the Securities Exchange Act;
provided,
that such delisting and termination shall not
be effective until after the Effective Time.
5.11
Tax Reserves
. Target
will establish, in the Ordinary Course of Business, appropriate
reserves for the payment of Taxes due and payable by Target and
its Subsidiaries for the period from January 31, 2009
through the Effective Time.
5.12
Continuing
Employees
. The Surviving Corporation expects
to offer employment in comparable positions to all of the
employees of Target (the
Continuing
Employees
).
5.13
Service Credit
. The
Surviving Corporation agrees to recognize service completed by
the Continuing Employees while employed by Target or any
Subsidiary of Target for purposes of (a) continuing
eligibility for
A-27
participation and vesting in the Surviving Corporations
benefit plans, if applicable, and (b) calculating any
severance or vacation accrual benefits, if any, provided by the
Surviving Corporation to Continuing Employees after the
Effective Time. The Surviving Corporation, under the Surviving
Corporations benefit plans in which the Continuing
Employees participate, agrees to credit the Continuing Employees
with deductibles and co-payments under Targets or any
Subsidiary of Targets welfare plans for the calendar year
in which the Effective Time occurs. The Surviving
Corporations benefit plans will not impose any
pre-existing condition exclusions on Continuing Employees.
ARTICLE VI
Conditions
to Obligations to Close
6.1
Conditions to Parents and Acquisition
Subs Obligation
. The obligation of each
of Parent and Acquisition Sub to consummate the transactions to
be performed by it in connection with the Closing is subject to
satisfaction of the following conditions, which may be waived by
Parent and Acquisition Sub in writing:
(a) (i) this Agreement and the Merger shall have
received the Requisite Stockholder Approval and (ii) the
number of Dissenting Shares in the form of Target Common Stock
shall not exceed 15% of the total number of outstanding Target
Common Stock as of the record date for the Special Meeting,
(b) Target and its Subsidiaries shall have procured all of
the third-party consents set forth in Section 3.4 of the
Disclosure Schedule,
(c) at least 70% of the Target PIPE Warrants (measured by
reference to the number of Target PIPE Warrants outstanding on
the date of this Agreement) shall have been cancelled or Target
shall have obtained from the holders of the Target PIPE Warrants
enforceable agreements to cancel at least 70% of such warrants
effective as of the Effective Time (measured by reference to the
number of Target PIPE Warrants outstanding on the date of this
Agreement),
(d) the representations and warranties in ARTICLE III
shall have been true and correct in all respects as of the date
of this Agreement,
(e) the representations and warranties in Sections 3.1
(Due Organization; Good Standing; Certificate of Incorporation
and Bylaws), 3.2 (Capitalization), 3.3 (Authority; Binding
Nature of Agreement), 3.6(a) (Absence of Certain Changes), 3.8
(Brokers; Schedule of Fees and Expenses) and 3.21 (State
Anti-Takeover Statutes) (collectively, the
Specified
Representations
) shall be true and correct in all
material respects at and as of the Effective Time (as though
made then and as though the Effective Time were substituted for
the date of this Agreement throughout such sections), except to
the extent that such representations and warranties are
qualified by the term material, or contain terms
such as Material Adverse Change, in which case such
representations and warranties (as so written, including the
term material or Material Adverse
Change) shall be true and correct in all respects at and
as of the Effective Time,
(f) the representations and warranties in ARTICLE III
other than the Specified Representations shall be true and
correct in all respects at and as of the Effective Time (as
though made then and as though the Effective Time were
substituted for the date of this Agreement throughout such
sections), except for any inaccuracies of representations or
warranties, the circumstances giving rise to which, individually
or in the aggregate, do not constitute, and would not reasonably
be expected to result in, a Material Adverse Change (it being
understood that, for purposes of determining the accuracy of
such representations and warranties, any Material Adverse
Change qualifications and other materiality qualifications
contained in such representations and warranties shall be
disregarded),
(g) Target shall have performed and complied with all of
its covenants hereunder in all material respects through the
Closing, except to the extent that such covenants are qualified
by the term material, or contain terms such as
Material Adverse Change, in which case Target shall
have performed and complied with all of such covenants (as so
written, including the term material) in all
respects through the Closing,
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(h) (i) no Legal Proceeding shall be pending or
threatened wherein an unfavorable injunction, judgment, order,
decree, ruling or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement,
(B) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation,
(C) adversely affect the right of Parent to own the capital
stock of Surviving Corporation and to control Surviving
Corporation and its Subsidiaries or (D) adversely affect
the right of any of Surviving Corporation, together with its
Subsidiaries, to own its assets and to operate its business, and
(ii) no such injunction, judgment, order, decree, ruling or
charge shall be in effect,
(i) Target shall have delivered to Parent and Acquisition
Sub a certificate to the effect that each of the conditions
specified in Section 6.1(a) (h) is
satisfied in all respects,
(j) Target shall have delivered to Parent and Acquisition
Sub a certificate stating that Target is not a United
States real property holding corporation within the
meaning of Section 897(c)(2) of the Code,
(k) Target shall have delivered to Parent and Acquisition
Sub a certificate to the effect that the representations and
warranties in Section 3.6(b) shall have been true and
correct in all respects as of the date of this Agreement and
shall be true and correct in all respects at and as of the
Effective Time, together with reasonably detailed calculations
supporting such certification,
(l) the Parties shall have received all authorizations,
consents and approvals of any Governmental Entity referred to in
Section 3.4 and Section 4.3,
(m) Parent and Acquisition Sub shall have received the
resignations, effective as of Closing, of each director of
Target and each director of Targets Subsidiaries and
(n) (i) the condition set forth in Section 6.1(c)
of the Note Purchase Agreement relating to Parents
obligations to consummate the transactions contemplated thereby
shall have been satisfied or waived and (ii) there shall be
no outstanding material breach by the Noteholders of the Note
Purchase Agreement.
6.2
Conditions to Targets
Obligation
. The obligation of Target to
consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following
conditions, which may be waived by Target:
(a) the representations and warranties set forth in
ARTICLE IV shall have been true and correct in all respects
as of the date of this Agreement and shall be true and correct
in all respects at and as of the Effective Time,
(b) each of Parent and Acquisition Sub shall have performed
and complied with all of its covenants hereunder in all material
respects through the Closing, except to the extent that such
covenants are qualified by the term material, or
contain terms such as Material Adverse Change, in
which case Parent and Acquisition Sub shall have performed and
complied with all of such covenants (as so written, including
the term material) in all respects through the
Closing,
(c) (i) no Legal Proceeding shall be pending or
threatened wherein an unfavorable injunction, judgment, order,
decree, ruling or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement or
(B) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation and
(ii) no such injunction, judgment, order, decree, ruling or
charge shall be in effect,
(d) each of Parent and Acquisition Sub shall have delivered
to Target a certificate to the effect that each of the
conditions specified above in 6.2(a) (c) is
satisfied in all respects,
(e) this Agreement and the Merger shall have received the
Requisite Stockholder Approval and
(f) the Parties shall have received all authorizations,
consents and approvals of any Governmental Entity referred to in
Section 3.4 and Section 4.3.
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ARTICLE VII
Termination
7.1
Termination of
Agreement
. Any of the Parties may terminate
this Agreement with the prior authorization of its board of
directors (whether before or after stockholder approval) as
provided below:
(a) the Parties may terminate this Agreement by mutual
written consent at any time prior to the Effective Time,
(b) Parent may terminate this Agreement by giving written
notice to Target at any time prior to the Effective Time if (i)
(A) there has been a breach by Target of any
representation, warranty or covenant contained in this Agreement
that would, individually or in the aggregate, result in a
failure of a condition set forth in Section 6.1 if
continuing at the Effective Time, (B) Parent or Acquisition
Sub has notified Target in writing of the breach and
(C) the breach has continued without cure for a period of
30 days after the written notice of breach, (ii) the
Closing shall not have occurred on or before the day that is
150 days after the date hereof, by reason of the failure of
any condition precedent under Section 6.1 hereof (unless
the failure results primarily from Parent or Acquisition Sub
breaching any representation, warranty or covenant contained in
this Agreement) or (iii) if the Note Purchase Agreement is
terminated by any party thereto pursuant to the provisions
thereof (except Section 8.1(b)(iii) of the Note Purchase
Agreement),
(c) Target may terminate this Agreement by giving written
notice to Parent at any time prior to the Effective Time if
(i) Parent or Acquisition Sub has breached any
representation, warranty or covenant contained in this Agreement
in any material respect, Target has notified Parent and
Acquisition Sub in writing of the breach and the breach has
continued without cure for a period of 30 days after the
written notice of breach or (ii) the Closing shall not have
occurred on or before the day that is 150 days after the
date hereof, by reason of the failure of any condition precedent
under Section 6.2 hereof (unless the failure results
primarily from Target breaching any representation, warranty, or
covenant contained in this Agreement),
(d) either Parent or Target may terminate this Agreement by
giving written notice to the other Parties at any time after the
Special Meeting (or any adjournment, continuation or
postponement thereof) in the event this Agreement and the Merger
fail to receive the Requisite Stockholder Approval,
(e) Parent may terminate this Agreement if Targets
board of directors shall have (i) (A) withdrawn or
modified, or proposed publicly to withdraw or modify, in a
manner adverse to Parent, the approval or recommendation by
Targets board of directors of the Merger,
(B) approved or recommended, or proposed publicly to
approve or recommend, any Acquisition Proposal,
(C) approved or recommended, or allowed Target to enter
into, any letter of intent, acquisition agreement or any similar
agreement or understanding (I) constituting or related to,
or that is intended to or could reasonably be expected to lead
to, any Acquisition Proposal or (II) requiring Target to
abandon, terminate or fail to consummate the Merger or
(D) effected any transaction contemplated by any
Acquisition Proposal, (ii) taken a position contemplated by
Rule 14e-2(a)
of the Securities Exchange Act with respect to any Acquisition
Proposal other than recommending rejection of such Acquisition
Proposal or (iii) failed to include in the Definitive Proxy
Materials distributed to stockholders its recommendation that
stockholders adopt and approve this Agreement and the
Merger or
(f) Target may terminate this Agreement prior to obtaining
the Requisite Stockholder Approval in order to enter into an
agreement relating to a Superior Proposal, but only if:
(i) such Superior Proposal did not result, directly or
indirectly, from a breach by Target of Section 5.8 and (ii)
(A) Targets board of directors shall have first
provided prior written notice to Parent that it is prepared to
terminate this Agreement to enter into an agreement with respect
to a Superior Proposal, which notice shall attach the most
current version of any written agreement relating to the
transaction constituting such Superior Proposal, the identity of
the Person making such Superior Proposal and any other material
terms and conditions thereof, and shall cause Target to
negotiate in good faith with Parent so that Parent may propose
an amendment to this Agreement for the purpose of causing the
Acquisition Proposal to no longer constitute a Superior
Proposal, and (B) Parent does not make, within five
Business Days after the receipt of such notice, a binding,
written and complete proposal that Targets board of
directors determines in good faith, after consultation with its
legal and financial advisors, that
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causes the Acquisition Proposal that had constituted a Superior
Proposal to no longer constitute a Superior Proposal.
7.2
Effect of
Termination
. If any Party terminates this
Agreement pursuant to Section 7.1, all rights and
obligations of the Parties hereunder shall terminate without any
liability of any Party to any other Party (except for any
liability of any Party then in breach);
provided, however,
that the provisions of Section 7.3 shall survive any
termination.
7.3
Fees and Expenses; Termination Fees
.
(a)
Fees and Expenses
General
.
Except as otherwise set forth in
this Section 7.3, all expenses (including legal fees and
expenses) incurred in connection with this Agreement shall be
paid by the party incurring such expenses, whether or not the
Merger is consummated.
(b)
Target Termination Fee
.
Target
agrees that if this Agreement is terminated:
(i) by Parent or Target pursuant to Section 7.1(d) or
by Parent pursuant to Section 7.1(b)(ii), and at or before
the date of termination a Person or group (as defined in
Section 13(d) of the Securities Exchange Act) shall have
made an Acquisition Proposal to Target or the stockholders of
Target or an Acquisition Proposal shall have otherwise become
publicly announced, then (A) if, within 12 months
after the date of termination, Target enters into an agreement
with respect to any such Acquisition Proposal, Target will pay
to Parent, on the date that a definitive agreement in respect of
such Acquisition Proposal is executed, the Target Expense
Reimbursement Amount in immediately available funds, as directed
by Parent in writing, and (B) if, within 12 months
after the date of termination, any such Acquisition Proposal is
consummated, Target will pay to Parent, on the date of the
consummation of the transaction in respect of such Acquisition
Proposal, the Target Termination Fee in immediately available
funds, as directed by Parent in writing;
provided, however,
that for the purpose of this subsection, all references to
15% in the definition of Acquisition Proposal shall
be changed to 50%,
(ii) by Parent pursuant to Section 7.1(e) or by Target
pursuant to Section 7.1(f), then Target shall pay to
Parent, on the date of such termination, the Target Termination
Fee and the Target Expense Reimbursement Amount in immediately
available funds, as directed by Parent in writing or
(iii) by Parent pursuant to Section 7.1(b)(i), then
Target shall pay to Parent, on the date of such termination, the
Target Termination Fee and the Target Expense Reimbursement
Amount in immediately available funds, as directed by Parent in
writing.
(c) Target and Parent acknowledge that the agreements
contained in this Section 7.3 are an integral part of the
transactions contemplated by this Agreement. If Target shall
fail to pay the Target Termination Fee or the Target Expense
Reimbursement Amount when due, Target shall reimburse Parent for
all reasonable costs and expenses actually incurred or accrued
by or on behalf of Parent (including reasonable fees and
expenses of counsel) in connection with the collection under and
the enforcement of this Section 7.3, together with interest
from the date of termination on all amounts so owed at the Prime
Rate plus 5% per annum. The Parties hereto agree and understand
that in no event shall Target be required to pay the Target
Termination Fee on more than one occasion and in no event shall
Target be required to pay the Target Expense Reimbursement
Amount on more than one occasion.
ARTICLE VIII
Miscellaneous
8.1
Survival
. None of the
representations, warranties or covenants of the Parties (other
than the provisions in ARTICLE II concerning payment of the
Merger Consideration and the provisions in Section 5.9
concerning insurance and indemnification) will survive the
Effective Time.
8.2
No Third-Party
Beneficiaries
. This Agreement shall not
confer any rights or remedies upon any Person (including any
employee of Target, Surviving Corporation or any Subsidiary of
Target or Surviving Corporation with respect to
Sections 5.12 and 5.13 of this Agreement or any other
provision of this Agreement) other than the Parties and their
respective successors and permitted assigns;
provided,
however,
that (a) the provisions in
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ARTICLE II concerning payment of the Merger Consideration
are intended for the benefit of Target Stockholders and
(b) the provisions in Section 5.9 concerning insurance
and indemnification are intended for the benefit of the
individuals specified therein and their respective legal
representatives.
8.3
Entire Agreement
. This
Agreement constitutes the entire agreement among the Parties
with respect to the subject matter hereof and supersedes all
prior understandings, agreements or representations by or among
the Parties, or any of them, written or oral, to the extent they
relate in any way to the subject matter hereof.
8.4
Succession and
Assignment
. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and
their respective successors and permitted assigns. No Party may
assign either this Agreement or any of its rights, interests or
obligations hereunder without the prior written approval of the
other Parties, except that Parent and Acquisition Sub may,
before the Requisite Stockholder Approval, assign all or any
part of their respective rights and obligations hereunder
(provided that any assignment by Parent shall not relieve it of
its obligations under Section 5.9(c)) to (a) any
direct or indirect wholly owned Subsidiary of Parent or
(b) to a lender as collateral, in each case after providing
written notice thereof to Target before such assignment.
8.5
Counterparts
. This
Agreement may be executed in one or more counterparts,
(including by means of facsimile or other electronic
transmission), each of which shall be deemed an original but all
of which together will constitute one and the same instrument.
8.6
Notices
. All notices,
requests, demands, claims and other communications under this
Agreement shall be in writing. A notice, request, demand, claim
or other communication under this Agreement shall be deemed duly
given (a) when delivered personally to the recipient,
(b) one Business Day after being sent to the recipient by
reputable overnight courier service (charges prepaid),
(c) one Business Day after being sent to the recipient by
facsimile transmission or electronic mail or (d) four
Business Days after being mailed to the recipient by certified
or registered mail, return receipt requested and postage
prepaid, and addressed to the intended recipient as set forth
below:
If to Parent or Acquisition Sub:
TOLMAR, Inc.
701 Centre Avenue
Fort Collins, CO 80526
Attn: Michael Duncan
Fax:
(970) 494-0241
with a copy (which shall not constitute valid delivery to Parent
or Acquisition Sub) to:
Holme Roberts & Owen LLP
1700 Lincoln Street, Suite 4100
Denver, CO 80203
Attn: Paul G. Thompson, Esq.
Fax:
(303) 866-0200
If to Target:
Zila, Inc.
16430 North Scottsdale Road, Suite 450
Scottsdale, Arizona 85254
Attn: Gary Klinefelter
Fax:
(602) 200-3249
with a copy (which shall not constitute valid delivery to
Target) to:
Snell & Wilmer L.L.P.
One Arizona Center
400 E. Van Buren
Phoenix, Arizona
85004-2202
Fax:
(602) 382-6381
Attn: Michael M. Donahey, Esq.
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A Party may change the address to which notices, requests,
demands, claims and other communications under this Agreement
are to be delivered by giving the other Parties notice in the
manner herein set forth.
8.7
Governing Law; Venue; Waiver of Jury
Trial
.
(a) This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware
without giving effect to a choice or conflict of law provision
or rule (whether of the State of Delaware or another
jurisdiction) that would cause the application of the laws of a
jurisdiction other than the State of Delaware.
(b) Each of the Parties (i) consents to submit itself
to the personal jurisdiction of the Court of Chancery of the
State of Delaware or, if under applicable Law exclusive
jurisdiction over such matter is vested in the federal courts,
any court of the United States located in the State of Delaware,
in the event any dispute arises out of this Agreement or any of
the transactions contemplated by this Agreement,
(ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from
any such court, (iii) agrees that it will not bring any
action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than the Court
of Chancery of the State of Delaware or, if under applicable Law
exclusive jurisdiction over such matter is vested in the federal
courts, any court of the United States located in the State of
Delaware and (iv) consents to service being made through
the notice procedures set forth in Section 8.6. Each Party
hereby agrees that, to the fullest extent permitted by Law,
service of any process, summons, notice or document by
U.S. registered mail to the respective addresses set forth
in Section 8.6 shall be effective service of process for
any suit or proceeding in connection with this Agreement or the
transactions contemplated hereby.
(c) EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
8.8
Amendments and
Waivers
. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective
Time with the prior authorization of their respective boards of
directors;
provided, however,
that any amendment effected
subsequent to stockholder approval of this Agreement will be
subject to the restrictions contained in the DGCL. No amendment
of any provision of this Agreement shall be valid unless the
same shall be in writing and signed by all of the Parties. No
waiver by any Party of any provision of this Agreement or any
default, misrepresentation or breach of warranty or covenant
hereunder, whether intentional or not, shall be valid unless the
same shall be in writing and signed by the Party making such
waiver nor shall such waiver be deemed to extend to any prior or
subsequent default, misrepresentation or breach of warranty or
covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such default,
misrepresentation or breach of warranty or covenant.
8.9
Severability
. Any term
or provision of this Agreement that is invalid or unenforceable
in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term
or provision in any other situation or in any other jurisdiction.
8.10
Specific
Performance
. Each of the Parties agree that
irreparable damage would occur in the event that any of the
provisions of this Agreement are not performed in accordance
with their specific terms or are otherwise breached and that the
Parties shall be entitled to an injunction or injunctions or
other equitable relief to prevent breaches of this Agreement and
to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which
the Parties are entitled at law or in equity.
[Remainder
of Page Intentionally Left Blank]
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The Parties have executed this Agreement and Plan of Merger as
of the date first above written.
PARENT:
TOLMAR Holding, Inc., a
Delaware corporation
|
|
|
|
By:
|
/s/ Patricio
Rodriguez
|
Name: Patricio Rodriguez
ACQUISITION SUB:
Project Z Acquisition Sub, Inc., a
Delaware corporation
|
|
|
|
By:
|
/s/ Patricio
Rodriguez
|
Name: Patricio Rodriguez
TARGET:
Zila, Inc., a
Delaware corporation
Name: David R. Bethune
[Signature
Page to Agreement and Plan of Merger]
A-34
EXHIBIT A
CERTIFICATE OF MERGER
A-35
CERTIFICATE
OF MERGER
MERGING
PROJECT Z ACQUISITION SUB, INC.
A DELAWARE CORPORATION
WITH AND INTO
ZILA, INC.
A DELAWARE CORPORATION
Pursuant to
Title 8, Section 251(c) of the
Delaware General Corporation Law
Zila, Inc., a Delaware corporation (the
Company
), does hereby certify as follows:
FIRST:
Each of the constituent corporations,
the Company and Project Z Acquisition Sub, Inc., a Delaware
corporation (
Sub
), is a corporation duly
organized and existing under the laws of the State of Delaware.
SECOND:
An Agreement and Plan of Merger (the
Merger Agreement
), dated as of June 25,
2009, among the Company, TOLMAR Holding, Inc., a Delaware
corporation, and Sub, setting forth the terms and conditions of
the merger of Sub with and into the Company (the
Merger
), has been approved, adopted,
certified, executed and acknowledged by each of the constituent
corporations in accordance with Section 251 of the Delaware
General Corporation Law.
THIRD:
The name of the surviving corporation
in the Merger (the
Surviving
Corporation
) shall be Zila, Inc.
FOURTH:
The certificate of incorporation of
the Company, as in effect immediately prior to the Merger, shall
be the certificate of incorporation of the Surviving Corporation.
FIFTH:
An executed copy of the Merger
Agreement is on file at the principal place of business of the
Surviving Corporation at the following address:
Zila,
Inc.
16430 North Scottsdale Road, Suite 450
Scottsdale, Arizona 85254
SIXTH:
A copy of the Merger Agreement will be
furnished by the Surviving Corporation, on request and without
cost, to any stockholder of either constituent corporation.
SEVENTH:
The Merger shall become effective
upon the filing of this Certificate of Merger with the Secretary
of State of the State of Delaware.
[Remainder
of page intentionally left blank.]
A-36
IN WITNESS WHEREOF, the undersigned corporation has caused this
Certificate of Merger to be signed by an authorized officer as
of ,
2009.
SURVIVING CORPORATION:
Zila, Inc.
Name:
Title:
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EXHIBIT B
FORM OF BYLAWS
A-38
SECOND
AMENDED AND RESTATED BYLAWS
OF
ZILA, INC.
(as
of ,
2009)
ARTICLE IX
Offices
9.1
Delaware Office
. The
registered office of Zila, Inc. (the
Corporation
) required by the Delaware
General Corporation Law (the
DGCL
) to
be maintained in Delaware shall be as set forth in the
Certificate of Incorporation of the Corporation (as amended,
modified and supplemented, the
Certificate of
Incorporation
), unless changed as provided by
applicable law.
9.2
Other Offices
. The
Corporation may also have an office or offices and keep the
books and records of the Corporation, except as otherwise may be
required by applicable law, in such other place or places,
either inside or outside the State of Delaware, as the Board of
Directors of the Corporation (the
Board
) may
from time to time determine or as may be necessary or convenient
to the business of the Corporation.
ARTICLE X
Meetings
of Stockholders
10.1
Place of Meetings
. Each
meeting of the stockholders of the Corporation shall be held at
such place, either inside or outside the State of Delaware, as
may be designated in the notice of such meeting, or, if no place
is designated in such notice, at the principal office of the
Corporation. The Board may, in its sole discretion, determine
that a meeting of stockholders shall not be held at any place,
but may instead be held solely by means of remote communications
in accordance with the DGCL.
10.2
Annual Meetings
. An
annual meeting of the stockholders of the Corporation shall be
held on such date, at such place, if any, and at such time as
may be determined by the Board, for the purpose of electing
directors and for the transaction of such other business as may
properly come before such meeting.
10.3
Special
Meetings
. Special meetings of the
stockholders of the Corporation, for any purpose or purposes,
unless otherwise prescribed by applicable law or the Certificate
of Incorporation, may be called only by the Board pursuant to a
resolution approved by the affirmative vote of a majority of the
directors of the Corporation then in office or by the request of
the Chair of the Board, the Chief Executive Officer or the
President. Such resolution or request shall state the purpose or
purposes of such proposed meeting. Business transacted at any
special meetings of the stockholders shall be limited to the
purpose or purposes stated in the notice of the special meeting.
If a special meeting is properly requested by other than the
Board, the Board shall determine the time and place of such
special meeting, which shall be held not less than 35 days
nor more than 120 days after the dated of the receipt of
the request.
10.4
Notice of Meetings
.
(a) Except as otherwise required herein, by the Certificate
of Incorporation or by applicable law, whenever stockholders are
required or permitted to take any action at a meeting, the
Corporation shall give notice of the meeting stating the place,
if any, date and hour of the meeting, the means of remote
communications, if any, by which stockholders and proxy holders
may be deemed to be present in person and vote at such meeting.
In the case of a special meeting, the notice shall state the
purpose or purposes for which the meeting is called. Unless
otherwise provided by applicable law or the Certificate of
Incorporation, notice of a meeting shall be given to each
stockholder entitled to vote at the meeting not less than 10 nor
more than 60 days before the date of the meeting.
(b) Notice to stockholders may be given by writing in paper
form or, if the stockholder has consented thereto, by electronic
transmission. Notice in paper form shall be deemed given to a
stockholder, if personally delivered, when delivered to the
stockholder, and, if mailed, when deposited in the United States
mail, postage prepaid,
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addressed to such stockholder at such stockholders address
as it appears in the records of the Corporation. Notice by
electronic transmission shall be deemed given to a stockholder
when given in accordance with applicable law. An affidavit of
the Secretary or an Assistant Secretary of the Corporation or of
the transfer agent or other agent of the Corporation that a
notice has been given by personal delivery, by mail, or by a
form of electronic transmission shall, in the absence of fraud,
be prima facie evidence of the facts stated therein.
(c) Notice of any meeting of the stockholders need not be
given to any stockholder if waived by such stockholder in
accordance with these Bylaws.
(d) When a meeting of the stockholders of the Corporation
is adjourned to another time or place, if any, notice need not
be given of the adjourned meeting if the date, time and place,
if any, thereof and the means of remote communication, if any,
by which stockholders and proxy holders may be deemed to be
present in person and vote at such adjourned meeting, are
announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the Corporation may transact any business
which might have been transacted at the original meeting. If the
adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given to each
stockholder of record of the Corporation entitled to vote at the
meeting in accordance with the foregoing provisions of this
Section.
10.5
Quorum
. Except as
otherwise required by law, by the Certificate of Incorporation
or by these Bylaws, at each meeting of stockholders of the
Corporation, the presence, in person or represented by proxy, of
the holders of shares having a majority of the aggregate voting
power of the issued and outstanding capital stock of the
Corporation entitled to vote at the meeting shall constitute a
quorum for the transaction of business at the meeting. Except as
otherwise required by law, by the Certificate of Incorporation
or by these Bylaws, where a separate vote by a class or classes
or series is required for a particular matter to be voted upon
at a meeting of the stockholders, the presence, in person or
represented by proxy, of the holders of shares having a majority
of the aggregate voting power of the issued and outstanding
shares of the class or classes or series shall constitute a
quorum entitled to take action with respect to the vote on that
particular matter. The stockholders present at a duly called or
convened meeting, at which a quorum is present, may continue to
transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
10.6
Adjournments
. At any
meeting of stockholders or any adjournment thereof, the
chairperson of the meeting, the Chief Executive Officer, the
President or holders of shares having a majority of the voting
power of the capital stock present or represented by proxy at
the meeting may adjourn the meeting from time to time. Any
business that might have been transacted at the original meeting
of the stockholders may be transacted at the adjourned meeting;
provided, that, the Board may, in its sole discretion, fix a new
record date for the adjourned meeting.
10.7
Voting
. Except as
otherwise provided by law or by the Certificate of
Incorporation, at each meeting of stockholders each holder of
shares of capital stock of the Corporation shall be entitled to
one vote for each share of stock having voting power and
registered in such holders name on the books of the
Corporation on the record date fixed for determination of
stockholders entitled to vote at such meeting. Except as
otherwise provided in these Bylaws, the Certificate of
Incorporation, applicable law or any other rule or regulation
applicable to the Corporation or its stock, (a) directors
(up to the number of directors to be elected) shall be elected
by a plurality in voting power of the shares present in person
or represented by proxy at a meeting of the stockholders and
entitled to vote in the election of directors and (b) all
other corporate action to be taken by the stockholders shall be
authorized by a majority in voting power of the shares present
in person or represented by proxy at a meeting of the
stockholders (or, where a separate vote by class or series is
required, by a majority in voting power of the shares of such
class or series present in person or represented by proxy at a
meeting of the stockholders). At any meeting of stockholders,
each stockholder entitled to vote may vote in person or by proxy
authorized in accordance with applicable law. Unless otherwise
provided by the Certificate of Incorporation, voting need not be
by ballot.
10.8
Inspectors
. Voting at
meetings of stockholders need not be conducted by an inspector
unless the Board or holders of a majority of the outstanding
shares of all classes of stock entitled to vote thereon present
in person or represented by proxy at such meeting shall so
determine.
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10.9
Stock List
. A complete
list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the
number of shares that are registered in such stockholders
name, shall be maintained by the Corporation and open to the
examination of any such stockholder, for any purpose germane to
the meeting for at least 10 days prior to the meeting,
(i) during ordinary business hours at the principal place
of business of the Corporation or (ii) on a reasonably
accessible electronic network, provided that the information
required to gain access to such list is provided with the notice
of the meeting. If the meeting is to be held at a place, the
stock list also shall be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of
any such stockholder who is present. If the meeting is to be
held solely by means of remote communication, then the list
shall also be open to the examination of any stockholder during
the whole time of the meeting on a reasonable accessible network
and the information required to access such list shall be
provided with the notice of the meeting. The stock ledger shall
be the only evidence as to who are the stockholders entitled to
examine the list required by this section or to vote in person
or by proxy at any meeting of stockholders.
10.10
Organization
. Meetings
of stockholders shall be presided over by the Chair of the
Board, if any, or in his or her absence by the President, or in
his or her absence by a Vice President, or in the absence of the
foregoing persons by a chairperson designated by the Board, or
in the absence of such designation by a chairperson chosen at
the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairperson of the
meeting may appoint any person to act as secretary of the
meeting.
10.11
Stockholder Action Without a
Meeting
.
(a) Except as otherwise provided by law or by the
Certificate of Incorporation, any action required to be taken at
any meeting of stockholders of the Corporation, or any action
that may be taken at any annual or special meeting of the
stockholders, may be taken without a meeting, without prior
notice, and without a vote, if a consent or consents in writing
setting forth the action so taken shall be signed by the holders
of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were
present and voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, its
principal place of business or an officer or agent of the
Corporation having custody of the book or books in which
meetings of stockholders are recorded; provided, however, that
delivery made to the Corporations registered office in the
State of Delaware shall be by hand or by certified or registered
mail, return receipt requested. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have
not consented in writing and who, if the action had been taken
at a meeting, would have been entitled to notice of the meeting
if the record date for such meeting had been the date that
written consents signed by a sufficient number of the holders to
take the action were delivered to the Corporation.
(b) Every written consent shall bear the date of signature
of each stockholder who signs the consent, and no written
consent shall be effective to take the corporate action referred
to therein unless, within 60 days of the date the earliest
dated consent is delivered to the Corporation, a written consent
or consents signed by a sufficient number of holders to take
action are delivered to the Corporation in the manner prescribed
in the above paragraph.
(c) Any electronic transmission consenting to an action to
be taken and transmitted by a stockholder or proxy holder, or by
a person or persons authorized to act for a stockholder or proxy
holder, shall be deemed to be written, signed, and dated for the
purposes of these Bylaws, provided that any such electronic
transmission sets forth or is delivered with information from
which the Corporation can determine (i) that such
electronic transmission was transmitted by the stockholder or
proxy holder or by a person or persons authorized to act for the
stockholder or proxy holder and (ii) the date on which such
stockholder or proxy holder or authorized person or persons
transmitted such electronic transmission, except that delivery
made to the Corporations registered office shall be made
by hand or by certified or registered mail, return receipt
requested. Any consent by means of electronic transmission shall
be deemed to have been signed on the date on which such
electronic transmission was transmitted. No consent given by
electronic transmission shall be deemed to have been delivered
until receipt by the Corporation at its principal place of
business or by an officer or agent of the Corporation having
custody of the book or books in which proceedings of meetings of
stockholders are recorded. Notwithstanding the foregoing
limitations on delivery, consents given by electronic
transmission may be otherwise delivered to the principal place
of business of the Corporation or to an
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officer or agent of the Corporation having custody of the book
or books in which proceedings of meetings of stockholders are
recorded if, to the extent, and in the manner provided by
resolution of the Board.
(d) Any copy, facsimile, or other reliable reproduction of
a consent in writing (or reproduction in paper form of a consent
by other electronic transmission) may be substituted or used in
lieu of the original writing (or original reproduction in paper
form of a consent by electronic transmission) for any and all
purposes for which the original consent could be used, provided
that such copy, facsimile, or other reproduction shall be a
complete reproduction of the entire original writing (or
original reproduction in paper form of other electronic
transmission).
ARTICLE XI
Directors
11.1
Powers
. The Board shall
have and may exercise all powers of the Corporation, except as
are by applicable law, by the Certificate of Incorporation or by
these Bylaws conferred upon or reserved to the holders of any
class or classes or series thereof of capital stock of the
Corporation.
11.2
Number
. The number of
directors constituting the entire Board shall be fixed
exclusively by the Board of Directors from time to time.
11.3
Qualifications
. Directors
shall be natural persons that are at least 18 years of age.
Directors are not required to be stockholders.
11.4
Place of
Meetings
. Meetings of the Board shall be held
at the Corporations office in the State of Delaware or at
such other places, inside or outside such State, as the Board
may from time to time determine or as shall be specified or
fixed in the notice or waiver of notice of any such meeting.
11.5
Regular
Meetings
. Regular meetings of the Board shall
be held from time to time as shall be determined by the Board,
such determination to constitute the only notice of regular
meetings to which any director shall be entitled. In the absence
of such a determination, such meetings shall be held upon notice
in accordance with Section 3.7.
11.6
Special
Meetings
. Special meetings of the Board may
be called by a majority of the directors then in office or by
the Chair of the Board, if any, or in lieu thereof, the
President, upon notice in accordance with Section 3.7.
11.7
Notice of
Meetings
. Notice of any regular (if required)
and each special meeting of the Board stating the time, place
and purposes thereof, may be given verbally in person, verbally
by telephone (including by leaving verbal notice on a message or
recording device) or in writing personally, by mail, by
facsimile transmission, by electronic mail or by other form of
electronic transmission pursuant to which the director has
consented or agreed to receive notice. Notice shall be provided
(a) if mailed, not less than three calendar days prior to
the meeting, addressed to such director at his or her residence
or usual place of business, or (b) if verbally, by courier,
by facsimile or other electronic transmission or other similar
method
,
at least 24 hours before the meeting.
11.8
Waiver of
Notice
. Notice of any meeting of the Board,
or any committee thereof, need not be given to any member if
waived by him or her in writing as provided in these Bylaws, or
if he or she signs the minutes or attends the meeting, except
that if such director attends a meeting for the express purpose
of objecting at the beginning of the meeting to the transaction
of any business because the meeting is not lawfully called or
convened, then such director shall not be deemed to have waived
notice of such meeting.
11.9
Quorum and Voting
. At
all meetings of the Board and of any committee thereof, a
majority of the members of the Board or of such committee shall
be necessary and sufficient to constitute a quorum for the
transaction of business. The act of a majority of the members
present at any meeting of the Board or a committee thereof at
which a quorum is present shall be the act of the Board or such
committee, unless by express provision of applicable law, the
Certificate of Incorporation or these Bylaws (or with respect to
any committee, pursuant to a resolution adopted by the Board), a
different vote is required, in which case the express provision
shall govern and control. In the absence of a quorum, a majority
of the members of the Board or of such committee present at any
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meeting may, without notice other than announcement at the
meeting, adjourn such meeting from time to time until a quorum
is present.
11.10
Manner of Acting
. Any
action required or permitted to be taken by the Board or any
committee thereof may be taken without a meeting if all members
of the Board or such committee, as the case may be, consent
thereto in writing or by electronic transmission, and the
writing or writings, or the transmission or transmissions, are
filed with the minutes of the proceedings of the Board or such
committee. Members of the Board or any committee thereof may
participate in any meeting of the Board or such committee by
means of conference telephone or other communications equipment
by means of which all persons participating therein can hear
each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
11.11
Committees
.
(a) The Board may by resolution or resolutions designate
one or more committees, each committee to consist of one or more
directors, which to the extent provided in such resolution or
resolutions shall have and may exercise, to the extent permitted
by applicable law, such powers as the Board may delegate to them
in the respective resolutions appointing them. The Board may
designate one or more directors as alternate members of any
committee to replace any absent or disqualified member of the
committee.
(b) Except as otherwise determined by resolution of the
Board or as provided in these Bylaws, each committee shall adopt
its own rules governing the time, place and method of holding
its meetings and the conduct of its proceedings, and shall meet
as provided by such rules or by resolution of the Board. Unless
otherwise provided by these Bylaws or any such rules or
resolutions, notice of the time and place of each meeting of a
committee shall be given to each member of such committee as
provided in Section 3.7 with respect to notices of meetings
of the Board.
(c) Each committee shall keep regular minutes of its
proceedings and report the same to the Board when required.
(d) Any member of any committee may be removed from such
committee either with or without cause, at any time, by the
Board at any meeting thereof. Any vacancy in any committee shall
be filled by the Board in the manner prescribed by the
Certificate of Incorporation or these Bylaws for the original
appointment of the members of such committee.
11.12
Resignation
. Any
director may resign at any time by notice given in writing or by
electronic transmission to the Corporation. Any such notice
provided to the Board, the Chair of the Board, the Chief
Executive Officer, the President or the Secretary of the
Corporation shall be deemed to constitute notice to the
Corporation. Such resignation shall take effect upon delivery,
unless the resignation specifies a later effective date or an
effective date determined upon the happening of an event or
events and, unless otherwise specified therein, acceptance of
such resignation shall not be necessary to make it effective.
11.13
Removal
. Except as
otherwise provided in the Certificate of Incorporation, any or
all of the directors of the Corporation may be removed from the
Board, with or without cause, upon the affirmative vote of
holders of a majority of the issued and outstanding capital
stock of the Corporation entitled to vote.
11.14
Vacancies
. Unless
otherwise provided in the Certificate of Incorporation or in
these Bylaws, vacancies and newly-created directorships
resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining
director. Unless otherwise provided in the Certificate of
Incorporation or these Bylaws, when one or more directors
resigns from the Board, effective at a future date, a majority
of directors then in office, including those who have resigned,
shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations
shall become effective.
11.15
Compensation of
Directors
. The Board may provide for the
payment to any of the directors of a specified amount for
services as director or member of a committee of the Board, or
of a specified amount for attendance at each regular or special
Board meeting or committee meeting, or of both, and all
directors shall be reimbursed for expenses of attendance at any
such meeting; provided, however, that nothing contained in these
Bylaws shall be construed to preclude any director from serving
the Corporation in any other capacity and from receiving
compensation from the Corporation for service rendered to it in
such other capacity.
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ARTICLE XII
Officers
12.1
Number
. The officers of
the Corporation shall consist of a Chair of the Board, a Chief
Executive Officer, a President
,
a Chief Financial Officer
and a Secretary. The Board also may elect such other officers as
the Board may from time to time deem appropriate or necessary,
including a Chief Operating Officer, one or more Vice Presidents
(including one or more Executive Vice Presidents and one or more
Senior Vice Presidents if deemed appropriate by the Board), one
or more Assistant Treasurers, one or more Assistant Secretaries
and a Controller.
12.2
Election, Term and
Qualification
. Except as otherwise provided
by this Article IV, officers of the Corporation shall be
elected and qualified from time to time by the Board. Each
officer shall hold office until his or her successor is elected
and qualified by the Board or until his or her earlier death,
retirement, resignation or removal. Any number of offices may be
held by the same person.
12.3
Resignation
. Any
officer may resign at any time by giving notice in writing or by
electronic transmission to the Corporation; provided, however,
that notice to the Board, Chair of the Board, the Chief
Executive Officer
,
the President, the Chief Financial
Officer or the Secretary shall be deemed to constitute notice to
the Corporation. Such resignation shall take effect upon receipt
of such notice or at any later time specified therein and,
unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
12.4
Removal
. Any officer
may be removed at any time, with or without cause, by the Board.
12.5
Vacancies
. Any vacancy
among the officers, whether caused by death, resignation,
removal or any other cause, shall be filled in the manner
prescribed for election or appointment to such office.
12.6
Delegation of
Authority
. To the fullest extent permitted by
applicable law, the Chair of the Board or the Board may from
time to time delegate the powers or duties of any officer to any
other officers or agents, notwithstanding any provision hereof.
12.7
Chair of the Board
. The
Chair of the Board shall be a director and shall preside at all
meetings of the stockholders and directors or may designate
another director to so preside.
12.8
Chief Executive
Officer
. The Chief Executive Officer shall
supervise the daily operations of the business of the
Corporation. Subject to the provisions of these Bylaws and to
the direction of the Board, he or she shall perform all duties
and have all powers as are commonly incident to the office of
Chief Executive Officer or that are from time to time delegated
to him or her by the Board or the Chair of the Board. He or she
shall have power to sign all stock certificates, contracts and
other instruments of the Corporation that are authorized and
shall have general supervision and direction of all of the other
officers, employees and agents of the Corporation.
12.9
President
. The
President, if any, shall, subject to the direction and
supervision of the Board, perform all duties and have all powers
as are commonly incident to the office of President or that are
from time to time delegated to him or her by the Board, the
Chair of the Board or the Chief Executive Officer. At the
request of the Chief Executive Officer or in his or her absence
or inability or refusal to act, the President of the Corporation
shall perform the duties of the Chief Executive Officer, and
when so acting shall have all the powers of and be subject to
all of the restrictions upon the Chief Executive Officer.
12.10
Chief Financial
Officer
. The Chief Financial Officer shall
(a) be the principal financial officer of the Corporation,
(b) upon request of the Board, make such reports to it as
may be required at any time and (c) perform all such other
duties and have all such other powers as are commonly incident
to the office of Chief Financial Officer or that are from time
to time delegated to him or her by the Board, the Chair of the
Board, the Chief Executive Officer or the President. Assistant
Treasurers, if any, shall have such powers and perform such
duties as may from time to time be delegated to them by the
Board or the Chief Financial Officer. At the request of the
Chief Financial Officer or in his or her absence or inability or
refusal to act, the Assistant Treasurer shall perform the duties
of the Chief Financial Officer, and when so acting shall have
all the powers of and be subject to all of the restrictions upon
the Chief Financial Officer.
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12.11
Vice President
. Each
Vice President (including one or more Executive Vice Presidents
and one or more Senior Vice Presidents if deemed appropriate by
the Board) shall have such powers and duties as may be delegated
to him or her by the Board, the Chair of the Board
,
the
Chief Executive Officer or the President.
12.12
Secretary
. The
Secretary shall (a) issue all authorized notices for, and
shall attend and keep minutes of all meetings of the
stockholders and the Board, (b) have charge of the
corporate books and (c) perform all such other duties and
have all such other powers as are commonly incident to the
office of Secretary or that are from time to time delegated to
him or her by the Board, the Chair of the Board
,
the
Chief Executive Officer or the President. Assistant Secretaries,
if any, shall have such powers and perform such duties as may
from time to time be delegated to them by the Board or the
Secretary. At the request of the Secretary or in his or her
absence or inability or refusal to act, the Assistant Secretary
designated by the Board or the Secretary shall perform the
duties of the Secretary, and when so acting shall have all the
powers of and be subject to all of the restrictions upon the
Secretary.
12.13
Controller
. The
Controller, if any, shall (a) be the principal accounting
officer of the Corporation, (b) have direct responsibility
for and supervision of the accounting records of the
Corporation, and see that adequate examination thereof are
currently and regularly made, and (c) perform all such
other duties and have all such other powers as are commonly
incident to the office of Controller or that are from time to
time delegated to him or her by the Board, the Chair of the
Board, the Chief Executive Officer
,
the President or the
Chief Financial Officer.
12.14
Bonds of Officers
. If
required by the Board or the Chair of the Board, any officer of
the Corporation shall give a bond for the faithful discharge of
his or her duties in such amount and with such surety or
sureties as the Board or the Chair of the Board may require.
ARTICLE XIII
Capital
Stock
13.1
Certificates
. Shares of
stock of the Corporation shall be represented by certificates,
unless the Board provides by resolution or resolutions that some
or all of the shares of any class or classes, or series thereof,
of the Corporations capital stock shall be uncertificated,
in which case the shares of such class or classes, or series
thereof, shall be uncertificated. Each holder of stock
represented by a certificate shall be entitled to a certificate
signed by, or in the name of the Corporation by, either the
Chair of the Board, the President or a Vice President, and by
either the Secretary, an Assistant Secretary, the Chief
Financial Officer or an Assistant Treasurer, bearing the number
of shares owned by him or her. Any or all of the signatures on
the certificate may be by facsimile. If any officer, transfer
agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is
issued, the certificate may be issued by the Corporation with
the same effect as if such person or entity were such officer,
transfer agent or registrar at the date of issuance.
13.2
Transfers
. Where shares
of stock are represented by a certificate, transfers of shares
shall be made only upon the transfer books of the Corporation
kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation,
and where shares of stock are uncertificated, such shares may be
transferred in accordance with applicable law.
13.3
Lost, Stolen or Destroyed
Certificates
. Any person claiming a
certificate of stock to be lost, stolen or destroyed shall, at
the request of the Corporation, make an affidavit or an
affirmation of such loss, theft or destruction, and shall, at
the request of the Corporation, give the Corporation a bond of
indemnity in satisfactory form and with one or more satisfactory
sureties, whereupon a new certificate may be issued in its place.
13.4
Registered
Stockholders
. The names and addresses of the
holders of record of the shares of each class and series of the
Corporations capital stock, together with the number of
shares of each class and series held by each record holder and
the date of issue of such shares, shall be entered on the books
of the Corporation. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its
books as the owner of shares of capital stock of the Corporation
as the person entitled to exercise the rights of a stockholder,
including, without limitation, the right to vote in person or by
proxy at any meeting of the stockholders of the Corporation. The
Corporation shall not be
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bound to recognize any equitable or other claim to or interest
in any such shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as
otherwise expressly provided by the DGCL.
13.5
Fractional Shares
. The
Corporation may, but shall not be required to, issue fractional
shares of its capital stock if necessary or appropriate to
effect authorized transactions. If the Corporation does not
issue fractional shares, it shall (a) arrange for the
disposition of fractional interests on behalf of those that
otherwise would be entitled thereto, (b) pay in cash the
fair value of fractions of a share as of the time when those who
otherwise would be entitled to receive such fractions are
determined, or (c) issue scrip or warrants in registered
form (either represented by a certificate or uncertificated) or
in bearer form (represented by a certificate), which scrip or
warrants shall entitle the holder to receive a full share upon
surrender of such scrip or warrants aggregating a full share.
Fractional shares shall, but scrip or warrants for fractional
shares shall not (unless otherwise expressly provided therein),
entitle the holder to exercise voting rights, to receive
dividends thereon, to participate in the distribution of any
assets in the event of liquidation, and otherwise to exercise
rights as a holder of capital stock of the class or series to
which such fractional shares belong.
13.6
Additional Powers of
Board
. The issue, transfer, conversion and
registration of certificates of stock or uncertificated shares
shall be governed by such other rules and regulations as the
Board may establish. The Board may appoint and remove transfer
agents and registrars of transfer, and may require all stock
certificates to bear the signature of any such transfer agents
or registrars of transfer.
ARTICLE XIV
Indemnification
of Directors and Officers
14.1
General
. The
Corporation shall 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, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is
or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or
officer of another corporation, partnership, joint venture,
trust 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. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in
good faith and in a manner which 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
reasonable cause to believe that his conduct was unlawful.
14.2
Derivative Actions
. The
Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation
to procure a judgment in its favor by reason of the fact that he
is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or
officer of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including
attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit
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 except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery of the State of Delaware
or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall
deem proper.
14.3
Indemnification in Certain
Cases
. To the extent that a present or former
director or officer of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 6.1 and 6.2, or in
defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees)
actually and reasonably incurred by him in connection therewith.
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14.4
Procedure
. Any
indemnification under Sections 6.1 and 6.2 (unless ordered
by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification
of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth
in such Sections 6.1 and 6.2. Such determination shall be
made (a) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such
action, suit or proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (c) by the stockholders.
14.5
Advances
for-Expenses
. Expenses (including
attorneys fees) incurred in defending a civil, criminal,
administrative or investigative action, suit or proceeding shall
be paid by the Corporation, to the extent permitted by law, in
advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall be
ultimately determined that he is not entitled to be indemnified
by the Corporation as authorized in this Article VI.
14.6
Rights
Not-Exclusive
. The indemnification and
advancement of expenses provided by or granted pursuant to the
other Sections of this Article VI shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any law, by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office.
14.7
Insurance
. The
Corporation shall have power 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, partnership, joint venture,
trust or other 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 have
the power to indemnify him against such liability under the
provisions of this Article VI.
14.8
Definition of
Corporation
. For the purposes of this
Article VI, references to the Corporation
include all constituent corporations absorbed in consolidation
or merger as well as the resulting or surviving corporation so
that any person who is or was a director, officer, employee or
agent of such a constituent corporation or is or was serving at
the request of such constituent as a director, officer, employee
or agent of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under
the provisions of this Article VI with respect to the
resulting or surviving corporation as he would if he had served
the resulting or surviving corporation in the same capacity.
14.9
Other Definitions
. For
purposes of this Article VI, references to other
enterprises shall include employee benefit plans;
references to fines shall include any excise taxes
assessed on a person with respect to an employee benefit plan;
and references to serving at the request of the
corporation shall include any service as a director,
officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner not
opposed to the best interests of the Corporation as
referred to in this Article VI.
14.10
Continuation of
Rights
. The indemnification and advancement
of expenses provided by, or granted pursuant to this
Article VI shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such
person. No amendment to or repeal of this Article VI shall
apply to or have any effect on, the rights of any director,
officer, employee or agent under this Article VI which
rights come into existence by virtue of acts or omissions of
such director, officer, employee or agent occurring prior to
such amendment or repeal.
14.11
Indemnification of Employees and Agents
of the Corporation
. The Corporation may, to
the extent authorized from time to time by the Board, grant
rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent
of the provisions of this Article VI with respect to the
indemnification and advancement of expenses of directors and
officers of the Corporation.
A-47
ARTICLE XV
Amendments
To the extent permitted by the Certificate of Incorporation, the
Board may from time to time alter, amend, supplement or repeal
these Bylaws. In addition to and not in limitation of the
foregoing, these Bylaws may be altered, amended, supplemented or
repealed at any meeting of stockholders or by written consent of
the stockholders as provided in these Bylaws, provided that any
such alteration, amendment, supplement or repeal proposed to be
acted upon at any such meeting or by written consent shall have
been described or referred to in the notice of such meeting or
in the written consent.
ARTICLE XVI
Miscellaneous
16.1
Waivers of
Notice
. Whenever notice is required to be
given by applicable law, the Certificate of Incorporation or
these Bylaws to any stockholder, director, officer, employee or
agent, a waiver in writing, signed by the person entitled to the
notice, or a waiver by electronic transmission by the person
entitled to the notice, whether before or after the time of the
event for which notice is to be given, shall be deemed
equivalent to the notice required. Neither the business nor the
purpose of any meeting need be specified in such a waiver. If
waiver of notice is given by electronic transmission, such
electronic transmission must either set forth or be submitted
with information from which it can be determined that the
electronic transmission was authorized by the stockholder,
director, officer, employee or agent, as applicable. Attendance
of a person at a meeting, whether such attendance is in person,
by remote communication or by proxy, shall constitute a waiver
of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting at the beginning of
the meeting to the transaction of any business because the
meeting is not lawfully called or convened.
16.2
Record Date
.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the Board may fix a
record date, which record date shall not precede the date on
which the resolution fixing the record date is adopted by the
Board, and shall not be more than 60 nor less than 10 days
before the date of the meeting. If no record date is fixed by
the Board, the record date shall be at the close of business on
the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record
date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing
without a meeting, the Board may fix a record date, which record
date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board, and shall not be more
than 10 days after the date upon which the resolution
fixing the record date is adopted by the Board. Any stockholder
of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to
the Secretary, request the Board to fix a record date. The Board
shall promptly, but in all events within 10 days after the
date on which such a request is received, adopt a resolution
fixing the record date. If no record date has been fixed by the
Board within 10 days after the date on which such a request
is received, the record date for determining stockholders
entitled to consent to corporation action in writing without a
meeting, if no prior action by the Board is required by
applicable law, the Certificate of Incorporation or these
Bylaws, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken
is delivered to the Corporation in the manner set forth in these
Bylaws. If no record date has been fixed by the Board and prior
action by the Board is required by applicable law, the
Certificate of Incorporation, or these Bylaws, the record date
shall be at the close of business on the date on which the Board
adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or to exercise any
rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board may fix
a record date, which record date
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shall not precede the date on which the resolution fixing the
record date is adopted by the Board, and shall not be more than
60 days prior to the date of the action. If no record date
is fixed by the Board, the record date shall be shall be at the
close of business on the day on which the Board adopts a
resolution relating thereto.
16.3
Books and Records
. Any
books or records maintained by the Corporation in the regular
course of its business, including its stock ledger, books of
account and minute books, may be kept on, or by means of, or be
in the form of, any information storage device or method;
provided, however, that the books and records so kept can be
converted into clearly legible paper form within a reasonable
time. The Corporation shall so convert any books or records so
kept upon the request of any person entitled to inspect such
records pursuant to the Certificate of Incorporation, these
Bylaws or the provisions of the DGCL.
16.4
Action with Respect to Securities of Other
Entities
. Unless otherwise directed by the
Board, the Chair of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer or any Vice President
shall have power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of
stockholders or other equityholders of or with respect to any
action of stockholders or other equityholders of any other
corporation or other entity in which the Corporation may hold
securities and otherwise to exercise any and all rights and
powers that the Corporation may possess by reason of its
ownership of securities in such other corporation or other
entity.
16.5
Facsimile
Signatures
. In addition to the provisions for
use of facsimile signatures elsewhere specifically authorized in
these Bylaws, signatures by facsimile or other electronic
transmission of any officer or officers of the Corporation may
be used whenever and as authorized by the Board or a committee
thereof.
16.6
Corporate Seal
. The
Corporation shall have no corporate seal.
16.7
Reliance Upon Books, Reports and
Records
. Each director, each member of any
committee designated by the Board, and each officer of the
Corporation shall, in the performance of his or her duties, be
fully protected in relying in good faith upon the books of
account or other records of the Corporation and upon such
information, opinions, reports or statements presented to the
Corporation by any of its officers or employees, or committees
of the Board so designated, or by any other person as to matters
which such director or committee member reasonably believes are
within such other persons professional or expert
competence and who has been selected with reasonable care by or
on behalf of the Corporation.
16.8
Fiscal Year
. The fiscal
year of the Corporation shall end on December 31 of each year,
or shall be as otherwise fixed by the Board.
16.9
Time Periods
. In
applying any provision of these Bylaws that requires that an act
be done or not be done a specified number of days prior to an
event or that an act be done during a period of a specified
number of days prior to an event, calendar days shall be used,
the day of the doing of the act shall be excluded, and the day
of the event shall be included.
16.10
Inconsistent
Provisions
. If any provision of these Bylaws
is or becomes inconsistent with any provision of the Certificate
of Incorporation, the DGCL or any other applicable law, the
provision of these Bylaws shall not be given any effect to the
extent of such inconsistency but shall otherwise be given full
force and effect.
[END OF
BYLAWS]
A-49
Annex
B
FIRST
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (this
Amendment
), dated as of July 28, 2009,
is among
TOLMAR Holding, Inc.
, a Delaware corporation
(
Parent
),
Project Z Acquisition Sub,
Inc.
, a Delaware corporation (
Acquisition
Sub
), and
Zila, Inc.
, a Delaware corporation
(
Target
). Parent, Acquisition Sub and Target
sometimes are referred to collectively herein as the
Parties.
Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed thereto
in that certain Agreement and Plan of Merger, dated
June 25, 2009, by and among the Parties (the
Merger Agreement
).
Recitals
A. The Parties entered into the Merger Agreement, which
contemplates a transaction in which Parent will acquire all of
Targets outstanding stock for cash through a reverse
subsidiary merger of Acquisition Sub with and into Target.
B. Per the Merger Agreement, the consideration to be paid
was $0.38 per share of Target Common Stock and $0.44 per share
of Target Series B Convertible Preferred Stock.
C. Parent has consummated the transactions contemplated
under the Note Purchase Agreement, including its purchase for
cash of all of the Senior Notes.
D. The Parties desire to amend the Merger Agreement to,
among other things: (i) increase the per share
consideration to be paid for the Target Common Stock and the
Target Series B Convertible Preferred Stock,(ii) delete
certain provisions relating to the Note Purchase Agreement that
are no longer necessary due to Parents acquisition of the
Senior Notes, and (iii) amend certain conditions to their
respective obligations to consummate the transactions
contemplated under the Merger Agreement.
Agreement
In consideration of the representations, warranties, covenants
and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are
acknowledged, the Parties agree as follows:
1.
Amendment of Per Share Merger
Consideration.
The reference to $0.38
in Section 2.4(e)(i) of the Merger Agreement shall be
deleted and inserted in lieu thereof shall be a reference to
$0.45. The reference to $0.44 in
Section 2.4(e)(ii) of the Merger Agreement shall be deleted
and inserted in lieu thereof shall be a reference to
$0.50.
2.
Amendments of Conditions to Parents and
Acquisition Subs Obligation to
Close.
Section 6.1(h) of the Merger
Agreement shall be deleted and inserted in lieu thereof shall be
the following provision: no injunction, judgment, order,
decree, ruling or charge shall be in effect that would
(i) prevent consummation of any of the transactions
contemplated by this Agreement, (ii) cause any of the
transactions contemplated by this Agreement to be rescinded
following consummation, (iii) adversely affect the right of
Parent to own the capital stock of Surviving Corporation and to
control Surviving Corporation and its Subsidiaries or
(iv) adversely affect the right of any of Surviving
Corporation, together with its Subsidiaries, to own its assets
and to operate its business,.
3.
Amendment of Conditions to Targets Obligation
to Close.
Section 6.2(c) of the Merger
Agreement shall be deleted and inserted in lieu thereof shall be
the following provision: no injunction, judgment, order,
decree, ruling or charge shall be in effect that would
(i) prevent consummation of any of the transactions
contemplated by this Agreement, or (ii) cause any of the
transactions contemplated by this Agreement to be rescinded
following consummation,.
B-1
4.
Amendment of Covenant Relating to Date of Special
Meeting.
The first sentence of
Section 5.4(b) of the Merger Agreement shall be deleted and
inserted in lieu thereof shall be the following sentence:
Target will call a special meeting of its stockholders
(the
Special Meeting
) to be held as soon as
practicable (but in no event later than September 30,
2009) in order that the stockholders of Target may consider
and vote upon the adoption of this Agreement and the approval of
the Merger in accordance with the DGCL.
5.
Deletion of Condition (regarding Note Purchase
Agreement) to Parents and Acquisition Subs
Obligation to Close.
Section 6.1(n) of the
Merger Agreement shall be deleted.
6.
Deletion of Termination Right (regarding Note
Purchase Agreement).
Clause (iii) of
Section 7.1(b) of the Merger Agreement shall be deleted.
7.
Amendment of Disclosure Schedule.
The
Disclosure Schedule shall be amended as set forth on
Exhibit A.
8.
No Other Modifications.
Except as
expressly modified hereby, all other terms and conditions of the
Merger Agreement shall remain unchanged and in full force and
effect and none of the rights of the Parties under the Merger
Agreement is or shall be deemed to be prejudiced by reason of
this Amendment.
9.
References, Titles and
Construction.
References in the Merger Agreement
to this Agreement, herein,
hereby, hereunder and words of similar
import shall be deemed to include the Merger Agreement as
amended by this Amendment. Titles and section headings contained
in this Amendment are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this
Amendment. The Parties have participated jointly in the
negotiation and drafting of this Amendment. In the event an
ambiguity or question of intent or interpretation arises, this
Amendment shall be construed as if drafted jointly by the
Parties and no presumption or burden of proof shall arise
favoring or disfavoring a Party by virtue of the authorship of
any of the provisions of this Amendment.
10.
Counterparts.
This Amendment may be
executed in one or more counterparts, (including by means of
facsimile or other electronic transmission), each of which shall
be deemed an original but all of which together will constitute
one and the same instrument.
11.
Governing Law.
This Amendment shall
be governed by and construed in accordance with the domestic
laws of the State of Delaware without giving effect to a choice
or conflict of law provision or rule (whether of the State of
Delaware or another jurisdiction) that would cause the
application of the laws of a jurisdiction other than the State
of Delaware.
[Remainder
of Page Intentionally Left Blank]
B-2
The Parties have executed this First Amendment to Agreement and
Plan of Merger as of the date first above written.
PARENT:
TOLMAR Holding, Inc., a
Delaware corporation
Name: David Speights
ACQUISITION SUB:
Project Z Acquisition Sub, Inc., a
Delaware corporation
Name: David Speights
TARGET:
Zila, Inc., a
Delaware corporation
Name: David R. Bethune
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Title:
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Chairman and Chief Executive Officer
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[Signature
Page to First Amendment to Merger Agreement]
B-3
ANNEX C
TRANSACTION
SUPPORT AGREEMENT
THIS TRANSACTION SUPPORT AGREEMENT (this
Agreement
) is made and entered into as of
August , 2009 by and among TOLMAR Holding,
Inc., a Delaware corporation (
Parent
),
Project Z Acquisition Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of Parent (
Acquisition
Sub
), and the undersigned security holder
(
Stockholder
) of Zila, Inc., a Delaware
corporation (
Target
).
W I T N E
S S E T H:
WHEREAS, Parent, Acquisition Sub and Target have entered into an
Agreement and Plan of Merger dated June 25, 2009 (as it may
be amended from time to time, the
Merger
Agreement
), which provides for, among other things,
the merger of Acquisition Sub with and into Target (the
Merger
) pursuant to which all outstanding
shares of capital stock of Target will be converted into the
right to receive the consideration set forth in the Merger
Agreement.
WHEREAS, as of the date hereof, Stockholder is the Beneficial
Owner (as defined below) of securities of Target, including
shares of Target Capital Stock (as defined below)
and/or
options to purchase or otherwise acquire shares of Target
Capital Stock (collectively, the
Target
Securities
) as is indicated on the signature page of
this Agreement.
WHEREAS, in consideration of the execution of the Merger
Agreement by Parent and Acquisition Sub, Stockholder (in
Stockholders capacity as a security holder of Target) is
hereby agreeing to vote the Shares (as defined below) in
accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and
the representations, warranties, covenants and agreements set
forth herein, as well as other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged and
accepted, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1.
Certain Definitions.
All
capitalized terms that are used but not defined herein shall
have the respective meanings ascribed to them in the Merger
Agreement. For all purposes of and under this Agreement, the
following terms shall have the following respective meanings:
(a)
Beneficially Own
or
Beneficial Ownership
with respect to any
securities means having beneficial ownership of such
securities as determined pursuant to
Rule 13d-3
under the Exchange Act, including pursuant to any contract. A
Beneficial Owner
is a Person who Beneficially
Owns securities.
(b)
Target Capital Stock
means any
capital stock of Target.
(c)
Expiration Date
means the earliest
to occur of (i) such date and time as the Merger Agreement
shall have been terminated pursuant to Article VII thereof
or (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the
Merger Agreement.
(d)
Shares
means (i) all Target
Securities Beneficially Owned by Stockholder as of the date
hereof, and (ii) all additional Target Securities,
including any shares of Target Capital Stock issuable upon the
exercise of any options to purchase or otherwise acquire Target
Capital Stock, of which Stockholder acquires Beneficial
Ownership during the period from the date of this Agreement
through the Expiration Date (including by way of stock dividend
or distribution,
split-up,
recapitalization, combination, exchange of shares and the like).
2.
Agreement to Vote Shares.
(a) At every meeting of the stockholders of Target called,
and at every adjournment or postponement thereof, and on every
action or approval by written consent of the stockholders of
Target, Stockholder will, or
C-1
will cause one or more of its agents or representatives, if
applicable, as the holder of record of outstanding Shares on any
applicable record date to, vote such outstanding Shares then
held by Stockholder:
(i) in favor of the adoption of the Merger Agreement (as it
may be amended from time to time) and each of the other
transactions contemplated by the Merger Agreement;
(ii) against approval of any proposal made in opposition
to, or in competition with, consummation of the Merger or any
other transactions contemplated by the Merger Agreement; and
(iii) against any of the following actions (other than
those actions that relate to the Merger and any other
transactions contemplated by the Merger Agreement): (A) any
merger, consolidation, business combination, sale of assets or
reorganization of Target or any Subsidiary of Target,
(B) any sale, lease or transfer of any significant part of
the assets of Target or any of its Subsidiaries, (C) any
reorganization, recapitalization, dissolution, liquidation or
winding up of Target or any of its Subsidiaries, (D) any
material change in the capitalization of Target or any of its
Subsidiaries, or the corporate structure of Target or any of its
Subsidiaries, or (E) any other stockholder action that is
intended, or could reasonably be expected to, impede, interfere
with, delay, postpone, discourage or adversely affect the Merger
or any other transaction contemplated by the Merger Agreement.
(b) In the event that a meeting of the stockholders of
Target is held, Stockholder shall, or shall cause the holder of
record on any applicable record date to, appear at such meeting
or otherwise cause the Shares to be counted as present thereat
for purposes of establishing a quorum.
(c) Stockholder shall not enter into any contract or
agreement with any Person to vote or give instructions in any
manner inconsistent with the terms of this
Section 2.
3.
Directors and Officers.
Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall limit or restrict Stockholder
from acting in Stockholders capacity as an officer or
director of Target or voting in such capacity in
Stockholders sole discretion on any matter (it being
understood that this Agreement shall apply to Stockholder solely
in Stockholders capacity as a security holder of Target
and/or
holder of options to purchase or otherwise acquire shares of
Target Capital Stock).
4.
No Ownership Interest.
Nothing
contained in this Agreement shall be deemed to vest in Parent or
Acquisition Sub any direct or indirect ownership or incidence of
ownership of or with respect to any Shares. All rights,
ownership and economic benefits of and relating to the Shares
shall remain vested in and belong to Stockholder, and neither
Parent nor Acquisition Sub shall have authority to exercise any
power or authority to direct Stockholder in the voting of any of
the Shares, except as otherwise provided herein.
5.
Beneficial Ownership; Voting
Power.
Stockholder hereby represents and
warrants (in Stockholders capacity as a security holder of
Target
and/or
holder of options to purchase or otherwise acquire shares of
Target Capital Stock) to Parent and Acquisition Sub that, as of
the record date for the meeting of the stockholders of Target
called for purposes of voting on the Merger Agreement:
(a) Stockholder is the Beneficial Owner of the Shares as
indicated on the signature page to this Agreement;
(b) Stockholder does not Beneficially Own any Target
Securities other than Target Securities indicated on the
signature page to this Agreement; and (c) Stockholder has
sole voting power with respect to all of the Shares, with no
limitations, qualifications or restrictions on such right,
subject to applicable securities Laws and the terms of this
Agreement.
6.
Further Assurances.
Subject to
the terms and conditions of this Agreement, Stockholder shall
use commercially reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things
necessary to fulfill Stockholders obligations under this
Agreement.
7.
Independent Counsel.
Stockholder hereby acknowledges receipt of, and has had an
opportunity to read and understand and consult with independent
counsel concerning, this Agreement.
8.
Termination.
This Agreement and
the Proxy shall terminate and shall have no further force or
effect as of the Expiration Date. Notwithstanding the foregoing,
nothing set forth in this
Section 8
or elsewhere in
this Agreement shall relieve either party hereto from any
liability, or otherwise limit the liability of either party
hereto, for any breach of this Agreement.
C-2
9.
Miscellaneous.
(a)
Assignment.
This Agreement shall be
binding upon, and shall be enforceable by and inure to the
benefit of, the parties hereto and their respective permitted
successors and assigns. This Agreement shall not be assignable
by any party without the express written consent of the other
parties hereto.
(b)
Amendments and Waivers.
No amendment
of any provision of this Agreement shall be valid unless the
same shall be in writing and signed by all of the parties. No
waiver by any party of any provision of this Agreement or any
default, misrepresentation or breach of warranty or covenant
hereunder, whether intentional or not, shall be valid unless the
same shall be in writing and signed by the party making such
waiver nor shall such waiver be deemed to extend to any prior or
subsequent default, misrepresentation or breach of warranty or
covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such default,
misrepresentation or breach of warranty or covenant.
(c)
Specific Performance and Other
Remedies.
Each of the parties agree that the
parties shall be entitled to an injunction or injunctions or
other equitable relief to prevent breaches of this Agreement and
to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which
the parties are entitled at law or in equity. Except as
otherwise provided herein, any and all remedies herein expressly
conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or
equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy.
(d)
Notices.
All notices, requests,
demands, claims and other communications under this Agreement
shall be in writing. A notice, request, demand, claim or other
communication under this Agreement shall be deemed duly given
(a) when delivered personally to the recipient,
(b) one Business Day after being sent to the recipient by
reputable overnight courier service (charges prepaid),
(c) one Business Day after being sent to the recipient by
facsimile transmission or electronic mail or (d) four
Business Days after being mailed to the recipient by certified
or registered mail, return receipt requested and postage
prepaid, and addressed to the intended recipient as set forth
below:
if to Parent or Acquisition Sub:
TOLMAR, Inc.
701 Centre Avenue
Fort Collins, CO 80526
Attn: Michael Duncan
Fax:
(970) 494-0241
with a copy (which shall not constitute valid delivery to Parent
or Acquisition Sub) to:
Holme Roberts & Owen LLP
1700 Lincoln Street, Suite 4100
Denver, CO 80203
Attn: Paul G. Thompson, Esq.
Fax:
(303) 866-0200
if to Stockholder:
to the address set forth on the signature page hereto.
A party may change the address to which notices, requests,
demands, claims and other communications under this Agreement
are to be delivered by giving the other parties notice in the
manner herein set forth.
(e)
Applicable Law.
This Agreement shall
be governed by and construed in accordance with the domestic
laws of the State of Delaware without giving effect to a choice
or conflict of law provision or rule (whether of the State of
Delaware or another jurisdiction) that would cause the
application of the laws of a jurisdiction other than the State
of Delaware.
C-3
(f)
Counterparts.
This Agreement may be
executed in one or more counterparts, (including by means of
facsimile or other electronic transmission), each of which shall
be deemed an original but all of which together will constitute
one and the same instrument.
[Remainder
of Page Intentionally Left Blank]
C-4
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed to be effective as of the date first above
written.
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PARENT:
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STOCKHOLDER:
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TOLMAR HOLDING, INC
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By:
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By:
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Name:
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Name:
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Title:
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Address:
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ACQUISITION SUB:
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Facsimile:
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PROJECT Z ACQUISITION SUB, INC
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Securities of Stockholder that are Beneficially Owned:
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By:
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Name:
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shares
of Target Common Stock
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Title:
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shares
of Target Common Stock issuable upon exercise of outstanding
options to purchase or otherwise acquire Target Common Stock
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C-5
ANNEX D
June 10,
2009
Board of Directors
Zila, Inc.
16430 N. Scottsdale Road, Suite 450
Scottsdale, AZ 85254
Ladies and Gentlemen:
Columbia West Capital (CWC) has been requested by Zila, Inc.
management to provide its opinion as to the fairness, from a
financial point of view, of the consideration offered by Tolmar
Holding, Inc. as parent and Project Z Acquisition Sub, Inc. as
acquisition sub, for all of the outstanding stock of Zila, Inc.
pursuant to an Agreement and Plan of Merger Among Tolmar
Holding, Inc. as Parent, Project Z Acquisition Sub, Inc. as
Acquisition Sub, and Zila, Inc. as Target, dated as of
June , 2009.
Under the Agreement, the Acquisition Sub will merge into Zila,
Inc. (Zila) and the shareholders of Zila will then
receive the right to receive, $.28 per share for their
outstanding Zila common stock and $.32 per share for their
outstanding Zila preferred stock.
In arriving at the opinion set forth below, CWC has completed
the following tasks:
1. Reviewed the financial statements of Zila for several
years ended July 31, 2008 as well as those monthly
statements up to April 30, 2009 and various closing
documents, accounting and other related records.
2. Reviewed certain information, including financial
forecasts, relating to the business, earnings and cash flows and
assets of Zilas business, as furnished to us by the
company.
3. Conducted numerous discussions with members of the
management of Zila concerning its business and prospects.
4. Compared the results of operations of Zilas
business with those of certain other companies which we deemed
relevant.
5. Conducted a review of the financial condition of Zila
with respect to its liquidity and capital position as of the
closing date.
6. Compared the financial terms of the merger with the
financial terms of certain other mergers and acquisitions which
we deemed relevant as further described in our attached analysis.
7. Reviewed the Agreement and Plan of Merger.
8. Performed such other analyses and reviewed and analyzed
such other information as CWC deemed relevant.
In rendering this opinion, CWC did not assume responsibility for
independently verifying, and did not independently verify, any
financial or other information concerning Zila, or the publicly
available information regarding other companies.
14646 N. Kierland
Blvd., Suite 238, Scottsdale, Arizona 85254
Phone:
(480) 664-3949
Fax:
(480) 664-3952
D-1
CWC has assumed that all such financial and other information is
accurate and complete, CWC has further relied on the assurances
of Zila management that they are not aware of any facts that
would make such financial or other information inaccurate,
incomplete or misleading. With respect to forecasts and
financial projections of Zila provided by management, CWC has
assumed, for the purpose of this opinion, that the forecasts
have been reasonably prepared and reflect the best available
estimates and judgments of management at the time of their
preparation as to the future performance of Zila. CWC has
further assumed based on representations by Zila management that
any material liabilities (contingent or otherwise, known or
unknown) of Zila are as set forth in the financial statements.
We have not been engaged to make, nor have we made an
independent evaluation or appraisal of the assets or liabilities
(contingent or otherwise) of Zila, nor have we been furnished
with any such evaluation or appraisals, nor have we evaluated
the terms of the various agreements and documents related to the
transaction, and therefore offer no opinion as to their
fairness, completeness or adequacy. Our opinion is based upon
regulatory, economic, market and monetary conditions existing as
of the date hereof.
This opinion has been prepared for your information in
connection with the Agreement and Plan of Merger and shall not
be reproduced, summarized, described or referred to or provided
to any person or otherwise made public without the prior consent
of Columbia West Capital.
On the basis of, and subject to the foregoing, we are of the
opinion that the consideration to be paid by
Tolmar Holdings, Inc. is fair from a financial point of
view.
Very truly yours,
Columbia West Capital, LLC
14646 N. Kierland
Blvd., Suite 238, Scottsdale, Arizona 85254
Phone:
(480) 664-3949
Fax:
(480) 664-3952
D-2
ANNEX E
SECTION 262
OF
THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
§
262. Appraisal rights
(a) Any stockholder of a corporation of this State who
holds shares of stock on the date of the making of a demand
pursuant to subsection (d) of this section with respect to
such shares, who continuously holds such shares through the
effective date of the merger or consolidation, who has otherwise
complied with subsection (d) of this section and who has
neither voted in favor of the merger or consolidation nor
consented thereto in writing pursuant to § 228 of this
title shall be entitled to an appraisal by the Court of Chancery
of the fair value of the stockholders shares of stock
under the circumstances described in subsections (b) and
(c) of this section. As used in this section, the word
stockholder means a holder of record of stock in a
stock corporation and also a member of record of a nonstock
corporation; the words stock and share
mean and include what is ordinarily meant by those words and
also membership or membership interest of a member of a nonstock
corporation; and the words depository receipt mean a
receipt or other instrument issued by a depository representing
an interest in one or more shares, or fractions thereof, solely
of stock of a corporation, which stock is deposited with the
depository.
(b) Appraisal rights shall be available for the shares of
any class or series of stock of a constituent corporation in a
merger or consolidation to be effected pursuant to
§ 251 (other than a merger effected pursuant to
§ 251(g) of this title), § 252,
§ 254, § 257, § 258,
§ 263 or § 264 of this title:
(1) Provided, however, that no appraisal rights under this
section shall be available for the shares of any class or series
of stock, which stock, or depository receipts in respect
thereof, at the record date fixed to determine the stockholders
entitled to receive notice of the meeting of stockholders to act
upon the agreement of merger or consolidation, were either
(i) listed on a national securities exchange or
(ii) held of record by more than 2,000 holders; and further
provided that no appraisal rights shall be available for any
shares of stock of the constituent corporation surviving a
merger if the merger did not require for its approval the vote
of the stockholders of the surviving corporation as provided in
§ 251(f) of this title.
(2) Notwithstanding paragraph (1) of this subsection,
appraisal rights under this section shall be available for the
shares of any class or series of stock of a constituent
corporation if the holders thereof are required by the terms of
an agreement of merger or consolidation pursuant to
§§ 251, 252, 254, 257, 258, 263 and 264 of this
title to accept for such stock anything except:
a. Shares of stock of the corporation surviving or
resulting from such merger or consolidation, or depository
receipts in respect thereof;
b. Shares of stock of any other corporation, or depository
receipts in respect thereof, which shares of stock (or
depository receipts in respect thereof) or depository receipts
at the effective date of the merger or consolidation will be
either listed on a national securities exchange or held of
record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional
depository receipts described in the foregoing subparagraphs a.
and b. of this paragraph; or
d. Any combination of the shares of stock, depository
receipts and cash in lieu of fractional shares or fractional
depository receipts described in the foregoing subparagraphs a.,
b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware
corporation party to a merger effected under § 253 of
this title is not owned by the parent corporation immediately
prior to the merger, appraisal rights shall be available for the
shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of
incorporation that appraisal rights under this section shall be
available for the shares of any class or series of its stock as
a result of an amendment to its certificate of incorporation,
any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all
of the assets of the corporation. If the certificate of
incorporation contains such a provision, the
E-1
procedures of this section, including those set forth in
subsections (d) and (e) of this section, shall apply
as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which
appraisal rights are provided under this section is to be
submitted for approval at a meeting of stockholders, the
corporation, not less than 20 days prior to the meeting,
shall notify each of its stockholders who was such on the record
date for notice of such meeting with respect to shares for which
appraisal rights are available pursuant to subsection (b)
or (c) hereof that appraisal rights are available for any
or all of the shares of the constituent corporations, and shall
include in such notice a copy of this section. Each stockholder
electing to demand the appraisal of such stockholders
shares shall deliver to the corporation, before the taking of
the vote on the merger or consolidation, a written demand for
appraisal of such stockholders shares. Such demand will be
sufficient if it reasonably informs the corporation of the
identity of the stockholder and that the stockholder intends
thereby to demand the appraisal of such stockholders
shares. A proxy or vote against the merger or consolidation
shall not constitute such a demand. A stockholder electing to
take such action must do so by a separate written demand as
herein provided. Within 10 days after the effective date of
such merger or consolidation, the surviving or resulting
corporation shall notify each stockholder of each constituent
corporation who has complied with this subsection and has not
voted in favor of or consented to the merger or consolidation of
the date that the merger or consolidation has become
effective; or
(2) If the merger or consolidation was approved pursuant to
§ 228 or § 253 of this title, then either a
constituent corporation before the effective date of the merger
or consolidation or the surviving or resulting corporation
within 10 days thereafter shall notify each of the holders
of any class or series of stock of such constituent corporation
who are entitled to appraisal rights of the approval of the
merger or consolidation and that appraisal rights are available
for any or all shares of such class or series of stock of such
constituent corporation, and shall include in such notice a copy
of this section. Such notice may, and, if given on or after the
effective date of the merger or consolidation, shall, also
notify such stockholders of the effective date of the merger or
consolidation. Any stockholder entitled to appraisal rights may,
within 20 days after the date of mailing of such notice,
demand in writing from the surviving or resulting corporation
the appraisal of such holders shares. Such demand will be
sufficient if it reasonably informs the corporation of the
identity of the stockholder and that the stockholder intends
thereby to demand the appraisal of such holders shares. If
such notice did not notify stockholders of the effective date of
the merger or consolidation, either (i) each such
constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of
the holders of any class or series of stock of such constituent
corporation that are entitled to appraisal rights of the
effective date of the merger or consolidation or (ii) the
surviving or resulting corporation shall send such a second
notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is
sent more than 20 days following the sending of the first
notice, such second notice need only be sent to each stockholder
who is entitled to appraisal rights and who has demanded
appraisal of such holders shares in accordance with this
subsection. An affidavit of the secretary or assistant secretary
or of the transfer agent of the corporation that is required to
give either notice that such notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated
therein. For purposes of determining the stockholders entitled
to receive either notice, each constituent corporation may fix,
in advance, a record date that shall be not more than
10 days prior to the date the notice is given, provided,
that if the notice is given on or after the effective date of
the merger or consolidation, the record date shall be such
effective date. If no record date is fixed and the notice is
given prior to the effective date, the record date shall be the
close of business on the day next preceding the day on which the
notice is given.
(e) Within 120 days after the effective date of the
merger or consolidation, the surviving or resulting corporation
or any stockholder who has complied with subsections (a)
and (d) of this section hereof and who is otherwise
entitled to appraisal rights, may commence an appraisal
proceeding by filing a petition in the Court of Chancery
demanding a determination of the value of the stock of all such
stockholders. Notwithstanding the foregoing, at any time within
60 days after the effective date of the merger or
consolidation, any stockholder who has not commenced an
appraisal proceeding or joined that proceeding as a named party
shall have the right to withdraw such stockholders demand
for appraisal and to accept the terms offered upon the merger or
consolidation.
E-2
Within 120 days after the effective date of the merger or
consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) of this
section hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting
from the consolidation a statement setting forth the aggregate
number of shares not voted in favor of the merger or
consolidation and with respect to which demands for appraisal
have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the
stockholder within 10 days after such stockholders
written request for such a statement is received by the
surviving or resulting corporation or within 10 days after
expiration of the period for delivery of demands for appraisal
under subsection (d) of this section hereof, whichever is
later. Notwithstanding subsection (a) of this section, a
person who is the beneficial owner of shares of such stock held
either in a voting trust or by a nominee on behalf of such
person may, in such persons own name, file a petition or
request from the corporation the statement described in this
subsection.
(f) Upon the filing of any such petition by a stockholder,
service of a copy thereof shall be made upon the surviving or
resulting corporation, which shall within 20 days after
such service file in the office of the Register in Chancery in
which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded
payment for their shares and with whom agreements as to the
value of their shares have not been reached by the surviving or
resulting corporation. If the petition shall be filed by the
surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in
Chancery, if so ordered by the Court, shall give notice of the
time and place fixed for the hearing of such petition by
registered or certified mail to the surviving or resulting
corporation and to the stockholders shown on the list at the
addresses therein stated. Such notice shall also be given by 1
or more publications at least 1 week before the day of the
hearing, in a newspaper of general circulation published in the
City of Wilmington, Delaware or such publication as the Court
deems advisable. The forms of the notices by mail and by
publication shall be approved by the Court, and the costs
thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall
determine the stockholders who have complied with this section
and who have become entitled to appraisal rights. The Court may
require the stockholders who have demanded an appraisal for
their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery
for notation thereon of the pendency of the appraisal
proceedings; and if any stockholder fails to comply with such
direction, the Court may dismiss the proceedings as to such
stockholder.
(h) After the Court determines the stockholders entitled to
an appraisal, the appraisal proceeding shall be conducted in
accordance with the rules of the Court of Chancery, including
any rules specifically governing appraisal proceedings. Through
such proceeding the Court shall determine the fair value of the
shares exclusive of any element of value arising from the
accomplishment or expectation of the merger or consolidation,
together with interest, if any, to be paid upon the amount
determined to be the fair value. In determining such fair value,
the Court shall take into account all relevant factors. Unless
the Court in its discretion determines otherwise for good cause
shown, interest from the effective date of the merger through
the date of payment of the judgment shall be compounded
quarterly and shall accrue at 5% over the Federal Reserve
discount rate (including any surcharge) as established from time
to time during the period between the effective date of the
merger and the date of payment of the judgment. Upon application
by the surviving or resulting corporation or by any stockholder
entitled to participate in the appraisal proceeding, the Court
may, in its discretion, proceed to trial upon the appraisal
prior to the final determination of the stockholders entitled to
an appraisal. Any stockholder whose name appears on the list
filed by the surviving or resulting corporation pursuant to
subsection (f) of this section and who has submitted such
stockholders certificates of stock to the Register in
Chancery, if such is required, may participate fully in all
proceedings until it is finally determined that such stockholder
is not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of
the shares, together with interest, if any, by the surviving or
resulting corporation to the stockholders entitled thereto.
Payment shall be so made to each such stockholder, in the case
of holders of uncertificated stock forthwith, and the case of
holders of shares represented by certificates upon the surrender
to the corporation of the certificates representing such stock.
The Courts decree may be enforced as other decrees in the
Court of Chancery may be enforced, whether such surviving or
resulting corporation be a corporation of this State or of any
state.
E-3
(j) The costs of the proceeding may be determined by the
Court and taxed upon the parties as the Court deems equitable in
the circumstances. Upon application of a stockholder, the Court
may order all or a portion of the expenses incurred by any
stockholder in connection with the appraisal proceeding,
including, without limitation, reasonable attorneys fees
and the fees and expenses of experts, to be charged pro rata
against the value of all the shares entitled to an appraisal.
(k) From and after the effective date of the merger or
consolidation, no stockholder who has demanded appraisal rights
as provided in subsection (d) of this section shall be
entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of
record at a date which is prior to the effective date of the
merger or consolidation); provided, however, that if no petition
for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder
shall deliver to the surviving or resulting corporation a
written withdrawal of such stockholders demand for an
appraisal and an acceptance of the merger or consolidation,
either within 60 days after the effective date of the
merger or consolidation as provided in subsection (e) of
this section or thereafter with the written approval of the
corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal
proceeding in the Court of Chancery shall be dismissed as to any
stockholder without the approval of the Court, and such approval
may be conditioned upon such terms as the Court deems just;
provided, however that this provision shall not affect the right
of any stockholder who has not commenced an appraisal proceeding
or joined that proceeding as a named party to withdraw such
stockholders demand for appraisal and to accept the terms
offered upon the merger or consolidation within 60 days
after the effective date of the merger or consolidation, as set
forth in subsection (e) of this section.
(l) The shares of the surviving or resulting corporation to
which the shares of such objecting stockholders would have been
converted had they assented to the merger or consolidation shall
have the status of authorized and unissued shares of the
surviving or resulting corporation.
8 Del. C. 1953, § 262; 56 Del. Laws, c. 50; 56
Del. Laws, c. 186, § 24; 57 Del. Laws, c. 148,
§§ 27-29;
59 Del. Laws, c. 106, § 12; 60 Del. Laws, c. 371,
§§ 3-12; 63 Del. Laws, c. 25, § 14; 63
Del. Laws, c. 152, §§ 1, 2; 64 Del. Laws, c. 112,
§§ 46-54;
66 Del. Laws, c. 136,
§§ 30-32;
66 Del. Laws, c. 352, § 9; 67 Del. Laws, c. 376,
§§ 19, 20; 68 Del. Laws, c. 337,
§§ 3, 4; 69 Del. Laws, c. 61, § 10; 69
Del. Laws, c. 262, §§ 1-9; 70 Del. Laws, c. 79,
§ 16; 70 Del. Laws, c. 186, § 1; 70 Del.
Laws, c. 299, §§ 2, 3; 70 Del. Laws, c. 349,
§ 22; 71 Del. Laws, c. 120, § 15; 71 Del.
Laws, c. 339,
§§ 49-52;
73 Del. Laws, c. 82, § 21; 76 Del. Laws, c. 145,
§§ 11-16;
77 Del. Laws, c. 14, §§ 12, 13.
E-4
Electronic Voting Instructions
You can vote by Internet or telephone!
Available 24 hours a day, 7 days a week!
Instead of mailing your proxy, you may choose one of
the two voting methods outlined below to vote your
proxy.
VALIDATION DETAILS ARE LOCATED BELOW IN THE TITLE BAR.
Proxies submitted by the Internet or telephone must
be received by 5:30 p.m., Central Standard Time, on
September 17, 2009.
Vote by Internet
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Log on to the Internet and go to
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www.envisionreports.com/ZILA
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Follow the steps outlined on the secured
website.
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Vote by telephone
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Call toll free 1-800-652-VOTE (8683) within
the United Stated, Canada & Puerto Rico any time
on a touch tone telephone. There is
NO CHARGE
to you for the call.
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Follow the instructions provided by the
recorded message.
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Using a
black ink
pen, mark your votes with an
X
as shown in
this example. Please do not write outside the designated
areas.
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x
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Special Meeting Proxy Card
IF YOU HAVE NOT VOTED VIA THE INTERNET
OR
TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND
RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.
A) Proposals The Board of Directors recommends a vote
FOR
Proposal No. 1 and Proposal No. 2.
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1. Adoption of the
Agreement and Plan
of Merger dated
June 25, 2009, by
and among TOLMAR
Holding, Inc.,
Project Z
Acquisition Sub,
Inc. and Zila,
Inc., as amended by
the First Amendment
to Agreement and
Plan of Merger
dated July 28,
2009, and the
approval of the
transactions
contemplated by the
Agreement and Plan
of Merger, as
amended, including
the merger of Project Z Acquisition Sub, Inc. with and into
Zila, Inc.
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For
¨
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Against
¨
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Abstain
¨
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3. In their
discretion, the
proxies are
authorized to vote
upon such other
business as may
properly come
before the special
meeting of
stockholders or any
adjournment(s) or
postponement(s) of
the special
meeting.
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2. Approval of one
or more
adjournments of the
special meeting, if
necessary or
appropriate,
including
adjournments to
permit further
solicitation of
proxies in favor of
the proposal to
adopt the Agreement
and Plan of Merger, as amended,
and approve the
Merger.
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For
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Against
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Abstain
¨
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B) Non-Voting Items
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Change of Address Please print your new address below.
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C) Authorized Signatures This section must be completed for your vote to be counted. Date and Sign Below
NOTE: Please sign your name(s) EXACTLY as your name(s) appear(s) on this proxy. All joint holders
must sign. When signing as attorney, trustee, executor, administrator, guardian or corporate
officer, please provide your FULL title.
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Date (mm/dd/yyyy) Please print date below.
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Signature 1 Please keep signature within the box
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Signature 2 Please keep signature within the box
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IF YOU HAVE NOT VOTED VIA THE INTERNET
OR
TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND
RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.
Proxy ZILA, INC.
Notice of Special Meeting of Stockholders
The undersigned hereby appoints David R. Bethune and George J. Vuturo, and each of them, proxy for
the undersigned, with power of substitution to vote all the shares of common stock of Zila, Inc.
held of record by the undersigned on August 12, 2009 at the special meeting of stockholders to be
held at the Hampton Inn & Suites, 16620 North Scottsdale Road, Scottsdale, Arizona 85254, on
Friday, September 18, 2009, at 8:00 a.m. Arizona time and at any adjournment thereof, upon the
matters designated below and as more fully set forth in the Proxy Statement and for the transaction
of such business as may properly come before the meeting.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS. WHEN PROPERLY EXECUTED, THIS PROXY
WILL BE VOTED IN THE MANNER DIRECTED BY THE UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS MADE, THIS
PROXY WILL BE VOTED
FOR
PROPOSAL NO. 1 AND PROPOSAL NO. 2.
(Please date and sign on the reverse side)
Zila (NASDAQ:ZILA)
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