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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 8, 2004
Keryx Biopharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware 000-30929 13-4087132
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
750 Lexington Avenue
New York, New York 10022
(Address of principal executive offices)
(212) 531-5965
(Registrant's telephone number, including area code)
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Item 5. Other Events
On January 8, 2004, Keryx Biopharmaceuticals, Inc. ("Keryx") announced
that it had entered into a definitive merger agreement to acquire ACCESS
Oncology, Inc. ("ACCESS") through the merger of a wholly-owned subsidiary of
Keryx, AXO Acquisition Corp., with and into ACCESS. Following the merger, ACCESS
will be the surviving corporation and will be a wholly-owned subsidiary of
Keryx.
At the effective time of the merger, the outstanding capital stock of
ACCESS, consisting of Series A Preferred Stock, Series B Preferred Stock, and
common stock, and, if exercised, certain outstanding warrants to purchase
capital stock of ACCESS, will be converted into the right to receive an
aggregate of up to 4,000,000 shares of the common stock of Keryx, or cash in
lieu thereof, upon the satisfaction of certain milestones relating to the
development of the ACCESS drug candidates, which are as follows:
o 500,000 shares of common stock upon initiation of the first
Keryx-sponsored Phase III (or other Pivotal) clinical trial for
any of the acquired ACCESS drug candidates;
o 750,000 shares of common stock upon the first NDA acceptance by
the FDA for any of the acquired ACCESS drug candidates;
o 1,750,000 shares of common stock upon the first FDA approval of
any of the acquired ACCESS drug candidates;
o 500,000 shares of common stock in the first 12-month period that
sales of all of the acquired ACCESS drug candidates combined
exceeds $100MM; and
o 500,000 shares of common stock in the first 12-month period that
sales of all of the acquired ACCESS drug candidates combined
exceeds $250MM.
The payment of portions or all of the merger consideration to the
ACCESS stockholders can be accelerated upon the occurrence of certain events,
including without limitation, a change in control of Keryx or a transaction
involving the sale or other disposition of all or substantially all of the
ACCESS drug candidates. Generally, the amount of merger consideration that will
be accelerated upon such an event is designed to allow the ACCESS stockholders
to share in the recognition of value by Keryx from the development or sale of
any of the ACCESS drug candidates. In no event will Keryx be obligated to
deliver more than 4,000,000 shares of Keryx common stock (or cash in lieu
thereof). At the effective time of the merger, all options to purchase capital
stock of ACCESS will be canceled.
No shares of the common stock of Keryx will be issued as merger
consideration unless the issuance of such common stock is approved by the vote
of the Keryx stockholders. If the Keryx stockholders do not approve the issuance
of shares of Keryx common stock, the ACCESS stockholders will instead receive
cash having a value equal to the Keryx common stock at the time each milestone
is achieved. Keryx is obligated to register any shares of Keryx common stock
issued as merger consideration to the former ACCESS stockholders.
No merger consideration whatsoever will be paid after ten (10) years
from the date of the merger agreement regardless of whether any development
milestones or other accelerating events subsequently occur.
The proposed merger is subject to approval by the stockholders of
ACCESS. The merger agreement includes standard representations and warranties,
conditions to closing, and covenants; however, no portion of the merger
consideration is subject to escrow, and ACCESS has not agreed to indemnify Keryx
in connection with any breach of the representations and warranties or other
provisions of the agreement.
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Keryx and ACCESS have certain common executive officers and directors.
Michael S. Weiss is the Chairman of ACCESS and the Chairman and Chief Executive
Officer of Keryx. Lindsay A. Rosenwald, M.D. is a director of ACCESS and a
director of Keryx. Mr. Weiss and Dr. Rosenwald each also beneficially hold
significant stockholdings in ACCESS, and have loaned money to and guaranteed
certain obligations of ACCESS. Following the transaction, Dr. Craig Henderson,
the current President and Chief Executive Officer of ACCESS, will become
President of Keryx.
Since some of the directors are interested parties, Keryx formed a
special committee of disinterested directors to consider and approve the
transaction, and has secured a fairness opinion from a financial advisor stating
that the transaction is fair, from a financial point of view, to the Keryx
stockholders that are not stockholders of ACCESS.
The foregoing summary is qualified in its entirety by reference to the
merger agreement, and the press release announcing the proposed merger, which
are attached as exhibits hereto and are incorporated herein by reference in
their entirety.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
The following exhibits are filed as a part of this report:
Exhibit
Number Description
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2.1 Agreement and Plan of Merger by and among Keryx
Biopharmaceuticals, Inc., AXO Acquisition Corp., and
ACCESS Oncology, Inc. dated as of January 7, 2004.
99.1 Press Release dated January 8, 2004.
99.2 Excerpt of Transcript from January 8, 2004 Keryx
conference call discussing terms of the Agreement and
Plan of Merger
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Item 12. Results of Operations and Financial Condition
On January 8, 2004, Keryx held a previously announced conference call
to discuss the pending acquisition of ACCESS. On that call, Keryx provided
certain information regarding its results of operations and financial results
for recently completed fiscal quarters. A transcript of the relevant portions of
the conference call is attached as Exhibit 99.2.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Keryx Biopharmaceuticals, Inc.
(Registrant)
Date: January 12, 2004
By: /s/ Michael S. Weiss
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Michael S. Weiss
Chairman and
Chief Executive Officer
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