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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K/A
Amendment No. 1 to
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): February 5, 2004
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Keryx Biopharmaceuticals, Inc.
(Exact name of registrant as specified in Its charter)
Delaware 000-30929 13-4087132
(State or other (Commission File Number) (IRS Employer
jurisdiction Identification No.)
of incorporation)
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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EXPLANATORY NOTE
On February 20, 2004, we filed a current report on Form 8-K, or the
Original Filing, to announce that we completed the acquisition of ACCESS
Oncology, Inc., or ACCESS Oncology, on February 5, 2004. This current report on
Form 8-K/A amends Item 2 of the Original Filing to include certain post-closing
information about the shares of our common stock issued to certain former
preferred stockholders of ACCESS Oncology pursuant to the merger agreement and
the impact of certain related party transactions and amends Item 7 of the
Original Filing to include the financial statements required by Items 7(a) and
7(b) of Form 8-K.
Item 2. Acquisition or Disposition of Assets
On February 5, 2004, we completed the acquisition of ACCESS Oncology, a
Delaware corporation. ACCESS Oncology is a biopharmaceutical company focused on
acquiring, developing and marketing novel therapeutics for cancer and related
conditions. The transaction was structured as a merger of AXO Acquisition Corp.,
a Delaware corporation and our wholly-owned subsidiary, with and into ACCESS
Oncology, with ACCESS Oncology remaining as the surviving corporation. As a
result of the transaction, ACCESS Oncology is now our wholly-owned subsidiary.
Under the terms of the merger agreement, as amended, at the effective time
of the merger the outstanding shares of preferred stock of ACCESS Oncology were
converted into the right to receive, at the election of each preferred
stockholder, either (i) shares of our common stock to be issued approximately 30
days after the merger having a value (as determined in accordance with the
merger agreement) equal to the value of the liquidation preference associated
with the stockholder's shares of preferred stock, or (ii) a portion of the
contingent milestone consideration (described below) payable to the holders of
ACCESS Oncology common stock and securities convertible into ACCESS Oncology
common stock in an amount equal to what the preferred stockholder would have
received had he converted his preferred stock immediately before the
consummation of the merger. At the effective time of the merger, each share of
ACCESS Oncology common stock, including shares issuable upon the exercise of
options exercised before March 1, 2004 and upon the exercise of outstanding
warrants, was converted into the right to share in milestone consideration pro
rata with such other holders of ACCESS Oncology common stock. Pursuant to the
merger agreement, 623,145 shares of our common stock have been issued to those
preferred stockholders of ACCESS Oncology electing option number one as
described above. An additional 4,433 shares of our common stock may be issued to
those preferred stockholders of ACCESS Oncology who have yet to elect to receive
shares of our common stock.
The contingent milestone consideration will be paid upon the achievement
of the following milestones:
o 500,000 shares of our common stock upon enrollment of the first patient in
a Keryx-sponsored Phase III (or other Pivotal) clinical trial for any of
the acquired ACCESS Oncology drug candidates;
o 750,000 shares of our common stock upon the first NDA acceptance by the
FDA for any of the acquired ACCESS Oncology drug candidates;
o 1,750,000 shares of our common stock upon the first FDA approval of any of
the acquired ACCESS Oncology drug candidates;
o 372,422 shares of our common stock in the first 12-month period that sales
of all of the acquired ACCESS Oncology drug candidates combined exceeds
$100 million; and
In no event will we issue more than 4,000,000 shares of our common stock
pursuant to the merger agreement. Accordingly, the amount of our common stock
deliverable to the ACCESS Oncology stockholders as milestone consideration will
be no more than 3,372,422 shares of our common stock, which
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is the portion of the common stock deliverable as consideration pursuant to the
merger agreement not issued or issuable to certain of the former preferred
stockholders of ACCESS Oncology as discussed above. Our stockholders must
approve the issuance of shares of our common stock payable as contingent
milestone consideration. If they do not approve such issuance, we will instead
pay the former ACCESS Oncology stockholders cash in an amount equaling the value
(determined in accordance with the merger agreement) of our common stock that
would have been issued as milestone consideration upon the achievement of the
milestones as described above.
We and certain of our executive officers and directors had material
relationships with ACCESS Oncology, as follows: Michael S. Weiss, who is our
Chairman and Chief Executive Officer, is a founder and former executive officer
of ACCESS Oncology, was the largest stockholder of ACCESS Oncology, and was the
Chairman of ACCESS Oncology; Lindsay A. Rosenwald, M.D., was a director of
ACCESS Oncology prior to the consummation of the merger and is one of our
directors; Dr. Rosenwald, and related entities, were substantial holders of
ACCESS Oncology stock; Dr. Rosenwald, Mr. Weiss, and I. Craig Henderson, M.D.
(our President and the President and Chief Executive Officer of ACCESS Oncology)
held certain promissory notes issued by ACCESS Oncology having an aggregate
principal amount of $775,000, which we paid subsequent to the effectiveness of
the merger; Dr. Rosenwald and Mr. Weiss directly or indirectly guaranteed
certain outstanding promissory notes issued by ACCESS Oncology, which we paid
subsequent to the effectiveness of the merger; and ACCESS Oncology owed Mr.
Weiss and Dr. Henderson approximately $380,000 and $61,800 in deferred
compensation, respectively, which we paid subsequent to the effectiveness of the
merger.
The foregoing summary is qualified in its entirety by reference to the
merger agreement and the first amendment to the merger agreement.
Item 5. Other Events
As discussed above, we completed the acquisition of ACCESS Oncology on
February 5, 2004. The February 6, 2004 press release announcing the completion
of the transaction is incorporated by reference and is attached hereto as
Exhibit 99.1.
On February 17, 2004, we completed the private placement of 3.2 million
shares of our common stock at $10.00 per share, resulting in gross proceeds to
us of $32 million. The February 13, 2004 press release announcing the execution
of definitive agreements with the investors is incorporated herein by reference
and is attached hereto as Exhibit 99.2.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired.
The following audited financial statements and notes thereto of ACCESS
Oncology, Inc. are filed with this report as Exhibit 99.3:
(1) Consolidated Balance Sheet as of December 31, 2003
(2) Consolidated Statement of Operations for the year
ended December 31, 2003
(3) Consolidated Statement of Stockholders' Equity for the year ended
December 31, 2003
(4) Consolidated Statement of Cash Flows for the year
ended December 31, 2003
(5) Notes to Consolidated Financial Statements for the year ended
December 31, 2003
(b) Pro Forma Financial Information.
The following unaudited pro forma financial statements of Keryx
Biopharmaceuticals, Inc. are filed with this report as Exhibit 99.4:
(1) Unaudited Pro Forma Condensed Combined Statement of Income
for the year ended December 31, 2003
(2) Unaudited Pro Forma Condensed Combined Balance Sheet as
of December 31, 2003
(3) Notes to Unaudited Pro Forma Condensed Combined Financial
Statements
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(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,
filed as Exhibit 2.1 to the Registrant's Current Report
on Form 8-K dated January 8, 2004 and incorporated
herein by reference.
2.2 First Amendment to the Agreement and Plan of Merger
dated as of February 5, 2004, filed as Exhibit 2.2 to
the Registrant's Current Report on Form 8-K dated
February 5, 2004 and incorporated herein by reference.
99.1 Press Release dated February 6, 2004.*
99.2 Press Release dated February 13, 2004.*
99.3 ACCESS Oncology, Inc. Audited Consolidated Financial
Statements as of and for the year ended December 31,
2003.
99.4 Keryx Biopharmaceuticals, Inc. Unaudited Pro Forma
Condensed Combined Financial Statements for and as of
the year ended December 31, 2003.
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* Previously filed.
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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: April 20, 2004 By: /s/ Michael S. Weiss
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Michael S. Weiss
Chairman and Chief Executive
Officer
EXHIBIT INDEX
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,
filed as Exhibit 2.1 to the Registrant's Current Report
on Form 8-K dated January 8, 2004 and incorporated
herein by reference.
2.2 First Amendment to the Agreement and Plan of Merger
dated as of February 5, 2004, filed as Exhibit 2.2 to
the Registrant's Current Report on Form 8-K dated
February 5, 2004 and incorporated herein by reference.
99.1 Press Release dated February 6, 2004.*
99.2 Press Release dated February 13, 2004.*
99.3 ACCESS Oncology, Inc. Audited Consolidated Financial
Statements as of and for the year ended December 31,
2003.
99.4 Keryx Biopharmaceuticals, Inc. Unaudited Pro
Forma Condensed Combined Financial Statements for and as
of the year ended December 31, 2003.
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* Previously filed.