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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 5, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KENSEY NASH CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 36-3316412
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
MARSH CREEK CORPORATE CENTER, 55 EAST UWCHLAN AVENUE,
EXTON, PENNSYLVANIA, 19341, (610) 524-0188
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
THIRD AMENDED AND RESTATED
KENSEY NASH CORPORATION EMPLOYEE INCENTIVE PLAN
FOURTH AMENDED AND RESTATED
KENSEY NASH CORPORATION NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full Title of Plans)
JOSEPH W. KAUFMANN
CHIEF EXECUTIVE OFFICER
KENSEY NASH CORPORATION
MARSH CREEK CORPORATE CENTER, 55 EAST UWCHLAN AVENUE,
EXTON, PENNSYLVANIA, 19341, (610) 524-0188
(Address, including zip code, and telephone number, including area code, of
agent for service)
COPIES TO:
David R. Shevitz, Esq.
Katten Muchin Zavis
525 West Monroe Street, Suite 1600
Chicago, Illinois 60661-3693
(312) 902-5200
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE PRICE FEE
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Common Stock, $.001 par value
(Employee Incentive Plan) (2)............ 2,000,000 shares $20.75 (3) $41,500,000 $10,375
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Common Stock, $.001 par value
(Non-employee Directors Stock Option
Plan) (4)................................ 350,000 shares $20.75 (3) $7,262,500 $1,816
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Total 2,350,000 shares -- -- $12,191
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(1) This registration statement also covers an indeterminate number of shares
of the Company's Common Stock that may be issuable by reason of stock
splits, stock dividends or other adjustment provisions of the respective
plans in accordance with Rule 416 under the Securities Act of 1933.
(2) The Kensey Nash Corporation Employee Incentive Plan (the "Employee Plan")
was adopted by the Company's Board of Directors effective April 1, 1995.
The Company previously registered 900,000 shares of Common Stock on Form
S-8 (Registration File No. 333-04093). An amendment to the Employee Plan
was approved by the stockholders on December 4, 1996 which increased the
number of shares of Common Stock available for grant under the Employee
Plan by 300,000. Accordingly, the total number of shares reserved for grant
under the Employee Plan was 1,200,000 and the Company registered an
additional 300,000 shares of Common Stock on Form S-8 (Registration File
No. 333-22993). An amendment increasing the number of shares reserved for
grant under the Employee Plan by 1,000,000 was adopted by the Board of
Directors and approved by the stockholders on August 28, 1998. Accordingly,
the total number of shares reserved for grant under the Employee Plan was
2,200,000. An amendment increasing the number of shares reserved for grant
under the Employee Plan by 1,000,000 was adopted by the Board of Directors
and approved by the stockholders on December 6, 2000. Accordingly, the
total number of shares reserved for grant under the Employee Plan is
3,200,000.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) of Regulation C under the Securities Act of 1933 on the
basis of the closing sale price of our common stock as reported on the
Nasdaq National Market on October 4, 2001.
(4) The Kensey Nash Corporation Non-employee Directors Stock Option Plan (the
"Directors Plan") was adopted by the Company's Board of Directors effective
April 1, 1995. The Company previously registered 30,000 shares of Common
Stock on Form S-8 (Registration File No. 333-04093). An amendment to the
Directors Plan was approved by the stockholders on December 4, 1996 which
increased the number of shares of Common Stock available for grant under
the Directors Plan by 30,000. Accordingly, the total number of shares
reserved for grant under the Directors Plan was 60,000 and the Company
registered an additional 30,000 shares of Common Stock on Form S-8
(Registration File No. 333-22993). An amendment increasing the number of
shares reserved for grant under the Directors Plan by 150,000 was adopted
by the Board of Directors and approved by the stockholders on December 1,
1999. Accordingly, the total number of shares reserved for grant under the
Directors Plan was 210,000. An amendment increasing the number of shares
reserved for grant under the Directors Plan by 200,000 was adopted by the
Board of Directors and approved by the stockholders on December 6, 2000.
Accordingly, the total number of shares reserved for grant under the
Directors Plan is 410,000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is currently included
in the prospectuses for the Third Amended and Restated Kensey Nash Corporation
Employee Incentive Plan and the Fourth Amended and Restated Kensey Nash
Corporation Non-employee Directors Stock Option Plan and is not being filed
with, or included in, this Form S-8 in accordance with the rules and regulations
of the Securities and Exchange Commission (the "SEC").
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Kensey Nash Corporation (the
"Company") with the Securities and Exchange Commission ("SEC") are incorporated
by reference in this registration statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 2001; and
(b) The description of the Company's Common Stock that is
contained in the Company's Registration Statement on Form 8-A
dated November 1, 1995 and filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); including any
amendments or reports for the purpose of updating such
description.
In addition, all documents that the Company files pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act, after the date of this
registration statement and before the filing of a post-effective amendment
indicating that all securities offered pursuant to this registration statement
have been sold or deregistering all the securities then remaining unsold shall
be deemed to be incorporated by reference in this registration statement and to
be part of this registration statement from the date of filing of those
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this registration statement shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained in this registration statement or in any subsequently
filed document which also is or is deemed to be incorporated by reference in
this registration statement modifies or supersedes that statement.
The Company will provide without charge to each person who has received
a copy of any prospectus to which this registration statement relates, upon the
written or oral request of that person, a copy of any or all the documents that
have been or may be incorporated by reference into this registration statement,
other than exhibits to those documents, unless the exhibits are incorporated by
reference in those documents. Written requests for copies should be directed to
the Company's principal executive offices at Marsh Creek Corporate Center, 55
East Uwchlan Avenue, Exton, Pennsylvania, 19341, Attention: Secretary. Telephone
requests for copies should be directed to the Company's Secretary at (610)
524-0188.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Certificate of Incorporation
provides that the Company shall indemnify its directors to the full extent
permitted by the General Corporation Law of the State of Delaware and may
indemnify its officers and employees to such extent, except that the Company
shall not be obligated to indemnify any such person (1) with respect to
proceedings, claims or actions initiated or brought voluntarily by any such
person and not by way of defense, or (2) for any amounts paid in settlement of
an action indemnified against by the Company without the prior written consent
of the Company. In addition, the Company's Amended and Restated Certificate of
Incorporation provides that a director of the Company shall not be personally
liable to the Company or its stockholders for monetary damages for breach of his
or her fiduciary duty as a director, except for liability (1) for any breach of
the
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director's duty of loyalty to the Company or its stockholders, (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) for willful or negligent conduct in paying
dividends or repurchasing stock out of other than lawfully available funds or
(4) for any transaction from which the director derives an improper personal
benefit.
The Company has entered into indemnity agreements with each of its
directors. These agreements require the Company, among other things, to
indemnify such directors against certain liabilities that may arise by reason of
their status or service as directors, as well as to advance expenses to them as
they are incurred, provided that they undertake to repay the amount advanced if
it is ultimately determined by a court that they are not entitled to
indemnification. The indemnity agreements with each of the directors also
provides the following indemnification rights and limitations in addition to the
indemnification in the Company's Amended and Restated Certificate of
Incorporation:
(1) if the Company does not pay a claim within ninety days
after written notice has been received by the Company, the indemnified
director may bring suit against the Company to recover the unpaid
amount of the claim and, if successful in whole or in part, shall also
be entitled to be paid the expenses of prosecuting such claim;
(2) the Company is not liable for a claim against an
indemnified director, for which payment is made to the indemnified
director, under an insurance policy, except in respect of any excess
beyond the amount of payment under such insurance;
(3) the Company is not liable for a claim against an
indemnified director based upon or attributable to the indemnified
director gaining personal profit or advantage, or brought about by the
dishonesty of the indemnified director. However, the indemnified
director shall be indemnified against such claims unless a judgement or
final adjudication establishes that the indemnified director gained
personal profit or advantage to which he was not legally entitled, or
committed acts of active and deliberate dishonesty with actual
dishonest purpose, which dishonest acts were material to the cause of
action, respectively; and
(4) the Company is not liable for an accounting of profits
made from the purchase or sale by the indemnified director of
securities of the Company within the meaning of Section 16(b) of the
Securities Exchange Act of 1934 or similar state laws.
Reference is made to Section 145 of the General Corporation Law of the
State of Delaware which provides for indemnification of directors and officers
in certain circumstances.
The Company has a directors' and officers' liability insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of Kensey
Nash (filed as an exhibit to the Company's Registration
Statement on Form S-1 (No. 33-98722), and incorporated herein
by reference).
4.2 Amended and Restated Bylaws of Kensey Nash (filed as an
exhibit to the Company's Registration Statement on Form S-1
(No. 33-98722), and incorporated herein by reference).
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4.3 Specimen stock certificate representing Kensey Nash common
stock (filed as an exhibit to the Company's Registration
Statement on Form S-1 (No. 33-98722), and incorporated herein
by reference).
4.4* Kensey Nash Corporation Third Amended and Restated Employee
Incentive Compensation Plan.
4.5* Kensey Nash Corporation Fourth Amended and Restated
Non-employee Directors Stock Plan.
5.1* Opinion of KMZ as to the validity of the common stock.
23.1* Consent of KMZ (included in its opinion filed as Exhibit 5.1).
23.2* Consent of Deloitte & Touche LLP, independent auditors.
24.1* Powers of Attorney (included on the signature page hereto).
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
1. The Company hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
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(b) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
2. The Company hereby undertakes that, for the purpose of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to the Company's directors, officers,
and controlling persons pursuant to the foregoing provisions or otherwise, the
Company has been advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer, or controlling person of the Company in the successful
defense of any action, suit, or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Exton, and State of Pennsylvania, on the 5th day of
October, 2001.
KENSEY NASH CORPORATION
By: /s/ Joseph W. Kaufmann
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Joseph W. Kaufmann
Chief Executive Officer, Secretary and
Director (Principal Executive Officer)
POWERS OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Joseph W. Kaufmann and John E. Nash, P.E., and each of them severally,
acting alone and without the other, his or her true and lawful attorneys-in-fact
and agents, with full power of substitution, to sign on his or her behalf,
individually and in each capacity stated below, all amendments and
post-effective amendments to this registration statement on Form S-8 and to file
the same, with all exhibits thereto and any other documents in connection
therewith, with the Securities and Exchange Commission under the Securities Act,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as each might
or could do in person, hereby ratifying and confirming each act that said
attorneys-in-fact and agents may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on October 5, 2001.
SIGNATURE TITLE
--------- -----
/s/ Joseph W. Kaufmann Chief Executive Officer, Secretary
------------------------------------- and Director
Joseph W. Kaufmann (Principal Executive Officer)
/s/ Douglas G. Evans, P.E. Chief Operating Officer, Assistant
------------------------------------- Secretary and Director
Douglas G. Evans, P.E.
/s/ Wendy F. DiCicco, CPA Chief Financial Officer
------------------------------------- (Principal Financial and Accounting
Wendy F. DiCicco, CPA Officer)
/s/ John E. Nash, P.E.
------------------------------------- Vice President of New Technologies
John E. Nash, P.E. and Director
/s/ Kenneth R. Kensey, M.D.
-------------------------------------
Kenneth R. Kensey, M.D. Director
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/s/ Robert J. Bobb
-------------------------------------
Robert J. Bobb Director
/s/ Harold N. Chefitz
-------------------------------------
Harold N. Chefitz Director
/s/ Walter R. Maupay, Jr.
-------------------------------------
Walter R. Maupay, Jr. Director
/s/ C. McCollister Evarts, M.D.
-------------------------------------
C. McCollister Evarts, M.D. Director
/s/ Steven J. Lee
-------------------------------------
Steven J. Lee Director
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INDEX TO EXHIBITS
ITEM 16. EXHIBITS
EXHIBIT
NUMBER EXHIBIT
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4.4 Kensey Nash Corporation Third Amended and Restated Employee
Incentive Compensation Plan.
4.5 Kensey Nash Corporation Fourth Amended and Restated
Non-employee Directors Stock Plan.
5.1 Opinion of KMZ as to the validity of the common stock.
23.1 Consent of KMZ (included in its opinion filed as Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP, independent auditors.
24.1 Powers of Attorney (included on the signature page hereto).