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As filed with the Securities and Exchange Commission on September 7, 1999.
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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
KENDLE INTERNATIONAL INC.
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(Exact name of registrant as specified in its charter)
Ohio 31-1274091
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
441 Vine Street
Suite 700
Cincinnati, Ohio 45202
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(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
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If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [ ]
If this from relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form
relates: NONE (if applicable)
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Securities to be registered pursuant to Section 12(g) of the Act:
Common Share Purchase Rights
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
On August 13, 1999 the Board of Directors of Kendle International Inc.
declared a dividend of one Right for each outstanding Common Share, no par
value, of Kendle (together with certain other equity securities described in the
Agreement defined below, the "Common Shares"). The Rights will be issued to the
holders of record of Common Shares outstanding at the Close of Business on
August 13, 1999 (the "Record Date") and with respect to Common Shares issued
thereafter until the Distribution Date (as defined below). Each Right, when it
becomes exercisable as described below, will entitle the registered holder to
purchase from Kendle one one-thousandth (1/1,000) of a Common Share, no par
value, of Kendle at a price of $5.00 (the "Purchase Price"). The description and
terms of the Rights are set forth in a Shareholder Rights Agreement dated as of
August 13, 1999 as it may be amended from time to time (the "Agreement"),
between Kendle and The Fifth Third Bank, as Rights Agent (the "Rights Agent").
Until the earlier of (i) such time as Kendle learns that a person or
group (including any affiliate or associate of such person or group) has
acquired, or obtained the right to acquire, beneficial ownership of more than
15% of the outstanding Common Shares (such person or group being called an
"Acquiring Person") and (ii) such date, if any, as may be designated by the
Board of Directors of Kendle following the commencement of, or first public
disclosure of an intention to commence, a tender or exchange offer for
outstanding Common Shares which could result in such person or group becoming
the beneficial owner of more than 15% of the outstanding Common Shares (the
earlier of such dates being called the "Distribution Date"), the Rights will be
evidenced by certificates for Common Shares registered in the names of the
holders thereof (which certificates for Common Shares shall also be deemed to be
Right Certificates (as defined below)) and not by separate Right Certificates.
With respect to any certificate for Common Shares outstanding as of the Record
Date, until the Distribution Date the Rights associated with the Common Shares
represented by such certificates shall be evidenced by such certificates along
with a copy of this Summary of Rights, and the surrender for transfer of any
such certificate shall also constitute the transfer of the Rights associated
with the Common Shares represented thereby. Therefore, until the Distribution
Date, the Rights will be transferred with and only with the Common Shares.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date, and such separate Right Certificates alone will thereafter
evidence the Rights.
The Rights are not exercisable until the Distribution Date and will
expire at the Close of Business on August 13, 2009 (the "Expiration Date"),
unless earlier redeemed or exchanged by Kendle as described below.
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The number of Common Shares or other securities issuable upon exercise
of the Rights is subject to adjustment by the Board of Directors of Kendle in
the event of any change in the Common Shares, whether by reason of stock
dividends, stock splits, recapitalizations, reclassifications, mergers,
consolidations, combinations or exchanges of securities, split-ups, split-offs,
spin-offs, liquidations, other similar changes in capitalization, any
distribution or issuance of assets, evidences of indebtedness or subscription
rights, options or warrants to holders of Common Shares or otherwise. The
Purchase Price and the number of Common Shares or other securities issuable upon
exercise of the Rights are subject to adjustment from time to time in the event
of the declaration of a stock dividend on the Common Shares payable in Common
Shares or a subdivision or combination of the Common Shares prior to the
Distribution Date.
Kendle may, but is not required to, issue fractions of shares upon the
exercise of Rights, and in lieu of fractional shares, Kendle may make a cash
payment based on the market price of such shares on the first trading date prior
to the date of exercise or utilize a depositary arrangement.
Subject to the right of the Board of Directors of Kendle to redeem or
exchange the Rights as described below, at such time as there is an Acquiring
Person, the holder of each Right will thereafter have the right to receive, upon
exercise thereof, for the Purchase Price, that number of one one-thousandth
(1/1,000) of a Common Share equal to the number of Common Shares which at the
time of such transaction would have a market value of twice the Purchase Price.
Any Rights that are or were beneficially owned by an Acquiring Person on or
after the Distribution Date will become null and void and will not be subject to
this "flip-in" provision.
If Kendle is acquired in a merger or other business combination by an
Acquiring Person that is a publicly traded corporation or 50% or more of
Kendle's assets or assets representing 50% or more of Kendle's earning power are
sold, leased, exchanged or otherwise transferred (in one or more transactions)
to an Acquiring Person that is a publicly traded corporation, proper provision
must be made so that each Right will entitle its holder to purchase, for the
Purchase Price, that number of common shares of such corporation which at the
time of the transaction would have a market value of twice the Purchase Price.
If Kendle is acquired in a merger or other business combination by an Acquiring
Person that is not a publicly traded entity or 50% or more of Kendle's assets or
assets representing 50% or more of the earning power of Kendle are sold, leased,
exchanged or otherwise transferred (in one or more transactions) to an Acquiring
Person that is not a publicly traded entity, proper provision must be made so
that each Right will entitle its holder to purchase, for the Purchase Price, at
such holder's option, (i) that number of shares of the surviving corporation in
the transaction with such entity (or, at such holder's option, of the surviving
corporation in such acquisition, which could be Kendle) which at the time of the
transaction would have a book value of twice the Purchase Price or (ii) that
number of shares of such entity which at the time of the transaction would have
a book value of twice the Purchase Price or (iii) if such entity has an
affiliate which has publicly traded common shares, that number
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of common shares of such affiliate which at the time of the transaction would
have a market value of twice the Purchase Price. This "flip-over" provision only
applies to a merger or similar business combination with an Acquiring Person.
ANY RIGHTS THAT ARE OR WERE, AT ANY TIME ON OR AFTER THE DATE AN
ACQUIRING PERSON BECOMES SUCH, BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR ANY
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (OR A TRANSFEREE THEREOF) WILL
BECOME NULL AND VOID AND ANY HOLDER OF ANY SUCH RIGHT (INCLUDING ANY SUBSEQUENT
HOLDER) WILL BE UNABLE TO EXERCISE ANY SUCH RIGHT.
The Rights are redeemable by the Board of Directors at a redemption
price of $.01 per Right (the "Redemption Price") any time prior to the earlier
of (i) such time as there is an Acquiring Person and (ii) the Expiration Date.
Immediately upon the action of the Board electing to redeem the Rights, and
without any further action and without any notice, the right to exercise the
Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
After there is an Acquiring Person the Board of Directors may elect to
exchange each Right (other than Rights owned by an Acquiring Person) for
consideration per Right consisting of one-half of the securities that would be
issuable at such time upon the exercise of one Right pursuant to the terms of
the Agreement. Notwithstanding the foregoing, the Board of Directors of Kendle
shall not be empowered to effect such exchange at any time after any Person
(other than Kendle, any Subsidiary of Kendle, Candace Kendle, Christopher
Bergen, any trust established by either of them or any corporation or other
entity controlled by either of them, any employee benefit plan of Kendle or any
such Subsidiary, or any entity holding Common Shares for or pursuant to the
terms of any such plan), together with all Affiliates and Associates of such
person, becomes the Beneficial Owner of 50% or more of the Common Shares then
outstanding.
At any time prior to such time as there shall be an Acquiring Person,
Kendle may, without the approval of any holder of the Rights, supplement or
amend any provision of the Agreement (including the date on which the Expiration
Date or the Distribution Date shall occur, the amount of the Purchase Price or
the definition of "Acquiring Person"), except that no supplement or amendment
shall be made that reduces the Redemption Price of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of Kendle, including, without limitation, the right to
vote or to receive dividends.
A copy of the Agreement is being filed with the Securities and Exchange
Commission as an Exhibit to this Registration Statement. A copy of the Agreement
is available free of charge from Kendle upon written request. This summary
description of the Rights does not purport to
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be complete and is qualified in its entirety by reference to the Agreement,
which is incorporated herein by reference.
ITEM 2. EXHIBITS
4.1 Shareholder Rights Agreement dated August 13, 1999 between
Kendle International Inc. and The Fifth Third Bank, as Rights
Agent which includes as Exhibit A thereto the Form of Rights
Certificate, and as Exhibit B thereto the Summary of Rights to
Purchase Common Shares.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
KENDLE INTERNATIONAL INC.
Date: September 7, 1999 By: /s/ Timothy M. Mooney
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Timothy M. Mooney
Executive Vice President -
Chief Financial Officer