<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1996
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
KENSEY NASH CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 36-3316412
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
55 EAST UWCHLAN AVENUE, SUITE 204, EXTON, PENNSYLVANIA 19341
(Address of Principal Executive Offices including Zip Code)
Kensey Nash Corporation Employee Common Stock Settlement Plan,
Kensey Nash Corporation Non-Employee Directors' Stock Option Plan and
Kensey Nash Corporation Employee Incentive Compensation Plan
(Full title of plans)
JOSEPH W. KAUFMANN
CHIEF EXECUTIVE OFFICER, PRESIDENT AND CHIEF FINANCIAL OFFICER
KENSEY NASH CORPORATION
55 EAST UWCHLAN AVENUE, SUITE 204, EXTON, PENNSYLVANIA 19341
(610) 524-0188
(Name, address and telephone number of agent for service)
WITH A COPY TO:
DAVID R. SHEVITZ, P.C.
LAWRENCE D. LEVIN
KATTEN MUCHIN & ZAVIS
525 WEST MONROE STREET, SUITE 1600
CHICAGO, ILLINOIS 60661
(312) 902-5200
CALCULATION OF REGISTRATION FEE
on next page
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<PAGE> 2
<TABLE>
<CAPTION>
======================================================================================================================
CALCULATION OF REGISTRATION FEE
======================================================================================================================
<CAPTION>
Proposed
Proposed Maximum
Maximum Maximum Aggregate
Title of Securities Amount to be Offering Price Offering Amount of
to be Registered Registered Per Share Price Registration Fee
--------------------------- ---------------- -------------- ----------- ----------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value . . . . . 457,171 shares(1) $12.00 (2) $ 5,486,052 $ 1,892
Common Stock,
$.001 par value . . . . . 676,000 shares(3) $ 9.31 (4) $ 6,293,560 (5) $ 2,170
Common Stock,
$.001 par value . . . . . 254,000 shares(6) $15.75 (7) $ 4,000,500 $ 1,379
--------- ----------- ------------
TOTAL: 1,387,171 $15,780,112 $ 5,441
=====================================================================================================================
</TABLE>
__________________
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken
down into three subtotals. This subtotal represents the number of shares
previously issued to the selling stockholders that are to be registered and
offered by them.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the total registration fee.
Computation based on the fair market value of the shares on the date the
selling stockholders received the shares.
(3) This subtotal represents the sum of shares issuable upon exercise of
options that have previously been granted under the Kensey Nash Corporation
Employee Incentive Compensation Plan and the Kensey Nash Corporation
Non-Employee Directors' Stock Option Plan as of the date of this
Registration Statement. Of the total of 676,000 shares that will be
issuable upon the exercise of such options previously granted, 661,000
shares will be issuable upon exercise of options previously granted under
the Employee Incentive Compensation Plan and 15,000 shares will be issuable
upon exercise of options previously granted under the Non-Employee
Directors' Stock Option Plan.
(4) Computed in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the total registration fee.
Computation based on the weighted average exercise price (rounded to
nearest cent) at which the options outstanding whose exercise will result
in the issuance of the shares being registered may be exercised.
(5) Computed in accordance with Rule 457(h) based on the aggregate exercise
price for all presently outstanding options described in note 3 above.
(6) This subtotal represents the sum of shares issuable upon exercise of
options that have not been granted yet under the Employee Incentive
Compensation Plan and the Non-Employee Directors' Stock Option Plan as of
the date of this Registration Statement. Of the total of 254,000 shares
that will be issuable upon the exercise of such options to be granted in
the future, 239,000 shares will be issuable upon exercise of options to be
granted in the future under the Employee Incentive Compensation Plan and
15,000 shares will be issuable upon exercise of options to be granted under
the Non-Employee Directors' Stock Option Plan.
(7) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the total registration fee.
Computation based upon the closing price of the Common Stock as reported in
The Nasdaq National Market on May 15, 1996.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information called for in Part I of Form S-8 is currently included
in the prospectus for the Kensey Nash Corporation Employee Common Stock
Settlement Plan, Kensey Nash Corporation Non-Employee Directors' Stock Option
Plan and Kensey Nash Corporation Employee Incentive Compensation Plan
(collectively, the "Plans"), 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").
The Form S-8 has one form of prospectus. The prospectus is to be used
for reoffers and resales of the Company's Common Stock acquired by certain
individuals who are participants in the Kensey Nash Corporation Employee Common
Stock Settlement Plan. This Prospectus has been prepared in accordance with
the requirements of Form S-3, as required by the conditions specified in
General Instructions C to Form S-8.
<PAGE> 4
Kensey Nash Corporation
457,171 SHARES OF COMMON STOCK
55 EAST UWCHLAN AVENUE
SUITE 204
EXTON, PENNSYLVANIA 19341
(610) 524-0188
This Prospectus relates to up to 457,171 shares (the "Shares") of
common stock, par value $.001 per share (the "Common Stock") of Kensey Nash
Corporation (the "Company"), which may be offered by the Selling Security
Holders (as hereinafter defined) listed herein under the caption "Selling
Security Holders." All 457,171 Shares were acquired by certain individuals who
are participants in the Kensey Nash Corporation Employee Common Stock
Settlement Plan.
The 457,171 Shares covered by this Prospectus may be offered by the
Selling Security Holder from time to time in transactions on the Nasdaq Stock
Market ("Nasdaq"), at prices and terms then obtainable, through negotiated
transactions at negotiated prices, or through underwriters, broker-dealers or
otherwise; however, there is no commitment to sell any of these Shares. The
amount of Shares offered will be determined from time to time by each Selling
Security Holder at his sole discretion. The Company will not receive any part
of the proceeds of any sales. Any brokers' commissions, discounts, or other
underwriters' compensation will be paid by the Selling Security Holder. None
of the Shares offered pursuant to this Prospectus have been registered prior to
the filing of the Registration Statement of which this Prospectus is a part.
The Selling Security Holders, and the broker-dealers through whom
sales may be made, may, the Company not so conceding, be deemed to be
underwriters under the Securities Act of 1933 (the "Securities Act"), and any
commissions paid or any discounts or concessions allowed to such broker-dealers
may be underwriting discounts and commissions under the Securities Act.
The Company's Common Stock is traded on Nasdaq. On May 17, 1996, the
closing price of the Common Stock on Nasdaq was $15.00 per Share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADE-
QUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is May 20, 1996
1
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Selling Security Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Description of Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Incorporation of Certain Documents by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
No person is authorized to give any information or to make any
representations, other than those contained in this Prospectus, in connection
with the offering described herein, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company or the Selling Security Holders. This Prospectus does not constitute
an offer to sell, or a solicitation of an offer to buy, nor shall there be any
sale of these securities by any person in any jurisdiction in which it is
unlawful for such person to make such offer, solicitation or sale. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstances create an implication that the information contained herein is
correct as of any time subsequent to the date hereof.
2
<PAGE> 6
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports and other information
can be inspected and copied at the public reference facilities maintained by
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and are also available for inspection and copying at
the following regional offices at the Commission: Seven World Trade Center,
13th Floor, New York, New York 10048; and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can
also be obtained at prescribed rates by mail addressed to the Public Reference
Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549.
The Company has filed a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act with the Commission with
respect to the securities offered hereby. As permitted by the rules and
regulations of the Commission, this Prospectus omits certain information
contained in the Registration Statement. The Registration Statement, including
the exhibits and schedules thereto, may be inspected and copied in the manner
and at the sources described above.
The Company was incorporated in Delaware in 1984. Its principal
executive offices are located at 55 East Uwchlan Avenue, Suite 204, Exton,
Pennsylvania 19341 and its telephone number is (610) 524-0188. The Common
Stock of the Company is traded on Nasdaq and is quoted under the symbol "KNSY."
3
<PAGE> 7
SELLING SECURITY HOLDERS
The following table sets forth, as of May 1, 1996, certain information
regarding the beneficial ownership of the outstanding Common Stock by each
Selling Security Holder, both before the offering of the Shares and as adjusted
to reflect the sale of the Shares. Each person named in the following table
has, to the knowledge of the Company, sole voting and investment power with
respect to the Shares beneficially owned.
<TABLE>
<CAPTION>
Beneficial
Ownership After
Offering(2)
Beneficially Number of ---------------------
Owned Prior Shares Being Number of
Name of Selling Security Holder to Offering Offered(1) Shares Percent
--------------------------------------------- ------------- -------------- --------- --------
<S> <C> <C> <C> <C>
David A. Ambruster (3) . . . . . . . . . . . 1,438 500 938 *
David Anderson . . . . . . . . . . . . . . . 14,295 14,295 -- --
James D. Beiloski (4) . . . . . . . . . . . . 2,563 1,000 1,563 *
Carol T. Bolger (5) . . . . . . . . . . . . . 2,563 1,000 1,563 *
Julie N. Broderick (6) . . . . . . . . . . . 47,288 23,850 23,438 *
John Christie (7) . . . . . . . . . . . . . . 2,094 1,469 625 *
Sandra F. Cizmarik (8) . . . . . . . . . . . 1,938 1,625 313 *
H. Clupper . . . . . . . . . . . . . . . . . 8,333 8,333 -- --
John C. Cole (9) . . . . . . . . . . . . . . 1,125 500 625 *
Donald Daveler (10) . . . . . . . . . . . . . 30,050 17,550 12,500 *
Doris V. DeFelice (11) . . . . . . . . . . . 938 625 313 *
Todd M. DeWitt (12) . . . . . . . . . . . . . 30,775 15,150 15,625 *
Douglas G. Evans (13) . . . . . . . . . . . . 176,250 70,000 106,250 2.43
Alan L. Gofberg (14) . . . . . . . . . . . . 2,338 1,400 938 *
Rosemary Hattal (15) . . . . . . . . . . . . 969 500 469 *
Keith W. Henry (16) . . . . . . . . . . . . . 1,281 500 781 *
Edna Holts (17) . . . . . . . . . . . . . . . 1,981 1,200 781 *
Leslie A. Howard (18) . . . . . . . . . . . . 2,000 1,375 625 *
Barry L. Hufford (19) . . . . . . . . . . . . 1,688 750 938 *
Jimi L. Jackson (20) . . . . . . . . . . . . 1,469 1,000 469 *
Joseph W. Kaufmann (21) . . . . . . . . . . . 350,208 165,833 184,375 4.77
William G. Kelly (22) . . . . . . . . . . . . 813 500 313 *
Raymond F. Mannion (23) . . . . . . . . . . . 34,200 21,700 12,500 *
Robert L. McDade (24) . . . . . . . . . . . . 3,813 2,250 1,563 *
Howard L. Miller (25) . . . . . . . . . . . . 2,119 1,025 1,094 *
Nina Moffett-Lake (26) . . . . . . . . . . . 1,250 625 625 *
Jeffrey O'Donnell . . . . . . . . . . . . . . 65,833 65,833 -- --
Robert P. O'Fee (27) . . . . . . . . . . . . 12,063 10,500 1,563 *
Alan S. Raichle (28) . . . . . . . . . . . . 2,581 1,800 781 *
William R. Romans (29) . . . . . . . . . . . 534 300 234 *
Deborah Sager (30) . . . . . . . . . . . . . 844 375 469 *
June Sheets (31) . . . . . . . . . . . . . . 7,875 4,750 3,125 *
Justin Sommerville (32) . . . . . . . . . . . 938 625 313 *
Elaine Sturgill-Stout (33) . . . . . . . . . 831 675 156 *
Monica Y. Trammell (34) . . . . . . . . . . . 1,238 925 313 *
Greg A. Walters (35) . . . . . . . . . . . . 23,625 8,000 15,625 *
Edward R. Woerner (36) . . . . . . . . . . . 1,125 500 625 *
Richard Yeagley . . . . . . . . . . . . . . . 8,333 8,333 -- --
(Footnotes on next page)
</TABLE>
4
<PAGE> 8
-----------------
* less than 1%.
(1) Represents the maximum number of Shares that may be sold by each Selling
Security Holder pursuant to this Prospectus.
(2) Assumes the Selling Security Holders sell all of their Shares pursuant to
this Prospectus. The Selling Security Holders may sell all or part of
their Shares.
(3) Includes options to acquire 938 Shares which are exercisable within 60
days.
(4) Includes options to acquire 1,563 Shares which are exercisable within 60
days.
(5) Includes options to acquire 1,563 Shares which are exercisable within 60
days.
(6) Includes options to acquire 23,438 Shares which are exercisable within 60
days.
(7) Includes options to acquire 625 Shares which are exercisable within 60
days.
(8) Includes options to acquire 313 Shares which are exercisable within 60
days.
(9) Includes options to acquire 625 Shares which are exercisable within 60
days.
(10) Includes options to acquire 12,500 Shares which are exercisable within 60
days.
(11) Includes options to acquire 313 Shares which are exercisable within 60
days.
(12) Includes options to acquire 15,625 Shares which are exercisable within 60
days.
(13) Includes options to acquire 106,250 Shares which are exercisable within
60 days.
(14) Includes options to acquire 938 Shares which are exercisable within 60
days.
(15) Includes options to acquire 469 Shares which are exercisable within 60
days.
(16) Includes options to acquire 781 Shares which are exercisable within 60
days.
(17) Includes options to acquire 781 Shares which are exercisable within 60
days.
(18) Includes options to acquire 625 Shares which are exercisable within 60
days.
(19) Includes options to acquire 938 Shares which are exercisable within 60
days.
(20) Includes options to acquire 469 Shares which are exercisable within 60
days.
(21) Includes options to acquire 184,375 Shares which are exercisable within
60 days.
(22) Includes options to acquire 313 Shares which are exercisable within 60
days.
(23) Includes options to acquire 12,500 Shares which are exercisable within 60
days.
(24) Includes options to acquire 1,563 Shares which are exercisable within 60
days.
(25) Includes options to acquire 1,094 Shares which are exercisable within 60
days.
(26) Includes options to acquire 625 Shares which are exercisable within 60
days.
(27) Includes options to acquire 1,563 Shares which are exercisable within 60
days.
(28) Includes options to acquire 781 Shares which are exercisable within 60
days.
(29) Includes options to acquire 234 Shares which are exercisable within 60
days.
(30) Includes options to acquire 469 Shares which are exercisable within 60
days.
(31) Includes options to acquire 3,125 Shares which are exercisable within 60
days.
(32) Includes options to acquire 313 Shares which are exercisable within 60
days.
(33) Includes options to acquire 156 Shares which are exercisable within 60
days.
(34) Includes options to acquire 313 Shares which are exercisable within 60
days.
(35) Includes options to acquire 15,625 Shares which are exercisable within 60
days.
(36) Includes options to acquire 625 Shares which are exercisable within 60
days.
5
<PAGE> 9
PLAN OF DISTRIBUTION
The Company will receive no proceeds from this offering. The Shares
offered hereby may be sold by the Selling Security Holder acting as principal
for his own account through market transactions on Nasdaq, in one or more
negotiated transactions at negotiated prices, or otherwise. The sale of Shares
may be offered to or through underwriters, brokers or dealers, and such
underwriters, brokers or dealers may receive compensation in the form of
underwriting discounts, commissions or concessions from the Selling Security
Holder and/or the purchasers of the Shares for whom they act as agent. The
Selling Security Holder and any underwriters, brokers or dealers that
participate in the distribution of the Shares may, the Company not so
conceding, be deemed to be underwriters and any compensation received by them
and any provided pursuant to the sale of the Shares by them might be deemed to
be underwriting discounts and commissions under the Securities Act. In order
to comply with certain states' securities laws, if applicable, the Shares will
be sold in such jurisdictions only through registered or licensed brokers or
dealers. In addition, in certain states the Shares may not be sold unless the
Shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.
Any Shares covered by this Prospectus which qualify for sale pursuant
to Rule 144 under the Securities Act may be sold under that Rule rather than
pursuant to this Prospectus.
There can be no assurances that the Selling Security Holders will sell
any or all of the Shares offered hereunder.
DESCRIPTION OF COMMON STOCK
The Shares offered hereby are shares of Common Stock, $.001 par value,
of the Company. Holders of Common Stock are entitled to one vote per share, to
receive dividends when and if declared by the Board of Directors and to share
ratably in the assets of the Company legally available for distribution to its
stockholders in the event of liquidation. Holders of Common Stock have no
preemptive, subscription, redemption or conversion rights. All outstanding
shares of Common Stock are duly authorized, fully paid and nonassessable. The
holders of Common Stock do not have cumulative voting rights. The holders of a
majority of the shares of Common Stock can elect all the directors and can
control the management and affairs of the Company. While the Board of
Directors has authority, within certain limitations, to issue shares of
Preferred Stock which would have one or more preferences over the Common Stock,
no Preferred Stock is currently outstanding and the Company has no present
plans to issue any Preferred Stock.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Commission by the
Company are incorporated in this Prospectus by reference:
1. The Company's Registration Statement on Form S-1 (File No. 33-98722)
under the Securities Act, in the form declared effective on December
13, 1995;
2. The Company's Current Report on Form 8-K, dated January 8, 1996;
3. The Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1995 and March 31, 1996;
6
<PAGE> 10
4. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed October 31, 1995 pursuant to
Section 12 of the Exchange Act, including any subsequent amendments
thereto and any reports filed for the purpose of updating such
descriptions; and
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date of this Prospectus and
prior to the filing of a post-effective amendment to the Registration
Statement, of which this Prospectus forms a part, which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated in this
Prospectus by reference and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus is delivered, upon written or oral request of
any such person, a copy of any and all of the information that has been or may
be incorporated by reference in this Prospectus, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference
herein). Requests for such copies should be directed to the Chief Financial
Officer, Kensey Nash Corporation, 55 East Uwchlan Avenue, Suite 204, Exton,
Pennsylvania 19341. The Company's telephone number is (610) 524-0188.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Common Stock
offered hereby have been passed upon for the Company by Katten Muchin & Zavis,
a partnership including professional corporations, Chicago, Illinois. Certain
current and former partners of Katten Muchin & Zavis have interests in an
investment partnership that owns 50,000 shares of Common Stock.
7
<PAGE> 11
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the SEC by the Company are
incorporated in this Registration Statement by reference:
1. The Company's Registration Statement on Form S-1 (File No.
33-98722) under the Securities Act, in the form declared effective on
December 13, 1995;
2. The Company's Current Report on Form 8-K, dated January 8, 1996;
3. The Company's Quarterly Reports on Form 10-Q for the quarter ended
December 31, 1995 and March 31, 1996;
4. The description of the Company's Common Stock, $.001 par value (the
"Common Stock"), contained in the Company's Registration Statement on
Form 8-A filed October 31, 1995 pursuant to Section 12 of the Exchange
Act, including any subsequent amendments thereto and any reports filed
for the purpose of updating such descriptions; and
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XII of the Company's Second 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 (i) with respect to
proceedings, claims or actions initiated or brought voluntarily by any such
person and not by way of defense, or (ii) for any amounts paid in settlement of
an action indemnified against by the Company without the prior written consent
of the Company. The Company has entered into indemnity agreements with each of
its directors. These agreements may 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, 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 and to obtain directors' liability insurance if available on
reasonable terms.
II-1
<PAGE> 12
In addition, Article XII of the Company's Second 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 (i)
for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for willful or
negligent conduct in paying dividends or repurchasing stock out of other than
lawfully available funds or (iv) for any transaction from which the director
derives an improper personal benefit.
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 obtained a directors' and officers' liability insurance
policy which entitles the Company to be reimbursed for certain indemnity
payments it is required or permitted to make to its directors and officers.
II-2
<PAGE> 13
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Second Amended and Restated Certificate of Incorporation of the
Company, incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1, File Number 33-98722 (the "IPO
Registration Statement").
4.2 Amended and Restated By-laws of the Company, incorporated by reference
to Exhibit 3.2 to the IPO Registration Statement.
4.3 Form of Kensey Nash Corporation Employee Common Stock Settlement Plan.
4.4 Kensey Nash Corporation Non-Employee Directors' Stock Option Plan and
form of Stock Option Agreement, incorporated by reference to Exhibit
10.2 to the IPO Registration Statement.
4.5 Kensey Nash Corporation Employee Stock Incentive Plan and form of
Stock Option Agreement, incorporated by reference to Exhibit 10.1 to
the IPO Registration Statement.
5 Opinion of Katten Muchin & Zavis as to the legality of the shares
of common stock being offered under the Plans.
23.1 Consent of Deloitte & Touche LLP, independent accountants.
23.2 Consent of Katten Muchin & Zavis (contained in their opinion filed
as Exhibit 5).
24 Power of Attorney (included on the signature page of this
Registration Statement).
II-3
<PAGE> 14
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;
(iii) To include any material information with
respect to the plan of distribution required to be but 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
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(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, each such post-effective
amendment and each filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) 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 may be permitted to directors, officers and controlling persons
of the Company 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.
II-4
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe it meets all of
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, State of Pennsylvania, on this 14th day of
May, 1996.
KENSEY NASH CORPORATION
By: /s/ Joseph W. Kaufmann
------------------------
Joseph W. Kaufmann
President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Joseph W. Kaufmann and Douglas G. Evans and, each of them, his true
and lawful attorneys-in-fact and agents, with full power of substitution and
revocation, to sign on his 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 of 1933, granting unto each such
attorney-in-fact and agent 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 to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming each act that said attorney-in-fact
and agent 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 by the following persons in the
capacities indicated on May 14, 1996.
SIGNATURE TITLE
---------------------- ---------------------------------------------------
Chief Executive Officer, President, Chief Financial
/s/ Joseph W. Kaufmann Officer, Secretary (Principal Executive Officer,
----------------------- Financial Officer and Accounting Officer)
Joseph W. Kaufmann and a Director
/s/ Kenneth R. Kensey Chairman of the Board
-----------------------
Kenneth R. Kensey, M.D
/s/ John E. Nash Vice Chairman of the Board and Executive Vice
----------------------- President
John E. Nash, P.E.
/s/ Douglas G. Evans Chief Operating Officer and Director
-----------------------
Douglas G. Evans, P.E.
/s/ Robert J. Bobb Director
-----------------------
Robert J. Bobb
/s/ Harold N. Chefitz Director
-----------------------
Harold N. Chefitz
/s/ Walter R. Maupay, Jr. Director
-----------------------
Walter R. Maupay, Jr.
II-5
<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
--------- ------------------------------------------------------------------------------ ----------
<S> <C> <C>
4.3 Form of Kensey Nash Corporation Employee Common Stock Settlement Plan.
5 Opinion of Katten Muchin & Zavis as to the legality of the shares of common stock
being offered under the Plans.
23.1 Consent of Deloitte & Touche LLP, independent accountants.
23.2 Consent of Katten Muchin & Zavis (contained in their opinion filed as Exhibit 5).
24 Power of Attorney (included on the signature page of this Registration Statement).
</TABLE>
II-6
<PAGE> 1
EXHIBIT 4.3
SETTLEMENT AGREEMENT UNDER THE
KENSEY NASH CORPORATION 1993 PHANTOM STOCK PLAN
This Settlement Agreement is entered into this ___ day of December, 1995, by
and between Kensey Nash Corporation ("COMPANY"), a Delaware corporation, and
______________ (the "GRANTEE"), an employee of the Company, in connection with
the anticipated December 1995 initial public offering ("IPO") of common stock
("COMMON STOCK") of the Company.
The Grantee was granted _________ Participating Units pursuant to a Phantom
Stock Agreement dated ______________ ("AGREEMENT") under the Kensey Nash
Corporation 1993 Phantom Stock Plan ("1993 PLAN") and was granted ____________
Participating Units under the 1993 Plan in exchange for the Grantee's surrender
and the Company's cancellation of Participating Units previously granted to the
Grantee under a 1992 phantom stock plan established by the Company. The
Grantee's rights and benefits with respect to all of the Participating Units
described above in this paragraph are governed by and determined under the 1993
Plan and the Agreement, as modified by certain provisions described in the
attached memorandum. As of the anticipated date of consummation of the IPO,
__________ of the Grantee's _________ Participating Units governed by the 1993
Plan will be fully vested.
In consideration of each party's respective promises, agreements, actions and
obligations described herein, the Grantee and the Company hereby agree as
follows in the event of the consummation of an IPO of the Common Stock during
1995:
1. At the time of payment of the Grantee's benefit under the 1993 Plan and
the Agreement ("BENEFIT") by the Company, the Grantee shall surrender and the
Company then shall cancel the Grantee's ________________ fully vested and
_______________ nonvested Participating Units granted under the 1993 Plan.
2. The Company shall, within five days after the date of the completion of
the IPO, issue to the Grantee that number of shares of Common Stock of the
Company equal to the number of unvested and vested Participating Units
forfeited by the Grantee upon the IPO, adjusted appropriately as the Company
determines to reflect the events described in the next sentence of this
paragraph. Such events include any stock dividend, stock split, combination or
exchange of shares, recapitalization or other change in the capital structure
of the Company, corporate separation or division of the Company, sale by the
Company of all or a substantial portion of its assets, reorganization, rights
offering, a partial or complete liquidation, or other corporate transaction or
event involving the Company and having an effect similar to any of the
foregoing.
3. To the extent that the Company makes payment to the Grantee of his or
her Benefit in shares of Common Stock, the Company shall use its best efforts
to file a registration statement regarding such shares under the Securities Act
of 1933, as amended, with the Securities and Exchange Commission within 185
days after the date of the consummation of IPO. Any shares
<PAGE> 2
of Common Stock of the Company used to pay the Grantee's Benefit shall be
valued at the initial public offering price of such shares on the Nasdaq
National Market.
4. The Grantee acknowledges and agrees that (i) the Grantee has reviewed the
1993 Plan and the Agreement, (ii) the Grantee has had ample opportunity to
analyze and consider the Grantee's rights and benefits under the 1993 Plan and
the Agreement, (iii) the Grantee has had ample opportunity to consult with his
or her own legal, tax and financial advisor(s) regarding the consequences of
entering into this Settlement Agreement and (iv) the Grantee has asked and had
answered to his or her satisfaction all of his or her questions regarding the
consequences of entering into this Settlement Agreement.
KENSEY NASH CORPORATION
By: ___________________________________
Its: ___________________________________
GRANTEE:
_________________________________________
[NAME]
<PAGE> 1
EXHIBIT 5
May 16, 1996
Kensey Nash Corporation
55 East Uwchlan Avenue
Suite 204
Exton, Pennsylvania 19341
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Kensey Nash Corporation, a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission for the registration for sale under the
Securities Act of 1933, as amended, of 930,000 shares of the Company's Common
Stock, $.001 par value (the "Common Stock"), which may be issued pursuant to
the Kensey Nash Corporation Non-Employee Directors' Stock Option Plan (the
"Stock Option Plan") and the Kensey Nash Corporation Employee Incentive
Compensation Plan (the "Incentive Compensation Plan"), and for the registration
of 457,171 shares of the Company's Common Stock issued pursuant to the Kensey
Nash Corporation Employee Common Stock Settlement Plan (the "Settlement Plan").
In connection with this opinion, we have also examined and relied upon
originals or copies of, certified or otherwise identified to our satisfaction,
the following:
1. The Registration Statement;
2. The Second Amended and Restated Certificate of Incorporation
of the Company;
3. The Amended and Restated By-Laws of the Company;
4. Resolutions duly adopted by the Board of Directors of the
Company relating to the adoption of the Stock Option Plan,
the Incentive Compensation Plan and the Settlement Plan;
<PAGE> 2
Kensey Nash Corporation
May 16, 1996
Page 2
5. The Stock Option Plan, the Incentive Compensation Plan and the
Settlement Plan;
6. Certificates of public officials, certificates of officers,
representatives and agents of the Company, and we have
assumed that all of the representations contained therein
are accurate and complete; and
7. Such other instruments, documents, statements and records of
the Company and others as we have deemed relevant and
necessary to examine and rely upon for the purpose of this
opinion.
In connection with this opinion, we have assumed the accuracy and
completeness of all documents and records that we have reviewed, the
genuineness of all signatures, the authenticity of the documents submitted to
us as originals and the conformity to authentic original documents of all
documents submitted to us as certified, conformed or reproduced copies. We
have further assumed that all natural persons involved in the transactions
contemplated by the Registration Statement (the "Offering") have sufficient
legal capacity to enter into and perform their respective obligations and to
carry out their roles in the Offering.
Based upon the foregoing, we are of the opinion that the 930,000 shares
of Common Stock issuable under the Stock Option Plan and Incentive Compensation
Plan (the "Option Plans"), when issued and delivered by the Company in
accordance with the terms of the respective Option Plans, will be validly
issued, fully paid and nonassessable securities of the Company. In addition,
based upon the foregoing, we are of the opinion that the 457,171 shares of
Common Stock previously issued under the Settlement Plan and delivered by the
Company in accordance with the terms of the Settlement Plan, are validly
issued, fully paid and nonassessable securities of the Company.
<PAGE> 3
Kensey Nash Corporation
May 16, 1996
Page 3
Our opinion expressed above is limited to the laws of the United States
of America and the General Corporation Law of the State of Delaware, and we do
not express any opinion herein concerning any other law. In addition, we
express no opinion herein concerning any statutes, ordinances, administrative
decisions, rules or regulations of any county, town, municipality or special
political subdivision (whether created or enabled through legislative action at
the federal, state or regional level). This opinion is given as of the date
hereof and we assume no obligation to advise you of changes that may hereafter
be brought to our attention. We hereby consent to the use of this opinion for
filing as Exhibit 5 to the Registration Statement.
Very truly yours,
KATTEN MUCHIN & ZAVIS
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors and Stockholders of
Kensey Nash Corporation:
We consent to the incorporation by reference in this Registration
Statement of Kensey Nash Corporation on Form S-8 of our report dated October
25, 1995, except for Note 14 as to which the date is December 6, 1995, (which
report expresses an unqualified opinion, and includes an explanatory paragraph
relating to the substantial doubt about the Company's ability to continue as a
going concern) appearing in the registration statement on Form S-1 (File No.
33-98722) of Kensey Nash Corporation, declared effective on December 13, 1995.
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
May 17, 1996
