As filed with the Securities and Exchange Commission on June 24, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INCORPORATED KENDLE INTERNATIONAL INC. I.R.S. EMPLOYER
UNDER THE LAWS 441 VINE STREET, SUITE 700 IDENTIFICATION NO.
OF OHIO CINCINNATI, OHIO 45202 31-1274091
(513) 771-8221
1998 EMPLOYEE STOCK PURCHASE PLAN
GARY P. KREIDER, ESQ.
KEATING, MUETHING & KLEKAMP
ONE EAST FOURTH STREET
CINCINNATI, OHIO 45202
PHONE: (513) 579-6411
FACSIMILE (513) 579-6956
- --------------------------------------------------------------------------------
(Agent for Service of Process)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to be Price Offering Registration
to be Registered Registered Per Share(1) Price(1) Fee(2)
- --------------------------------------------------------------------------------
Common Stock,
No par value 500,000 Shares $22.875 $11,437,500 $3,375
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(1) Estimated to calculate registration fee.
(2) Calculated pursuant to Rule 457(h) based on the average of the high and low
prices of the Common Stock on the Nasdaq National Market on June 22, 1998
of $22.875 per share.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Kendle International Inc. (the
"Registrant"), with the Securities and Exchange Commission are incorporated
herein by reference and made a part hereof:
1. Annual Report on Form 10-K for the year ended December 31, 1997.
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 1998.
3. Current Report on Form 8-K dated February 12, 1998, as amended.
4. The description of Common Stock contained in a Form 8-A filed by the
Company with the Commission on August 22, 1997.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all Common Stock offered has been sold or which deregisters all Common Stock
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon for the
Registrant by Keating, Muething & Klekamp, P.L.L., 1800 Provident Tower, One
East Fourth Street, Cincinnati, Ohio 45202. Attorneys of Keating, Muething &
Klekamp own 6,000 shares of the Registrant's Common Stock.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Ohio Revised Code, Section 1701.13(E), allows indemnification by the
Registrant to any person made or threatened to be made a party to any
proceedings, other than a proceeding by or in the right of the Registrant, by
reason of the fact that he is or was a director, officer, employee or agent of
the Registrant, against expenses, including judgment and fines, if he acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the Registrant and, with respect to criminal actions, in which
he had no reasonable cause to believe that his conduct was unlawful. Similar
provisions apply to actions brought by or in the right of the Registrant, except
that no indemnification shall be made in such cases when the person shall have
been adjudged to be liable for negligence or misconduct to the Registrant unless
deemed otherwise by the court. Indemnification is to be made by a majority vote
of a quorum of disinterested directors or the written opinion of independent
counsel or by the shareholders or by the court. The Registrant's Code of
Regulations extends such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit 4 1998 Employee Stock Purchase Plan
Exhibit 5 Opinion of Keating, Muething & Klekamp, P.L.L.
Exhibit 23.1 Consent of Coopers & Lybrand L.L.P.
Exhibit 23.2 Consent of Keating, Muething & Klekamp, P.L.L.
(included in Exhibit 5)
Exhibit 24 Power of Attorney (contained on the signature page)
ITEM 9. UNDERTAKINGS
9.1 The Registrant hereby undertakes 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;
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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%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
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 (1) and (2) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
9.2 The undersigned Registrant hereby undertakes 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.
9.3 The undersigned Registrant hereby undertakes 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.
9.4 The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant'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.
9.5 Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
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person of the Registrant 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 Registrant 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 Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that 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 Cincinnati, Ohio, on June 22, 1998
KENDLE INTERNATIONAL INC.
By: /s/Candace K. Bryan
-------------------------------
Candace K. Bryan
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Persons whose names are marked with an
asterisk (*) below hereby designate Candace Kendle Bryan or Timothy M. Mooney as
their attorney-in-fact to sign all amendments, including any post-effective
amend ments, to this Registration Statement.
Signature Capacity Date
- --------------------------- ---------------------------------- -------------
* /s/Candace K. Bryan
- --------------------------- Chairman of the Board and Chief June 22, 1998
Candace K. Bryan Executive Officer (Principal
Executive Officer)
* /s/Christopher C. Bergen
- --------------------------- President, Chief Operating Officer, June 22, 1998
Christopher C. Bergen Secretary and Director
* /s/Timothy M. Mooney
- --------------------------- Vice President- Finance, Chief June 22, 1998
Timothy M. Mooney Financial Officer, Treasurer,
Assistant Secretary (principal
financial officer and principal
accounting officer) and Director
* /s/Phillip E. Beckman
- --------------------------- Director June 22, 1998
Philip E. Beekman
* /s/Charles A. Sanders
- --------------------------- Director June 22, 1998
Charles A. Sanders
Exhibit 4
KENDLE INTERNATIONAL INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
The purpose of this Plan is to provide employees of Kendle and its
subsidiaries added incentive to their employment and to encourage their
increased efforts to promote the best interests of Kendle. The Plan seeks to
accomplish this purpose by permitting eligible employees to purchase Common
Shares of Kendle at below-market prices. For purposes of the Plan, a subsidiary
of the corporation of which Kendle is the common parent, is as defined by the
Internal Revenue Code of 1986 in Section 424(f). As used in this Plan, the term
"Kendle" means Kendle International Inc. and all such subsidiaries. This Plan is
intended to qualify as an "employee stock purchase plan" under Section 423 of
the Internal Revenue Code and all provisions of this Plan are to be construed so
as to meet that tax objective.
2. ELIGIBILITY.
This Plan is available to each Eligible Employee of Kendle who meets the
following tests on the first day of a Purchase Period as defined in Section 3.
An Eligible Employee is one (a) who has been continuously employed by Kendle for
at least one month; (b) whose customary employment by Kendle is at least 24
hours per week; and (c) whose customary employment by Kendle is more than five
months in any calendar year.
An Eligible Employee may not purchase Common Shares hereunder if,
immediately thereafter such employee would own 5% or more of the total combined
voting power or value of all classes of stock of Kendle or any subsidiary
including attributable stock under Section 424(d) of the Internal Revenue Code,
or if, for a given calendar year, such employee's aggregate rights to purchase
stock under all employee stock purchase plans of Kendle would exceed $25,000 of
fair market value of such stock for such calendar year, all determined in the
manner provided by Section 423(b)(8) of the Internal Revenue Code.
3. EFFECTIVE DATE; TERM; PURCHASE PERIODS.
This Plan shall become effective on June 30, 1998 or such later date as may
be specified by the Board of Directors. This Plan shall cease to be effective
unless, within 12 months after the date of its adoption by the Board, it has
been approved at a meeting of the shareholders of Kendle.
This Plan shall remain in effect until all Common Shares issuable under the
Plan have been issued or June 30, 2003, whichever occurs first.
A "Purchase Period" shall consist of the twelve month period beginning on
each July 1, commencing on or after the effective date and prior to termination
of the Plan.
<PAGE>
4. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by a Committee designated by the Board
consisting of two or more members of the Board, each of whom is a Non-Employee
Director within the meaning of Rule 16b-3(b) promulgated under the Securities
Exchange Act of 1934.
In addition to the power to amend or terminate the Plan pursuant to Section
9, the Committee shall have full power and authority to: (i) interpret and
administer the Plan and any instrument or agreement entered into under the Plan;
(ii) establish such rules and regulations and appoint such agents as it shall
deem appropriate for the proper administration of the Plan; and (iii) make any
other determination and take any other action that the Committee deems necessary
or desirable for administration of the Plan. Decisions of the Committee shall be
final, conclusive and binding upon all persons, including Kendle, any
participant and any other employee of Kendle. A majority of the members of the
Committee may determine its actions and fix the time and place of its meetings.
The Plan shall be administered so as to ensure all participants have the
same rights and privileges as are provided by Section 423(b)(5) of the Internal
Revenue Code.
5. BASIS OF PARTICIPATION.
5.1 Payroll Deduction. Each Eligible Employee shall be entitled to enroll
in the Plan as of the first day of the Purchase Period which begins after such
employee has become an Eligible Employee.
To enroll in the Plan, an Eligible Employee shall execute and deliver a
payroll deduction authorization to Kendle or its designated agent. The
authorization shall become effective on the first day of the Purchase Period
following the execution and delivery of such authorization. Each authorization
shall direct that payroll deductions be made by Kendle for each payroll period
during which the employee is a participant in the Plan. The amount of each
payroll deduction for each such payroll period shall be a whole percentage
amount or a whole dollar amount, as determined by the Committee, in either case
not less than One Percent nor more than Ten Percent, or such greater or lesser
percentages as may be determined by the Committee, of the participant's current
regular wage or salary (before withholding or other deductions) paid to him/her
by Kendle.
Payroll deductions (and any other amount paid under the Plan) shall be made
for each participant in accordance with his/her authorization until
participation in the Plan terminates, the authorization is revised or the Plan
terminates, all as hereinafter provided.
A participant may not change the amount of payroll deduction during any
Purchase Period. Any requested changes on the amount of payroll deductions will
be effective beginning on the first day of the next Purchase Period, subject to
a participant's right to terminate participation in the Plan at any time as
provided in Section 8.
<PAGE>
Payroll deductions shall be credited to an account established for each
participant. At the end of each Purchase Period, the amount in each
participant's account will be applied to purchase Kendle Common Shares for such
Purchase Period. No interest shall accrue at any time for any amount credited to
a participant's account.
5.2 Other Methods of Participation. The Committee may establish additional
procedures whereby Eligible Employees may participate in the Plan by means other
than payroll deduction, such as delivery of funds by participants in a lump sum
or automatic charges to participants' bank accounts. Such other methods of
participating shall be subject to such rules and conditions as the Committee may
establish. The Committee may at any time amend, suspend or terminate any
participation procedures established pursuant to this paragraph without prior
notice to any participant to Eligible Employee.
6. PURCHASE PRICE.
The purchase price for Common Shares purchased under the Plan for any
Purchase Period shall be the lesser of (i) 85% of the fair market value of the
Common Stock on the first day of such Purchase Period or (ii) 85% of the fair
market value of the Common Shares on the last day of such Purchase Period. "Fair
market value" means the average of the highest and lowest quoted selling prices
for the Common Share as reported on the National Market System of The Nasdaq
Stock Market or such other consolidated transaction reporting system on which
the shares are primarily traded. If the shares are not traded on such date, then
the next preceding day on which the shares were traded, all as reported by such
source as the Committee may select. If the shares are not traded on a national
securities exchange or other market system, fair market value shall be set under
procedures established by the Committee.
7. ISSUANCE OF SHARES.
Common Shares purchased by each participant shall be considered to be
issued and outstanding to the participant's credit as of the close of business
on the last day of each Purchase Period. A participant may any time withdraw
certificates for all or a portion of the Common Shares credited to his or her
account by giving written notice to Kendle, provided, however, that (a) no such
request may be made more frequently than once per Purchase Period, (b) such
request shall be for at least 25 Common Shares and (c) no participant shall be
entitled to receive a certificate for any fractional share. Kendle will pay any
stamp taxes imposed in connection with the issuance of any certificate under the
Plan.
<PAGE>
After the close of each Purchase Period, a report will be sent to each
participant stating entries made to the account, the number of Common Shares
purchased and the applicable purchase price.
8. TERMINATION OF PARTICIPATION.
A participant may at any time terminate participation in the Plan, provided
such termination is received by Kendle in writing prior to the last business day
of the Purchase Period for which such termination is to be effective. Upon any
such termination, Kendle shall promptly deliver to such participant certificates
for the number of full Common Shares held in the account and cash equal to any
remaining balances and in lieu of any fractional shares. Such cash equivalent
shall be determined by multiplying the fractional share by the fair market value
of a Common Share on the last day of the Purchase Period immediately preceding
such termination, determined as provided in Section 6.
If the participant dies, terminates employment with Kendle for any reason,
or otherwise ceases to be an Eligible Employee, participation in the Plan shall
immediately terminate. In such event, certificates for the number of full Common
Shares held in the account, cash equal to any remaining balances and the cash
equivalent of any fractional share so held, determined as provided in Section 6,
shall be delivered promptly to such participant.
9. TERMINATION OR AMENDMENT OF THE PLAN.
Kendle may terminate the Plan at any time. Notice of termination shall be
given to all participants, but any failure to give such notice shall not impair
the effectiveness of the termination.
The Plan will terminate in any event when the maximum number of Common
Shares to be sold under the Plan has been purchased. Such termination shall not
impair any rights which under the Plan shall have vested on or prior to the date
of such termination. If at any time the number of shares remaining available for
purchase under the Plan are not sufficient to satisfy all then-outstanding
purchase rights, the Board may determine an equitable basis of allocating
available shares among all participants.
The Board may amend the Plan from time to time; provided, however, no such
amendment shall (a) materially adversely affect any purchase rights outstanding
under the Plan during the Purchase Period in which such amendment is to be
effected, (b) increase the maximum number of Common Shares which may be
purchased under the Plan, (c) decrease the purchase price of the Common Shares
for any purchase period below the lesser of 85% of fair market value on either
of the first or the last day of such Purchase Period or (d) adversely affect the
qualification of the Plan under Section 423 of the Internal Revenue Code.
Upon termination of the Plan, certificates for the number of full Common
Shares held in the account, cash equal to any remaining balances and the cash
equivalent of any fractional share so held, determined as provided in Section 6,
shall be delivered promptly to such participant.
<PAGE>
10. NON-TRANSFERABILITY.
No right or interest in this Plan shall be assignable or transferable, or
subject to any lien, directly or indirectly, by operation of law, or otherwise,
including execution, levy, garnishment, attachment, pledge or bankruptcy. Any
attempted assignment, transfer, pledge or other disposition of any rights under
this Plan shall be null and void and shall automatically terminate all rights of
a participant under the Plan.
11. SHAREHOLDER'S RIGHTS.
No Eligible Employee or participant shall by reason of this Plan have any
rights of a shareholder of Kendle until and to the extent such person acquires
Common Shares as herein provided.
12. MAXIMUM NUMBER AND SOURCE OF SHARES; ADJUSTMENTS.
The maximum number of Common Shares which may be purchased under this Plan
is Five Hundred Thousand (500,000) shares. Common Shares sold hereunder may be
treasury shares, authorized and unissued shares, or a combination thereof. The
Committee may also purchase Common Shares on behalf of the participants through
market transactions.
If Kendle shall, at any time change its issued Common Shares into a
different number through stock dividend, stock split, combination or otherwise,
the number of Common Shares specified in this Plan shall be proportionately
adjusted.
13. MISCELLANEOUS.
13.1 Any authorization, election, notice or document under this Plan from
an Eligible Employee or participant shall be delivered to Kendle and shall be
effective when delivered.
13.2 This Plan, and Kendle's obligation to sell and deliver Common Shares
hereunder, shall be subject to all applicable federal, state and foreign laws,
rules and regulations, and to such approval by any regulatory or governmental
agency as may, in the opinion of counsel for Kendle, be required.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-8 of our report dated February 18, 1998 except as to the information
presented in Note 5, for which the date is March 9, 1998, on our audits of the
consolidated financial statements of Kendle International Inc. as of December
31, 1996 and 1997, and for the three years in the period ended December 31,
1997, included in the annual report on Form 10-K of Kendle International Inc.
COOPERS & LYBRAND L.L.P.
Cincinnati, Ohio
June 23, 1998
EXHIBIT 5
OPINION OF KEATING, MUETHING & KLEKAMP
FACSIMILE (513) 579-6956
June 23, 1998
Direct Dial (513) 579-6417
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
This firm is general counsel to Kendle International Inc.(the "Company")
and as such, we are familiar with the Company's Restated and Amended Articles of
Incorporation, Amended and Restated Code of Regulations and corporate
proceedings generally. We have reviewed the corporate records as to the
establishment of the Company's 1998 Employee Stock Purchase Plan providing for
the the issuance of shares of Common Stock to employees of the Company and its
subsidiaries. Based solely upon such examination, we are of the opinion that:
1. The Company is a duly organized and validly existing corporation under
the laws of Ohio; and
2. The Company has taken all necessary and required corporate actions in
connection with the proposed issuance of 500,000 shares of Common Stock pursuant
to the 1998 Employee Stock Purchase Plan, and such Common Stock, when issued and
delivered, will be validly issued, fully paid and non-assessable shares of
Common Stock of the Company free of any claim of pre-emptive rights.
We hereby consent to be named in the Registration Statement and the
Prospectus part thereof as the attorneys who have passed upon legal matters in
connection with the issuance of the aforesaid Common Stock and to the filing of
this opinion as an exhibit to the Registration Statement.
Yours truly,
KEATING, MUETHING & KLEKAMP, P.L.L.
BY: /s/Paul V. Muething
---------------------------------
Paul V. Muething