As filed with the Securities and Exchange Commission on April 1, 1999.
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
1997 DIRECTORS' COMPENSATION PLAN
Gary P. Kreider, Esq.
Keating, Muething & Klekamp, P.L.L.
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-6411
(Agent for Service of Process)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities To To Be Price Offering Registration
Be Registered Registered(1) Per Share(2) Price(2) Fee(3)
- -------------- --------------- ------------ ------------ -------------
Common Stock,
No par value 14,198 Shares $18.22 $258,687.56 $71.92
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(1) This Registration Statement is filed for up to 14,198 shares, granted
pursuant to the 1997 Directors' Compensation Plan.
(2) Estimated to calculate registration fee.
(3) Calculated pursuant to Rule 457(h) based on the average of the high and low
prices of the Common Stock on the Nasdaq Stock Market on March 26, 1999 of
$18.22 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., with the
Securities and Exchange Commission are incorporated herein by reference and made
a part hereof:
1. The Company's Annual Report included by reference on Form 10-K for the
year ended December 31, 1998.
2. The description of the Common Stock contained in the Registration
Statement on Form 8-A filed by the Company with the Commission on
August 22, 1997.
All reports and other documents subsequently filed by the Company 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
Company by Keating, Muething & Klekamp, P.L.L., 1400 Provident Tower, One East
Fourth Street, Cincinnati, Ohio 45202. Attorneys of Keating, Muething & Klekamp,
P.L.L. participating in matters relating to this Form S-8 own approximately
6,450 shares of the Company's Common Stock.
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
<PAGE>
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 Amended and
Restated Code of Regulations extends such indemnification, and the registrant
also has indemnification agreements with individual officers and directors.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits*
Exhibit 4 1997 Directors' Compensation Plan (incorporated by reference
to the Company's Form 10-K filed March 31, 1999)
Exhibit 5 Opinion of Keating, Muething & Klekamp, P.L.L.
Exhibit 23.1 Consent of PricewaterhouseCoopers LLP
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)
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*All Exhibits filed herewith
Item 9. Undertakings
9.1 The undersigned 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; (ii) to reflect in the prospectus any
facts or events arising after the effective date of this 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
this 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 (i) and (ii) above 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.
<PAGE>
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 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 April 1, 1999.
KENDLE INTERNATIONAL INC.
By: /s/ Candace Kendle
------------------------------
Candace Kendle
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 or Timothy M. Mooney as their
attorney-in-fact to sign all amendments, including any post-effective
amendments, to this Registration Statement.
Signature Capacity Date
--------- -------- ----
*/s/ Candace Kendle
- -------------------------- Chairman of the Board and
Candace Kendle Chief Executive Officer
(Principal Executive Officer) April 1, 1999
*/s/ Christopher C. Bergen
- -------------------------- President, Chief Operating
Christopher C. Bergen Officer, Secretary and
Director April 1, 1999
*/s/Timothy M. Mooney
- --------------------------
Timothy M. Mooney Vice President-Finance, Chief
Financial Officer, Treasurer,
Assistant Secretary (principal
financial officer and principal
accounting officer) and Director April 1, 1999
- --------------------------- Director April _, 1999
Philip E. Beekman
*/s/ Charles A. Sanders
------------------------- Director April 1, 1999
Charles A. Sanders
- ---------------------------
Robert R. Buck Director April _, 1999
- --------------------------- Director April _, 1999
Mary Beth Price
EXHIBIT 5
ROBERT E. COLETTI
DIRECT DIAL: (513) 579-6559
FACSIMILE: (513) 579-6956
E-MAIL: RCOLETTI@KMKLAWCOM
April 1, 1999
Kendle International Inc.
441 Vine Street, Suite 700
Cincinnati, Ohio 45202
Ladies and Gentlemen:
This firm is general counsel to Kendle International Inc. 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
1997 Directors' Compensation Plan which calls for 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 the State of Ohio; and
2. The Company has taken all necessary and required corporate actions in
connection with the proposed issuance of 14,198 shares of Common Stock pursuant
to the 1997 Directors' Compensation Plan, and the 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.
Very truly yours,
KEATING, MUETHING & KLEKAMP, P.L.L.
By: /s/Robert E. Coletti
-----------------------------------
Robert E. Coletti
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 to be filed on April 1, 1999 of our report dated February 15, 1999 on
our audits of the consolidated financial statements of Kendle International Inc.
as of December 31, 1998 and 1997, and for the three years in the period ended
December 31, 1998, appearing in the 1998 Annual Report on Form 10-K filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1934.
PricewaterhouseCoopers LLP
Cincinnati, Ohio
March 29, 1999
