UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of
1934
Date of Report (Date of earliest event reported): May 2, 2012
Kensey Nash Corporation
(Exact name of registrant as specified in its charter)
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Delaware
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001-34388
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36-3316412
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(State or other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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735 Pennsylvania Drive, Exton, Pennsylvania 19341
(Address of Principal Executive Offices and zip code)
Registrants telephone number, including area code: (484) 713-2100
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry into a Material Definitive Agreement.
On May 2, 2012, the Board of Directors of Kensey Nash Corporation, a Delaware corporation (the Company), unanimously
approved, and the Company entered into, an Agreement and Plan of Merger (the Merger Agreement), with Koninklijke DSM N.V. (DSM) and Biomedical Acquisition Corporation, an indirect wholly-owned subsidiary of DSM (Merger
Sub), pursuant to which, among other things, Merger Sub will commence a tender offer for all the issued and outstanding shares (the Shares) of the Companys common stock, par value $0.001 per share (Common Stock),
subject to the terms and conditions of the Merger Agreement.
Merger Agreement
Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, Merger Sub will commence, no earlier than
May 17, 2012 and no later than May 31, 2012, a tender offer (the Offer) to acquire the Shares for a purchase price of $38.50 per share in cash (the Offer Price). The Offer will remain open for a minimum of 20
business days from commencement, subject to possible extension on the terms set forth in the Merger Agreement. In addition, as soon as practicable after the consummation of the Offer and subject to the satisfaction or waiver of certain conditions
set forth in the Merger Agreement, Merger Sub will merge with and into the Company (the Merger), and the Company will become an indirect wholly-owned subsidiary of DSM. In the Merger, the Shares remaining outstanding following the
consummation of the Offer, other than Shares held by DSM or its subsidiaries or by stockholders who have validly exercised their appraisal rights under the Delaware General Corporation Law, will be converted into the right to receive the Offer
Price. The Companys Board of Directors has resolved to unanimously recommend that the Companys stockholders tender their Shares pursuant to the Offer and, if applicable, for the Companys stockholders to approve and adopt the Merger
Agreement and approve the Merger.
The obligation of Merger Sub to accept for payment and pay for the Shares tendered in the
Offer is subject to the satisfaction or waiver of a number of conditions set forth in the Merger Agreement, including, among others, the expiration or early termination of applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements
Act, the absence of a Company Material Adverse Effect (as defined in the Merger Agreement), and the Merger Agreement not being terminated in accordance with its terms. It is also a condition to Merger Subs obligation to accept for payment and
pay for the Shares tendered in the Offer that more than 50% of the outstanding Shares on a fully-diluted basis shall have been validly tendered in accordance with the terms of the Offer and not properly withdrawn. There is no financing condition to
the Offer.
The closing of the Merger is subject to the satisfaction of customary closing conditions, and, depending on the
number of Shares held by DSM, Merger Sub and their affiliates after Merger Subs acceptance of the Shares properly tendered in connection with the Offer, approval of the Merger by holders of outstanding Shares.
The Merger Agreement includes customary representations, warranties and covenants of the Company, DSM and Merger Sub, among other
obligations, and the Company has agreed to operate its business in the ordinary course until the Merger is consummated. Among other covenants, the Company or any Company Subsidiary (as defined in the Merger Agreement) has agreed not to, directly or
indirectly: (i) solicit, initiate, or knowingly encourage the submission of any Takeover Proposal (as defined in the Merger Agreement); (ii) participate or engage in any discussions or negotiations regarding, or furnish to any Person (as
defined in the Merger Agreement) any non-public information with respect to, or would reasonably be expected to lead to, any Takeover Proposal; or (iii) release any third party from any confidentiality agreement entered into in connection with
any Takeover Proposal or potential
Takeover Proposal or any standstill agreement or standstill provision to which the Company is a party or fail to reasonably enforce or grant any material waiver, request or consent to any
Takeover Proposal under, any such agreement or the Rights Agreement (as hereinafter defined). However, subject to the Companys compliance with the Merger Agreement and prior to the time Merger Sub accepts the Shares for payment in the Offer,
if the Companys Board of Directors determines in good faith that an unsolicited written Takeover Proposal is, or would reasonably be expected to result in or lead to, a transaction that would, if consummated, result in a transaction that is a
Superior Proposal (as defined in the Merger Agreement), and the Companys Board of Directors determines in good faith that failure to take such action would be reasonably likely to violate the fiduciary duties of the Companys Board of
Directors to the Companys stockholders under applicable law, the Company is permitted to furnish information with respect to the Company and each Company Subsidiary to the third party making the Takeover Proposal and engage in negotiations or
discussions with that third party.
The Merger Agreement contains certain termination rights for each of the Company and DSM,
including the Companys ability to terminate the agreement in order to accept a Superior Proposal; provided that the Company must, among other things, first give DSM three business days to make a proposal to amend the terms of the Merger
Agreement and if that proposal is determined by the Companys Board of Directors to be at least as favorable from a financial point of view as that Superior Proposal, then the Company may not terminate to accept that Superior Proposal. If the
Merger Agreement is terminated under certain circumstances, including entering into an agreement with respect to a Superior Proposal, the Company must pay DSM a termination fee of $12,600,000.
As part of the Merger Agreement, the Company has granted to Merger Sub an irrevocable option (the Top-Up Option) to purchase
the number of authorized and unissued shares of Common Stock (the Top-Up Option Shares) equal to the number of Shares that, when added to the number of Shares owned by DSM and Merger Sub as of immediately prior to the exercise of the
Top-Up Option, constitutes one share more than 90% of the number of shares of Common Stock then outstanding (the Number of Top-Up Option Shares), assuming the issuance of the Top-Up Option Shares. The obligation of the Company to issue
and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the condition that the Number of Top-Up Option Shares shall not exceed the aggregate of (x) the number of Shares held as treasury shares by the Company
and any Company Subsidiary plus (y) the number of shares of Common Stock that the Company is authorized to issue under its certificate of incorporation but that are not issued and outstanding as of immediately prior to the exercise of the
Top-Up Option. The exercise price for each Top-Up Option Share in the Top-Up Option is equal to the Offer Price. Merger Sub, at its election, may pay the purchase price either (i) entirely in cash or (ii) by paying in cash an amount equal
to not less than the aggregate par value of such Top-Up Option Shares and by executing and delivering to the Company a full-recourse promissory note having a principal amount equal to the balance of such purchase price, with a term of one year and
bearing interest at the annual rate of 5%, or by any combination of cash and such promissory note. The determination of the fair value of any shares of Common Stock in any appraisal proceeding shall be determined without regard to the Top-Up Option,
the Top-Up Option Shares or any promissory note delivered by Merger Sub to the Company in payment for the Top-Up Option Shares. If the Top-Up Option is exercised by Merger Sub, Merger Sub is required, subject to the terms and conditions of the
Merger Agreement, to effect a short-form merger under Delaware law.
The Merger Agreement is attached to this Current Report
on Form 8-K to provide the Company stockholders with information regarding the terms of the Merger Agreement and is not intended to modify or supplement any factual disclosures about the Company in the Companys public reports filed with the
U.S. Securities and Exchange Commission (SEC). In particular, the Merger Agreement and the above summary of its terms are not intended to be, and should not be relied upon as, disclosures regarding any facts or circumstances relating to
the Company, DSM, Merger Sub, their respective subsidiaries and
affiliates or any other party. The representations, warranties and covenants contained in the Merger Agreement have been negotiated only for the purpose of the Merger Agreement and are intended
solely for the benefit of the parties thereto. In many cases, these representations, warranties and covenants are subject to limitations agreed upon by the parties and are qualified by certain supplemental disclosures provided by the parties to one
another in connection with the execution of the Merger Agreement. Furthermore, many of the representations and warranties in the Merger Agreement are the result of a negotiated allocation of contractual risk among the parties and, taken in
isolation, do not necessarily reflect facts about the Company, DSM, Merger Sub, their respective subsidiaries and affiliates or any other party. Likewise, any references to materiality contained in the representations and warranties may not
correspond to concepts of materiality applicable to investors or stockholders. Finally, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement and these changes may not be
fully reflected in the Companys public disclosures.
A copy of the Merger Agreement is attached as Exhibit 2.1 to
this report and is incorporated herein by reference. The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement.
Item 2.02. Results of Operations and Financial Condition.
The information in this Item 2.02 (including Exhibit 99.1) shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the Exchange
Act), or incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
On May 3, 2012, the Company announced its results of operations and financial position as of, and for the three and nine month
periods, ended March 31, 2012. The press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Item 3.03 Material Modification to Rights of Security Holders
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Effective May 2, 2012, prior to the execution of the Merger Agreement, the Board of Directors of the Company approved, and the Company entered into, Amendment No. 1 (the Amendment)
to the Rights Agreement, dated as of June 18, 2009 (the Rights Agreement), between the Company and Computershare Trust Company, N.A.
The Amendment, among other things, renders the Rights Agreement inapplicable to the Merger, the Offer, the Merger Agreement and any of the transactions contemplated thereby. The Amendment amends Sections
1(a), 3(a), 11 and 13 of the Rights Agreement to provide that neither (a) the announcement, commencement or consummation of the Offer, nor (b) the execution, delivery or performance of the Merger Agreement or the consummation of any of the
transactions contemplated thereby (including, without limitation, the Offer and the Merger), will (i) cause DSM or Merger Sub or any affiliate of DSM or Merger Sub to become an Acquiring Person (as defined in the Rights Agreement),
(ii) give rise to a Distribution Date (as defined in the Rights Agreement), (iii) constitute a Triggering Event (as defined in the Rights Agreement) or (iv) trigger certain other events specified in the Rights Agreement.
The Amendment also provides that the Rights Agreement shall expire immediately prior to the Effective Time (as defined in the Merger
Agreement) if the Rights Agreement has not previously terminated. If the Merger Agreement is terminated, the changes to the Rights Agreement pursuant to the Amendment will be of no further force or effect. A copy of the Amendment is attached hereto
as Exhibit 4.1 and is incorporated herein by reference. The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment.
Item 8.01 Other Events.
On May 3, 2012, the Company issued a press release relating to the Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
Additional Information
The Offer described in this Current Report on Form 8-K has not yet commenced, and this report does not constitute a recommendation to stockholders of the Company to tender or otherwise sell shares of the
Companys common stock.
At the time the Offer is commenced, DSM and Merger Sub will file with the SEC and mail to the
Companys stockholders a Tender Offer Statement on Schedule TO, and the Company will file with the SEC and mail to its stockholders a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 in connection with the transaction. These
will contain important information about DSM, Merger Sub, the Company, the transaction and other related matters. Investors and security holders are urged to read each of these documents carefully when they are available.
Investors and security holders will be able to obtain free copies of the Tender Offer Statement, the Tender Offer
Solicitation/Recommendation Statement and other documents filed with the SEC by DSM, Merger Sub and the Company through the website maintained by the SEC at www.sec.gov once such documents are filed with the SEC. A copy of the Tender Offer
Solicitation/Recommendation Statement on Schedule 14D-9 (once it becomes available) may be obtained free of charge from the Companys website at www.kenseynash.com, or by directing a request to the Company at 735 Pennsylvania Drive, Exton PA
19341, Attn: Joseph W. Kaufmann. In addition, a copy of the Tender Offer Statement, letter of transmittal and certain other related tender offer documents (once they become available) may be obtained free of charge from DSMs website at
www.dsm.com or by directing a request to DSM at Het Overloon 1, 6411 TE Heerlen, the Netherlands, Attn: Investor Relations.
Safe Harbor
for Forward-Looking Statements
Statements contained herein regarding the proposed transaction between DSM and the Company,
the expected timetable for completing the transaction, the potential benefits of the transaction, and other statements about managements future expectations, beliefs, goals, plans or prospects constitute forward looking statements. The Company
has tried to identify these forward looking statements by using words such as expect, anticipate, estimate, plan, will, would, should, forecast,
believe, guidance, projection or similar expressions, but these words are not the exclusive means for identifying such statements. The Company cautions that a number of risks, uncertainties and other important
factors could cause the Companys actual results, performance and achievements to differ materially from those expressed in, or implied by, the forward-looking statements, including, without limitation, uncertainties as to the timing of the
tender offer and merger; uncertainties as to how many Company stockholders will tender their stock in the offer; the risk that competing offers will be made; the possibility that various closing conditions for the transaction may not be satisfied or
waived, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of the transaction; any conditions imposed by governmental or regulatory authorities in connection with consummation of the tender
offer and the merger; satisfaction of various other conditions to the completion of the tender offer and the merger contemplated by the merger agreement; the risk that DSM will not perform its obligations under the merger agreement; and the risk
factors set forth from time to
time in the Companys other filings with the SEC, including the disclosures under Risk Factors in those filings. Except as expressly required by the federal securities laws, the
Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information, changed circumstances or future events or for any other reason.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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Exhibit
Number
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Description of Exhibits
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2.1
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Agreement and Plan of Merger, dated as of May 2, 2012, among Koninklijke DSM N.V., Biomedical Acquisition Corporation and Kensey Nash Corporation. The schedules and exhibits (other
than exhibits A and B) to the Agreement and Plan of Merger have been omitted from this filing pursuant to Item 601(b)(2) of Regulation S-K but will be provided supplementally to the SEC upon request.
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4.1
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Amendment, dated as of May 2, 2012, to the Rights Agreement, dated as of June 18, 2009, between Kensey Nash Corporation and Computershare Trust Company, N.A.
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99.1
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Press Release of Kensey Nash Corporation, dated May 3, 2012, announcing its operating results for the third quarter of fiscal 2012.
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99.2
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Press Release of Kensey Nash Corporation, dated May 3, 2012, announcing its agreement to be acquired by Koninklijke DSM N.V.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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KENSEY NASH CORPORATION
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By:
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/s/ Michael Celano
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Name:
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Michael Celano
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Its:
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Chief Financial Officer
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Dated: May 3, 2012
Exhibit Index
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Exhibit
Number
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Description of Exhibits
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2.1
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Agreement and Plan of Merger, dated as of May 2, 2012, among Koninklijke DSM N.V., Biomedical Acquisition Corporation and Kensey Nash Corporation. The schedules and exhibits (other
than exhibits A and B) to the Agreement and Plan of Merger have been omitted from this filing pursuant to Item 601(b)(2) of Regulation S-K but will be provided supplementally to the SEC upon request.
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4.1
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Amendment, dated as of May 2, 2012, to the Rights Agreement, dated as of June 18, 2009, between Kensey Nash Corporation and Computershare Trust Company, N.A.
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99.1
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Press Release of Kensey Nash Corporation, dated May 3, 2012, announcing its operating results for the third quarter of fiscal 2012.
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99.2
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Press Release of Kensey Nash Corporation, dated May 3, 2012, announcing its agreement to be acquired by Koninklijke DSM N.V.
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