UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Bionx Implants, Inc.
(Name of Issuer)
Common Stock, Par Value $0.0019
(Title of Class of Securities)
US09064Q1067
(CUSIP Number)
Daniel S. Jonas.
Vice President - Legal Affairs
and General Counsel
CONMED Corporation
525 French Road
Utica, New York 13502-5994
(315) 624-3208
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
January 13, 2003
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934, as amended (the "Act"), or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
CUSIP No. US09064Q1067
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1 NAME OF REPORTING PERSONS. CONMED Corporation
I.R.S. IDENTIFICATION NOS.OF ABOVE PERSONS (ENTITIES ONLY). 16-0977505
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(SEE INSTRUCTIONS) (a) [ ] (b) [x]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (SEE INSTRUCTIONS) BK
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION New York
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NUMBER OF 7 SOLE VOTING POWER 0
SHARES ---------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER 5,519,403*
OWNED BY --------------------------------------------------------------
EACH
REPORTING 9 SOLE DISPOSITIVE POWER 0
PERSON ---------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,519,403*
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 51.2%
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14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO
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* All of the subject shares may be deemed to be beneficially owned, for the
purposes of Section 13(d) of the Act, by the Reporting Person by virtue of the
Voting Agreement (as defined herein) referred to in this Schedule 13D. The
filing of this Schedule 13D shall not be construed as an admission by the
Reporting Person that it is, for the purposes of Section 13(d) of the Act, the
beneficial owner of the subject shares as to which it does not have sole voting
power.
2
Item 1. Security and Issuer
This statement relates to the common stock, par value $0.0019 per share
(the "Shares"), of Bionx Implants, Inc., a Pennsylvania corporation ("Bionx" or
the "Issuer"). The principal executive offices of Bionx are located at 1777
Sentry Parkway West, Gwynned Hall, Suite 400, Blue Bell, PA 19422.
Item 2. Identity and Background
(a) - (b)CONMED Corporation is a New York corporation ("CONMED"
or the "Reporting Person"). The address of the principal office and principal
place of business of the Reporting Person is 525 French Road, Utica, New York
13502-5994. The Reporting Person is a medical technology company specializing in
instruments, implants, and video equipment for arthroscopic sports medicine, and
powered surgical instruments, such as drills and saws, for orthopedic, ENT,
neuro-surgery, and other surgical specialties. The Reporting Person's 2,500
employees distribute its products worldwide from ten manufacturing locations.
(c) The name, business address and principal occupation of each
executive officer and director of the Reporting Person are set forth in Exhibit
1 hereto and incorporated herein by reference.
(d) During the last five years, neither the Reporting Person
nor, to the best knowledge of the Reporting Person, any of its executive
officers or directors named in Exhibit 1 has been convicted in any criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, neither the Reporting Person
nor, to the best knowledge of the Reporting Person, any of its executive
officers or directors named in Exhibit 1 was a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such law.
(f) Each of the executive officers and directors of the
Reporting Person named in Exhibit 1 is a United States citizen.
Item 3. Source and Amount of Funds or Other Consideration
Pursuant to the terms of the Merger Agreement (as defined and described in
Item 4 below), the total merger consideration of approximately $48 million is
payable in cash. The Reporting Person expects to finance this amount from its
$100 million revolving credit facility.
Item 4. Purpose of Transaction
On January 13, 2003, CONMED and Bionx jointly announced that they had
entered into an Agreement and Plan of Merger, dated as of January 13, 2003 (the
"Merger Agreement"), pursuant to which a wholly owned subsidiary of CONMED will
merge with and into Bionx (the "Merger") and Bionx will become a wholly owned
subsidiary of CONMED.
In connection with the Merger, each outstanding Share will be converted
into the right to receive $4.35 in cash, without interest (the "Merger
Consideration"). In addition, immediately prior to the consummation of the
Merger (the "Effective Time"), each unexercised and unexpired option to purchase
the Shares will become exercisable and vested with respect to all of the Shares
subject to such option, and will be canceled (except to the extent that such
cancellation is not permitted under the terms of Issuer's Investment Plan). Each
former holder of any such canceled option will be entitled to receive, in
consideration of the cancellation, a cash payment equal to the product of (a)
the total number of Shares previously subject to that option and (b) the excess,
if any, of the Merger Consideration over the exercise price per Share of that
option.
3
The aggregate consideration for the Merger will be approximately $48
million. To the extent that the number of Shares outstanding changes as a result
of the exercise of options, the aggregate consideration will change accordingly.
A copy of the Merger Agreement is included herein as Exhibit 2 and is
incorporated herein by reference.
In connection with the Merger, CONMED and Terence D. Wall ("Wall"), Gerard
S. Carlozzi, David J. Bershad ("Bershad"), Anthony J. Dimun ("Dimun"), David H.
MacCallum, Pertti Tormala ("Tormala"), Pertti Viitanen, Drew Karazin and Marrku
Tamminmaki (collectively, the "Stockholders", and each, individually, a
"Stockholder") entered into a Voting Agreement, dated as of January 13, 2003
(the "Voting Agreement"), pursuant to which the Stockholders, who beneficially
own 5,519,403 Shares in the aggregate, representing 51.2% of the total
outstanding Shares, agreed, among other things, (i) to vote all Shares held or
owned, including any shares of which a Stockholder becomes the record holder or
acquires beneficial ownership after entering into the Voting Agreement, in favor
of the adoption of the Merger Agreement and the consummation of the Merger and
other transactions contemplated by the Merger Agreement (collectively, the
"Merger Transactions") or against any alternative proposal or offer with respect
to a transaction involving Bionx or any of its subsidiaries but not involving
the Reporting Person, and (ii) if directed by the Reporting Person, to take or
cause to be taken such actions under the by-laws of Bionx as are required to
call a special meeting of the stockholders of Bionx in order to vote on the
Merger Transactions.
The Voting Agreement will terminate upon the earliest to occur of (i) the
termination of the Merger Agreement, (ii) the consummation of the Merger as
provided in the Merger Agreement, and (iii) January 13, 2004. A copy of the
Voting Agreement is included herein as Exhibit 3 and is incorporated herein by
reference.
In addition to the Voting Agreement, CONMED has entered into a Guarantee
Agreement, dated as of January 13, 2003 (the "Guarantee Agreement"), with
Bionix, B.V., a Netherlands corporation ("BV"), Tormala, Bershad, Dimun and Wall
(Bershad, Dimun and Wall are hereinafter collectively referred to as
"Guarantors") pursuant to which BV has agreed not to transfer, sell, dispose of
or otherwise encumber any of the Shares held of record by BV until the Guarantee
Agreement is terminated in accordance with its terms. In addition, in connection
with 1,028,080 Shares held by BV for the benefit of Tormala that have been
pledged as collateral by BV to secure its obligations under a promissory note,
dated July 1, 2001, in the principal amount of $1,100,000 (the "Demand Note"),
(i) BV has agreed to make all required payments under the Demand Note and not to
take, or omit to take, any action that would give rise to an event of default
under the Demand Note, and (ii) Tormala and each of the Guarantors has agreed
(a) to timely make all required payments under the Demand Note to the extent any
such payments are not made by BV, and (b) not to take, or omit to take, any
action that would give rise to an event of default under the Demand Note.
The Guarantee Agreement will terminate upon the earliest to occur of (i)
the termination of the Merger Agreement and (ii) the consummation of the Merger
as provided in the Merger Agreement. A copy of the Guarantee Agreement is
included herein as Exhibit 4 and is incorporated herein by reference.
References to, and descriptions of, the Merger Agreement, the Voting
Agreement and the Guarantee Agreement as set forth herein are qualified in their
entirety by reference to the copies of the Merger Agreement, the Voting
Agreement and the Guarantee Agreement included as Exhibits 2, 3 and 4 hereto.
Item 5. Interest in Securities of the Issuer
By virtue of the Voting Agreement, the Reporting Person may be deemed to
share with the Stockholders the power to vote the 5,519,403 Shares subject to
the Voting Agreement, representing approximately 51.2% of the 10,773,397 Shares
outstanding as of January 13, 2003, as represented by Bionx in the Merger
Agreement. The Reporting Person expressly disclaims any beneficial ownership of
the Shares subject to the Voting Agreement, and the filing of this Schedule 13D
shall not be construed as an admission by the Reporting Person that it is, for
purposes of Section 13(d) of the Act, the beneficial owner of Shares of Bionx
owned by other parties.
Other than as set forth in this Schedule 13D, as of the date hereof, (i)
neither the Reporting Person nor, to the knowledge of the Reporting Person, any
subsidiary or affiliate of the Reporting Person or any of the Reporting Person's
executive officers or directors named in Exhibit 1 beneficially own any Shares
of Bionx and
4
(ii) there have been no transactions in the Shares effected during the past 60
days by the Reporting Person nor, to the knowledge of the Reporting Person, by
any subsidiary or affiliate of the Reporting Person or any of the Reporting
Person's executive officers or directors named in Exhibit 1.
Except as set forth in this Schedule 13D, neither the Reporting Person nor,
to the knowledge of the Reporting Person, any of the executive officers or
directors of the Reporting Person named in Exhibit 1 has the right to receive or
the power to direct the receipt of dividends from, or the proceeds of sale of,
the Shares of Bionx. Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
The information set forth in Item 4 of this Schedule 13D is hereby
incorporated herein by reference.
Except as set forth in this Schedule 13D, neither the Reporting Person nor,
to the knowledge of the Reporting Person, any of the executive officers or
directors named in Exhibit 1 is a party to any contract, arrangement,
understanding or relationship with respect to any securities of the Issuer.
Item 7. Material to be Filed as Exhibits
Exhibit 1 Name, business address and principal occupation of each
executive officer and director of CONMED.
Exhibit 2 Agreement and Plan of Merger, dated as of January 13, 2003, by
and among CONMED, Arrow Merger Corporation and Bionx.
(Incorporated by reference to Exhibit 2.1 of the Current Report
on Form 8-K of Bionx filed with the SEC on January 14, 2003).
Exhibit 3 Voting Agreement, dated as of January 13, 2003, by and among
CONMED and the Stockholders named therein. (Incorporated by
reference to Exhibit 2.2 of the Current Report on Form 8-K of
Bionx filed with the SEC on January 14, 2003)
Exhibit 4 Guarantee Agreement, dated as of January 13, 2003, by and among
CONMED, BV, Tormala, Bershad, Dimun and Wall.
5
Signatures
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: January 23, 2003 CONMED Corporation
By:/s/ Daniel S. Jonas
-----------------------------------------
Name: Daniel S. Jonas
Title: Vice-President - Legal Affairs and
General Counsel
6
EXHIBIT INDEX
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Exhibit No. Description
- ----------- -----------
Exhibit 1 Name, business address and principal occupation of each
executive officer and director of CONMED.
Exhibit 2 Agreement and Plan of Merger, dated as of January 13, 2003,
by and among CONMED, Arrow Merger Corporation and Bionx.
(Incorporated by reference to Exhibit 2.1 of the Current
Report on Form 8-K of Bionx filed with the SEC on January
14, 2003)
Exhibit 3 Voting Agreement, dated as of January 13, 2003, by and among
CONMED and the Stockholders named therein. (Incorporated by
reference to Exhibit 2.2 of the Current Report on Form 8-K
of Bionx filed with the SEC on January 14, 2003)
Exhibit 4 Guarantee Agreement, dated as of January 13, 2003, by and
among CONMED, BV, Tormala, Bershad, Dimun and Wall.
7
Exhibit 1
Directors and Executive Officers of
CONMED Corporation as of January 13, 2003
The name, position, principal occupation and business address of each
executive officer and director of CONMED Corporation is set forth below. Unless
otherwise indicated, each occupation set forth opposite an executive officer's
name refers to employment with CONMED Corporation.
Name Position Principal Occupation Business Address
- ---- -------- -------------------- ----------------
Eugene R. Corasanti Chairman of the Board, Chairman of the Board c/o CONMED Corporation
Chief Executive Officer Chief Executive Officer 525 French Road
and Director and Director Utica, New York
13502-5994
Joseph J. Corasanti President, Chief President, Chief c/o CONMED Corporation
Operating Officer and Operating Officer and 525 French Road
Director Director Utica, New York
13502-5994
Bruce F. Daniels Director Retired; former c/o CONMED Corporation
Controller of the 525 French Road
international division of Utica, New York
Chicago Pneumatic Tool 13502-5994
Company
William D. Matthews Director Retired; former Chairman c/o CONMED Corporation
and Chief Executive 525 French Road
Officer of Onieda Ltd. Utica, New York
13502-5994
Robert E. Remmell Director Partner, Steates Remmell Steates Remmell Steates &
Steates & Dziekan Dziekan
(Attorneys) 4 Oxford Crossing
Suite 104
New Hartford, New York
13413
Stuart J. Schwartz Director Physician, retired c/o CONMED Corporation
525 French Road
Utica, New York
13502-5994
Stephen M. Mandia Director President and Chief c/o East Coast Olive Oil
Executive Officer, East Corporation
Coast Olive Oil 75 Wurz Avenue
Corporation Utica, New York 13502
8
Name Position Principal Occupation Business Address
- ---- -------- -------------------- ----------------
William W. Abraham Senior Vice President Senior Vice President c/o CONMED Corporation
525 French Road
Utica, New York
13502-5994
Robert D. Shallish, Jr. Vice President-Finance Vice President-Finance c/o CONMED Corporation
and Chief Financial and Chief Financial 525 French Road
Officer (Principal Officer (Principal Utica, New York
Financial Officer) Financial Officer) 13502-5994
Luke A. Pomilio Vice President - Vice President - c/o CONMED Corporation
Corporate Controller Corporate Controller 525 French Road
(Principal Accounting (Principal Accounting Utica, New York
Officer) Officer) 13502-5994
Gerald G. Woodard President of Linvatec President of Linvatec c/o CONMED Corporation
Corporation, a wholly- Corporation, a wholly- 525 French Road
owned subsidiary of owned subsidiary of Utica, New York
CONMED Corporation. CONMED Corporation. 13502-5994
Daniel S. Jonas Vice President - Legal Vice President - Legal c/o CONMED Corporation
Affairs and General Affairs and General 525 French Road
Counsel Counsel Utica, New York
13502-5994
Thomas M. Acey Treasurer and Secretary Treasurer and Secretary c/o CONMED Corporation
525 French Road
Utica, New York
13502-5994
Frank R. Williams Vice President - Vice President - c/o CONMED Corporation
Sales and Marketing- Sales and Marketing- 525 French Road
Endoscopy Endoscopy Utica, New York
13502-5994
John J. Stotts Vice President - Vice President - c/o CONMED Corporation
Marketing and Sales Marketing and Sales 525 French Road
Utica, New York
13502-5994
Eugene T. Starr President of CONMED President of CONMED c/o CONMED Corporation
Electrosurgery, a wholly- Electrosurgery, a wholly- 525 French Road
owned subsidiary of owned subsidiary of Utica, New York
CONMED Corporation CONMED Corporation 13502-5994
9
Exhibit 4
Guarantee Agreement
dated as of January 13, 2003
CONFORMED COPY
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of January 13, 2003 (this "Agreement"), among
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CONMED Corporation, a New York corporation ("CONMED"), Bionix, B.V., a
-------
Netherlands corporation ("BV"), Pertti Tormala ("Tormala"), David J. Bershad
--------
("Bershad"), Anthony J. Dimun ("Dimun") and Terence D. Wall ("Wall"). Bershad,
- --------- ------- ------
Dimun and Wall are hereinafter individually referred to as a "Guarantor" and
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collectively as the "Guarantors".
----------
WHEREAS, concurrently with the execution and delivery of this Agreement,
CONMED and its wholly owned subsidiary, Arrow Merger Corporation, a Pennsylvania
corporation ("Merger Sub"), have executed and delivered an Agreement and Plan of
-----------
Merger, dated as of the date hereof (the "Merger Agreement"), with Bionx
----------------
Implants, Inc., a Pennsylvania corporation ("Bionx"), which provides, among
-------
other things, that Merger Sub will merge with and into the Company pursuant to
the merger contemplated by the Merger Agreement (the "Merger");
-------
WHEREAS, concurrently with the execution and delivery of this Agreement,
CONMED and certain stockholders of Bionx have executed and delivered a Voting
Agreement, dated as of the date hereof (the "Voting Agreement"), governing the
----------------
voting of shares of common stock, par value $.0019 per share, of Bionx (the
"Company Common Stock") held by such stockholders in connection with the Merger;
- ---------------------
WHEREAS, BV is party to the Amended and Restated Demand Promissory Note,
dated July 1, 2000 (the "Demand Note"), with Brown Brothers Harriman & Co. (the
-----------
"Bank") pursuant to which BV has promised upon demand to pay to the order of the
- -----
Bank the principal sum of $1,100,000 (the "Liability"), together with interest
---------
thereon as provided under the Demand Note;
WHEREAS, pursuant to the Amended and Restated Security Agreement, dated
July 1, 2000, between BV and the Bank, the Demand Note is collateralized by a
pledge of 1,072,037 shares of Company Common Stock held by BV for the benefit of
Tormala (the "Collateral");
----------
WHEREAS, Tormala is party to the Amended and Restated Limited Suretyship
Agreement, dated July 1, 2000, in favor of the Bank and for the benefit of BV,
pursuant to which the Bank may recover from Tormala the full amount of the
Liability in the event that any Event of Default (as defined in the Demand Note)
shall have occurred and be continuing;
WHEREAS, the Guarantors are party to the Amended and Restated Limited
Suretyship Agreement, dated July 1, 2000, in favor of the Bank and for the
benefit of Tormala, pursuant to which the Bank may recover from the Guarantors
the full amount of the Liability in the event that any amount due in respect of
the Liability is not paid when due; and
WHEREAS, to ensure that the none of the Collateral nor any part thereof is
transferred, sold or otherwise disposed of by the Bank prior to the Effective
Time (as defined in the Merger Agreement), CONMED wishes BV, Tormala and the
Guarantors to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the covenants and
agreements contained herein, the parties hereto hereby agree as follows:
1. Payments by BV. BV hereby agrees, for the benefit of CONMED, to
--------------
timely make all required payments under the Demand Note and not to take, or omit
to take, any action that would give rise to an Event of Default (as defined in
the Demand Note).
2. Payments by Tormala and the Guarantors. Tormala and each of the
--------------------------------------
Guarantors hereby agrees, for the benefit of CONMED, (a) to timely make all
required payments under the Demand Note to the extent that any such payments are
not made by BV and (ii) not to take, or omit to take, any action that would give
rise to an Event of Default (as defined in the Demand Note).
3. Transfer of Company Common Stock. From and after the date hereof and
---------------------------------
until the date this Agreement shall be terminated in accordance with its terms,
BV agrees not to voluntarily transfer, sell, offer, tender, pledge (other than
any existing pledge pursuant to the Amended and Restated Shareholders'
Agreement, dated as of October 1, 1998, by and among BV and each of the
shareholders set forth therein) or otherwise dispose of or encumber any of the
Company Common Stock held of record by BV.
4. Termination. This Agreement shall terminate upon the earliest to
-----------
occur of (i) the termination of the Merger Agreement and (ii) the Effective Time
(as defined in the Merger Agreement).
5. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
6. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN
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ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
[SIGNATURE PAGE FOLLOWS]
-2-
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
duly authorized officers of the parties hereto as of the date hereof.
CONMED CORPORATION
By:/s/ Heather L. Cohen
------------------------
Name: Heather L. Cohen
Title: Assistant Secretary
BIONIX, B.V.
By:/s/ Gerard S. Carlozzi
---------------------------
Name: Gerard S. Carlozzi
Title: Managing Director
/s/ Pertti Tormala
---------------------------
Pertti Tormala
/s/ David J. Bershad
---------------------------
David J. Bershad
/s/ Anthony J. Dimun
---------------------------
Anthony J. Dimun
/s/ Terence D. Wall
---------------------------
Terence D. Wall
