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): November 12, 2003
ENZON PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-12957 22-2372868
(State or other jurisdiction of (Commission (IRS Employer
incorporation) File Number) Identification)
685 Route 202/206, Bridgewater, New Jersey 08807
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code: (908) 541-8600
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(Former name or former address, if changed since last report)
Item 5. Other Events.
On November 12, 2003, the Registrant amended its 2001 Incentive Stock Plan to
add the following language to Section 7.B thereof: "Notwithstanding the
foregoing, without the prior approval of Enzon's stockholders, options issued
under this Plan will not be repriced, replaced, or regranted through
cancellation, or by lowering the option exercise price of a previously granted
Award."
A copy of the Registrant's 2001 Incentive Stock Plan, as amended, is attached
hereto as Exhibit 99.1.
Item 7. Exhibits.
Exhibit No. Description
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99.1 Enzon Pharmaceuticals, Inc. 2001 Incentive Stock Plan, as
amended
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.
Dated: November 12, 2003
By: /s/ Kenneth J. Zuerblis
-----------------------------------
Kenneth J. Zuerblis
Vice President, Finance and
Chief Financial Officer
Exhibit 99.1
ENZON, INC.
2001 INCENTIVE STOCK PLAN(1)
Section 1. Purpose
The purpose of the Plan is to promote the interests of the Company and its
shareholders by aiding the Company in attracting and retaining employees,
officers, consultants, independent contractors and Non-Employee Directors
capable of contributing to the future success of the Company, to offer such
persons incentives to put forth maximum efforts for the success of the Company's
business and to afford such persons an opportunity to acquire a proprietary
interest in the Company.
Section 2. Definitions
As used in the Plan, the following terms shall have the meanings set forth
below:
1. "Affiliate" shall mean (i) any entity that, directly or indirectly
through one or more intermediaries, is controlled by the Company and (ii)
any entity in which the Company has a significant equity interest, in each
case as determined by the Committee.
2. "Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock, Restricted Stock Unit, Performance Award, Dividend Equivalent,
Other Stock Grant or Other Stock-Based Award granted under the Plan.
3. "Award Agreement" shall mean any written agreement, contract or other
instrument or document evidencing any Award granted under the Plan. Each
Award Agreement shall be subject to the applicable terms and conditions of
the Plan and any other terms and conditions (not inconsistent with the
Plan) determined by the Committee.
4. "Board" shall mean the Board of Directors of the Company.
5. "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any regulations promulgated thereunder.
6. "Committee" shall mean a committee of Directors designated by the Board
to administer the Plan. The Committee shall be comprised of not less than
such number of Directors as shall be required to permit Awards granted
under the Plan by the Committee to qualify under Rule 16b-3, and each
member of the Committee shall be a "Non-Employee Director" within the
meaning of Rule 16b-3 and an "outside director" within the meaning of
Section 162(m) of the Code. The Company expects to have the Plan
administered in accordance with the requirements for the award of
"qualified performance-based compensation" within the meaning of Section
162(m) of the Code.
7. "Company" shall mean Enzon, Inc., a Delaware corporation, and any
successor corporation.
8. "Director" shall mean a member of the Board, including Non-Employee
Directors.
9. "Dividend Equivalent" shall mean any right granted under Section 6(E)
of the Plan.
10. "Eligible Person" shall mean any employee, officer, consultant,
independent contractor or Director (including any Non-Employee Director)
providing services to the Company or any Affiliate whom the Committee
determines to be an Eligible Person.
11. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
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(1) As amended on November 12, 2003.
12. "Fair Market Value" shall mean, with respect to any property
(including, without limitation, any Shares or other securities), the fair
market value of such property determined by such methods or procedures as
shall be established from time to time by the Committee. Notwithstanding
the foregoing, unless otherwise determined by the Committee, the Fair
Market Value of a Share as of a given date shall be, if the Shares are
then traded on the Nasdaq National Market, the last reported sale price of
one Share as reported on the Nasdaq National Market on such date or, if
the Nasdaq National Market is not open for trading on such date, on the
most recent preceding date when it is open for trading.
13. "Family Members" shall be those persons related to a Participant as
determined by the Committee.
14. "Incentive Stock Option" shall mean an option granted under Section 6A
of the Plan that is intended to meet the requirements of Section 422 of
the Code or any successor provision.
15. "Non-Employee Director" shall have the meaning ascribed in Rule 16b-3
promulgated under the Exchange Act or any successor provision.
16. "Non-Qualified Stock Option" shall mean an option granted under
Section 6A of the Plan that is not intended to be an Incentive Stock
Option.
17. "Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
18. "Other Stock Grant" shall mean any right granted under Section 6F of
the Plan.
19. "Other Stock-Based Award" shall mean any right granted under Section
6G of the Plan.
20. "Participant" shall mean an Eligible Person designated to be granted
an Award under the Plan.
21. "Performance Award" shall mean any right granted under Section 6D of
the Plan.
22. "Person" shall mean any individual, corporation, partnership,
association or trust.
23. "Plan" shall mean the Enzon, Inc. 2001 Incentive Stock Plan, as
amended from time to time, the provisions of which are set forth herein.
24. "Plan Year" shall mean a consecutive 12-month period ending on
December 31 of each year.
25. "Reload Option" shall mean any Option granted under Section 6A(5) of
the Plan.
26 "Restricted Stock" shall mean any Shares granted under Section 6C of
the Plan.
27. "Restricted Stock Unit" shall mean any unit granted under Section 6C
of the Plan evidencing the right to receive a Share (or a cash payment
equal to the Fair Market Value of a Share) at some future date.
28. "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor rule or
regulation.
29. "Share" or "Shares" shall mean shares of common stock, $0.01 par value
per share, of the Company or such other securities or property as may
become subject to Awards pursuant to an adjustment made under Section 4C
of the Plan.
30. "Stock Appreciation Right" shall mean any right granted under Section
6B of the Plan.
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Section 3. Administration
A. Power and Authority of the Committee. The Plan shall be administered by
the Committee. Subject to the express provisions of the Plan and to applicable
law, the Committee shall have full power and authority to: (i) designate
Participants; (ii) determine the type or types of Awards to be granted to each
Participant under the Plan; (iii) determine the number of Shares to be covered
by (or the method by which payments, or other rights are to be calculated in
connection with) each Award; (iv) determine the terms and conditions of any
Award or Award Agreement; (v) amend the terms and conditions of any Award or
Award Agreement and accelerate the exercisability of any Award or the lapse of
restrictions relating to any Award; (vi) determine whether, to what extent and
under what circumstances Awards may be exercised in cash, Shares, promissory
notes, other securities, other Awards or other property, or canceled, forfeited
or suspended; (vii) determine whether, to what extent and under what
circumstances cash, Shares, promissory notes, other securities, other Awards,
other property and other amounts payable with respect to an Award under the Plan
shall be deferred either automatically or at the election of the holder thereof
or the Committee; (viii) interpret and administer the Plan and any instrument or
agreement, including an Award Agreement, relating to the Plan; (ix) establish,
amend, suspend or waive such rules and regulations and appoint such agents as it
shall deem appropriate for the proper administration of the Plan; and (x) make
any other determination and take any other action that the Committee deems
necessary or desirable for the administration of the Plan. Unless otherwise
expressly provided in the Plan, all designations, determinations,
interpretations and other decisions under or with respect to the Plan or any
Award shall be within the sole discretion of the Committee, may be made at any
time and shall be final, conclusive and binding upon any Participant, any holder
or beneficiary of any Award and any employee of the Company or any Affiliate.
B. Delegation. The Committee may delegate its powers and duties under the
Plan to one or more Directors or officers of the Company, or to a committee of
Directors or officers, subject to such terms, conditions and limitations as the
Committee may establish in its sole discretion, provided, however, that the
Committee shall not delegate its powers and duties under the Plan (i) with
regard to officers or directors of the Company or any Affiliate who are subject
to Section 16 of the Exchange Act or (ii) in such a manner as would cause the
Plan not to comply with the requirements of Section 162(m) of the Code.
C. Power and Authority of the Board. Notwithstanding anything to the
contrary contained herein, the Board may, at any time and from time to time,
without any further action of the Committee, exercise the powers and duties of
the Committee under the Plan.
Section 4. Shares Available for Awards
A. Shares Available. Subject to adjustment as provided in Section 4C of
the Plan, the aggregate number of Shares that may be issued under all Awards
under the Plan shall be 2,000,000; provided that, any Shares with respect to
which Awards may be issued, but are not issued, under the Plan in any Plan Year
shall be carried forward and shall be available to be covered by Awards issued
in any subsequent Plan Year in which Awards may be issued under the Plan. Shares
to be issued under the Plan may be either authorized but unissued Shares or
Shares acquired in the open market or otherwise. Any Shares that are used by a
Participant as full or partial payment to the Company of the purchase price
relating to an Award, or in connection with the satisfaction of tax obligations
relating to an Award, shall again be available for granting Awards (other than
Incentive Stock Options) under the Plan. In addition, if any Shares covered by
an Award or to which an Award relates are not purchased or are forfeited, or if
an Award otherwise terminates without delivery of any Shares, then the number of
Shares counted against the aggregate number of Shares available under the Plan
with respect to such Award, to the extent of any such forfeiture or termination,
shall again be available for granting Awards under the Plan. Notwithstanding the
foregoing, the number of Shares available for granting Incentive Stock Options
under the Plan shall not exceed 2,000,000 shares subject to adjustment as
provided in the Plan and subject to the provisions of Section 422 or 424 of the
Code or any successor provision.
B. Accounting for Awards. For purposes of this Section 4, if an Award
entitles the holder thereof to receive or purchase Shares, the number of Shares
covered by such Award or to which such Award relates shall be
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counted on the date of grant of such Award against the aggregate number of
Shares available for granting Awards under the Plan.
C. Adjustments. In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Shares, other
securities or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
issuance of warrants or other rights to purchase Shares or other securities of
the Company to all holders of common stock pro rata whether as a dividend or
otherwise or other similar corporate transaction or event affects the Shares
such that an adjustment is determined by the Committee to be appropriate in
order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall, in such
manner as it may deem equitable, adjust any or all of (i) the number and type of
Shares (or other securities or other property) that thereafter may be made the
subject of Awards, (ii) the number and type of Shares (or other securities or
other property) subject to outstanding Awards and (iii) the purchase or exercise
price with respect to any Award; provided, however, that the number of Shares
covered by any Award or to which such Award relates shall always be a whole
number.
D. Award Limitations Under the Plan. No Eligible Person may be granted any
Award or Awards under the Plan, the value of which Award or Awards is based
solely on an increase in the value of the Shares after the date of grant of such
Award or Awards, for more than 1,000,000 Shares (subject to adjustment as
provided for in Section 4(c) of the Plan), in the aggregate in any calendar
year. The foregoing annual limitation specifically includes the grant of any
Award or Awards representing "qualified performance-based compensation" within
the meaning of Section 162(m) of the Code.
Section 5. Eligibility.
Any Eligible Person shall be eligible to be designated a Participant. In
determining which Eligible Persons shall receive an Award and the terms of any
Award, the Committee may take into account the nature of the services rendered
by the respective Eligible Persons, their present and potential contributions to
the success of the Company or such other factors as the Committee, in its
discretion, shall deem relevant. Notwithstanding the foregoing, an Incentive
Stock Option may only be granted to full or part-time employees (which term as
used herein includes, without limitation, officers and Directors who are also
employees), and an Incentive Stock Option shall not be granted to an employee of
an Affiliate unless such Affiliate is also a "subsidiary corporation" of the
Company within the meaning of Section 424(f) of the Code or any successor
provision.
Section 6. Awards
A. Options. The Committee is hereby authorized to grant Options to
Eligible Persons with the following terms and conditions and with
such additional terms and conditions not inconsistent with the
provisions of the Plan as the Committee shall determine:
1. Exercise Price. The purchase price per Share purchasable under an
Option shall be determined by the Committee; provided, however, that
such purchase price shall not be less than 100% of the Fair Market
Value of a Share on the date of grant of such Option.
2. Option Term. The term of each Option shall be fixed by the
Committee, but, shall in no event exceed 10 years from the date on
which such Option is granted.
3. Time and Method of Exercise. The Committee shall determine the
time or times at which an Option may be exercised in whole or in
part and the method or methods by which, and the form or forms
(including, without limitation, cash, Shares, promissory notes,
other securities, other Awards or other property, or any combination
thereof, having a Fair Market Value on the exercise date equal to
the applicable exercise price) in which, payment of the exercise
price with respect thereto may be made or deemed to have been made.
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4. Incentive Stock Options. Notwithstanding anything in the Plan to
the contrary, the following additional provisions shall apply to the
grant of stock options which are intended to qualify as Incentive
Stock Options:
(a) The aggregate Fair Market Value (determined as of the
time the option is granted) of the Shares with respect
to which Incentive Stock Options are exercisable for the
first time by any Participant during any calendar year
(under this Plan and all other plans of the Company and
its Affiliates) shall not exceed $100,000.
(b) All Incentive Stock Options must be granted within ten
years from the earlier of the date on which this Plan
was adopted by the Board or the date this Plan was
approved by the shareholders of the Company.
(c) Unless sooner exercised, all Incentive Stock Options
shall expire and no longer be exercisable no later than
10 years after the date of grant; provided, however,
that in the case of a grant of an Incentive Stock Option
to a Participant who, at the time such Option is
granted, owns (within the meaning of Section 422 of the
Code) stock possessing more than 10% of the total
combined voting power of all classes of stock of the
Company or of its Affiliate, such Incentive Stock Option
shall expire and no longer be exercisable no later than
5 years from the date of grant.
(d) The purchase price per Share for an Incentive Stock
Option shall be not less than 100% of the Fair Market
Value of a Share on the date of grant of the Incentive
Stock Option; provided, however, that, in the case of
the grant of an Incentive Stock Option to a Participant
who, at the time such Option is granted, owns (within
the meaning of Section 422 of the Code) stock possessing
more than 10% of the total combined voting power of all
classes of stock of the Company or of its Affiliate, the
purchase price per Share purchasable under an Incentive
Stock Option shall be not less than 110% of the Fair
Market Value of a Share on the date of grant of the
Inventive Stock Option.
(e) Any Incentive Stock Option authorized under the Plan
shall contain such other provisions as the Committee
shall deem advisable, but shall in all events be
consistent with and contain all provisions required in
order to qualify the Option as an Incentive Stock
Option.
5. Reload Options. The Committee may grant Reload Options,
separately or together with another Option, pursuant to which,
subject to the terms and conditions established by the Committee,
the Participant would be granted a new Option when the payment of
the exercise price of a previously granted option is made by the
delivery of Shares owned by the Participant pursuant to Section
6A(3) hereof or the relevant provisions of another plan of the
Company, and/or when Shares are tendered or withheld as payment of
the amount to be withheld under applicable income tax laws in
connection with the exercise of an Option, which new Option would be
an Option to purchase the number of Shares not exceeding the sum of
(A) the number of Shares so provided as consideration upon the
exercise of the previously granted option to which such Reload
Option relates and (B) the number of Shares, if any, tendered or
withheld as payment of the amount to be withheld under applicable
tax laws in connection with the exercise of the option to which such
Reload Option relates pursuant to the relevant provisions of the
plan or agreement relating to such option. Reload Options may be
granted with respect to Options previously granted under the Plan or
any other stock option plan of the Company or may be granted in
connection with any Option granted under the Plan or any other stock
option plan of the Company at the time of such grant. Such Reload
Options shall have a per share exercise price equal to the Fair
Market Value of one Share as of the date of grant of the new Option.
Any Reload Option shall be subject to availability of sufficient
Shares for grant under the Plan. Shares surrendered as part or all
of the exercise price
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of the Option to which it relates that have been owned by the
optionee less than six months will not be counted for purposes of
determining the number of Shares that may be purchased pursuant to a
Reload Option.
B. Stock Appreciation Rights. The Committee is hereby authorized to grant
Stock Appreciation Rights to Eligible Persons subject to the terms of the
Plan and any applicable Award Agreement. A Stock Appreciation Right
granted under the Plan shall confer on the holder thereof a right to
receive upon exercise thereof the excess of (i) the Fair Market Value of
one Share on the date of exercise (or, if the Committee shall so
determine, at any time during a specified period before or after the date
of exercise) over (ii) the grant price of the Stock Appreciation Right as
specified by the Committee, which price shall not be less than 100% of the
Fair Market Value of one Share on the date of grant of the Stock
Appreciation Right. Subject to the terms of the Plan and any applicable
Award Agreement, the grant price, term, methods of exercise, dates of
exercise, methods of settlement and any other terms and conditions of any
Stock Appreciation Right shall be as determined by the Committee. The
Committee may impose such conditions or restrictions on the exercise of
any Stock Appreciation Right as it may deem appropriate.
C. Restricted Stock and Restricted Stock Units. The Committee is hereby
authorized to grant Restricted Stock and Restricted Stock Units to
Eligible Persons with the following terms and conditions and with such
additional terms and conditions not inconsistent with the provisions of
the Plan as the Committee shall determine:
1. Restrictions. Shares of Restricted Stock and Restricted Stock
Units shall be subject to such restrictions as the Committee
may impose (including, without limitation, a waiver by the
Participant of the right to vote or to receive any dividend or
other right or property with respect thereto), which
restrictions may lapse separately or in combination at such
time or times, in such installments or otherwise as the
Committee may deem appropriate.
2. Stock Certificates. Any Restricted Stock granted under the
Plan shall be registered in the name of the Participant and
shall bear an appropriate legend referring to the terms,
conditions and restrictions applicable to such Restricted
Stock.
3. Forfeiture. Except as otherwise determined by the Committee,
upon a Participant's termination of employment (as determined
under criteria established by the Committee) during the
applicable restriction period, all Shares of Restricted Stock
and Restricted Stock Units held by the Participant at such
time shall be forfeited and reacquired by the Company;
provided, however, that the Committee may, when it finds that
a waiver would be in the best interest of the Company, waive
in whole or in part any or all remaining restrictions with
respect to Shares of Restricted Stock or Restricted Stock
Units.
D. Performance Awards. The Committee is hereby authorized to grant
Performance Awards to Eligible Persons subject to the terms of the Plan
and any applicable Award Agreement. A Performance Award granted under the
Plan (i) may be denominated or payable in cash, Shares (including, without
limitation, Restricted Stock and Restricted Stock Units), other
securities, other Awards or other property and (ii) shall confer on the
holder thereof the right to receive payments, in whole or in part, upon
the achievement of such performance goals during such performance periods
as the Committee shall establish. Subject to the terms of the Plan and any
applicable Award Agreement, the performance goals to be achieved during
any performance period, the length of any performance period, the amount
of any Performance Award granted, the amount of any payment or transfer to
be made pursuant to any Performance Award and any other terms and
conditions of any Performance Award shall be determined by the Committee.
E. Dividend Equivalents. The Committee is hereby authorized to grant
Dividend Equivalents to Eligible Persons under which the Participant shall
be entitled to receive payments (in cash, Shares, other securities, other
Awards or other property as determined in the discretion of the Committee)
equivalent to the amount of cash dividends paid by the Company to holders
of Shares with respect to a number of Shares determined
6
by the Committee. Subject to the terms of the Plan and any applicable
Award Agreement, such Dividend Equivalents may have such terms and
conditions as the Committee shall determine.
F. Other Stock Grants. The Committee is hereby authorized, subject to the
terms of the Plan and any applicable Award Agreements, to grant to
Eligible Persons Shares without restrictions thereon as are deemed by the
Committee to be consistent with the purpose of the Plan.
G. Other Stock-Based Awards. The Committee is hereby authorized to grant
to Eligible Persons, subject to the terms of the Plan and any applicable
Award Agreements, such other Awards that are denominated or payable in,
valued in whole or in part by reference to, or otherwise based on or
related to, Shares (including, without limitation, securities convertible
into Shares), as are deemed by the Committee to be consistent with the
purpose of the Plan. Shares or other securities delivered pursuant to a
purchase right granted under this Section 6(G) shall be purchased for such
consideration, which may be paid by such method or methods and in such
form or forms (including, without limitation, cash, Shares, promissory
notes, other securities, other Awards or other property or any combination
thereof), as the Committee shall determine, the value of which
consideration, as established by the Committee, shall not be less than
100% of the Fair Market Value of such Shares or other securities as of the
date such purchase right is granted.
H. General
1. Consideration for Awards. Awards shall be granted for no cash
consideration or for any cash or other consideration as may be
determined by the Committee or required by applicable law.
2. Awards May Be Granted Separately or Together. Awards may, in
the discretion of the Committee, be granted either alone or in
addition to, in tandem with or in substitution, for any other
Award or any award granted under any plan of the Company or
any Affiliate other than the Plan. Awards granted in addition
to or in tandem with other Awards or in addition to or in
tandem with awards granted under any such other plan of the
Company or any Affiliate may be granted either at the same
time as or at a different time from the grant of such other
Awards or awards.
3. Forms of Payment under Awards. Subject to the terms of the
Plan and of any applicable Award Agreement, payments or
transfers to be made by the Company or an Affiliate upon the
grant, exercise or payment of an Award may be made in such
form or forms as the Committee shall determine (including,
without limitation, cash, Shares, promissory notes, other
securities, other Awards or other property or any combination
thereof), and may be made in a single payment or transfer, in
installments or on a deferred basis, in each case in
accordance with rules and procedures established by the
Committee. Such rules and procedures may include, without
limitation, provisions for the payment or crediting of
reasonable interest on installment or deferred payments or the
grant or crediting of Dividend Equivalents with respect to
installment or deferred payments.
4. Limits on Transfer of Awards. No Award (other than Other Stock
Grants) and no right under any such Award shall be
transferable by a Participant otherwise than by will or by the
laws of descent and distribution and the Company shall not be
required to recognize any attempted assignment of such rights
by any Participant; provided, however, that, if so determined
by the Committee, a Participant may, in the manner established
by the Committee, (a) designate a beneficiary or beneficiaries
to exercise the rights of the Participant and receive any
property distributable with respect to any Award upon the
death of the Participant and (b) transfer Awards, except in
the case of an Incentive Stock Option, to Family Members
pursuant to terms determined by the Committee. Except as
otherwise provided in this Plan or in any applicable Award
Agreement or amendment thereto (other than an Award Agreement
relating to an Incentive Stock Option), pursuant to terms
determined by the Committee, each Award or right under any
Award shall be exercisable during the Participant's lifetime
only by the Participant or, if permissible
7
under applicable law, by the Participant's guardian or legal
representative. Except as otherwise provided in this Plan or
in any applicable Award Agreement or amendment thereto (other
than an Award Agreement relating to an Incentive Stock
Option), no Award or right under any such Award may be
pledged, alienated, attached or otherwise encumbered, and any
purported pledge, alienation, attachment or encumbrance
thereof shall be void and unenforceable against the Company or
any Affiliate.
5. Term of Awards. The term of each Award shall be for such
period as may be determined by the Committee; provided,
however, that in the case of an Incentive Stock Option such
Option shall not be exercisable after the expiration of 10
years from the date such Option is granted.
6. Restrictions; Securities Exchange Listing. All Shares or other
securities delivered under the Plan pursuant to any Award or
the exercise thereof shall be subject to such restrictions as
the Committee may deem advisable under the Plan, applicable
federal or state securities laws and regulatory requirements,
and the Committee may cause appropriate entries to be made or
legends to be placed on the certificates for such Shares or
other securities to reflect such restrictions. If the Shares
or other securities of the Company are traded on a securities
exchange, the Company shall not be required to deliver any
Shares or other securities covered by an Award unless and
until such Shares or other securities have been admitted for
trading on such securities exchange.
Section 7. Amendment and Termination; Adjustments
A. Amendments to the Plan. The Board may amend, alter, suspend,
discontinue or terminate the Plan at any time; provided, however, that,
notwithstanding any other provision of the Plan or any Award Agreement, without
the approval of the shareholders of the Company, no such amendment, alteration,
suspension, discontinuation or termination shall be made that, absent such
approval would violate the rules or regulations of the Nasdaq National Market or
any other securities exchange that is applicable to the Company.
B. Amendments to Awards. The Committee may waive any conditions of or
rights of the Company under any outstanding Award, prospectively or
retroactively. Except as otherwise provided herein or in an Award Agreement, the
Committee may not amend, alter, suspend, discontinue or terminate any
outstanding Award, prospectively or retroactively, if such action would
adversely affect the rights of the holder of such Award, without the consent of
the Participant or holder or beneficiary thereof. Notwithstanding the foregoing,
without the prior approval of Enzon's stockholders, options issued under this
Plan will not be repriced, replaced, or regranted through cancellation, or by
lowering the option exercise price of a previously granted Award.(2)
C. Correction of Defects, Omissions and Inconsistencies. The Committee may
correct any defect, supply any omission or reconcile any inconsistency in the
Plan or any Award in the manner and to the extent it shall deem desirable to
carry the Plan into effect.
Section 8. Income Tax Withholding
In order to comply with all applicable national, federal, state or local
income tax laws or regulations, the Company may take such action as it deems
appropriate to ensure that all applicable national, federal, state or local
payroll, withholding, income or other taxes, which are the sole and absolute
responsibility of a Participant, are withheld or collected from such
Participant. In order to assist a Participant in paying all or a portion of the
national, federal, state and local taxes to be withheld or collected upon
exercise or receipt of (or the lapse of restrictions relating to) an Award, the
Committee, in its discretion and subject to such additional terms and conditions
as it may adopt, may permit the Participant to satisfy such tax obligation by
(i) electing to have the Company withhold a portion of the Shares otherwise to
be delivered upon exercise or receipt of (or the lapse of restrictions relating
to)
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(2) Last sentence of Section 7.B added pursuant to resolutions adopted by the
Compensation Committee on November 12, 2003.
8
such Award with a Fair Market Value equal to the amount of such taxes or (ii)
delivering to the Company Shares other than Shares issuable upon exercise or
receipt of (or the lapse of restrictions relating to) such Award with a Fair
Market Value equal to the amount of such taxes. The election, if any, must be
made on or before the date that the amount of tax to be withheld is determined.
Section 9. General Provisions
A. No Rights to Awards. No Eligible Person, Participant or other Person
shall have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Eligible Persons, Participants or
holders or beneficiaries of Awards under the Plan. The terms and conditions of
Awards need not be the same with respect to any Participant or with respect to
different Participants.
B. Plan Provisions Control. In the event that any provision of an Award
Agreement conflicts with or is inconsistent in any respect with the terms of the
Plan as set forth herein or subsequently amended, the terms of the Plan shall
control.
C. No Rights of Shareholders. Except with respect to Shares of Restricted
Stock as to which the Participant has been granted the right to vote, neither a
Participant nor the Participant's legal representative shall be, or have any of
the rights and privileges of, a stockholder of the Company with respect to any
Shares issuable to such Participant upon the exercise or payment of any Award,
in whole or in part, unless and until such Shares have been issued in the name
of such Participant or such Participant's legal representative without
restrictions thereto.
D. No Limit on Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or continuing in
effect other or additional compensation arrangements, and such arrangements may
be either generally applicable or applicable only in specific cases.
E. No Right to Employment. The grant of an Award shall not be construed as
giving a Participant the right to be retained in the employ of the Company or
any Affiliate, nor will it affect in any way the right of the Company or an
Affiliate to terminate such employment at any time, with or without cause. In
addition, the Company or an Affiliate may at any time dismiss a Participant from
employment free from any liability or any claim under the Plan or any Award,
unless otherwise expressly provided in the Plan or in any Award Agreement.
Nothing in this Plan shall confer on any person any legal or equitable right
against the Company or any Affiliate, directly or indirectly, or give rise to
any cause of action at law or in equity against the Company or an Affiliate. The
Awards granted hereunder shall not form any part of the wages or salary of any
Eligible Person for purposes of severance pay or termination indemnities,
irrespective of the reason for termination of employment. Under no circumstances
shall any person ceasing to be an employee of the Company or any Affiliate be
entitled to any compensation for any loss of any right or benefit under the Plan
which such employee might otherwise have enjoyed but for termination of
employment, whether such compensation is claimed by way of damages for wrongful
or unfair dismissal, breach of contract or otherwise. By participating in the
Plan, each Participant shall be deemed to have accepted all the conditions of
the Plan and the terms and conditions of any rules and regulations adopted by
the Committee and shall be fully bound thereby.
F. Governing Law. The validity, construction and effect of the Plan or any
Award, and any rules and regulations relating to the Plan or any Award, shall be
determined in accordance with the internal laws, and not the law of conflicts,
of the State of Delaware.
G. Severability. If any provision of the Plan or any Award is or becomes
or is deemed to be invalid, illegal or unenforceable in any jurisdiction or
would disqualify the Plan or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be so construed or deemed amended without, in
the determination of the Committee, materially altering the purpose or intent of
the Plan or the Award, such provision shall be stricken as to such jurisdiction
or Award, and the remainder of the Plan or any such Award shall remain in full
force and effect.
H. No Trust or Fund Created. Neither the Plan nor any Award shall create
or be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant
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or any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
I. Other Benefits. No compensation or benefit awarded to or realized by
any Participant under the Plan shall be included for the purpose of computing
such Participant's compensation under any compensation-based retirement,
disability, or similar plan of the Company unless required by law or otherwise
provided by such other plan.
J. No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award, and the Committee shall determine whether
cash shall be paid in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be canceled, terminated or otherwise
eliminated.
K. Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
Section 10. Effective Date of the Plan.
The Plan shall be effective on December 4, 2001 subject to approval by the
shareholders of the Company on such date.
Section 11. Term of the Plan.
No Award shall be granted under the Plan ten years after the effective
date or any earlier date of discontinuation or termination established pursuant
to Section 7A of the Plan. However, unless otherwise expressly provided in the
Plan or in an applicable Award Agreement, any Award theretofore granted may
extend beyond such date, and the authority of the Committee provided for
hereunder with respect to the Plan and any Awards, and the authority of the
Board to amend the Plan, shall extend beyond the termination of the Plan.
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