UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the Fiscal Year Ended June 30, 2004
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from __ to __.
Commission file number 0-12957
ENZON PHARMACEUTICALS, INC.(GRAPHIC)
(Exact name of registrant as specified in its charter)
DELAWARE 22-2372868
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
685 Route 202/206, Bridgewater, New Jersey 08807
(Address of principal executive offices) (zip code)
(908) 541-8600
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock, $.01 par value;
Preferred Stock Purchase Rights
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes |X| No |_|
Indicate by check mark if disclosure of delinquent filers pursuant to item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Exchange Act Rule 12b-2). Yes |X| No |_|
The aggregate market value of the Common Stock, par value $.01 per share,
held by non-affiliates based upon the reported last sale price of the Common
Stock on December 31, 2003, was approximately $516,057,000.
As of September 7, 2004, there were 43,756,134 shares of Common Stock, par
value $.01 per share, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's definitive Proxy Statement for the Annual
Meeting of Stockholders scheduled to be held on December 7, 2004, to be filed
with the Commission not later than 120 days after the close of the registrant's
fiscal year, has been incorporated by reference, in whole or in part, into Part
III Items 10, 11, 12, 13 and 14 of this Annual Report on Form 10-K.
ENZON PHARMACEUTICALS, INC.
2004 Form 10-K Annual Report
TABLE OF CONTENTS
Page
----
PART I
Item 1. Business 4
Item 2. Properties 33
Item 3. Legal Proceedings 34
Item 4. Submission of Matters to a Vote of Security Holders 34
PART II
Item 5. Market for the Registrant's Common Equity, Related Stockholder
Matters, and Issuer Purchases of Equity Securities 35
Item 6. Selected Financial Data 36
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 36
Item 7A. Quantitative and Qualitative Disclosures About Market Risk 61
Item 8. Financial Statements and Supplementary Data 62
Item 9. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure 62
Item 9A. Controls and Procedures 62
PART III
Item 10. Directors and Executive Officers of the Registrant 63
Item 11. Executive Compensation 63
Item 12. Security Ownership of Certain Beneficial Owners and Management
and Related Stockholder Matters 63
Item 13. Certain Relationships and Related Transactions 63
Item 14. Principal Accounting Fees and Services 63
PART IV
Item 15. Exhibits, Financial Statement Schedules and Reports on Form 8-K 64
ABELCET(R), ADAGEN(R), CLEAR(R), MARQIBO(R), ONCASPAR(R), and SCA(R) are our
registered trademarks. Other trademarks and trade names used in this annual
report are the property of their respective owners.
All information on this Form 10-K is as of September 13, 2004 and the Company
undertakes no obligation to update this information.
This Annual Report contains forward-looking statements, which can be identified
by the use of forward-looking terminology such as "believes," "expects," "may,"
"will," "should" or "anticipates" or the negative thereof, or other variations
thereof, or comparable terminology, or by discussions of strategy. No assurance
can be given that the future results covered by the forward-looking statements
will be achieved. The matters set forth in the section entitled Risk Factors in
Item 7, "Management's Discussion and Analysis of Financial Condition and Results
of Operations," constitute cautionary statements identifying important factors
with respect to such forward-looking statements, including certain risks and
uncertainties, that could cause actual results to vary materially from the
future results indicated in such forward-looking statements. Other factors could
also cause actual results to vary materially from the future results indicated
in such forward-
2
looking statements.
We maintain a website at www.enzon.com to provide information to the general
public and our stockholders on our products, resources and services along with
general information on Enzon and its management, career opportunities, financial
results and press releases. Copies of our most recent Annual Report on Form
10-K, our Quarterly Reports on Form 10-Q and our other reports filed with the
Securities and Exchange Commission, or SEC, can be obtained, free of charge as
soon as reasonably practicable after such material is electronically filed with,
or furnished to the SEC, from our Investor Relations Department by calling
908-541-8777, through an e-mail request from our website at
www.enzon.com/request or through the SEC's website by clicking the direct link
from our website at www.enzon.com/request or directly from the SEC's website at
www.sec.gov. Our website and the information contained therein or connected
thereto are not intended to be incorporated into this Annual Report on Form
10-K.
Our Board of Directors has adopted a Code of Conduct that is applicable to all
of our directors, officers and employees. Any material changes made to our Code
of Conduct or any waivers granted to any of our directors and executive officers
will be publicly disclosed by filing a current report on Form 8-K within five
business days of such material change or waiver. We intend to make copies of the
charters of the Finance and Audit Committee, the Nominating and Corporate
Governance Committee and the Compensation Committee of our Board of Directors,
which comply with the recently adopted corporate governance rules of the Nasdaq
National Market, available on our website at www.enzon.com. A copy of our Code
of Conduct is available upon request by contacting our Investor Relations
Department by calling 908-541-8777 or through an e-mail request from our website
at www.enzon.com/request.
3
PART I
Item 1. BUSINESS
Overview
We are a biopharmaceutical company that is focused on the discovery,
development, manufacture, and commercialization of pharmaceutical products in
three areas of therapeutic focus: oncology and hematology, transplantation, and
infectious disease. Our strategy is designed to broaden our revenues and product
pipeline through internal research and development efforts complemented by
strategic transactions that provide access to marketed products and promising
clinical compounds.
We have developed or acquired four human therapeutic products that we
currently market: ABELCET(R) (amphotericin B lipid complex injection),
ONCASPAR(R) (pegaspargase), ADAGEN(R) (pegademase bovine injection), and
DEPOCYT(R) (cytarabine liposome injection). We market our products through our
specialized North American sales force that calls upon oncologists,
hematologists, and specialists in the areas of transplantation and infectious
disease. We also receive royalties on sales of PEG-INTRON(R), a PEG-enhanced
version of Schering-Plough's product, INTRON(R) A (interferon alfa-2b,
recombinant), as well as a share of certain revenues received by Nektar
Therapeutics ("Nektar") on sales of Hoffmann-La Roche's PEGASYS(R), a
PEG-enhanced version of ROFERON(R)-A (interferon alfa-2a recombinant).
ABELCET is a lipid complex formulation of amphotericin B used primarily in
the hospital to treat immuno-compromised patients with invasive fungal
infections. It is indicated for the treatment of invasive systemic fungal
infections in patients who are intolerant of conventional amphotericin B therapy
or for whom conventional amphotericin B therapy has failed. ABELCET provides
patients with the broad-spectrum efficacy of conventional amphotericin B, while
causing significantly lower kidney toxicity than conventional amphotericin B.
ONCASPAR is a PEG-enhanced version of a naturally occurring enzyme called
L-asparaginase. It is currently approved in the U.S., Canada, and Germany and is
used in conjunction with other chemotherapeutics to treat patients with acute
lymphoblastic leukemia who are hypersensitive or allergic to native or
unmodified forms of L-asparaginase. ADAGEN is used to treat patients afflicted
with a type of Severe Combined Immunodeficiency Disease, or SCID, also known as
the Bubble Boy Disease, which is caused by the chronic deficiency of the
adenosine deaminase enzyme, or ADA. DEPOCYT is an injectable chemotherapeutic
approved for the treatment of patients with lymphomatous meningitis.
PEG-INTRON is a PEG-enhanced version of Schering-Plough's alpha interferon
product, INTRON A. We designed PEG-INTRON to allow for less frequent dosing and
to yield greater efficacy as compared to INTRON A. Our worldwide partner for
PEG-INTRON, Schering-Plough, has received approval in the United States and the
European Union for PEG-INTRON as a monotherapy and for use in combination with
REBETOL(R) (ribavirin, USP) capsules for the treatment of chronic hepatitis C in
adult patients not previously treated with alpha-interferon. In April 2004,
Schering-Plough reported that it has submitted a New Drug Application to the
Ministry of Health, Labor and Welfare ("MHLW") in Japan seeking marketing
approval in for PEG-INTRON in combination with REBETOL for the treatment of
chronic hepatitis C. The MHLW is conducting a priority review of the
application. PEG-INTRON is also being evaluated for use as long term maintenance
monotherapy in cirrhotic patients that have failed previous treatment (COPILOT
study). PEG-INTRON is also being evaluated in several investigator-sponsored
clinical trials, including a Phase 3 clinical trial for high risk malignant
melanoma, and several earlier stage clinical trials for other oncology
indications.
Our drug development programs focus on human therapeutics for
life-threatening diseases through applications of our macromolecular engineering
technology platform, including our proprietary PEG (polyethylene glycol)
modification and single-chain antibody (SCA(R)) technologies. We also complement
our internal research and development efforts with strategic transactions and
partnerships that provide access to promising clinical compounds. MARQIBO(R)
(vincristine sulfate liposomes injection), which was formerly referred to as
Onco TCS and which we are jointly developing with our partner Inex
Pharmaceuticals Corporation ("Inex"), is currently being evaluated for marketing
approval by the United States Food and Drug Administration ("FDA"). We are also
internally developing two late-stage clinical compounds, Pegamotecan and ATG
FRESENIUS S, and we have various other compounds at earlier stages of
development that we are developing independently or
4
through strategic partnerships.
MARQIBO was designed to increase the effectiveness and reduce the side
effects of the widely used, off-patent, anticancer drug vincristine. MARQIBO is
vincristine encapsulated in Inex's proprietary sphingosomal drug delivery
technology. In January 2004, we entered into a North American development and
commercialization agreement with Inex for MARQIBO. MARQIBO is based on Inex's
novel sphingsomal drug delivery technology, which by loading vincristine into
lipid carriers provides prolonged blood circulation and accumulation and
extended drug release at the tumor sites. In preclinical studies, MARQIBO has
been shown to offer a sustained delivery of vincristine at tumor sites. These
characteristics are intended to increase the effectiveness and reduce the
adverse effects of MARQIBO, as compared to vincristine. In May 2004, the FDA
accepted a New Drug Application ("NDA") seeking marketing approval for MARQIBO
as a single-agent treatment for relapsed aggressive non-Hodgkin's lymphoma
("NHL") for patients previously treated with at least two combination
chemotherapy regimens. The target date for completion of FDA review is January
15, 2005. In addition to relapsed, aggressive NHL, along with Inex, we are also
exploring the development of MARQIBO for a variety of other cancers including
first-line aggressive NHL in combination with other chemotherapeutic agents.
Pegamotecan is a PEG-enhanced version of camptothecin, a compound in the
class of molecules called topoisomerase I inhibitors. Camptothecin has been
shown in clinical testing to be potent against certain tumor types, but its
previous clinical development by others has been discontinued due to significant
side effects and poor solubility. We have demonstrated in preclinical studies
that Pegamotecan preferentially accumulates in tumors and has comparable or
better efficacy compared to other cytotoxic compounds, including a currently
marketed topoisomerase I inhibitor. In January 2004, patient dosing was
initiated in a pivotal clinical trial designed to evaluate Pegamotecan as a
single-agent therapy for the treatment of gastric and gastroesophageal junction
cancers in patients who had received prior chemotherapy.
ATG-FRESENIUS S is a polyclonal antibody preparation used for T-lymphocyte
suppression in organ transplant patients in order to prevent organ graft
rejection. ATG-FRESENIUS S is currently marketed by Fresenius Biotech GmbH
("Fresenius") in over 60 countries worldwide. In June 2003, we in-licensed the
North American rights to ATG-FRESENIUS S from Fresenius. We believe
ATG-FRESENIUS S has advantages over competitive monoclonal antibody products on
the market because unlike monoclonal antibodies, which target one specific
receptor, polyclonal antibodies target numerous receptors in the immunologic
process. We also believe ATG-FRESENIUS has advantages over other polyclonal
antibody products on the market because the product preferentially targets and
depletes only activated T-cells, rather than activated and non-activated
T-cells. The activated T-cells are those which may potentially result in an
immunologic attack on the transplanted organ leading to its rejection. For solid
organ transplantation, ATG-FRESENIUS S has been shown to be effective, typically
leading to a substantial improvement of graft survival. Clinicians have
demonstrated that ATG-FRESENIUS S can be administered conveniently as a single
high dose just prior to the surgical procedure. Moreover, clinicians have
reported using ATG-FRESENIUS S for conditioning regimens and prevention of graft
versus host disease in bone marrow transplantation. We intend to pursue
marketing approval for ATG-FRESENIUS S in the U.S. by initiating a pivotal
clinical trail for this product subject to, and in accordance with, the U.S.
Food and Drug Administration (FDA) requirements during the second half of
calendar year 2004.
We have also out-licensed our proprietary PEG and SCA technology on our
own and through our strategic partners Nektar Therapeutics ("Nektar") and
Micromet AG ("Micromet"). There are currently two PEG products licensed through
our Nektar partnership in late-stage clinical development, MACUGEN(TM)
(pegaptanib sodium injection) for age-related macular degeneration and diabetic
macular edema and Celltech Group's CDP870, an anti-TNF-alpha PEGylated antibody
fragment in development for the treatment of rheumatoid arthritis and Crohn's
disease. In August 2004, Eyetech Pharmaceuticals, Inc. and its worldwide
development and commercialization partner, Pfizer, announced the FDA's
acceptance of an NDA for MACUGEN(TM) for the treatment of neovascular
age-related macular degeneration. The FDA has designated the MACUGEN(TM) NDA for
Priority Review.
We manufacture ABELCET, ADAGEN, and ONCASPAR in two facilities in the
United States. DEPOCYT is manufactured by SkyePharma. PEG-INTRON is manufactured
and marketed by Schering-
5
Plough.
Marketed Products
ABELCET
ABELCET is a lipid complex formulation of amphotericin B used primarily in
the hospital to treat immuno-compromised patients with invasive fungal
infections. It is indicated for the treatment of invasive systemic fungal
infections in patients who are intolerant of conventional amphotericin B therapy
or for whom conventional amphotericin B therapy has failed. ABELCET provides
patients with the broad-spectrum efficacy of conventional amphotericin B, while
providing significantly lower kidney toxicity than amphotericin B.
We acquired the North American rights to ABELCET from Elan in November
2002 for $360.0 million, plus acquisition costs. As part of the acquisition, we
also acquired the operating assets associated with the development, manufacture,
sales and marketing of ABELCET in North America, including a 56,000 square foot
manufacturing facility in Indianapolis, Indiana. In addition to North American
distribution rights we also acquired the rights to develop the product in Japan.
Invasive fungal infections are life-threatening complications often
affecting patients with compromised immune systems, such as those suffering from
cancer, HIV, and recipients of organ or bone marrow transplants. They can be
caused by a multitude of different fungal pathogens that attack the patient's
weakened immune system. Effective treatment is critical and can mean the
difference between life and death, and often must be initiated even in the
absence of a specific diagnosis.
The increase in severe fungal infections is primarily driven by advances
in medical treatment, such as increasingly aggressive chemotherapy procedures
and advances in organ and bone marrow transplantation procedures. These advances
have caused an increase in the number of immuno-compromised patients who are at
risk from a variety of fungal infections, which are normally combated by an
individual's healthy immune system. For these patients, such infections
represent a major mortality risk.
Amphotericin B, the active ingredient in ABELCET, is a broad-spectrum
polyene anti-fungal agent that is believed to act by penetrating the cell wall
of a fungus, thereby killing it. In its conventional form, amphotericin B is
particularly toxic to the kidneys, an adverse effect that often restricts the
amount that can be administered to a patient. While still exhibiting residual
nephrotoxicity, ABELCET is able to deliver therapeutic levels of amphotericin B
while significantly reducing the kidney toxicity associated with the
conventional drug.
It has been suggested in published papers that the enhanced therapeutic
index of ABELCET relative to conventional amphotericin B is due in part to the
selective release of active amphotericin B at the sites of infection. It has
also been suggested that this release may occur through the action of
phospholipases that are released by the fungus itself or by activated host
cells, including phagocytic, vascular smooth muscle, or capillary endothelial
cells.
The clinical utility of ABELCET has been documented in a multi-center
database developed for clinicians to share and exchange information regarding
the clinical course of invasive fungal infections and clinical experience with
ABELCET. The Collaborative Exchange of Antifungal Research (CLEAR(R)) database
is one of the most comprehensive registries in fungal disease. CLEAR encompasses
retrospectively gathered data from over 3,500 patient records, collected from
1996 to 2000 from over 120 institutions in the United States and Canada.
The CLEAR database supports the efficacy and safety of ABELCET across a
wide spectrum of fungal pathogens (both yeasts and molds) and broad spectrum of
patients. Additionally and of particular significance, the CLEAR database also
documents the efficacy and safety of ABELCET in rapidly emerging, more difficult
to treat and often treatment resistant pathogens such as Fusarium, Zygomycetes,
and Candida (Krusei and Glabrata). The CLEAR registry reflects the largest known
registry in these emerging fungal pathogens.
6
In March 2004, to build upon the value of our CLEAR patient registry, we
launched CLEAR II(TM). CLEAR II(TM) is a multi-center registry developed by and
for clinicians to share and exchange information regarding the clinical course
of invasive fungal infections and clinical experience with ABELCET, and other
antifungal drugs. We developed CLEAR II(TM) together with former CLEAR steering
committee members, clinicians, and other advisors. CLEAR II(TM) utilizes the
speed and flexibility of web-based data collection to provide participating
research centers with online, real-time data that is collected from patients in
multiple sites across North America and accessed via the internet. Unlike the
CLEAR database, which is limited to clinical experience with ABELCET, CLEAR
II(TM) will also include data on patients treated with other antifungal agents.
ONCASPAR
ONCASPAR is a PEG-enhanced version of a naturally occurring enzyme called
L-asparaginase from E. coli. It is currently approved in the U.S., Canada, and
Germany and is used in conjunction with other chemotherapeutics to treat
patients with acute lymphoblastic leukemia who are hypersensitive or allergic to
native, i.e., unmodified, forms of L-asparaginase. We received United States
marketing approval from the FDA for ONCASPAR in February 1994. During 2002, we
amended our license agreement with Aventis Pharmaceuticals, Inc. U.S.
("Aventis") to reacquire the rights to market and distribute ONCASPAR in the
United States, Canada, Mexico, and the Asia/Pacific region in return for a
payment of $15.0 million and a royalty of 25% on our net sales of the product
through 2014. MEDAC GmbH has the exclusive right to market ONCASPAR in most of
Europe and parts of Asia.
L-asparaginase is an enzyme which depletes the amino acid asparagine,
which certain leukemic cells are dependent upon for survival. Other companies
market unmodified L-asparaginase in the U.S. for pediatric acute lymphoblastic
leukemia and in Europe to treat adult acute lymphoblastic leukemia,
non-Hodgkin's lymphoma, and pediatric acute lymphoblastic leukemia. The
therapeutic value of unmodified L-asparaginase is limited by its short
half-life, which requires every-other-day injections, and its propensity to
cause a high incidence of allergic reactions. We believe that ONCASPAR offers
significant therapeutic advantages over unmodified L-asparaginase. ONCASPAR has
a significantly increased half-life in blood, allowing every-other-week
administration, and it causes fewer allergic reactions.
ADAGEN
ADAGEN is used to treat patients afflicted with a type of Severe Combined
Immunodeficiency Disease, or SCID, also known as the Bubble Boy Disease, which
is caused by the chronic deficiency of the adenosine deaminase enzyme ("ADA").
We received United States marketing approval from the FDA for ADAGEN in March
1990, ADAGEN represents the first successful application of enzyme replacement
therapy for an inherited disease. SCID results in children being born without
fully functioning immune systems, leaving them susceptible to a wide range of
infectious diseases. Currently, the only alternative to ADAGEN treatment is a
well-matched bone marrow transplant. Injections of unmodified ADA are not
effective because of its short circulating life (less than 30 minutes) and the
potential for immunogenic reactions to a bovine-sourced enzyme. The attachment
of PEG to ADA allows ADA to achieve its full therapeutic effect by increasing
its circulating life and masking the ADA to avoid immunogenic reactions.
The ADA enzyme in ADAGEN is obtained from bovine intestine. We purchase
this enzyme from the world's only FDA-approved supplier, Hoffmann-LaRoche
Diagnostics GmbH ("Roche Diagnostics"), based in Germany, which until 2002
supplied ADA derived from cattle in Germany. In November 2000, bovine spongiform
encephalopathy ("BSE"), also known as mad cow disease, was detected in certain
cattle herds in Germany. During 2002, in order to comply with FDA requirements,
our supplier secured a new source of bovine intestines from New Zealand, which
has no confirmed cases of BSE in its cattle herds. There is evidence of a link
between the agent that causes BSE in cattle and a new variant form of
Creutzfeld-Jakob disease or nvCJD in humans. Based upon the use of certain
purification steps taken in the manufacture of ADAGEN and from our analysis of
relevant information concerning this issue, we consider the risk of product
contamination to be low. However, the lengthy incubation period of BSE and the
absence of a validated test for the BSE agent in pharmaceutical products make it
impossible to be absolutely certain that ADAGEN is free of the agent that causes
nvCJD. To date, cases of nvCJD have been rare in the United Kingdom, where large
numbers of BSE-infected cattle are
7
known to have entered the human food chain. To date, no cases of nvCJD have been
linked to ADAGEN or, to our knowledge, any other pharmaceutical product,
including vaccines manufactured using bovine derived materials from countries
where BSE has been detected. Nonetheless, at the present time, there may be some
risk that bovine-derived pharmaceutical products, including ADAGEN, could give
rise to nvCJD.
In September, 2003, Roche Diagnostics notified us that it has elected to
terminate our ADA supply agreement as of as of June 12, 2004. We are currently
seeking to develop recombinant ADA as an alternative to the bovine derived
product. This is a difficult and expensive undertaking as to which success
cannot be assured. Roche Diagnostics has indicated that it will continue to
supply us with our requirements of ADA for a reasonable period of time after
termination of our supply agreement as we work to develop another source of ADA.
If we are unable to secure an alternative source of ADA before Roche Diagnostics
discontinues supplying the material to us, we will likely experience inventory
shortages and potentially a period of product unavailability and/or a long term
inability to produce ADAGEN. If this occurs, it will have a measurable (and
potentially material) negative impact on our business and results of operations
and it could potentially result in significant reputational harm and regulatory
difficulties.
We are marketing ADAGEN on a worldwide basis. We utilize independent
distributors in certain territories including the United States, Europe and
Australia. Currently, 78 patients in 13 countries are receiving ADAGEN therapy.
We believe some newborns with ADA-deficient SCID go undiagnosed and we are
therefore focusing our marketing efforts for ADAGEN on new patient
identification.
We are required to maintain a permit from the United States Department of
Agriculture ("USDA") in order to import ADA. This permit must be renewed on an
annual basis. As of October 1, 2003, the USDA issued a permit to us to import
ADA through October 1, 2004.
DEPOCYT
DEPOCYT is an injectable chemotherapeutic approved for the treatment of
patients with lymphomatous meningitis. It is a sustained release formulation of
the chemotherapeutic agent, cytarabine or Ara-C. DEPOCYT gradually releases
cytarabine into the cerebral spinal fluid (CSF) resulting in a significantly
extended half-life, prolonging the exposure to the therapy and allowing for more
uniform CSF distribution. This extends the dosing interval to once every two
weeks, as compared to the standard twice-weekly intrathecal chemotherapy dosing
of cytarabine. We acquired the North American rights to DEPOCYT from SkyePharma
in December 2002.
Lymphomatous meningitis is a debilitating form of neoplastic meningitis, a
complication of cancer that is characterized by the spread of cancer to the
central nervous system and the formation of secondary tumors within the thin
membranes surrounding the brain. Neoplastic meningitis can affect all levels of
the central nervous system, including the cerebral hemispheres, cranial nerves,
and spinal cord. Symptoms can include numbness or weakness in the extremities,
pain, sensory loss, double-vision, loss of vision, hearing problems, and
headaches. Neoplastic meningitis is often not recognized or diagnosed in
clinical practice. Autopsy studies have found higher rates of neoplastic
meningitis than those observed in clinical practice. These autopsy studies
suggest that 5% of all cancer patients will develop neoplastic meningitis during
the course of their illness.
In a randomized, multi-center trial of patients with lymphomatous
meningitis, treated either with 50 mg of DEPOCYT administered every 2 weeks or
standard intrathecal chemotherapy administered twice a week, DEPOCYT achieved a
complete response rate of 41% compared with a complete response rate of 6% for
unencapsulated cytarabine. In this study, complete response was prospectively
defined as (i) conversion of positive to negative CSF cytology and (ii) the
absence of neurologic progression. DEPOCYT also demonstrated an increase in the
time to neurologic progression of 78.5 days for DEPOCYT versus 42 days for
unencapsulated cytarabine. There are no controlled trials, however, that
demonstrate a clinical benefit resulting from this treatment, such as
improvement in disease related symptoms, increased time to disease progression,
or increased survival.
PEG-INTRON
PEG-INTRON is a PEG-enhanced version of Schering-Plough's recombinant
alpha-interferon product INTRON A. Linking INTRON A to PEG results not only in a
prolonged half-life, allowing for once weekly
8
dosing, but also greater efficacy as compared to unmodified INTRON-A.
Schering-Plough currently markets INTRON A for 16 major antiviral and oncology
indications worldwide. Historically the largest indication for INTRON A is
hepatitis C. INTRON A is also used to treat certain types of cancer. Our
worldwide partner for PEG-INTRON, Schering-Plough, has received approval for the
treatment of adult patients with chronic hepatitis C as a monotherapy and in
combination with REBETOL capsules in the United States and the European Union.
Schering-Plough has also submitted a New Drug Application in Japan seeking
marketing approval for PEG-INTRON in combination with REBETOL for the treatment
of chronic hepatitis C. Schering-Plough is also evaluating PEG-INTRON as a long
term maintenance monotherapy (COPILOT study) and in a separate study, PEG-INTRON
is being evaluated in combination with REBETOL as a treatment for hepatitis C
patients who did not respond to or had relapsed following previous
interferon-based therapy. PEG-INTRON is also being evaluated in several
investigator-sponsored trials as a potential treatment for various cancers,
including a Phase 3 study for high risk malignant melanoma.
Under our licensing agreement with Schering-Plough, we have received
milestone payments and we receive royalties on Schering-Plough's worldwide sales
of PEG-INTRON. Schering-Plough is responsible for all manufacturing, marketing
and development activities for PEG-INTRON.
Hepatitis C
Hepatitis C represents a serious and widespread disease affecting millions
of people worldwide. According to the World Health Organization, there are
approximately 170 million chronic cases of hepatitis C worldwide.
According to The Centers for Disease Control and Prevention there are
approximately 3.9 million Americans infected with the hepatitis C virus (HCV),
of whom approximately 2.7 million are characterized as having chronic hepatitis
C infection. A substantial number of people in the United States who were
infected with hepatitis C more than 10 years ago are thought to have contracted
the virus through blood transfusions. Prior to 1992, the blood supply was not
screened for the hepatitis C virus. In addition, the majority of people infected
with the virus are thought to be unaware of the infection because the hepatitis
C virus can incubate for 10 or more years before patients become symptomatic.
Schering-Plough estimates that of 3.9 million Americans infected with HCV, only
1 million have been diagnosed and, of that number, about half are going
untreated.
We believe that the number of people infected with the hepatitis C virus
in Europe is comparable to that in the United States. Japan is another very
large hepatitis C market, with an estimated 2 million people infected with HCV.
Schering-Plough states that it is the market leader today in Japan with its
INTRON A and REBETOL combination therapy, and is moving forward with its plans
to introduce the combination PEG-INTRON/REBETOL treatment for chronic hepatitis
C.
In the pivotal Phase III clinical study results, Schering-Plough reported
that PEG-INTRON plus REBETOL achieved an overall rate of sustained virologic
response ("SVR") of 54% in previously untreated adult patients with chronic
hepatitis C, compared to 47% for patients treated with REBETRON (INTRON A plus
REBETOL). When analyzed on an optimized dose/body-weight basis, SVR was 61%. In
2001, researchers performed a retrospective analysis on the pivotal clinical
data in a study designed to evaluate the effect of adherence to therapy on
treatment outcome for HCV patients receiving PEG-INTRON and REBETOL. Analysis of
SVR rates according to patient compliance during therapy showed that patients
receiving greater than or equal to 80% of their total interferon dose and
greater than or equal to 80% of their ribavirin dose for greater than or equal
to 80% of the expected duration of therapy had enhanced SVR rates compared to
patients who were not adherent to therapy.
During June 2002, the National Institutes of Health (NIH) issued a
consensus statement asserting that the most effective treatment for hepatitis C
is combination therapy with PEGylated interferon and ribavirin for a period of
48 weeks. The consensus statement also provided recommendations on how to
broaden the treatment population as well as how to prevent transmission of the
virus.
Hoffmann-La Roche markets PEGASYS, a PEGylated version of its alpha
interferon product ROFERON-A, in both North America and Europe. PEGASYS competes
directly with PEG-INTRON. Schering-Plough and Hoffmann-LaRoche have been the
major competitors in the global alpha-interferon
9
hepatitis C market since the approval of INTRON A and ROFERON-A. Since its
launch in December 2002, PEGASYS has taken market share away from PEG-INTRON and
the overall market for pegylated alpha interferon in the treatment of hepatitis
C has not increased sufficiently to offset the effect PEGASYS sales have had on
sales of PEG-INTRON. As a result, quarterly sales of PEG-INTRON and the
royalties we receive on those sales have declined in recent quarters. We cannot
assure you that PEGASYS will not continue to gain market share at the expense of
PEG-INTRON, which could result in lower PEG-INTRON sales and lower royalties to
us.
PEG-INTRON is the only pegylated alpha interferon product approved for
dosing according to patient body weight, an important factor that affects
patient response to pegylated alpha interferon treatment. Schering-Plough
initiated a new marketing campaign in the fall of 2003 to reinforce the efficacy
message of weight-based therapy with PEG-INTRON in combination with REBETOL and
has intensified its efforts to stabilize and recapture market share in order to
regain global leadership in the hepatitis C market.
In February 2004, Schering-Plough launched the PEG-INTRON REDIPEN(TM)
injection. The PEG-INTRON REDIPEN provides the proven efficacy of PEG-INTRON in
an easy-to-use precision dosing pen that replaces a traditional vial and
syringe. Currently, it is the only pen delivery system approved for
administering PEGylated alpha interferon therapy.
In May 2004, a nationwide clinical study was initiated involving 2,880
patients that will directly compare PEG-INTRON versus PEGASYS, both used in
combination with ribavirin (IDEAL study). Schering-Plough, in collaboration with
leading medical centers, is conducting the comparative study in response to
requests by the hepatitis C medical and patient communities, and to clear up
misperceptions in the marketplace about PEG-INTRON and PEGASYS. The trial will
compare the efficacy and safety of individualized weight-based dosing with
PEG-INTRON and REBETOL versus PEGASYS, which is administered as a fixed dose to
all patients regardless of individual body weight, and COPEGUS(R) (ribavirin,
USP) dosed either at 1,000 mg or 1,200 mg, in U.S. patients with genotype 1
chronic hepatitis C. Genotype 1 of the hepatitis C virus is the most common
worldwide, the most difficult to treat successfully, and accounts for about 70%
of hepatitis C infections among Americans.
Cancer
INTRON A is also used in the treatment of cancer and is approved for
several indications worldwide, including adjuvant treatment to surgery in
patients with malignant melanoma. PEG-INTRON is being evaluated in several
investigator-sponsored clinical trials, including a Phase 3 clinical trial for
high-risk malignant melanoma. PEG-INTRON is also being evaluated in several
Phase 2 studies as a stand-alone drug or in combination therapy. Two Phase 2
studies are being conducted to evaluate PEG-INTRON alone and in combination with
thalidomide in patients with gliomas and a Phase 2 study is being conducted to
evaluate PEG-INTRON in combination with the monoclonal antibody Avastin(R)
(bavacizumab) for patients with gastrointestinal carcinoid tumors. PEG-INTRON is
also being evaluated in several Phase 2 studies as a potential treatment for
ovarian epithelial, peritoneal cavity or fallopian tube cancers; metastatic
kidney cancer; and stage IV melanoma.
Products Under Development
MARQIBO(R)
In January 2004, we entered into a strategic partnership with Inex to
develop and commercialize Inex's proprietary oncology product MARQIBO
(vincristine sulfate liposomes injection), formerly referred to as Onco TCS.
MARQIBO is comprised of the widely used, off-patent, anticancer drug
vincristine, encapsulated in Inex's sphingosomal technology. Vincristine belongs
to the class of anti-cancer compounds known as mitotic inhibitors. Mitotic
inhibitors can inhibit or stop mitosis or inhibit enzymes from making proteins
needed for the reproduction of the cancer cell. Mitotic inhibitors interfere
with the cell cycle of cell division, working during the M phase of the cell
cycle.
Vincristine's potency has resulted in it being a long-standing cornerstone
in many chemotherapy
10
regimens. However when administered in its native form at its indicated
therapeutic dose, patients often experience dose-limiting neurotoxicities.
Consequently, physicians often cap the dosage at a maximum of 2.0 mg per dose,
which we believe may prevent the optimal dose of native vincristine from being
administered. In clinical studies MARQIBO was safely administered at
approximately twice the dose intensity, thus potentially offering increased
efficacy, as compared to vincristine.
In preclinical studies, sphingosomal technology has been shown to offer a
targeted, increased, and sustained delivery of vincristine to tumor sites. These
combined benefits may provide an extended window for MARQIBO to kill cancer
cells during mitosis, a brief but critical phase during cell growth and
division.
In clinical studies, MARQIBO has been administered safely at uncapped
doses, which significantly exceeded the dose levels typically administered for
conventional vincristine, while maintaining a similar side effect profile to
vincristine.
In the multi-center pivotal Phase 2/3 trial 119 NHL patients who had not
responded to their previous therapy or had responded and subsequently relapsed
were treated with MARQIBO. MARQIBO was administered at 2.0 mg/m2 with no dosage
cap as a one hour infusion every two weeks. Prior to enrollment in this study,
the 119 patients had received on average four other therapies and 72% had
disease that was "resistant" to their last treatment. "Resistant" disease is
defined as not responding to their previous treatment or relapsing within six
months after their previous treatment. After treatment with MARQIBO, the overall
response rate was 25%, including seven patients (6% of patients) whose tumors
were completely eliminated (complete response) and 23 patients (19% of patients)
whose tumor volume was reduced by more than 50% (partial response). An
additional 31 patients (26% of patients) had their disease stabilized while
being treated with MARQIBO.
The median duration of response for the 30 responding patients was
approximately three months from first documentation of response as measured by
computed tomography imaging (CT scan), which is typically taken approximately 2
months after the start of treatment. The primary side effect in the pivotal
study was neurotoxicity, which is the typical side effect seen with vincristine,
the active agent in MARQIBO. The neurotoxic effects were observed primarily
after many treatment cycles, whereas signs of efficacy were typically observed
within the first weeks of treatment. All patients had prior exposure to
neurotoxic agents.
In May 2004, the FDA accepted an NDA for MARQIBO. The target date for
completion of review of the NDA is January 15, 2005. The NDA is seeking
marketing approval for MARQIBO as a single-agent treatment for patients with
relapsed aggressive non-Hodgkin's lymphoma (NHL) previously treated with at
least two combination chemotherapy regimens.
The NDA was submitted under the provisions of Subpart H of the Food, Drug
and Cosmetic Act. The Accelerated Approval regulations are intended to make
promising products for life-threatening diseases available to the market on the
basis of preliminary evidence prior to formal demonstration of patient benefit.
These regulations provide a path to approval using clinical data from a
single-arm trial. The risk of non-approval with an NDA submitted under Subpart H
is higher than those associated with a standard NDA review because of, among
other things, the smaller number of patients and more limited data. To the
extent the FDA challenges or invalidates any of the clinical trial data, the
risks are greater with a Subpart H review that the remaining data will not be
sufficient to support regulatory approval. Even if approval is obtained,
approvals granted under Subpart H are provisional and require a written
commitment to complete post-approval clinical studies that formally demonstrate
patient benefit. Securing FDA approval based on a single-arm trial, such as the
trial underlying the MARQIBO NDA, is a particular challenge and approval can
never be assured. If approved, we plan to market MARQIBO through our North
American specialty sales force, which currently targets the oncology market.
In addition to relapsed aggressive NHL, along with Inex we are also
exploring the development of MARQIBO for a variety of other cancers, including
Hodgkin's disease, acute lymphoblastic leukemia, pediatric malignancies, and
first-line aggressive NHL in combination with other chemotherapeutic agents.
The current standard first-line treatment for the aggressive form of NHL
is the CHOP chemotherapy
11
combination, comprising the drugs cyclophosphamide, doxorubicin hydrochloride,
ONCOVIN(R) (vincristine) and prednisone, every three weeks for six to eight
cycles.
In June 2004 at the Annual Meeting of the American Society of Clinical
Oncology (ASCO), clinicians presented follow-up results from a Phase 2
open-label trial conducted at The University of Texas M. D. Anderson Cancer
Center in Houston, Texas in which patients were treated with CHOP in which the
ONCOVIN(R) (vincristine) component was substituted with MARQIBO. In this trial,
those patients diagnosed with B-cell lymphoma also received RITUXAN(R)
(rituximab).
Of the 68 evaluable patients 63 patients, or 93% of patients, responded to
the therapy. Sixty-two patients had their tumors completely eliminated for a
complete response rate of 91% and one patient's tumor volume decreased by more
than 50% for a partial response rate of 1% and an overall response rate of 93%.
Of the 68 patients, 37 patients were over the age of 60 years and 91% of
these patients were complete responders. In the 31 patients under the age of 60
years, 90% were complete responders and 3% were partial responders. Treatment
was well tolerated by both groups with 6% of patients withdrawing from treatment
due to adverse events.
Investigators also presented positive patient survival data. At a median
follow-up of 22 months, median progression-free survival and median overall
survival had not yet been reached. Overall survival was 99% (one death) and
progression-free survival was 87% (nine relapses). Progression-free survival for
the elderly patient group was 86% (five relapses) and 87% for the younger
patient group (four relapses).
In addition to NHL, vincristine is also used in treatment regimens for
Hodgkin's disease, acute lymphoblastic leukemia, multiple myeloma, and other
solid tumors. We have estimated that in 2002, approximately 100,000 patients
were treated with vincristine and nearly 57% of those patients were NHL
patients.
NHL is the fifth-leading cause of cancer deaths in the U.S. (23,400
estimated in 2003) and the sixth-leading cause of cancer deaths in Canada (2,800
estimated in 2003), according to estimates of the American and Canadian Cancer
Societies. According to the American Cancer Society, an estimated 54,370 new
cases of NHL will be diagnosed with, and an estimated 19,410 people will die of,
NHL in the U.S. in 2004.
PEGAMOTECAN
Pegamotecan is a PEG-enhanced version of camptothecin, a small molecule
that is a potent anticancer compound in the class of topoisomerase I inhibitors.
Camptothecin was originally developed at the National Institutes of Health
("NIH") and is now off patent.
For many years, camptothecin has been known to be a highly potent
cytotoxic agent but its low solubility and systemic toxicity has rendered the
product not suitable for human use. Two camptothecin derivatives, topotecan and
irinotecan, have been approved by the FDA for the treatment of small-cell lung,
ovarian, and colorectal cancers. These two products together achieved 2002
worldwide sales of approximately $970 million.
We have linked PEG and camptothecin so that it forms a prodrug, i.e., a
compound that is converted into the active drug within the body. The PEG
component confers a long circulating half-life and allows the compound to
accumulate in tumor sites. Animal tests have shown that Pegamotecan has better
or equal efficacy compared to other cytotoxic compounds, including other
topoisomerase I inhibitors. At the June 2004 ASCO meeting, clinical
investigators presented results from a Phase 2 study in which Pegamotecan was
evaluated as a single-agent treatment for gastric and gastroesophageal junction
cancers. In this open-label study, 35 patients with gastric and gastroesophageal
junction cancers were treated, of which 28 patients were treatment naive and
seven patients had received one prior chemotherapy regimen. Of the 35 patients
treated, 19 or 54% experienced a response or stabilization of disease. Five
patients (14%) achieved a partial response and 14 patients (40%) experienced
stable disease. Additionally, Pegamotecan showed promising activity based on
12
time to response and duration of response. For those patients that achieved a
partial response, the median time to response was 46 days, with a range of 40
days to 124 days, and the median duration of response was 127 days, with a range
of 108 days to 208 days.
In January 2004 we initiated patient dosing in a clinical trial designed
to evaluate Pegamotecan as a single-agent therapy for gastric and
gastroesophageal junction cancers in patients whose disease progressed following
prior chemotherapy. We are focusing our late-stage Pegamotecan development
program on second-line therapy for gastric and gastroesophageal junction
cancers, as there are no single-agent drug approvals for these indications and
therefore, these indications offer the potential to qualify for Accelerated
Approval under Subpart H of the U.S. Food and Drug Act.
The annual incidence of adenocarcinoma of the stomach and gastroesophageal
junction is approximately 800,000 new cases worldwide, with approximately 24,000
of these occurring in the United States. The median survival for patients with
advanced stages of these cancers from the time of diagnosis is approximately 7-8
months, and there is currently no drug approved for second-line treatment.
ATG-FRESENIUS S
ATG-FRESENIUS S is a polyclonal antibody preparation used for T-lymphocyte
suppression in organ transplant patients, which we in-licensed in June 2003 for
North American development and marketing from Fresenius Biotech GmbH
("Fresenius"). ATG-FRESENIUS S was first approved in September 1983 in Germany
for the prevention and treatment of acute rejection in solid organ
transplantation. To date, more than 40,000 patients in over 60 countries outside
the United States have used ATG-FRESENIUS S. Currently, the product is not
approved for use in North America.
Dramatic advances in immunology, surgery, and tissue preservation have
transformed organ transplantation from experimental to routine over the past few
decades. Of the world's seven major pharmaceutical markets (U.S., France,
Germany, Italy, Spain, UK, and Japan), the U.S. is by far the single largest
solid organ transplant market. According to the United Network for Organ Sharing
or UNOS, in 2003 the U.S. accounted for over 23,000 organ transplantations. Of
this total, nearly 14,000 were kidney transplants.
The immune system includes a host of targets that are impacted by the
transplant process. Monoclonal antibodies will, by definition, target only one
specific receptor such as the IL-2 receptor (Simulect/Zenapax). ATG-FRESENIUS S
is a polyclonal antibody preparation that binds to a number of targets
simultaneously, providing potentially enhanced efficacy through a more
comprehensive treatment of the immunological cascade. Thymoglobulin(R)
(anti-thymocyte globulin (rabbit)), which is marketed by Genzyme in the U.S., is
the market leading polyclonal antibody preparation for the prevention of organ
rejection in kidney transplant patients in the U.S. ATG-FRESENIUS S differs from
Thymoglobulin in a number of significant ways, particularly because it
preferentially targets and depletes only activated T-cells, rather than
activated and non-activated T-cells, leading us to believe it will emerge
successfully in the clinic and allow us to compete in the market effectively.
Under our agreement with Fresenius, we are responsible for North American
clinical development and regulatory approval, and Fresenius is responsible for
supplying the drug and all manufacturing aspects necessary to obtain U.S.
regulatory approval. For the first indication (prevention of rejection in solid
organ transplantation) Fresenius will provide clinical supplies at no charge to
us. In September 2004 we made a milestone payment to Fresenius of $1.0 million
upon FDA approval of an Investigational New Drug Application ("IND") for
ATG-FRESENIUS S and we are obligated to make another milestone payment of $1.0
million upon submission of a Biologics License Application ("BLA"). Subject to
and in accordance with FDA requirements, we expect to initiate a pivotal
clinical trial for ATG FRESENIUS S for the prophylaxis of acute organ rejection
in patients receiving an organ graft before the end of calendar 2004.
SS1P
SS1P is a fusion protein, or immunotoxin, consisting of a disulfide linked
antibody fragment linked to domains II and III of Pseudomonas exotoxin A. The
antibody fragment targets mesothelin, a cell surface
13
antigen over expressed in mesothelioma, ovarian and pancreatic cancers.
Importantly, mesothelin is only minimally expressed in normal pancreas,
pancreatitis (inflammation of the pancreas), benign pancreatic adenoma, or
elsewhere in the body.
In November 2003, we announced a Collaborative Research and Development
Agreement (CRADA) with the NIH. The development program will center on the
recombinant immunotoxin SS1P.
Currently, the National Cancer Institute ("NCI") is conducting Phase 1
studies to determine the optimal dosing regimen and maximum tolerated dose for
SS1P. Together with the NCI, we plan to begin a Phase 2 clinical trial during
the first half of calendar 2005. Our development plan will initially focus on
mesothelioma and pancreatic cancer.
Preclinical Pipeline
Our macromolecular engineering platform may be applicable to other
potential products. We are currently conducting preclinical studies with respect
to additional PEG-enhanced and SCA compounds. We will continue to seek
opportunities to develop and commercialize other PEG-enhanced products on our
own and through co-commercialization partnerships.
As part of our strategic alliance with Micromet, we have generated several
new SCA compounds against undisclosed targets in the fields of inflammatory and
autoimmune diseases. In June 2004, we extended this collaboration to move the
first of these newly created SCAs toward clinical development. We will share
development costs and future revenues with Micromet.
As part of our strategic alliance with Nektar, we have agreed to jointly
develop up to three compounds using Nektar's pulmonary or super-critical fluid
platforms. The first compound currently under development is a Nektar
formulation of leuprolide acetate administered through the pulmonary route.
Leuprolide is a peptide analog used to treat prostate cancer and endometriosis.
Nektar is currently conducting preclinical studies on the compound that will be
used to file a U.S. IND, which we expect to file during the second half of
calendar 2004. Nektar is responsible for all costs to bring the product to the
IND stage as well as formulation and manufacturing of the product. We will be
responsible for the clinical development, regulatory filings and
commercialization of the final product.
Research and Development
To date, our primary sources of new clinical products have been our
internal research and development activities and the licensing of compounds from
third parties, such as ATG-FRESENIUS S and MARQIBO. Research and development
expenses for the fiscal years ended June 30, 2004, 2003 and 2002 were
approximately $34.8 million, $21.0 million and $18.4 million, respectively. In
addition, the Company acquired the commercialization rights in the United
States, Canada and Mexico to MARQIBO a product being developed jointly developed
with Inex. In January 2004 the Company made a $12.0 million up front payment
which has been expensed as acquired in-process research and development.
Our research and development activities during fiscal 2004 concentrated
primarily on the advancement of our late-stage product pipeline, namely
Pegamotecan, ATG FRESENIUS S, and our shared product development costs with Inex
for MARQIBO. We expect our research and development expenses for fiscal 2005 and
beyond will be at significantly higher levels as we continue to advance our
late-stage product pipeline and additional compounds enter clinical trials.
Our internal research and development activities focus on applying our
proprietary PEG and SCA technologies to a pipeline of development candidates and
developing products accessed through strategic transactions, such as MARQIBO.
Proprietary Technologies
14
Macromolecular Engineering
Our proprietary drug development programs focus on engineering biologic
therapeutics or macromolecules. Since our inception, our core expertise has been
in modifying large molecule biologics through macromolecular engineering in
order to increase efficacy, improve safety profiles, generate improved versions
of existing therapeutics, and advance these drugs through development to
commercialization.
Macromolecular Engineering is the process by which the pharmaceutical
features of macromolecules, such as proteins, peptides or oligonucleotides are
optimized through processes that include site-specific amino acid exchanges,
site selective modification with our proprietary polyethylene glycol or PEG
technology, or antibody engineering through our proprietary Single-Chain
Antibody or SCA technology. Given the advancements in genomics and proteomics
over recent years, we believe a wealth of opportunity exists across this field.
These advancements have resulted in the discovery of a significant number of
exquisitely specific and highly biologically active macromolecules, which often
lack the features needed for effective therapeutics, such as adequate
circulating half-life, physical or metabolic stability, and overcoming adverse
immunological responses that can render a compound ineffective. Through the
application of our Macromolecular Engineering expertise, we have transformed
several macromolecules into successful therapeutics, including PEG-INTRON,
ONCASPAR, and ADAGEN.
In addition to our internal drug research and development activities, we
are also committed to broadening our pipeline and technology base through
in-licensing opportunities and strategic partnerships.
PEG Technology
Our proprietary PEG technology involves the covalent attachment of PEG to
therapeutic proteins or small molecules for the purpose of enhancing therapeutic
value. PEG is a relatively non-reactive and non-toxic polymer that is frequently
used in food and pharmaceutical products. We have demonstrated, both in our
marketed products and our products under development, that for some proteins and
small molecules, we can impart significant pharmacologic advantages over the
unmodified forms of the compound by modifying a compound using our PEG
technology.
These advantages include:
o extended circulating life,
o lower toxicity,
o increased drug stability, and
o enhanced drug solubility.
15
[GRAPHIC OMITTED]
A depiction of a PEG-enhanced molecule.
For years, we have applied and continually improved our PEG technology to
engineer macromolecules to improve the pharmacologic characteristics of
potential or existing macromolecule therapeutics. We modify macromolecules with
PEG for the purpose of prolonging half-life and reducing toxicities. In some
cases, PEG can render a macromolecule therapeutically effective, where the
unmodified form had only limited clinical utility. For example, some
macromolecules frequently induce an immunologic response rendering them
therapeutically ineffective. When PEG is attached, it disguises the
macromolecule and reduces recognition by the patient's immune system. PEG
conjugation can also reduce dosing frequency and delay clearance of the active
drug resulting in an improved therapeutic effect.
We have also developed a PEG technology that allows us to apply PEG to
small molecules. We are currently applying this technology to develop a
PEG-enhanced version of an anti-cancer compound. Like macromolecules, many
anti-cancer compounds of potentially significant therapeutic value possess
undesired pharmacologic characteristics such as toxicity, poor solubility, and
limited half-life. The attachment of PEG to anti-cancer compounds extends their
circulatory life and, at the same time, greatly increases the solubility of
these compounds. We attach PEG to macromolecules or anti-cancer compounds by
means of proprietary linker chemistries, which can be designed to incorporate a
stable chemical bond between the parent molecule and PEG or designed to release
the parent molecule over time in the proximity of the targeted tissue. By
inactivating and then reactivating the compound in the body we create a prodrug
version of such compounds. These attributes may significantly enhance the
therapeutic value of new and already marketed drugs with otherwise limited
utility.
We possess significant expertise and intellectual property in the methods
by which PEG can be attached to a compound, the selection of appropriate sites
on the compound to which PEG is attached, and the amount and type of PEG used to
tailor the PEG technology to produce the desired results for the particular
substance being modified.
SCA Technology
Antibodies are proteins produced by the immune system in response to the
presence in the body of antigens, such as bacteria, viruses or other disease
causing agents. Antibodies of identical molecular structure that bind to a
specific target are called monoclonal antibodies. Over the past few years,
several monoclonal antibodies have been approved for therapeutic use and have
achieved significant clinical and commercial success. Much of the clinical
utility of monoclonal antibodies results from the affinity and specificity with
which they bind to their targets, as well as a long circulating life due to
their relatively large size and their so-called effector function. Monoclonal
antibodies, however, are not well suited for use in acute indications where a
short half-life is advantageous or where their large size inhibits them from
reaching the area of potential
16
therapeutic activity.
SCAs are genetically engineered versions of antibodies incorporating only
a small portion of the antibody, namely the antigen binding domains designated
variable light (VL) and variable heavy (VH). SCA proteins are designed to expand
on the therapeutic and diagnostic applications possible with monoclonal
antibodies. SCAs have the binding specificity and affinity of monoclonal
antibodies and, in their native form, are about one-fifth to one-sixth of the
size of a monoclonal antibody, typically giving them very short half-lives. SCAs
differ from monoclonal antibodies in various respects, which may offer benefits
for certain applications:
o faster clearance from the body,
o greater tissue penetration for both diagnostic imaging and therapy,
o a significant decrease in immunogenicity when compared with
mouse-based antibodies,
o easier and more cost effective scale-up for manufacturing when
compared with monoclonal antibodies,
o enhanced screening capabilities which allow for the more rapid
assessment of SCA proteins of desired specificity using high
throughput screening methods, and
o the potential for non-parenteral application.
17
[Graphic Omitted] [Graphic Omitted]
A depiction of a A depiction of a
Monoclonal Antibody Single-Chain Antibody
Comparison of a standard monoclonal antibody and a single-chain antibody.
In addition to these benefits, fully human SCAs can be isolated directly
from human SCA libraries without the need for re-cloning or grafting procedures.
In specific formats, SCAs are also suitable for intracellular expression
allowing for their use, among other things, as inhibitors of gene expression.
We, along with numerous other academic and industrial laboratories, have
demonstrated through in vitro testing the binding specificity of dozens of SCAs.
We, in collaboration with the NCI, have shown in published preclinical studies
that SCAs localize to specific tumors and rapidly penetrate the tumors.
SCAs Under Development
In June 2004, we amended our April 2002 agreement with Micromet, a private
company based in Germany, after we successfully completed the first phase of
this multi-year strategic collaboration. Under the terms of the amended
agreement, Enzon and Micromet combined our significant patent estates and
complementary expertise in single-chain antibody technology. During the first
phase of the collaboration, we established a research and development unit at
Micromet's facility in Germany and generated several new SCA compounds against
undisclosed targets in the fields of inflammatory and autoimmune diseases. In
June 2004, we extended this collaboration to move the first of these newly
created SCAs toward clinical development.
Together with Micromet, we also continue to market our combined patent
estates in the field of SCA technology with Micromet being the exclusive
marketing partner. Since the start of the alliance, Micromet has granted four
non-exclusive research licenses on behalf of the partnership. Resulting revenues
are to be used for Micromet's and Enzon's joint SCA development activities.
In addition, prior to our collaboration with Micromet, we granted, SCA
licenses to several companies. These licenses generally provide for milestone
payments and royalties from the development and commercialization of any
resulting SCA product.
The most advanced SCA-based compound is our licensee Alexion's
pexelizumab. Pexelizumab is an SCA directed against complement protein C5, which
is a component of the body's normal defense against foreign pathogens.
Inappropriate complement activation during cardiopulmonary bypass graft surgery
("CABG") and myocardial infarction can lead to clinical problems. In July 2004,
Alexion announced that they and their collaboration partner for pexelizumab,
Procter & Gamble Pharmaceuticals, Inc. (Procter & Gamble), have initiated
patient enrollment for a pivotal Phase 3 trial in patients undergoing coronary
artery bypass graft
18
surgery (PRIMO-CABG-2). Alexion also reported in June 2004 that they, together
with Procter & Gamble, had reached agreement with the FDA on the design for the
PRIMO-CABG-2 study under the Special Protocol Assessment process. The study is
expected to enroll approximately 4,000 patients in North America and Europe.
PRIMO-CABG-2 represents the second Phase 3 trial conducted in CABG patients.
Alexion expects that, if successful, this trial will complete the filing package
that will serve as the primary basis of review for the approval of a Biologics
License Application ("BLA") for the CABG indication.
Alexion is also enrolling patients in a pivotal Phase 3 trial in patients
experiencing acute myocardial infarction (APEX-AMI). The study is expected to
enroll approximately 8,500 patients in North America, Europe, Australia, and New
Zealand over the next 24 to 36 months.
Schering-Plough Agreement
In November 1990, we entered into an agreement with Schering-Plough under
which Schering-Plough agreed to apply our PEG technology to develop a modified
form of Schering-Plough's INTRON A. Schering-Plough is responsible for
conducting and funding the clinical studies, obtaining regulatory approval, and
marketing and manufacturing the product worldwide on an exclusive basis and we
are entitled to receive royalties on worldwide sales of PEG-INTRON for all
indications. The royalty percentage to which we are entitled will be lower in
any country where a pegylated alpha-interferon product is being marketed by a
third party in competition with PEG-INTRON, where such third party is not
Hoffmann-La Roche.
In June 1999, we amended our agreement with Schering-Plough, which
resulted in an increase in the effective royalty rate that we receive for
PEG-INTRON sales. In exchange, we relinquished our option to retain exclusive
U.S. manufacturing rights for this product. In addition, we granted
Schering-Plough a non-exclusive license under some of our PEG patents relating
to branched or U-PEG technology. This license gave Schering-Plough the ability
to sublicense rights under these patents to any party developing a competing
interferon product. In August 2001, Schering-Plough, pursuant to a cross-license
agreement entered into as part of the settlement of certain patent lawsuits,
granted Hoffmann-La Roche a sublicense under our branched PEG patents to allow
Hoffmann-La Roche to make, use, and sell its pegylated alpha-interferon product,
PEGASYS.
Under this agreement, Schering-Plough was obligated to pay and has paid us
a total of $9.0 million in milestone payments, none of which are refundable. We
do not supply Schering-Plough with PEG-INTRON or any other materials and our
agreement with Schering-Plough does not obligate Schering-Plough to purchase or
sell specified quantities of any product. Schering-Plough's obligation to pay us
royalties on sales of PEG-INTRON terminates, on a country-by-country basis, upon
the later of the date the last patent of ours to contain a claim covering
PEG-INTRON expires in the country or 15 years after the first commercial sale of
PEG-INTRON in such country. These milestone payments were recognized when
received, as the earnings process was complete. Schering-Plough has the right to
terminate this agreement at any time if we fail to maintain the requisite
liability insurance of $5.0 million. Either party may terminate the agreement
upon a material breach of the agreement by the other party that is not cured
within 60 days of written notice from the non-breaching party or upon
declaration of bankruptcy by the other party.
Aventis License Agreements
During 2002, we amended our license agreement with Aventis to reacquire
the rights to market and distribute ONCASPAR in the United States, Mexico,
Canada and the Asia/Pacific region. In return for the marketing and distribution
rights we paid Aventis $15.0 million and are obligated to pay a 25% royalty on
net sales of ONCASPAR through 2014. The license agreement may be terminated by
Aventis earlier upon 60 days' notice if we fail to make the required royalty
payments or we decide to cease selling ONCASPAR. Following the expiration of the
agreement in 2014, all rights will revert back to us, unless the agreement is
terminated earlier because we fail to make royalty payments or cease to sell
ONCASPAR. Prior to the amendment, Aventis was responsible for marketing and
distribution of ONCASPAR. Under the previous agreement, Aventis paid us a
royalty on net sales of ONCASPAR of 27.5% on annual sales up to $10.0 million
and 25% on annual sales exceeding $10.0 million. These royalty payments included
Aventis' cost of purchasing ONCASPAR from us under a supply agreement.
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The amended license agreement prohibits Aventis from making, using or
selling an asparaginase product in the U.S. or a competing PEG-asparaginase
product anywhere in the world until the later of the expiration of the agreement
or, if the agreement is terminated earlier, five years after termination. If we
cease to distribute ONCASPAR or if we fail to make the required royalty
payments, Aventis has the option to distribute the product in the territories
under the original license.
Medac License Agreement
In January 2003, we renewed an exclusive license to Medac GmbH ("Medac"),
a private company based in Germany, to sell ONCASPAR and any PEG-asparaginase
product developed by us or Medac during the term of the agreement in most of
Europe and part of Asia. Our supply agreement with Medac provides for Medac to
purchase ONCASPAR from us at certain established prices. Under the license
agreement, Medac is responsible for obtaining additional approvals and
indications in the licensed territories, beyond the currently approved
hypersensitive indication in Germany. Under the agreement, Medac is required to
meet certain minimum purchase requirements. The term of the agreement is for
five years and will automatically renew for an additional five years if Medac
meets or exceeds certain diligence requirements and thereafter the agreement
will automatically renew for an additional two years unless either party
provides written notice of its intent to terminate the agreement at least 12
months prior to the scheduled expiration date. Following the expiration or
termination of the agreement, all rights granted to Medac will revert back to
Enzon.
Inex Development and Commercialization Agreements
In January 2004, we entered into a strategic partnership with Inex
Pharmaceuticals Corporation ("Inex") to develop and commercialize Inex's
proprietary oncology product MARQIBO. In connection with the strategic
partnership we entered into a Product Supply Agreement, a Development Agreement,
and a Co-Promotion Agreement with Inex. The agreements contain cross termination
provisions under which termination of one agreement triggers termination of all
the agreements.
Under the terms of the agreements, we receive the exclusive
commercialization rights for MARQIBO for all indications in the United States,
Canada and Mexico. The lead indication for MARQIBO is relapsed aggressive
non-Hodgkin's lymphoma (NHL) for which a New Drug Application (NDA) to the
United States Food and Drug Administration (FDA) was filed on March 15, 2004.
The product is also in numerous phase II clinical trials for several other
cancer indications, including first-line NHL.
Upon execution of the related agreements we made a $12.0 million up-front
payment to Inex, which has been determined to be an acquisition of in-process
research and development as the payment was made prior to FDA approval, and
therefore expensed in our Statement of Operations for the quarter ended March
31, 2004. In addition, we will be required to pay up to $20.0 million upon
MARQIBO being approved by the FDA and development milestones and sales-based
bonus payments could total $43.75 million, of which $10.0 million is payable
upon annual sales first reaching $125.0 million, and $15.0 million is payable
upon annual sales first reaching $250.0 million. We will also be required to pay
Inex a percentage of commercial sales of MARQIBO and this percentage will
increase as sales reach certain predetermined thresholds.
We will share equally with Inex the future development costs to obtain and
maintain marketing approvals in North America for MARQIBO, and we will pay all
sales and marketing costs and certain other post-approval clinical development
costs typically associated with commercialization activities. We plan to market
MARQIBO to the oncology market through our North American sales force, which
currently markets ABELCET, ONCASPAR, and DEPOCYT. Inex has the option of
complementing our sales efforts by co-promoting MARQIBO through the formation of
a dedicated North American sales and medical science liaison force. The costs of
building Inex's co-promotion force will be shared equally by both companies and
we will record all sales in the licensed territories. Inex retains manufacturing
rights and we will reimburse Inex for the manufacture and supply of the drug at
manufacturing cost plus five percent.
The agreements will expire on a country by country basis upon the
expiration of the last patent covering the licensed product in each particular
country or 15 years after the first commercial sale in such country, whichever
is later. The agreements are also subject to earlier termination under various
circumstances.
20
We may terminate the agreements at any time upon 90 days notice, in connection
with which we must pay a $2.0 million termination fee. Inex has completed the
submission of its NDA, therefore if we terminate the agreement we must pay the
$2.0 million fee. In addition, if at any time we determine that it has no
interest in commercializing the product in any country, then Inex may terminate
the agreement with respect to such country. Either party may terminate the
agreements upon a material breach and failure to cure by the other party. In
addition, either party may terminate the agreements upon the other party's
bankruptcy. Generally, the termination of the agreements with respect to a
particular country shall terminate our license with respect to MARQIBO, and
preclude us from marketing the product, in that country. However, if we
terminate the agreements because of Inex's breach or bankruptcy, the licenses
granted by Inex will continue, Inex will be obligated to provide us a right of
reference to Inex's regulatory dossiers and facilitate a transfer to us of the
technology necessary to manufacture the product. In addition, after such
termination, Inex will be obligated to exercise commercially reasonable efforts
to ensure we have a continuous supply of product until we, exercising
commercially reasonable efforts, have secured an alternative source of supply.
We may also explore the acquisition and joint development of other cancer
drugs with Inex.
Fresenius Development and Supply Agreement
In June 2003, we entered into a development and supply agreement with
Fresenius, which provides us with exclusive development and distribution rights
in North America for the polyclonal antibody preparation, ATG-FRESENIUS S. The
agreement term is ten years, commencing upon FDA approval of the first
indication for ATG-FRESENIUS S, with an option to extend the term for an
additional ten years. The agreement may be terminated early by us if we
determine the project not to be feasible. In addition, either party may
terminate the agreement early upon a material breach by the other party. If
Fresenius terminates the agreement upon a material breach by us, we will be
obligated to transfer to Fresenius any IND or marketing approval that we may
have obtained. Further, Fresenius may terminate the agreement if we fail to
satisfy the following diligence requirements: (i) enrollment of the first
patient for the first clinical trial within six months after the FDA has
approved an IND for the first indication; and (ii) receipt of marketing approval
in the U.S. within six years after the first IND is approved and the first
patient enrolled.
Under this agreement, we are responsible for obtaining regulatory approval
of the product in the U.S. In September 2004, we made a milestone payment to
Fresenius of $1.0 million upon FDA approval of the first IND and we are
obligated to make another milestone payment of $1.0 million upon our submission
of a BLA to the FDA. Fresenius will be responsible for manufacturing and
supplying the product to us and we are required to purchase all of the finished
product from Fresenius for net sales of the product in North America. We will
purchase finished product at 40% of net sales, which percentage can be reduced
should certain defined sales targets be exceeded. We are required to purchase a
minimum of $2.0 million of product in the first year after commercial
introduction and $5.0 million in the second year, with no minimum purchase
requirements thereafter. Fresenius will supply the product to us without charge
for the clinical trials for the first indication. For subsequent trials, we will
purchase the clinical supplies from Fresenius.
Micromet Alliance
In April 2002, we entered into a multi-year strategic collaboration with
Micromet, a private company based in Munich, Germany, to identify and develop
the next generation of antibody-based therapeutics. In June 2004 we amended this
agreement and extended this collaboration until September 2007. During the first
phase of the collaboration, the partnership generated several new SCA compounds
against undisclosed targets in the fields of inflammatory and autoimmune
diseases. We extended our collaboration with Micromet to move the first of these
newly created SCAs toward clinical development. Under the terms of the amended
agreement, Enzon and Micromet will continue to share development costs and
future revenues for the joint development project.
Following the termination or expiration of the agreement, the rights to
antibody-based therapeutics identified or developed by Enzon and Micromet will
be determined in accordance with the United States rules of inventorship. In
addition, we will acquire the rights to any PEGylation inventions. The agreement
can be terminated by either party upon a material breach of the agreement by the
other party.
21
In addition to the research and development collaboration, in 2002 we made
an $8.3 million investment in Micromet in the form of a note of Micromet which
was amended in June 2004. This note bears interest of 3% and is payable in March
2007. This note is convertible into Micromet Common Stock at a price of 15.56
euros per share at the election of either party. During the year ended June 30,
2004 we recorded a write-down of the carrying value of this investment, which
resulted in a non-cash charge of $8.3 million.
We hold core intellectual property in SCAs. These fundamental patents,
combined with Micromet's key patents in SCA linkers and fusion protein
technology, generate a compelling technology platform for SCA product
development. We have entered into a cross-license agreement with Micromet
regarding each of our respective SCA intellectual property estates and jointly
market our combined SCA technology to third parties. Micromet is the exclusive
marketing partner and is instituting a comprehensive licensing program on behalf
of the partnership. Any resulting revenues from the license agreements executed
by Micromet on behalf of the partnership will be used for Micromet's and our
joint SCA development activities. Several SCA molecules have been used in
clinical trials. Our licensee, Alexion is currently enrolling patients in a
pivotal Phase 3 trial in patients undergoing coronary artery bypass graft
surgery and a pivotal Phase 3 trial in patents experiencing acute myocardial
infarction (heart attack).
Nektar Alliance
In January 2002, we entered into a broad strategic alliance with Nektar,
formerly Inhale Therapeutic Systems, Inc. that includes several components.
The companies entered into a product development agreement to jointly
develop three products to be specified over time using Nektar's Enhance(TM)
pulmonary delivery platform and SEDS(TM) supercritical fluids platform. Nektar
is responsible for formulation development, delivery system supply, and in some
cases, early clinical development. We have responsibility for most clinical
development and commercialization. This agreement terminates in January 2007
unless terminated earlier by either party upon 90 days notice of a material
breach or 15 days notice of a payment default. Upon termination of the
agreement, the obligations of the parties to conduct development activities will
expire, but such termination shall not affect rights of either party that have
accrued (e.g., with respect to the ownership of intellectual property or the
right to certain payments) prior thereto.
The two companies will also explore the development of single-chain
antibody (SCA) products for pulmonary administration.
We have entered into a cross-license agreement with Nektar under which
each party also cross-licensed to the other party certain patents. We also
granted Nektar the right to grant sub-licenses under certain of our PEG patents
to third parties. We will receive a royalty or a share of profits on final
product sales of any products that use our patented PEG technology. We receive
approximately 0.5% or less of Hoffmann-La Roche's sales of PEGASYS, which
represents equal profit sharing with Nektar on this product. There are currently
two PEG products licensed through our Nektar partnership that are being
evaluated in late-stage clinical trials, MACUGEN(TM) (pegaptanib sodium
injection), for age-related macular degeneration and diabetic macular edema, and
CDP870, an anti-TNF therapy for rheumatoid arthritis. We retain the right to use
all of our PEG technology and certain of Nektar's PEG technology for our own
product portfolio, as well as those products we develop in co-commercialization
collaborations with third parties. This agreement expires upon the later of the
expiration of the last licensed patent or the date the parties are no longer
required to pay royalties. Either party may terminate the agreement upon a
material breach of the agreement by the other party that is not cured within 90
days of the receipt of written notice from the non-breaching party or upon the
declaration of bankruptcy by the other party.
We purchased $40 million of newly issued Nektar convertible preferred
stock in January 2002. The preferred stock is convertible into Nektar common
stock at a conversion price of $22.79 per share. In the event Nektar's common
stock price three years from the date of issuance of the
22
preferred stock or earlier in certain circumstances is less than $22.79, the
conversion price will be adjusted down, although in no event will it be less
than $18.23 per share. Conversion of the preferred stock into common stock can
occur anywhere from 1 to 4 years following the issuance of the preferred stock
or earlier in certain circumstances. As a result of a continued decline in the
price of Nektar's common stock, which the Company determined was
other-than-temporary, during December 31, 2002 the Company recorded a write-down
of the carrying value of its investment in Nektar, which resulted in a non-cash
charge of $27.2 million. During the year ended June 30, 2004, we converted the
preferred stock into common stock and sold approximately 50% of our investment
in Nektar, which resulted in a net gain on investments of $11.0 million and cash
proceeds of $17.4 million.
The two companies also agreed in January 2002 to a settlement of the
patent infringement suit we filed in 1998 against Nektar's subsidiary,
Shearwater Polymers, Inc. Nektar has a license under the contested patents
pursuant to the cross-license agreement. We received a one-time payment of $3.0
million from Nektar to cover expenses incurred in defending our branched PEG
patents.
SkyePharma Agreements
In January 2003, we entered into a strategic alliance with SkyePharma, PLC
based on a broad technology access agreement. The two companies will draw on
their combined drug delivery technology and expertise to jointly develop up to
three products for future commercialization. These products will be based on
SkyePharma's proprietary platforms in the areas of oral, injectable and topical
drug delivery, supported by technology to enhance drug solubility and our
proprietary PEG modification technology, for which we received a $3.5 million
technology access fee. SkyePharma will receive a $2.0 million milestone payment
for each product based on its own proprietary technology that enters Phase 2
clinical development. Certain research and development costs related to the
technology alliance will be shared equally, as will future revenues generated
from the commercialization of any jointly-developed products.
Effective December 31, 2002, we also licensed the North American rights to
SkyePharma's DEPOCYT(R), an injectable chemotherapeutic approved for the
treatment of patients with lymphomatous meningitis. Under the terms of the
agreement, we paid SkyePharma a license fee of $12.0 million. SkyePharma
manufactures DEPOCYT and we purchase finished product at 35% of net sales, which
percentage can be reduced should a defined sales target be exceeded. We have
recorded the $12.0 million license fee as an intangible asset, which is being
amortized over a ten year period.
We were required to purchase minimum levels of finished product for
calendar year 2003 equal to 90% of the previous year's sales of DEPOCYT by
SkyePharma and are required to purchase finished product equal to $5.0 million
in net sales for each subsequent calendar year ("Minimum Annual Purchases")
through the remaining term of the agreement. SkyePharma is also entitled to a
milestone payment of $5.0 million if our sales of the product exceed a $17.5
million annual run rate for four consecutive quarters and an additional
milestone payment of $5.0 million if our sales exceed an annualized run rate of
$25.0 million for four consecutive quarters. We are also responsible for a $10.0
million milestone payment if the product receives approval for all neoplastic
meningitis prior to December 31, 2006. This milestone payment will be
incrementally reduced if the approval is received subsequent to December 31,
2006 to a minimum payment of $5.0 million for an approval after December 31,
2007.
Our license is for an initial term of ten years and is automatically
renewable for successive two-year terms thereafter. Either party may terminate
the agreement early upon a material breach by the other party, which breach the
other party fails to cure within 60 days after receiving notice thereof.
Further, SkyePharma will be entitled to terminate the agreement early if we fail
to satisfy our Minimum Annual Purchases. In addition, we will be entitled to
terminate the agreement early if a court or government agency renders a decision
or issues an order that prohibits the manufacture, use or sale of the product in
the U.S. If a therapeutically equivalent generic product enters the market and
DEPOCYT's market share decreases, we will enter into good faith discussions in
an attempt to agree on a reduction in our payment obligations to SkyePharma and
a fair allocation of the economic burdens resulting from the market entry of the
generic product. If we are unable to reach an agreement within 30 days, then
either party may terminate the agreement, which termination will be effective
180 days after giving notice thereof. After termination of the agreement,
23
we will have no further obligation to each other, except the fulfillment of
obligations that accrued prior thereto (e.g., deliveries, payments, etc.). In
addition, for six months after any such termination, we will have the right to
distribute any quantity of product we purchased from SkyePharma prior to
termination.
Medeus Manufacturing Agreement
On November 22, 2002, we acquired from Elan Corporation plc ("Elan") the
North American rights and operational assets associated with the development,
manufacture, sales and marketing of ABELCET for $360 million plus acquisition
costs. This transaction is being accounted for as a business combination. As
part of the ABELCET acquisition, we entered into a long-term manufacturing and
supply agreement with Elan, under which we continue to manufacture two products
ABELCET and MYOCET. In February 2004, Elan sold its European sales and marketing
business to Medeus Pharma Ltd. ("Medeus") and transferred the manufacturing and
supply agreement to Medeus. Under the terms of the 2002 ABELCET acquisition
agreement, Medeus has the right to market ABELCET in any markets outside of the
U.S., Canada and Japan. ABELCET is approved for use in approximately 26
countries for primary and/or refractory invasive fungal infections.
Our agreement with Medeus, as successor to Elan, requires that we supply
Medeus with ABELCET and MYOCET through November 21, 2011. For the period from
November 22, 2002 until June 30, 2004, we supplied ABELCET and MYOCET at fixed
transfer prices which approximated our manufacturing cost. From July 1, 2004 to
the termination of the agreement, we will supply these products at our
manufacturing cost plus fifteen percent.
The agreement also provides that until June 30, 2004, we will calculate
the actual product manufacturing costs on an annual basis and, to the extent
that this amount is greater than the respective transfer prices, Medeus will
reimburse us for such differences. Conversely, if such actual manufacturing
costs are less than the transfer price, we will reimburse Medeus for such
differences.
During February 2004 Elan Corporation, plc, sold its ABELCET and MYOCET
European business to Medeus Pharma, Ltd. ("Medeus") As part of this transaction
the Company's long-term manufacturing and supply agreement with Elan was
assigned to Medeus. In connection with the closing of this sale the Company and
Elan settled a dispute over the manufacturing cost of products produced for Elan
resulting in the payment and recognition of manufacturing revenue related to
approximately $1.7 million of revenue not previously recognized given the
uncertainty of the contractual amount.
Sales and Marketing
We have a North American sales and marketing team comprised of a
hospital-based sales force which markets ABELCET and a specialty oncology sales
force which markets ONCASPAR and DEPOCYT. In fiscal 2004, we began training each
sales force with respect to the other's product(s) and, leveraging existing
customer relationships, each sales force has begun to cross market the other's
product(s). We have provided exclusive marketing rights to Schering-Plough for
PEG-INTRON worldwide and to MEDAC GmbH for ONCASPAR in most of Europe and Asia.
We do not market any products through the use of direct-to-consumer advertising.
ABELCET is utilized in North America by hospitals, clinics and alternate
care sites who treat patients with invasive fungal infections. In the United
States, ABELCET is sold primarily to drug wholesalers who, in turn, sell the
product to hospitals and certain other third parties. In some cases, ABELCET is
sold by us directly to institutions. We maintain contracts with a majority of
our customers which allows those customers to purchase product directly from
wholesalers. These contracts generally provide for pricing based on annual
purchase volumes.
We market ONCASPAR and DEPOCYT in North America through our specialty
oncology sales force to hospital oncology centers, oncology clinics and oncology
physicians. We utilize an independent distributor in North America who sells the
products to these customers.
We are marketing ADAGEN on a worldwide basis. We utilize independent
distributors in certain territories, including the United States, Europe and
Australia.
Manufacturing and Raw Materials
In the manufacture of ABELCET, we combine amphotericin B with DMPC and
DMPG (two lipid materials) to produce an injectable lipid complex formulation of
amphotericin B. We currently have two suppliers of
24
amphotericin B and have a long-term supply agreement with our primary supplier,
which is scheduled to terminate on March 31, 2006. We also have two suppliers of
the lipid materials, neither of which is under a long term supply agreement. We
believe that the current levels of inventory that we maintain, coupled with
having two suppliers of materials, should provide us with sufficient time to
find an alternative supplier, if it becomes necessary.
In the manufacture of ADAGEN and ONCASPAR, we combine activated forms of
PEG with unmodified proteins. We do not have a long-term supply agreement for
the raw polyethylene glycol material that we use in the manufacturing of our PEG
products. Instead, we maintain a level of inventory, which we believe should
provide us sufficient time to find an alternate supplier of PEG, in the event it
becomes necessary, without materially disrupting our business.
ADAGEN and ONCASPAR use our early PEG technology which is not as advanced
as the PEG technology used in PEG-INTRON and our products under development.
Due, in part, to certain limitations of using our earlier PEG technology, we
have had and will likely continue to have certain manufacturing problems with
ADAGEN and ONCASPAR.
Manufacturing and stability problems required us to implement voluntary
recalls for one batch of ADAGEN in March 2001 and certain batches of ONCASPAR in
June 2002, July 2004 and September 2004.
During 1998, we began to experience manufacturing problems with one of our
FDA-approved products, ONCASPAR. The problems were due to increased levels of
white particulates in batches of ONCASPAR, which resulted in an increased
rejection rate for this product. During fiscal 1999, we agreed with the FDA to
temporary labeling and distribution restrictions for ONCASPAR and instituted
additional inspection and labeling procedures prior to distribution. During May
1999, the FDA required us to limit distribution of ONCASPAR to only those
patients who are hypersensitive to native L-asparaginase. As a result of certain
manufacturing changes we made, the FDA withdrew this distribution restriction in
November 1999.
In July 1999, the FDA conducted an inspection of our manufacturing
facility in connection with our product license for ADAGEN. Following that
inspection, the FDA documented several deviations from Current Good
Manufacturing Practices, known as cGMP, in a Form 483 report. We provided the
FDA with a corrective action plan. In November 1999, the FDA issued a warning
letter citing the same cGMP deviations listed in the July 1999 Form 483, but it
also stated that the FDA was satisfied with our proposed corrective actions. As
a result of the deviations, the FDA decided not to approve product export
requests from us for ONCASPAR until it determined that all noted cGMP deviations
were either corrected or in the process of being corrected. This restriction was
removed in August 2000.
Since January 2000, the FDA and the MCA, the European equivalent of the
FDA, have conducted follow-up inspections as well as routine inspections of our
manufacturing facility related to ABELCET, ONCASPAR and ADAGEN. Following
certain of these inspections, the FDA has issued Form 483 reports, citing
deviations from cGMP. We received the most recent Form 483 reports in April 2004
for our New Jersey and Indianapolis manufacturing facilities. We have or are in
the process of responding to such reports with corrective action plans.
Patents and Intellectual Property Rights
Patents are very important to us in establishing the proprietary rights to
the products we have developed or licensed. The patent position of
pharmaceutical or biotechnology companies, including our position, can be
uncertain and involve complex legal, scientific and factual questions. If our
intellectual property positions are challenged, invalidated or circumvented, or
if we fail to prevail in potential future intellectual property litigation, our
business could be adversely affected. We have been issued 114 patents in the
U.S., many of which have foreign counterparts. These patents, without
extensions, are expected to expire beginning in 2004 through 2022. We have also
filed and currently have pending 43 patent applications in the U.S. Under our
license agreements, we have access to large portions of Micromet's and Nektar's
patent estates as well as a small number of individually licensed patents. Of
the patents owned or licensed by us, 7 relate to PEG-INTRON, 17 relate to
ABELCET, 3 relate to DEPOCYT, 11 relate to Pegamotecan and 18 relate to MARQIBO.
Although we believe that our patents provide adequate protection for the conduct
of our business, we cannot assure you that such patents:
25
o will be of substantial protection or commercial benefit to us,
o will afford us adequate protection from competing products, or
o will not be challenged or declared invalid.
We also cannot assure you that additional United States patents or foreign
patent equivalents will be issued to us.
Patents for individual products extend for varying periods according to
the date of patent filing or grant and the legal term of patents in the various
countries where patent protection is obtained. The actual protection afforded by
a patent, which can vary from country to country, depends upon the type of
patent, the scope of its coverage and the availability of legal remedies in the
country.
The expiration of a product patent or loss of patent protection resulting
from a legal challenge normally results in significant competition from generic
products against the covered product and, particularly in the U.S., can result
in a significant reduction in sales of the pioneer product. In some cases,
however, we can continue to obtain commercial benefits from:
o product manufacturing trade secrets;
o patents on uses for products;
o patents on processes and intermediates for the economical manufacture of
the active ingredients;
o patents for special formulations of the product or delivery mechanisms and
conversion of the active ingredient to OTC products.
The effect of product patent expiration or loss also depends upon:
o the nature of the market and the position of the product in it;
o the growth of the market;
o the complexities and economics of manufacture of the product; and
o the requirements of generic drug laws.
The patent covering our original PEG technology, which we had licensed
from Research Corporation Technologies, Inc., contained broad claims covering
the attachment of PEG to polypeptides. However, this United States patent and
its corresponding foreign patents have expired. Based upon the expiration of the
Research Corporation patent, other parties may make, use, or sell products
covered by the claims of the Research Corporation patent, subject to other
patents, including those which we hold. We have obtained and intend to continue
to pursue patents with claims covering improved methods of attaching or linking
PEG to therapeutic compounds. We also have obtained patents relating to the
specific composition of the PEG-modified compounds that we have identified or
created. We will continue to seek such patents as we develop additional
PEG-enhanced products. We cannot assure you that any of these patents will
enable us to prevent infringement by unauthorized third parties or that
competitors will not develop competitive products outside the protection that
may be afforded by our patents.
We are aware that others have also filed patent applications and have been
granted patents in the United States and other countries with respect to the
application of PEG to proteins and other compounds. Owners of any such patents
may seek to prevent us or our collaborators from making, using or selling our
products.
During January 2002, we settled a patent infringement suit we had brought
against Shearwater Corporation Inc., a company that produces the branched PEG,
or U-PEG, used in Hoffmann-La Roche's product, PEGASYS, a PEG-modified version
of its alpha interferon product ROFERON-A. The settlement was part of a broad
strategic alliance we formed with Nektar, Shearwater Corporation's parent
corporation, in which Nektar agreed to pay us $3.0 million to cover our expenses
incurred in defending our branched PEG patents and pay us 50% of any revenues it
receives for the manufacture of Hoffmann-La Roche's PEGASYS. In addition, Enzon
and Nektar agreed to cross license certain of their PEG intellectual property
estates to each other. Also, Nektar has the right to sublicense certain of our
PEG patents to third parties and we will receive a
26
royalty or a share of profit on final product sales. We retained the rights to
use our PEG patents for our own proprietary products and products we may develop
with co-commercialization partners.
During August 2001, Schering-Plough granted a sublicense to Hoffmann-La
Roche under our branched PEG patents to allow Hoffmann-La Roche to make, use and
sell its pegylated alpha-interferon product, PEGASYS, as part of the settlement
of a patent infringement lawsuit related to PEG-INTRON. During August 2001, we
dismissed a patent infringement suit we had brought against Hoffmann-La Roche
relating to PEGASYS as a result of the sublicense by Schering-Plough of our
branched PEG patents for PEGASYS to Hoffmann-La Roche.
In the field of SCA proteins, we have several United States and foreign
patents and pending patent applications, including a patent granted in August
1990 covering the genes needed to encode SCA proteins.
In November 1993, Curis Inc. (formerly known as Creative BioMolecules
Inc.) signed cross-license agreements with us in the field of our SCA protein
technology and Curis' Biosynthetic Antibody Binding Site protein technology. In
July 2001, Curis reported that it had entered into a purchase and sale agreement
with Micromet AG, a German Corporation, pursuant to which Curis assigned its
single chain polypeptide technology to Micromet. In April 2002, we entered into
a cross-license agreement with Micromet for our respective SCA intellectual
property and have decided to jointly market such intellectual property with
Micromet.
Through our acquisition of ABELCET, we acquired several U.S. and Canadian
patents claiming the use and manufacture of ABELCET.
In general, Enzon has obtained licenses from various parties which it
deems to be necessary or desirable for the manufacture, use, or sale of its
products. These licenses generally require Enzon to pay royalties to the parties
on product sales. In addition, other companies have filed patent applications or
have been granted patents in areas of interest to Enzon. There can be no
assurance any licenses required under such patents will be available for license
on acceptable terms or at all.
We also sell our products under trademarks that we consider in the
aggregate to be of material importance. Trademark protection continues in some
countries for as long as the mark is used and, in other countries, for as long
as it is registered. Registrations generally are for fixed, but renewable,
terms.
Government Regulation
The FDA and comparable regulatory agencies in state and local
jurisdictions and in foreign countries impose substantial requirements on the
clinical development, manufacture and marketing of pharmaceutical products.
These agencies and other federal, state and local entities regulate research and
development activities and the testing, manufacture, quality control, safety,
effectiveness, labeling, storage, record keeping, approval and promotion of our
products. All of our products will require regulatory approval before
commercialization. In particular, therapeutic products for human use are subject
to rigorous preclinical and clinical testing and other requirements of the
Federal Food, Drug, and Cosmetic Act and the Public Health Service Act,
implemented by the FDA, as well as similar statutory and regulatory requirements
of foreign countries. Obtaining these marketing approvals and subsequently
complying with ongoing statutory and regulatory requirements is costly and time
consuming. Any failure by us or our collaborators, licensors or licensees to
obtain, or any delay in obtaining, regulatory approval or in complying with
other requirements, could adversely affect the commercialization of products
that we are then developing and our ability to receive product or royalty
revenues.
The steps required before a new drug or biological product may be
distributed commercially in the United States generally include:
o conducting appropriate preclinical laboratory evaluations of the
product's chemistry, formulation and stability, and animal studies
to assess the potential safety and efficacy of the product,
o submitting the results of these evaluations and tests to the FDA,
along with manufacturing information and analytical data, in an
Investigational New Drug Application, or IND,
o making the IND effective after the resolution of any safety or
regulatory concerns of the FDA,
27
o obtaining approval of Institutional Review Boards, or IRBs, to
introduce the drug or biological product into humans in clinical
studies,
o conducting adequate and well-controlled human clinical trials that
establish the safety and efficacy of the drug or biological product
candidate for the intended use, typically in the following three
sequential, or slightly overlapping stages:
Phase I. The drug or biologic is initially introduced into
healthy human subjects or patients and tested for safety, dose
tolerance, absorption, metabolism, distribution and excretion,
Phase II. The drug or biologic is studied in patients to
identify possible adverse effects and safety risks, to
determine dose tolerance and the optimal dosage, and to
collect initial efficacy data,
Phase III. The drug or biologic is studied in an expanded
patient population at multiple clinical study sites, to
confirm efficacy and safety at the optimized dose, by
measuring a primary endpoint established at the outset of the
study,
o submitting the results of preliminary research, preclinical studies,
and clinical studies as well as chemistry, manufacturing and control
information on the drug or biological product to the FDA in a New
Drug Application, or NDA, for a drug product, or a Biologics License
Application, or BLA, for a biological product, and
o obtaining FDA approval of the NDA or BLA prior to any commercial
sale or shipment of the drug or biological product.
An NDA or BLA must contain, among other things, data derived from
nonclinical laboratory and clinical studies which demonstrate that the product
meets prescribed standards of safety, purity and potency, and a full description
of manufacturing methods. The biological product may not be marketed in the
United States until a biological license is issued.
The approval process can take a number of years and often requires
substantial financial resources. The results of preclinical studies and initial
clinical trials are not necessarily predictive of the results from large-scale
clinical trials, and clinical trials may be subject to additional costs, delays
or modifications due to a number of factors, including the difficulty in
obtaining enough patients, clinical investigators, drug supply, or financial
support. The FDA has issued regulations intended to accelerate the approval
process for the development, evaluation and marketing of new therapeutic
products intended to treat life-threatening or severely debilitating diseases,
especially where no alternative therapies exist. If applicable, this procedure
may shorten the traditional product development process in the United States.
Similarly, products that represent a substantial improvement over existing
therapies may be eligible for priority review with a target approval time of six
months. Nonetheless, approval may be denied or delayed by the FDA or additional
trials may be required. The FDA also may require testing and surveillance
programs to monitor the effect of approved products that have been
commercialized, and the agency has the power to prevent or limit further
marketing of a product based on the results of these post-marketing programs.
Upon approval, a drug product or biological product may be marketed only in
those dosage forms and for those indications approved in the NDA or BLA,
although information about off-label indications may be distributed in certain
circumstances.
In addition to obtaining FDA approval for each indication for which the
manufacturer may market the drug, each domestic drug product manufacturing
establishment must register with the FDA, list its drug products with the FDA,
comply with Current Good Manufacturing Practices and permit and pass inspections
by the FDA. Moreover, the submission of applications for approval may require
additional time to complete manufacturing stability studies. Foreign
establishments manufacturing drug products for distribution in the United States
also must list their products with the FDA and comply with Current Good
Manufacturing Practices. They also are subject to periodic inspection by the FDA
or by local authorities under agreement with the FDA.
Any products manufactured or distributed by us pursuant to FDA approvals
are subject to extensive continuing regulation by the FDA, including
record-keeping requirements and a requirement to report adverse
28
experiences with the drug. In addition to continued compliance with standard
regulatory requirements, the FDA also may require post-marketing testing and
surveillance to monitor the safety and efficacy of the marketed product. Adverse
experiences with the product must be reported to the FDA. Product approvals may
be withdrawn if compliance with regulatory requirements is not maintained or if
problems concerning safety or efficacy of the product are discovered following
approval.
The Federal Food, Drug, and Cosmetic Act also mandates that drug products
be manufactured consistent with Current Good Manufacturing Practices. In
complying with the FDA's regulations on Current Good Manufacturing Practices,
manufacturers must continue to spend time, money and effort in production,
record-keeping, quality control, and auditing to ensure that the marketed
product meets applicable specifications and other requirements. The FDA
periodically inspects drug product manufacturing facilities to ensure compliance
with Current Good Manufacturing Practices. Failure to comply subjects the
manufacturer to possible FDA action, such as:
o warning letters,
o suspension of manufacturing,
o seizure of the product,
o voluntary recall of a product,
o injunctive action, or
o possible civil or criminal penalties.
To the extent we rely on third parties to manufacture our compounds and
products, those third parties will be required to comply with Current Good
Manufacturing Practices. We have undertaken a voluntary recall of certain lots
of products in the past, and future recalls and costs associated with Current
Good Manufacturing Practices are possible.
Even after FDA approval has been obtained, and often as a condition to
expedited approval, further studies, including post-marketing studies, may be
required. Results of post-marketing studies may limit or expand the further
marketing of the products. If we propose any modifications to the product,
including changes in indication, manufacturing process, manufacturing facility
or labeling, an NDA or BLA supplement may be required to be submitted to the
FDA.
Products manufactured in the United States for distribution abroad will be
subject to FDA regulations regarding export, as well as to the requirements of
the country to which they are shipped. These latter requirements are likely to
cover the conduct of clinical trials, the submission of marketing applications,
and all aspects of product manufacture and marketing. Such requirements can vary
significantly from country to country. As part of our strategic relationships
our collaborators may be responsible for the foreign regulatory approval process
of our products, although we may be legally liable for noncompliance.
We are also subject to various federal, state and local laws, rules,
regulations and policies relating to safe working conditions, laboratory and
manufacturing practices, the experimental use of animals and the use and
disposal of hazardous or potentially hazardous substances, including radioactive
compounds and infectious disease agents, used in connection with our research
work. Although we believe that our safety procedures for handling and disposing
of such materials comply with current federal, state and local laws, rules,
regulations and policies, the risk of accidental injury or contamination from
these materials cannot be entirely eliminated.
We cannot predict the extent of government regulation which might result
from future legislation or administrative action. In this regard, although the
Food and Drug Administration Modernization Act of 1997 modified and created
requirements and standards under the Federal Food, Drug, and Cosmetic Act with
the intent of facilitating product development and marketing, the FDA is still
in the process of implementing the Food and Drug Administration Modernization
Act of 1997. Consequently, the actual effect of these developments on our
business is uncertain and unpredictable.
29
Moreover, we anticipate that Congress, state legislatures and the private
sector will continue to review and assess controls on health care spending. Any
such proposed or actual changes could cause us or our collaborators to limit or
eliminate spending on development projects and may otherwise impact us. We
cannot predict the likelihood, nature or extent of adverse governmental
regulation that might result from future legislative or administrative action,
either in the United States or abroad. Additionally, in both domestic and
foreign markets, sales of our proposed products will depend, in part, upon the
availability of reimbursement from third-party payors, such as government health
administration authorities, managed care providers, private health insurers and
other organizations. Although Congress enacted the Medicare Prescription Drug
Modernization and Improvement Act of 2003, which established a general Medicare
outpatient prescription drug benefit beginning in 2006, significant uncertainty
often exists as to the reimbursement status of newly approved health care
products. In addition, third-party payors are increasingly challenging the price
and cost-effectiveness of medical products and services. There can be no
assurance that our proposed products will be considered cost-effective or that
adequate third-party reimbursement will be available to enable us to maintain
price levels sufficient to realize an appropriate return on our investment in
product research and development.
We are also subject to federal and state laws regulating our relationships
with physicians, hospitals, third party payors of health care, and other
customers. The federal anti-kickback statute, for example, prohibits the willful
and knowing payment of any amount to another party with the intent to induce the
other party to make referrals for health care services or items payable under
any federal health care program. In recent years the federal government has
substantially increased enforcement and scrutiny of pharmaceutical manufacturers
with regard to the anti-kickback statute and other federal fraud and abuse
rules.
PEG-INTRON was approved in the European Union and the United States for
the treatment of hepatitis C in May 2000 and January 2001, respectively. ABELCET
was approved in the United States in November 1995 and in Canada in September
1997. ONCASPAR was approved for marketing in the United States and Germany in
1994 and in Canada in December 1997 for patients with acute lymphoblastic
leukemia who are hypersensitive to native forms of L-asparaginase, and in Russia
in April 1993 for therapeutic use in a broad range of cancers. ADAGEN was
approved by the FDA in March 1990. DEPOCYT received U.S. approval in April 1999.
Except for these approvals, none of our other products have been approved for
sale and use in humans in the United States or elsewhere.
With respect to patented products, delays imposed by the government
approval process may materially reduce the period during which we will have the
exclusive right to exploit them.
Competition
General
Competition in the biopharmaceutical industry is intense and based
significantly on scientific and technological factors. These factors include the
availability of patent and other protection of technology and products, the
ability to commercialize technological developments and the ability to obtain
governmental approval for testing, manufacturing and marketing. We compete with
specialized biopharmaceutical firms and large pharmaceutical companies in North
America, Europe and elsewhere, with respect to both research and development of
product candidates and commercialization of approved products. These companies,
as well as academic institutions, governmental agencies and private research
organizations, also compete with us in recruiting and retaining highly qualified
scientific personnel and consultants. All of the companies offering competing
products are larger than us and have substantially greater resources. Certain of
these companies, especially Merck and Pfizer, are able to compete effectively
with us largely by virtue of their superior resources and the market's
familiarity with their "brand names" regardless of the technical advantages or
disadvantages of their products.
ABELCET
The intravenous or IV anti-fungal market in which ABELCET competes is a
highly competitive market. The products used to treat fungal infections are
classified into four classes of drugs: CAB or
30
Conventional Amphotericin B lipid-based amphotericin B formulations, triazoles
and echinocandins. While we compete with all of these drugs, ABELCET is
predominately used in more severely ill patients.
CAB is a broad-spectrum polyene anti-fungal agent that is believed to act
by penetrating the cell wall of a fungus, thereby killing it. In its
conventional form, amphotericin B is particularly toxic to the kidneys, an
adverse effect that often restricts the amount that can be administered to a
patient. CAB is sold today as a significantly lower cost generic drug. Its usage
has been declining, however, due to these toxicities.
The lipid-based formulations of amphotericin B include ABELCET,
AMBISOME(R) (marketed by Fujisawa/Gilead) and AMPHOTEC(R) (marketed by
Intermune, Inc.). These formulations provide the efficacy of CAB while limiting
the toxicities that are inherent in CAB usage. Ambisome has proven to be a
significant competitor to ABELCET. Recently, Fugisawa/Gilead has reduced the
price of AMBISOME in certain geographic markets, increasing the competitive
pressure on ABELCET. To the extent we are not able to address this competitive
pressure successfully or we deem it necessary to reduce the price of ABELCET in
order to address this competitive threat, market share or revenues or both could
decrease, which could have a material adverse effect on our business, financial
condition or results of operations.
The triazoles, which include DIFLUCAN(R) (marketed by Pfizer), SPORONOX(R)
(marketed by Janssen Pharmaceuticals) and VFEND(R) (also marketed by Pfizer)
have the least reported incidence of side effects versus all other antifungals.
Triazoles are generally thought to be limited by a narrower spectrum of activity
and have issues with drug-to-drug interactions and acquired resistance. The
majority of triazole units sold in the U.S. are attributed to DIFLUCAN. DIFLUCAN
in particular is often used in "less compromised" patients as prophylaxis or as
first-line empirical therapy. DIFLUCAN patients are often switched to an
amphotericin B product once a clinician is convinced that a patient has a fungal
infection. VFEND is a second-generation triazole approved in May 2002 and is
available in intravenous and oral formulations. VFEND carries a broader spectrum
of activity than first generation triazoles and is indicated for the treatment
of invasive aspergillosis, scedosporium apiospermum and fusariosis in patients
intolerant of, or refractory to, other therapy. However, it carries with it a
narrower spectrum of activity versus CAB and the lipid amphotericin B
formulations, while also retaining the same potential for drug-to-drug
interactions and resistance issues as the first generation triazoles.
The newest class of products to enter the IV anti-fungal market are the
echinocandins. These exhibit fewer of the CAB side effects but, like the
triazoles, have a more limited spectrum of activity and less clinical data
supporting widespread use across a variety of fungal pathogens. CANCIDAS
(marketed by Merck) was approved in the U.S. in January 2001 and is the first
echinocandin to receive FDA approval. CANCIDAS is indicated for the treatment
invasive aspergillosis in patients who are refractory to or intolerant of other
therapies, esophageal candidiasis and candidemia. Additional echinocandin
products are in late-stage clinical development by pharmaceutical companies.
PEGylation
We are aware that other companies are conducting research on chemically
modified therapeutic proteins and that certain companies are modifying
pharmaceutical products, including proteins, by attaching PEG. In addition,
other companies have received FDA approval for PEGylated compounds, including,
Amgen's NEULASTA(R) (pegfilgrastin) and Pfizer's SOMAVERT(R) (pegvisomant for
injection). Other than PEG-INTRON, our ONCASPAR and ADAGEN products, Hoffmann-La
Roche's PEGASYS, Amgen's NEULASTA, and Pfizer's SOMAVERT, we are not aware of
any PEG-modified therapeutic proteins that are currently available commercially
for therapeutic use. Nevertheless, other drugs or treatments that are currently
available or that may be developed in the future, and which treat the same
diseases as those that our products are designed to treat, may compete with our
products.
ADAGEN
Prior to the development of ADAGEN, the only treatment available to
patients afflicted with adenosine deaminase or ADA-deficient SCID was a
well-matched bone marrow transplant. Completing a successful transplant depends
upon finding a matched donor, the probability of which is low. At present,
researchers at the NIH have been treating SCID patients with gene therapy, which
if successfully
31
developed, would compete with, and could eventually replace ADAGEN as a
treatment. The theory behind gene therapy is that cultured T-lymphocytes that
are genetically engineered and injected back into the patient will express the
deficient adenosine deaminase enzyme permanently and at normal levels. To date,
patients in gene therapy clinical trials have not been able to stop ADAGEN
treatment and, therefore, the trials have been inconclusive.
ONCASPAR
Current standard treatment of patients with acute lymphoblastic leukemia
includes administering unmodified L-asparaginase along with the drugs
vincristine, prednisone and daunomycin. Studies have shown that long-term
treatment with L-asparaginase increases the disease-free survival in high risk
patients. ONCASPAR, our PEG-modified L-asparaginase product, is used to treat
patients with acute lymphoblastic leukemia who are hypersensitive to unmodified
forms of L-asparaginase. Currently, there is one unmodified form of
L-asparaginase (ELSPAR(R)) available in the United States and several available
in Europe. We believe that ONCASPAR has two advantages over these unmodified
forms of L-asparaginase: increased circulating blood life and generally reduced
immunogenicity.
PEG-INTRON
The current market in the U.S. and Europe for PEGylated alpha interferon
products is highly competitive. PEG-INTRON, marketed by Schering-Plough,
competes directly with Hoffmann-La Roche's PEGASYS. Schering-Plough and
Hoffman-La Roche have been the major competitors in the global alpha interferon
market since the approval of their unmodified alpha interferon products, INTRON
A and ROFERON-A, respectively. Since its launch, PEGASYS has taken market share
away from PEG-INTRON, and the over all market for pegylated alpha interferon in
the treatment of Hepatitis C has not increased enough to offset the effect the
increasing PEGASYS sales have had on sales of PEG-INTRON. As a result, quarterly
sales of PEG-INTRON and the royalties we receive on those sales have declined in
recent quarters. We cannot assure you that PEGASYS will not continue to gain
market share at the expense of PEG-INTRON, which could result in lower
PEG-INTRON sales and royalties to us.
DEPOCYT
DEPOCYT competes against generic unmodified or Ara-C cytarabine, as well
as methotrexate, another generic drug, in the treatment of lymphomatous
meningitis. Both of these drugs have been used for oncology treatment for
decades and DEPOCYT does not have the same level of clinical experience as these
drugs. Clinical trials have demonstrated, however, that DEPOCYT provides certain
clinical advantages versus generic cytarabine. In a randomized, multi-center
trial of patients with lymphomatous meningitis, treated either with 50 mg of
DEPOCYT administered every 2 weeks or standard intrathecal chemotherapy
administered twice a week, results showed that DEPOCYT achieved a complete
response rate of 41% compared with a complete response rate of 6% for
unencapsulated cytarabine. In this study, complete response was prospectively
defined as (i) conversion of positive to negative CSF cytology and (ii) the
absence of neurologic progression. DEPOCYT has also demonstrated an increase in
the time to neurologic progression of 78.5 days for DEPOCYT versus 42 days for
unencapsulated cytarabine. There are no controlled trials, however, that
demonstrate a clinical benefit resulting from this treatment, such as
improvement in disease related symptoms, increased time to disease progression,
or increased survival.
Products Under Development
We are indepently developing Pegamotecan and we are jointly developing
MARQIBO with our partner Inex for the treatment of patients with gastric or
gastroesophageal junction cancers and Non-Hodgkins Lymphoma ("NHL"), who have
failed or relapsed previous therapy or therapies, respectively. Currently, there
are no other FDA approved products for these indications. Any product or
technologies that are directly or indirectly successful in treating NHL could
negatively impact the market potential for MARQIBO. Any product or technologies
that are directly or indirectly successful in treating gastric and
gastroesophageal junction cancers could negatively impact the market potential
for Pegamotecan.
ATG-FRESENIUS S will compete with Genzyme Corporation's THYMOGLOBULIN, a
polyclonal
32
antibody already approved for the prevention of organ rejection in kidney
transplant patients, as well as several other antibody products marketed by
large pharmaceutical companies.
SCA's
There are several technologies which compete with our SCA protein
technology, including chimeric antibodies, humanized antibodies, human
monoclonal antibodies, recombinant antibody Fab fragments, low molecular weight
peptides and mimetics. These competing technologies can be categorized into two
areas:
o those modifying monoclonal antibodies to minimize immunological
reaction to a foreign protein, which is the strategy employed with
chimeric, humanized, and human monoclonal antibodies, and
o those creating smaller portions of monoclonal antibodies, such as
Fab fragments and low molecular weight peptides.
We believe that the smaller size of our SCA proteins should permit better
penetration into the tumor, result in rapid clearance from the blood and be
suitable for fusion proteins, such as immunotoxins. A number of organizations
have active programs in SCA proteins. We believe that our patent position on SCA
proteins will likely require companies that have not licensed our SCA protein
patents to obtain licenses under our patents in order to commercialize their
products. We cannot be sure, however, that other companies will not develop
competing SCAs or other technologies that are not blocked by our SCA patents.
Employees
As of June 30, 2004, we employed 359 persons, including 32 persons with
Ph.D. or MD degrees. At that date, 80 employees were engaged in research and
development activities, 161 were engaged in manufacturing, 118 were engaged in
sales, marketing and administration. None of our employees are covered by a
collective bargaining agreement. All of our employees are covered by
confidentiality agreements. We consider our relations with our employees to be
good.
Item 2. Properties
As part of the ABELCET transaction, we assumed ownership of a 56,000
square foot manufacturing facility in Indianapolis, Indiana which produces
ABELCET along with other products we manufacture for others on a contract basis.
Our Indianapolis facility is not subject to any mortgage.
The following are all of the facilities that we currently lease:
Approx. Approx.
Principal Square Annual Lease
Location Operations Footage Rent Expiration
-------- ---------- ------- ---- ----------
20 Kingsbridge Road Research & Development 56,000 $581,000(1) July 31, 2021
Piscataway, NJ
300 Corporate Ct. Manufacturing 24,000 $183,000(2) October 31, 2012
S. Plainfield, NJ
685 Route 202/206 Administrative 25,000 $613,000(3) January 31, 2008
Bridgewater, NJ
(1) Under the terms of the lease, annual rent increases over the remaining
term of the lease from $581,000 to $773,000.
(2) Under the terms of the lease, annual rent increases over the remaining
term of the lease from $183,000 to $228,000.
33
(3) Under the terms of the lease, annual rent increases over the remaining
term of the lease from $613,000 to $638,000.
We believe that our facilities are well maintained and generally adequate
for our present and future anticipated needs.
Item 3. Legal Proceedings
There is no pending material litigation to which we are a party or to
which any of our property is subject.
Item 4. Submission of Matters to a Vote of Security Holders
None.
34
PART II
Item 5. Market for the Registrant's Common Equity,
Related Stockholder Matters, an Issuer Purchases of Equity Securities
Our common stock is traded on the NASDAQ National Market under the trading
symbol "ENZN".
The following table sets forth the high and low sale prices for our common
stock for the years ended June 30, 2004 and 2003, as reported by the NASDAQ
National Market. The quotations shown represent inter-dealer prices without
adjustment for retail markups, markdowns or commissions, and may not necessarily
reflect actual transactions.
Year Ended June 30, 2004 High Low
---------- ---------
First Quarter $13.90 $10.51
Second Quarter 12.52 10.28
Third Quarter 18.40 11.97
Fourth Quarter 16.20 10.86
Year Ended June 30, 2003
First Quarter 25.00 16.46
Second Quarter 20.90 15.50
Third Quarter 19.32 11.00
Fourth Quarter 15.68 11.16
As of September 13, 2004, there were 1,566 holders of record of our common
stock.
We have never declared or paid any cash dividends on our common stock and
do not anticipate paying any cash dividends in the foreseeable future. We
currently intend to retain future earnings to fund the development and growth of
our business.
Equity Compensation Plan Information
The following table sets forth information regarding outstanding options
and shares reserved for future insurance under our equity compensation plans as
of June 30, 2004 (in thousands, except per share data):
Number of securities
remaining available for
Number of securities to Weighted-average future issuance under
be issued upon exercise exercise price of equity compensation plans
of outstanding options, outstanding options, (excluding securities
Plan Category warrants and rights warrants and rights reflected in column a)
- ------------------------- ----------------------- --------------------- -------------------------
(a) (b) (c)
Equity compensation
plans approved by
security holders 4,838 $25.90 3,410
Equity compensation
plans not approved
by security holders -- -- --
----------------------- --------------------- -------------------------
Total 4,838 $25.90 3,410
======================= ===================== =========================
35
Item 6. Selected Financial Data
Set forth below is our selected financial data for the five fiscal years
ended June 30, 2004.
Consolidated Statement of Operations Data ( in thousands, except per share
data):
Years Ended June 30,
---------------------------------------------------------
2004 2003 2002 2001 2000
-------- -------- --------- --------- ---------
Consolidated Statements of Operations Data:
Total revenues $169,571 $146,406 $ 75,805 $ 31,588 $ 17,018
Cost of sales 46,986 28,521 6,078 3,864 4,888
Research and development expenses 34,769 20,969 18,427 13,052 8,383
Write-down of carrying value of investment 8,341 27,237 -- -- --
Acquired in process research and development 12,000 -- -- -- --
Other operating expenses 60,433 39,782 16,687 11,796 12,956
Operating income (loss) 7,042 29,897 34,613 2,876 (9,209)
Interest and dividend income 13,396 8,942 18,681 8,401 2,943
Interest expense 19,829 19,828 19,829 275 4
Other income (expense), net 3,860 26,938 3,218 11 (36)
Income tax provision (benefit) 1,592 223 (9,123) (512) --
Net earnings available for common stockholders 2,877 45,726 45,806 11,525 (6,306)
Net earnings per common shares
Basic $ 0.07 $ 1.06 $ 1.07 $ 0.28 ($ 0.17)
Diluted $ 0.07 $ 1.05 $ 1.04 $ 0.26 ($ 0.17)
Years Ended June 30,
---------------------------------------------------------
2004 2003 2002 2001 2000
-------- -------- --------- --------- ---------
Consolidated Balance Sheet Data:
Current assets 170,353 152,847 221,462 455,521 57,581
Current liabilities 31,664 34,345 19,701 9,410 8,172
Total assets 724,863 728,566 610,748 549,675 130,252
Other long-term obligations 1,655 2,637 552 1,276 1,118
Long-term debt 400,000 400,000 400,000 400,000 --
Total stockholders' equity 291,544 291,584 190,495 138,989 120,962
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Company Overview
We are a biopharmaceutical company that discovers, develops, manufactures
and markets enhanced therapeutics for life-threatening diseases through the
application of our proprietary technologies, as well as through strategic
transactions and partnerships Our revenues are comprised of sales of four FDA
approved products as well as royalties on sales of products that use our
technology. In addition, we manufacture several products for other companies in
our manufacturing facility. Our expenditures relate to the development of
additional products under various stages of development, as well as costs
related to the sales and manufacture of our products.
Liquidity and Capital Resources
Total cash reserves, including cash, cash equivalents and marketable
securities, as of June 30, 2004 were $186.2 million, as compared to $153.3
million as of June 30, 2003. The increase is primarily the result of net cash
provided by operations of $37.1 million, purchase of acquired in process
research and development of $12.0 million and cash proceeds of $7.8 million
related to our sale of 880,075 shares of Nektar common stock and marketable
securities. We invest our excess cash primarily in United States
government-backed securities and investment-grade corporate debt securities.
36
During the year ended June 30, 2004, net cash generated from operating
activities was $37.1 million, principally reflecting our net income of $2.9
million, depreciation and amortization of $22.1 million, other non-cash charges
provided of $10.2 million, acquired in process research and development of $12.0
million, write-down of the carrying value of Micromet of $8.3 million, and a net
increase in operating assets and liabilities of $2.0 million. During the year
ended June 30, 2003, net cash generated from operating activities was $58.2
million, primarily reflecting our net income of $45.7 million and the effect of
non-cash amounts for the merger termination fee of $34.6 million, the write-down
of the carrying value of an investment of $27.2 million, depreciation and
amortization of $13.8 million, deferred taxes of $4.4 million, and lower working
capital of $10.5 million. During the year ended June 30, 2002, net cash
generated from operating activities was $29.6 million, primarily reflecting our
net income of $45.8 million and the effect of non-cash amounts for the
depreciation and amortization, deferred taxes of $9.0 million, and increased
working capital of $7.2 million.
Net cash used in by investing activities totaled $12.8 million for the
year ended June 30, 2004 as compared to $106.4 million and $231.1 million for
the years ended June 30, 2003 and 2002, respectively. Cash provided by investing
activities during the year ended June 30, 2004 consisted of net proceeds from
marketable securities of $5.6 million, which was offset by cash used in
investing activities of $6.4 million for purchases of property and equipment and
$12.0 million for acquired in process research and development. Cash used in
investing activities during the year ended June 30, 2003 related to $11.2
million for purchases of property and equipment, $369.3 million for the
acquisition of the North American ABELCET business, and $12.2 million for the
North American license of DEPOCYT. These items were partly offset by net
proceeds from marketable securities totaling $286.3 million for the year ended
June 30, 2003. Cash used in investing activities for the year ended June 30,
2002 related to $7.5 million for purchases of property and equipment, $15.0
million of product rights related to the reacquisition of ONCASPAR, and $48.3
million of other investments. These items were offset by net purchases of
marketable securities of $160.3 million.
Net cash provided by financing activities for the years ended June 30,
2004, 2003, and 2002 was $527,000, $1.1 million, and $5.1 million, respectively.
Financing activities for the year ended June 30, 2004 were related to proceeds
from common stock issued under our stock option plans. Financing activities for
the year ended June 30, 2003 were primarily related to proceeds from common
stock issued under our stock options plans and payment of preferred stock
dividends. Financing activity for the year ended June 30, 2002 was related to
proceeds from common stock issued under our stock option plans.
As of June 30, 2004, we had $400.0 million of 4.5% convertible
subordinated notes outstanding. The notes bear interest at an annual rate of
4.5%. Interest is payable on January 1 and July 1 of each year. Accrued interest
on the notes was $9.0 million as of June 30, 2004. The holders may convert all
or a portion of the notes into common stock at any time on or before July 1,
2008. The notes are convertible into our common stock at a conversion price of
$70.98 per share, subject to adjustment in certain events. The notes are
subordinated to all existing and future senior indebtedness. On or since July 7,
2004, we may redeem any or all of the notes at specified redemption prices, plus
accrued and unpaid interest to the day preceding the redemption date. The notes
will mature on July 1, 2008 unless earlier converted, redeemed at our option or
redeemed at the option of the note-holder upon a fundamental change, as
described in the indenture for the notes. Neither we nor any of our subsidiaries
are subject to any financial covenants under the indenture. In addition, neither
we nor any of our subsidiaries are restricted under the indenture from paying
dividends, incurring debt, or issuing or repurchasing our securities.
In August 2003, we entered into a Zero Cost Protective Collar arrangement
with a financial institution to reduce the exposure associated with the 1.5
million shares of common stock of NPS we received as part of the merger
termination agreement with NPS. By entering into this equity collar arrangement
and taking into consideration the underlying put and call option strike prices,
the terms are structured so that our investment in NPS stock, when combined with
the value of the Collar, should secure ultimate cash proceeds in the range of
85%-108% of the negotiated fair value per share of $23.47 (representing a 4.85%
discount off of the closing price of NPS common stock on the day before the
collar was executed). The Collar is considered a derivative hedging instrument
under SFAS No. 133 and as such, we periodically measure its fair value and
recognize the derivative as an asset or a liability. The change in fair value is
recorded as either other comprehensive income (See Note 3) or in the Statement
of Operations depending on the portion of the derivative designated and
effective as a hedge. As of June 30, 2004, the market
37
value of NPS' common stock was $21.00 per share. When the underlying shares
become unrestricted and freely tradable, we are required to deliver to the
financial institution as posted collateral, a corresponding number of shares of
NPS common stock. During the year ended June 30, 2004, we sold and re-purchased
1,125,000 shares respectively of common stock of NPS. The unrealized gain
previously included in other comprehensive income prior to the sale and
repurchase with respect to these shares aggregating $1.8 million for the year
ended June 30, 2004, was recognized in the Statements of Operations and is
included in "Other Income". With respect to the remaining 375,000 shares of NPS
common stock, as of June 30, 2004, $38,000 has been recorded in comprehensive
income for the year ended June 30, 2004, net of income taxes. The fair value of
the Collar represents a receivable from the counterparty of $1.7 million at June
30, 2004. In addition, the time value component of the Collar represents a gain
of $1.7 million for the year ended June 30, 2004, was recorded as "Other Income"
in the Statement of Operations. The Collar will mature in four separate
three-month intervals beginning November 2004 through August 2005, at which time
we will receive the proceeds from the sale of the securities. The amount due at
each maturity date will be determined based on the market value of NPS' common
stock on such maturity date. The contract requires us to maintain a minimum cash
balance of $30.0 million and additional collateral up to $10.0 million (as
defined) under certain circumstances with the financial institution. The strike
prices of the put and call options are subject to certain adjustments in the
event we receive a dividend from NPS.
Our current sources of liquidity are our cash reserves; interest earned on
such cash reserves; short-term investments; marketable securities; sales of
ADAGEN(R), ONCASPAR(R), DEPOCYT(R) and ABELCET(R); and royalties earned, which
are primarily related to sales of PEG-INTRON(R); and contract manufacturing
revenue. Based upon our current planned research and development activities and
related costs and our current sources of liquidity, we anticipate our current
cash reserves and expected cash flow from operations will be sufficient to meet
our capital, debt service and operational requirements for the foreseeable
future.
While we believe that our cash, cash reserves and investments will be
adequate to satisfy our capital needs for the foreseeable future, we may seek
additional financing, such as through future offerings of equity or debt
securities or agreements with collaborators with respect to the development and
commercialization of products, to fund future operations and potential
acquisitions. We cannot assure you, however, that we will be able to obtain
additional funds on acceptable terms, if at all.
Off-Balance Sheet Arrangements
As part of our ongoing business, we do not participate in transactions
that generate relationships with unconsolidated entities or financial
partnerships, such as entities often referred to as structured finance or
special purpose entities ("SPE"), which would have been established for the
purpose of facilitating off-balance sheet arrangements or other contractually
narrow limited purposes. As of June 30, 2004 we are not involved in any SPE
transactions.
Contractual Obligations
Our major outstanding contractual obligations relate to our operating
leases, inventory purchase commitments, our convertible debt and our license
agreements with collaborative partners.
As of June 30, 2004, we had $400.0 million of convertible subordinated
notes outstanding. The notes bear interest at an annual rate of 4.5%. Interest
is payable on January 1 and July 1 of each year beginning January 2, 2002.
Accrued interest on the notes was $9.0 million as of June 30, 2004 (which was
paid on July 1, 2004). The holders may convert all or a portion of the notes
into common stock at any time on or before July 1, 2008. The notes are
convertible into our common stock at a conversion price of $70.98 per share,
subject to adjustment in certain events. The notes are subordinated to all
existing and future senior indebtedness. On or after July 7, 2004, we may redeem
any or all of the notes at specified redemption prices, plus accrued and unpaid
interest to the day preceding the redemption date. The notes will mature on July
1, 2008 unless earlier converted, redeemed at our option or redeemed at the
option of the note-holder upon a fundamental change, as described in the
indenture for the notes. Neither we nor any of our subsidiaries are subject to
any financial covenants under the indenture. In addition, neither we nor any of
our subsidiaries are restricted under the indenture from paying dividends,
incurring debt or issuing or repurchasing our securities.
38
We have a multi-year strategic collaboration with Micromet, a private
company, to combine our patent estates and complementary expertise in
single-chain antibody (SCA) technology to create a leading platform of
therapeutic products based on antibody fragments. We have an obligation to fund
50% of research and development expenses for certain activities relating to SCA
for the collaboration through September 2007.
We have a multi-year strategic alliance with Nektar whereby the companies
have entered into a product development agreement to jointly develop three
products to be specified over time using Nektar's enhance pulmonary delivery
platform and supercritical fluids platform. We have an obligation to fund most
clinical development and commercialization costs for the collaboration through
January 2007.
Our strategic alliance with SkyePharma PLC ("SkyePharma") provides for the
two Companies to combine their drug delivery technology and expertise to jointly
develop up to three products for future commercialization. Research and
development costs related to the jointly developed products will be shared
equally based on an agreed upon annual budget, and future revenues generated
from the commercialization of jointly-developed products will also be shared
equally. In addition, SkyePharma is entitled to a $2.0 million milestone payment
for each product based on its own proprietary technology that enters Phase II
clinical development.
Under our exclusive license for the right to sell, market and distribute
SkyePharma's DEPOCYT product, we are required to purchase minimum levels of
finished product for calendar 2003 of 90% of the previous year sales by
SkyePharma and a sales level of $5.0 million for each subsequent calendar year.
SkyePharma is also entitled to a milestone payment of $5.0 million if our sales
of the product exceed a $17.5 million annualized run rate for four consecutive
quarters and an additional milestone payment of $5.0 million if Enzon's sales
exceed an annualized run rate of $25 million for four consecutive quarters. We
are also responsible for a $10.0 million milestone payment if the product
receives approval for all neoplastic meningitis prior to December 31, 2006. This
milestone payment is incrementally reduced if the approval is received
subsequent to December 31, 2006 to a minimum payment of $5.0 million for an
approval after December 31, 2007.
Under our agreement with Fresenius Biotech ("Fresenius") we are
responsible for North American clinical development, approval, and
commercialization of ATG-FRESENIUS S. In September 2004, the Company made a $1.0
million milestone payment to Fresenius upon FDA approval of an Investigational
New Drug Application. We are obligated to make another milestone payment
of $1.0 million upon submission of a Biologics License Application. Upon the
commercialization of the product in North America, we will purchase the finished
product from Fresenius at a specified percentage of net sales.
During January 2004, we entered into a strategic partnership with Inex. We
are obligated to make a milestone payment of up to $20.0 million to Inex upon
MARQIBO receiving accelerated approval from the FDA. Additional development
milestones and sales-based bonus payments could total $43.75 million, of which
$10.0 million is payable upon annual sales first reaching $125.0 million and
$15.0 million is payable upon annual sales first reaching $250.0 million. Inex
will also receive a percentage of commercial sales of MARQIBO and this
percentage will increase as sales reach certain predetermined thresholds.
The Company leases three facilities in New Jersey. Total future minimum
lease payments and commitments for operating leases total $15.7 million.
Contractual obligations represent future cash commitments and liabilities
under agreements with third parties, and exclude contingent liabilities for
which we cannot reasonably predict future payment.
The following chart represents our contractual cash obligations aggregated
by type as of June 30, 2004 (in millions):
39
Payments due by period
-----------------------------------------------------------------
Contractual Obligations and Less than More than 5
Commercial Commitments Total 1 Year 2 - 3 Years 4 - 5 Years years
------ --------- ----------- ----------- -----------
Long-term debt including current
portion $400.0 $ -- $ -- $400.0 $ --
Operating lease obligations 15.7 1.5 2.9 2.1 9.2
Inventory purchase obligations 45.0 5.0 10.0 10.0 20.0
Interest due on long-term debt 81.0 18.0 36.0 18.0 9.0
------ ------ ------ ------ ------
Totals $541.7 $ 24.5 $ 48.9 $430.1 $ 38.2
====== ====== ====== ====== ======
This table does not include milestone commitments of $60.6 million which are
only payable upon the occurrence of future events.
Fiscal Years Ended June 30, 2004, 2003, and 2002
Revenues. Total revenues for the year ended June 30, 2004 were $169.6
million compared to $146.4 million for the year ended June 30, 2003 and $75.8
million for the year ended June 30, 2002. The components of revenues are product
sales, contract manufacturing revenues, royalties we earn on the sale of our
products by others, and contract revenues.
Net product sales for the year ended June 30, 2004 increased by 82% to
$107.9 million compared to $59.3 million for the year ended June 30, 2003. The
increase in sales was due to increased sales of each of our four internally
marketed products: ABELCET(R), DEPOCYT(R), ADAGEN(R) and ONCASPAR(R). During
November 2002, we acquired the North American ABELCET business from Elan. During
the year ended June 30, 2004, we recorded sales of ABELCET in North America of
$67.7 million for the year ended June 30, 2004, as compared to $28.4 million for
the year ended June 30, 2003. During January 2003, we obtained an exclusive
license for the right to sell, market, and distribute SkyePharma's DEPOCYT in
North America. During the year ended June 30, 2004, we recorded DEPOCYT sales of
$5.0 million as compared to $2.5 million for year ended June 30, 2003. The
increase in net sales of ABELCET and DEPOCYT was principally due to the
acquisition of the product during the year ended June 30, 2003. Sales of
ONCASPAR increased by 46% to $18.1 million for the year ended June 30, 2004 from
$12.4 million for the year ended June 30, 2003. This was a result of additional
sales and marketing efforts to support ONCASPAR. In June 2002, we reacquired the
North American rights to market and distribute ONCASPAR in North America for
certain territories which were previously licensed to Aventis. Sales of ADAGEN
increased by 7% for the year ended June 30, 2004 to $17.1 million, as compared
to $16.0 million for the year ended June 30, 2003 due to an increase in the
number of patients receiving the drug.
Net product sales increased by 167% to $59.3 million for the year ended
June 30, 2003 from $22.2 million for the year ended June 30, 2002. The increase
in net sales was due to the commencement of sales of ABELCET in North America in
November 2002 and DEPOCYT(R) in January 2003, and increased sales of ADAGEN and
ONCASPAR. During the year ended June 30, 2003, we recorded $28.4 million related
to sales of ABELCET in North America. During the year ended June 30, 2003, we
recorded DEPOCYT sales of $2.5 million. Sales of ONCASPAR increased by 43% to
$12.4 million for the year ended June 30, 2003, compared to $8.7 million for the
year ended June 30, 2002. In June 2002, we reacquired the rights to market and
distribute ONCASPAR in North America and certain other territories, which we
previously exclusively licensed to Aventis. Sales of ADAGEN increased by 19% for
the year ended June 30, 2003 to $16.0 million, as compared to $13.5 million for
the year ended June 30, 2002 due to an increase in the number of patients
receiving the drug.
Contract manufacturing revenue for the year ended June 30, 2004 was $12.9
million, as compared to $8.7 million for the comparable period of the prior
year. Contract manufacturing revenue is related to the manufacture and sale of
ABELCET for the international market and other contract manufacturing revenue.
As part of the ABELCET acquisition in November 2002, we entered into a long-term
manufacturing and supply agreement with Elan, under which we continue to
manufacture two products, MYOCET and ABELCET for the European market. During
February 2004, Elan sold its European sales and marketing business to Medeus
Pharma Ltd ("Medeus") and transferred the manufacturing and supply agreement to
Medeus. Approximately $1.7 million of the $12.9 million of revenues recorded
during the year ended June 30, 2004 related to a payment of $1.7 million from
Elan for invoices that had been previously disputed by Elan and therefore, not
previously recognized as revenue.
40
Contract manufacturing revenue for the year ended June 30, 2003 is related
to the manufacture and sale of ABELCET for the international market and other
contract manufacturing revenue, which began in November 2002 as part of the
ABELCET acquisition. Contract manufacturing revenue for the year ended June 30,
2003 was $8.7 million.
Royalties for the year ended June 30, 2004 decreased to $47.7 million
compared to $77.6 million for the year ended June 30, 2003. The decrease was
primarily due to decreased sales of PEG-INTRON by Schering-Plough, our marketing
partner, due to competitive pressure from the competing pegylated alpha
interferon product, PEGASYS(R), which Hoffmann-La Roche launched as a
combination therapy for hepatitis C in December 2002.
Royalties for the year ended June 30, 2003 increased to $77.6 million as
compared to $53.3 million for the year ended June 30, 2002. The increase was
primarily due to the increased sales by Schering-Plough, our marketing partner,
of PEG-INTRON in combination with REBETOL in the U.S. and increased sales of
PEG-INTRON in Europe.
Due to the competitive pressure from PEGASYS, we believe royalties from
sales of PEG-INTRON may continue to decrease in the near term. This decrease may
be offset by the potential launch of PEG-INTRON in combination with REBETOL in
Japan. In April 2004, Schering-Plough announced a New Drug Application was filed
in Japan for PEG-INTRON combination therapy. Since its launch, PEGASYS has taken
market share away from PEG-INTRON in the U.S. and Europe and the overall market
for pegylated alpha interferon in the treatment of hepatitis C has not increased
enough to offset the effect PEGASYS sales have had on sales of PEG-INTRON. As a
result, quarterly sales of PEG-INTRON and the royalties we receive on those
sales have declined in recent quarters. We cannot assure you that PEGASYS will
not continue to gain market share at the expense of PEG-INTRON, which could
result in lower PEG-INTRON sales and royalties to us.
Based on our focused marketing efforts for ABELCET we believe that we have
been able to stabilize the pressure from the introduction of new products in the
antifungal market, namely Pfizer's VFEND(R) and Merck's CANCIDAS(R). Given the
highly competitive landscape of the antifungal market, we expect ABELCET to have
modest growth over the next year.
We expect ADAGEN sales to grow over the next year at similar levels to
those achieved for the year ended June 30, 2004. We expect ONCASPAR sales to
continue to grow, but at a pace slower then the 46% growth rate achieved in
fiscal 2004. ONCASPAR sales may decline if we are unable to correct certain
manufacturing problems that have caused us to recall two lots in recent months.
We expect DEPOCYT sales to gain modestly from the current sales level of
approximately $1.0 million to $1.2 million per quarter. However, we cannot
assure you that any particular sales levels of ABELCET, ADAGEN, ONCASPAR,
DEPOCYT or PEG-INTRON will be achieved or maintained.
Contract revenues for the year ended June 30, 2004 increased to $1.0
million as compared to $811,000 for the year ended June 30, 2003 and $293,000
for the year ended June 30, 2002. The increase was due to the recognition of
revenue over the entire fiscal year related to payments received from the
licensing of our PEG technology to SkyePharma. In connection with such
licensing, we received a payment of $3.5 million in January 2003, which is being
recognized into income based on the term of the related agreement.
We had export sales and royalties recognized on export sales of $44.3
million for the year ended June 30, 2004, $40.2 million for the year ended June
30, 2003 and $26.3 million for the year ended June 30, 2002. Of these amounts,
sales in Europe and royalties recognized on sales in Europe, were $34.7 million
for the year ended June 30, 2004, $35.5 million for the year ended June 30, 2003
and $24.9 million for the year ended June 30, 2002.
Cost of Sales and Manufacturing Revenue. Cost of sales and manufacturing
revenue, as a percentage of net product sales and manufacturing revenue,
decreased to 39% for the year ended June 30, 2004 as compared to 42% for the
year ended June 30, 2003. The decrease was principally due to the higher 2003
41
inventory costs as a result of certain purchase accounting adjustments to the
inventory acquired with the ABELCET acquisition, which was sold during the year
ended June 30, 2003, as well as manufacturing revenue with no related costs due
to a payment of $1.7 million from Elan for invoices that had been previously
disputed by Elan and therefore not previously recognized as income.
Cost of sales and manufacturing revenue, as a percentage of net product
sales and manufacturing revenue, for the year ended June 30, 2003 was 42% as
compared to 27% in 2002. The increase was due to higher cost of sales for
ABELCET due to certain purchase accounting adjustments to the acquired inventory
totaling $8.6 million and as a result of unabsorbed capacity costs. The increase
was also due to our reacquisition of ONCASPAR, which resulted in increased cost
of sales for the product. Under the reacquisition agreement, we made a $15.0
million payment to Aventis in June 2002 and we pay Aventis 25% royalty on net
sales of ONCASPAR. The royalty and amortization of the $15.0 million payment
over a 14 year period are included in cost of sales for the product, accounting
for an increase in cost of sales as a percentage of sales.
Research and Development. Research and development expenses increased by
$13.8 million or 66% to $34.8 million for the year ended June 30, 2004, as
compared to $21.0 million for the same period last year. The increase was
primarily due to (i) increased spending of approximately $2.5 million related to
our single chain antibody collaboration with Micromet AG; (ii) increased
spending on our two late stage development programs, Pegamotecan of
approximately $1.2 million and ATG Fresenius S, of approximately $3.0 million;
(iii) increased spending of approximately $2.0 million related to our strategic
partnership with Inex on Inex's proprietary oncology product MARQIBO; (iv)
increased preclinical spending of $1.7 million; and (v) increased
personnel-related expenses of approximately $3.4 million.
Research and development expenses for the year ended June 30, 2003
increased by $2.6 million or 14% to $21.0 million as compared to $18.4 million
in 2002. The increase was primarily due to (i) increased spending of
approximately $1.7 million related to our single chain antibody collaboration
with Micromet AG; (ii) increased spending on our two late stage development
programs, Pegamotecan and ATG FRESENIUS S, of approximately $1.4 million. These
increases were partially offset by a decrease of approximately $500,000 in costs
as a result of our January 2003 decision to suspend our PEG-paclitaxel program.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses for the year ended June 30, 2004 increased by $16.4
million to $47.0 million, as compared to $30.6 million in 2003. The increase was
primarily due to (i) increased sales and marketing expenses of approximately
$11.3 million related to the hiring of our North American sales force in
connection with our acquisition of ABELCET; (ii) increased sales and marketing
expense of approximately $2.7 million related to the continued build out of a
sales and marketing presence in oncology for ONCASPAR and DEPOCYT; and (iii)
increased costs of approximately $2.4 million that were primarily attributable
to personnel-related expenses.
Selling, general and administrative expenses for the year ended June 30,
2003 increased by $14.1 million to $30.6 million, as compared to $16.5 million
in 2002. The increase was primarily due to (i) increased sales and marketing
expense of approximately $10.8 million related to the acquisition of ABELCET and
the subsequent hiring of our North American sales force; (ii) increased sales
and marketing expense of approximately $4.2 million due to the reacquisition of
marketing and distribution rights for ONCASPAR from Aventis and the subsequent
establishment of a sales and marketing presence in oncology; and (iii) increased
costs of approximately $626,000 that were primarily attributable to
personnel-related expenses. These increases were partially offset by a reduction
in legal expense of approximately $1.5 million related to the settlement of the
prior year's patent litigation with Nektar. During January 2002, we settled our
patent infringement suit with Nektar and entered into a broad collaboration.
Amortization. Amortization expense increased to $13.4 million for the year
ended June 30, 2004, as compared to $9.2 million for the year ended June 30,
2003 and $142,000 for the year ended June 30, 2002, as a result of the
intangible assets acquired in connection with the ABELCET acquisition during
November 2002. Amortization of intangible assets is provided over their
estimated lives ranging from 3-15 years on a straight-line basis.
Acquired In Process Research and Development. Acquired in process research
and development for the year ended June 30, 2004 of $12.0 million was due to an
up-front payment to Inex related to the execution of our strategic partnership
and related agreements entered into with Inex related to MARQIBO (a
42
development-stage product).
Write-down of investment. During the year ended June 30, 2004, we recorded
a write-down of the carrying value of our investment in Micromet, which resulted
in a non-cash charge of $8.3 million. In April 2002, we entered into a
multi-year strategic collaboration with Micromet, which was amended in June
2004, to identify and develop antibody-based therapeutics. We made an $8.3
million investment into Micromet in the form of a convertible note due to Enzon
that is payable in March 2007 and bears interest at 3%. This note is convertible
into Micromet common stock at the election of either party. We based our
decision to write-down the note due an other-than-temporary decline in the
estimated fair value of this investment.
In January 2002, we entered into a broad strategic alliance with Nektar to
co-develop products utilizing both companies' proprietary drug delivery
platforms. As a part of this agreement, we purchased $40.0 million of newly
issued Nektar convertible preferred stock which is currently convertible into
Nektar common stock at a conversion price of $22.79 per share. Under the cost
method of accounting, investments are carried at cost and are adjusted only for
other-than-temporary declines in fair value, and additional investments. As a
result of a continued decline in the price of Nektar's common stock, which was
determined to be other-than-temporary, we recorded a write-down of the carrying
value of our investment in Nektar, which resulted in a non-cash charge of $27.2
million. The adjustment was calculated based on an assessment of the fair value
of the investment at the time of the write-down.
The estimated fair value of the Nektar preferred stock was determined by
multiplying the number of shares of common stock that would be received based on
the conversion rate in place as of the date of the agreement, ($22.79 per share)
by the closing price of Nektar common stock on December 31, 2002, less a 10%
discount to reflect the fact that the shares were not convertible as of December
31, 2002, the valuation date.
Other income (expense) Other income (expense) for the year ended June 30,
2004 was an expense of $2.6 million, as compared to other income of $16.1
million for the year ended June 30, 2003. Other income (expense) includes: net
investment income, interest expense, and other income.
Net investment income for the year ended June 30, 2004 increased by $4.5
million to $13.4 million for the year ended June 30, 2004, as compared to $8.9
million for the year ended June 30, 2003. The increase was primarily due to a
net realized gain of $11.0 million principally related to the sale of
approximately 50% of the Company's investment in Nektar. The increase was
partially offset by a decrease in our interest-bearing investment as a result of
our previous years purchase of the North American rights to ABELCET in November
2002 for a cash payment of $360.0 million plus acquisition costs, as well as a
decrease in interest rates.
Net investment income for the year ended June 30, 2003 decreased by $9.8
million to $8.9 million for the year ended June 30, 2003, as compared to $18.7
million for the year ended June 30, 2002. The decrease was primarily due to a
reduction in our interest-bearing investments resulting from our purchase of the
North American rights to ABELCET in November 2002 for a cash payment of $360.0
million plus acquisition costs, as well as a decrease in interest rates.
Interest expense was $19.8 million for each of the years ended June 30,
2004, 2003, and 2002. Interest expense is related to $400.0 million in 4.5%
convertible subordinated notes, which were outstanding for each of the periods.
During the year ended June 30, 2003, we recorded NPS merger termination
income of $26.9 million. This amount reflects the aggregate consideration of
$34.6 million we received related to the mutual termination of our proposed
merger with NPS Pharmaceuticals, Inc. in June 2003 net of $7.7 million in costs
incurred related to the proposed merger with NPS (primarily investment banking,
legal, and accounting fees).
Other income increased by approximately $3.8 million to $3.9 million for
the year ended June 30, 2004, as compared to $41,000 for the year ended June 30,
2003. The increase in other income was related to a derivative instrument we
entered into as a protective collar arrangement to reduce our exposure
associated with the 1.5 million shares of NPS common stock. During the year
ended June 30, 2004, we recorded other income of $1.7 million to reflect the
change in the fair value of this derivative hedging instrument and $1.8 million
on the sale of NPS Common Stock.
43
Other income (expense) decreased to $41,000 for the year ended June 30,
2003 as compared to $3.2 million for the prior year, primarily due to a $3.0
million payment received from Nektar in the prior year in connection with the
settlement of the patent infringement suit against Nektar's subsidiary
Shearwater Corporation, Inc. This one-time payment was reimbursement for
expenses we incurred in defending our branched PEG patent.
Income Taxes. For the year ended June 30, 2004 the Company recognized a
net tax expense of approximately $1.6 million for federal and state purposes.
Income tax expense for the year ended June 30, 2004 is comprised of a tax
provision for income taxes payable and a charge of $2.7 million primarily
related to an increase in the Company's valuation allowance for certain research
and development tax credits and capital losses that we believe it is now more
likely than not that we may not be able to utilize. We continue to believe it is
more likely than not that we will be able to utilize the majority of our net
operating loss carryforwards and tax credits. During the year ended June 30,
2004, we sold approximately $3.2 million of our state net operating loss
carryforwards for proceeds of $254,000 (which was recorded as a tax benefit) and
we purchased approximately $23.5 million of gross state net operating loss
carryforwards for $1.5 million.
For the year ended June 30, 2003, we recognized net tax expense of
approximately $223,000. Certain tax expense, primarily related to the NPS
settlement in June 2003, was offset by the reduction in the valuation allowance
based on our net operating loss carryforwards expected to be utilized in the
future. We believe it is more likely than not that we will be able to utilize
the majority of our net operating loss carryforwards and tax credits, and we
therefore recognized $67.5 million of net deferred tax assets. Of these assets,
approximately $54.7 million related to net operating losses from stock option
exercises which, pursuant to SFAS No. 109, Accounting for Income Taxes, was
recorded as an increase in additional paid in capital and not as a credit to
income tax expense. The remaining benefit from the reduction of the valuation
allowance totaled $11.2 million and was recorded as an income tax benefit in the
Statement of Operations. During the year ended June 30, 2003, we sold
approximately $6.0 million of our state net operating loss carryforwards for
proceeds of $474,000 (which was recorded as a tax benefit) and we purchased
approximately $11.8 million of gross state net operating loss carryforwards for
$1.1 million.
Critical Accounting Policies
In December 2001, the SEC requested that all registrants discuss their
most "critical accounting policies" in Management's Discussion and Analysis of
Financial Condition and Results of Operations. The SEC indicated that a
"critical accounting policy" is one which is both important to the portrayal of
the company's financial condition and results of operations and requires
management's most difficult, subjective or complex judgments, often as a result
of the need to make estimates about the effect of matters that are inherently
uncertain.
Our consolidated financial statements are presented in accordance with
accounting principles that are generally accepted in the United States. All
professional accounting standards effective as of June 30, 2004 have been taken
into consideration in preparing the consolidated financial statements. The
preparation of the consolidated financial statements requires estimates and
assumptions that affect the reported amounts of assets, liabilities, revenues,
expenses and related disclosures. Some of those estimates are subjective and
complex, and, consequently, actual results could differ from those estimates.
The following accounting policies have been highlighted as significant because
changes to certain judgments and assumptions inherent in these policies could
affect our consolidated financial statements.
Revenues from product sales and manufacturing revenue are recognized at
the time of shipment and a provision is made at that time for estimated future
credits, chargebacks, sales discounts, rebates and returns. These sales
provision accruals, except for rebates which are recorded as a liability, are
presented as a reduction of the accounts receivable balances. We continually
monitor the adequacy of the accruals by comparing the actual payments to the
estimates used in establishing the accruals. We ship product to customers
primarily FOB shipping point and utilize the following criteria to determine
appropriate revenue recognition: pervasive evidence of an arrangement exists,
delivery has occurred, selling price is fixed and determinable and collection is
reasonably assured.
Royalties under our license agreements with third parties are recognized
when earned through the sale of the product by the licensor net of any estimated
future credits, chargebacks, sales discount rebates and refunds.
44
Contract revenues are recorded as the earnings process is completed.
Non-refundable milestone payments that represent the completion of a separate
earnings process are recognized as revenue when earned, upon the occurrence of
contract-specified events and when the milestone has substance. Non-refundable
payments received upon entering into license and other collaborative agreements
where we have continuing involvement are recorded as deferred revenue and
recognized ratably over the estimated service period.
Under the asset and liability method of Statement of Financial Accounting
Standards ("SFAS") No. 109, deferred tax assets and liabilities are recognized
for the estimated future tax consequences attributable to differences between
financial statement carrying amounts of existing assets and liabilities and
their respective tax bases. Deferred tax assets and liabilities are measured
using enacted tax rates expected to apply to taxable income in the years in
which those temporary differences are expected to be recovered or settled. A
valuation allowance on net deferred tax assets is provided for when it is more
likely than not that some portion or all of the deferred tax assets will not be
realized. We have significant net deferred tax assets, primarily related to net
operating loss and other carryforwards, and continue to analyze what level of
the valuation allowance is needed taking into consideration the expected future
performance of the Company.
We assess the carrying value of our cost method investments in accordance
with SFAS No. 115 and SEC Staff Accounting Bulletin (SAB) No. 59. Commencing
with the first quarter of fiscal 2005 the Company will evaluate investments in
accordance with EITF 03-01, the Meaning of Other-Than-Temporary Impairment and
its application to Certain Investments. An impairment write-down is recorded
when a decline in the value of an investment is determined to be
other-than-temporary. These determinations involve a significant degree of
judgment and are subject to change as facts and circumstances changes.
In accordance with the provisions of SFAS No. 142, goodwill and intangible
assets determined to have an indefinite useful life acquired in a purchase
business combination, are not subject to amortization, are tested at least
annually for impairment, and are tested for impairment more frequently if events
and circumstances indicate that the asset might be impaired. The Company
completed its annual goodwill impairment test on May 31, 2004, which indicated
that goodwill was not impaired. An impairment loss is recognized to the extent
that the carrying amount exceeds the asset's fair value. This determination is
made at the Company level because the Company is in one reporting unit and
consists of two steps. First, the Company determines the fair value of its
reporting unit and compares it to its carrying amount. Second, if the carrying
amount of its reporting unit exceeds its fair value, an impairment loss is
recognized for any excess of the carrying amount of the reporting unit's
goodwill over the implied fair value of that goodwill. The implied fair value of
goodwill is determined by allocating the fair value of the reporting unit in a
manner similar to a purchase price allocation, in accordance with FASB Statement
No. 141, Business Combinations. The residual fair value after this allocation is
the implied fair value of the Company's goodwill. Recoverability of amortizable
intangible assets is determined by comparing the carrying amount of the asset to
the future undiscounted net cash flow to be generated by the asset. The
evaluations involve amounts that are based on management's best estimate and
judgment. Actual results may differ from these estimates. If recorded values are
less than the fair values, no impairment is indicated. SFAS No. 142 also
requires that intangible assets with estimated useful lives be amortized over
their respective estimated useful lives.
The Company applies the intrinsic value-based method of accounting
prescribed by Accounting Principles Board ("APB") Opinion No. 25, Accounting for
Stock Issued to Employees, and related interpretations, in accounting for its
fixed plan stock options. As such, compensation expense would be recorded on the
date of grant of options to employees and members of the Board of Directors only
if the current market price of the underlying stock exceeded the exercise price.
SFAS No. 123, Accounting for Stock-Based Compensation, established accounting
for stock-based employee compensation plans. As allowed by SFAS No. 123, the
Company has elected to continue to apply the intrinsic value-based method of
accounting described above, and has adopted the disclosure requirements of SFAS
No. 123, as amended.
When the exercise price of employee or director stock options is less than
the fair value of the underlying stock on the grant date, the Company records
deferred compensation for the difference and amortizes this amount to expense
over the vesting period of the options. Options or stock awards issued to
non-employees and consultants are recorded at their fair value as determined in
accordance with SFAS No. 123 and EITF No. 96-18, Accounting for Equity
Instruments That Are Issued to Other Than Employees for Acquiring, or in
Conjunction with Selling, Goods or Services and recognized over the related
vesting period.
45
Recently Issued Accounting Standards
In December 2003, the Financial Accounting Standards Board ("FASB") issued
FASB Interpretation No. 46 (revised December 2003) ("FIN46-R"), Consolidation of
Variable Interest Entities, which addresses how a business enterprise should
evaluate whether it has a controlling financial interest in an entity through
means other than voting rights and accordingly should consolidate the entity.
FIN 46-R replaces FASB Interpretation No. 46, Consolidation of Variable Interest
Entities ("FIN 46"), which was issued in January 2003. FIN 46-R requires that if
an entity has a controlling financial interest in a variable interest entity,
the assets, liabilities and results of activities of the variable interest
entity should be included in the consolidated financial statements of the
entity. The provisions of FIN 46-R are effective immediately to those entities
that are considered to be special-purpose entities. For all other arrangements,
the FIN 46-R provisions are required to be adopted at the beginning of the first
interim or annual period ending after March 15, 2004. As of June 30, 2004 the
Company is not a party to transactions contemplated under FIN 46-R.
In November 2002, the Emerging Issues Task Force ("EITF") reached a
consensus opinion on EITF 00-21, Revenue Arrangements with Multiple
Deliverables. The consensus provides that revenue arrangements with multiple
deliverables should be divided into separate units of accounting if certain
criteria are met. The consideration for the arrangement should be allocated to
the separate units of accounting based on their relative fair values, with
different provisions if the fair value of all deliverables is not known or if
the fair value is contingent on delivery of specified items or performance
conditions. Applicable revenue recognition criteria should be considered
separately for each separate unit of accounting. EITF 00-21 is effective for
revenue arrangements entered into in fiscal periods beginning after June 15,
2003. This adoption did not have any impact on our financial position or results
of operations.
In May 2003, the Financial Accounting Standards Board issued SFAS No. 150,
Accounting for Certain Financial Instruments with Characteristics of both
Liabilities and Equity. SFAS No. 150 requires that certain financial
instruments, which under previous guidance were accounted for as equity, must
now be accounted for as liabilities. The financial instruments affected include
mandatorily redeemable stock, certain financial instruments that require or may
require the issuer to buy back some of its shares in exchange for cash or other
assets and certain obligations that can be settled with shares of stock. SFAS
No. 150 is effective for all financial instruments entered into or modified
after May 31, 2003 and must be applied to the Company's existing financial
instruments effective July 1, 2003, the beginning of the first fiscal period
after June 15, 2003. The Company adopted SFAS No. 150 on July 1, 2003. The
adoption of this statement did not have a material effect on the Company's
condensed consolidated financial position, results of operations or cash flows.
In November 2003, the Emerging Issues Task Force ("EITF") reached an
interim consensus on Issue No. 03-01, The Meaning of Other-Than-Temporary
Impairment and its Application to Certain Investments, to require additional
disclosure requirements for securities classified as available-for-sale or
held-to-maturity for fiscal years ending after December 15, 2003. Those
additional disclosures have been incorporated into the notes to consolidated
financial statements. In March 2004, the EITF reached a final consensus on this
Issue, to provide additional guidance, which companies must follow in
determining whether investment securities have an impairment which should be
considered other-than-temporary. The guidance is applicable for reporting
periods after June 15, 2004. The Company does not expect the adoption under the
final consensus to have a significant impact on our financial position results
of operations and cash flows.
Risk Factors
Our business is heavily dependent on the continued sale of PEG-INTRON and
ABELCET. If revenues from either of these products fail to increase as
anticipated or materially decline, our financial condition and results of
operations will be materially harmed.
Our results of operations are heavily dependent on the revenues derived
from the sale and marketing of PEG-INTRON and ABELCET. Under our agreement with
Schering-Plough, pursuant to which Schering-Plough applies our PEG technology to
develop a modified form of Schering-Plough's INTRON A, we are receiving
royalties on worldwide sales of PEG-INTRON. During the fiscal year ended June
30, 2004, total
46
royalties comprised approximately 28% of our total revenues. Hoffmann-La Roche
recently received FDA and European Union approval for PEGASYS, which competes
with PEG-INTRON in the United States, Europe and Canada. The launch of PEGASYS
has led to greater competitive pressure on PEG-INTRON sales. Since its launch,
PEGASYS has taken market share away from PEG-INTRON and the overall market for
pegylated alpha-interferon in the treatment of Hepatitis C has not increased
sufficiently so as to offset the effect the increasing PEGASYS sales have had on
sales of PEG-INTRON. As a result, quarterly sales of PEG-INTRON and the
royalties we receive on those sales have declined in recent quarters. We cannot
assure you that PEGASYS will not continue to gain market share at the expense of
PEG-INTRON which could result in lower PEG-INTRON sales and lower royalties to
us. Schering-Plough is responsible for conducting and funding the clinical
studies, obtaining regulatory approval, manufacturing and marketing the product
worldwide on an exclusive basis. Schering-Plough received marketing
authorization for PEG-INTRON and in PEG-INTRON and REBETOL capsules as
combination therapy for the treatment of hepatitis C in the U.S. and the
European Union. If Schering-Plough fails to effectively market PEG-INTRON or
discontinues the marketing of PEG-INTRON for these indications, this would have
a material adverse effect on our business, financial condition and results of
operations.
Even though the use of PEG-INTRON as a stand alone therapy and as
combination therapy with REBETOL has received FDA approval, we cannot assure you
that Schering-Plough will be successful in marketing PEG-INTRON or that
Schering-Plough will not continue to market INTRON A, either as a stand-alone
product or in combination therapy with REBETOL. The amount and timing of
resources dedicated by Schering-Plough to the marketing of PEG-INTRON is not
within our control. If Schering-Plough breaches or terminates its agreement with
us, the commercialization of PEG-INTRON could be slowed or blocked completely.
In addition, any ensuing dispute between us and Schering-Plough would be
expensive and time consuming, which could have a material, adverse effect on our
business, financial condition, and results of operations. Our revenues will be
negatively affected if Schering-Plough continues to market INTRON A in
competition with PEG-INTRON or if it cannot meet the manufacturing demands of
the market. In 2001, Schering-Plough was unable to manufacture sufficient
quantities of PEG-INTRON to meet market demand due to overwhelming demand for
the PEG-INTRON and ribavirin combination therapy. As a result, Schering-Plough
implemented a temporary wait list program for newly enrolled patients in order
to ensure uninterrupted access for those patients already using PEG-INTRON. As
of October 2, 2002, the wait list was terminated as a sufficient quantity of
PEG-INTRON and ribavirin was available to meet market demand.
ABELCET accounts for $80.6 million or approximately 48% of our total
revenues and we expect that ABELCET will account for a significant portion of
our future total revenues. The entry of new products from Merck and Pfizer in
the antifungal market is currently impacting ABELCET sales, as clinicians
explore the use of these new therapeutic agents. In addition, Fujisawa
Healthcare, Inc. and Gilead Pharmaceuticals are currently marketing AMBISOME,
and InterMune, Inc. is marketing AMPHOTEC, each of which is a liposomal version
of Amphotericin, for the treatment of fungal infections. AMBISOME and AMPHOTEC
compete with ABELCET and sales of these competitive products have resulted in
greater competitive pressure on ABELCET sales. We cannot assure you that
revenues from the sale and marketing of ABELCET will remain at or above current
levels. In addition, our manufacturing facility in Indianapolis manufactures our
entire supply of ABELCET. If sales of ABELCET decline, if the Indianapolis
facility were to cease operations or if there were a long-term supply
interruption due to the facility's decreased production, our financial condition
and results of operations will be materially harmed.
We may not sustain profitability.
Prior to the fiscal year ended June 30, 2001, we had incurred substantial
losses. As of June 30, 2004, we had an accumulated deficit of approximately
$24.3 million. Although we earned a profit for the fiscal years ended June 30,
2004, 2003 and 2002, we cannot assure you that we will be able to remain
profitable. Our ability to remain profitable will depend primarily on
Schering-Plough's effective marketing of PEG-INTRON and our effective marketing
of ABELCET, as well as on the rate of growth in our other product sales or
royalty revenue and on the level of our expenses. Our ability to achieve
long-term profitability will depend upon our and our licensees' ability to
obtain regulatory approvals for additional product candidates. Even if our
product candidates receive regulatory approval, we cannot assure you that our
products will achieve market acceptance or will be commercialized successfully
or that our operations will sustain profitability.
47
We are subject to extensive regulation. Compliance with these regulations
can be costly, time consuming and subject us to unanticipated delays in
developing our products. The regulatory approval process is highly uncertain and
we may not successfully secure approval for MARQIBO.
The manufacturing and marketing of pharmaceutical products in the United
States and abroad are subject to stringent governmental regulation. The sale of
any of our products for use in humans in the United States will require the
prior approval of the FDA. Similar approvals by comparable agencies are required
in most foreign countries. The FDA has established mandatory procedures and
safety standards that apply to the clinical testing, manufacture and marketing
of pharmaceutical products. Obtaining FDA approval for a new therapeutic product
may take several years and involve substantial expenditures. ADAGEN was approved
by the FDA in 1990. ONCASPAR was approved in the United States and in Germany in
1994, and in Canada in 1997, in each case for patients with acute lymphoblastic
leukemia who are hypersensitive to native forms of L-asparaginase. ONCASPAR was
approved in Russia in April 1993 for therapeutic use in a broad range of
cancers. PEG-INTRON was approved in Europe and the United States for the
treatment of hepatitis C in May 2000 and January 2001, respectively. ABELCET
received U.S. approval in November 1995 and Canadian approval in September 1997.
DEPOCYT received U.S. approval in April 1999. Except for these approvals, none
of our other products has been approved for sale and use in humans in the United
States or elsewhere.
We cannot assure you that we or our licensees will be able to obtain FDA
or other relevant marketing approval for any of our other products. In addition,
any approved products are subject to continuing regulation. If we or our
licensees fail to comply with applicable requirements it could result in:
o criminal penalties,
o civil penalties,
o fines,
o recall or seizure,
o injunctions requiring suspension of production,
o orders requiring ongoing supervision by the FDA, or
o refusal by the government to approve marketing or export
applications or to allow us to enter into supply contracts.
The NDA was submitted under the provisions of Subpart H (Accelerated
Approval of New Drugs for Serious or Life-Threatening Illnesses) of the Food,
Drug and Cosmetic Act. The Accelerated Approval regulations are intended to make
promising products for life-threatening diseases available to the market on the
basis of preliminary evidence prior to formal demonstration of patient benefit
and provide a path to approval using clinical data from a single-arm trial. The
risk of non-approval with a Subpart H NDA are higher than those associated with
a standard NDA review because of, among other things, the smaller number of
patients and more limited data. To the extent the FDA challenges or invalidates
any of the clinical trial data, the risks are greater with a Subpart H review
that the remaining data will not be sufficient to support regulatory approval.
Even if approval is obtained, approvals granted under Subpart H are provisional
and require a written commitment to complete post-approval clinical studies that
formally demonstrate patient benefit. Securing FDA approval based on a
single-arm trial, such as the trial underlying the MARQIBO NDA, is a particular
challenge and approval can never be assured. If approved, we plan to market
MARQIBO through our existing specialty sales force, which currently targets the
oncology market.
In addition to relapsed aggressive NHL, along with Inex we are also
exploring the development of MARQIBO for a variety of other cancers, including
Hodgkin's disease, acute lymphoblastic leukemia, pediatric malignancies, and
first-line aggressive NHL in combination with other chemotherapeutic agents.
If we or our licensees fail to obtain or maintain requisite governmental
approvals or fail to obtain or maintain approvals of the scope requested, it
will delay or preclude us or our licensees or marketing partners from marketing
our products. It could also limit the commercial use of our products. Any such
failure or limitation may have a material adverse effect on our business,
financial condition and results of operations.
We have experienced problems complying with the FDA's regulations for
manufacturing our
48
products, and have had to conduct voluntary recalls of certain of our products.
These problems could materially harm our business.
Manufacturers of drugs also must comply with the applicable FDA current
good manufacturing practice ("cGMP") regulations, which include quality control
and quality assurance requirements as well as the corresponding maintenance of
records and documentation. Manufacturing facilities are subject to ongoing
periodic inspection by the FDA and corresponding state agencies, including
unannounced inspections, and must be licensed as part of the product approval
process before they can be used in commercial manufacturing. We or our present
or future suppliers may be unable to comply with the applicable cGMP regulations
and other FDA regulatory requirements. We manufacture ABELCET, ONCASPAR and
ADAGEN. Schering-Plough is responsible for manufacturing PEG-INTRON and
SkyePharma is responsible for manufacturing DEPOCYT.
ADAGEN and ONCASPAR use our earlier PEG technology which tends to be less
stable than the PEG technology used in PEG-INTRON and our products under
development. Due, in part, to the drawbacks in the earlier technologies we have
had and may continue to have manufacturing problems with these products.
Manufacturing and stability problems required us to implement voluntarily
recalls for one ADAGEN batch in March 2001 and certain batches of ONCASPAR in
June 2002, July 2004 and September 2004. To date, we have been unable to
identify the cause of the manufacturing and stability problems related to the
batches of ONCASPAR that we voluntarily recalled in July and September 2004 and
preliminary indicators do not rule out that an additional batch of ONCASPAR may
also be affected by manufacturing and stability problems, which we may also
voluntarily recall in the near term. In addition to voluntary recalls, mandatory
recalls can also take place if regulators or courts require them, even if we
believe our products are safe and effective. Recalls result in lost sales of the
recalled products themselves, and can result in further lost sales while
replacement products are manufactured or due to customer dissatisfaction. We
cannot assure you that future product recalls will not materially adversely
affect our business, our financial conditions, results of operations or our
reputation and relationships with our customers.
During 1998, we experienced manufacturing problems with ONCASPAR. The
problems were due to increased levels of white particulates in batches of
ONCASPAR, which resulted in an increased rejection rate for this product. During
this period we agreed with the FDA to temporary labeling and distribution
restrictions for ONCASPAR and instituted additional inspection and labeling
procedures prior to distribution. In November 1999, as a result of manufacturing
changes we implemented, the FDA withdrew this distribution restriction.
In July 1999, the FDA conducted an inspection of our manufacturing
facility in connection with our product license for ADAGEN. Following that
inspection, the FDA documented several deviations from cGMP in a Form 483
report. We provided the FDA with a corrective action plan. In November 1999, the
FDA issued a warning letter citing the same cGMP deviations listed in the July
1999 Form 483, but it also stated that the FDA was satisfied with our proposed
corrective actions. As a result of the deviations, the FDA decided not to
approve product export requests from us for ONCASPAR until it determined that
all noted cGMP deviations were either corrected or in the process of being
corrected. This restriction was removed in August 2000.
Since January 2000, the FDA has conducted follow-up inspections as well as
routine inspections of our manufacturing facilities related to ABELCET, ONCASPAR
and ADAGEN. Following certain of these inspections, the FDA has issued Form 483
reports citing deviations from cGMP, the most recent ones of which were issued
in April 2004 for our New Jersey and Indianapolis manufacturing facilities. We
have or are in the process of responding to such reports with corrective action
plans.
We are aware that the FDA has conducted inspections of certain of the
manufacturing facilities of Schering-Plough, and those inspections have resulted
in the issuance of Form 483s citing deviations from cGMP.
If we or our licensees, including Schering-Plough, face additional
manufacturing problems in the future or if we or our licensees are unable to
satisfactorily resolve current or future manufacturing problems, the FDA could
require us or our licensees to discontinue the distribution of our products or
to delay continuation of
49
clinical trials. In addition, if we or our licensees, including Schering-Plough,
cannot market and distribute our products for an extended period, sales of the
products and customer relationships will suffer, which would adversely affect
our financial results.
Our clinical trials could take longer to complete and cost more than we
expect.
We will need to conduct significant additional clinical studies of all of
our product candidates, which have not yet been approved for sale. These studies
are costly, time consuming and unpredictable. Any unanticipated costs or delays
in our clinical studies could harm our business, financial condition and results
of operations.
A Phase III clinical trial is being conducted for PEG-INTRON for one
cancer indication. Schering-Plough is also in early stage clinical trials for
PEG-INTRON in other cancer indications. Schering-Plough is currently conducting
late-stage strategic clinical trials for treatment of hepatitis C in Japan.
Clinical trials are also being conducted for PEG-INTRON as a long term
maintenance therapy (the COPILOT study) and separately as combination therapy
with REBETOL in patients with chronic hepatitis C who did not respond to or had
relapsed following previous interferon-based therapy. We are currently
conducting a pivotal clinical trial for Pegamotecan and plan to initiate a
pivotal clinical trial for ATG-FRESENIUS S during the remaining of calendar
2004. The rate of completion of clinical trials depends upon many factors,
including the rate of enrollment of patients. The enrollment of patients and the
intensifying competitiveness of patient recruitment activities is increasingly a
delaying factor in the completion of clinical trials. If we or the other
sponsors of these clinical trials are unable to recruit sufficient clinical
patients in such trials during the appropriate period, such trials may be
delayed and will likely incur significant additional costs. In addition, FDA or
institutional review boards may require us to delay, restrict, or discontinue
our clinical trials on various grounds, including a finding that the subjects or
patients are being exposed to an unacceptable health risk.
The cost of human clinical trials varies dramatically based on a number of
factors, including:
o the order and timing of clinical indications pursued,
o the extent of development and financial support from corporate
collaborators,
o the number of patients required for enrollment,
o the difficulty of obtaining clinical supplies of the product
candidate, and
o the difficulty in obtaining sufficient patient populations and
clinicians.
All statutes and regulations governing the conduct of clinical trials are
subject to change in the future, which could affect the cost of our clinical
trials. Any unanticipated costs or delays in our clinical studies could harm our
business, financial condition and results of operations.
In some cases, we rely on corporate collaborators or academic institutions
to conduct some or all aspects of clinical trials involving our product
candidates. We will have less control over the timing and other aspects of these
clinical trials than if we conducted them entirely on our own. We cannot assure
you that these trials will commence or be completed as we expect or that they
will be conducted successfully.
If preclinical and clinical trials do not yield positive results, our
product candidates will fail.
If preclinical and clinical testing of one or more of our product
candidates does not demonstrate the safety and efficacy of product candidates
for the desired indications, those potential products will fail. Numerous
unforeseen events may arise during, or as a result of, the testing process,
including the following:
o the results of preclinical studies may be inconclusive, or they may
not be indicative of results that will be obtained in human clinical
trials,
o potential products may not have the desired effect or may have
undesirable side effects or other characteristics that preclude
regulatory approval or limit their commercial use if approved,
50
o results attained in early human clinical trials may not be
indicative of results that are obtained in later clinical trials,
and
o after reviewing test results, we or our strategic partners may
abandon projects which we might previously have believed to be
promising.
Clinical testing is very costly and can take many years. The failure to
adequately demonstrate the safety and efficacy of a therapeutic product under
development would delay or prevent regulatory approval, which could adversely
affect our business and financial performance.
In June 2001, we reported that Schering-Plough completed its Phase III
clinical trial, which compared PEG-INTRON to INTRON A in patients with newly
diagnosed chronic myelogenous leukemia or CML. In the study, although PEG-INTRON
demonstrated clinical comparability and a comparable safety profile with INTRON
A, the efficacy results for PEG-INTRON did not meet the protocol-specified
statistical criteria for non-inferiority, the primary endpoint of the study.
Even if we obtain regulatory approval for our products, they may not be accepted
in the marketplace.
The commercial success of our products will depend upon their acceptance
by the medical community and third-party payors as clinically useful,
cost-effective and safe. Even if our products obtain regulatory approval, we
cannot assure you that they will achieve market acceptance of any kind. The
degree of market acceptance will depend on many factors, including:
o the receipt, timing and scope of regulatory approvals,
o the timing of market entry in comparison with potentially
competitive products,
o the availability of third-party reimbursement, and
o the establishment and demonstration in the medical community of the
clinical safety, efficacy and cost-effectiveness of drug candidates,
as well as their advantages over existing technologies and
therapeutics.
If any of our products do not achieve market acceptance, we will likely
lose our entire investment in that product, giving rise to a material, adverse
effect on our business, financial condition and results of operations.
We depend on our collaborative partners. If we lose our collaborative
partners or they do not apply adequate resources to our collaborations, our
product development and financial performance may suffer.
We rely heavily and will depend heavily in the future on collaborations
with corporate partners, primarily pharmaceutical and biotechnology companies,
for one or more of the research, development, manufacturing, marketing and other
commercialization activities relating to many of our product candidates. If we
lose our collaborative partners, or if they do not apply adequate resources to
our collaborations, our product development and financial performance may
suffer.
The amount and timing of resources dedicated by our collaborators to their
collaborations with us is not within our control. If any collaborator breaches
or terminates its agreements with us, or fails to conduct its collaborative
activities in a timely manner, the commercialization of our product candidates
could be slowed or blocked completely. We cannot assure you that our
collaborative partners will not change their strategic focus or pursue
alternative technologies or develop alternative products as a means for
developing treatments for the diseases targeted by these collaborative programs.
Our collaborators could develop competing products. In addition, our revenues
will be affected by the effectiveness of our corporate partners in marketing any
successfully developed products. For example, our royalty revenues relating to
PEG-INTRON have declined significantly due to PEG-INTRON'S loss of market share
to Roche's PEGASYS.
We cannot assure you that our collaborations will be successful. Disputes
may arise between us and our collaborators as to a variety of matters, including
financing obligations under our agreements and
51
ownership of intellectual property rights. These disputes may be both expensive
and time-consuming and may result in delays in the development and
commercialization of products.
We purchase some of the compounds utilized in our products from a single
source or a limited group of suppliers, and the partial or complete loss of one
of these suppliers could cause production delays and a substantial loss of
revenues. The supplier of the active pharmaceutical ingredient for ADAGEN has
recently elected to terminate its supply agreement with us and we may not be
able to secure an alternative source of supply before this supplier discontinues
supplying us.
We purchase the unmodified compounds and bulk PEGs utilized in our
approved products and products under development from outside suppliers. We may
be required to enter into supply contracts with outside suppliers for certain
unmodified compounds. For example, we have an agreement with Hoffmann-La Roche
Diagnostics GmbH to produce the unmodified adenosine deaminase enzyme used in
the manufacture of ADAGEN and agreements with Merck & Co., Inc. and Kyowa Hakko
to produce the unmodified forms of L-asparaginase used in the manufacture of
ONCASPAR. We have two suppliers that produce the amphotericin used in the
manufacture of ABELCET, Bristol-Myers Squibb and Alpharma A.p.S. We have a
supply agreement with Bristol-Myers Squibb, but not with Alpharma. If we
experience a delay in obtaining or are unable to obtain any unmodified compound,
including unmodified adenosine deaminase, unmodified L-asparaginase or
amphotericin, on reasonable terms, or at all, it could have a material adverse
effect on our business, financial condition and results of operations. We
purchase the lipids used in the manufacture of ABELCET and the PEGs used in the
manufacture of ONCASPAR and ADAGEN from a limited number of suppliers. We do not
have formal supply agreements with any of these suppliers. No assurance can be
given that alternative suppliers with appropriate regulatory authorizations
could be readily identified if necessary. If we experience delays in obtaining
or are unable to obtain any such raw materials on reasonable terms, or at all,
it could have a material, adverse effect on our business, financial condition
and results of operations.
If we are required to obtain an alternate source for an unmodified
compound utilized in a product, the FDA and relevant foreign regulatory agencies
will likely require that we perform additional testing to demonstrate that the
alternate material is biologically and chemically equivalent to the unmodified
compound previously used in our clinical trials. This testing could delay or
stop development of a product, limit commercial sales of an approved product and
cause us to incur significant additional expenses. If we are unable to
demonstrate that the alternate material is chemically and biologically
equivalent to the previously used unmodified compound, we will likely be
required to repeat some or all of the preclinical and clinical trials conducted
for the compound. The marketing of an FDA approved drug could be disrupted while
such tests are conducted. Even if the alternate material is shown to be
chemically and biologically equivalent to the previously used compound, the FDA
or relevant foreign regulatory agency may require that we conduct additional
clinical trials with the alternate material.
Hoffmann-La Roche Diagnostics GmbH ("Roche Diagnostics"), which is based
in Germany, is the only FDA-approved supplier of the adenosine deaminase enzyme,
or ADA, used in ADAGEN. During 2002 we obtained FDA approval of the use of the
ADA enzyme obtained from bovine intestines from cattle of New Zealand origin.
New Zealand currently certifies that it's cattle are bovine spongiform
encephalopathy (BSE or mad cow disease) free. Beginning in September 2002, the
United States Department of Agriculture ("USDA") required all animal-sourced
materials shipped to the United States from any European country to contain a
veterinary certificate that the product is BSE free, regardless of the country
of origin. In September, 2003, Roche Diagnostics notified us that it has elected
to terminate our ADA supply agreement as of as of June 12, 2004. We are
currently seeking to develop recombinant ADA as an alternative to the bovine
derived product. This is a difficult and expensive undertaking as to which
success cannot be assured. Roche Diagnostics has indicated that it will continue
to supply us with our requirements of ADA for a reasonable period of time after
termination of our supply agreement as we work to develop another source of ADA.
If we are unable to secure an alternative source of ADA before Roche Diagnostics
discontinues supplying the material to us, we will likely experience inventory
shortages and potentially a period of product unavailability and/or a long term
inability to produce ADAGEN. If this occurs, it will have a measurable (and
potentially material) negative impact on our business and results of operations
and it could potentially result in significant reputational harm and regulatory
difficulties.
52
The United States and foreign patents upon which our original PEG
technology was based have expired. We depend on patents and proprietary rights,
which may offer only limited protection against potential infringement and the
development by our competitors of competitive products.
Research Corporation Technologies, Inc. held the patent upon which our
original PEG technology was based and had granted us a license under such
patent. Research Corporation's patent contained broad claims covering the
attachment of PEG to polypeptides. However, this United States patent and its
corresponding foreign patents expired in December 1996. Based upon the
expiration of the Research Corporation patent, other parties will be permitted
to make, use or sell products covered by the claims of the Research Corporation
patent, subject to other patents, including those which we hold. We have
obtained numerous patents with claims covering improved methods of attaching or
linking PEG to therapeutic compounds. We cannot assure you that any of these
patents will enable us to prevent infringement or that competitors will not
develop alternative methods of attaching PEG to compounds potentially resulting
in competitive products outside the protection that may be afforded by our
patents. We are aware that others have also filed patent applications and have
been granted patents in the United States and other countries with respect to
the application of PEG to proteins and other compounds. However, other than
Hoffmann-La Roche's PEGASYS, we are unaware of any other PEGylated products that
compete with our PEGylated products. The expiration of the Research Corporation
patent or other patents related to PEG that have been granted to third parties
may have a material adverse effect on our business, financial condition and
results of operations.
The pharmaceutical industry places considerable importance on obtaining
patent and trade secret protection for new technologies, products and processes.
Our success depends, in part, on our ability to develop and maintain a strong
patent position for our products and technologies both in the United States and
in other countries. We have been issued 114 patents in the United States, many
of which have foreign counterparts. These patents, if extensions are not
granted, are expected to expire beginning in 2004 through 2022. We have also
filed and currently have pending 43 patent applications in the United States.
Under our license agreements, we have access to large portions of Micromet's and
Nektar's patent estates as well as a small number of individually licensed
patents. Of the patents owned or licensed by us, 7 relate to PEG-INTRON, 17
relate to ABELCET, 11 relate to Pegamotecan, 3 relate to DEPOCYT and 18 relate
to MARQIBO. Although we believe that our patents provide certain protection from
competition, we cannot assure you that such patents will be of substantial
protection or commercial benefit to us, will afford us adequate protection from
competing products, or will not be challenged or declared invalid. In addition,
we cannot assure you that additional United States patents or foreign patent
equivalents will be issued to us. The scope of patent claims for
biotechnological inventions is uncertain, and our patents and patent
applications are subject to this uncertainty.
To facilitate development of our proprietary technology base, we may need
to obtain licenses to patents or other proprietary rights from other parties. If
we are unable to obtain such licenses, our product development efforts may be
delayed or blocked.
We are aware that certain organizations are engaging in activities that
infringe certain of our PEG and SCA technology patents. We cannot assure you
that we will be able to enforce our patent and other rights against such
organizations.
We expect that there will continue to be significant litigation in the
biotechnology and pharmaceutical industries regarding patents and other
proprietary rights. We have in the past been involved in patent litigation, and
we may likely become involved in additional patent litigation in the future. We
may incur substantial costs in asserting any patent rights and in defending
suits against us related to intellectual property rights. Such disputes could
substantially delay our product development or commercialization activities and
could have a material adverse effect on our business, financial condition and
results of operations.
We also rely on trade secrets, know-how and continuing technological
advancements to protect our proprietary technology. We have entered into
confidentiality agreements with our employees, consultants, advisors and
collaborators. However, these parties may not honor these agreements, and we may
not be able to successfully protect our rights to unpatented trade secrets and
know-how. Others may independently develop
53
substantially equivalent proprietary information and techniques or otherwise
gain access to our trade secrets and know-how.
Our products may infringe the intellectual property rights of others,
which could increase our costs and negatively affect our profitability.
Our success also depends on avoiding infringement of the proprietary
technologies of others. In particular, there may be certain issued patents and
patent applications claiming subject matter which we or our collaborators may be
required to license in order to research, develop or commercialize at least some
of our products. In addition, third parties may assert infringement or other
intellectual property claims against us. An adverse outcome in these proceedings
could subject us to significant liabilities to third parties, require disputed
rights to be licensed from third parties or require us to cease or modify the
use of our technology. If we are required to license such technology, we cannot
assure you that a license under such patents and patent applications will be
available on acceptable terms or at all. Further, we may incur substantial costs
defending ourselves in lawsuits against charges of patent infringement or other
unlawful use of another's proprietary technology.
We have limited sales and marketing experience, which makes us dependent
on our marketing partners.
We have historically had limited experience in sales, marketing or
distribution. In connection with our acquisition of the North American ABELCET
business from Elan in November 2002, we acquired a 60-person sales and marketing
team. In addition, we have recently acquired marketing rights to DEPOCYT from
SkyePharma and reacquired the rights to market and distribute ONCASPAR in the
United States and certain other countries in June 2002. Prior to these
acquisitions, ADAGEN, which we market on a worldwide basis to a small patient
population, was the only product for which we engaged in the direct commercial
marketing, and therefore, we are significantly dependent on the ABELCET sales
and marketing team to promote ABELCET. We have provided exclusive marketing
rights to Schering-Plough for PEG-INTRON worldwide and to Medac GmbH for
ONCASPAR in most of Europe and parts of Asia. We have an agreement with Nova
Factor, Inc. (formerly known as Gentiva Health Services, Inc.) to purchase and
distribute ADAGEN, ONCASPAR and DEPOCYT in the United States and Canada. To the
extent that we enter into licensing arrangements for the marketing and sale of
our future products, we may not be able to enter into or maintain such
arrangements on acceptable terms, if at all, and any revenues we receive will
depend primarily on the efforts of these third parties. We will not control the
amount and timing of marketing resources that such third parties devote to our
products. In addition, to the extent that we market products directly,
significant additional expenditures and management resources would be required
to increase the size of our internal sales force. In any sales or marketing
effort, we would compete with many other companies that currently have extensive
and well-funded sales operations. Our marketing and sales efforts may be unable
to compete successfully against such other companies.
We may acquire other companies or products and may be unable to
successfully integrate such companies with our operations.
We may expand and diversify our operations with acquisitions. Indeed, the
execution of strategic transactions is an important part of our strategy. If we
are unsuccessful in integrating any such company with our operations, or if
integration is more difficult than anticipated, we may experience disruptions
that could have a material adverse effect on our business, financial condition
and results of operations. Some of the risks that may affect our ability to
integrate or realize any anticipated benefits from any acquisition include those
associated with:
o unexpected losses of key employees or customers of the acquired
company;
o conforming the acquired company's standards, processes, procedures
and controls with our operations;
o coordinating our new product and process development;
o diversion of existing management relating to the integration and
operation of the acquired company;
o hiring additional management and other critical personnel; and
54
o increasing the scope, geographic diversity and complexity of our
operations.
We may need to obtain additional financing to meet our future capital
needs, and this financing may not be available when we need it.
Our current development projects require substantial capital. We may
require substantial additional funds to conduct research activities, preclinical
studies, clinical trials and other activities relating to the successful
commercialization of potential products. In addition, we may seek to acquire
additional products, technologies and companies, which could require substantial
capital. In addition, we cannot be sure that we will be able to continue to
obtain significant revenue from PEG-INTRON. Additional funds from other sources
may not be available on acceptable terms, if at all. If adequate funds are
unavailable from operations or additional sources of financing, we may have to
delay, reduce the scope of or eliminate one or more of our research or
development programs or one or more of our proposed acquisitions of technologies
or companies which could materially and adversely affect our business, financial
condition and operations.
While we believe that our cash, cash equivalents and investments will be
adequate to satisfy our capital needs for the foreseeable future, our actual
capital requirements will depend on many factors, including:
o the level of revenues we receive from our FDA-approved products and
product candidates,
o continued progress of our research and development programs,
o our ability to establish additional collaborative arrangements,
o changes in our existing collaborative relationships,
o progress with preclinical studies and clinical trials,
o the time and costs involved in obtaining regulatory clearance for
our products,
o the costs involved in preparing, filing, prosecuting, maintaining
and enforcing patent claims,
o competing technological and market developments, and
o our ability to market and distribute our products and establish new
collaborative and licensing arrangements.
We may seek to raise any necessary additional funds through equity or debt
financings, collaborative arrangements with corporate partners or other sources
which may be dilutive to existing stockholders. We cannot assure you that we
will be able to obtain additional funds on acceptable terms, if at all. If
adequate funds are not available, we may be required to:
o delay, reduce the scope or eliminate one or more of our development
projects,
o obtain funds through arrangements with collaborative partners or
others that may require us to relinquish rights to technologies,
product candidates or products that we would otherwise seek to
develop or commercialize ourselves, or
o license rights to technologies, product candidates or products on
terms that are less favorable to us than might otherwise be
available.
We depend on key personnel and may not be able to retain these employees
or recruit additional qualified personnel, which would harm our business.
Because of the specialized scientific nature of our business, we are
highly dependent upon qualified scientific, technical and managerial personnel,
which include Kenneth J. Zuerblis and Ulrich Grau, Ph.D. There is intense
competition for qualified personnel in the pharmaceutical field. Therefore, we
may not be able to attract and retain the qualified personnel necessary for the
development of our business. Although we have employment agreements with Mr.
Zuerblis and Dr. Grau, our ability to continue to retain them is not assured and
the loss of their services as well as the failure to recruit additional key
scientific, technical and managerial personnel in a timely manner, would harm
our research and development programs and our business.
We currently do not have a Chief Executive Officer. Since the departure of
our prior CEO, Arthur J. Higgins, who is now Chairman and Chief Executive
Officer of Bayer Health Care, we have been engaged in a
55
search for a new CEO. We have evaluated numerous candidates and are currently
negotiating with a lead candidate. We anticipate that this person will join us
as CEO in the near future. No assurance can be given as to whether or not this
person will join us as CEO. We are continuing the search process with respect to
other candidates in the event that the lead candidate does not become our new
CEO. If our lead candidate is unable or unwilling to join us as CEO in the near
future, the search process is likely to extend into calendar 2005. An extended
period of time without a CEO could materially, adversely effect our business,
financial conditions or results of operations.
Risks Related To Our Industry
We face rapid technological change and intense competition, which could
harm our business and results of operations.
The biopharmaceutical industry is characterized by rapid technological
change. Our future success will depend on our ability to maintain a competitive
position with respect to technological advances. Rapid technological development
by others may result in our products and technologies becoming obsolete.
Many of our competitors have substantially greater research and
development capabilities and experience and greater manufacturing, marketing and
financial resources than we do. Accordingly, our competitors may develop
technologies and products that are superior to those we or our collaborators are
developing and render our technologies and products or those of our
collaborators obsolete and noncompetitive. In addition, many of our competitors
have much more experience than we do in preclinical testing and human clinical
trials of new drugs, as well as obtaining FDA and other regulatory approval. If
we cannot compete effectively, our business and financial performance would
suffer.
We face intense competition from established biotechnology and
pharmaceutical companies, as well as academic and research institutions that are
pursuing competing technologies and products. We know that competitors are
developing or manufacturing various products that are used for the prevention,
diagnosis or treatment of diseases that we have targeted for product
development. For example, Hoffmann-La-Roche's PEGASYS has received FDA and
European Union approval for treatment of Hepatitis C as a monotherapy and in
combination with Ribavirin. PEGASYS competes with PEG-INTRON in the United
States and the European Union and has led to intensive competitive pressure on
PEG-INTRON sales. Since its launch, PEGASYS has taken market share away from
PEG-INTRON and the overall market for pegylated alpha-interferon in the
treatment of Hepatitis C has not increased sufficiently so as offset the effect
the increasing PEGASYS sales have had on sales of PEG-INTRON. As a result,
quarterly sales of PEG-INTRON and the royalties we receive on those sales have
declined in recent quarters. We cannot assure you that PEGASYS will not continue
to gain market share at the expense of PEG-INTRON which could result in lower
PEG-INTRON sales and lower royalties to us. Similarly, Fujisawa Healthcare, Inc.
and Gilead Pharmaceuticals are currently marketing AmBisome, and InterMune, Inc.
is marketing Amphotec, each of which is a liposomal version of amphotericin, for
the treatment of fungal infections. AmBisome and Amphotec compete with ABELCET
and sales of these competitive products have resulted in intensive competitive
pressure on ABELCET sales. DEPOCYT, an injectable, sustained release formulation
of the chemotherapeutic agent cytarabine for the treatment of lymphomatous
meningitis, competes with the generic drugs, Cytarabine and Methotrexate, and
ONCASPAR, a PEG-enhanced version of a naturally occurring enzyme called
L-asparaginase, competes with Asparaginase to treat patients with acute
lymphoblastic leukemia.
Existing and future products, therapies and technological approaches will
compete directly with our products. Current and prospective competing products
may provide greater therapeutic benefits for a specific problem or may offer
comparable performance at a lower cost. Any product candidate that we develop
and that obtains regulatory approval must then compete for market acceptance and
market share. Our product candidates may not gain market acceptance among
physicians, patients, healthcare payors and the medical community.
We may be sued for product liability.
56
Because our products and product candidates are new treatments with
limited, if any, past use on humans, their use during testing or after approval
could expose us to product liability claims. We maintain product liability
insurance coverage in the total amount of $40 million for claims arising from
the use of our products in clinical trials prior to FDA approval and for claims
arising from the use of our products after FDA approval. We cannot assure you
that we will be able to maintain our existing insurance coverage or obtain
coverage for the use of our other products in the future. Also, this insurance
coverage and our resources may not be sufficient to satisfy any liability
resulting from product liability claims, and a product liability claim may have
a material adverse effect on our business, financial condition or results of
operations.
Because of the uncertainty of pharmaceutical pricing, reimbursement and
healthcare reform measures, we may be unable to sell our products profitably in
the United States.
The availability of reimbursement by governmental and other third-party
payors affects the market for any pharmaceutical product. In recent years, there
have been numerous proposals to change the healthcare system in the United
States and further proposals are likely. Some of these proposals have included
measures that would limit or eliminate payments for medical procedures and
treatments or subject the pricing of pharmaceuticals to government control. In
addition, government and private third-party payors are increasingly attempting
to contain healthcare costs by limiting both the coverage and the level of
reimbursement of drug products. Consequently, significant uncertainty exists as
to the reimbursement status of newly-approved health care products.
Our ability to commercialize our products will depend, in part, on the
extent to which reimbursement for the cost of the products and related
treatments will be available from third-party payors. If we or any of our
collaborators succeeds in bringing one or more products to market, we cannot
assure you that third-party payors will establish and maintain price levels
sufficient for realization of an appropriate return on our investment in product
development. In addition, lifetime limits on benefits included in most private
health plans may force patients to self-pay for treatment. For example, patients
who receive ADAGEN are expected to require injections for their entire lives.
The cost of this treatment may exceed certain plan limits and cause patients to
self-fund further treatment. Furthermore, inadequate third-party coverage may
lead to reduced market acceptance of our products. Significant changes in the
healthcare system in the United States or elsewhere could have a material
adverse effect on our business and financial performance.
Risks Related To Our Subordinated Notes and Common Stock
The price of our common stock has been, and may continue to be, volatile
which may significantly affect the trading price of our notes.
Historically, the market price of our common stock has fluctuated over a
wide range, and it is likely that the price of our common stock will fluctuate
in the future. The market price of our common stock could be impacted due to a
variety of factors, including:
o the results of preclinical testing and clinical trials by us, our
corporate partners or our competitors,
o announcements of technical innovations or new products by us, our
corporate partners or our competitors,
o the status of corporate collaborations and supply arrangements,
o regulatory approvals,
o government regulation,
o developments in patent or other proprietary rights,
o public concern as to the safety and efficacy of products developed
by us or others,
o litigation,
o acts of war or terrorism in the United States or worldwide, and
o general market conditions in our industry.
57
In addition, due to one or more of the foregoing factors in one or more
future quarters, our results of operations may fall below the expectations of
securities analysts and investors. In that event, the market price of our common
stock could be materially and adversely affected.
The stock market has recently experienced extreme price and volume
fluctuations. These fluctuations have especially affected the market price of
the stock of many high technology and healthcare-related companies. Such
fluctuations have often been unrelated to the operating performance of these
companies. Nonetheless, these broad market fluctuations may negatively affect
the market price of our common stock.
Our notes are subordinated to all existing and future indebtedness.
Our 4.5% convertible subordinated notes are unsecured and subordinated in
right of payment to all of our existing and future senior indebtedness. In the
event of our bankruptcy, liquidation or reorganization, or upon acceleration of
the notes due to an event of default under the indenture and in certain other
events, our assets will be available to pay obligations on the notes only after
all senior indebtedness has been paid. As a result, there may not be sufficient
assets remaining to pay amounts due on any or all of the outstanding notes. We
are not prohibited from incurring debt, including senior indebtedness, under the
indenture. If we were to incur additional debt or liabilities, our ability to
pay our obligations on the notes could be adversely affected. As of June 30,
2004, we had no senior indebtedness outstanding.
We may be unable to redeem our notes upon a fundamental change.
We may be unable to redeem our notes in the event of a fundamental change.
Upon a fundamental change, holders of the notes may require us to redeem all or
a portion of the notes. If a fundamental change were to occur, we may not have
enough funds to pay the redemption price for all tendered notes. Any future
credit agreements or other agreements relating to our indebtedness may contain
similar provisions, or expressly prohibit the repurchase of the notes upon a
fundamental change or may provide that a fundamental change constitutes an event
of default under that agreement. If a fundamental change occurs at a time when
we are prohibited from purchasing or redeeming notes, we could seek the consent
of our lenders to redeem the notes or could attempt to refinance this debt. If
we do not obtain a consent, we could not purchase or redeem the notes. Our
failure to redeem tendered notes would constitute an event of default under the
indenture. In such circumstances, or if a fundamental change would constitute an
event of default under our senior indebtedness, the subordination provisions of
the indenture would restrict payments to the holders of notes. A "fundamental
change" is any transaction or event (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise) in connection with which all or substantially all
of our common stock is exchanged for, converted into, acquired for or
constitutes solely the right to receive, consideration which is not all or
substantially all common stock that:
o is listed on, or immediately after the transaction or event will be
listed on, a United States national securities exchange, or
o is approved, or immediately after the transaction or event will be
approved, for quotation on The NASDAQ National Market or any similar
United States system of automated dissemination of quotations of
securities prices.
The term fundamental change is limited to certain specified transactions
and may not include other events that might adversely affect our financial
condition or the market value of the notes or our common stock. Our obligation
to offer to redeem the notes upon a fundamental change would not necessarily
afford holders of the notes protection in the event of a highly leveraged
transaction, reorganization, merger or similar transaction involving us.
A public market for our notes may fail to develop or be sustained.
The initial purchasers of the notes, although they have advised us that
they intend to make a market in the notes, are not obligated to do so and may
discontinue this market making activity at any time without notice. In addition,
market making activity by the initial purchasers will be subject to the limits
imposed by the
58
Securities Act and the Exchange Act of 1934, as amended. As a result, we cannot
assure you that any market for the notes will develop or, if one does develop,
that it will be maintained. If an active market for the notes fails to develop
or be sustained, the trading price of the notes could be materially adversely
affected.
Events with respect to our share capital could cause the price of our
common stock to decline.
Sales of substantial amounts of our common stock in the open market, or
the availability of such shares for sale, could adversely affect the price of
our common stock. An adverse effect on the price of our common stock may
adversely affect the trading price of the notes. We had 43.8 million shares of
common stock outstanding as of June 30, 2004. The following securities that may
be exercised for, or are convertible into, shares of our common stock were
issued and outstanding as of June 30, 2004:
o Options. Stock options to purchase 4.8 million shares of our common
stock at a weighted average exercise price of approximately $25.90
per share; of this total, 2.0 million were exercisable at a weighted
average exercise price of $35.37 per share as of such date.
o Convertible subordinated notes. Notes which will convert to 5.6
million shares of our common stock at a conversion price of $70.98
as of such date.
The shares of our common stock that may be issued under the options and
upon conversion of the Convertible Subordinated Notes are currently registered
with the SEC. The shares of common stock that may be issued upon conversion of
the Convertible Subordinated Notes are eligible for sale without any volume
limitations pursuant to Rule 144(k) under the Securities Act.
The issuance of preferred stock may adversely affect rights of common
stockholders or discourage a takeover.
Under our certificate of incorporation, our board of directors has the
authority to issue up to 3.0 million shares of preferred stock and to determine
the price, rights, preferences and privileges of those shares without any
further vote or action by our stockholders. The rights of the holders of common
stock will be subject to, and may be adversely affected by, the rights of the
holders of any shares of preferred stock that may be issued in the future.
In May 2002, our board of directors authorized shares of Series B
Preferred Stock in connection with its adoption of a stockholder rights plan,
under which we issued rights to purchase Series B Preferred Stock to holders of
the common stock. Upon certain triggering events, such rights become exercisable
to purchase common stock (or, in the discretion of our board of directors,
Series B Preferred Stock) at a price substantially discounted from the then
current market price of the Common Stock. Our stockholder rights plan could
generally discourage a merger or tender offer involving our securities that is
not approved by our board of directors by increasing the cost of effecting any
such transaction and, accordingly, could have an adverse impact on stockholders
who might want to vote in favor of such merger or participate in such tender
offer.
While we have no present intention to authorize any additional series of
preferred stock, such issuance, while providing desirable flexibility in
connection with possible acquisitions and other corporate purposes, could also
have the effect of making it more difficult for a third party to acquire a
majority of our outstanding voting stock. The preferred stock may have other
rights, including economic rights senior to the Common Stock, and, as a result,
the issuance thereof could have a material adverse effect on the market value of
the common stock.
We have a significant amount of indebtedness.
As a result of the initial offering of the notes, our long-term debt is
$400.0 million. This indebtedness has affected us by:
o significantly increasing our interest expense and related debt
service costs, and
o making it more difficult to obtain additional financing.
59
We may not generate sufficient cash flow from operations to satisfy the
annual debt service payments that will be required under the notes. This may
require us to use a portion of the proceeds of the notes to pay interest or
borrow additional funds or sell additional equity to meet our debt service
obligations. If we are unable to satisfy our debt service requirements,
substantial liquidity problems could result, which would negatively impact our
future prospects.
The market for unrated debt is subject to disruptions, which could have an
adverse effect on the market price of the notes.
Our notes have not been rated. As a result, holders of the notes have the
risks associated with an investment in unrated debt. Historically, the market
for unrated debt has been subject to disruptions that have caused substantial
volatility in the prices of such securities and greatly reduced liquidity for
the holders of such securities. If the notes are traded, they may trade at a
discount from their initial offering price, depending on, among other things,
prevailing interest rates, the markets for similar securities, general economic
conditions and our financial condition, results of operations and prospects. The
liquidity of, and trading markets for, the notes also may be adversely affected
by general declines in the market for unrated debt. Such declines may adversely
affect the liquidity of, and trading markets for, the notes, independent of our
financial performance or prospects. In addition, certain regulatory restrictions
prohibit certain types of financial institutions from investing in unrated debt,
which may further suppress demand for such securities. We cannot assure you that
the market for the notes will not be subject to similar disruptions. Any such
disruptions may have an adverse effect on the holders of the notes.
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RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges was negative for periods before
June 30, 2001 because we incurred net losses in the periods prior to that time.
The dollar amounts of the deficiencies for these periods and the ratio of
earnings to fixed charges for the years ended June 30, 2004, 2003, 2002 and 2001
are disclosed below (dollars in thousands):
Year Ended June 30,
-----------------------------------------------
2004 2003 2002 2001 2000
---- ---- ---- ---- -------
Ratio of earnings to fixed charges*......... 1:1 3:1 3:1 21:1 N/A
Deficiency of earnings available to
cover fixed charges*................... N/A N/A N/A N/A ($6,306)
*Earnings consist of pre-tax income (loss) plus fixed charges less
capitalized interest and preferred stock dividends. Fixed charges consist of
interest expense, including amortization of debt issuance costs and that portion
of rental expense we believe to be representative of interest.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
The following discussion about our exposure to market risk of financial
instruments contains forward-looking statements. Actual results may differ
materially from those described.
Our holdings of financial instruments are comprised of debt securities and
time deposits. All such instruments are classified as securities
available-for-sale. We do not invest in portfolio equity securities or
commodities or use financial derivatives for trading purposes. Our debt security
portfolio represents funds held temporarily pending use in our business and
operations. We manage these funds accordingly. We seek reasonable assuredness of
the safety of principal and market liquidity by investing in rated fixed income
securities while at the same time seeking to achieve a favorable rate of return.
Our market risk exposure consists principally of exposure to changes in interest
rates. Our holdings are also exposed to the risks of changes in the credit
quality of issuers. We typically invest the majority of our investments in the
shorter-end of the maturity spectrum, and at June 30, 2004 all of our holdings
were in instruments maturing in four years or less.
The table below presents the principal amounts and related weighted
average interest rates by year of maturity for our investment portfolio as of
June 30, 2004 (in thousands).
2005 2006 2007 2008 Total Fair Value
------------------------------------------------------------------------------
Fixed Rate $27,263 $41,132 $18,440 $ 9,014 $95,849 $94,701
Average Interest Rate 2.22% 1.92% 2.44% 2.72% 2.18% --
Variable Rate -- -- -- -- -- --
Average Interest Rate -- -- -- -- -- --
-----------------------------------------------------------------------------
$27,263 $41,132 $18,440 $ 9,014 $95,849 $94,701
=============================================================================
Our 4.5% convertible subordinated notes in the principal amount of $400.0
million due July 1, 2008 have fixed interest rates. The fair value of the notes
was approximately $369.0 million at June 30, 2004. The fair value of fixed
interest rate convertible notes is affected by changes in interest rates and by
changes in the price of our common stock.
61
Item 8. Financial Statements and Supplementary Data
Financial statements and notes thereto appear on pages F-1 to F-44 of this
Form 10-K Annual Report.
Item 9. Changes in and Disagreements With Accountants
on Accounting and Financial Disclosure
Not Applicable.
Item 9A. Controls and Procedures
Evaluation of disclosure controls and procedures. Based on our
management's evaluation (with the participation of our principal executive
officer and principal financial officer), as of the end of the period covered by
this report, our principal executive officer and principal financial officer has
concluded that our disclosure controls and procedures (as defined in Rules
13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended,
(the "Exchange Act")) are effective to ensure that information required to be
disclosed by us in reports that we file or submit under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified
in Securities and Exchange Commission rules and forms.
Changes in internal control over financial reporting. There was no change
in our internal control over financial reporting during our fourth fiscal
quarter that has materially affected, or is reasonably likely to materially
affect, our internal control over financial reporting.
62
PART III
The information required by Item 10 - Directors and Executive Officers of
the Registrant; Item 11 - Executive Compensation; Item 12 - Security Ownership
of Certain Beneficial Owners and Management, Item 13 - Certain Relationships and
Related Transactions and Item 14 - Principal Accounting Fees and Services is
incorporated into Part III of this Annual Report on Form 10-K by reference to
the Proxy Statement for our Annual Meeting of Stockholders scheduled to be held
on December 7, 2004.
63
PART IV
Item 15. Exhibits, Financial Statement Schedules,
and Reports on Form 8-K
(a)(1) and (2). The response to this portion of Item 15 is submitted as a
separate section of this report commencing on page F-1.
(a)(3) and (c). Exhibits (numbered in accordance with Item 601 of
Regulation S-K).
Exhibit Reference
Number Description No.
------ ----------- ---
2.1 Mutual Termination Agreement and Release by and among
Enzon Pharmaceuticals, Inc., NPS Pharmaceuticals, Inc.,
Momentum Merger Corporation, Newton Acquisition
Corporation and Einstein Acquisition Corporation, dated
as of June 4, 2003. +/-+/-(3)
3(i) Certificate of Incorporation as amended ~(3(i))
3(i)(a) Amendment to Certificate of Incorporation \\(A)
3(ii) By laws, as amended ^^(3(ii))
4.1 Indenture dated as of June 26, 2001, between the Company
and Wilmington Trust Company, as trustee, including the
form of 4 1/2% Convertible Subordinated Note due 2008
attached as Exhibit A thereto +++(4.1)
4.2 Rights Agreement dated May 17, 2002 between the Company
and Continental Stock Transfer Trust Company, as rights
agent ^(1)
4.3 First Amendment to the Rights Agreement, dated as of
February 19, 2003 between the Company and Continental
Stock Transfer & Trust Company, as rights agent. +/-(1)
10.1 Form of Change of Control Agreements dated as of January #(10.2)
20, 1995 entered into with an Executive Officer**
10.2 Lease - 300-C Corporate Court, South Plainfield, New
Jersey =(10.3)
10.3 Lease dated April 1, 1995 regarding 20 Kingsbridge Road,
Piscataway, New Jersey #(10.7)
10.4 Lease 300A-B Corporate Court, South Plainfield, New ++(10.10)
Jersey
10.5 Employment Agreement dated May 9, 2001, between the ///(10.30)
Company and Arthur J. Higgins**
10.6 Amendment dated May 23, 2001, to Employment Agreement
between the Company and Arthur J. Higgins dated May 9,
2001** ///(10.31)
10.7 Form of Restricted Stock Award Agreement between the
Company and Arthur J. Higgins** ////(4.3)
10.8 Modification of Lease Dated May 14, 2003 - 300-C @(10.8)
Corporate Court, South Plainfield, New Jersey
10.9 Lease - 685 Route 202/206, Bridgewater, New Jersey ^^^(10.14)
10.10 Employment Agreement with Ulrich Grau dated as of March 6, ^^^(10.15)
2002**
10.11 2001 Incentive Stock Plan as amended** @@(10.23)
10.12 Development, License and Supply Agreement between the
Company and Schering Corporation; dated November 14,
1990, as amended* ~(10.15)
10.13 Transition Agreement dated July 2, 2002 between the
Company and Jeffrey McGuire** ~~(10.16)
10.14 Asset Purchase Agreement between the Company and Elan
Pharmaceuticals, Inc., dated as of October 1, 2002 \(2.1)
10.15 License Agreement between the Company and Elan
Pharmaceuticals, Inc., dated November 22, 2002 ~~~(10.18)
10.16 Option Agreement between the Company and Arthur J.
Higgins, dated as of December 3, 2002** ~~~(10.19)
64
10.17 Form of Restricted Stock Agreement between the Company
and Arthur J. Higgins ** ~~~(10.20)
10.18 Royalty Agreement between the Company and Vivo
Healthcare Corporation, dated as of October 16, 2002** ~~~(10.21)
10.19 Assignment Agreement between the Company and Vivo
Healthcare Corporation, dated as of October 16, 2002** ~~~(10.22)
10.20 Restricted Stock Purchase Agreement dated as of June 4,
2003 by and between Enzon Pharmaceuticals, Inc. and NPS
Pharmaceuticals, Inc. +/-+/-(4)
10.21 Registration Rights Agreement dated as of June 4, 2003
by and between Enzon Pharmaceuticals, Inc. and NPS
Pharmaceuticals, Inc. +/-+/-(5)
10.22 Outside Directors' Compensation Arrangement <|
10.23 Amendment No. 2 to Employment Agreement with Arthur
Higgins dated December 3, 2003 @@(10.24)
10.24 Amended and Restated Employment Agreement with Ulrich
Grau dated December 5, 2003 @@(10.25)
10.25 Restricted Stock Award Agreement with Ulrich Grau dated
December 5, 2003 @@(10.26)
10.26 Separation Agreement with Arthur Higgins dated May 10,
2004 @@@(10.27)
10.27 Development Agreement with Inex Pharmaceuticals dated
January 19, 2004*** @@@(10.28)
10.28 Product Supply Agreement with Inex Pharmaceuticals dated
January 19, 2004*** @@@(10.29)
10.29 Co-Promotion Agreement with Inex Pharmaceuticals dated
January 19, 2004*** @@@(10.30)
10.30 Employment Agreement with Kenneth J. Zuerblis dated June
14, 2004, along with a form of Restricted Stock Award
Agreement between the Company and Mr. Zuerblis executed
as of June 14, 2004 and a form of Consulting Agreement
between the Company and Mr. Zuerblis. <|
10.31 Executive Deferred Compensation Plan <|
12.1 Computation of Ratio of Earnings to Fixed Charges <|
21.0 Subsidiaries of Registrant <|
23.0 Consent of KPMG LLP <|
31.1 Certification of Chief Executive Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002 <|
31.2 Certification of Chief Financial Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002 <|
32.1 Certification of Chief Executive Officer pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002 <|
32.2 Certification of Chief Financial Officer pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002 <|
<| Filed herewith
= Previously filed as an exhibit to the Company's Registration Statement on
Form S-18 (File No. 2-88240-NY) and incorporated herein by reference
thereto.
++ Previously filed as an exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1993 and incorporated herein by
reference thereto.
+++ Previously filed as an exhibit to the Company's Registration Statement on
Form S-3 (File No. 333-67509) filed with the Commission and incorporated
herein by reference thereto.
65
# Previously filed as an exhibit to the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1995 and incorporated herein by
reference thereto.
/// Previously filed as an exhibit to the Company's Current Report on Form 8-K
filed with the Commission on June 13, 2001 and incorporated herein by
reference thereto.
//// Previously filed as an exhibit to the Company's Registration Statement on
Form S-8 (File No. 333-64110) filed with the Commission and incorporated
herein by reference thereto.
^ Previously filed as an exhibit to the Company's Form 8-A (File No.
000-12957) filed with the Commission on May 22, 2002 and incorporated
herein by reference thereto.
^^ Previously filed as an exhibit to the Company's Current Report on Form 8-K
filed with the Commission on May 22, 2002 and incorporated herein by
reference thereto.
~ Previously filed as an exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 2002 and incorporated herein by
reference thereto.
~~ Previously filed as an exhibit to the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 2002 and incorporated herein by
reference thereto.
~~~ Previously filed as an exhibit to the Company's Quarterly Report on Form
10-Q for the quarter ended December 31, 2002 and incorporated herein by
reference thereto.
\ Previously filed as an exhibit to the Company's Current Report on Form 8-K
filed on October 2, 2002 and incorporated herein by reference thereto.
\\ Previously filed as an exhibit to the Company's Current Report on Form 8-K
filed on December 10, 2002 and incorporated herein by reference thereto.
+/- Previously filed as an exhibit to the Company's Form 8-A12G/A (File No.
000-12957) filed with the Commission on February 20, 2003 and incorporated
herein by reference thereto.
+/+/- Previously filed as an exhibit to the Company's Amendment No. 1 to
Schedule 13D (File No. 005-46256) filed with the Commission on February
28, 2003 and incorporated herein by reference thereto.
@ Previously filed as an exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 2003.
@@ Previously filed as a exhibit to the Company's Quarterly Report on Form
10-Q for the quarter ended December 31, 2003.
@@@ Previously filed as an exhibit to the Company's Quarterly Report on Form
10-Q for the quarter ending March 31, 2004.
* Copy omits information for which confidential treatment has been granted.
** Required to be filed pursuant to Item 601(b) (10) (ii) (A) or (iii) of
Regulation S-K.
*** Portions of this exhibit have been redacted and filed separately with the
Commission pursuant to a confidential treatment request.
66
(b) Reports on Form 8-K.
On April 26, 2004, we filed with the Commission a Current Report on Form
8-K dated April 23, 2004 reporting Robert L. Parkinson's resignation from our
Board of Directors.
On May 5, 2004, we filed with the Commission a Current Report on Form 8-K
dated May 5, 2004 reporting our financial results for the quarter ended March
31, 2004.
On May 21, 2004, we filed with the Commission a Current Report on Form 8-K
dated May 21, 2004 reporting that the New drug Application (NDA) for MARQIBO
(vincristine sulfate liposomes injection) has been accepted by the United States
Food and Drug Administration (FDA) and has been granted a standard review
designation.
On June 8, 2004, we filed with the Commission a Current Report on Form 8-K
dated June 7, 2004 reporting a summary of clinical advancements at the 40th
Annual Meeting of the American Society of Clinical Oncology (ASCO) in New
Orleans, Louisiana.
On August 3, 2004, we filed with the Commission a Current Report on Form
8-K dated August 2, 2004 reporting that Nektar Therapeutics had entered into a
license agreement with Pfizer involving our PEG technology.
On August 13, 2004, we filed with the Commission a Current Report on Form
8-K dated August 9, 2004 reporting with sadness the passing of one of our
directors, David W. Golde, M.D.
On August 17, 2004, we filed with the Commission a Current Report on Form
8-K dated August 17, 2004 reporting our financial results for the year ended
June 20, 2004.
67
SIGNATURES
Pursuant to the requirements of section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
ENZON PHARMACEUTICALS, INC.
(Registrant)
Dated: September 13, 2004 by:/S/ Kenneth J. Zuerblis
---------------------------------
Kenneth J. Zuerblis
Executive Vice President Finance,
Chief Financial Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Annual Report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated:
Name Title Date
---- ----- ----
/S/ Kenneth J. Zuerblis Executive Vice President Finance, September 13, 2004
- -------------------------------- (Principal Executive Officer)
Kenneth J. Zuerblis Chief Financial Officer
(Principal Financial and
Accounting Officer) and
Corporate Secretary
/S/ Arthur J. Higgins Chairman of the Board September 13, 2004
- --------------------------------
Arthur J. Higgins
/S/ Rolf A. Classon Director September 13, 2004
- --------------------------------
Rolf A. Classon
/S/ Rosina B. Dixon Director September 13, 2004
- --------------------------------
Rosina B. Dixon
/S/ Robert LeBuhn Director September 13, 2004
- --------------------------------
Robert LeBuhn
68
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Index
Page
----
Report of Independent Registered Public Accounting Firm F-2
Consolidated Financial Statements:
Consolidated Balance Sheets - June 30, 2004 and 2003 F-3
Consolidated Statements of Operations - Years ended
June 30, 2004, 2003 and 2002 F-4
Consolidated Statements of Stockholders' Equity -
Years ended June 30, 2004, 2003 and 2002 F-5
Consolidated Statements of Cash Flows - Years ended
June 30, 2004, 2003 and 2002 F-7
Notes to Consolidated Financial Statements - Years ended
June 30, 2004, 2003 and 2002 F-8
Consolidated Financial Statement Schedule:
Schedule II - Valuation and Qualifying Accounts F-44
F-1
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
Enzon Pharmaceuticals, Inc.:
We have audited the consolidated financial statements of Enzon Pharmaceuticals,
Inc. and subsidiaries as listed in the accompanying index. In connection with
our audits of the consolidated financial statements, we also have audited the
consolidated financial statement schedule as listed in the accompanying index.
These consolidated financial statements and consolidated financial statement
schedule are the responsibility of the Company's management. Our responsibility
is to express an opinion on these consolidated financial statements and
consolidated financial statement schedule based on our audits.
We conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Enzon
Pharmaceuticals, Inc. and subsidiaries as of June 30, 2004 and 2003, and the
results of their operations and their cash flows for each of the years in the
three-year period ended June 30, 2004, in conformity with U.S. generally
accepted accounting principles. Also in our opinion, the related consolidated
financial statement schedule, when considered in relation to the basic
consolidated financial statements taken as a whole, presents fairly, in all
material respects, the information set forth therein.
/s/KPMG LLP
Short Hills, New Jersey
August 17, 2004
F-2
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
June 30, 2004 and 2003
(Dollars in thousands, except per share amounts)
2004 2003
--------- ---------
ASSETS
Current assets:
Cash and cash equivalents $ 91,532 $ 66,752
Short-term investments 27,119 25,047
Accounts receivable, net 25,977 33,173
Inventories 11,215 11,786
Deferred tax assets 9,133 14,564
Other current assets 5,377 1,525
--------- ---------
Total current assets 170,353 152,847
--------- ---------
Property and equipment, net 34,859 32,593
Marketable securities 67,582 61,452
Investments in equity securities 37,906 56,364
Deferred tax assets 61,502 52,889
Amortizable intangible assets, net 194,067 211,975
Goodwill 150,985 150,985
Other assets 7,609 9,461
--------- ---------
554,510 575,719
--------- ---------
Total assets $ 724,863 $ 728,566
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 8,663 $ 12,809
Accrued expenses 14,001 10,262
Accrued interest 9,000 9,000
Income taxes payable -- 2,274
--------- ---------
Total current liabilities 31,664 34,345
--------- ---------
Accrued rent 343 449
Unearned revenue 1,312 2,188
Notes payable 400,000 400,000
--------- ---------
401,655 402,637
--------- ---------
Commitments and contingencies
Stockholders' equity:
Common stock-$.01 par value, authorized 90,000,000 shares
issued and outstanding 43,750,934 shares in 2004 and
43,518,359 shares in 2003 438 435
Additional paid-in capital 322,486 322,488
Accumulated other comprehensive loss (3,546) (159)
Deferred compensation (3,571) (4,040)
Accumulated deficit (24,263) (27,140)
--------- ---------
Total stockholders' equity 291,544 291,584
--------- ---------
Total liabilities and stockholders' equity $ 724,863 $ 728,566
========= =========
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
Years ended June 30, 2004, 2003 and 2002
(Dollars in thousands, except per share amounts)
2004 2003 2002
--------- --------- --------
Revenues:
Product sales, net $ 107,922 $ 59,264 $ 22,183
Manufacturing revenue 12,911 8,742 --
Royalties 47,707 77,589 53,329
Contract revenue 1,031 811 293
--------- --------- --------
Total revenues 169,571 146,406 75,805
--------- --------- --------
Costs and expenses:
Cost of sales and manufacturing revenue 46,986 28,521 6,078
Research and development 34,769 20,969 18,427
Selling, general and administrative 47,001 30,571 16,545
Amortization of acquired intangibles 13,432 9,211 142
Write-down of carrying value of investment 8,341 27,237 --
Acquired in process research and development 12,000 -- --
--------- --------- --------
Total costs and expenses 162,529 116,509 41,192
--------- --------- --------
Operating income 7,042 29,897 34,613
--------- --------- --------
Other income (expense):
Investment income, net 13,396 8,942 18,681
Interest expense (19,829) (19,828) (19,829)
Merger termination fee, net -- 26,897 --
Other 3,860 41 3,218
--------- --------- --------
(2,573) 16,052 2,070
--------- --------- --------
Income before tax provision (benefit) 4,469 45,949 36,683
Tax provision (benefit) 1,592 223 (9,123)
--------- --------- --------
Net income $ 2,877 $ 45,726 $ 45,806
========= ========= ========
Basic earnings per common share $ 0.07 $ 1.06 $ 1.07
========= ========= ========
Diluted earnings per common share $ 0.07 $ 1.05 $ 1.04
========= ========= ========
Weighted average number of common
shares outstanding - basic 43,350 43,116 42,726
========= ========= ========
Weighted average number of common shares
and dilutive potential common shares
outstanding 43,522 43,615 44,026
========= ========= ========
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Years ended June 30, 2004, 2003 and 2002
(In thousands)
Preferred stock Common stock
-------------------- -------------------
Additional
Number of Par Number of Par Paid-in
Shares Value Shares Value Capital
--------- ----- ---------- ----- -------
Balance, June 30, 2001, 7 -- 41,991 $ 420 $ 257,682
Common stock issued for exercise of
non-qualified stock options -- -- 1,009 10 5,172
Amortization of deferred compensation -- -- -- -- --
Comprehensive income:
Net income -- -- -- -- --
Net change in unrealized gain on
available for sale securities -- -- -- -- --
------- ------ ------ ------- ---------
Total comprehensive income -- -- -- -- --
------- ------ ------ ------- ---------
Balance, June 30, 2002 7 -- 43,000 $ 430 262,854
Common stock issued for exercise of
Non-qualified stock options -- -- 305 3 1,370
Issuance of restricted common stock -- -- 200 2 3,558
Conversion and redemption of preferred
stock (7) -- 14 -- (25)
Amortization of deferred compensation -- -- -- -- --
Dividends on preferred stock -- -- -- -- --
Tax benefit recognized related to stock
option exercises -- -- -- -- 54,731
Comprehensive income:
Net income -- -- -- -- --
Net change in unrealized gain on
available for sale securities -- -- -- -- --
------- ------- ------ ------- ---------
Total comprehensive income -- -- -- -- --
------- ------- ------ ------- ---------
Balance, June 30, 2003, carried forward -- -- 43,519 $ 435 $ 322,488
Accumulative Other
Comprehensive Deferred Accumulated
Income (Loss) Compensation Deficit Total
------------- ------------ ------- -----
Balance, June 30, 2001, $ 885 ($1,509) ($118,489) $ 138,989
Common stock issued for exercise of
non-qualified stock options -- -- -- 5,182
Amortization of deferred compensation -- 307 -- 307
Comprehensive income:
Net income -- -- 45,806 45,806
Net change in unrealized gain on
available for sale securities 211 -- -- 211
------- ------- --------- ---------
Total comprehensive income 211 -- 45,806 46,017
------- ------- --------- ---------
Balance, June 30, 2002 $ 1,096 $(1,202) $ (72,683) $ 190,495
Common stock issued for exercise of
Non-qualified stock options -- -- -- 1,373
Issuance of restricted common stock -- (3,560) -- --
Conversion and redemption of preferred
stock -- -- -- (25)
Amortization of deferred compensation -- 722 -- 722
Dividends on preferred stock -- -- (183) (183)
Tax benefit recognized related to stock
option exercises -- -- -- 54,731
Comprehensive income:
Net income -- -- 45,726 45,726
Net change in unrealized loss on
available for sale securities (1,255) -- -- (1,255)
------- ------- --------- ---------
Total comprehensive income (1,255) -- 45,726 44,471
------- ------- --------- ---------
Balance, June 30, 2003, carried forward ($159) ($4,040) ($27,140) $ 291,584
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (continued)
Years ended 2004, 2003 and 2002
(In thousands)
Preferred stock Common stock
------------------ ------------------
Additional
Number of Par Number of Par Paid-in
Shares Value Shares Value Capital
--------- ------ ---------- ----- -------
Balance, June 30, 2003, brought forward -- -- 43,519 $ 435 $ 322,488
Common stock issued for exercise of
non-qualified stock options -- -- 97 1 526
Issuance of restricted common stock -- -- 340 4 4,072
Cancellation of restricted common stock -- -- (215) (2) (4,478)
Common stock issued for Independent
Director's Stock Plan -- -- 10 -- 143
Amortization of deferred compensation -- -- -- -- --
Other -- -- -- -- (265)
Comprehensive income:
Net income -- -- -- -- --
Net change in unrealized loss on
available for sale securities,
net of reclassification adjustments -- -- -- -- --
Net change in unrealized loss on NPS -- -- -- -- --
investment ----- ----- ------- ----- ---------
Total comprehensive income (loss) -- -- -- -- --
----- ----- ------- ----- ---------
Balance, June 30, 2004 -- -- 43,751 $ 438 $ 322,486
===== ===== ======= ===== =========
Accumulative Other
Comprehensive Deferred Accumulated
Income (Loss) Compensation Deficit Total
------------- ------------ ------- -----
Balance, June 30, 2003, brought forward ($159) ($4,040) ($27,140) $ 291,584
Common stock issued for exercise of
non-qualified stock options -- -- -- 527
Issuance of restricted common stock -- (4,076) -- --
Cancellation of restricted common stock -- 3,163 -- (1,317)
Common stock issued for Independent
Director's Stock Plan -- -- -- 143
Amortization of deferred compensation -- 1,382 -- 1,382
Other -- -- -- (265)
Comprehensive income:
Net income -- -- 2,877 2,877
Net change in unrealized loss on
available for sale securities,
net of reclassification adjustments (120) -- -- (120)
Net change in unrealized loss on NPS investment (3,267) -- -- (3,267)
------- ------- -------- ---------
Total comprehensive income (loss) (3,387) -- 2,877 (510)
------- ------- -------- ---------
Balance, June 30, 2004 ($3,546) ($3,571) ($24,263) $ 291,544
======= ======= ======== =========
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years Ended June 30, 2004, 2003 and 2002
(Dollars in thousands)
2004 2003 2002
-------- --------- ---------
Cash flows from operating activities:
Net income $ 2,877 $ 45,726 $ 45,806
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 22,072 13,264 972
Amortization of bond premium/discount 939 (1,261) (2,680)
Amortization of debt issue costs 1,829 1,829 1,829
Gain on sale of equity investment (12,777) (2,318) (1,185)
Deferred income taxes 1,592 (4,379) (9,000)
Acquired in process research and development 12,000 -- --
Non-cash (credit) expense for stock based compensation (57) 830 391
Non-cash write down of carrying value of investment 8,341 27,237 --
Change in fair value of derivative (1,728) -- --
Non-cash merger termination fee -- (34,552) --
Changes in operating assets and liabilities:
Decrease (increase) in accounts receivable, net 7,196 (7,123) (14,963)
Decrease (increase) in inventories 571 (1,000) (362)
(Increase) decrease in other current assets (1,017) 2,649 (1,337)
Decrease (increase) in deposits 23 571 (386)
(Decrease) increase in accounts payable (4,146) 8,283 (144)
Increase in accrued expenses 444 6,276 1,981
Increase in accrued interest -- -- 8,750
(Decrease) increase in income taxes payable (2,274) 2,274 --
Increase in accrued rent (106) (104) (29)
Increase in unearned revenue 1,312 -- --
-------- --------- ---------
Net cash provided by operating activities 37,091 58,202 29,643
-------- --------- ---------
Cash flows from investing activities:
Purchase of property and equipment (6,430) (11,225) (7,503)
Purchase of intangible asset -- -- (15,000)
Purchase of acquired in process research and development (12,000) -- --
Acquisition of ABELCET business -- (369,265) --
License of DEPOCYT product -- (12,186) --
Purchase of cost method investments -- -- (48,341)
Proceeds from sale of cost method investments 46,923 -- --
Proceeds from sale of marketable securities 33,444 371,544 271,734
Purchase of marketable securities (79,315) (142,232) (511,997)
Maturities of marketable securities 4,540 57,000 80,260
Decrease in long-term investments -- -- (260)
-------- --------- ---------
Net cash used in investing activities (12,838) (106,364) (231,107)
-------- --------- ---------
Cash flows from financing activities:
Proceeds from issuance of common stock 527 1,265 5,098
Redemption of preferred stock -- (26)
Preferred stock dividend paid -- (183) --
-------- --------- ---------
Net cash provided by financing activities 527 1,056 5,098
-------- --------- ---------
Net increase (decrease) in cash and cash equivalents 24,780 (47,106) (196,366)
Cash and cash equivalents at beginning of year 66,752 113,858 310,224
-------- --------- ---------
Cash and cash equivalents at end of year $ 91,532 $ 66,752 $ 113,858
======== ========= =========
The accompanying notes are an integral part of these consolidated financial
statements.
F-7
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements
Years ended June 30, 2004, 2003 and 2002
(1) Company Overview
Enzon Pharmaceuticals, Inc. ("Enzon" or "Company") is a biopharmaceutical
company that develops, manufactures and markets enhanced therapeutics for
life-threatening diseases through the application of its proprietary
technologies. The Company was originally incorporated in 1981. The Company's
operations include sales of ADAGEN(R), ONCASPAR(R), DEPOCYT(R) and ABELCET,
royalties earned, which are primarily earned on sales of PEG-INTRON(R); contract
manufacturing revenue; and license fees. The manufacturing and marketing of
pharmaceutical products in the United States is subject to stringent
governmental regulation, and the sale of any of the Company's products for use
in humans in the United States requires the prior approval of the United States
Food and Drug Administration ("FDA").
(2) Summary of Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of the Company
and its wholly-owned subsidiaries. All intercompany balances and transactions
have been eliminated in consolidation. The preparation of financial statements
in conformity with accounting principles generally accepted in the United States
of America requires management to make estimates and assumptions that affect the
reported amounts of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and the reported amounts
of revenues and expenses during the reporting period. Actual results could
differ from those estimates.
Cash Equivalents
The Company considers all highly liquid debt instruments with original
maturities not exceeding three months to be cash equivalents. Cash equivalents
consist primarily of U.S. Government instruments, commercial paper, and money
market funds.
Marketable Securities
The Company classifies its investments in debt and marketable equity
securities as available-for-sale since the Company does not have the intent to
hold them to maturity. Debt and marketable equity securities are carried at fair
market value, with the unrealized gains and losses (which are deemed to be
temporary), net of related tax effect, included in the determination of
comprehensive income and reported in stockholders' equity. The fair value of
substantially all securities is determined by quoted market prices.
The cost of the debt securities is adjusted for amortization of premiums
and accretion of discounts to maturity. The amortization, along with realized
gains and losses, is included in interest income. The cost of securities is
based on the specific identification method.
A decline in the market value of any security below cost that is deemed to
be other than temporary results in a reduction in carrying amount to fair value.
The impairment is charged to earnings and a new cost basis for the security is
established. Dividend and interest income are recognized when earned.
F-8
As of June 30, 2004, the aggregate fair value of investments with
unrealized losses have been in a continuous unrealized loss position for less
than 12 months.
F-9
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The amortized cost, gross unrealized holding gains or losses, and fair
value for the Company's available-for-sale securities by major security type at
June 30, 2004 were as follows (in thousands):
Gross Gross
Unrealized Unrealized
Amortized Holding Holding Fair Market
Cost Gains Losses Value*
--------- ---------- ---------- -----------
U.S. Government
agency debt $ 24,017 $ 5 $ (351) $ 23,671
U.S. corporate debt 71,832 6 (808) 71,030
--------- --------- --------- ---------
$ 95,849 $ 11 $ (1,159) $ 94,701
========= ========= ========= =========
* Included in short-term investments $27,119 and marketable securities
$67,582.
The amortized cost, gross unrealized holding gains or losses, and fair
value for securities available-for-sale by major security type at June 30, 2003
were as follows (in thousands):
Gross Gross
Unrealized Unrealized
Amortized Holding Holding Fair Market
Cost Gains Losses Value*
--------- ---------- ---------- -----------
U.S. Government
agency debt $ 26,518 $ 166 $ -- $ 26,684
U.S. corporate debt 59,804 11 -- 59,815
--------- --------- --------- ---------
$ 86,322 $ 177 $ -- $ 86,499
========= ========= ========= =========
* Included in short-term investments $25,047 and marketable securities
$61,452.
The amortized cost, gross unrealized holding gains or losses, and fair
value for securities available-for-sale by major security type at June 30, 2002
were as follows (in thousands):
Gross Gross
Unrealized Unrealized
Amortized Holding Holding Fair Market
Cost Gains Losses Value*
--------- ---------- ---------- -----------
U.S. Government
agency debt $ 339,638 $ 2,052 $ -- $ 341,690
U.S. corporate debt 29,764 -- (298) 29,466
--------- --------- --------- ---------
$ 369,402 $ 2,052 ($ 298) $ 371,156
========= ========= ========= =========
* Included in short-term investments $75,165 and marketable securities
$295,991.
F-10
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
Gross realized gains from the sale of investment securities included in
net income for the years ended June 30, 2004, 2003 and 2002 were $12.8 million,
$2.3 million and $1.2 million, respectively.
Maturities of debt securities classified as available-for-sale at June 30,
2004 were as follows (in thousands):
Years ended June 30, Amortized Cost Fair Market Value
---------------- -------------------
2005 $27,263 $27,119
2006 41,132 40,569
2007 18,440 18,180
2008 9,014 8,833
------- -------
$95,849 $94,701
======= =======
Financial instruments
The carrying values of cash and cash equivalents, accounts receivable,
other assets, accounts payable and accrued expenses included in the Company's
consolidated balance sheets approximated their fair values at June 30, 2004 and
2003.
Revenue Recognition
Revenues from product sales and manufacturing revenue are recognized at
the time of shipment and a provision is made at that time for estimated future
credits, chargebacks, sales discounts, rebates and returns (estimates are based
on historical trends). These sales provision accruals, except for rebates which
are recorded as a liability, are presented as a reduction of the accounts
receivable balances and totaled $9.5 million, including $7.8 million in reserves
for chargebacks, as of June 30, 2004. For June 30, 2003 these sales provision
accruals are presented as a reduction of the accounts receivable balances,
except for rebates which are recorded as a liability, and totaled $8.1 million,
including $6.3 million in reserves for chargebacks. The Company continually
monitors the adequacy of the accrual by comparing the actual payments to the
estimates used in establishing the accrual. The Company ships product to
customers primarily FOB shipping point and utilizes the following criteria to
determine appropriate revenue recognition: pervasive evidence of an arrangement
exists, delivery has occurred, selling price is fixed and determinable and
collection is reasonably assured.
Royalties under the Company's license agreements with third parties are
recognized when earned through the sale of product by the licensor. The Company
does not participate in the selling or marketing of products for which it
receives royalties.
In accordance with SAB 104, upfront nonrefundable fees associated with
license and development agreements where the Company has continuing involvement
in the agreement are recorded as deferred revenue and recognized over the
estimated service period. If the estimated service period is subsequently
modified, the period over which the up-front fee is recognized is modified
accordingly on a prospective basis. SAB No. 104 updates the guidance in SAB No.
101 and requires companies to identify separate units of accounting based on the
consensus reached on Emerging Issues Task Force ("EITF") Issue No 00-21.
"Revenue Arrangements with Multiple Deliverables ("EITF 00-21"). EIFT 00-21
provides guidance on how to determine when an arrangement that involves multiple
revenue-generating activities or deliverables should be divided into separate
units of accounting for revenue recognition purposes, and if this division is
required, how the arrangement consideration should be allocated among the
separate units of accounting, EITF 00-21 is effective for revenue arrangements
entered into in quarters beginning after June 15, 2003. If the deliverables in a
revenue arrangement constitute separate units of accounting according to the
EITF's separation criteria, the revenue-recognization policy must be determined
for each identified unit. If the arrangement is a single unit of accounting
under the separation criteria the revenue-recognition policy must be determined
for the entire arrangement. The adoption of EITF 00-21 did not impact the
Company's historical consolidated financial position or results or operations,
but could affect the timing or pattern of revenue recognition for future
collaborative research and/or license agreements. Prior to the adoption of EITF
00-21, revenues from the achievement of research and development milestones,
which represent the achievement of a significant step in the research and
development process, were recognized when and if the milestones were achieved.
Inventories
Inventories are carried at the lower of cost or market. Cost is determined
using the first-in, first-out (FIFO) method and includes the cost of raw
materials, labor and overhead.
F-11
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
Property and Equipment
Property and equipment are stated at cost. Depreciation of fixed assets is
provided by straight-line methods over estimated useful lives. When assets are
retired or otherwise disposed of, the cost and related accumulated depreciation
are removed from the accounts, and any resulting gain or loss is recognized in
operations for the period. Amortization of leasehold improvements is calculated
using the straight-line method over the remaining term of the lease or the life
of the asset, whichever is shorter. The cost of repairs and maintenance is
charged to operations as incurred; significant renewals and improvements are
capitalized.
Business Combinations
In July 2001, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 141, Business
Combinations, SFAS No. 141 requires that all business combinations be accounted
for under a single method-the purchase method. Current U.S. Accounting Standards
no longer permit the use of the pooling-of-interests method. SFAS No. 141
requires that the purchase method be used for business combinations initiated
after June 30, 2001. Subsequent to SFAS No. 141 becoming effective, the Company
completed the acquisition of the North American ABELCET business, which was
accounted for using the purchase method of accounting.
Goodwill and Other Intangible Assets
Goodwill represents the excess of costs over the fair value of
identifiable net assets of businesses acquired. The Company adopted the
provisions of SFAS No. 142, Goodwill and Other Intangible Assets, as of July 1,
2002. In accordance with the provisions of SFAS No. 142, goodwill and other
intangible assets determined to have an indefinite useful life acquired in a
purchase business combination are not subject to amortization, are tested at
least annually for impairment, and are tested for impairment more frequently if
events and circumstances indicate that the asset might be impaired. The Company
completed its annual goodwill impairment test on May 31, 2004, which indicated
that goodwill was not impaired. An impairment loss is recognized to the extent
that the carrying amount exceeds the asset's fair value. This determination is
made at the Company level because the Company is in one reporting unit and
consists of two steps. First, the Company determines the fair value of its
reporting unit and compares it to its carrying amount. Second, if the carrying
amount of its reporting unit exceeds its fair value, an impairment loss is
recognized for any excess of the carrying amount of the reporting unit's
goodwill over the implied fair value of that goodwill. The implied fair value of
goodwill is determined by allocating the fair value of the reporting unit in a
manner similar to a purchase price allocation, in accordance with FASB Statement
No. 141, Business Combinations. The residual fair value after this allocation is
the implied fair value of the company's goodwill. Recoverability of amortizable
intangible assets is determined by comparing the carrying amount of the asset to
the future undiscounted net cash flow to be generated by the asset. The
evaluations involve amounts that are based on management's best estimate and
judgment. Actual results may differ from these estimates. If recorded values are
less than the fair values, no impairment is indicated. SFAS No. 142 also
requires that intangible assets with estimated useful lives be amortized over
their respective estimated useful lives. At the time of adoption of SFAS No.
142, the Company did not have any goodwill or other intangible assets with an
indefinite useful life. As of June 30, 2004, the Company does not have
intangibles with indefinite useful lives, other than goodwill.
Accounting for Impairment of Long-Lived Assets
In accordance with SFAS No. 144, Accounting for the Impairment or Disposal
of Long-Lived
F-12
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
Assets, such as property, plant, and equipment and purchased intangibles
subject to amortization are reviewed for impairment whenever events or changes
in circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to estimated undiscounted future
cash flows expected to be generated by the asset. If the carrying amount of an
asset exceeds its estimated future cash flows, an impairment charge is
recognized by the amount by which the carrying amount of the asset exceeds the
fair value of the asset. Assets to be disposed of would be separately presented
in the consolidated balance sheet and reported at the lower of the carrying
amount or fair value less costs to sell, and are no longer depreciated. The
assets and liabilities of a disposed group classified as held for sale would be
presented separately in the appropriate asset and liability sections of the
consolidated balance sheet.
Intangible assets are capitalized and amortized on a straight-line basis
over their respective expected useful lives, up to a 15-year period.
Acquired in-process research and development
Costs to acquire in-process research and development ("IPR&D") projects
and technologies which have no alternative future use at the date of acquisition
are expensed as incurred.
Derivative Financial Instruments
The Company addresses certain financial exposures through a controlled
program of risk management that, at times subsequent to June 30, 2003, includes
the use of derivative financial instruments. The Company does not use derivative
financial instruments for trading or speculative purposes. In August 2003, the
Company entered into a Zero Cost Protective Collar arrangement with a financial
institution to reduce the exposure associated with the shares of NPS
Pharmaceuticals, Inc. received in June 2003 as a result of the termination of
the proposed merger between the Company and NPS Pharmaceuticals, Inc. (see Note
14). The contract has been designated as a fair value hedge and accordingly, the
change in fair value of the derivative will be recorded in other comprehensive
income or in the income statement depending on the portion of the derivative
designated as an effective hedge. The Company formally assesses, both at
inception of the hedge and periodically on an ongoing basis, whether the
derivative is highly effective in offsetting changes in the fair value of the
hedged item. If it is determined that a derivative is not highly effective as a
hedge or if a derivative ceases to be a highly effective hedge, the Company
discontinues hedge accounting prospectively.
Research and Development
All research and development costs are expensed as incurred. These include
the following types of costs incurred in performing research and development
activities: salaries and benefits, allocated overhead and occupancy costs,
clinical trials and related clinical manufacturing costs, contract services, and
other outside costs.
Income Taxes
Income taxes are accounted for under the asset and liability method.
Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial
F-13
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
statement carrying amounts of existing assets and liabilities and their
respective tax bases and operating loss and tax credit carryforwards. Deferred
tax assets and liabilities are measured using enacted tax rates expected to
apply to taxable income in the years in which those temporary differences are
expected to be recovered or settled. The effect of a change in tax rates on
deferred tax assets and liabilities is recognized in income or expense in the
period that includes the enactment date of the rate change.
Foreign Currency Transactions
Gains and losses from foreign currency transactions, such as those
resulting from the translation and settlement of receivables and payables
denominated in foreign currencies, are included in the consolidated statements
of operations. The Company does not currently use derivative financial
instruments to manage the risks associated with foreign currency fluctuations.
The Company recorded a loss on foreign currency transactions of approximately
$18,000 for the year ended June 30, 2004. Gains and losses from foreign currency
transactions are included as a component of other income (expense).
Stock-Based Compensation Plans
The Company applies the intrinsic value-based method of accounting
prescribed by Accounting Principles Board ("APB") Opinion 25, Accounting for
Stock Issued to Employees, and related interpretations, in accounting for its
fixed plan stock options. As such, compensation expense would be recorded on the
date of grant of options to employees and members of the Board of Directors only
if the current market price of the underlying stock exceeded the exercise price.
SFAS No. 123, Accounting for Stock-Based Compensation ("SFAS 123"), established
accounting for stock-based employee compensation plans. As allowed by SFAS 123,
the Company has elected to continue to apply the intrinsic value-based method of
accounting described above, and has adopted the disclosure requirements of SFAS
123, as amended.
When the exercise price of employee or director stock options is less than
the fair value of the underlying stock on the grant date, the Company records
deferred compensation for the difference and amortizes this amount to expense
over the vesting period of the options. Options or stock awards issued to
non-employees and consultants are recorded at their fair value as determined in
accordance with SFAS 123 and Emerging Issues Task Force ("EITF") No. 96-18,
Accounting for Equity Instruments That Are Issued to Other Than Employees for
Acquiring, or in Conjunction with Selling, Goods or Services, and recognized
over the related vesting period.
F-14
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The following table illustrates the effect on net income and net income
per share as if the compensation cost for the Company's stock option grants had
been determined based on the fair value at the grant dates for awards consistent
with the fair value method of SFAS No. 123 (in thousands, except per share
amounts):
Years ended June 30,
----------------------------------
2004 2003 2002
-------- -------- --------
Net income applicable to common stockholders:
As reported $ 2,877 $ 45,726 $ 45,806
Add stock-based employee compensation
expense included in reported net income, net of tax (1) (34) 433 307
Deduct total stock-based employee
compensation expense determined under
fair-value-based method for all awards, net of tax (1) (11,074) (8,933) (22,751)
-------- -------- --------
Pro forma net income (loss) $ (8,231) $ 37,226 $ 23,362
======== ======== ========
Net income (loss) per common share-basic:
As reported $ 0.07 $ 1.06 $ 1.07
Pro forma $ (0.19) $ 0.86 $ 0.55
Net income (loss) per common share-diluted
As reported $ 0.07 $ 1.05 $ 1.04
Pro forma $ (0.19) $ 0.85 $ 0.53
(1) Information for 2004 and 2003 has been adjusted for taxes using
estimated tax rates of 35% and 40%, respectively. Information for 2002 has not
been tax effected as a result of the Company's utilization of net operating loss
carryforwards in that year.
The pro forma effects on net income applicable to common stockholders and
net income per common share for 2004, 2003 and 2002 may not be representative of
the pro forma effects in future years since compensation cost is allocated on a
straight-line basis over the vesting periods of the grants, which extends beyond
the reported years.
F-15
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The weighted-average fair value per share was $8.10, $12.50 and $29.27 for
stock options accounted for under SFAS No. 123 and granted in 2004, 2003 and
2002, respectively. The fair value of stock options was estimated using the
Black-scholes option-pricing model. The Black-scholes model considers a number
of variables, including the exercise price and the expected life of the option,
the current price of common stock, the expected volatility and the dividend
yield of the underlying common stock, and the risk-free interest rate during the
expected term of the option. The following table summarizes the weighted average
assumptions used:
Years ended June 30,
----------------------
2004 2003 2002
---- ---- ----
Risk-free interest rate 4.00% 2.97% 4.00%
Expected stock price volatility 40% 75% 78%
Expected term until exercise (years) 4.73 4.21 4.23
Expected dividend yield 0% 0% 0%
Cash Flow Information
Cash payments for interest were approximately $18.0 million, $18.0 million
and $9.3 million for the years ended June 30, 2004, 2003 and 2002, respectively.
There were $3.8 million and $2.1 million of tax payments made for the years
ended June 30, 2004 and June 30, 2003, respectively. There were no income tax
payments made for the year ended June 30, 2002.
Reclassifications
Certain amounts previously reported have been reclassified to conform to
the current year's presentation.
(3) Comprehensive Income
SFAS No. 130, "Reporting Comprehensive Income," establishes standards for
reporting and presentation of comprehensive income and its components in a full
set of financial statements. Comprehensive income consists of net income and net
unrealized gains (losses) on securities and is presented in the Consolidated
Statements of Stockholders' Equity.
F-16
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The following table reconciles net income to comprehensive income (loss)
(in thousands):
Years Ended June 30,
---------------------------------
2004 2003 2002
-------- -------- --------
Net income $ 2,877 $ 45,726 $ 45,806
Other comprehensive income:
Unrealized gain (loss) on securities
that arose during the year net of
tax provision (benefit) of
($540,000), $345,000 and
$658,000 for 2004, 2003 and
2002, respectively (784) 1,007 211
Unrealized loss on NPS investment
arising during the period, net of tax (3,267) -- --
Reclassification adjustment for gain
included in net income, net of tax 664 (2,262) --
-------- -------- --------
(3,387) (1,255) 211
-------- -------- --------
Total comprehensive income (loss) $ (510) $ 44,471 $ 46,017
======== ======== ========
(4) Earnings Per Common Share
Basic earnings per share is computed by dividing the net income available
to common stockholders adjusted for only cumulative undeclared preferred stock
dividends for the relevant period, by the weighted average number of shares of
Common Stock issued and outstanding during the periods. For purposes of
calculating diluted earnings per share for the years ended June 30, 2004, 2003
and 2002, the denominator includes both the weighted average number of shares of
Common Stock outstanding and the number of dilutive Common Stock equivalents.
The number of dilutive Common Stock equivalents includes the effect of
non-qualified stock options calculated using the treasury stock method and the
number of shares issuable upon conversion of the Series A Preferred Stock that
was outstanding as of June 30, 2003 and 2002. The number of shares issuable upon
conversion of the Company's 4.5% Convertible Subordinated Notes due 2008 (the
"Notes") and the effect of the vesting of certain restricted stock and certain
stock options using the treasury stock method have not been included as the
effect of their inclusion would be antidilutive. As of June 30, 2004, 2003 and
2002, the Company had 9,644,000, 6,514,000 and 6,955,000 dilutive potential
common shares outstanding respectively, that could potentially dilute future
earnings per share calculations.
F-17
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The following table represents the reconciliation of the numerators and
denominators of the basic and diluted EPS computations for net earnings
available for Common Stockholders for the years ended June 30, 2004, 2003 and
2002 (in thousands):
Years ended June 30,
--------------------------------
2004 2003 2002
-------- -------- --------
Net income $ 2,877 $ 45,726 $ 45,806
Less: preferred stock dividends -- 11 14
-------- -------- --------
Net income available to common stockholders $ 2,877 $ 45,715 $ 45,792
======== ======== ========
Weighted average number of
common shares issued and
outstanding - basic 43,350 43,116 42,726
Effect of dilutive common stock
equivalents:
Conversion of preferred stock -- 13 16
Exercise of stock options 172 486 1,284
-------- -------- --------
43,522 43,615 44,026
======== ======== ========
(5) Business Combination
(a) Acquisition of ABELCET Product Line
On November 22, 2002, the Company acquired the North American rights
and operational assets associated with the development, manufacture, sales and
marketing of ABELCET(R) (Amphotericin B Lipid Complex Injection) (the "North
American ABELCET business") from Elan Corporation, plc ("Elan"), for $360.0
million plus acquisition costs of approximately $9.3 million. The acquisition is
being accounted for by the purchase method of accounting in accordance with SFAS
No. 141 "Business Combinations", with the results of operations and cash flows
for the North American ABELCET business included in the Company's consolidated
results from the date of acquisition.
The total purchase price of the acquisition was (in thousands):
Cash $360,000
Acquisition costs, primarily legal,
investment banking and accounting fees 9,264
--------
$369,264
========
The purchase price was allocated to the tangible and identifiable
intangible assets acquired based on their estimated fair values at the
acquisition date. The excess of the purchase price over the fair value of
identifiable assets and liabilities acquired amounted to $151.0 million and was
allocated to goodwill.
F-18
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The following table summarizes the estimated fair values of the assets
acquired as of the acquisition date (in thousands):
Inventories $ 8,572
Property, plant and equipment 13,707
Amortizable intangible assets 196,000
Goodwill 150,985
--------
$369,264
========
Property, plant and equipment and intangible assets were recorded at the
estimated fair value of the assets. Amortizable intangible assets include the
following components as determined by a third party valuation (in thousands):
Estimated
lives
-----------
Product Patented Technology $ 64,400 12 years
Manufacturing Patent 18,300 12 years
NDA Approval 31,100 12 years
Trade name and other product rights 80,000 15 years
Manufacturing Contract 2,200 3 years
--------
$196,000
========
Amortization expense for these intangibles and certain other product
acquisition costs (See Note 7) for the next five fiscal years is expected to be
approximately $15.5 million per year. Goodwill will not be amortized but will be
tested for impairment at least annually. For income tax purposes, the entire
amount of goodwill is deductible and is being amortized over a 15 year period.
(b) Elan/Medeus Manufacturing Agreement
As a part of the ABELCET acquisition, the Company entered into a long-term
manufacturing and supply agreement with Elan, whereby the Company continues to
manufacture two products, ABELCET and MYOCET. In February 2004, Elan sold its
European Sales and Marketing business to Medeus Pharma Ltd. ("Medeus") and
transferred the manufacturing and supply agreement to Medeus. Under the terms of
the 2002 ABELCET acquisition agreement, Medeus retained the right to market
ABELCET in any markets outside of the U.S., Canada and Japan. ABELCET is
approved for use in approximately 26 countries for primary and/or refractory
invasive fungal infections.
The manufacturing agreement with Medeus as successor to Elan requires the
Company to supply Medeus with ABELCET and MYOCET through November 21, 2011. For
the period from November 22, 2002 until June 30, 2004, the Company supplied
ABELCET and MYOCET at fixed transfer prices which approximated its manufacturing
cost. From July 1, 2004 to the termination of the agreement, the Company will
supply these products at manufacturing cost plus fifteen percent.
The agreement also provides that until June 30, 2004, Enzon shall
calculate the actual product manufacturing costs on an annual basis and, to the
extent that this amount is greater than the respective transfer prices, Medeus
shall reimbursed Enzon for such differences. Conversely, if such actual
manufacturing costs are less than the transfer price, Enzon shall reimburse
Medeus for such differences. In
F-19
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
addition, for the periods from closing to June 30, 2003 and the one year period
ended June 30, 2004, respectively, Medeus is responsible for reimbursing Enzon
for Medeus' share of the plant's excess capacity for such periods. This
calculation is based on Medeus' portion of the total products manufactured at
the plant.
(c) Pro Forma Financial Information
The pro forma results of operations is presented for illustrative purposes
only and is not necessarily indicative of the operating results that would have
occurred if the transaction had been consummated at the dates indicated, nor is
it necessarily indicative of future operating results of the combined companies
and should not be construed as representative of these amounts for any future
dates or periods.
The following pro forma results of operations of the Company for the year
ended June 30, 2003 and 2002, respectively, assumes the acquisition of the
ABELCET Business occurred as of July 1, 2002 and 2001, respectively and
assumes the purchase price has been allocated to the assets purchased based on
fair values at the date of acquisition (in thousands, except per share amounts):
Years ended
June 30,
----------------------
2003 2002
---------- --------
Product sales $ 104,408 $118,672
Total revenues 182,808 173,294
Net income 45,240 60,416
Pro forma earnings per share:
Basic $1.05 $1.41
Diluted $1.04 $1.37
(6) Inventories
Inventories consist of the following (in thousands):
Years ended June 30,
----------------------
2004 2003
------- -------
Raw materials $ 3,143 $ 4,349
Work in process 3,716 3,392
Finished goods 4,356 4,045
------- -------
$11,215 $11,786
======= =======
F-20
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
(7) Intangible Assets
Intangible assets consist of the following (in thousands):
Estimated
Useful lives
------------
Years ended June 30,
--------------------
2004 2003
-------- --------
Product Patented Technology $ 64,400 $ 64,400 12 years
Manufacturing Patent 18,300 18,300 12 years
NDA Approval 31,100 31,100 12 years
Trade name and other product rights 80,000 80,000 15 years
Manufacturing Contract 2,200 2,200 3 years
Patent 2,092 2,092 15 years
Product Acquisition Costs 26,194 26,194 10-14 years
-------- --------
224,286 224,286
Less: Accumulated amortization 30,219 12,311
-------- --------
$194,067 $211,975
======== ========
Amortization charged to operations relating to intangible assets totaled
$17.9 million, $12.3 million, and $142,000 for the years ended June 30, 2004,
2003 and 2002, respectively.
(8) Property and equipment
Property and equipment consist of the following (in thousands):
Estimated
useful lives
------------
Years ended June 30,
--------------------
2004 2003
------- -------
Land $ 1,500 $ 1,500
Building 4,800 4,800 7 years
Leasehold improvements 16,324 13,881 3-15 years
Equipment 24,694 21,097 3-7 years
Furniture and fixtures 2,721 2,564 7 years
Vehicles 38 55 3 years
------- -------
50,077 43,897
Less: Accumulated depreciation
and amortization 15,218 11,304
------- -------
$34,859 $32,593
======= =======
During the years ended June 30, 2004 and 2003, the Company's fixed asset
disposals were approximately $249,000 and $270,000, respectively which were
fully depreciated.
Depreciation and amortization charged to operations relating to property
and equipment totaled $4.2 million, $2.4 million and $817,000 for the years
ended June 30, 2004, 2003 and 2002, respectively.
F-21
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
(9) Accrued Expenses
Accrued expenses consist of (in thousands):
Years ended June 30,
---------------------
2004 2003
-------- --------
Accrued wages and vacation $ 5,247 $ 4,157
Accrued Medicaid rebates 2,011 1,904
Unearned revenue 1,641 958
Other 2,888 3,243
-------- --------
$ 14,001 $ 10,262
======== ========
(10) Long-Term Debt
In June 2001, the Company completed a private placement of $400.0 million
in Convertible Subordinated Notes due July 1, 2008 (the "Notes"). The Company
received net proceeds from this offering of $387.2 million, after deducting
costs associated with the offering. The net amount of the debt issue costs
totaled $7.3 million at June 30, 2004 and are included in other assets in the
accompanying balance sheet. The Notes bear interest at an annual rate of 4.5%.
Accrued interest on the Notes was approximately $9.0 million as of June 30,
2004. The holders may convert all or a portion of the Notes into Common Stock at
any time on or before July 1, 2008. The Notes are convertible into Common Stock
at a conversion price of $70.98 per share, subject to adjustment in certain
events. The Notes are subordinated to all existing and future senior
indebtedness. After July 7, 2004, the Company may redeem any or all of the Notes
at specified redemption prices, plus accrued and unpaid interest to the day
preceding the redemption date. Upon the occurrence of a "fundamental change", as
defined in the indenture governing the Notes, holders of the Notes may require
the Company to redeem the Notes at a price equal to 100 percent of the principal
amount. In August 2001, the Company filed a registration statement which was
declared effective by the U.S. Securities and Exchange Commission covering the
resale of the Notes and the Common Stock issuable upon conversion of the Notes.
The fair value of the 4.5% Notes was approximately $369.0 million and $327.0
million at June 30, 2004 and 2003, respectively.
(11) Stockholders' Equity
Shareholder Rights Plan
During May 2002, the Company adopted a shareholder rights plan ("Rights
Plan"). The Rights Plan involves the distribution of one preferred share
purchase right ("Right") as a dividend on each outstanding share of the
Company's common stock to each holder of record on June 3, 2002. Each right
shall entitle the holder to purchase one-thousandth of a share of Series B
Preferred Stock ("Preferred Shares") of the Company at a price of $190.00 per
one-thousandth of Preferred Share. The Rights are not immediately exercisable
and will become exercisable only upon the occurrence of certain events. If a
person or group acquires, or announces a tender or exchange offer that would
result in the acquisition of 15 percent or more of the Company's common stock
while the stockholder rights plan remains in place, then, unless (1) the rights
are redeemed by the Company for $0.01 per right or (2) the Board of Directors
determines that a tender or exchange offer for all of the outstanding Common
Stock of the Company is in the best interest of the Company and the
stockholders, the rights will be exercisable by all right holders except the
acquiring person or group for one share of the Company or in certain
circumstances, shares of the third party acquirer, each having a value of twice
the Right's then-current exercise price. The Rights
F-22
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
will expire on May 16, 2012.
Series A Preferred Stock
During the year ended June 30, 2003, the remaining outstanding 6,000
shares of the Company's Series A Cumulative Convertible Preferred Stock ("Series
A Preferred Stock" or "Series A Preferred Shares") were converted to 13,636
shares of Common Stock. Accrued dividends of $156,000 on the Series A Preferred
Shares that were converted, were settled by cash payments. Additionally, cash
payments totaling $4.00 were made for fractional shares related to the
conversions. During the fiscal year ended June 30, 2003 the remaining 1,000
shares of Series A Preferred Stock were redeemed and settled by a cash payment
of $25,000 and accrued dividends of $26,000. There were no conversions of Series
A Preferred Stock during the year ended June 30, 2002.
The Company's Series A Preferred Shares were convertible into Common Stock
at a conversion rate of $11 per share. The value of the Series A Preferred
Shares for conversion purposes was $25 per share. Holders of the Series A
Preferred Shares were entitled to an annual dividend of $2 per share, payable
semiannually, but only when and if declared by the Board of Directors, out of
funds legally available. As of June 30, 2002, undeclared accrued dividends in
arrears were $172,000 or $24.54 per share and $158,000 or $22.54 per share,
respectively. Due to the conversion or redemption of all Series A Preferred
shares prior to June 30, 2003 all dividends have been settled as of June 30,
2003.
Common Stock
During the year ended June 30, 2004, the Company issued 340,000 shares of
restricted common stock and restricted common stock units to certain members of
management which vest over a five year vesting period. Total compensation cost
of approximately $4.1 million, calculated based on the fair value of the shares
on the issuance date, is being recognized as an expense over the vesting period.
For the year ended June 30, 2004, $504,000 was recorded as compensation expense.
The Company also cancelled 215,000 shares of restricted stock and reversed $1.29
million of compensation expense previously recorded related to such shares as a
result of the May 10, 2004 resignation of the Company's Chief Executive Officer
and the cancellation of his unvested restricted stock. In the quarter ended June
30, 2004, the Company reversed $874,000 of compensation expense which was
previously recognized related to these restricted shares, including $764,000
which was recognized for the nine months ended March 31, 2004.
During the year ended June 30, 2003, the Company issued 200,000 shares of
restricted common stock to its President and Chief Executive Officer. Total
compensation expense of approximately $3.6 million, calculated based on the fair
value of the shares on the issuance date, was being recognized over the five
year vesting period.
During the year ended June 30, 2001, the Company issued 25,000 shares of
restricted Common Stock to its President and Chief Executive Officer. Such
shares were issued in conjunction with an employment agreement and vest ratably
over five years. Total compensation expense of approximately $1.5 million was
being recognized over the five year vesting period.
The board of directors has the authority to issue up to 3.0 million shares
of preferred stock, par value $0.01 per share, and to determine the price and
terms, including preferences and voting rights, of those shares without
stockholder approval.
Holders of shares of Common Stock are entitled to one vote per share on
matters to be voted upon by the stockholders of the Company.
F-23
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
As of June 30, 2004, the Company has reserved its common shares for
special purposes as detailed below (in thousands):
Non-Qualified and Incentive Stock Plans 8,248
Shares issuable upon conversion of Notes 5,635
------
13,883
======
(12) Independent Directors' Stock Plan
From December 3, 1996 through December 31, 2002, the Company's Independent
Directors' Stock Plan, which provided for compensation in the form of quarterly
grants of Common Stock to non-executive, independent directors serving on the
Company's Board of Directors. Each independent director was granted shares of
Common Stock equivalent to $2,500 per quarter plus $500 per Board of Director's
meeting attended. The number of shares issued was based on the fair market value
of Common Stock on the last trading day of the applicable quarter. In October
2000, the Compensation Committee of the Board of Directors amended the Plan to
provide that the Independent Directors will be entitled to elect to receive up
to 50% of the fees payable in cash with the remainder of the fee to be paid in
Common Stock. During the years ended June 30, 2003, and 2002, the Company issued
2,500, and 1,000 shares of Common Stock, respectively, to independent directors,
pursuant to the Independent Directors' Stock Plan.
Through December 31, 2002, the Company's Independent Directors received
compensation for serving on the Board of Directors payable in shares of the
Company's common stock or a combination of shares of common stock and cash under
the Company's Independent Directors Stock Plan. In September of 2002, the
Compensation Committee of the Board of Directors decided to terminate the
Independent Directors' Stock Plan as a stand-alone plan and to instead issue
shares of the Company's common stock under the Independent Directors' Stock Plan
pursuant to the 2001 Incentive Stock Plan. During fiscal 2003, each Independent
Director was entitled to compensation of $2,500 per quarter and $500 for each
meeting attended by such Independent Director under the Independent Directors'
Stock Plan. In 2002, in connection with the reduction of shares subject to the
option granted under the regular grant to Independent Directors the Compensation
Committee of the Board of Directors approved a change, effective for the quarter
ended March 31, 2002 and for each quarter thereafter, to the compensation under
the Independent Directors' Stock Plan to include the payment of $500 for
committee meetings attended by the Independent Directors which are held on a day
when no Board of Directors meeting is held. Under the Independent Directors'
Stock Plan the Independent Directors were entitled to elect to receive up to 50%
of the fees payable under the Independent Directors' Stock Plan in cash, with
the remainder of the fees to be paid in shares of the Company's common stock.
Fees payable and shares issuable under the Independent Directors' Stock Plan
were paid annually at the end of the calendar year.
Effective December 31, 2003, the Compensation Committee of the Board of
Directors approved the termination of the existing compensation program for
directors and implemented a new compensation structure. The new compensation
structure entitles each independent director to an annual cash payment of
$20,000. In addition, annual cash payments of $7,000 for chair of the audit and
finance committee, $3,500 for any other chair on any other committee of the
board and $1,000 for each meeting attended will be made to directors. The
structure also includes an annual option grant of 5,000 shares of common stock
issued on the first trading day of each year at the closing price on that day,
F-24
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
which will vest in one year and restricted stock units with an aggregate value
of $25,000 on the first trading day following June 30 based on the closing price
on the date of grant, which will vest in thirds on each of the first three
anniversaries after the date of grant. During the year ended June 30, 2004, the
Company recorded cash compensation expense of $136,000 for the Independent
Directors.
(13) Stock Option Plans
As of June 30, 2004, 8,248,000 shares of Common Stock were reserved for
issuance pursuant to options under two separate plans, the Non-Qualified Stock
Option Plan (the "Stock Option Plan") and the 2001 Incentive Stock Plan (the
"2001 Incentive Stock Plan"), which may be granted to employees, non-employee
directors or consultants to the Company. The exercise price of the options
granted must be at least 100% of the fair market value of the stock at the time
the option is granted. Options may be exercised for a period of up to ten years
from the date they are granted.
In November 1987, the Company's Board of Directors adopted a Non-Qualified
Stock Option Plan (the "Stock Option Plan"). This plan has 7,900,000 shares of
Common Stock authorized for the issuance of stock options. Some of the options
granted contain accelerated vesting provisions, under which the vesting and
exercisability of such shares will accelerate if the closing price of the
Company's Common Stock exceeds $100 per share for at least twenty consecutive
days as reported by the NASDAQ National Market. The other terms and conditions
of the options generally are to be determined by the Board of Directors, or an
option committee appointed by the Board, at their discretion.
In October 2001, the Board of Directors adopted, and in December 2001 the
stockholders approved, the 2001 Incentive Stock Plan. The 2001 Incentive Stock
Plan has 6,000,000 authorized shares for the grant of stock options and other
stock-based awards to employees, officers, directors, consultants, and
independent contractors providing services to Enzon and its subsidiaries as
determined by the Board of Directors or by a committee of directors designated
by the Board of Directors to administer the 2001 Incentive Stock Plan.
F-25
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The following is a summary of the activity in the Company's Stock Option
Plans which include the 1987 Non-Qualified Stock Option Plan and the 2001
Incentive Stock Plan (shares in thousands):
Weighted
Average
Exercise Range of
Shares Price Prices
------ ----- ------
Outstanding at June 30, 2001 3,284 $24.98 $ 1.88 to $73.22
Granted at exercise prices which equaled
the fair market value on the date of grant 1,399 $44.39 $25.10 to $65.86
Exercised (1,008) $ 4.13 $ 2.00 to $37.38
Canceled (31) $41.56 $22.31 to $70.69
------
Outstanding at June 30, 2002 3,644 $38.07 $ 1.88 to $73.22
Granted at exercise prices which equaled
the fair market value on the date of grant 1,133 $19.65 $11.35 to $24.76
Exercised (305) $ 4.49 $ 2.03 to $14.13
Canceled (534) $40.63 $11.70 to $71.00
------
Outstanding at June 30, 2003 3,938 $35.02 $ 1.88 to $73.22
Granted at exercise prices which equaled
the fair market value on the date of grant 2,151 $13.81 $10.66 to $17.72
Exercised (98) $ 5.40 $10.72 to $17.17
Canceled (1,153) $36.21 $11.37 to $71.00
------
Outstanding at June 30, 2004 4,838 $25.90 $ 1.87 to $71.38
======
Of the options the Company granted 245,000 options during the fiscal year
ended June 30, 2002, which contained accelerated vesting provisions based on the
achievement of certain milestones.
As of June 30, 2004, the Stock Option Plans had options outstanding and
exercisable by price range as follows (shares in thousands):
Weighted
Average Weighted Weighted
Range of Remaining Average Average
Exercise Options Contractual Exercise Options Exercise
Prices Outstanding Life Price Exercisable Price
--------------- ----------- ------------ ---------- ----------- ---------
$ 1.87 - $11.37 686 5.33 $7.14 406 $4.29
$11.41 - $14.13 325 8.68 $12.50 57 $13.82
$14.15 - $14.15 785 9.61 $14.15 -- --
$14.16 - $15.13 599 9.72 $15.09 4 $14.55
$15.15 - $18.40 505 5.22 $17.53 303 $17.59
$18.41 - $28.17 589 6.76 $23.14 245 $24.61
$29.75 - $45.98 544 6.86 $43.51 251 $42.51
$47.38 - $70.00 774 2.71 $61.83 721 $62.31
$71.00 - $71.38 31 6.32 $71.24 21 $71.22
------ ------
4,838 6.71 2,008 $35.37
====== ======
F-26
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
(14) Merger Termination Agreement
On February 19, 2003, the Company entered into an agreement and plan of
merger with NPS Pharmaceuticals, Inc. ("NPS"). On June 4, 2003, the merger
agreement was terminated. In accordance with the mutual termination agreement
between the two companies, the Company received 1.5 million shares of NPS common
stock. The termination agreement imposes certain restrictions with respect to
the transferability of the underlying shares including limiting the maximum
number of shares that can be transferred each month after the registration
statement relating to the shares is declared effective to 125,000 shares.
Considering such restrictions, 1.1 million shares were valued at $26.7 million,
which was the fair value of NPS stock on June 4, 2003 and in accordance with
SFAS No. 115 "Accounting for certain Investments in Debt and Equity Securities"
("SFAS 115") and the balance of 375,000 shares were considered as restricted
stock as defined under the scope exception provisions of SFAS 115. The
restricted stock was valued at $7.8 million by applying a 12% discount on the
related fair value based on a valuation performed by an independent third-party
consulting firm. Total consideration received aggregated $34.6 million. The
Company also recorded $7.7 million in costs incurred related to the proposed
merger with NPS (primarily investment banking, legal and accounting fees). The
net gain of approximately $26.9 million was recorded as other income in the
Consolidated Statement of Operations for the year ended June 30, 2003.
As of June 30, 2004 and 2003, the investment in NPS shares of common stock
was valued at $31.5 million and $35.2 million, respectively, which is included
in investments in equity securities and convertible note on the accompanying
balance sheet, the composition of which was as follows (in thousands):
Years Ended
June 30,
-----------------
2004 2003
-----------------
Valued at fair value (including unrealized
gain (loss) of ($4.9) million and $667, respectively) $31,500 $27,382
Valued as restricted stock -- 7,837
------- --------
$31,500 $ 35,219
======= ========
In August 2003, the Company entered into a Zero Cost Protective Collar
arrangement with a financial institution to reduce the exposure associated with
the 1.5 million shares of common stock of NPS received as part of the merger
termination agreement with NPS. By entering into this equity collar arrangement
and taking into consideration the underlying put and call option strike prices,
the terms are structured so that the Company's investment in NPS stock, when
combined with the value of the Collar, should secure ultimate cash proceeds in
the range of 85%-108% of the negotiated fair value per share of $23.47
(representing a 4.85% discount off of the closing price of NPS common stock on
the day before the collar was executed). The Collar is considered a derivative
hedging instrument under SFAS No. 133 and as such, the Company periodically
measures its fair value and recognizes the derivative as an asset or a
liability. The change in fair value is recorded in other comprehensive income
(See Note 3) or in the Statement of Operations depending on the portion of the
derivative designated and effective as a hedge. As of June 30, 2004, the market
value of NPS' common stock was $21.00 per share. When the underlying shares
become unrestricted and freely tradable, the Company is required to deliver to
the financial institution as posted collateral, a corresponding number of shares
of NPS common stock. During the year ended June 30, 2004, the Company sold and
re-purchased 1,125,000 shares respectively of common stock of NPS. The
unrealized gain previously included in other comprehensive income prior to the
sale and repurchase with respect to these shares aggregating $1.8 million for
the year ended June 30, 2004, was recognized in the Statements of Operations and
is included in "Other Income". With respect to the remaining 375,000 shares of
NPS common stock as of June 30, 2004, $38,000 has been recorded in comprehensive
income for the year ended June 30, 2004, net of income taxes. The fair value of
the Collar represents a receivable from the counterparty of $1.7 million at June
30, 2004. In addition, the time value component of the Collar represents a gain
of $1.7 million for the year ended June 30, 2004, and was recorded as "Other
Income" in the Statement of Operations.
F-27
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The Collar will mature in four separate three-month intervals from
November 2004 through August 2005, at which time the Company will receive the
proceeds from the sale of the securities. The amount due at each maturity date
will be determined based on the market value of NPS' common stock on such
maturity date. The contract requires the Company to maintain a minimum cash
balance of $30.0 million and additional collateral up to $10.0 million (as
defined) under certain circumstances with the financial institution. The strike
prices of the put and call options are subject to certain adjustments in the
event the Company receives a dividend from NPS.
(15) Income Taxes
Under the asset and liability method of Statement of Financial Accounting
Standards No. 109 ("SFAS 109"), deferred tax assets and liabilities are
recognized for the estimated future tax consequences attributable to differences
between financial statement carrying amounts of existing assets and liabilities
and their respective tax bases. Deferred tax assets and liabilities are measured
using enacted tax rates expected to apply to taxable income in the years in
which those temporary differences are expected to be recovered or settled. Under
SFAS 109, the effect on deferred tax assets and liabilities of a change in tax
rates is recognized in income in the period that includes the enactment date.
The components of the income tax provision (benefit) are summarized as
follows (in thousands):
Years ended June 30,
-------------------------------------
2004 2003 2002
-------- -------- --------
Current:
Federal $ -- $ -- $ --
State -- 6,589 (857)
-------- -------- --------
Total current -- 6,589 (857)
-------- -------- --------
Deferred:
Federal 1,190 (5,454) (6,132)
State 402 (912) (2,134)
-------- -------- --------
Total deferred 1,592 (6,366) (8,266)
-------- -------- --------
Income tax provision (benefit) $ 1,592 $ 223 ($ 9,123)
======== ======== ========
F-28
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The following table represents a reconciliation between the reported
income taxes and the income taxes which would be computed by applying the
federal statutory rate (35%) to income before taxes (in thousands):
Years ended June 30,
----------------------------------
2004 2003 2002
-------- -------- --------
Income tax expense
computed at federal
statutory rate $ 1,564 $ 16,082 $ 12,839
Non deductible expenses 420 -- --
Add (deduct) effect of:
State income taxes (including sale
and purchase of state net operating
loss carryforwards), net of federal tax (219) 3,690 (1,931)
Federal tax benefit through
utilization of net operating loss
carryforwards against current
period income -- (8,349) (13,116)
Research and development tax credits (1,400) -- --
Increase (decrease) in beginning of year
Valuation allowance - Federal 1,227 (11,200) (6,915)
-------- -------- --------
$ 1,592 $ 223 ($9,123)
======== ======== ========
During 2004, 2003 and 2002, the Company recognized a tax benefit of
$254,000, $474,000 and $857,000 respectively, from the sale of certain state net
operating loss carryforwards.
F-29
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
At June 30, 2004 and 2003, the tax effects of temporary differences that
give rise to the deferred tax assets and deferred tax liabilities are as follows
(in thousands):
Years ended June 30,
---------------------
Deferred tax assets: 2004 2003
-------- --------
Inventories $ 983 $ 335
Compensation 468 992
Returns and allowances 5,818 3,313
Research and development credits carryforward 12,467 10,408
Federal AMT credits 1,563 1,447
Deferred revenue 387 1,319
Capital loss carryforwards 1,121 --
Write down of carrying value of investment 9,174 11,126
Federal and state net operating loss carryforwards 52,086 53,698
Acquired in process research and development 4,846 --
Unrealized loss on securities 4,322 --
Other 1,214 1,164
-------- --------
Total gross deferred tax assets 94,449 83,802
Less valuation allowance (15,564) (12,884)
-------- --------
78,885 70,918
-------- --------
Deferred tax liabilities:
Goodwill (5,803) (2,399)
Unrealized gain on securities -- (345)
Book basis in excess of tax basis of acquired assets (2,447) (721)
-------- --------
(8,250) (3,465)
-------- --------
Net deferred tax assets $ 70,635 $ 67,453
======== ========
A valuation allowance is provided when it is more likely than not that
some portion or all of the deferred tax assets will not be realized. At June 30,
2004, the Company had Federal net operating loss carryforwards of approximately
$126.0 million and combined state net operating loss carryforwards of
approximately $122.0 million that will expire in the years 2005 through 2021.
The Company also has federal research and development tax credit carryforwards
of approximately $10.6 million for tax reporting purposes, which expire in the
years 2005 to 2021. In addition, the Company has $1.8 million of state research
and development tax credit carryforwards, which will expire in the year 2010.
The Company's ability to use the net operating loss and research and development
tax credit carryforwards are subject to certain limitations due to ownership
changes, as defined by rules pursuant to Section 382 of the Internal Revenue
Code of 1986, as amended.
As of June 30, 2004, management believes that it is more likely than not
that the net deferred tax assets will be realized, including the net operating
losses from operating activities and stock option exercises, based on future
operations. The Company has maintained a valuation allowance of $15.6 million
and $12.9
F-30
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
million at June 30, 2004 and 2003, respectively. The net increase in the
valuation allowance for 2004 was due to the determination that it is more likely
than not that the Company may not utilize certain capital loss carryforwards and
federal research and development credits at June 30, 2004. The Company will
continue to reassess the need for such valuation allowance in accordance with
SFAS 109 based on the future operating performance of the Company.
The net operating loss carryforward stated above, includes $1.9 million
from the acquisition of Enzon Labs, Inc. the utilization of which is limited to
a maximum of $615,000 per year.
(16) Significant Agreements
Schering Agreement
In November 1990, the Company entered into an agreement with
Schering-Plough. Under this agreement, Schering-Plough agreed to apply Enzon's
PEG technology to develop a modified form of Schering-Plough's INTRON A.
Schering-Plough is responsible for conducting and funding the clinical studies,
obtaining regulatory approval and marketing and manufacturing the product
worldwide on an exclusive basis and the Company receives royalties on worldwide
sales of PEG-INTRON for all indications. The royalty percentage to which the
Company is entitled will be lower in any country where a pegylated
alpha-interferon product is being marketed by a third party in competition with
PEG-INTRON, where such third party is not Hoffmann-La Roche.
In June 1999, the Company amended its agreement with Schering-Plough,
which resulted in an increase in the effective royalty rate that it receives for
PEG-INTRON sales. In exchange, the Company relinquished its option to retain
exclusive U.S. manufacturing rights for this product. In addition, the Company
granted Schering-Plough a non-exclusive license under some of its PEG patents
relating to branched or U-PEG technology. This license gives Schering-Plough the
ability to sublicense rights under these patents to any party developing a
competing interferon product. During August 2001, Schering-Plough, pursuant to a
cross license agreement entered into as part of the settlement of certain patent
litigation, granted Hoffmann-La Roche a sublicense under the Company's branched
PEG patents to allow Hoffmann-La Roche to make, use, and sell its pegylated
alpha-interferon product, PEGASYS.
Under this agreement, Schering Plough was obligated to pay and has paid
the Company a total of $9.0 million in milestone payments, none of which are
refundable. These milestone payments were recognized when received, as the
earnings process was complete. Schering-Plough's obligation to pay the Company
royalties on sales of PEG-INTRON terminates, on a country-by-country basis, upon
the later of the date the last patent of the Company to contain a claim covering
PEG-INTRON expires in the country or 15 years after the first commercial sale of
PEG-INTRON in such country.
Schering-Plough has the right to terminate this agreement at any time if
the Company fails to maintain the requisite liability insurance of $5.0 million.
Either party may terminate the agreement upon a material breach of the agreement
by the other party that is not cured within 60 days of written notice from the
non-breaching party or upon declaration of bankruptcy by the other party.
F-31
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
Aventis Agreement
During June 2002, the Company amended its license agreement with Aventis
to reacquire rights to market and distribute ONCASPAR in the United States,
Mexico, Canada and the Asia/Pacific region. In return for the marketing and
distribution rights the Company paid Aventis $15.0 million and pays a 25%
royalty on net sales of ONCASPAR through 2014. The $15.0 million payment is
being amortized over its useful life of 14 years. The amortization and the 25%
royalty payment to Aventis are included in cost of sales for the product. Prior
to the amendment, Aventis was responsible for the marketing and distribution of
ONCASPAR. Under the previous agreement Aventis paid the Company a royalty on net
sales of ONCASPAR of 27.5% on annual sales up to $10.0 million and 25% on annual
sales exceeding $10.0 million.
The amended license agreement prohibits Aventis from making, using or
selling an asparaginase product in the U.S. or a competing PEG-asparaginase
product anywhere in the world until the later of the expiration of the agreement
or, if the agreement is terminated earlier, five years after termination. If the
Company ceases to distribute ONCASPAR, Aventis has the option to distribute the
product in the territories under the original license.
Under the Company's license agreement with Aventis in effect prior to the
June 2002 amendment discussed above (the "Prior License Agreement"), Enzon
granted an exclusive license to Aventis to sell ONCASPAR in the U.S. Enzon has
received licensing payments totaling $6.0 million and was entitled to royalties
on net sales of ONCASPAR. During July 2000, the Company further amended the
license agreement with Aventis to increase the base royalty payable to the
Company on net sales of ONCASPAR from 23.5% to 27.5% on annual sales up to $10.0
million and 25% on annual sales exceeding $10.0 million. These royalty payments
included Aventis' cost of purchasing ONCASPAR under a separate supply agreement.
The agreement was also extended until 2016. Additionally, the Prior License
Agreement eliminated the super royalty of 43.5% on net sales of ONCASPAR which
exceeded certain agreed-upon amounts. The Prior License Agreement also provided
for a payment of $3.5 million in advance royalties, which was received in
January 1995.
As part of the June 2002 amendment, the remaining unpaid royalty advance
on the balance sheet of $1.0 million was eliminated. This was offset against the
$15.0 million payment to Aventis and the net $14 million is included in
amortizable intangible assets, net and is being amortized over 14 years, the
estimated remaining life of ONCASPAR.
During August 2000, the Company made a $1.5 million payment to Aventis
which was accrued at June 30, 2000 to settle a disagreement over the purchase
price of ONCASPAR under the supply agreement and to settle Aventis' claim that
Enzon should be responsible for Aventis' lost profits while ONCASPAR was under
temporary labeling and distribution modifications. In November 1998, the Company
and the FDA agreed to temporary labeling and distribution modifications for
ONCASPAR, as a result of certain previously disclosed manufacturing problems.
These temporary modifications resulted in Enzon, rather than Aventis,
distributing ONCASPAR directly to patients on an as needed basis.
The settlement also called for a payment of $100,000 beginning in May 2000
and for each month that expired prior to the resumption of normal distribution
and labeling of this product by Aventis. During the quarter ended December 31,
2000, the FDA gave final approval to the Company's manufacturing changes, which
were made to correct these problems, and all previously imposed restrictions on
ONCASPAR were lifted. This obligation was terminated pursuant to the June 2002
amendment to the license agreement. Payments as required were made through June
2002.
F-32
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
MEDAC Agreement
In January 2003, the Company renewed an exclusive license to Medac GmbH
("Medac"), a private company based in Germany, to sell ONCASPAR and any
PEG-asparaginase product, developed by the Company or Medac, during the term of
the agreement in most of Europe and part of Asia. The Company's supply agreement
with Medac provides for Medac to purchase ONCASPAR from the Company at certain
established prices. Under the license agreement, Medac is also responsible to
pay the Company a royalty on units sold. Under the license agreement, Medac is
responsible for obtaining additional approvals and indications in the licensed
territories, beyond the currently approved hypersensitive indication in Germany.
Under the agreement, Medac is required to meet certain minimum purchase
requirements. The term of the agreement is for five years and will automatically
renew for an additional five years if Medac meets or exceeds certain diligence
requirements and thereafter the agreement will automatically renew for an
additional two years unless either party provides written notice of its intent
to terminate the agreement at least 12 months prior to the scheduled expiration
date. Following the expiration or termination of the agreement, all rights
granted to Medac will revert back to Enzon.
Nektar Alliance
In January 2002, the Company entered into a broad strategic alliance with
Nektar Therapeutics that includes several components.
The companies entered into a product development agreement to jointly
develop three products to be specified over time using Nektar's Enhance(TM)
pulmonary delivery platform and SEDS(TM) supercritical fluids platform. Nektar
will be responsible for formulation development, delivery system supply, and in
some cases, early clinical development. The Company will have responsibility for
most clinical development and commercialization. This agreement terminates in
January 2007 unless terminated earlier by either party upon 90 days notice of a
material breach or 15 days notice of a payment default. Upon termination of the
agreement, the obligations of the parties to conduct development activities will
expire, but such termination shall not affect rights of either party that have
accrued (e.g., with respect to the ownership of intellectual property or the
right to certain payments) prior thereto.
The two companies will also explore the development of single-chain
antibody (SCA) products for pulmonary administration.
The Company has entered into a cross-license agreement with Nektar under
which each party has crosslicensed to the other party certain patents. The
Company also granted to Nektar the right to grant sub-licenses under certain of
the Company's PEG patents to third parties. The Company will receive a royalty
or a share of profits on final product sales of any products that use its
patented PEG technology. The Company anticipates that it will receive 0.5% or
less of Hoffmann-LaRoche's sales of PEGASYS, which represents equal profit
sharing with Nektar on this product. The Company retains the right to use all of
its PEG technology and certain of Nektar's PEG technology for its own product
portfolio, as well as those products it develops in co-commercialization
collaborations with third parties. This agreement expires upon the later of the
expiration of the last licensed patent or the date the parties are no longer
required to pay royalties. Either party may terminate the agreement upon a
material breach of the agreement by the other party that is not cured within 90
days of the receipt of written notice from the non-breaching party or upon the
declaration of bankruptcy by the other party.
The Company purchased $40 million of newly issued Nektar convertible
preferred stock in January 2002. The preferred stock is convertible into Nektar
common stock at a conversion price of $22.79 per share. In the event Nektar's
common stock price three years from the date of issuance of the preferred
F-33
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
stock or earlier in certain circumstances is less than $22.79, the conversion
price will be adjusted down, although in no event will it be less than $18.23
per share. Conversion of the preferred stock into common stock can occur
anywhere from 1 to 4 years following the issuance of the preferred stock or
earlier in certain circumstances. Under the cost method of accounting,
investments are carried at cost and are adjusted only for other-than-temporary
declines in fair value, and additional investments. As a result of a continued
decline in the price of Nektar's common stock, which the Company determined was
other-than-temporary, during December 31, 2002 the Company recorded a write-down
of the carrying value of its investment in Nektar, which resulted in a non-cash
charge of $27.2 million. The adjustment was calculated based on an assessment of
the fair value of the investment. During the year ended June 30, 2004, the
Company converted the preferred stock into common stock and sold approximately
50% of our investment in Nektar which resulted in a net gain on investment of
$11.0 million and cash proceeds of $17.4 million. (See Note 22 for Write-Down of
Investments.)
The two companies also agreed in January 2002 to a settlement of the
patent infringement suit the Company filed in 1998 against Nektar's subsidiary,
Shearwater Polymers, Inc. Nektar has a license under the contested patents
pursuant to the cross-license agreement. The Company received a one-time payment
of $3.0 million from Nektar to cover expenses incurred in defending its branched
PEG patents.
Micromet Alliance
In April 2002, the Company entered into a multi-year strategic
collaboration with Micromet AG ("Micromet"), a private company based in Munich,
Germany, to identify and develop the next generation of antibody-based
therapeutics. In June 2004, the Company amended this agreement and extended this
collaboration until September 2007. During the first phase of the collaboration,
the partnership generated several new SCA compounds against undisclosed targets
in the fields of inflammatory and autoimmune diseases. The Company extended its
collaboration with Micromet to move the first of these newly created SCAs toward
clinical development. Under the terms of the amended agreement, Enzon and
Micromet will continue to share development costs and future revenues for the
joint development project.
Following the termination or expiration of the agreement, the rights to
antibody-based therapeutics identified or developed by Enzon and Micromet will
be determined in accordance with the United States rules of inventorship. In
addition, Enzon will acquire the rights to any PEGylation inventions. The
agreement can be terminated by either party upon a material breach of the
agreement by the other party. Research and development expenses incurred by the
Company in connection with this collaboration agreement totaled $3.2 million and
$1.7 for the year 2004 and 2003, respectively. There were no research and
development expenses incurred by the Company in connection with this
collaboration for the year ended June 30, 2002.
In addition to the research and development collaboration, in 2002 the
Company also made an $8.3 million investment into Micromet in the form of a note
of Micromet, which was amended in June 2004. This note bears interest of 3% and
is payable in March 2007. This note is convertible into Micromet Common Stock at
a price of 15.56 euros per share at the election of either party. The carrying
value of the convertible note was written-down to zero in June 2004, due to an
other-than-temporary decline in the fair value of this investment. (See Note 22
for write-down of investments.)
Enzon and Micromet have entered into a cross-license agreement for each
company's respective SCA intellectual property and jointly market their combined
SCA technology to third parties. Micromet is the exclusive marketing partner and
has instituted a comprehensive licensing program on behalf of the partnership.
Any resulting revenues from the license agreement executed by Micromet on behalf
of the
F-34
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
partnership will be used for Micromet's and Enzon's joint SCA development
activities.
SkyePharma Agreement
In January 2003, the Company entered into a strategic alliance with
SkyePharma, plc ("SkyePharma") based on a broad technology access agreement. The
two companies agreed to jointly develop up to three products for future
commercialization. These products are based on SkyePharma's proprietary
platforms in the areas of oral, injectable and topical drug delivery, supported
by technology to enhance drug solubility and certain of the Company's
proprietary PEG modification technology, for which the Company received a $3.5
million technology access fee. This non-refundable upfront license fee, which
was recorded as unearned revenue in accrued expenses, is being ratably
recognized as revenue over the development agreement period of four years.
SkyePharma will receive a $2.0 million milestone payment for each product based
on its own proprietary technology that enters Phase 2 clinical development.
Certain research and development costs related to the technology alliance will
be shared equally based on an agreed upon annual budget, as will future revenues
generated from the commercialization of any jointly-developed products.
Effective December 31, 2002, the Company also licensed the North American
rights to SkyePharma's DEPOCYT(R), an injectable chemotherapeutic approved for
the treatment of patients with lymphomatous meningitis. Under the terms of the
agreement, Enzon paid a license fee of $12.0 million. SkyePharma manufactures
DEPOCYT and Enzon purchases finished product at 35% of net sales, which
percentage can be reduced should certain defined sales target be exceeded. The
Company recorded the $12 million license fee as an intangible asset, which is
being amortized over a ten year period and charged to cost of sales.
The Company was required to purchase minimum levels of finished product
for calendar year 2003 (90% of the previous year's sales by SkyePharma) and $5.0
million for each subsequent calendar year through the remaining term of the
agreement. SkyePharma is also entitled to a milestone payment of $5.0 million if
the Company's sales of the product are over a $17.5 million annual run rate for
four consecutive quarters and an additional milestone payment of $5.0 million if
Enzon's sales exceed an annualized run rate of $25.0 million for four
consecutive quarters. The Company is also responsible for a $10.0 million
milestone payment if the product receives approval for neo plastic meningitis
prior to December 31, 2006. This milestone payment is incrementally reduced if
the approval is received subsequent to December 31, 2006 to a minimum payment of
$5.0 million for an approval after December 31, 2007. The Company's license is
for an initial term of ten years and is automatically renewable for successive
two year terms thereafter.
Either party may terminate the agreement early upon a material breach by
the other party, which breach the other party fails to cure within 60 days after
receiving notice thereof. Further, SkyePharma will be entitled to terminate the
agreement early if the Company fails to satisfy its Minimum Annual Purchases. In
addition, the Company will be entitled to terminate the agreement early if a
court or government agency renders a decision or issues an order that prohibits
the manufacture, use or sale of the product in the U.S. If a therapeutically
equivalent generic product enters the market and DEPOCYT's market share
decreases, the Company will enter into good faith discussions in an attempt to
agree on a reduction in its payment obligations to SkyePharma and a fair
allocation of the economic burdens resulting from the market entry of the
generic product. If the Company is unable to reach an agreement within 30 days,
then either party may terminate the agreement, which termination will be
effective 180 days after giving notice thereof. After termination of the
agreement, the Companies will have no further obligation to each other, except
the fulfillment of obligations that accrued prior thereto (e.g., deliveries,
payments, etc.). In addition, for six months after any such termination, the
Company will have the right to distribute any quantity of product the Company
purchased from SkyePharma
F-35
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
prior to termination.
Fresenius Agreement
In June 2003, the Company licensed the North American rights to develop
and commercialize ATG-FRESENIUS S from Fresenius Biotechnology. Under this
agreement, the Company is responsible for obtaining regulatory approval of the
product in the U.S. In September 2004, the Company made a milestone payment to
Fresenius of $1.0 million upon FDA approval of the first IND. The Company is
obligated to make another milestone payment of $1.0 million upon the Company's
submission of a biologics license application with the FDA. Fresenius will be
responsible for manufacturing and supplying the product to the Company and the
Company is required to purchase all of the finished product from Fresenius for
net sales of the product in North America. The Company will purchase finished
product at 40% of net sales, which percentage can be reduced should certain
defined sales targets be exceeded. The Company is required to purchase a minimum
of $2.0 million of product in the first year after commercial introduction and
$5.0 million in the second year, with no minimum purchase requirements
thereafter. Fresenius will supply the product to the Company without charge for
the clinical trials for the first indication. For subsequent trials, the Company
will purchase the clinical supplies from Fresenius.
Inex Agreement
In January 2004, the Company entered into a strategic partnership with
Inex Pharmaceuticals Corporation ("Inex") to develop and commercialize Inex's
proprietary oncology product MARQIBO(R), which was formerly referred to as Onco
TCS. In connection with the strategic partnership, the Company and Inex entered
into a Product Supply Agreement, a Development Agreement, and a Co-Promotion
Agreement. The agreements contain cross termination provisions under which
termination of one agreement triggers termination of all the agreements.
Under the terms of the agreements, the Company received the exclusive
commercialization rights for MARQIBO for all indications in the United States,
Canada, and Mexico.
Upon execution of the related agreements the Company made a $12.0 million
up-front payment to Inex, which has been determined to be an acquisition of
in-process research and development as the payment was made prior to FDA
approval, and therefore expensed in the Company's Statement of Operations for
the quarter ended March 31, 2004. In addition, the Company will be required to
pay up to $20.0 million upon MARQIBO being approved by the FDA and development
milestones and sales-based bonus payments could total $43.75 million, of which
$10.0 million is payable upon annual sales first reaching $125.0 million, and
$15.0 million is payable upon annual sales first reaching $250.0 million. The
Company will also be required to pay Inex a percentage of commercial sales of
MARQIBO and this percentage will increase as sales reach certain predetermined
thresholds.
The Company and Inex will share equally the future development costs to
obtain and maintain marketing approvals in North America for MARQIBO, and the
Company will pay all sales and marketing costs and certain other post-approval
clinical development costs typically associated with commercialization
activities. The Company plans to market MARQIBO to the oncology market through
its North American sales force, which currently markets ABELCET(R), ONCASPAR(R),
and DEPOCYT(R). Inex has the option of complementing the Company's sales efforts
by co-promoting MARQIBO through the formation of a dedicated North American
sales and medical science liaison force. The costs of building Inex's
co-promotion force will be shared equally by both companies and the Company will
record all sales in the licensed territories. Inex retains manufacturing rights
and the Company will reimburse Inex for the manufacture and supply of the drug
at manufacturing cost plus five percent.
F-36
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
The agreements will expire on a country by country basis upon the expiration of
the last patent covering the licensed product in each particular country or 15
years after the first commercial sale in such country, whichever is later. The
agreements are also subject to earlier termination under various circumstances.
The Company may terminate the agreements at any time upon 90 days notice, in
connection with which the Company must pay a $2.0 million termination fee. Inex
has completed the submission of its NDA, therefore if Enzon terminates it must
pay the $2.0 million fee. In addition, if at any time the Company determines
that it has no interest in commercializing the product in any country, then Inex
may terminate the agreement with respect to such country. Either party may
terminate the agreements upon a material breach and failure to cure by the other
party. In addition, either party may terminate the agreements upon the other
party's bankruptcy. Generally, the termination of the agreements with respect to
a particular country shall terminate the Company's license with respect to
MARQIBO, and preclude the Company from marketing the product, in that country.
However, if the Company terminates the agreements because of Inex's breach or
bankruptcy, the licenses granted by Inex will continue, Inex will be obligated
to provide the Company a right of reference to Inex's regulatory dossiers and
facilitate a transfer to the Company of the technology necessary to manufacture
the product. In addition, after such termination, Inex will be obligated to
exercise commercially reasonable efforts to ensure that the Company has a
continuous supply of product until the Company, exercising commercially
reasonable efforts, has secured an alternative source of supply.
Medeus Manufacturing Agreement
On November 22, 2002, we acquired from Elan Corporation plc ("Elan") the
North American rights and operational assets associated with the development,
manufacture, sales and marketing of ABELCET for $360 million plus acquisition
costs. This transaction is being accounted for as a business combination. As
part of the ABELCET acquisition, the Company entered into a long-term
manufacturing and supply agreement with Elan, under which the Company continues
to manufacture two products, ABELCET and MYOCET. In February 2004, Elan sold its
European sales and marketing business to Medeus Pharma Ltd. ("Medeus") and
transferred the manufacturing and supply agreement to Medeus. Under the terms of
the 2002 ABELCET acquisition agreement, Medeus has the right to market ABELCET
in any markets outside of the U.S., Canada and Japan. ABELCET is approved for
use in approximately 26 countries for primary and/or refractory invasive fungal
infections.
The agreement with Medeus, as successor to Elan, requires the Company to
supply Medeus with ABELCET and MYOCET through November 21, 2011. For the period
from November 22, 2002 until June 30, 2004, the Company supplied ABELCET and
MYOCET at fixed transfer prices which approximated its manufacturing cost. From
July 1, 2004 to the termination of the agreement, the Company will supply these
products at its manufacturing cost plus fifteen percent.
The agreement also provides that until June 30, 2004, Enzon will calculate
the actual product manufacturing costs on an annual basis and, to the extent
that this amount is greater than the respective transfer prices, Medeus shall
reimburse Enzon for such differences. Conversely, if such actual manufacturing
costs are less than the transfer price, Enzon shall reimburse Medeus for such
differences.
During February 2004 Elan Corporation, plc, sold its ABELCET and MYOCET
European business to Medeus Pharma, Ltd. ("Medeus") As part of this transaction
the Company's long-term manufacturing and supply agreement with Elan was
assigned to Medeus. In connection with the closing of this sale the Company and
Elan settled a dispute over the manufacturing cost of products produced for Elan
resulting in the payment and recognition of manufacturing revenue related to
approximately $1.7 million of revenue not previously recognized given the
uncertainty of the contractual amount.
CEO Separation Agreement
In connection with Mr. Higgins' departure as the Company's chief executive
officer the Board of Directors appointed a committee of four independent
directors (Dr. Rosina Dixon, Robert LeBuhn, Dr. David Golde and Robert
Parkinson) to review and approve the terms of Mr. Higgins departure. This
committee negotiated and approved a separation payment of $1.25 million, which
was paid to Mr. Higgins upon his departure in May 2004. Concurrent with Mr.
Higgins' departure as chief executive officer in May 2004, the
F-37
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
Company reversed approximately $1.29 million of compensation expense previously
recorded related to restricted stock of the Company that was forfeited by Mr.
Higgins as a result of his departure as the Company's CEO. In the quarter ended
June 30, 2004, the Company reversed $874,000 of compensation expense which was
previously recognized related to these restricted shares, including $764,000
which was recognized for the nine months ended March 31, 2004.
(17) Recent Accounting Pronouncements
In December 2003, the Financial Accounting Standards Board ("FASB") issued
FASB Interpretation No. 46 (revised December 2003) ("FIN46-R"), Consolidation of
Variable Interest Entities, which addresses how a business enterprise should
evaluate whether it has a controlling financial interest in an entity through
means other than voting rights and accordingly should consolidate the entity.
FIN 46-R replaces FASB Interpretation No. 46, Consolidation of Variable Interest
Entities ("FIN 46"), which was issued in January 2003. FIN 46-R requires that if
an entity has a controlling financial interest in a variable interest entity,
the assets, liabilities and results of activities of the variable interest
entity should be included in the consolidated financial statements of the
entity. The provisions of FIN 46-R are effective immediately to those entities
that are considered to be special-purpose entities. For all other arrangements,
the FIN 46-R provisions are required to be adopted at the beginning of the first
interim or annual period ending after March 15, 2004. As of June 30, 2004 the
Company is not a party to transactions contemplated under FIN 46-R.
In November 2002, the Emerging Issues Task Force ("EITF") reached a
consensus opinion on EITF 00-21, Revenue Arrangements with Multiple
Deliverables. The consensus provides that revenue arrangements with multiple
deliverables should be divided into separate units of accounting if certain
criteria are met. The consideration for the arrangement should be allocated to
the separate units of accounting based on their relative fair values, with
different provisions if the fair value of all deliverables is not known or if
the fair value is contingent on delivery of specified items or performance
conditions. Applicable revenue recognition criteria should be considered
separately for each separate unit of accounting. EITF 00-21 is effective for
revenue arrangements entered into in fiscal periods beginning after June 15,
2003. The adoption of this standard did not have any impact on our financial
position or results of operations.
In May 2003, the Financial Accounting Standards Board issued SFAS No. 150,
Accounting for Certain Financial Instruments with Characteristics of both
Liabilities and Equity. SFAS No. 150 requires that certain financial
instruments, which under previous guidance were accounted for as equity, must
now be accounted for as liabilities. The financial instruments affected include
mandatorily redeemable stock, certain financial instruments that require or may
require the issuer to buy back some of its shares in exchange for cash or other
assets and certain obligations that can be settled with shares of stock. SFAS
No. 150 is effective for all financial instruments entered into or modified
after May 31, 2003 and must be applied to the Company's existing financial
instruments effective July 1, 2003, the beginning of the first fiscal period
after June 15, 2003. The Company adopted SFAS No. 150 on July 1, 2003. The
adoption of this statement did not have a material effect on the Company's
consolidated financial position, results of operations or cash flows.
In November 2003, the Emerging Issues Task Force ("EITF") reached an
interim consensus on Issue No. 03-01, The Meaning of Other-Than-Temporary
Impairment and its Application to Certain Investments, to require additional
disclosure requirements for securities classified as available-for-sale or
held-to-maturity for fiscal years ending after December 15, 2003. Those
additional disclosures have been incorporated into the notes to consolidated
financial statements. In March 2004, the EITF reached a final
F-38
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
consensus on this Issue, to provide additional guidance, which companies must
follow in determining whether investment securities have an impairment which
should be considered other-than-temporary. The guidance is applicable for
reporting periods after June 15, 2004. The Company does not expect the adoption
under the final consensus to have a significant impact on its financial position
results of operations and cash flows.
(18) Commitments and Contingencies
The Company has agreements with certain members of its upper management,
which provide for payments following a termination of employment occurring after
a change in control of the Company. The Company also has an employment agreement
with certain members of upper management which provides for severance payments.
The Company has been involved in various claims and legal actions arising
in the ordinary course of business. In the opinion of management, the ultimate
disposition of these matters will not have a material effect on the Company's
consolidated financial position, results of operations or liquidity.
(19) Leases
The Company has several leases for office, warehouse, production and
research facilities and equipment. The non-cancelable lease-terms for the
operating leases expire at various dates between 2005 and 2021 and each
agreement includes renewal options.
Future minimum lease payments, for non-cancelable operating leases with
initial or remaining lease terms in excess of one year as of June 30, 2004 are
(in thousands):
Year ending Operating
June 30, leases
------------- ---------
2005 $1,466
2006 1,445
2007 1,444
2008 1,239
2009 867
Thereafter 9,288
-------
Total minimum lease payments $15,749
=======
Rent expense amounted to $1.4 million, $1.3 million and $847,000 for the
years ended June 30, 2004, 2003 and 2002, respectively.
(20) Retirement Plans
The Company maintains a defined contribution 401(k) pension plan for
substantially all its employees. The Company currently matches 50% of the
employee's contribution of up to 6% of compensation, as defined. Total Company
contributions for the years ended June 30, 2004, 2003, and 2002 were $627,000,
$375,000, $196,000, respectively.
F-39
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
In September 2003, the Board of Directors adopted the Executive Deferred
Compensation Plan (the "Plan"). The Plan is to aid the Company in attracting and
retaining key employees by providing a non-qualified compensation deferral
vehicle. To date no contributions have been made to this plan.
(21) Business and Geographical Segments
The Company is managed and operated as one business segment. The entire
business is comprehensively managed by a single management team that reports to
the Chief Executive Officer. The Company does not operate separate lines of
business or separate business entities with respect to any of its products or
product candidates.
Accordingly, the Company does not prepare discrete financial information
with respect to separate product areas or by location and does not have
separately reportable segments as defined by SFAS No. 131.
Revenues consisted of the following (in thousands):
Years ended June 30,
--------------------------------
2004 2003 2002
-------- -------- --------
Product sales, net
ADAGEN $ 17,113 $ 16,025 $ 13,441
ONCASPAR 18,050 12,432 8,742
DEPOCYT 5,029 2,458 --
ABELCET 67,730 28,349 --
-------- -------- --------
Total product sales 107,922 59,264 22,183
Manufacturing revenue 12,911 8,742 --
Royalties 47,707 77,589 53,329
Contract revenues 1,031 811 293
-------- -------- --------
Total revenues $169,571 $146,406 $ 75,805
======== ======== ========
During the years ended June 30, 2004, 2003 and 2002, the Company had
export sales and royalties recognized on export sales of $44.3 million, $40.2
million and $26.3 million, respectively. Of these amounts, sales and royalties
in Europe and royalties recognized on sales in Europe were $34.7 million, $35.5
and $24.9 million during the years ended June 30, 2004, 2003 and 2002,
respectively.
Outside the United States, the Company principally sells: ADAGEN(R) in
Europe, ONCASPAR in Germany, DEPOCYT(R) in Canada, and ABELCET in Canada.
Information regarding revenues attributable to the United States and to all
foreign countries collectively is stated below. The geographic classification of
product sales was based upon the location of the customer. The geographic
classification of all other revenues is based upon the domicile of the entity
from which the revenues were earned. Information is as follows (in thousands):
Years ended June 30,
--------------------------------
2004 2003 2002
-------- -------- --------
Revenues:
United States $125,268 $106,160 $ 49,503
Foreign countries 44,303 40,246 26,302
-------- -------- --------
Total revenues $169,571 $146,406 $ 75,805
======== ======== ========
(22) Write-down of Investments
F-40
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
In April 2002, the Company entered into a multi-year strategic
collaboration with Micromet and in June 2004, the Company amended this agreement
and extended the collaboration until September 2007. In 2002, the Company also
made an $8.3 million investment into Micromet in the form of a convertible note
due to Enzon, which was amended in June 2004. This note bears interest of 3% and
is payable in March 2007. This note is convertible into Micromet Common Stock at
a price of 15.56 euros per share at the election of either party. During the
year ended June 30, 2004, the Company recorded a write-down of the carrying
value of the investment, which resulted in a non-cash charge of $8.3 million.
The write-down of the Company's investment in Micromet was due to an
other-than-temporary decline in the value of this investment.
In January 2002, the Company entered into a broad strategic alliance with
Nektar Therapeutics to co-develop products utilizing both companies' proprietary
drug delivery platforms. As a part of this agreement, the Company purchased $40
million of newly issued Nektar convertible preferred stock, which is currently
convertible into Nektar common stock at Enzon's option at a conversion price of
$22.79 per share. The investment represented approximately 3% of Nektar's
equivalent common shares outstanding at the time of issuance. Under the cost
method of accounting, non-marketable equity investments are carried at cost and
are adjusted only for other-than-temporary declines in fair value and additional
investments.
As a result of a continued decline in the price of Nektar's common stock,
which the Company determined was other-than-temporary, during December 31, 2002
the Company recorded a write-down of the carrying value of its investment in
Nektar, which resulted in a non-cash charge of $27.2 million. The adjustment was
calculated based on an assessment of the fair value of the investment which was
determined during the quarter ended December 31, 2002 by multiplying the number
of shares of common stock that would be received based on the conversion rate in
place as of the date of the agreement ($22.79 per share) by the closing price of
Nektar common stock on December 31, 2002, less a 10% discount to reflect the
fact that the shares were not convertible as of December 31, 2002, the valuation
date.
As of June 30, 2004, the carrying value of the Nektar investment, which is
included in investments in equity securities and convertible note on the
accompanying Consolidated Balance Sheet, was $6.4 million ($7.27 per share). The
closing price of Nektar common stock was $19.96 per share on June 30, 2004.
F-41
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
(23) Quarterly Results of Operations (Unaudited)
The following table presents summarized unaudited quarterly financial data
(in thousands, except per share amounts):
Three Months Ended
----------------------------------------------------------------
September 30, December 31, March 31, June 30, Fiscal Year
2003 2003 2004 2004 2004
-----------------------------------------------------------------------------
Revenues $ 40,644 $ 41,698 $ 44,379 $ 42,850 $169,571
Gross Profit (1) 15,653 18,074 20,570 19,550 73,847
Tax Provision (Benefit) 1,634 1,180 (5,505) 4,283 1,592
Net income (loss) $ 2,804 $ 2,319 $ 5,066 $ (7,312) $ 2,877
======== ======== ======== ======== ========
Net income (loss) per
common share:
Basic $ 0.06 $ 0.05 $ 0.12 $ (0.17) $ 0.07
Diluted $ 0.06 $ 0.05 $ 0.12 $ (0.17) $ 0.07
Weighted average
number of shares of
common stock
outstanding-basic
43,290 43,307 43,368 43,394 43,350
Weighted average
number of shares of
common stock and
diluted potential
common shares 43,629 43,586 43,817 43,394 43,522
F-42
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements, Continued
Three Months Ended
----------------------------------------------------------------
September 30, December 31, March 31, June 30, Fiscal Year
2002 2002 2003 2003 2003
------------------------------------------------------------------------------
Revenues $ 25,067 $ 31,497 $ 43,163 $ 46,679 $146,406
Gross Profit (1) 4,144 4,187 15,556 15,598 39,485
Tax Provision (Benefit) 261 245 156 (439) 223
Net income (loss) $ 12,784 $(15,244) $ 7,634 $ 40,552 $ 45,726
======== ======== ======== ======== ========
Net income (loss) per
common share:
Basic $ 0.30 $ (0.35) $ 0.18 $ 0.94 $ 1.06
Diluted $ 0.29 $ (0.35) $ 0.17 $ 0.93 $ 1.05
Weighted average
number of shares of
common stock 42,980 43,011 43,192 43,264 43,116
outstanding-basic
Weighted average
number of shares of
common stock and
diluted potential
common shares 43,681 43,011 43,634 43,609 43,615
(1) Gross profit is calculated as the aggregate of product sales, net and
manufacturing revenue less cost of sales and manufacturing revenue.
F-43
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Schedule II - Valuation and qualifying accounts
(In thousands)
Additions
------------------------------
Balance at Charged to Charged to Balance
beginning of costs and other accounts - Deductions - at end of
period expenses describe describe period
Year ended June 30, 2004
Allowance for chargebacks,
returns and cash discounts $8,111 -- $ 53,392(1) $(51,963)(2) $9,540
Year ended June 30, 2003
Allowance for chargebacks,
returns and cash discounts $ -- -- $ 18,997(1) $(10,886)(2) $8,111
(1) Amounts are recognized as a reduction from gross sales.
(2) Chargebacks, returns and cash discounts processed.
F-44
EXHIBIT INDEX
Exhibit Page
Numbers Description Number
- ------- ----------- ------
10.22 Outside Directors' Compensation Arrangement E-2
10.30 Employment Agreement with Kenneth J. Zuerblis dated June 14, 2004, along E-3
with a form of Restricted Stock Award Agreement between the Company and
Mr. Zuerblis executed as of June 14, 2004 and a form of consulting
Agreement between the Company and Mr. Zuerblis.
10.31 Executive Deferred Compensation Plan E-28
12.1 Computation of Ratio of Earnings to Fixed Charges E-41
21.0 Subsidiaries of Registrant E-42
23.0 Consent of KPMG LLP E-43
31.1 Certification of Chief Executive Officer pursuant to Section 302 of the
Sarbanes - Oxley Act of 2002 E-44
31.2 Certification of Chief Financial Officer pursuant to Section 302 of the
Sarbanes - Oxley Act of 2002 E-45
32.1 Certification of Chief Executive Officer Pursuant to Section 906 of the
Sarbanes - Oxley Act of 2002 E-46
32.2 Certification of Chief Financial Officer Pursuant to Section 906 of the
Sarbanes - Oxley Act of 2002 E-47
E-1
Exhibit 10.22
Outside Directors' Compensation Arrangement
1. On an annual basis, outside directors will receive:
a. a retainer of $20,000, to be paid in cash;
b. an additional cash retainer of $7,000 for service as chair of the
Audit and Finance Committee;
c. an additional cash retainer of $3,500 for service as chair of any
other committee of the board;
d. a meeting attendance fee of $1,000 cash for each meeting of the full
board and each meeting of a committee attended, whether a regular or
special meeting and whether a face to face meeting or a
teleconference, provided that only one such fee would be received
for a single day on which a director participated in more than one
such meeting;
e. an option grant as of the first trading day of the calendar year
covering 5,000 shares of common stock with a strike price based on
the closing price of the stock on the Nasdaq Stock Market on the
date of grant, which option will become vested and exercisable in
one tranche one year after the date of grant if the director remains
on the Board at that time; and
f. a grant of restricted common stock units as of the first trading day
following June 30 covering that number of shares of common stock
having an aggregate value of $25,000, based on the closing price of
the stock on the Nasdaq Stock Market on the date of grant, which
restricted stock units are to become fully vested in thirds on each
of the first three anniversaries after the date of grant if the
director remains on the Board on each such date.
3. The cash elements above are to be paid quarterly at the end of each
quarter, beginning with the first quarter of calendar 2004.
4. In addition to the foregoing, upon being initially elected to the board a
new director will receive a "welcome grant" of restricted common stock
units covering that number of shares of common stock having an aggregate
value of $25,000, based on the closing price of the stock on the Nasdaq
Stock Market on the date of grant, which shall be the day on which such
director is first elected. Such restricted stock units will vest in thirds
on each of the first three anniversaries after the date of grant if the
director remains on the Board on each such date.
E-2
Exhibit 10.30
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of June 14, 2004 (the
"Effective Date"), between Enzon Pharmaceuticals, Inc. (the "Company"), a
Delaware corporation with offices in Bridgewater, New Jersey, and Kenneth J.
Zuerblis (the "Executive").
WHEREAS, the Company is a biopharmaceutical company engaged in developing
advanced therapeutics for life threatening diseases; and
WHEREAS, Executive has been employed by the Company since 1992 in various
capacities, currently as it's Vice President, Finance and Chief Financial
Officer;
WHEREAS, the Company wishes the Executive to continue to render services
for the Company, on the terms and conditions set forth in this Agreement, and
the Executive wishes to continue to be employed by the Company on such terms and
conditions;
WHEREAS, the Company and Executive are parties to a Change of Control
Agreement dated as of January 20, 1995 (the "Original Agreement"), which the
parties intend to be superseded by this Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual agreements
set forth below and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Employment; Effective Date of Agreement.
The Company agrees to continue to employ the Executive, and the
Executive accepts such continued employment and agrees to perform services for
the Company, for the period and upon the other terms and conditions set forth in
this Agreement. The provisions of this Agreement are effective as of the
Effective Date. This Agreement supercedes any prior understandings, agreements,
or representations, written or oral, relating to the subject matter hereof,
including, but not limited to, the Original Agreement, which is hereby
terminated.
2. Term.
Unless terminated at an earlier date in accordance with Section 9
hereof, the term of the Executive's employment pursuant to this Agreement shall
be from the Effective Date and shall extend through March 31, 2005, subject to
automatic renewal for an additional twenty-four (24) months, unless either party
hereto receives written notice from the other party no later than January 31,
2005 (a "notice of non-renewal") that such other party does not wish for the
term hereof to continue beyond March 31, 2005, in which event the term hereof
shall end on March 31, 2005 (the period during which the Executive is employed
by the Company pursuant to this Section 2 being the "Term").
3. Position and Duties.
(a) Service with Company. During the term of the Executive's employment,
the Executive agrees to perform such employment duties for the Company in an
executive and managerial capacity commensurate with the position of Executive
Vice President and Chief Financial Officer of the Company. As Executive Vice
President and Chief Financial Officer, Executive shall have the authority and
duty generally to supervise and direct the financial and accounting activities
of the Company, subject to the control and direction of the Chief Executive
Officer of the Company, the Board of Directors of the Company (the "Board"), or
any duly authorized Committee of the Board
E-3
(b) Performance of Duties. The Executive agrees to serve the Company
faithfully and to the best of his ability and to devote his full time, attention
and efforts to the business and affairs of the Company during his employment by
the Company. Executive will not render or perform services for any other
corporation, firm, entity or person which are inconsistent with the provisions
of this Agreement. While he remains employed by the Company, the Executive may
participate in reasonable charitable activities and personal investment
activities so long as such activities do not materially conflict or interfere
with the performance of his obligations under this Agreement. Notwithstanding
the foregoing, Executive shall be permitted to serve on up to two corporate
boards of directors, provided such service does not materially impair the
fulfillment of his responsibilities and duties as Executive Vice President and
Chief Financial Officer of the Company.
(c) Executive Representations and Warranties. Executive represents and
warrants to the Company that his entering into and performing this Agreement
will not constitute a breach of any employment, consulting, non-competition or
other agreement to which he is a party or any other obligation of Executive.
Executive represents and warrants to the Company that he has not been debarred
under the Generic Drug Enforcement Act of 1992 (Sections 306-308 of the Federal
Food, Drug and Cosmetic Act) nor has Executive received notice of action or
threat of action of debarment. Executive shall comply with the Company's
Substance Abuse Policy during the term of this Agreement.
4. Compensation.
(a) Base Salary. As compensation in full for all services to be rendered
by the Executive under this Agreement, the Company shall pay to the Executive,
less applicable deductions and withholdings, a ratable base salary (the "Base
Salary") of Three Hundred Twenty Thousand Dollars ($320,000) per year, which
Base Salary shall be paid in accordance with the Company's normal payroll
procedures and policies for its senior management. The compensation payable to
Executive during each year after the first year of the Executive's employment
shall be established by the Board or the Compensation Committee thereof
following an annual performance review by the Board, but in no event shall the
Base Salary for any successive year of the Term be less than the Base Salary in
effect during the previous year of the Term.
(b) Annual Bonus. Executive shall be entitled to participate in the
Company's bonus plan for management and any successor bonus plan covering
management with respect to each fiscal year of the Company ending during the
Term (the "Bonus Plan"). Under the Bonus Plan, the Executive shall be eligible
to receive a performance-based cash bonus for each fiscal year ending during the
Term in an amount, and based on individual and/or corporate objectives, targets
and factors (and evaluation as to the extent of achievement thereof), to be
established and determined by the Board in its discretion following consultation
between the Chief Executive Officer and Executive prior to, or within sixty (60)
days after the commencement of, each fiscal year. Under the Bonus Plan for the
Executive, (i) the minimum cash bonus shall be zero (0), (ii) the target cash
bonus shall equal 50% of the Base Salary (the "Target Bonus"), and (iii) the
maximum cash bonus shall equal 82.5% of Base Salary.
(c) Participation in Benefit Plans. While he is employed by the Company,
Executive shall also be eligible to participate in any employee benefit plans or
programs which may be offered by the Company to the extent that Executive meets
the requirements for each individual plan and in all other plans in which
Company executives participate. Notwithstanding the foregoing and subject to
Section 10(h), the Company and Executive acknowledge and agree that, although
the Company intends to adopt a severance plan or plans for senior executives in
the near future, it is not intended that Executive participate in such severance
plan(s), it being understood that severance benefits payable to Executive will
be governed solely by this Agreement. Further, it is understood that the Company
may enter into individual contractual arrangements with other executives for
benefits, and that nothing herein shall require the Company to provide the same
benefits or level of benefits to Employee. The Company provides no assurance as
to the adoption or continuance of any particular employee benefit plan or
program, and Executive's participation in any such plan or program shall be
subject to the provisions, rules and regulations applicable thereto.
E-4
(d) Expenses. The Company will pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the Company's normal
policies for expense verification. The Company will also bear the cost of a
corporate country club membership for use by Executive during the Term.
(e) Issuance of Options. Upon execution of this Agreement, Executive shall
be granted a non-qualified option to purchase Twenty-Five Thousand (25,000)
shares of common stock, subject to the terms of a customary option grant
agreement and the 2001 Stock Incentive Plan, with such changes as the
Compensation Committee of the Board of Directors has approved. Executive
acknowledges that he has received and reviewed a copy of the 2001 Stock
Incentive Plan. At the discretion of the Board of Directors (or its applicable
committee), Executive shall be entitled to receive further grants of stock
options, subject to the terms of the Company's Non-Qualified Stock Option Plan,
as amended (the "Option Plan"), or the Company's 2001 Incentive Stock Plan
("2001 Incentive Stock Plan") or such other equity compensation plans that may
be adopted by the Company from time to time. Nothing contained herein shall be
deemed to guarantee Executive any additional grants of options, restricted
stock, other equity awards or securities of the Company.
(f) Restricted Stock. Upon execution of this Agreement, Executive shall be
granted Twenty-Seven Thousand Five Hundred (27,500) shares of restricted stock,
subject to the terms of the Restricted Stock Award Agreement attached hereto as
Exhibit A and the 2001 Stock Incentive Plan. Executive acknowledges that he has
received and reviewed a copy of the 2001 Stock Incentive Plan. At the discretion
of the Board of Directors (or its applicable committee), Executive shall be
entitled to receive additional grants of restricted stock, subject to the terms
of the 2001 Incentive Stock Plan or such other equity compensation plans that
may be adopted by the Company from time to time. Nothing contained herein shall
be deemed to guarantee Executive any additional grants of options, restricted
stock, other equity awards or securities of the Company.
(g) Vacation. Executive shall be entitled to vacations in accordance with
the compensated time off policy of the Company with respect to its senior
management, in effect from time to time.
(h) Certain Legal Expenses. In the event of any legal proceedings,
including without limitation arbitration, between the Company and Executive with
respect to any dispute hereunder in which Executive prevails over the Company,
the Company shall pay Executive's reasonable legal fees and expenses incurred in
connection with such proceedings.
5. Noncompetition and Confidentiality Covenant.
(a) Noncompetition. The "Noncompete Period" shall be:
(i) the Term of this Agreement plus the term of any consulting
agreement between Executive and the Company entered into upon, or in connection
with, the termination of his employment, and
(ii) (A) with respect to any activity covered by clause (y) or (z)
below, the one (1) year period immediately following termination of Executive's
post-employment consultancy, or if no consulting agreement is entered into,
termination of his employment with the Company and (B) with respect to any
activity covered by clause (x) below, the two (2) year period immediately
following termination of Executive's post-employment consultancy, or if no
consulting agreement is entered into, termination of his employment with the
Company (whether any such termination covered by clause (A) or (B) is with or
without Cause or with or without Good Reason, or whether such termination is
occasioned by the Employee or the Company, or whether such termination occurs as
a result of the expiration or nonrenewal of the Term).
E-5
In consideration for the compensation payable to Executive pursuant to
this Agreement, including without limitation the restricted stock granted to
Executive hereunder, during the Noncompete Period, Executive will not directly,
or indirectly, whether as an officer, director, stockholder, partner,
proprietor, associate, employee, consultant, representative or otherwise,
become, or be interested in or associated with any other person, corporation,
firm, partnership or entity, engaged to a significant degree in (x) developing,
manufacturing, marketing or selling enzymes, protein-based biopharmaceuticals or
other pharmaceuticals that are modified using polyethylene glycol ("PEG"), (y)
developing, manufacturing, marketing or selling single-chain antigen-binding
proteins or (z) any activity which is in competition with or resembles any
proprietary technology, process, product or area of business in which the
Company is engaged or with Executive's participation has been actively planning
to be engaged from time to time during the term of this Agreement. For purposes
of the preceding sentence, to determine whether any entity is engaged in such
activities to a "significant degree", comparison will be made to the Company's
operations at that time. In other words, an entity will be deemed to be engaged
in an activity to a significant degree if the number of employees and/or amount
of funds devoted by such entity to such activity would be material to the
Company's operations at that time. The provisions contained in this Section 5(a)
shall survive the termination of Executive's employment pursuant to Section 9
hereof or otherwise. In the event Executive breaches any of the covenants set
forth in this Section 5(a), the running of the period of restriction set forth
herein shall be tolled for the period during which the breach exists and
recommence upon Executive's compliance with the terms of this Section 5(a).
(b) Confidentiality.
(i) Executive acknowledges that, by reason of his employment by the
Company, he will have access to confidential information of the Company,
including, but not limited to, information and knowledge pertaining to
products, inventions, discoveries, improvements, innovations, designs,
ideas, trade secrets, proprietary information, manufacturing, packaging,
advertising, marketing, distribution and sales methods, sales and profit
figures, customer and vendor lists and relationships between the Company
and dealers, distributors, sales representatives, wholesalers, customers,
suppliers and others who have business dealings with them ("Confidential
Information"). The Employee acknowledges that such Confidential
Information is a valuable and unique asset of the Company and covenants
that, both during and after the Term, he/she will not disclose any
Confidential Information to any person or entity, nor use the Confidential
Information for any purpose, except as his duties as an employee of the
Company may require, without the prior written authorization of the Board.
The obligation of confidentiality imposed by this Section shall not apply
to Confidential Information that otherwise becomes generally known to the
public through no act of the Employee in breach of this Agreement or any
other party in violation of an existing confidentiality agreement with the
Company or which is required to be disclosed by court order or applicable
law.
(ii) All records, designs, patents, business plans, financial
statements, manuals, memoranda, lists, research and development plans and
products, and other property delivered to or compiled by Executive for or
on behalf of the Company or its vendors or customers that pertain to the
business of the Company shall be and remain the property of the Company,
and be subject at all times to its discretion and control. Likewise, all
formulae, correspondence, reports, records, charts, advertising materials
and other similar data pertaining to the business, activities or future
plans of the Company (and all copies thereof) that are collected by
Executive shall be delivered promptly to the Company without request by it
upon termination of Executive's employment.
(c) Proprietary Information. Executive is hereby prohibited from ever
using any of the Company's proprietary information or trade secrets to conduct
any business, except for the Company's business while Executive is employed by
the Company.
(d) Survival of Covenants. The provisions contained in Section 5(b) and
(c) shall survive the
E-6
termination of Executive's employment pursuant to Section 9 hereof or otherwise.
(e) Nonsolicitation of Employees. During the Noncompete Period (utilizing
the period of time reflected in Sections 5(a)(i) and 5(a)(ii)(B) hereof),
Executive shall not, directly or indirectly, personally or through others,
encourage to leave employment with the Company, employ or solicit for
employment, or advise or recommend to any other person, firm, business, or
entity that they employ or solicit for employment, any employee of the Company
or of any parent, subsidiary, or affiliate of the Company. The provisions of
this Section 5(e) shall survive the termination of Executive's employment.
6. Ventures.
If, during the term of his employment, the Executive is engaged in or
associated with the planning or implementing of any project, program, venture or
relationship involving the Company and a third party or parties, all rights in
such project, program, venture or relationship shall belong to the Company.
Except as approved by the Board, the Executive shall not be entitled to any
interest in such project, program, venture or relationship or to any commission,
finder's fee or other compensation in connection therewith.
7. Acknowledgment.
Executive agrees that the covenants and agreements contained in Section 5
hereof are the essence of this Agreement; that each of such covenants is
reasonable and necessary to protect and preserve the Company's interests,
properties and business; that irreparable loss and damage will be suffered by
the Company should Executive breach any of such covenants and agreements; that
each of such covenants and agreements is separate, distinct and severable not
only from the other of such covenants and agreements but also from the other and
remaining provisions of this Agreement; that the unenforceability or breach of
any such covenants or agreement shall not affect the validity or enforceability
of any other such covenant or agreement or any other provision of this
Agreement; and that, in addition to other remedies available to it, the Company
shall be entitled to both temporary and permanent injunctions and any other
rights or remedies it may have, at law or in equity, to end or prevent a breach
or contemplated breach by Executive of any such covenants or agreements.
(a) Geographic Extent of Executive's Obligations Concerning Section 5.
Given the nature of the Company's business, the restrictions contained in
Section 5 cannot be limited to any particular geographic region. Therefore, the
obligations of Executive under Section 5 shall apply to any geographic area in
which the Company (i) has engaged in business during the Term through its
investment or trading activities or otherwise, or (ii) has otherwise established
its goodwill, business reputation or any customer or vendor relations.
(b) Limitation of Covenant. Ownership by Executive, as a passive
investment, of less than one percent of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
on Nasdaq shall not constitute a breach of Section 5.
(c) Blue Pencil Doctrine. If the duration or geographical extent of, or
business activities covered by, Section 5 are in excess of what is valid and
enforceable under applicable law, then such provision shall be construed to
cover only that duration, geographical extent or activities that are valid and
enforceable. Executive acknowledges the uncertainty of the law in this respect
and expressly stipulates that this Agreement be given the construction which
renders its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law.
(d) Disclosure. Executive shall disclose to any prospective employer,
prior to accepting or continuing employment, the existence of Section 5 of this
Agreement and shall provide such prospective employer with a copy of Section 5
of this Agreement. The obligation imposed by this subsection 7(d) shall
terminate two years after the end of the Term.
E-7
8. Intellectual Property and Related Matters.
(a) Disclosure and Assignment. Executive will promptly disclose in writing
to the Company complete information concerning each and every product,
invention, discovery, practice, process or method, whether patentable or not,
made, developed, perfected, devised, conceived or first reduced to practice by
Executive, either solely or in collaboration with others, during the Term, or
six months thereafter, whether or not during regular working hours, relating
either directly or indirectly to, or useful in, any aspect of the business,
products, practices or techniques of the Company ("Developments"). Executive, to
the extent that he has the legal right to do so, hereby acknowledges that any
and all of the Developments are the property of the Company and hereby assigns
and agrees to assign to the Company any and all of Executive's right, title and
interest in and to any and all of the Developments. At the request of the
Company, Executive will confer with the Company and its representatives for the
purpose of disclosing all Developments to the Company as the Company shall
reasonably request during the period ending one year after the Term.
(b) Limitation on Section 8(a). The provisions of Section 8(a) shall not
apply to any Development, for which no equipment, supplies, facility or trade
secret information of the Company was used and which was developed entirely on
Executive's own time, unless (a) the invention relates (i) directly to the
business of the Company, or (ii) to the Company's actual or demonstrably
anticipated research or development, or (b) the invention results from any work
performed by Executive for the Company.
(c) Assistance of Executive. Upon request by the Company and without
further compensation therefore, but at no expense to Executive, Executive will
do all lawful acts, including but not limited to, the execution of papers and
lawful oaths and the giving of testimony, that in the opinion of the Company,
may be necessary or desirable in enforcing the Company's intellectual property
and trade secret rights, and for perfecting, affirming and recording the
Company's complete ownership and title thereto.
(d) Records. Executive will keep complete, accurate and authentic
accounts, notes, data and records of the Developments in the manner and form
requested by the Company. Such accounts, notes, data and records shall be the
property of the Company, and, upon the earlier of its request or the conclusion
of his employment, Executive will promptly surrender same to it.
(e) Copyrightable Material. All right, title and interest in all
copyrightable material that Executive shall conceive or originate, either
individually or jointly with others, and which arise out of the performance of
this Agreement, will be the property of the Company and are by this Agreement
assigned to the Company along with ownership of any and all copyrights in the
copyrightable material. Upon request and without further compensation therefore,
but at no expense to Executive, Executive shall execute all papers and perform
all other acts necessary to assist the Company to obtain and register copyrights
on such materials in any and all countries. Where applicable, works of
authorship created by Executive for the Company in performing his
responsibilities under this Agreement shall be considered "works made for hire,"
as defined in the U.S. Copyright Act.
(f) Know-How and Trade Secrets. All know-how and trade secret information
conceived or originated by Executive that arises out of the performance of his
obligations or responsibilities under this Agreement or any related material or
information shall be the property of the Company, and all rights therein are by
this Agreement assigned to the Company.
(g) Survival. The obligations imposed by this Section 8 on Executive shall
survive termination of this Agreement pursuant to Section 9 or otherwise.
9. Termination of Employment.
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(a) Grounds for Termination. Executive's employment pursuant to this
Agreement shall terminate prior to the expiration of the Term in the event that
at any time:
(i) Executive dies,
(ii) Executive becomes disabled (as defined below), so that he
cannot perform the essential functions of his position with or without
reasonable accommodation,
(iii) The Board elects to terminate Executive's employment for
"Cause" and notifies Executive in writing of such election, or
(iv) The Board elects to terminate Executive's employment without
"Cause" and notifies Executive in writing of such election.
If Executive's employment is terminated pursuant to clause (i), (ii) or
(iii) of this Section 9(a), such termination shall be effective immediately. If
Executive's employment is terminated pursuant to subsection (iv) of this Section
9(a), such termination shall be effective 30 days after delivery of the notice
of termination; provided, however, that the Company may elect to make such
termination effective immediately, in which case Executive's employment shall
terminate immediately upon delivery of the notice of termination, but the
Company shall continue to pay him his salary during such 30-day period and the
last day of such 30-day period shall be deemed to be the date of termination of
his employment for purposes of any pro rata calculations and determination of
post-termination periods under this agreement.
(b) "Cause" Defined. "Cause" shall mean (i) the willful engaging by
Executive in illegal conduct or gross misconduct which is demonstrably and
materially injurious to the Company, (ii) Executive's refusal to perform his
obligations to the Company hereunder (other than any such failure resulting from
illness or incapacity), which refusal is demonstrably and materially injurious
to the Company and is not halted and cured to the reasonable satisfaction of the
Company within 30 days after notice thereof by the Company to Executive, or
(iii) Executive's breach of his obligations under this Agreement, which breach
is demonstrably and materially injurious to the Company and is not halted and
cured to the reasonable satisfaction of the Company within 30 days after notice
thereof by the Company to Executive. For purposes of this Section 9(b), no act
or failure to act on Executive's part shall be deemed "willful" unless done, or
omitted to be done, by Executive not in good faith and without reasonable belief
that Executive's action of omission was in the best interest of the Company.
Notwithstanding the foregoing, with respect to the definitions of Cause set
forth in clauses (i), (ii) and (iii) above, Executive shall not be deemed to
have been terminated for Cause unless and until the Company delivers to
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the entire membership of the Board (not including
Executive if he shall then serve as a director) at a meeting of the Board called
and held for such purpose (after reasonable notice to Executive and an
opportunity for Executive, together with counsel, to be heard before the Board)
finding that, in the good faith opinion of the Board, Executive engaged in
conduct set forth above and specifying the particulars thereof in reasonable
detail.
(c) Termination by Executive for Good Reason. Executive's employment
pursuant to this Agreement may terminate prior to the expiration of the Term in
the event Executive has a "Good Reason" to terminate his employment, which shall
mean the following:
(i) Any material adverse change in Executive's status or position as
an officer of the Company, including, without limitation, any material
adverse change in Executive's status or position as a result of a
diminution in Executive's duties, responsibilities or authority as of the
Effective Date (or any status or position to which Executive may be
promoted after the Effective Date) or the assignment to Executive of any
duties or responsibilities which are inconsistent with Executive's status
or position, or any removal of Executive from or any failure to reappoint
or reelect Executive to such position; provided, however, that none of the
foregoing shall be deemed
E-9
to have occurred as long as Executive remains, in actual practice, the
Company's most senior finance and investor relations executive; or
(ii) The material breach by the Company of its obligations under
this Agreement; or
(iii) A reduction in Executive's annual Base Salary as the same may
be increased from time to time; or
(iv) The relocation of the Company's principal executive offices to
a location more than thirty-five (35) miles from the location of such
offices (other than a relocation that results in the location of the
offices in closer proximity to Executive's residence) or the Company
requiring Executive to be based anywhere other than the Company's
principal executive offices, except for required travel substantially
consistent with Executive's business obligations.
Prior to the Executive being permitted to terminate his employment for
Good Reason, the Company shall have sixty (60) days to cure any such alleged
breach, assignment, reduction or requirement, after Executive provides the
Company written notice of the actions or omissions constituting such breach,
assignment, reduction or requirement.
(d) "Change of Control" Defined. "Change of Control" means the following:
(i) "Board Change" which, for purposes of this Agreement, shall have
occurred if, over any twenty-four month period, a majority of the seats (other
than vacant seats) on the Company's Board were to be occupied by individuals who
were neither (A) nominated by at least one-half (1/2) of the directors then in
office (but excluding, for purposes of determining directors then in office, any
director whose initial assumption of office occurs as a result of either an
actual or threatened election contest, or other actual or threatened
solicitation of proxies by or on behalf of a Person other than the Company or
its Board of Directors) nor (B) appointed by directors so nominated, or
(ii) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
(the "Exchange Act"), (a "Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of a majority of the then
outstanding voting securities of the Company (the "Outstanding Company Voting
Securities"); provided, however, that the following acquisitions shall not
constitute a Change of Control: (A) any acquisition by the Company, or (B) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or (C)
any public offering by the Company of its voting securities; or
(iii) a consolidation of the Company with another entity, or a merger of
the Company with another entity in which neither the Company nor a corporation
that, prior to the merger, was a subsidiary of the Company shall be the
surviving entity; or
(iv) a merger of the Company following which either the Company or a
corporation that, prior to the merger, was a subsidiary of the Company, shall be
the surviving entity and a majority of the Outstanding Company Voting Securities
is owned by a Person or Persons who were not "beneficial owners," as defined in
Rule 13d-3 of the Exchange Act, of a majority of the Outstanding Company Voting
Securities immediately prior to such merger; or
(v) a voluntary or involuntary liquidation of the Company; or
(vi) a sale or disposition by the Company of at least 80% of its assets in
a single transaction or a series of transactions (other than a sale or
disposition of assets to a subsidiary of the Company in a transaction not
involving a Change of Control or a change in control of such subsidiary).
Transactions in
E-10
which the Executive is part of the acquiring group do not constitute a Change of
Control.
(e) "Disabled" Defined. As used in this Agreement, the term "disabled"
means any mental or physical condition that renders Executive unable to perform
the essential functions of his position, with or without reasonable
accommodation, for a period in excess of 180 days.
(f) Surrender of Records and Property. Upon termination of his employment
with the Company, Executive shall deliver promptly to the Company all records,
manuals, books, lists, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof that relate in
any way to the business, products, practices or techniques of the Company, and
all other property, trade secrets and confidential information of the Company,
including, but not limited to, all documents that in whole or in part contain
any trade secrets or confidential information of the Company, which in any of
these cases are in his possession or under his control.
10. Effect of Termination.
(a) Termination Without Cause or for Good Reason or Upon the Company's
Notice of Non-Renewal.
In the event the Company terminates Executive's employment as the
Company's Executive Vice President and Chief Financial Officer without Cause
pursuant to Section 9(a)(iv) hereof, Executive terminates his employment for
Good Reason pursuant to Section 9(c) hereof, or the Company provides a notice of
non-renewal of the Term under Section 2 hereof,
(i) Executive shall receive cash payments equal to his annual Base
Salary at the time of such termination and such payments shall be made in a lump
sum within 10 days after the date of termination; and
(ii) Executive shall receive a cash payment equal to the Target
Bonus (based on the Base Salary at the time of such termination) which would
have been payable for the fiscal year which commences immediately following the
date of termination and such payment shall be made in a lump sum within 10 days
after the date of termination; and
(iii) if Executive, and any spouse and/or dependents ("Family
Members") has medical and dental coverage on the date of such termination under
a group health plan sponsored by the Company, the Company will reimburse
Executive for the total applicable premium cost for medical and dental coverage
under the Consolidated Omnibus Budget Reconciliation Act of 1986, 29 U.S.C.
Sections 1161-1168; 26 U.S.C. Section 4980B(f), as amended, and all applicable
regulations (referred to collectively as "COBRA") for Executive and his Family
Members for a period of up to eighteen (18) months commencing on the date of
such termination and will continue to pay Executive an amount equal to such
COBRA reimbursement during the eighteen (18) month period following such initial
eighteen (18) month period after such termination; provided, that the Company
shall have no obligation to reimburse Executive for the premium cost of COBRA
coverage as of the date Executive and his Family Members become eligible to
obtain comparable benefits from a subsequent employer; and
(iv) Executive shall receive cash payments equal to any unpaid Base
Salary through the date of termination and such payments shall be made in a lump
sum within 10 days after the date of termination; and
(v) Executive shall receive a cash payment equal to a pro rata
amount of the Target Bonus (based on the Base Salary at the time of such
termination) for the fiscal year during which termination occurs, which shall be
paid in a lump sum within 10 days after the date of termination; and
E-11
(vi) all options to acquire shares in the Company held by the
Executive which have not vested at the time of such termination of employment,
will terminate as of the date of such termination of employment and will be of
no further force or effect; provided however that a pro rated portion (based on
that portion of the year between the prior vesting date or the award date and
the next vesting date during which the Executive is employed by the Company) of
those options scheduled to vest on the next vesting date shall vest; and all of
the options which are exercisable at the date of termination of employment shall
remain exercisable after such termination in accordance with the terms of the
relevant plans and granting instruments (to the extent any provision of this
agreement conflicts with any provision of any stock option plan or agreement
between the Company and Exective, the provision hereof shall take precedence);
and
(vii) Executive shall continue to be entitled to any deferred compensation
and other unpaid amounts and benefits earned and vested prior to Executive's
termination; and
(viii) in the event Executive is terminated under this Section 10(a)
within six months after the first date of employment by the Company of a new CEO
and prior to December 31, 2005, then the option granted to executive under
Section 4(e) and all shares of restricted stock awarded to Executive under
Section 4(f) shall fully vest upon the date of his termination.
(b) Termination for Cause. In the event the Company terminates Executive's
employment as the Company's Executive Vice President and Chief Financial Officer
for Cause pursuant to Section 9(a)(iii) hereof, (i) Executive shall be entitled
to receive payment of his Base Salary through the date of termination, (ii)
Executive shall continue to be entitled to any deferred compensation and other
unpaid amounts and benefits earned and vested prior to Executive's termination,
(iii) all options to acquire shares in the Company held by the Executive which
have vested prior to the date of Executive's termination of employment shall
remain exercisable after such termination in accordance with the terms of the
relevant plans and granting instruments, (iv) all options granted to Executive
that have not vested prior to the date of Executive's termination of employment
will terminate as of the date of such termination and will be of no further
force and effect; and (v) all shares of restricted stock awarded to Executive
that have not vested prior to the date of Executive's termination of employment
shall be forfeited.
(c) Death. In the event Executive's employment with the Company is
terminated as a result of Executive's death, (i) Executive's estate or
Executive's duly designated beneficiaries shall be entitled to payment of his
Base Salary through the date of Executive's death; (ii) Executive's estate or
Executive's duly designated beneficiaries shall be entitled to a pro rata amount
of the Target Bonus (based on the Base Salary at the time of death) for the
fiscal year in which he dies; (iii) all options to acquire shares in the Company
held by the Executive which have not vested at the time of Executive's death
will continue to vest in accordance with their terms and shall remain
exercisable (together with any options which had previously vested), until the
earlier of (A) one year from the date of death and (B) the end of the remaining
exercise term of such options; (iv) all shares of restricted stock awarded to
Executive shall fully vest; and (v) Executive's estate or Executive's duly
designated beneficiaries shall continue to be entitled to any deferred
compensation and other unpaid amounts and benefits earned and vested prior to
Executive's death. If Executive's Family Members have medical and dental
coverage on the date of such termination under a group health plan sponsored by
the Company, the Company will reimburse such Family Member for the total
applicable premium cost for medical and dental coverage under COBRA for such
Family Members for a period of up to twenty-four (24) months commencing on the
date of such termination; provided the Company shall have no obligation to
reimburse such Family Members for the premium cost of COBRA coverage as of the
date they become eligible to obtain comparable benefits from another employer.
(d) Disability. Upon termination of Executive's employment as the
Company's Executive Vice President and Chief Financial Officer on account of
Executive's disability pursuant to Section 9(a)(ii) hereof, (i) Executive shall
be entitled to payment of his Base Salary through the commencement of long term
disability payments to Executive under any plan provided or paid for by the
Company, (ii) Executive
E-12
shall be entitled to a pro rata amount of the Target Bonus (based on the Base
Salary at the time of such termination) for the fiscal year in which his
employment is terminated, (iii) Executive shall be entitled to all compensation
and benefits to which Executive is entitled pursuant to the Company's disability
policies in effect as of the date of Executive's termination, (iv) all options
to acquire shares of the Company held by the Executive which have not vested at
the date of termination of employment will continue to vest in accordance with
their terms, and shall remain exercisable (together with any options which had
previously vested), until the earlier of (A) one year from the date of such
termination of Executive's employment and (B) the end of the remaining exercise
term of such options, (v) all shares of restricted stock awarded to Executive
shall fully vest; and (vi) Executive shall continue to be entitled to any
deferred compensation and other unpaid amounts and benefits earned and vested
prior to Executive's termination. If Executive and his Family Members have
medical and dental coverage on the date of such termination under a group health
plan sponsored by the Company, the Company will reimburse Executive for the
total applicable premium cost for medical and dental coverage under COBRA for
Executive and his Family Members for a period of up to eighteen (18) months
commencing on the date of such termination; provided the Company shall have no
obligation to reimburse Executive and his Family Members for the premium cost of
COBRA coverage as of the date they become eligible to obtain comparable benefits
from another employer.
(e) Voluntary Resignation or upon Executive's Notice of Non-Renewal. In
the event Executive voluntarily terminates his employment with the Company, or
the Executive's employment terminates following Executive having provided the
Company with a notice of non-renewal of the Term under Section 2 hereof, (i)
Executive shall be entitled to receive payment of his Base Salary through the
date of termination, (ii) Executive shall continue to be entitled to any
deferred compensation and other unpaid amounts and benefits earned and vested
prior to Executive's termination, (iii) all options to acquire shares of the
Company held by the Executive which have vested prior to the date of such
termination shall remain exercisable after such termination in accordance with
the terms of the relevant plans and granting instruments, (iv) all options to
acquire shares of the Company held by the Executive which have not vested prior
to the date of such termination will terminate as of the date of such
termination and will be of no further force and effect, and (v) all shares of
restricted stock awarded to Executive that have not vested prior to the date of
Executive's termination of employment shall be forfeited.
(f) Termination without Cause or for Good Reason or Upon the Company's
Notice of Non-Renewal in Connection with a Change in Control. In the event the
Company terminates Executive's employment as the Company's Executive Vice
President and Chief Financial Officer without Cause pursuant to Section 9(a)(iv)
hereof or Executive terminates such employment for Good Reason pursuant to
Section 9(c) hereof, or the Company provides a notice of non-renewal of the Term
under Section 2 hereof, within the period which commences ninety (90) days
before and ends one (1) year following a Change in Control, in lieu of the
provisions of Section 10(a) or 10(e) above,
(i) Executive shall receive cash payments equal to any unpaid Base
Salary through the date of termination, plus an amount equal to the pro
rated portion of the Target Bonus (based on the Base Salary at the time of
such termination) which would have been payable to Executive for the
fiscal year during which such termination occurs, which payments shall be
made in a lump sum within 10 days after the date of termination; and
(ii) Executive shall receive, in a lump sum within 10 days after the
date of termination, cash payments equal to two (2) times the sum of the
following: (1) his Base Salary at the time of such termination and (2) the
Target Bonus (based on the Base Salary at the time of such termination)
for the fiscal year in which such termination occurs; and
(iii)if Executive and his Family Members have medical and dental
coverage on the date of such termination under a group health plan
sponsored by the Company, the Company will reimburse Executive for the
total applicable premium cost for medical and dental coverage under COBRA
for Executive and his Family Members for a period of up to eighteen (18)
months
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commencing on the date of such termination and will continue to pay
Executive an amount equal to such COBRA reimbursement during the eighteen
(18) month period following such initial eighteen (18) month period after
such termination; provided, that the Company shall have no obligation to
reimburse Executive for the premium cost of COBRA coverage as of the date
Executive and his Family Members become eligible to obtain comparable
benefits from a subsequent employer; and
(iv) all options to acquire shares of the Company held by the
Executive shall become fully vested immediately prior to the effective
date of the Change in Control. Executive shall have a reasonable
opportunity to exercise all or any portion of such options prior to the
effective date of the Change in Control, and any options not exercised
prior to the effective date of the Change in Control shall terminate as of
the effective date of the Change in Control and will be of no further
force or effect; and
(v) Executive shall continue to be entitled to any deferred
compensation and other unpaid amounts and benefits earned and vested prior
to Executive's termination; and
(vi) all shares of restricted stock awarded to the Executive shall
fully vest immediately prior to the Change in Control or, if later, upon
Executive's termination of employment; and
(vii) in addition to (but not as a condition of the Company's
obligations with respect to any of) the foregoing, at Executive's option,
exercisable within 30 days after the date of termination, the Company and
Executive shall enter into a consulting agreement in the form of Exhibit B
attached hereto.
In the event the Executive becomes entitled to payments under this Section
10(f), the Company shall cause its independent auditors promptly to review, at
the Company's expense, the applicability of Section 4999 of the Internal Revenue
Code (the "Code") to such payments. If such auditors shall determine that any
payment or distribution of any type by the Company to Executive, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (the "Total Payments"), would subject Executive to the excise tax
imposed by Section 4999 of the Code, or any interest or penalties with respect
to such excise tax (such excise tax, together with any such interest and
penalties, are collectively referred to as the "Excise Tax"), then Executive
shall be entitled to receive an additional cash payment (a "Gross Up Payment")
within 30 days of such determination equal to an amount such that after payment
by Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including any Excise Tax, imposed upon the Gross Up
Payment, Executive would retain an amount of the Gross Up Payment equal to the
Excise Tax imposed upon the Total Payments. For purposes of the foregoing
determination, Executive's tax rate shall be deemed to be the highest statutory
marginal state and Federal tax rate (on a combined basis) (including his share
of F.I.C.A. and Medicare taxes) then in effect. If no determination by the
Company's auditors is made prior to the time a tax return reflecting the Total
Payments is required to be filed by Executive, Executive will be entitled to
receive a Gross Up Payment calculated on the basis of the Total Payments
reported by Executive in such tax return, within 30 days of the filing of such
tax return. In all events, if any tax authority determines that a greater Excise
Tax should be imposed upon the Total Payments than is determined by the
Company's independent auditors or reflected in Executive's tax return pursuant
to this Section 10(g), the Executive shall be entitled to receive the full Gross
Up Payment calculated on the basis of the amount of Excise Tax determined to be
payable by such tax authority from the Company within 30 days of such
determination.
(g) If and when during the Term, the Company shall adopt (or amend) a
severance plan generally applicable to its executive officers (other than the
Chief Executive Officer), which provides for payments and benefits upon certain
events of termination of employment in connection with a change in control of
the Company at levels that are greater than those provided herein under Section
10(f) (or provide in connection with a change in control of the Company, for
lump sum or otherwise more accelerated payments than those provided for under
Section 10(f)), then promptly following adoption (or amendment)
E-14
of such a plan, the Company and Executive agree to negotiate in good faith an
amendment to the provisions of Sections 10(f) to provide Executive with
comparable payments and benefits upon certain events of termination in
connection with a change of control of the Company to those provided to other
senior executive officers covered by such plan with the same line of reporting
to the Chief Executive Officer as Executive. Notwithstanding the foregoing, it
is understood that the Company may enter into individual contractual
arrangements with other executives for benefits, and nothing herein shall
require the Company to provide the same benefits or level of benefits to
Employee.
(h) Notwithstanding anything else herein to the contrary, Executive shall
not be entitled to realize or receive any termination related benefits provided
for in this Section 10, including, without limitation, all post-termination
payments and the acceleration of option or restricted stock vesting schedules,
unless Executive shall have executed and delivered to the Company a full release
(reasonably satisfactory to the Company's counsel) of all claims against the
Company and its affiliates, successors and assigns, except claims arising under
this agreement (e.g., enforcement of vested options).
11. Miscellaneous.
(a) Entire Agreement. This Agreement (including the exhibits, schedules
and other documents referred to herein) contains the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes any prior understandings, agreements or representations, written or
oral, relating to the subject matter hereof.
(b) Counterparts. This Agreement may be executed in separate counterparts,
each of which will be an original and all of which taken together shall
constitute one and the same agreement, and any party hereto may execute this
Agreement by signing any such counterpart.
(c) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule, the validity,
legality and enforceability of the other provision of this Agreement will not be
affected or impaired thereby.
(d) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by subsection (e), successors and
assigns. The Company will require its successors to expressly assume its
obligations under this Agreement.
(e) Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable (including by operation of law) by either party without the prior
written consent of the other party to this Agreement, except that the Company
may, without the consent of the Executive, assign its rights and obligations
under this Agreement to any corporation, firm or other business entity with or
into which the Company may merge or consolidate, or to which the Company may
sell or transfer all or substantially all of its assets, or of which 50% or more
of the equity investment and of the voting control is owned, directly or
indirectly, by, or is under common ownership with, the Company. After any such
assignment by the Company, and provided that such assignment arises by operation
of law or involves an express written assumption by the assignee, the Company
shall be immediately released and discharged from all further liability
hereunder and such assignee shall thereafter be deemed to be the Company for the
purposes of all provisions of this Agreement.
(f) Modification, Amendment, Waiver or Termination. No provision of this
Agreement may be modified, amended, waived or terminated except by an instrument
in writing signed by the parties to this Agreement. No course of dealing between
the parties will modify, amend, waive or terminate any provision of this
Agreement or any rights or obligations of any party under or by reason of this
Agreement. No delay on the part of the Company in exercising any right hereunder
shall operate as a waiver of such
E-15
right. No waiver, express or implied, by the Company of any right or any breach
by Executive shall constitute a waiver of any other right or breach by
Executive.
(g) Notices. All notices, consents, requests, instructions, approvals or
other communications provided for herein shall be in writing and delivered by
personal delivery, overnight courier, mail, electronic facsimile or e-mail
addressed to the receiving party at the address set forth herein. All such
communications shall be effective when received.
Address for the Executive:
Kenneth J. Zuerblis
c/o Enzon Pharmaceuticals, Inc.
685 Route 202/206
Bridgewater, New Jersey 08807
Address for the Company:
Enzon Pharmaceuticals, Inc.
685 Route 202/206
Bridgewater, New Jersey 08807
Attn: Vice President, Human Resources
Any party may change the address set forth above by notice to each other party
given as provided herein.
(h) Headings. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
(i) Governing Law. ALL MATTERS RELATING TO THE INTERPRETATION,
CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW JERSEY, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW PROVISIONS THEREOF.
(j) Resolution of Certain Claims - Injunctive Relief. The Executive
acknowledges that it would be difficult to fully compensate the Company for
damages resulting from any breach by him of the provisions of this Agreement.
Accordingly, the Executive agrees that, in addition to, but not to the exclusion
of any other available remedy, the Company shall have the right to enforce the
provisions of Sections 5 through 8 and 9(f) by applying for and obtaining
temporary and permanent restraining orders or injunctions from a court of
competent jurisdiction without the necessity of filing a bond therefor, and
without the necessity of proving actual damages, and the Company shall be
entitled to recover from the Executive its reasonable attorneys' fees and costs
in enforcing the provisions of Sections 5 through 8 and 9(f).
(k) Arbitration. Except as otherwise specifically provided for hereunder,
any claim or controversy arising out of or relating to this Agreement or the
breach hereof shall be settled by arbitration in accordance with the laws of the
State of New Jersey. Such arbitration shall be conducted in the State of New
Jersey in accordance with the rules then existing of the American Arbitration
Association. Judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
(l) Third-Party Benefit. Nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights, remedies, obligations or
liabilities of any nature whatsoever.
(m) Withholding Taxes. The Company may withhold from any benefits payable
under this Agreement or any other agreement all federal, state, city or other
taxes as shall be required pursuant to any law or governmental regulation or
ruling. Executive hereby agrees to indemnify and hold harmless the Company
should the Company fail to withhold tax from any such payment from which tax is
required to be withheld.
E-16
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the Effective Date.
ENZON PHARMACEUTICALS, INC.
By:
Arthur J. Higgins
Chairman
Kenneth J. Zuerblis
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Exhibit A
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT, made as of this 14th day of June, 2004, by and
between Enzon Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and
Kenneth Zuerblis ("Executive").
WITNESSETH, THAT:
WHEREAS, The Company wishes to grant a restricted stock award to
Executive;
NOW, THEREFORE, In consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. Award
The Company, effective as of the date of this Agreement, hereby
grants to Executive a restricted stock award of 27,500 shares (the "Shares") of
common stock of the Company (the "Common Stock") subject to the terms and
conditions set forth herein and to the terms of the Employment Agreement between
the Company and Executive, dated as of MONTH DAY, 2004, (the "Employment
Agreement") which are specifically referenced herein. Capitalized terms used but
not defined herein shall have the meanings ascribed to such terms in the
Employment Agreement.
2. Vesting
Subject to the terms and conditions of this Agreement, the
Executive's Shares shall vest according to the following schedule:
Date Number of Shares that Vest on such Date
---- ---------------------------------------
June 14, 2007 7,500
June 14, 2008 7,500
June 14, 2009 12,500
3. Restriction on Transfer
Until any group of Shares vests pursuant to Sections 2 or 4 hereof,
none of such Shares may be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of or encumbered, and no attempt to transfer such Shares,
whether voluntary or involuntary, by operation of law or otherwise, shall vest
the transferee with any interest or right in or with respect to such Shares.
4. Early Vesting; Forfeiture
(a) In the event the Company terminates Executive's employment as
the Company's Chief Financial Officer without Cause pursuant to Section 9(a)(iv)
of the Employment Agreement or Executive terminates such employment for Good
Reason pursuant to Section 9(c) of the Employment Agreement, or the Company
provides a notice of non-renewal of the Term of the Employment Agreement under
Section 2 thereof, all of the Shares granted to Executive pursuant to Section 1
hereof shall vest immediately upon termination;
(b) In the event the Company terminates Executive's employment as
the Company's Chief Financial Officer for Cause pursuant to Section 9(a)(iii) of
the Employment Agreement, Executive will forfeit all unvested Shares granted to
Executive pursuant to Section 1 hereof.
E-18
(c) In the event Executive's employment as the Company's Chief
Financial Officer is terminated as a result of Executive's death, all unvested
Shares granted to Executive pursuant to Section 1 hereof shall vest immediately
upon Executive's death.
(d) Upon termination of Executive's employment as the Company's
Chief Financial Officer on account of Executive's disability pursuant to Section
9(a)(ii) of the Employment Agreement, all unvested Shares granted to Executive
pursuant to Section 1 hereof shall vest immediately upon such termination.
(e) In the event Executive voluntarily terminates his employment as
the Company's Chief Financial Officer, other than for Good Reason pursuant to
Section 9(c) of the Employment Agreement, Executive will forfeit all unvested
Shares granted to Executive pursuant to Section 1 hereof.
(f) Notwithstanding anything to the contrary in this Agreement or
the Employment Agreement, the Compensation Committee of the Board of Directors
of the Company (the "Committee") or the Board of Directors of the Company (the
"Board"), in its sole discretion, may waive any of the forfeiture requirements
in this Section 4 or may accelerate the vesting of all or a portion of the
Shares as the Committee or the Board so determines.
5. Issuance and Custody of Certificate
(a) The Company shall cause to be issued one or more stock
certificates, registered in the name of Executive, evidencing the Shares. Each
such certificate shall bear the following legends:
"The shares of common stock represented by this certificate are
subject to forfeiture, and the transferability of this certificate and the
shares of stock represented hereby are subject to the restrictions, terms and
conditions (including restrictions against transfer) contained in a Restricted
Stock Award Agreement entered into between Enzon Pharmaceuticals, Inc. (formerly
known as Enzon, Inc.) and the registered owner of such shares dated _________,
2004. A Copy of the Restricted Stock Award Agreement is on file in the office of
Enzon Pharmaceuticals, Inc."
(b) Contemporaneous with the execution hereof, Executive shall cause
stock powers relating to the Shares executed by Executive to be delivered to the
Company.
(c) Each certificate issued pursuant to Section 5(a) hereof,
together with the stock powers relating to the Shares, shall be deposited by the
Company with the Secretary of the Company or a custodian designated by the
Secretary. The Secretary or such custodian shall issue a receipt to Executive
evidencing the certificate or certificates held which are registered in the name
of Executive.
(d) After any Shares subject to this Agreement vest pursuant to
Sections 2 or 4(b) hereof, the Company shall promptly cause a certificate or
certificates evidencing such vested Shares without the legal legend called for
in Section 5(a) (together with the stock powers relating to the Shares) to be
released and delivered to Executive or Executive's legal representatives,
beneficiaries or heirs.
(e) Prior to issuance of the Shares, the Company shall have caused
such issuance to be registered under the Securities Act of 1933, as amended.
6. Distributions and Adjustments
(a) In the event of a merger, consolidation, reorganization,
recapitalization, stock dividend or other event, including a Change in Control
as defined in the Employment Agreement, the number and character of the Shares
shall be adjusted at the same time and to the same extent as other shares of
Common Stock are adjusted as a result of any such event. If all or any portion
of the
E-19
Shares vest in Executive subsequent to any such change in the number or
character of the shares of Common Stock, Executive shall then receive upon such
vesting the number and type of securities or other consideration which
Participant would have received if the Shares had vested prior to the event
changing the number or character of outstanding shares of Common Stock.
(b) Any additional shares of Common Stock, any other securities of
the Company and any other property (except for cash dividends) distributed with
respect to the Shares prior to the date the Shares vest shall be subject to the
same restrictions, terms and conditions as the Shares. Any cash dividends
payable with respect to the Shares shall be distributed to Executive at the same
time cash dividends are distributed to stockholders of the Company generally.
(c) Any additional shares of Common Stock, any securities and any
other property (except for cash dividends) distributed with respect to the
Shares prior to the date such Shares vest shall be promptly deposited with the
Secretary or the custodian designated by the Secretary to be held in custody in
accordance with Section 5(c) hereof for Executive's benefit and shall be
distributed to Executive as provided in Section 6(b) when the Shares vest.
7. Taxes
(a) The issuance of the Shares to Executive pursuant to this
Agreement involves complex and substantial tax considerations, including,
without limitation, consideration of the advisability of Executive making an
election under Section 83(b) of the Internal Revenue Code. The Executive is
urged to consult his own tax advisor with respect to the transactions described
in this Agreement. The Company makes no warranties or representations whatsoever
to the Executive regarding the tax consequences of the grant to the Executive of
the Shares or this Agreement. Executive acknowledges that the making of any
Section 83(b) election shall be his personal responsibility.
(b) In order to provide the Company with the opportunity to claim
the benefit of any income tax deduction which may be available to it in
connection with this restricted stock award, and in order to comply with all
applicable federal or state tax laws or regulations, the Company may take such
action as it deems appropriate to insure that, if necessary, all applicable
federal or state income and social security taxes, which are the sole and
absolute responsibility of Executive, are withheld or collected from Executive.
(c) Executive may elect to satisfy his federal and state income tax
withholding obligations arising from the receipt of, or the lapse of
restrictions relating to, the Shares by (i) delivering cash, check (bank check,
certified check or personal check) or money order payable to the order of the
Company, (ii) having the Company withhold a portion of the Shares otherwise to
be delivered having a fair market value based on the last reported sale price of
a share of Common Stock on the Nasdaq Stock Market (or if the Shares no longer
trade on the Nasdaq Stock Market, the closing or last reported price on the
principal exchange or system on which they trade) (the "Fair Market Value")
equal to the amount of such taxes, or (iii) delivering to the Company Common
Stock having a Fair Market Value equal to the amount of such taxes. The Company
will not deliver any fractional Share but will pay, in lieu thereof, the Fair
Market Value of such fractional Share. The Participant's election must be made
on or before the date that the amount of tax to be withheld is determined.
Otherwise, the Company shall be entitled to withhold taxes due in such manner as
the Company determines in its discretion.
8. Miscellaneous
(a) Executive shall be entitled at all times to all of the rights of
a stockholder with respect to the Shares, including without limitation the right
to vote and tender such Shares and to receive dividends and other distributions
as provided in and subject to the provisions of Section 6.
E-20
(b) Executive hereby acknowledges receipt of a copy of the
Employment Agreement. The Employment Agreement is also available for inspection
during business hours at the principal office of the Company.
(c) This Agreement shall not confer on Executive any right with
respect to continuance of employment by the Company.
(d) This Agreement shall inure to the benefit of, and be binding
upon, the Company, its successors and assigns, and upon Executive, his
administrator, executor, personal representative, successors and heirs.
(e) Except as provided in Section 4(f), no change to or modification
of this Agreement shall be valid unless it is in writing and signed by the
Company and Executive. .
IN WITNESS WHEREOF, The parties hereto have caused this Agreement to
be executed on the day and year first above written.
ENZON PHARMACEUTICALS, INC.
By:
------------------------
Arthur Higgins
Chairman
-----------------------
Kenneth Zuerblis
E-21
Exhibit B
CONSULTING AGREEMENT
Dated:_________________
THIS IS A CONSULTING AGREEMENT (this "Agreement") between:
ENZON PHARMACEUTICALS, INC. ("Enzon"), a Delaware corporation; and
KENNETH J. ZUERBLIS ("Consultant").
BACKGROUND
A. Consultant has expertise in finance and operations, has been associated
with Enzon as a senior executive for a substantial period of time and has
architected or otherwise been substantially involved in all of its material
developments for at least ten years.
B. Enzon desires to engage Consultant to provide expert consulting
services to assist Enzon with respect to the transition of a new management team
and ___________________________________________________________________________.
TERMS
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
1. Term. The initial term of this Agreement will commence on the
date hereof and expire one day before the first anniversary of the date hereof.
This Agreement may be earlier terminated by either party upon a material breach
hereof if the non-breaching party gives notice of the breach to the breaching
party and the breaching party fails to cure such breach to the reasonable
satisfaction of the non-breaching party within thirty (30) days after such
notice.
2. Consulting Services.
(a) During the term hereof, Consultant will provide to Enzon
the following consulting services within the competence and expertise of
Consultant or Consultant's staff:_______________________________________
(hereinafter, the "Consulting Services"). The Consulting Services will be
subject to the additional specifications, standards, goals or requirements (if
any) as are set forth in Part I of Schedule A attached hereto.
(b) Consultant shall provide the Consulting Services in
accordance with the amount and/or time parameters specified in Part II of
Schedule A attached hereto.
3. Compensation. As full remuneration for the Consulting Services,
Enzon will pay Consultant a consulting fee as specified in Part III of Schedule
A hereto. Payments will be made hereunder only for periods in which Consultant
actually performs the Consulting Services.
4. Performance Standard. Consultant represents and warrants that he
has expertise in the field or specialty specified in Paragraph B under
"Background" at the top of this Agreement as necessary and sufficient to provide
the consulting Services, and that such services as provided will conform to and
satisfy the specifications, standards and requirements set forth in Part I of
Schedule A attached hereto.
E-22
5. Conflicts. Consultant represents that no existing or prior
engagement by it for another party creates a present, or a material prospect for
a future, conflict of interest for Consultant that would interfere materially
with Consultant's performance of its/her/his undertakings hereunder.
6. Confidentiality; Proprietary Information; Intellectual Property.
(a) During the term of this Agreement and for five (5) years
after expiration or termination of this Agreement, Consultant shall use
Confidential Information solely for the purpose of performing the Services;
provided, however, Consultant shall have no liability to Company with respect to
use or disclosure of information to third parties to the extent that Consultant
can establish by written documentation that such information has been:
(i) part of the public domain prior to disclosure by
Company of such information to the Consultant;
(ii) part of the public domain, without fault on the
part of Consultant, subsequent to disclosure by Company of
such information to Consultant;
(iii) received by Consultant at any time from a source
other than Company lawfully having possession of and the right
to disclose such information;
(iv) otherwise known by Consultant prior to disclosure
by Company of such information to Consultant; or
(v) independently developed by or for Consultant without
use of, reliance upon or reference to Confidential Information
received hereunder.
(b) "Confidential Information" shall mean Company's technical,
business and financial information, including, where appropriate and without
limitation, any information, business and financial data, patent disclosures,
patent applications, trade secrets, structures, computer files, models,
techniques, processes, compositions, compounds and apparatus disclosed by
Company to Consultant.
(c) Notwithstanding the provisions of Section 6(a) & (b), this
Section 6 shall not prohibit Consultant from disclosing Confidential Information
pursuant to any order of any court or governmental agency, provided that
Consultant notifies the Company of such order as far in advance of such
disclosure as reasonably possible (and in any event, within 48 hours after
receiving such order) and cooperates reasonably with the Company's efforts to
obtain a protective order or relief from such court or agency.
(d) Consultant agrees that Consultant will not improperly use
or disclose any proprietary or confidential information or trade secrets of any
person or entity with whom Consultant has an agreement or duty to keep such
information or secrets confidential.
(e) Consultant recognizes that Company has received and in the
future will receive from third parties their confidential or proprietary
information subject to a duty on Company's part to maintain the confidentiality
of such information and to use it only for certain limited purposes. Consultant
agrees at all times during the term of this Agreement and thereafter, to hold in
strictest confidence, and not to use, except in connection with Consultant's
performance of the Services, and not to disclose to any person or entity, or to
use it except as necessary in performing the Services, consistent with Company's
agreement with such third party.
E-23
(f) Executive is hereby prohibited from ever using any of the
Company's proprietary information or trade secrets to conduct any business,
except for the Company's business while Executive is employed by the Company.
(g) Company shall own all right, title and interest in and to
any intellectual property produced by Consultant in the performance of the
Consulting Services or which result, to any extent, from use of Company's
premises or property. Upon request and at the expense of Company, Consultant
shall execute and deliver any and all instruments and documents and take such
other actions as may be necessary or desirable to assign and transfer such
intellectual property to Company.
(h) This Section 6 shall not be construed as limiting or
replacing any other obligations Consultant has to the Company respecting
confidentiality, proprietary information and/or intellectual property. To the
extent any such other obligations are more restrictive on Consultant than those
contained in this Section 6, such other obligations shall take precedence.
7. Covenant Not to Compete. In consideration for the compensation
payable to Executive pursuant to this Agreement, during the term hereof,
Consultant will not directly, or indirectly, whether as an officer, director,
stockholder, partner, proprietor, associate, employee, consultant,
representative or otherwise, become, or be interested in or associated with any
other person, corporation, firm, partnership or entity, engaged to a significant
degree in (x) developing, manufacturing, marketing or selling enzymes,
protein-based biopharmaceuticals or other pharmaceuticals that are modified
using polyethylene glycol ("PEG"), (y) developing, manufacturing, marketing or
selling single-chain antigen-binding proteins or (z) any activity which is in
competition with or resembles any proprietary technology, process, product or
area of business in which the Company is engaged or with Consultant's
participation has been actively planning to be engaged from time to time during
the term of this Agreement. For purposes of the preceding sentence, to determine
whether any entity is engaged in such activities to a "significant degree",
comparison will be made to the Company's operations at that time. In other
words, an entity will be deemed to be engaged in an activity to a significant
degree if the number of employees and/or amount of funds devoted by such entity
to such activity would be material to the Company's operations at that time.
8. Relationship of the Parties.
(a) The relationship of Consultant to Enzon hereunder is that
of independent contractor. Nothing herein shall be deemed to appoint Consultant
as the agent of Enzon for any purpose or create any partnership, association or
joint venture between the parties.
(b) Consultant is retained by Enzon solely for the purposes
set forth herein. Neither party shall have the power to act as the other party's
agent or bind the other party with respect to third parties, nor shall either
party or any of its employees or agents make any representation to the contrary.
(c) Neither Consultant nor any of Consultant's employees,
representatives or agents (if any) shall be construed for any purpose to be an
employee subject to the control and direction of Enzon. Consultant acknowledges
and agrees that it/she/he will be solely responsible for paying all salaries,
wages, benefits and other compensation that Consultant's employees,
representative or agents may be entitled to receive in connection with
performing the Consulting Services.
(d) The compensation to be paid to Consultant under this
Agreement includes, and Consultant shall be liable for, all taxes, excises,
assessments and other charges levied by any government agency on, or because of,
the Consulting Services performed hereunder and any materials, equipment,
services or supplies furnished or used in the performance of the Consulting
Services.
E-24
(e) Consultant shall maintain workers' compensation/employer's
liability insurance, disability insurance, errors and omissions insurance and
comprehensive general liability insurance to the extent, and in amounts which
are, customary in the industry in which Consultant is engaged.
9. Indemnification.
(a) Consultant shall indemnify and defend Enzon against, and
hold it harmless from, any and all claims, liabilities, demands, causes of
action, damages, losses and expenses, including, without limitation, reasonable
attorneys' fees and costs of suit, arising out of or in connection with:
(i) any actual or alleged negligent or reckless act or
omission of Consultant or any of Consultant's employees,
representatives or agents;
(ii) any actual or alleged violation by Consultant or
any of its employees, representatives or agents of any law or
regulation; and
(iii) any determination or allegation that Consultant or
any of Consultant's employees, representatives or agents is an
employee of Enzon.
(b) Enzon shall indemnify and defend Consultant against, and
hold it harmless from, any and all claims, liabilities, demands, causes of
action, damages, losses and expenses, including without limitation, reasonable
attorneys' fees and costs of suit, arising out of or in connection with:
(i) any actual or alleged negligent or reckless act or
omission of Enzon or any of its employees; and
(ii) any actual or alleged violation by Enzon or any of
its employees of any law or regulation.
10. Assignment.
(a) No party may assign or delegate any of its rights or
obligations hereunder without the prior written consent of the other party,
except as otherwise provided in this Agreement.
(b) Enzon may assign this Agreement and any or all of its
rights and obligations hereunder to any person or entity controlled by Enzon or
which shall succeed (by merger, joint venture or the purchase or lease of assets
or otherwise) to the business of Enzon; provided that any such assignee shall
have expressly assumed in a writing delivered to Consultant the obligations of
Enzon hereunder. To the extent provided in such assignment, any such assignee
shall succeed to all the rights and benefits of Enzon hereunder as if such
assignee had been named initially a party hereto in the place of Enzon.
(c) No assignment or delegation by Consultant of this
Agreement and any or all of its rights or obligations hereunder shall release it
from its obligations under Section 6 hereof.
11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given upon receipt if (i)
mailed certified mail, return receipt requested, with postage prepaid, (ii) sent
by a reputable overnight courier service or (iii) hand delivered to
E-25
a party at the address specified therefore at the top of this Agreement or to
such other address as such party may hereafter specify by notice in accordance
with this Section 10.
12. Parties in Interest. This Agreement shall be binding upon and
inure to the benefit only of the parties hereto and their respective successors
and permitted assigns, and there are no so-called third party beneficiaries
hereof, whether express or implied.
13. Amendment and Modification. No amendment or modification of or
supplement to this Agreement will be effective unless it is in writing and duly
executed by the parties hereto.
14. Entire Agreement. Except as otherwise set forth herein, this
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes any prior agreements or
understandings between them relating thereto.
15. Headings and Titles. The headings and titles of sections,
paragraphs and the like in this Agreement are inserted for convenience of
reference only, form no part of this Agreement and shall not be considered for
the purpose of interpreting or construing the provisions hereof.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey without giving effect to
the conflicts of laws rules thereof.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first above written.
____________________________________ ENZON PHARMACEUTICALS, INC.
Kenneth J. Zuerblis
By:_________________________
E-26
SCHEDULE A
to
Consulting Agreement
between
Enzon Pharmaceuticals, Inc.
and
Kenneth J. Zuerblis
Part I: Additional specifications, standards, goals, requirements, etc.
applicable to the Consulting Services:
Part II: Time Parameters: [Specify the time Consultant (or its staff) will be
required to devote and any other details relevant to volume and
frequency of services.]
Minimum of 40 hours per month.
Part III: Consulting Fee:
On an annualized basis, Consultant's cash compensation shall be
equal to his base salary effective during the last year of his
employment with Enzon plus 100% of his target bonus based on such
base salary. This compensation will be paid on a monthly basis in
arrears against invoices submitted by Consultant.
E-27
Exhibit 10.31
Enzon Pharmaceuticals, Inc.
Executive Deferred Compensation Plan
1. Statement of Purpose
The purpose of the Enzon Pharmaceuticals, Inc. Executive Deferred
Compensation Plan (the "Plan") is to aid Enzon Pharmaceuticals, Inc. (the
"Company") and its subsidiaries in attracting and retaining key employees
by providing a non-qualified compensation deferral vehicle.
2. Definitions
2.01 Annual Incentive Compensation - "Annual Incentive Compensation"
means the amount paid annually to the Participant under the Enzon
Pharmaceuticals Management Incentive Plan before reductions for
deferrals under this Plan or the Enzon Inc. Savings and Investment
Plan.
2.02 Average Treasury Rate - "Average Treasury Rate" means the interest
crediting rate used to determine the amount of interest credited to
a Participant's Deferred Compensation Account under Section 6.02 and
6.03. The rate for a Calendar Quarter shall be determined by
averaging the Monthly Rates for 10-year Treasury bonds during the
Calendar Quarter. The Monthly Rate for each month shall be the yield
on 10-year Treasury bonds as calculated by Bloomberg Business News
on the first business day of each month. If it becomes necessary to
determine the value of that portion of a Participant's Deferred
Compensation Account during a Calendar Quarter, but before the
Average Treasury Rate for the Calendar Quarter can be determined,
the Average Treasury Rate for the portion of the Calendar Quarter
for the Participant's Deferred Compensation Account shall equal the
average of the available Monthly Rates for the Calendar Quarter up
to the Distribution Date.
2.03 Base Salary - "Base Salary" means the Participant's annual basic
rate of pay from the Company excluding Annual Incentive Compensation
and other non-regular forms of compensation before reductions for
deferrals under this Plan or the Enzon Pharmaceuticals, Inc. Savings
and Investment Plan.
December 2003
E-28
2.04 Beneficiary - "Beneficiary" means the person or persons designated
as such in accordance with Section 8.
2.05 Board of Directors - "Board of Directors" means the Board of
Directors of the Company.
2.06 Calendar Quarter - "Calendar Quarter" means any of the four calendar
quarters in a full calendar year (e.g. January, February & March
comprise the first calendar quarter).
2.07 Committee - "Committee" means the Vice President, Human Resources,
Chief Financial Officer and Chief Executive Officer.
2.08 Cycle - "Cycle" means the twelve-month pay-in period for each
deferral. The first Cycle shall begin on January 1, 2004 and end on
December 31, 2004. The following Cycles shall begin on January 1 of
each year and end on December 31 each year.
2.09 Deferral Amount - "Deferral Amount" means the total amount of
Elective Deferred Compensation and/or Non-Elective Deferred
Compensation actually deferred by the Participant.
2.10 Deferred Compensation Account - "Deferred Compensation Account"
means the account maintained on the books of account of the Company
for a Participant pursuant to Section 6.
2.11 Disability - "Disability" means the Participant is eligible to
receive benefits under a long term disability plan maintained by the
Company.
2.12 Distribution Date - "Distribution Date" means the date on which the
Company makes distributions from the Participant's Deferred
Compensation Account(s).
2.13 Effective Date - "Effective Date" means the date on which this Plan
is effective, November 1, 2003.
2.14 Election Form - "Election Form" means the form or forms attached to
this Plan and filed with the Company by the Participant in order to
participate in the Plan. The terms and conditions specified in the
Election Form(s) are incorporated by reference herein and form a
part of the Plan.
December 2003
E-29
2.15 Elective Deferred Compensation - "Elective Deferred Compensation"
means the total amount elected to be deferred by an Eligible
Employee on his/her Election Form.
2.16 Eligible Employee - "Eligible Employee" means any employee of the
Company who is a Vice-President or higher, or such other key
executives of the Company as may be designated by the Committee.
2.17 Non-Elective Deferred Compensation - "Non-Elective Deferred
Compensation" means the amount awarded to a Participant by the Board
of Directors of the Company pursuant to Section 4.
2.18 Participant - "Participant" means an Eligible Employee participating
in the Plan in accordance with the provisions of Section 4.
2.19 Plan Year - "Plan Year" means the twelve month period beginning on
the first day of the first Cycle in which the Eligible Employee
elects to participate in the Plan. The initial Plan Year will
commence on the January 1, 2004 and end on December 31, 2004. Each
later Plan year will begin on January 1 and end on December 31.
2.20 Related Employment - "Related Employment" means the employment of a
Participant by an employer that is not the Company, provided (i)
such employment is undertaken by the Participant at the request of
the Company; (ii) immediately prior to undertaking such employment,
the Participant was an employee of the Company, or was engaged in
Related Employment as herein defined; and (iii) such employment is
recognized by the Committee, in its sole discretion, as Related
Employment.
2.21 Substantially Equal Installments - "Substantially Equal
Installments" means a series of annual payments, such that equal
payments over the remaining payment period would exactly amortize
the Participant's Deferred Compensation Account balance as of the
Distribution Date if the investment return remained constant at the
return credited as of the Valuation Date immediately preceding the
Distribution Date for the remainder of the payment period.
December 2003
E-30
2.22 Termination of Employment - "Termination of Employment" means the
end of a Participant's employment with the Company for any reason
other than Disability, Related Employment, or the termination of a
Participant's Related Employment if the Participant returns to the
Company.
2.23 Valuation Date - "Valuation Date" means the date on which the value
of a Participant's Deferred Compensation Account is determined for
each Calendar Quarter as provided in Section 6 hereof. Unless and
until changed by the Committee, the Valuation Dates within each
Cycle shall be the last day of each of the four Calendar Quarters of
the calendar year.
2.24 Years of Service - "Years of Service" means the cumulative years of
continuous full-time employment with the Company beginning on the
date the Participant first began service and each anniversary
thereof.
3. Administration of the Plan
3.01 Plan Administration. The Committee shall be the sole administrator
of the Plan, and will administer the Plan. The Committee shall have
the power to formulate additional details and regulations for
carrying out this Plan. The Committee also shall be empowered to
make any and all determinations not authorized specifically herein
that may be necessary or desirable for the effective administration
of the Plan. Any decision or interpretation of any provision of this
Plan adopted by the Committee shall be final and conclusive.
3.02 Delegation of Duties. The Committee may delegate any or all of its
duties as to the administration of this Plan to other individuals or
groups of individuals within the Company, as it deems appropriate.
4. Participation
4.01 Elective Participation.
a. Any Eligible Employee may elect to participate in the Plan for
a given Cycle by filing a completed Election Form for the
Cycle with the Company. With regard to an election to
participate:
December 2003
E-31
i. The Election Form must be filed with the Company prior
to the commencement of the Cycle to which the Election
Form pertains, or at such earlier time as determined by
the Company.
ii. The minimum deferral for a Cycle shall be $5,000.
iii. The maximum deferral shall be fifty percent (50%) of the
Participant's Base Salary (as defined in Section 2.03)
and one hundred percent (100%) of Participant's Annual
Incentive Compensation (as defined in Section 2.01).
Provided, however, that no election will be effective to
reduce amounts paid by the Company to an Eligible
Employee to an amount which is less than the sum of the
amount the Company is required to withhold for a Cycle
for purposes of federal, state, and local income taxes,
including FICA tax withholding and the amount the
Company is required to withhold for contributions to any
employee benefit plan (other than this Plan).
iv. A Participant may elect to receive payment of amounts
deferred during a Cycle upon Termination of Employment,
or in a specified year which shall be no earlier than in
the third cycle following the Cycle in which such
amounts are deferred. Further, a Participant may elect
to receive payment in a lump-sum or in up to fifteen
(15) annual installments.
b. A Participant's election to defer future Compensation is
irrevocable upon the filing of his/her Election Form with the
Company, provided, however, that the election may be
terminated with respect to Compensation not yet earned by
mutual agreement in writing between the Participant and the
Company.
4.02 Non-Elective Participation. The Committee can, in its sole discretion,
award to an Eligible Employee Non-Elective Deferred Compensation. Unless
otherwise specified by the Committee, the Participant shall determine,
subject to Section 4.01a(iv), the timing and form of payment of any
Non-Elective Deferred Compensation at the time it is awarded.
December 2003
E-32
5. Vesting of Deferred Compensation Account
A Participant's interest in his/her Deferred Compensation Account shall
vest immediately.
6. Accounts and Valuations
6.01 Deferred Compensation Accounts. The Committee shall establish and
maintain a separate Deferred Compensation Account for each
Participant for each Cycle. Deferred amounts will be credited to a
Participant's account on the first day of the month following the
time at which the amount would otherwise have been paid. Any
Non-Elective Deferred Compensation awarded to a Participant shall be
credited to the Participant's Deferred Compensation Account on such
date as specified by the Committee.
6.02 Interest Rate Credited. The Participant's Deferred Compensation
Account shall be credited with interest quarterly at a rate equal to
the Average Treasury Rate plus three percentage points (3%). The
Committee shall review the interest rate on an annual basis and may
increase or decrease the interest rate credited on a prospective
basis. Any such change in the interest rate credited shall be made
60 days before the end of the Plan Year preceding the year in which
the interest crediting rate changes. Written notice of any such
change in interest rate shall be given to each Participant in the
Plan.
6.03 Timing of Crediting of Interest. The Participant's Deferred
Compensation Account shall be revalued and credited with interest as
of each Valuation Date. As of each Valuation Date, the value of the
Participant's Deferred Compensation Account shall consist of the
balance as of the immediately preceding Valuation Date, plus the
amount of any Elective and Non-Elective Deferred Compensation
credited since the preceding Valuation Date, minus the amount of all
distributions, if any, made from such Deferred Compensation Account
since the preceding Valuation Date. As of each Valuation Date,
interest shall be credited on the value of the Participant's
Deferred Compensation Account as of such date.
6.04 Excess 401(K) Matching Credit. At the end of each Plan Year, a
Participant's Deferred Compensation Account will be credited with an
Excess 401(K) Matching Credit as follows:
December 2003
E-33
a. Matchable Annual Deferral. The Matchable Annual Deferral shall
be that portion of a Participant's Deferral Amount for each
Cycle which is less than or equal to: (i) six percent (6%) of
the total Base Salary plus Annual Incentive Compensation for a
Cycle minus (ii) the amount of Elective Contribution to the
Enzon Pharmaceuticals, Inc. 401(K) Savings and Investment Plan
made by the Participant for which the Participant received an
Employer Matching Contribution under the Enzon
Pharmaceuticals, Inc. 401(K) Savings and Investment Plan for
the same Cycle. However, if the Participant does not make the
maximum allowable deferral to the Enzon Pharmaceuticals, Inc.
401(K) Savings and Investment Plan for any Cycle, the
Matchable Annual Deferral for such Cycle shall be zero.
b. Excess 401(K) Matching Credit. The Excess 401(K) Matching
Credit shall be 50% of the value of the Matchable Annual
Deferral for the Cycle.
c. Vesting. The Participant's right to receive the Excess 401(K)
Matching Credits credited to the Participant's Deferred
Compensation Account in the event of Termination of Employment
prior to reaching age 55 shall vest in accordance with the
following schedule:
Completed Years of Service Vested Percentage
-------------------------- -----------------
0-1 0%
1-2 20%
2-3 40%
3-4 60%
4-5 80%
5+ 100%
6.05 Distributions. For the purpose of crediting interest pursuant to
Sections 6.02 and 6.03, any distributions made during a Calendar
Quarter shall be deemed to have been made on the first day of such
quarter.
6.06 Nature of Account Entries. The establishment and maintenance of
Participants' Deferred Compensation Accounts and the crediting of
gains and losses pursuant to this Section 6 shall be merely
bookkeeping entries and shall
December 2003
E-34
not be construed as giving any person any interest in any specific
assets of the Company or of any subsidiary of the Company or any
trust created by the Company, including any investments owned by the
Company or any such subsidiary or trust. The hypothetical investment
of the Participant's Deferred Compensation Accounts shall be for
bookkeeping purposes only, and shall not require the establishment
of actual corresponding funds or investments by the Committee or the
Company. Benefits accrued under this Plan shall constitute an
unsecured general obligation of the Company.
7. Benefits
7.01 Normal Benefit
a. A Participant's Deferred Compensation Account shall be paid to
the Participant in accordance with the terms of the
Participant's Election Form, subject to the terms and
conditions specified in the Election Form. If a Participant
elects to receive payment of his/her Deferred Compensation
Account in installments, subject to a maximum of fifteen (15)
installments, payments shall be made in Substantially Equal
Installments. Unless the Committee determines otherwise, and
subject to the provisions of Section 7.04 as to when payments
shall commence, installments shall be paid on the 15th day of
February of each year.
b. Notwithstanding the provisions of Section 7.01a, and
notwithstanding any contrary election made by the Participant
on his/her Election Form, if a Participant has a Termination
of Employment, and if the Participant at the time of his/her
Termination of Employment, is less than 50 years of age and
has not completed three (3) Years of Service, the
Participant's Deferred Compensation Account balance will be
paid to the Participant in a lump-sum in the year following
the Participant's Termination of Employment. However, upon the
written request of the Participant, the Committee, in its sole
discretion, may allow payments to be made to the Participant
in up to fifteen (15) annual installments.
c. In the event of a Participant's death before a complete
distribution of his or her account, the Participant's
designated Beneficiary will receive an amount equal to the
Participant's Deferred Compensation Account, and
December 2003
E-35
such amount shall be paid in a single sum or annual
installments (not to exceed 10) in accordance with the
Participant's election. However, the Committee may, in its
sole discretion, pay the Participant's remaining account
balance in a single sum if so requested by the Participant's
Beneficiary.
7.02 Hardship Benefit. In the event that the Committee, upon written
petition of the Participant, determines in its sole discretion, that
the Participant has suffered an unforeseeable financial emergency,
the Company may pay to the Participant, as soon as is practicable
following such determination, an amount necessary to meet the
emergency, not in excess of the Deferred Compensation Account
credited to the Participant. The Deferred Compensation Account of
the Participant thereafter shall be reduced to reflect the payment
of a Hardship Benefit.
7.03 Taxes; Withholding. To the extent required by law, the Company shall
withhold from payments made hereunder an amount equal to at least
the minimum taxes required to be withheld by the federal, or any
state or local, government.
7.04 Date of Payments. Except as otherwise provided in this Plan,
payments under this Plan shall begin on or before the 15th day of
February of the calendar year following receipt of notice by the
Committee of an event that entitles a Participant (or Beneficiary)
to payments under the Plan, or at such earlier date as may be
determined by the Committee.
8. Beneficiary Designation
At any time prior to complete distribution of the benefits due to a
Participant under the Plan, he/she shall have the right to designate,
change, and/or cancel, any person(s) or entity as his/her Beneficiary
(either primary or contingent) to whom payment under this Plan shall be
made in the event of his/her death. Each beneficiary designation shall
become effective only when filed in writing with the Company during the
Participant's lifetime on a form provided by the Company. The filing of a
new beneficiary designation form will cancel all previously filed
beneficiary designations. Further, any finalized divorce of a Participant
subsequent to the date of filing of a beneficiary designation form in
favor of Participant's spouse shall revoke such designation.
December 2003
E-36
Additionally, the spouse of a Participant domiciled in a community
property jurisdiction shall join in any designation of Beneficiary other
than the spouse.
If a Participant fails to designate a Beneficiary as provided above, or if
his/her beneficiary designation is revoked by divorce or otherwise without
execution of a new designation, or if all designated Beneficiaries
predecease the Participant, then the distribution of such benefits shall
be made to the Participant's estate. If a Beneficiary survives the
Participant but dies before receiving a complete distribution of benefits,
any remaining amount shall be paid to the estate of such Beneficiary in a
lump-sum.
9. Amendment and Termination of Plan
9.01 Amendment. The Committee may amend the Plan at any time in whole or
in part, provided, however, that, except as provided in Section 9.02
and Section 6.02, no amendment shall be effective to decrease the
benefits under the Plan payable to any Participant or Beneficiary
with respect to any Elective or Non-Elective Deferred Compensation
deferred prior to the date of the amendment. Written notice of any
amendments (other than amendments that are administrative in nature)
shall be given to each Participant in the Plan.
9.02 Termination of Plan
a. Company's Right to Terminate. The Committee may terminate the
Plan at any time.
b. Payments Upon Termination. Upon any termination of the Plan
under this section, Compensation shall cease to be deferred
prospectively, and, with respect to Compensation deferred
previously, the Company will pay to the Participant (or the
Participant's Beneficiary, if after the Participant's death),
in a lump-sum, the value of his/her Deferred Compensation
Account.
10. Miscellaneous
10.01 Unsecured General Creditor. Participants and their beneficiaries,
heirs, successors and assignees shall have no legal or equitable
rights, interests, or other claims in any property or assets of the
Company, nor shall they be beneficiaries of, or have any rights,
claims, or interests in any life insurance
December 2003
E-37
policies, annuity contracts, or the policies therefrom owned or that
may be acquired by the Company ("policies"). Such policies or other
assets of the Company shall not be held in any way as collateral
security for the fulfilling of the obligations of the Company under
this Plan. Any and all of the Company's assets and policies shall be
and will remain general, unpledged, unrestricted assets of the
Company. The Company's obligation under the Plan shall be that of an
unfunded and unsecured promise of the Company to pay money in the
future.
10.02 Grantor Trust. Although the Company is responsible for the payment
of all benefits under the Plan, the Company, in its sole discretion,
may contribute funds as it deems appropriate to a grantor trust for
the purpose of paying benefits under this Plan. Such trust may be
irrevocable, but assets of the trust shall be subject to the claims
of creditors of the Company. To the extent any benefits provided
under the Plan actually are paid from the trust, the Company shall
have no further obligation with respect thereto, but to the extent
not so paid, such benefits shall remain the obligation of, and shall
be paid by, the Company. Participants shall have the status of
unsecured creditors on any legal claim for benefits under the Plan,
and shall have no security interest in any such grantor trust.
10.03 Successors and Mergers, Consolidations or Change in Control. The
terms and conditions of this Plan shall inure to the benefit of the
Participants and shall bind the Company, its successors, assignees,
and personal representatives. If substantially all of the stock or
assets of the Company are acquired by another entity, or if the
Company is merged into, or consolidated with, another entity, then
the obligations created hereunder shall be obligations of the
acquirer or successor entity.
10.04 Non-Assignability. Neither a Participant, nor any other person,
shall have any right to commute, sell, assign, transfer, pledge,
anticipate, mortgage or otherwise encumber, transfer, hypothecate,
or convey in advance of the actual receipt, any amounts payable
hereunder, or any part thereof. All rights to payments expressly are
declared to be unassignable and nontransferable. No part of the
amounts payable, prior to actual payment, shall be subject to
seizure or sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant, or any other
person, nor shall they be
December 2003
E-38
transferable by operation of law in the event of a Participant's, or
any other person's, bankruptcy or insolvency.
10.05 Employment or Future Eligibility to Participate Not Guaranteed.
Nothing contained in this Plan, nor any action taken hereunder,
shall be construed as a contract of employment, or as giving any
Eligible Employee any right to be retained in the employ of the
Company. Designation as an Eligible Employee may be revoked at any
time by the Committee with respect to any Compensation not yet
deferred.
10.06 Protective Provisions. A Participant will cooperate with the Company
by furnishing any and all information reasonably requested by the
Company in order to facilitate the payment of benefits hereunder,
including, but not limited to, taking such physical examinations as
the Company reasonably may deem necessary (if the Company purchases
life insurance to informally fund the Plan) and taking such other
relevant action as may be reasonably requested by the Company. If a
Participant refuses to cooperate, the Company shall have no further
obligation to the Participant under the Plan, except for the
distribution to Participant of his or her Deferral Amount.
10.07 Gender, Singular and Plural. All pronouns, and any variations
thereof, shall be deemed to refer to the masculine, feminine, or
neuter, as the identity of the person(s) or entity(s) may require.
As the context may require, the singular may be read as the plural
and the plural as the singular.
10.08 Captions. The captions to the articles, sections, and paragraphs of
this Plan are for convenience only and shall not control or affect
the meaning or construction of any of its provisions.
10.09 Applicable Law. This Plan shall be governed and construed in
accordance with the laws of the State of New Jersey.
10.10 Validity. In the event any provision of this Plan is found to be
invalid, void, or unenforceable, the same shall not affect, in any
respect whatsoever, the validity of any other provision of this
Plan.
10.11 Notice. Any notice or filing required or permitted to be given to
the Company or the Committee shall be sufficient if in writing and
hand delivered, or sent by
December 2003
E-39
registered or certified mail, to the principal office of the Company
at 685 North Route 202/206, Bridgewater, NJ 08807, directed to the
attention of the Vice President, Human Resources. Such notice shall
be deemed given as of the date of delivery or, if delivery is made
by mail, as of the date shown on the postmark on the receipt for
registration or certification. Any notice to the Participant shall
be addressed to the Participant at the Participant's residence
address as maintained in the Company's records. Any party may change
the address for such party here set forth by giving notice of such
change to the other parties pursuant to this Section.
December 2003
E-40
EXHIBIT 12.1
ENZON PHARMACEUTICALS, INC. AND SUBSIDIARIES
Ratio of Earnings to Fixed Charges
(in thousands)
Years ended June 30,
--------------------------------------------------------
2004 2003 2002 2001 2000
-------- -------- -------- -------- --------
Income (loss) from continuing
operations before income taxes $ 4,469 $ 45,949 $ 36,683 $ 11,013 ($ 6,306)
Add:
Fixed Charges 20,275 20,244 20,109 557 352
Less:
Capitalized interest -- -- -- --
-------- -------- -------- -------- --------
Earnings, as adjusted $ 24,744 $ 66,193 $ 56,792 $ 11,570 $ (5,954)
======== ======== ======== ======== ========
Fixed charges:
Interest (gross) $ 19,829 $ 19,828 $ 19,829 $ 275 $ 4
Portion of rent representative of
the interest factor 446 416 280 282 348
-------- -------- -------- -------- --------
Fixed charges $ 20,275 $ 20,244 $ 20,109 $ 557 $ 352
-------- -------- -------- -------- --------
Deficiency of earnings available
to cover fixed charges N/A N/A N/A N/A $ (6,306)
======== ======== ======== ======== ========
Ratio of earnings to fixed charges 1:1 3:1 3:1 21:1 N/A
E-41
EXHIBIT 21.0
SUBSIDIARIES OF REGISTRANT
Symvex Inc. is a wholly-owned subsidiary of the Registrant incorporated in the
State of Delaware. Symvex Inc. did business under its own name.
SCA Ventures Inc., (formerly Enzon Labs Inc.) is a wholly-owned subsidiary of
the Registrant incorporated in the State of Delaware. SCA Ventures does business
under its own name.
Enzon GmbH is a wholly-owned subsidiary of the Registrant incorporated in
Germany.
ENZON Pharmaceuticals, Ltd is a wholly owned subsidiary of the Registrant
incorporated in Canada.
E-42
EXHIBIT 23.0
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Enzon Pharmaceuticals, Inc.:
We consent to the incorporation by reference in the Registration Statement Nos.
333-101898, 333-64110, and 333-18051 on Form S-8 and Registration Statement Nos.
333-01535, 333-32093, 333-46117, 333-58269,333-30818 and 333-67506 on Form S-3
of Enzon Pharmaceuticals, Inc. of our report dated August 17, 2004 with respect
to the consolidated balance sheets of Enzon Pharmaceuticals, Inc. and
subsidiaries as of June 30, 2004 and 2003 and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the three-year period ended June 30, 2004, and the related consolidated
financial statement schedule, which report appears in the June 30, 2004 annual
report on Form 10-K of Enzon Pharmaceuticals, Inc.
/s/ KPMG LLP
Short Hills, New Jersey
September 13, 2004
E-43
EXHIBIT 31.1
CERTIFICATION PURSUANT TO
SECTION 302 of
THE SARBANES-OXLEY ACT OF 2002
I, Kenneth J. Zuerblis, certify that:
1. I have reviewed this annual report on Form 10-K of Enzon
Pharmaceuticals, Inc. ("Enzon");
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in
this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the
registrant and have:
(a) Designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material
information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others
within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's
disclosure controls and procedures and presented in this
report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation;
and
(c) Disclosed in this report any change in the registrant's
internal control over financial reporting that occurred
during the registrant's most recent fiscal quarter (the
registrant's fourth fiscal quarter in the case of an
annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant's
internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed,
based on our most recent evaluation of internal control over
financial reporting, to the registrant's auditors and the audit
committee of the registrant's board of directors (or persons
performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in
the design or operation of internal control over
financial reporting which are reasonably likely to
adversely affect the registrant's ability to record,
process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves
management or other employees who have a significant
role in the registrant's internal control over financial
reporting.
September 13, 2004
/s/ Kenneth J. Zuerblis
----------------------------------------
Executive Vice President Finance,
(Principal Executive Officer)
Chief Financial Officer
(Principal Financial Officer) and
Corporate Secretary
E-44
EXHIBIT 31.2
CERTIFICATION PURSUANT TO
SECTION 302 of
THE SARBANES-OXLEY ACT OF 2002
I, Kenneth J. Zuerblis, certify that:
1. I have reviewed this annual report on Form 10-K of Enzon
Pharmaceuticals, Inc. ("Enzon");
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash
flows of the registrant as of, and for, the periods presented in
this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the
registrant and have:
(a) Designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material
information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others
within those entities, particularly during the period in
which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's
disclosure controls and procedures and presented in this
report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation;
and
(c) Disclosed in this report any change in the registrant's
internal control over financial reporting that occurred
during the registrant's most recent fiscal quarter (the
registrant's fourth fiscal quarter in the case of an
annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant's
internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed,
based on our most recent evaluation of internal control over
financial reporting, to the registrant's auditors and the audit
committee of the registrant's board of directors (or persons
performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in
the design or operation of internal control over
financial reporting which are reasonably likely to
adversely affect the registrant's ability to record,
process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves
management or other employees who have a significant
role in the registrant's internal control over financial
reporting.
September 13, 2004
/s/ Kenneth J. Zuerblis
-----------------------------------------
Executive Vice President Finance,
(Principal Executive Officer)
Chief Financial Officer
(Principal Financial Officer) and Corporate Secretary
E-45
EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. ss.1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Enzon Pharmaceuticals, Inc. (the
"Company") on Form 10-K for the fiscal year ended June 30, 2004 as filed with
the Securities and Exchange Commission on the date hereof (the "Report"), I, __
, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,
that:
1. The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations
of the Company.
/s/ Kenneth J. Zuerblis
-------------------------------------
Executive Vice President Finance,
(Principal Executive Officer)
Chief Financial Officer
(Principal Financial Officer) and
Corporate Secretary
Assigned original of this written statement required by Section 906 of the
Sarbanes-Oxley Act of 2002 has been provided to Enzon Pharmaceuticals, Inc. and
furnished to the Securities Exchange Commission or its staff upon request.
E-46
EXHIBIT 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. ss.1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Enzon Pharmaceuticals, Inc. (the
"Company") on Form 10-K for the fiscal year ended June 30, 2004 as filed with
the Securities and Exchange Commission on the date hereof (the "Report"), I,
Kenneth J. Zuerblis, Chief Financial Officer of the Company, certify, pursuant
to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that:
1. The Report fully complies with the requirements of Section 13(a) or
15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations
of the Company.
/s/ Kenneth J. Zuerblis
----------------------------------------
Executive Vice President Finance,
(Principal Executive Officer)
Chief Financial Officer
(Principal Financial Officer) and
Corporate Secretary
September 13, 2004
Assigned original of this written statement required by Section 906 of the
Sarbanes-Oxley Act of 2002 has been provided to Enzon Pharmaceuticals, Inc. and
furnished to the Securities Exchange Commission or its staff upon request.
E-47