Registration No. 333-__________
As filed with the Securities and Exchange Commission on December 20, 2004
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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ENZON PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-2372868
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
685 Route 202/206
Bridgewater, New Jersey 08807
(Address, including zip code,
of registrant's principal executive offices)
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Enzon Pharmaceuticals, Inc. 2001 Incentive Stock Plan
(Full title of the plan)
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Kenneth J. Zuerblis
Chief Financial Officer
Enzon Pharmaceuticals, Inc.
685 Route 202/206
Bridgewater, New Jersey 08807
(908) 541-8600
(Name, address and telephone number,
including area code, of agent for service of process)
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Copy to:
Kevin T. Collins, Esq.
Dorsey & Whitney LLP
250 Park Avenue
New York, NY 10177
(212) 415-9200
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of securities to be Amount to be offering price per aggregate offering registration
registered(1) registered share price fee
- --------------------------------------------------------------------------------------------------------
Common Stock, $0.01 4,000,000(2) $14.74(3) $58,960,000 $6,940
par value per share
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Total $6,940
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(1) One preferred stock purchase right will attach to and trade with each
share of common stock sold in the offering. These rights are also covered
by this registration statement and the value attributable to them, if any,
is reflected in the market price of the common stock.
(2) This Registration Statement covers the additional 4,000,000 shares of
common stock approved by the stockholders of Enzon Pharmaceuticals, Inc.
on December 2, 2003, that are issuable pursuant to Enzon Pharmaceuticals,
Inc.'s 2001 Incentive Stock Plan, plus an indeterminate number of
additional shares which may be offered and issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) and Rule 457(c) under the Securities Act of
1933, as amended, based upon the average of the high and low prices of the
registrant's Common Stock on the Nasdaq National Market on December 14,
2004.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by Enzon Pharmaceuticals, Inc. (the
"Company"), are incorporated by reference in this Registration Statement, as of
their respective dates:
(a) the Company's Annual Report on Form 10-K/A for the fiscal year ended
June 30, 2004;
(b) the Company's Quarterly Reports on Form 10-Q and Form 10-Q/A for the
quarter ended September 30, 2004 and the Company's Current Reports
on Form 8-K filed on August 3, 2004, August 13, 2004, August 17,
2004, September 16, 2004, September 22, 2004, September 29, 2004,
October 22, 2004, October 29, 2004, November 4, 2004, November 5,
2004, November 15, 2004, November 29, 2004, December 1, 2004,
December 2, 2004 and December 15, 2004;
(c) the description of the Company's Common Stock, par value $.01 per
share, as contained in a registration statement on Form 8-A filed on
October 29, 1984, as amended by Form 8-A/A filed on October 15,
1990, including any amendment or report filed for the purpose of
updating such description; and
(d) the description of the Company's Series B Preferred Stock Purchase
Rights as contained in a registration statement on Form 8-A filed on
May 22, 2002, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 subsequent to the date hereof
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold shall be deemed to be incorporated by reference herein and to
be a part hereof from the respective dates of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers
a corporation to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
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Section 145 also empowers a corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless, and only to the extent that, the Delaware Court of Chancery
or the court in which such action was brought shall determine that despite the
adjudication of liability such person is fairly and reasonably entitled to
indemnity, for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent of a corporation has been successful in the defense of any
action, suit or proceeding referred to above or in the defense of any claim,
issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith, that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation is empowered to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation against any liability asserted against him or her in
any such capacity or arising out of his or her status as such, whether or not
the corporation would have the power to indemnify him or her against such
liability under Section 145.
Section 102(b)(7) of the DGCL enables a corporation in its certificate of
incorporation to limit the personal liability of members of its board of
directors for violation of a director's fiduciary duty of care. Article 10 of
the Company's certificate of incorporation, as authorized by Section 102(b)(7),
provides that a director shall not be liable to the Company for breach of a
fiduciary duty, except for liability:
o for any breach of the director's duty of loyalty to the Company or
the Company's stockholders;
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o under section 174 of the DGCL providing for liability of directors
for unlawful payment of dividends or unlawful stock purchases or
redemptions;
o for any transaction from which a director derived an improper
benefit; or
o for any act or omission occurring prior to the date when Article 10
became effective.
Section 8.1 of the Company's bylaws provides for the indemnification, to
the fullest extent authorized by law, of any person made, or threatened to be
made, a party to an action or proceeding, whether criminal, civil,
administrative or investigative, against expenses, judgments, fines, and amounts
paid in settlement incurred in connection with such action or proceeding, by
reason of the fact that such person is or was a director or officer of the
Company. The Company's Directors' and Officers' Liability Insurance, which is
provided for under Section 8.3 of the Company's bylaws, insures directors and
officers against any liability arising out of such person's status as a director
or officer, and insures the Company against its obligations to indemnify its
directors and officers.
The Company's officers and directors have executed indemnity agreements
which supplement the protections provided by the Company's certificate of
incorporation and bylaws. These agreements require the Company to pay for any
damages, judgments, settlements, costs and expenses for the defense of legal
actions, claims, proceedings and appeals due to any actual or alleged breach of
duty, neglect, error, misstatement, misleading statement, omission or other act
done, suffered or wrongfully attempted by the officer or director. If the
Company does not pay such costs and expenses within 90 days after it receives a
written claim, such officers or directors may bring a suit against the Company
to recover the unpaid amount of the claim. If such officer or director is
successful, the Company will be required to pay for the expenses incurred
relating to the claim.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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4.1 Rights Agreement dated as of May 17, 2002 ("Rights Agreement")
between the Company and Continental Stock Transfer & Trust
Company, as Rights Agent (incorporated by reference to exhibit
4.2 to the Company's Form 8-A (File No. 000-12957) filed with
the Commission on May 22, 2002).
5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Independent Registered Public Accounting Firm
23.2 Consent of Dorsey & Whitney LLP (contained in Exhibit 5.1 to
this Registration Statement).
24.1 Power of Attorney (included on signature page).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the
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securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or other controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Piscataway, State of New Jersey, on December 20, 2004.
ENZON PHARMACEUTICALS, INC.
By /s/ Kenneth J. Zuerblis
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Name: Kenneth J. Zuerblis
Title: Executive Vice President, Finance
Chief Financial Officer
(Acting Principal Executive
Officer)
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Kenneth J. Zuerblis, his or her
true and lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that such attorney-in-fact and agent, or his or her
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 20, 2004.
/s/ Kenneth J. Zuerblis Executive Vice President, Finance,
- ------------------------------------ Chief Financial Officer and Corporate
Kenneth J. Zuerblis Secretary (principal executive
officer, principal financial
and accounting officer)
/s/ Jeffrey H. Buchalter
- ------------------------------------ Chairman of the Board
Jeffrey H. Buchalter
/s/ Goran Ando
- ------------------------------------ Director
Goran Ando, M.D.
/s/ Rolf A. Classon
- ------------------------------------ Director
Rolf A. Classon
/s/ Rosina B. Dixon
- ------------------------------------ Director
Rosina B. Dixon, M.D.
/s/ Robert LeBuhn
- ------------------------------------ Director
Robert LeBuhn
/s/ Victor P. Micati
- ------------------------------------ Director
Victor P. Micati
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EXHIBIT INDEX TO
FORM S-8
Enzon Pharmaceuticals, Inc.
Exhibit
Number Description
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5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Independent Registered Public Accounting Firm
EXHIBIT 5.1
[LETTERHEAD OF DORSEY & WHITNEY LLP]
December 20, 2004
Enzon Pharmaceuticals, Inc.
20 Kingsbridge Road
Piscataway, NJ 08854
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Enzon Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, on a registration statement on Form S-8 (the
"Registration Statement") of an aggregate of 4,000,000 shares of the Company's
common stock, $0.01 par value per share (the "Shares"), which are to be offered
and sold under the Company's 2001 Incentive Stock Plan (the "Plan"). This
opinion is being delivered at your request.
We have examined such documents and reviewed such questions of law as we
have considered necessary and appropriate for the purposes of our opinion. In
conducting such examination, we have assumed (i) that all signatures are
genuine, (ii) that all documents and instruments submitted to us as copies
conform with the originals and (iii) the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof. As to any facts material to this opinion, we have relied
upon statements and representations of officers and other representatives of the
Company and certificates of public officials and have not independently verified
such facts.
Members of our firm are admitted to the Bar of the State of New York, and
we do not express any opinion as to the laws of any jurisdiction other than the
Delaware General Corporation Law.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. The foregoing opinion is being furnished to you solely
for your benefit and may not be relied upon by, nor may copies be delivered to,
any other person without our prior written consent.
Very truly yours,
/s/ Dorsey & Whitney LLP
KTC
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Enzon Pharmaceuticals, Inc.:
We consent to the use of our report dated August 17, 2004, except as to note 2
of the notes to consolidated financial statements, which is as of November 10,
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 incorporated herein by reference.
Our report refers to the Company's restatement of its consolidated financial
statements for the year ended June 30, 2004, as discussed in note 2 of the notes
to consolidated financial statements.
/s/ KPMG LLP
Short Hills, New Jersey
December 16, 2004