As filed with the Securities and Exchange
Commission on March 16, 2006
Registration No. 333-__________
=============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
________________
Enzon Pharmaceuticals, Inc.
(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)
_______________________
Enzon Pharmaceuticals, Inc.
Executive Deferred Compensation Plan (2005 Restatement)
(Full title of the plan)
_______________________
Jeffrey H. Buchalter
Chief Executive Officer
Enzon Pharmaceuticals, Inc.
685 Route 202/206
Bridgewater, New Jersey 08807
(Name and address of agent for service)
(908) 541-8600
(Telephone number, including area code, of agent for service)
_______________________
Copies to:
Lawrence R. Miller, Esq. Kevin T. Collins, Esq.
Vice President and General Counsel Heller Ehrman LLP
Enzon Pharmaceuticals, Inc. Times Square Tower
685 Route 202/206 7 Times Square
Bridgewater, New Jersey 08807 New York, New York 10036
Telephone (908) 541-8600 Telephone (212) 832-8300
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CALCULATION OF REGISTRATION FEE
Title of each class of securities Amount of
- -------------------------------------- Amount to be Proposed maximum Proposed maximum registration
to be registered registered offering price per share aggregate offering price fee
- --------------------------------------- -------------------- -------------------------- --------------------------- ----------------
Deferred Compensation
Obligations(1)..................... $10,000,000 100% (2) $10,000,000(2) $1,070.00
______________________
(1) The deferred compensation obligations being registered are general
unsecured obligations of Enzon Pharmaceuticals, Inc. (the "Company") to pay
deferred compensation in the future in accordance with the terms of the
Enzon Pharmaceuticals, Inc. Executive Deferred Compensation Plan (2005
Restatement) (the "Plan"). In addition, pursuant to Rule 416(c) under the
Securities Act, this registration statement also covers an indeterminate
amount of interests to be offered to be sold pursuant to the Plan.
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act") solely for the purpose of calculating the
registration fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this registration statement in accordance with Rule 428 under
the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
(a) The registrant's Transition Report on Form 10-K for the transition
period ended December 31, 2005, filed with the Commission on March 3, 2006,
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(b All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal period covered by the Transition Report
referred to in (a) above.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
part hereof from the date of filing such documents.
Item 4. Description of Securities.
The Plan provides a select group of management or highly compensated
employees of the Company with the opportunity to defer the receipt of certain
cash compensation. Effective January 1, 2005, the Plan was amended and restated
to comply with the deferred compensation provisions in the American Jobs
Creation Act of 2004, and the restated Plan applies to all deferrals that relate
entirely to services performed on or before December 31, 2004 (i.e., with
respect to compensation that was earned and vested as of December 31, 2004) and
deferrals that relate all or in part to services performed on or after January
1, 2005.
The obligations of the Company under the Plan (the "Deferred Compensation
Obligations") shall be that of an unfunded and unsecured promise of the Company
to pay money in the future to participating eligible employees (the
"Participants") in accordance with the terms of the Plan from the general assets
of the Company, and will rank pari passu with other unsecured and unsubordinated
indebtedness of the Company from time to time outstanding.
Each Participant may elect to defer under the Plan all or a portion of his
or her base salary and/or annual incentive compensation that may otherwise be
payable in a calendar year. In addition, the committee administering the Plan
may, in its sole discretion, award non-elective deferred compensation to a
Participant. Any credit of non-elective deferred compensation will vest in
accordance with the schedule determined by the committee and shall be
distributed in a manner consistent with the election last made by the particular
Participant.
A Participant's compensation deferrals are credited to the Participant's
bookkeeping account ("Account") maintained under the Plan. A Participant shall
allocate his or her Account among the deemed investment options available under
the Plan from time to time. Amounts credited to Participants' Accounts for each
year are adjusted for earnings or losses based on the investment options elected
by the Participant. The Company is not obligated to actually invest any deferred
amounts in those investment options. Each Participant's Account is credited on a
daily basis with a deemed rate of interest and/or earnings or losses depending
upon the investment performance of the deemed investment option.
1
The Participant may generally elect the time and manner of payment of the
Deferred Compensation Obligations. At the election of the Participant, payment
of the Deferred Compensation Obligations may be made in a lump sum or in
substantially equal annual installments (subject to a maximum of ten (10) annual
installments). The time for payment elected by the Participant shall be a date
certain at the time of election or the date of the Participant's separation from
service, provided that such specified date shall actually occur on or prior to
the Participant's separation from service, disability or death or a change in
control of the Company. In the event of a change in control of the Company in
accordance with the terms of the Plan, payments will be made in the form of a
lump sum.
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 any amounts payable under the Plan in
advance of the actual receipt of such amounts.
The Deferred Compensation Obligations are not subject to redemption, in
whole or in part, prior to the individual payment dates selected by the
Participants, except that Participants may withdraw all or a portion of the
value of their Plan accounts under certain specified circumstances and certain
mandatory lump sum distributions may be made. The Company reserves the right to
amend or terminate the Plan at any time, provided that, except as otherwise
provided in the Plan, no amendment shall decrease the benefits to a Participant
on compensation deferred prior to the date of the amendment without the consent
of the Participant.
The total amount of the Deferred Compensation Obligations is not
determinable because the amount will vary depending upon the level of
participation by eligible employees and the amounts of their compensation that
they elect to defer under the Plan.
The Deferred Compensation Obligations are not convertible into another
security of the Company.
The foregoing summarizes the material terms and provisions of the Deferred
Compensation Obligations, is not a complete description of the Deferred
Compensation Obligations and is qualified in its entirety by reference to the
Plan.
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.
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,
2
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.
Item 7. Exemption from Registration Claimed. Not applicable.
3
Item 8. Exhibits.
Exhibit
Number
4.1 Enzon Pharmaceuticals, Inc. Executive Deferred
Compensation Plan (2005 Restatement)(1).
5.1 Opinion of Heller Ehrman LLP.
23.1 Consent of Heller Ehrman LLP (included in
Exhibit 5.1).
23.2 Consent of Independent Registered Public
Accounting Firm.
24.1 Powers of Attorney (included in signature
page to this registration statement).
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(1) Incorporated by reference to Exhibit 10.33 to the Company's
Annual Report on Form 10-K for the year ended June 30, 2005,
previously filed with the Commission on September 9, 2005.
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;
(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 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 transition report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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 the 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 controlling person of the registrant
in a successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, 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 of 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.
[Signature Pages Follow]
5
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 Bridgewater, State of New Jersey, on March 15, 2006.
Enzon Pharmaceuticals, Inc.
By: /s/ Jeffrey H. Buchalter
----------------------------------------------
Jeffrey H. Buchalter
President, Chief Executive Officer and
Chairman of the Board (Principal Executive
Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jeffrey H. Buchalter and Craig A. Tooman,
jointly and severally, his or her attorneys-in-fact and agents, each with the
power of substitution and resubstitution, for him or her and in his or her name,
place or stead, in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he or she might or could do in
person, and ratifying and confirming all that the attorneys-in-fact and agents,
or his or her substitute or substitutes, may 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 and on the dates indicated.
Signature Title Date
/s/ Craig A. Tooman Executive Vice President, Finance and Chief March 15, 2006
Craig A. Tooman Financial Officer (Principal Financial
Officer)
/s/ Jeffrey H. Buchalter President, Chief Executive Officer and Chairman March 15, 2006
Jeffrey H. Buchalter of the Board (Principal Executive Officer)
/s/ Goran Ando Director March 15, 2006
Goran Ando
/s/ Rolf A. Classon Director March 15, 2006
Rolf A. Classon
/s/ Rosina B. Dixon Director March 15, 2006
Rosina B. Dixon
/s/ Robert LeBuhn Director March 15, 2006
Robert LeBuhn
/s/ Victor P. Micati Director March 15, 2006
Victor P. Micati
Director
Phillip M. Renfro
/s/ Robert C. Salisbury Director March 15, 2006
Robert C. Salisbury
6
INDEX TO EXHIBITS
Exhibit
Number
4.1 Enzon Pharmaceuticals, Inc. Executive Deferred Compensation
Plan (2005 Restatement)(1).
5.1 Opinion of Heller Ehrman LLP.
23.1 Consent of Heller Ehrman LLP (included in Exhibit 5.1).
23.2 Consent of Independent Registered Public Accounting Firm.
24.1 Powers of Attorney (included in signature page to this
registration statement).
-------------
(1) Incorporated by reference to Exhibit 10.33 to the Company's Annual Report
on Form 10-K for the year ended June 30, 2005, previously filed with the
Commission on September 9, 2005.
HELLER EHRMAN LLP
EXHIBIT 5.1
March __, 2006
Enzon Pharmaceuticals, Inc.
685 Route 202/206
Bridgewater, NJ 08807
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 preparation and filing of a
Registration Statement on Form S-8 (the "Registration Statement"), filed by the
Company on the date hereof with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), with respect to the registration
of up to $10,000,000 of deferred compensation obligations (the "Obligations") of
the Company which may be issued under the Company's Executive Deferred
Compensation Plan (2005 Restatement) (the "Plan"). All capitalized terms used in
this opinion and not otherwise defined shall have the respective meanings
ascribed to them in the Registration Statement.
In our capacity as counsel and in connection with the rendering of the
opinions set forth below, we have examined originals or photostatic copies,
certified or otherwise authenticated to our satisfaction, of the Company's
Certificate of Incorporation, as amended, By-laws, as amended, resolutions of
the Board of Directors of the Company, the Registration Statement and exhibits
thereto and the related prospectus, the Plan and such other documents,
instruments and records as we deemed necessary or appropriate for purposes of
rendering this opinion.
In rendering this opinion, we have assumed and relied upon, without
independent investigation, other than the inquiry referred to above, (i) the
authenticity, completeness, truth and due authorization, execution and delivery
of all documents submitted to us as originals, (ii) the genuineness of all
signatures on all documents submitted to us as originals, and (iii) the
conformity to the originals of all documents submitted to us as certified or
photostatic copies. As to certain factual matters, we have relied, without any
investigation, upon the accuracy of certain of the representations and
warranties in the certificates of certain officers of the Company and upon the
accuracy of the statements contained in the Registration Statement and in
certificates of public officials referred to above.
The laws covered by the opinions expressed herein are limited to (a) the
federal law of the United States and (b) the Delaware General Corporations Law.
This opinion is given only with respect to laws and regulations presently
in effect. We assume no obligation to advise you of any changes in law or
regulation which may hereafter occur, whether the same are retroactively or
prospectively applied, or to update or supplement this letter in any fashion to
reflect any facts or circumstances which hereafter come to our attention.
Based upon and subject to the foregoing, it is our opinion that the
Obligations, when established pursuant to the terms of the Plan, will be duly
authorized and validly issued and will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms and the
terms of the Plan, except as and to the extent such enforceability (a) may be
limited by bankruptcy, reorganization, insolvency or other similar laws
affecting creditors' rights generally and (b) is subject to general principals
of equity regardless of whether such enforceability is considered in a
proceeding in equity or at law.
We hereby consent to the filing of this opinion letter as an exhibit to the
Registration Statement.
This is a legal opinion only and not a guaranty or warranty of the matters
discussed herein. It is understood that this opinion speaks as of the date given
and is limited to the laws in effect as of the date hereof and we undertake no
obligation to update this opinion (including, without limitation, by reason of
any events or circumstances, including changes in law, occurring) or to advise
you of any change of any matters stated herein, whether legal or factual, after
the date hereof. The foregoing opinion is qualified in its entirety by the fact
that we do not assume any responsibility for the accuracy, completeness or
fairness of any statement contained in the Registration Statement or the
prospectus.
Very truly yours,
s/ Heller Ehrman LLP
Heller Ehrman LLP
Heller Ehrman LLP Times Square Tower 7 Times Square
New York, NY 10036-6524 www.hellerehrman.com
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Anchorage Beijing Hong Kong Los Angeles Madison, WI New York
San Diego San Francisco Seattle Silicon Valley Singapore Washington, D.C.
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Enzon Pharmaceuticals, Inc.:
We consent to the use of our reports dated March 3, 2006, with respect to the
consolidated balance sheets of Enzon Pharmaceuticals, Inc. and subsidiaries as
of December 31, 2005 and June 30, 2005, and the related consolidated statements
of operations, stockholders' (deficit) equity, and cash flows for the six months
ended December 31, 2005 and each of the years in the three-year period ended
June 30, 2005, and the related financial statement schedule, management's
assessment of the effectiveness of internal control over financial reporting as
of December 31, 2005 and the effectiveness of internal control over financial
reporting as of December 31, 2005, incorporated herein by reference. Our report
on the consolidated financial statements refers to the adoption of Statement of
Financial Accounting Standards No. 123R, "Share-Based Payment," as of July 1,
2005 and the recognition of non-cash charges of $151.0 million and $133.1
million for the impairment of goodwill and certain intangible assets,
respectively, during the six months ended December 31, 2005.
/s/ KPMG LLP
Short Hills, New Jersey
March 14, 2006