UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 17, 2006
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ENZON PHARMACEUTICALS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-12957 22-2372868
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(State or other (Commission File No.) (IRS Identification No.)
jurisdiction of
incorporation)
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685 Route 202/206, Bridgewater, New Jersey 08807
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (908) 541-8600
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(Former name or former address, if changed since last report)
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communication pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communication pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b)
[ ] Pre-commencement communication pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
AMENDMENT OF 2001 STOCK INCENTIVE PLAN
On May 18, 2006, at Enzon's 2006 Annual Meeting of Stockholders (the
"Annual Meeting"), Enzon's stockholders approved the amendment of Enzon's 2001
Incentive Stock Plan (the "Plan") increasing the number of shares of common
stock issuable thereunder by an additional 4,000,000 shares to 10,000,000
shares. The foregoing description of the amendment is qualified in its entirety
by reference to the full text of the Plan that is filed as Exhibit 10.1 to this
Form 8-K and incorporated herein by reference.
ITEM 3.02. UNREGISTERED SALES OF EQUITY SECURITIES.
On May 17, 2006, the Company entered into an agreement to sell $225 million
aggregate principal amount of its 4% senior convertible notes due 2013 in
connection with a private placement of the notes. Pursuant to the agreement, the
Company has granted the initial purchasers the right to purchase up to an
additional $50 million aggregate principal amount of the notes for the sole
purpose of covering over allotments. The net proceeds after deducting the
initial purchasers' discount of approximately $5.9 million (or $7.2 million if
the over allotment option is exercised in full) and offering expenses are
expected to be $218.8 million (or $267.5 million if the over allotment option is
exercised in full). The notes are convertible at the option of the holder into
the Company's common stock at a conversion price of $9.55 per share, which is
subject to anti-dilution adjustments. The private placement is exempt from
registration under the Securities Act of 1933, as amended, pursuant to Section
4(2) thereof and Rule 144A promulgated thereunder. The completion of the private
placement is subject to customary closing conditions.
ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL
YEAR.
At the Annual Meeting, Enzon's stockholders, upon the recommendation of the
Company's Board of Directors, approved the amendment and restatement of Enzon's
Restated Certificate of Incorporation to increase the authorized shares of the
Company's common stock from 90,000,000 to 170,000,000 shares. As a result of
this stockholder approval, Enzon filed an Amended and Restated Certificate of
Incorporation with the Secretary of State of the State of Delaware on May 18,
2006. A copy of the Amended and Restated Certificate of Incorporation is filed
as Exhibit 3.1 to this Form 8-K and is incorporated herein by reference.
ITEM 8.01 OTHER EVENTS.
On May 18, 2006, Enzon issued a press release announcing the approval by
its stockholders of the Company's proposals at the Annual Meeting. A copy of
Enzon's press release dated May 18, 2005 is attached as Exhibit 99.1 to this
Form 8-K and is incorporated herein by reference.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
EXHIBIT NO. DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation of Enzon Pharmaceuticals,
Inc.
10.1 2001 Incentive Stock Plan, as amended and restated, of Enzon
Pharmaceuticals, Inc.
99.1 Press Release of Enzon Pharmaceuticals, Inc. dated May 18, 2006
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: May 19, 2006
By:/s/ CRAIG A. TOOMAN
Craig A. Tooman
Executive Vice President, Finance and Chief
Financial Officer
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ENZON PHARMACEUTICALS, INC.
The undersigned, Jeffrey H. Buchalter, being the President and Chief
Executive Officer of Enzon Pharmaceuticals, Inc., a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), hereby
certifies as follows:
FIRST: The present name of the corporation (hereinafter called the
"Corporation") is Enzon Pharmaceuticals, Inc.
SECOND: The name under which the corporation was originally incorporated is
Enzon, Inc. and the date of filing the original certificate of incorporation of
the Corporation with the Secretary of State of the State of Delaware is May 11,
1983.
THIRD: This Amended and Restated Certificate of Incorporation has been duly
adopted by the Corporation's Board of Directors and stockholders pursuant to the
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware in the form set forth as follows:
1. NAME. The name of the corporation is Enzon Pharmaceuticals, Inc.
2. ADDRESS; REGISTERED AGENT. The Corporation's registered office in the
State of Delaware is located at Corporation Trust Center, 1209 Orange Street,
City of Wilmington, County of New Castle and the name of its registered agent at
such address is The Corporation Trust Company.
3. PURPOSE. The nature of the business and purposes to be conducted or
promoted by the Corporation are to engage in, carry on and conduct any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
4. NUMBER OF SHARES. (A) The total number of shares of capital stock which
the Corporation shall have authority to issue is 173,000,000 shares, of which
170,000,000 shares shall be Common Stock, par value $.01 per share, and
3,000,000 shares shall be Preferred Stock, par value $.01 per share.
(B) The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors of the Corporation is hereby expressly authorized
to provide, by resolution or resolutions duly adopted by it prior to issuance,
for the creation of each such series and to fix the designation and the powers,
preferences, rights, qualifications, limitations and restrictions relating to
the shares of each such series. The authority of the Board of Directors with
respect to each series of Preferred Stock shall include, but not be limited to,
determining the following:
(a) the designation of such series, the number of shares to constitute such
series and the stated value thereof if different from the par value thereof;
(b) whether the shares of such series shall have voting rights, in addition
to any voting rights provided by law, and, if so, the terms of such voting
rights, which may be general or limited;
(c) the dividends, if any, payable on such series, whether any such
dividends shall be cumulative, and, if so, from what dates, the conditions and
dates upon which such dividends shall be payable, and the preference or relation
which such dividends shall bear to the dividends payable on any shares of stock
of any other class or any other series of Preferred Stock;
(d) whether the shares of such series shall be subject to redemption by the
Corporation, and, if so, the times, prices and other conditions of such
redemption;
(e) the amount or amounts payable upon shares of such series upon, and the
rights of the holders of such series in, the voluntary or involuntary
liquidation, dissolution or winding up, or upon any distribution of the assets,
of the Corporation;
(f) whether the shares of such series shall be subject to the operation of
a retirement or sinking fund and, if so, the extent to and manner in which any
such retirement or sinking fund shall be applied to the purchase or redemption
of the shares of such series for retirement or other corporation purposes and
the terms and provisions relating to the operation thereof;
(g) whether the shares of such series shall be convertible into, or
exchangeable for, shares of stock of any other class or any other series of
Preferred Stock or any other securities and, if so, the price or prices or the
rate or rates of conversion or exchange and the method, if any, of adjusting the
same, and any other terms and conditions of conversion or exchange;
(h) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issue of any additional stock,
including additional shares of such series or of any other series of Preferred
Stock or of any other class; and
(i) any other powers, preferences and relative, participating, optional and
other special rights, and any qualifications, limitations and restrictions,
thereof.
The powers, preferences and relative, participating, optional and other
special rights of each series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding. All shares of any one series of
Preferred Stock shall be identical in all respects with all other shares of such
series, except that shares of any one series issued at different times may
differ as to the dates from which dividends thereof shall be cumulative.
Pursuant to the authority conferred by this Article Fourth upon the Board
of Directors of the Corporation, the Board of Directors created a series of
Preferred Stock designated as Series B Preferred Stock by filing a Certificate
of Designations of the Corporation with the Secretary of State of the State of
Delaware (the "Secretary of State") on May 22, 2002, and the voting powers,
designations, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of the
Corporation's Series B Preferred Stock are set forth in Appendix A hereto and
are incorporated herein by reference.
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5. NAME AND ADDRESS OF INCORPORATOR. The name and mailing address of the
incorporator is Dan Brecher, 260 Madison Avenue, New York, New York, 10016.
6. ELECTION OF DIRECTORS. Members of the Board of Directors may be elected
either by written ballot or by voice vote.
7. ADOPTION, AMENDMENT AND/OR REPEAL OF BY-LAWS. The Board of Directors may
from time to time (after adoption by the undersigned of the original by-laws of
the Corporation) make, alter or repeal the by-laws of the Corporation; provided,
that any by-laws made, amended or repealed by the Board of Directors may be
amended or repealed, and any by-laws may be made, by the stockholders of the
Corporation.
8. COMPROMISES AND ARRANGEMENTS. Whenever a compromise or arrangement is
proposed between the Corporation and its creditors or any class of them and/or
between this Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this Corporation
under the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
9. NUMBER OF DIRECTORS. (A) The Board of Directors shall consist of not
less than three nor more than fifteen directors, the exact number of directors
to be determined from time to time by resolution adopted by affirmative vote of
a majority of the whole Board of Directors, and such exact number shall be four
until otherwise determined by resolution adopted by affirmative vote of a
majority of the whole Board of Directors. As used in this Article 9, the term
"whole Board" means the total number of directors, which the Corporation would
have if there were no vacancies. The Board of Directors shall divide the
directors into three classes and, when the number of directors is changed, shall
determine the class or classes to which the increased or decreased number of
directors shall be apportioned; provided, that no decrease in the number of
directors shall affect the term of any director then in office. Notwithstanding
the foregoing, and except as otherwise required by law, whenever the holders of
any one or more series of Preferred Stock shall have the right, voting
separately as a class, to elect one or more directors of the Corporation, the
terms of the director or directors elected by such holders shall expire at the
next succeeding annual meeting of stockholders. The term of office of directors
elected at the 1986 Annual Meeting of Stockholders held on January 20, 1987
shall be as follows: the term of office of directors of the first class shall
expire at the first annual meeting of stockholders after their election; the
term of office of directors of the second class shall expire at the second
annual meeting of stockholders after their election; and the term of office of
directors of the third class shall expire at the third annual meeting of
stockholders after their election; and as to directors of each class, when their
respective successors are elected and qualified. At each annual meeting of
stockholders subsequent to the 1986 Annual Meeting of Stockholders, directors
elected to succeed those whose terms are expiring shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders and when
their respective successors are elected and qualified.
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(B) Vacancies in the Board of Directors, however caused, and newly created
directorships shall be filled solely by a majority vote of the directors then in
office, whether or not a quorum, and any director so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term of
the class to which the director has been chosen expires and when the director's
successor is elected and qualified.
(C) The affirmative vote of the holders of not less than two-thirds of the
outstanding voting shares of capital stock of the Corporation entitled to vote
generally in the election of directors shall be required to amend, alter, change
or repeal, or adopt any provisions inconsistent with this Article 9, provided,
however, that this paragraph shall not apply to, and such two-thirds vote shall
not be required for, any amendment, alteration, change, repeal or adoption of
any inconsistent provision declared advisable by the Board of Directors by the
affirmative vote of two-thirds of the Board and submitted to stockholders for
their consideration, but only if a majority of the members of the Board of
Directors acting upon such matter shall be Continuing Directors. The term
"Continuing Director" shall mean a director who was a member of the Board as of
October 1, 1986.
10. LIMITATION OF DIRECTORS' LIABILITY; INDEMNIFICATION. A director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, as the same exists or
hereafter may be amended, or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware General Corporation Law
hereafter is amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of the Corporation, in
addition to the limitation on personal liability provided herein, shall be
limited to the fullest extent permitted by the amended Delaware General
Corporation Law. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
corporation existing at the time of such repeal or modification.
(SIGNATURE ON FOLLOWING PAGE)
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I, Jeffrey H. Buchalter, President and Chief Executive Officer of the
Corporation, for the purpose of amending and restating the Corporation's
Certificate of Incorporation pursuant to the Delaware General Corporation Law,
do make this certificate, hereby declaring and certifying that the facts stated
herein are true and this is my act and deed on behalf of the Corporation this
18th day of May, 2006.
/S/ JEFFREY H. BUCHALTER
By: Jeffrey H. Buchalter
Title: President and Chief Executive Officer
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Appendix A to Restated Certificate of Incorporation
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF
SERIES B PREFERRED STOCK
OF
ENZON, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
Enzon, Inc. (the "Corporation"), a corporation organized and existing
under the laws of the State of Delaware, does hereby certify that, pursuant to
the authority conferred on the Board of Directors of the Corporation by the
Certificate of Incorporation, as amended, of the Corporation and in accordance
with Section 151 of the General Corporation Law of the State of Delaware, the
Board of Directors of the Corporation adopted the following resolution creating
the preferences and rights of its series of 600,000 shares of Preferred Stock,
no shares of which have been issued, designated as " Series B Preferred Stock."
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its
Certificate of Incorporation, as amended, a series of preferred stock of the
Corporation is hereby created and the designation and amount of such series and
the voting powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof are as follows:
a) DESIGNATION AND AMOUNT. The shares of such series shall be designated
as "Series B Preferred Stock" (the " SERIES B PREFERRED STOCK") and
the number of shares constituting the Series B Preferred Stock shall
be six hundred thousand (600,000). Such number of shares may be
increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series
B Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series B Preferred Stock.
b) DIVIDENDS AND DISTRIBUTIONS.
(i) Subject to the rights of the holders of any shares of any series
of preferred stock (or any similar stock) ranking prior and
superior to the Series B Preferred Stock with respect to
dividends, the holders of shares of Series B Preferred Stock, in
preference to the holders of Common Stock, par value $.01 (the
"COMMON STOCK"), of the Corporation, and of any other junior
stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of
March, June, September and December in each year (each such date
being referred to herein as a "QUARTERLY DIVIDEND PAYMENT DATE"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series B
Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1.00 or (b) subject to the
provision for adjustment hereinafter set forth, 1,000 times the
aggregate per share amount of all cash dividends, and 1,000 times
the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series B Preferred Stock. In the
event the Corporation shall at any time after June 3, 2002,
declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to
which holders of shares of Series B Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(ii) The Corporation shall declare a dividend or distribution on the
Series B Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution
on the Common Stock (other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding Common Stock);
provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period between
any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on
the Series B Preferred Stock shall nevertheless be payable, out
of funds legally available for such purpose, on such subsequent
Quarterly Dividend Payment Date.
(iii) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series B Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of
issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series B Preferred Stock
entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series B
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series
B Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment
thereof.
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c) VOTING RIGHTS. The holders of shares of Series B Preferred Stock shall
have the following voting rights:
(i) Subject to the provision for adjustment hereinafter set forth,
each share of Series B Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation
shall at any time after June 3, 2002, declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each
such case the number of votes per share to which holders of
shares of Series B Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number
by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(ii) Except as otherwise provided herein, in any other Certificate of
Designation creating a series of preferred stock or any similar
stock, or by law, the holders of shares of Series B Preferred
Stock and the holders of shares of Common Stock and any other
capital stock of the Corporation having general voting rights
shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(iii) Except as set forth herein, or as otherwise provided by law,
holders of Series B Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
d) CERTAIN RESTRICTIONS.
(i) Whenever quarterly dividends or other dividends or distributions
payable on the Series B Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares
of Series B Preferred Stock outstanding shall have been paid in
full, the Corporation shall not:
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(1) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series B Preferred Stock;
(2) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up)
with the Series B Preferred Stock, except dividends paid
ratably on the Series B Preferred Stock and all such parity
stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all
such shares are then entitled;
(3) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the
Series B Preferred Stock, provided that the Corporation may
at any time redeem, purchase or otherwise acquire shares of
any such junior stock in exchange for shares of any stock of
the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series B
Preferred Stock; or
(4) redeem or purchase or otherwise acquire for consideration
any shares of Series B Preferred Stock, or any shares of
stock ranking on a parity with the Series B Preferred Stock,
except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the
respective series or classes.
(ii) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
e) REACQUIRED SHARES. Any shares of Series B Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall
be retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but
unissued shares of preferred stock and may be reissued as part of a
new series of preferred stock subject to the conditions and
restrictions on issuance set forth herein, in the Certificate of
Incorporation, as amended, or in any other certificate of designation
creating a series of preferred stock or any similar stock or as
otherwise required by law.
f) LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be
made (1) to the holders of shares of stock ranking junior (either as
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to dividends or upon liquidation, dissolution or winding up) to the
Series B Preferred Stock unless, prior thereto, the holders of shares
of Series B Preferred Stock shall have received the greater of (i)
$1,000 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of
such payment, or (ii) an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 1,000 times
the aggregate amount to be distributed per share to holders of shares
of Common Stock, or (2) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series B Preferred Stock, except distributions
made ratably on the Series B Preferred Stock and all such parity stock
in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up.
In the event the Corporation shall at any time after June 3, 2002,
declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of shares
of Series B Preferred Stock were entitled immediately prior to such
event under clause (1)(ii) of the preceding sentence shall be adjusted
by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
g) CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter into
any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such
case each share of Series B Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event
the Corporation shall at any time after June 3, 2002, declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise)
into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series B Preferred
Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
h) NO REDEMPTION. The shares of Series B Preferred Stock shall not be
redeemable.
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i) RANK. The Series B Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all
series of any other class of the Corporation's preferred stock.
j) FRACTIONAL SHARES. Series B Preferred Stock may be issued in fractions
of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to receive dividends, participate in
distributions and to have the benefit of all other rights of holders
of Series B Preferred Stock.
k) AMENDMENT. The Certificate of Incorporation, as amended of the
Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or rights of the Series B
Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least two-thirds of the outstanding shares
of Series B Preferred Stock, voting together as a single class.
ENZON PHARMACEUTICALS, INC.
2001 INCENTIVE STOCK PLAN AS AMENDED*
* Effective as of May 18, 2006
SECTION 1. PURPOSE
The purpose of the Plan is to promote the interests of the Company and
its shareholders by aiding the Company in attracting and retaining
employees, officers, consultants, independent contractors and Non-Employee
Directors capable of contributing to the future success of the Company, to
offer such persons incentives to put forth maximum efforts for the success
of the Company's business and to afford such persons an opportunity to
acquire a proprietary interest in the Company.
SECTION 2. DEFINITIONS
As used in the Plan, the following terms shall have the meanings set forth
below:
1 "Affiliate" shall mean (i) any entity that, directly or indirectly
through one or more intermediaries, is controlled by the Company and (ii)
any entity in which the Company has a significant equity interest, in each
case as determined by the Committee.
2 "Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock, Restricted Stock Unit, Performance Award, Dividend Equivalent, Other
Stock Grant or Other Stock-Based Award granted under the Plan.
3 "Award Agreement" shall mean any written agreement, contract or other
instrument or document evidencing any Award granted under the Plan. Each
Award Agreement shall be subject to the applicable terms and conditions of
the Plan and any other terms and conditions (not inconsistent with the
Plan) determined by the Committee.
4 "Board" shall mean the Board of Directors of the Company.
5 "Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and any regulations promulgated thereunder.
6 "Committee" shall mean a committee of Directors designated by the Board
to administer the Plan. The Committee shall be comprised of not less than
such number of Directors as shall be required to permit Awards granted
under the Plan by the Committee to qualify under Rule 16b-3, and each
member of the Committee shall be a "Non-Employee Director" within the
meaning of Rule 16b-3 and an "outside director" within the meaning of
Section 162(m) of the Code. The Company expects to have the Plan
administered in accordance with the requirements for the award of
"qualified performance-based compensation" within the meaning of Section
162(m) of the Code.
7 "Company" shall mean Enzon Pharmaceuticals, Inc., a Delaware corporation,
and any successor corporation.
8 "Director" shall mean a member of the Board, including Non-Employee
Directors.
9 "Dividend Equivalent" shall mean any right granted under Section 6(E) of
the Plan.
10 "Eligible Person" shall mean any employee, officer, consultant,
independent contractor or Director (including any Non-Employee Director)
providing services to the Company or any Affiliate whom the Committee
determines to be an Eligible Person.
1
11 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
12 "Fair Market Value" shall mean, with respect to any property (including,
without limitation, any Shares or other securities), the fair market value
of such property determined by such methods or procedures as shall be
established from time to time by the Committee. Notwithstanding the
foregoing, unless otherwise determined by the Committee, the Fair Market
Value of a Share as of a given date shall be, if the Shares are then traded
on the Nasdaq National Market, the last reported sale price of one Share as
reported on the Nasdaq National Market on such date or, if the Nasdaq
National Market is not open for trading on such date, on the most recent
preceding date when it is open for trading.
13 "Family Members" shall be those persons related to a Participant as
determined by the Committee.
14 "Incentive Stock Option" shall mean an option granted under Section 6A
of the Plan that is intended to meet the requirements of Section 422 of the
Code or any successor provision.
15 "Non-Employee Director" shall have the meaning ascribed in Rule 16b-3
promulgated under the Exchange Act or any successor provision.
16 "Non-Qualified Stock Option" shall mean an option granted under Section
6A of the Plan that is not intended to be an Incentive Stock Option.
17 "Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
18 "Other Stock Grant" shall mean any right granted under Section 6F of the
Plan.
19 "Other Stock-Based Award" shall mean any right granted under Section 6G
of the Plan.
20 "Participant" shall mean an Eligible Person designated to be granted an
Award under the Plan.
21 "Performance Award" shall mean any right granted under Section 6D of the
Plan.
22 "Person" shall mean any individual, corporation, partnership,
association or trust.
23 "Plan" shall mean the Enzon Pharmaceuticals, Inc. 2001 Incentive Stock
Plan, as amended from time to time, the provisions of which are set forth
herein.
24 "Plan Year" shall mean a consecutive 12-month period ending on December
31 of each year.
25 "Reload Option" shall mean any Option granted under Section 6A(5) of the
Plan.
26 "Restricted Stock" shall mean any Shares granted under Section 6C of the
Plan.
27 "Restricted Stock Unit" shall mean any unit granted under Section 6C of
the Plan evidencing the right to receive a Share (or a cash payment equal
to the Fair Market Value of a Share) at some future date.
28 "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor rule or
regulation.
29 "Share" or "Shares" shall mean shares of common stock, $0.01 par value
per share, of the Company or such other securities or property as may
become subject to Awards pursuant to an adjustment made under Section 4C of
the Plan.
2
30 "Stock Appreciation Right" shall mean any right granted under Section 6B
of the Plan.
SECTION 3. ADMINISTRATION
A. POWER AND AUTHORITY OF THE COMMITTEE. The Plan shall be
administered by the Committee. Subject to the express provisions of the
Plan and to applicable law, the Committee shall have full power and
authority to: (i) designate Participants; (ii) determine the type or types
of Awards to be granted to each Participant under the Plan; (iii) determine
the number of Shares to be covered by (or the method by which payments, or
other rights are to be calculated in connection with) each Award; (iv)
determine the terms and conditions of any Award or Award Agreement; (v)
amend the terms and conditions of any Award or Award Agreement and
accelerate the exercisability of any Award or the lapse of restrictions
relating to any Award; (vi) determine whether, to what extent and under
what circumstances Awards may be exercised in cash, Shares, promissory
notes, other securities, other Awards or other property, or canceled,
forfeited or suspended; (vii) determine whether, to what extent and under
what circumstances cash, Shares, promissory notes, other securities, other
Awards, other property and other amounts payable with respect to an Award
under the Plan shall be deferred either automatically or at the election of
the holder thereof or the Committee; (viii) interpret and administer the
Plan and any instrument or agreement, including an Award Agreement,
relating to the Plan; (ix) establish, amend, suspend or waive such rules
and regulations and appoint such agents as it shall deem appropriate for
the proper administration of the Plan; and (x) make any other determination
and take any other action that the Committee deems necessary or desirable
for the administration of the Plan. Unless otherwise expressly provided in
the Plan, all designations, determinations, interpretations and other
decisions under or with respect to the Plan or any Award shall be within
the sole discretion of the Committee, may be made at any time and shall be
final, conclusive and binding upon any Participant, any holder or
beneficiary of any Award and any employee of the Company or any Affiliate.
B. DELEGATION. The Committee may delegate its powers and duties under
the Plan to one or more Directors or officers of the Company, or to a
committee of Directors or officers, subject to such terms, conditions and
limitations as the Committee may establish in its sole discretion,
provided, however, that the Committee shall not delegate its powers and
duties under the Plan (i) with regard to officers or directors of the
Company or any Affiliate who are subject to Section 16 of the Exchange Act
or (ii) in such a manner as would cause the Plan not to comply with the
requirements of Section 162(m) of the Code.
C. POWER AND AUTHORITY OF THE BOARD. Notwithstanding anything to the
contrary contained herein, the Board may, at any time and from time to
time, without any further action of the Committee, exercise the powers and
duties of the Committee under the Plan.
SECTION 4. SHARES AVAILABLE FOR AWARDS
A. SHARES AVAILABLE. Subject to adjustment as provided in Section 4C
of the Plan, the aggregate number of Shares that may be issued under all
Awards under the Plan shall be 10,000,000; provided that, any Shares with
respect to which Awards may be issued, but are not issued, under the Plan
in any Plan Year shall be carried forward and shall be available to be
covered by Awards issued in any subsequent Plan Year in which Awards may be
issued under the Plan. Shares to be issued under the Plan may be either
authorized but unissued Shares or Shares acquired in the open market or
otherwise. Any Shares that are used by a Participant as full or partial
payment to the Company of the purchase price relating to an Award, or in
connection with the satisfaction of tax obligations relating to an Award,
shall again be available for granting Awards (other than Incentive Stock
Options) under the Plan. In addition, if any Shares covered by an Award or
to which an Award relates are not purchased or are forfeited, or if an
Award otherwise terminates without delivery of any Shares, then the number
of Shares counted against the aggregate number of Shares available under
the Plan with respect to such Award, to the extent of any such forfeiture
or termination, shall again be available for granting Awards under the
Plan. Notwithstanding the foregoing, the number of Shares available for
granting Incentive Stock Options under the Plan shall not exceed 10,000,000
shares subject to adjustment as provided in the Plan and subject to the
provisions of Section 422 or 424 of the Code or any successor provision.
3
B. ACCOUNTING FOR AWARDS. For purposes of this Section 4, if an Award
entitles the holder thereof to receive or purchase Shares, the number of
Shares covered by such Award or to which such Award relates shall be
counted on the date of grant of such Award against the aggregate number of
Shares available for granting Awards under the Plan.
C. ADJUSTMENTS. In the event that the Committee shall determine that
any dividend or other distribution (whether in the form of cash, Shares,
other securities or other property), recapitalization, stock split, reverse
stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, issuance of warrants or other rights to purchase Shares or
other securities of the Company to all holders of common stock pro rata
whether as a dividend or otherwise or other similar corporate transaction
or event affects the Shares such that an adjustment is determined by the
Committee to be appropriate in order to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available under the
Plan, then the Committee shall, in such manner as it may deem equitable,
adjust any or all of (i) the number and type of Shares (or other securities
or other property) that thereafter may be made the subject of Awards, (ii)
the number and type of Shares (or other securities or other property)
subject to outstanding Awards and (iii) the purchase or exercise price with
respect to any Award; provided, however, that the number of Shares covered
by any Award or to which such Award relates shall always be a whole number.
D. AWARD LIMITATIONS UNDER THE PLAN. No Eligible Person may be granted
any Award or Awards under the Plan, the value of which Award or Awards is
based solely on an increase in the value of the Shares after the date of
grant of such Award or Awards, for more than 1,000,000 Shares (subject to
adjustment as provided for in Section 4(c) of the Plan), in the aggregate
in any calendar year. The foregoing annual limitation specifically includes
the grant of any Award or Awards representing "qualified performance-based
compensation" within the meaning of Section 162(m) of the Code.
SECTION 5. ELIGIBILITY.
Any Eligible Person shall be eligible to be designated a Participant.
In determining which Eligible Persons shall receive an Award and the terms
of any Award, the Committee may take into account the nature of the
services rendered by the respective Eligible Persons, their present and
potential contributions to the success of the Company or such other factors
as the Committee, in its discretion, shall deem relevant. Notwithstanding
the foregoing, an Incentive Stock Option may only be granted to full or
part-time employees (which term as used herein includes, without
limitation, officers and Directors who are also employees), and an
Incentive Stock Option shall not be granted to an employee of an Affiliate
unless such Affiliate is also a "subsidiary corporation" of the Company
within the meaning of Section 424(f) of the Code or any successor
provision.
SECTION 6. AWARDS
A. OPTIONS. The Committee is hereby authorized to grant Options to
Eligible Persons with the following terms and conditions and with such
additional terms and conditions not inconsistent with the provisions
of the Plan as the Committee shall determine:
1. EXERCISE PRICE. The purchase price per Share purchasable under an
Option shall be determined by the Committee; provided, however, that
such purchase price shall not be less than 100% of the Fair Market
Value of a Share on the date of grant of such Option.
2. OPTION TERM. The term of each Option shall be fixed by the
Committee, but, shall in no event exceed 10 years from the date on
which such Option is granted.
3. TIME AND METHOD OF EXERCISE. The Committee shall determine the time
or times at which an Option may be exercised in whole or in part and
the method or methods by which, and the form or forms (including,
without limitation, cash, Shares, promissory notes, other securities,
other Awards or other property, or any combination thereof, having a
Fair Market Value on the exercise date equal to the applicable
exercise price) in which, payment of the exercise price with respect
thereto may be made or deemed to have been made.
4
4. INCENTIVE STOCK OPTIONS. Notwithstanding anything in the Plan to
the contrary, the following additional provisions shall apply to the
grant of stock options which are intended to qualify as Incentive
Stock Options:
(a) The aggregate Fair Market Value (determined as of the time the
option is granted) of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by any
Participant during any calendar year (under this Plan and all
other plans of the Company and its Affiliates) shall not exceed
$100,000.
(b) All Incentive Stock Options must be granted within ten years from
the earlier of the date on which this Plan was adopted by the
Board or the date this Plan was approved by the shareholders of
the Company.
(c) Unless sooner exercised, all Incentive Stock Options shall expire
and no longer be exercisable no later than 10 years after the
date of grant; provided, however, that in the case of a grant of
an Incentive Stock Option to a Participant who, at the time such
Option is granted, owns (within the meaning of Section 422 of the
Code) stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company or of its Affiliate,
such Incentive Stock Option shall expire and no longer be
exercisable no later than 5 years from the date of grant.
(d) The purchase price per Share for an Incentive Stock Option shall
be not less than 100% of the Fair Market Value of a Share on the
date of grant of the Incentive Stock Option; provided, however,
that, in the case of the grant of an Incentive Stock Option to a
Participant who, at the time such Option is granted, owns (within
the meaning of Section 422 of the Code) stock possessing more
than 10% of the total combined voting power of all classes of
stock of the Company or of its Affiliate, the purchase price per
Share purchasable under an Incentive Stock Option shall be not
less than 110% of the Fair Market Value of a Share on the date of
grant of the Inventive Stock Option.
(e) Any Incentive Stock Option authorized under the Plan shall
contain such other provisions as the Committee shall deem
advisable, but shall in all events be consistent with and contain
all provisions required in order to qualify the Option as an
Incentive Stock Option.
5. RELOAD OPTIONS. The Committee may grant Reload Options, separately
or together with another Option, pursuant to which, subject to the
terms and conditions established by the Committee, the Participant
would be granted a new Option when the payment of the exercise price
of a previously granted option is made by the delivery of Shares owned
by the Participant pursuant to Section 6A(3) hereof or the relevant
provisions of another plan of the Company, and/or when Shares are
tendered or withheld as payment of the amount to be withheld under
applicable income tax laws in connection with the exercise of an
Option,
5
which new Option would be an Option to purchase the number of Shares
not exceeding the sum of (A) the number of Shares so provided as
consideration upon the exercise of the previously granted option to
which such Reload Option relates and (B) the number of Shares, if any,
tendered or withheld as payment of the amount to be withheld under
applicable tax laws in connection with the exercise of the option to
which such Reload Option relates pursuant to the relevant provisions
of the plan or agreement relating to such option. Reload Options may
be granted with respect to Options previously granted under the Plan
or any other stock option plan of the Company or may be granted in
connection with any Option granted under the Plan or any other stock
option plan of the Company at the time of such grant. Such Reload
Options shall have a per share exercise price equal to the Fair Market
Value of one Share as of the date of grant of the new Option. Any
Reload Option shall be subject to availability of sufficient Shares
for grant under the Plan. Shares surrendered as part or all of the
exercise price of the Option to which it relates that have been owned
by the optionee less than six months will not be counted for purposes
of determining the number of Shares that may be purchased pursuant to
a Reload Option.
B. STOCK APPRECIATION RIGHTS. The Committee is hereby authorized to grant
Stock Appreciation Rights to Eligible Persons subject to the terms of
the Plan and any applicable Award Agreement. A Stock Appreciation
Right granted under the Plan shall confer on the holder thereof a
right to receive upon exercise thereof the excess of (i) the Fair
Market Value of one Share on the date of exercise (or, if the
Committee shall so determine, at any time during a specified period
before or after the date of exercise) over (ii) the grant price of the
Stock Appreciation Right as specified by the Committee, which price
shall not be less than 100% of the Fair Market Value of one Share on
the date of grant of the Stock Appreciation Right. Subject to the
terms of the Plan and any applicable Award Agreement, the grant price,
term, methods of exercise, dates of exercise, methods of settlement
and any other terms and conditions of any Stock Appreciation Right
shall be as determined by the Committee. The Committee may impose such
conditions or restrictions on the exercise of any Stock Appreciation
Right as it may deem appropriate.
C. RESTRICTED STOCK AND RESTRICTED STOCK UNITS. The Committee is hereby
authorized to grant Restricted Stock and Restricted Stock Units to
Eligible Persons with the following terms and conditions and with such
additional terms and conditions not inconsistent with the provisions
of the Plan as the Committee shall determine:
1. RESTRICTIONS. Shares of Restricted Stock and Restricted Stock
Units shall be subject to such restrictions as the Committee may
impose (including, without limitation, a waiver by the
Participant of the right to vote or to receive any dividend or
other right or property with respect thereto), which restrictions
may lapse separately or in combination at such time or times, in
such installments or otherwise as the Committee may deem
appropriate.
2. STOCK CERTIFICATES. Any Restricted Stock granted under the Plan
shall be registered in the name of the Participant and shall bear
an appropriate legend referring to the terms, conditions and
restrictions applicable to such Restricted Stock.
3. FORFEITURE. Except as otherwise determined by the Committee, upon
a Participant's termination of employment (as determined under
criteria established by the Committee) during the applicable
restriction period, all Shares of Restricted Stock and Restricted
Stock Units held by the Participant at such time shall be
forfeited and reacquired by the Company; provided, however, that
the Committee may, when it finds that a waiver would be in the
best interest of the Company, waive in whole or in part any or
all remaining restrictions with respect to Shares of Restricted
Stock or Restricted Stock Units.
4. AGGREGATE LIMIT. The maximum number of shares of Restricted Stock
and Restricted Stock Units that the Committee may grant under the
Plan shall not exceed 50% of the total number of shares issuable
pursuant to all Awards under the Plan.
6
D. PERFORMANCE AWARDS. The Committee is hereby authorized to grant
Performance Awards to Eligible Persons subject to the terms of the
Plan and any applicable Award Agreement. A Performance Award granted
under the Plan (i) may be denominated or payable in cash, Shares
(including, without limitation, Restricted Stock and Restricted Stock
Units), other securities, other Awards or other property and (ii)
shall confer on the holder thereof the right to receive payments, in
whole or in part, upon the achievement of such performance goals
during such performance periods as the Committee shall establish.
Subject to the terms of the Plan and any applicable Award Agreement,
the performance goals to be achieved during any performance period,
the length of any performance period, the amount of any Performance
Award granted, the amount of any payment or transfer to be made
pursuant to any Performance Award and any other terms and conditions
of any Performance Award shall be determined by the Committee.
E. DIVIDEND EQUIVALENTS. The Committee is hereby authorized to grant
Dividend Equivalents to Eligible Persons under which the Participant
shall be entitled to receive payments (in cash, Shares, other
securities, other Awards or other property as determined in the
discretion of the Committee) equivalent to the amount of cash
dividends paid by the Company to holders of Shares with respect to a
number of Shares determined by the Committee. Subject to the terms of
the Plan and any applicable Award Agreement, such Dividend Equivalents
may have such terms and conditions as the Committee shall determine.
F. OTHER STOCK GRANTS. The Committee is hereby authorized, subject to the
terms of the Plan and any applicable Award Agreements, to grant to
Eligible Persons Shares without restrictions thereon as are deemed by
the Committee to be consistent with the purpose of the Plan.
G. OTHER STOCK-BASED AWARDS. The Committee is hereby authorized to grant
to Eligible Persons, subject to the terms of the Plan and any
applicable Award Agreements, such other Awards that are denominated or
payable in, valued in whole or in part by reference to, or otherwise
based on or related to, Shares (including, without limitation,
securities convertible into Shares), as are deemed by the Committee to
be consistent with the purpose of the Plan. Shares or other securities
delivered pursuant to a purchase right granted under this Section 6(G)
shall be purchased for such consideration, which may be paid by such
method or methods and in such form or forms (including, without
limitation, cash, Shares, promissory notes, other securities, other
Awards or other property or any combination thereof), as the Committee
shall determine, the value of which consideration, as established by
the Committee, shall not be less than 100% of the Fair Market Value of
such Shares or other securities as of the date such purchase right is
granted.
H. GENERAL
1. CONSIDERATION FOR AWARDS. Awards shall be granted for no cash
consideration or for any cash or other consideration as may be
determined by the Committee or required by applicable law.
2. AWARDS MAY BE GRANTED SEPARATELY OR TOGETHER. Awards may, in the
discretion of the Committee, be granted either alone or in
addition to, in tandem with or in substitution, for any other
Award or any award granted under any plan of the Company or any
Affiliate other than the Plan. Awards granted in addition to or
in tandem with other Awards or in addition to or in tandem with
awards granted under any such other plan of the Company or any
Affiliate may be granted either at the same time as or at a
different time from the grant of such other Awards or awards.
3. FORMS OF PAYMENT UNDER AWARDS. Subject to the terms of the Plan
and of any applicable Award Agreement, payments or transfers to
be made by the Company or an Affiliate upon the grant, exercise
or payment of an Award may be made in such form or forms as the
Committee shall determine (including, without limitation, cash,
Shares, promissory notes, other securities, other 7
Awards or other property or any combination thereof), and may be
made in a single payment or transfer, in installments or on a
deferred basis, in each case in accordance with rules and
procedures established by the Committee. Such rules and
procedures may include, without limitation, provisions for the
payment or crediting of reasonable interest on installment or
deferred payments or the grant or crediting of Dividend
Equivalents with respect to installment or deferred payments.
4. LIMITS ON TRANSFER OF AWARDS. No Award (other than Other Stock
Grants) and no right under any such Award shall be transferable
by a Participant otherwise than by will or by the laws of descent
and distribution and the Company shall not be required to
recognize any attempted assignment of such rights by any
Participant; provided, however, that, if so determined by the
Committee, a Participant may, in the manner established by the
Committee, (a) designate a beneficiary or beneficiaries to
exercise the rights of the Participant and receive any property
distributable with respect to any Award upon the death of the
Participant and (b) transfer Awards, except in the case of an
Incentive Stock Option, to Family Members pursuant to terms
determined by the Committee. Except as otherwise provided in this
Plan or in any applicable Award Agreement or amendment thereto
(other than an Award Agreement relating to an Incentive Stock
Option), pursuant to terms determined by the Committee, each
Award or right under any Award shall be exercisable during the
Participant's lifetime only by the Participant or, if permissible
under applicable law, by the Participant's guardian or legal
representative. Except as otherwise provided in this Plan or in
any applicable Award Agreement or amendment thereto (other than
an Award Agreement relating to an Incentive Stock Option), no
Award or right under any such Award may be pledged, alienated,
attached or otherwise encumbered, and any purported pledge,
alienation, attachment or encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.
5. TERM OF AWARDS. The term of each Award shall be for such period
as may be determined by the Committee; provided, however, that in
the case of an Incentive Stock Option such Option shall not be
exercisable after the expiration of 10 years from the date such
Option is granted.
6. RESTRICTIONS; SECURITIES EXCHANGE LISTING. All Shares or other
securities delivered under the Plan pursuant to any Award or the
exercise thereof shall be subject to such restrictions as the
Committee may deem advisable under the Plan, applicable federal
or state securities laws and regulatory requirements, and the
Committee may cause appropriate entries to be made or legends to
be placed on the certificates for such Shares or other securities
to reflect such restrictions. If the Shares or other securities
of the Company are traded on a securities exchange, the Company
shall not be required to deliver any Shares or other securities
covered by an Award unless and until such Shares or other
securities have been admitted for trading on such securities
exchange.
SECTION 7. AMENDMENT AND TERMINATION; ADJUSTMENTS
A. AMENDMENTS TO THE PLAN. The Board may amend, alter, suspend, discontinue
or terminate the Plan at any time; provided, however, that, notwithstanding any
other provision of the Plan or any Award Agreement, without the approval of the
shareholders of the Company, no such amendment, alteration, suspension,
discontinuation or termination shall be made that, absent such approval would
violate the rules or regulations of the Nasdaq National Market or any other
securities exchange that is applicable to the Company.
8
B. AMENDMENTS TO AWARDS. The Committee may waive any conditions of or
rights of the Company under any outstanding Award, prospectively or
retroactively. Except as otherwise provided herein or in an Award Agreement, the
Committee may not amend, alter, suspend, discontinue or terminate any
outstanding Award, prospectively or retroactively, if such action would
adversely affect the rights of the holder of such Award, without the consent of
the Participant or holder or beneficiary thereof. Notwithstanding the foregoing,
without the prior approval of Enzon's stockholders, options issued under this
Plan will not be repriced, replaced, or regranted through cancellation, or by
lowering the option exercise price of a previously granted Award.
C. CORRECTION OF DEFECTS, OMISSIONS AND INCONSISTENCIES. The Committee may
correct any defect, supply any omission or reconcile any inconsistency in the
Plan or any Award in the manner and to the extent it shall deem desirable to
carry the Plan into effect.
SECTION 8. INCOME TAX WITHHOLDING
In order to comply with all applicable national, federal, state or local
income tax laws or regulations, the Company may take such action as it deems
appropriate to ensure that all applicable national, federal, state or local
payroll, withholding, income or other taxes, which are the sole and absolute
responsibility of a Participant, are withheld or collected from such
Participant. In order to assist a Participant in paying all or a portion of the
national, federal, state and local taxes to be withheld or collected upon
exercise or receipt of (or the lapse of restrictions relating to) an Award, the
Committee, in its discretion and subject to such additional terms and conditions
as it may adopt, may permit the Participant to satisfy such tax obligation by
(i) electing to have the Company withhold a portion of the Shares otherwise to
be delivered upon exercise or receipt of (or the lapse of restrictions relating
to) such Award with a Fair Market Value equal to the amount of such taxes or
(ii) delivering to the Company Shares other than Shares issuable upon exercise
or receipt of (or the lapse of restrictions relating to) such Award with a Fair
Market Value equal to the amount of such taxes. The election, if any, must be
made on or before the date that the amount of tax to be withheld is determined.
SECTION 9. GENERAL PROVISIONS
A. NO RIGHTS TO AWARDS. No Eligible Person, Participant or other Person
shall have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Eligible Persons, Participants or
holders or beneficiaries of Awards under the Plan. The terms and conditions of
Awards need not be the same with respect to any Participant or with respect to
different Participants.
B. PLAN PROVISIONS CONTROL. In the event that any provision of an Award
Agreement conflicts with or is inconsistent in any respect with the terms of the
Plan as set forth herein or subsequently amended, the terms of the Plan shall
control.
C. NO RIGHTS OF SHAREHOLDERS. Except with respect to Shares of Restricted
Stock as to which the Participant has been granted the right to vote, neither a
Participant nor the Participant's legal representative shall be, or have any of
the rights and privileges of, a stockholder of the Company with respect to any
Shares issuable to such Participant upon the exercise or payment of any Award,
in whole or in part, unless and until such Shares have been issued in the name
of such Participant or such Participant's legal representative without
restrictions thereto.
D. NO LIMIT ON OTHER COMPENSATION ARRANGEMENTS. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or continuing in
effect other or additional compensation arrangements, and such arrangements may
be either generally applicable or applicable only in specific cases.
E. NO RIGHT TO EMPLOYMENT. The grant of an Award shall not be construed as
giving a Participant the right to be retained in the employ of the Company or
any Affiliate, nor will it affect in any way the right of the Company or an
Affiliate to terminate such employment at any time, with or without cause. In
9
addition, the Company or an Affiliate may at any time dismiss a Participant from
employment free from any liability or any claim under the Plan or any Award,
unless otherwise expressly provided in the Plan or in any Award Agreement.
Nothing in this Plan shall confer on any person any legal or equitable right
against the Company or any Affiliate, directly or indirectly, or give rise to
any cause of action at law or in equity against the Company or an Affiliate. The
Awards granted hereunder shall not form any part of the wages or salary of any
Eligible Person for purposes of severance pay or termination indemnities,
irrespective of the reason for termination of employment. Under no circumstances
shall any person ceasing to be an employee of the Company or any Affiliate be
entitled to any compensation for any loss of any right or benefit under the Plan
which such employee might otherwise have enjoyed but for termination of
employment, whether such compensation is claimed by way of damages for wrongful
or unfair dismissal, breach of contract or otherwise. By participating in the
Plan, each Participant shall be deemed to have accepted all the conditions of
the Plan and the terms and conditions of any rules and regulations adopted by
the Committee and shall be fully bound thereby.
F. GOVERNING LAW. The validity, construction and effect of the Plan or any
Award, and any rules and regulations relating to the Plan or any Award, shall be
determined in accordance with the internal laws, and not the law of conflicts,
of the State of Delaware.
G. SEVERABILITY. If any provision of the Plan or any Award is or becomes or
is deemed to be invalid, illegal or unenforceable in any jurisdiction or would
disqualify the Plan or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be so construed or deemed amended without, in
the determination of the Committee, materially altering the purpose or intent of
the Plan or the Award, such provision shall be stricken as to such jurisdiction
or Award, and the remainder of the Plan or any such Award shall remain in full
force and effect.
H. NO TRUST OR FUND CREATED. Neither the Plan nor any Award shall create or
be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant or any other
Person. To the extent that any Person acquires a right to receive payments from
the Company or any Affiliate pursuant to an Award, such right shall be no
greater than the right of any unsecured general creditor of the Company or any
Affiliate.
I. OTHER BENEFITS. No compensation or benefit awarded to or realized by any
Participant under the Plan shall be included for the purpose of computing such
Participant's compensation under any compensation-based retirement, disability,
or similar plan of the Company unless required by law or otherwise provided by
such other plan.
J. NO FRACTIONAL SHARES. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award, and the Committee shall determine whether
cash shall be paid in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be canceled, terminated or otherwise
eliminated.
K. HEADINGS. Headings are given to the Sections and subsections of the Plan
solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
SECTION 10. EFFECTIVE DATE OF THE PLAN.
The Plan shall be effective on December 4, 2001 subject to approval by the
shareholders of the Company on such date.
SECTION 11. TERM OF THE PLAN.
No Award shall be granted under the Plan ten years after the effective date
or any earlier date of discontinuation or termination established pursuant to
Section 7A of the Plan. However, unless otherwise expressly provided in the Plan
10
or in an applicable Award Agreement, any Award theretofore granted may extend
beyond such date, and the authority of the Committee provided for hereunder with
respect to the Plan and any Awards, and the authority of the Board to amend the
Plan, shall extend beyond the termination of the Plan.
11
ENZON PHARMACEUTICALS FOR IMMEDIATE RELEASE
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PRESS RELEASE
Contact: Craig Tooman
EVP, Finance and
Chief Financial
Officer
908-541-8777
ENZON STOCKHOLDERS APPROVE
COMPANY PROPOSALS AT ANNUAL MEETING
Bridgewater, NJ - May 18, 2006 - Enzon Pharmaceuticals, Inc. (Nasdaq: ENZN) held
its annual stockholders meeting today in Indianapolis, IN. At the meeting, the
Company's stockholders voted to approve several key issues proposed by Enzon,
including:
o Re-electing Philip Renfro to its Board of Directors;
o Approving the amendment of Enzon's 2001 Incentive Stock Plan to increase
the number of shares of common stock issuable thereunder by an additional
4,000,000 shares;
o Approving the amendment and restatement of Enzon's certificate of
incorporation to increase the number of authorized shares of common stock
from 90,000,000 to 170,000,000 shares;
o And ratifying the appointment of KPMG LLP as Enzon's independent registered
public accounting firm for 2006.
ABOUT ENZON
Enzon Pharmaceuticals, Inc. is a biopharmaceutical company dedicated to the
development and commercialization of therapeutics to treat patients with cancer
and adjacent diseases. Enzon's specialized sales force markets ABELCET(R),
ONCASPAR(R), ADAGEN(R), and DEPOCYT(R) in the United States. In addition, Enzon
also receives royalties on sales of PEG-INTRON(R), marketed by Schering-Plough
Corporation, and MACUGEN(R), marketed by OSI Pharmaceuticals and Pfizer Inc.
Enzon's product-driven strategy includes an extensive drug development program
that leverages its proprietary technologies, including a Customized Linker
TechnologyTM PEGylation platform that utilizes customized linkers designed to
release compounds at a controlled rate. Enzon also utilizes contract
manufacturing opportunities to broaden its revenue base and enhance its
organizational productivity. Enzon complements its internal research and
development efforts with strategic initiatives, such as partnerships designed to
broaden its revenue base or provide access to promising new technologies or
product development opportunities. Further information about Enzon and this
press release can be found on the Company's web site at www.enzon.com.
FORWARD LOOKING STATEMENTS
There are forward-looking statements contained herein, which can be identified
by the use of forward-looking terminology such as the words "believes,"
"expects," "may," "will," "should", "potential," "anticipates," "plans" or
"intends" and similar expressions. Such forward-looking statements involve known
and unknown risks, uncertainties and other factors that may cause actual
results, events or developments to be materially different from the future
results, events or developments indicated in such forward-looking statements.
Among the factors that could cause actual results, events or developments to
differ materially are decisions by regulatory authorities regarding whether and
when to approve our regulatory applications as well as their decisions regarding
labeling and other matters that could affect the commercial potential of Enzon's
products. A more detailed discussion of these and other factors that could
affect results is contained in our filings with the U.S. Securities and Exchange
Commission, including our transition report on Form 10-K for the six-month
period ended December 31, 2005. These factors should be considered carefully and
readers are cautioned not to place undue reliance on such forward-looking
statements. No assurance can be given that the future results covered by the
forward-looking statements will be achieved. All information in this press
release is as of the date of this press release and Enzon undertakes no duty to
update this information.
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685 Route 202/206
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Phone: (908) 541-8600 Fax: S(908) 575-9457
http://www.enzon.com