As filed with the Securities and Exchange Commission
on December 17, 1996
Registration No. 33-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENZON, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-2372868
-------- ----------
(State or other juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
20 Kingsbridge Road, Piscataway, New Jersey 08854
-------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Independent Directors' Stock Plan
Non-Qualified Stock Option Plan, as amended
-------------------------------------------
(Full title of the plan)
John Caruso, Esq.
-----------------
Vice-President, Business Development, General Counsel
and Secretary
Enzon, Inc.
20 Kingsbridge Road
Piscataway, New Jersey 08854
copies to:
Kevin T. Collins, Esq.
Ross & Hardies
65 East 55th Avenue
New York, New York 10022
(212) 421-5555
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Proposed
Amount of Maximum Proposed
Title of Each Class of Shares to be Offering Aggregate Amount of
Securities to be Registered Price Per Offering Registration
Registered Share Price(1) Fee
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock $.01 par 2,271,578 $2.375 $5,394,998 $1,635
value per Share
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock $.01 par 1,168,422 $3.17 $3,703,898 $1,123
value per Share
- -----------------------------------------------------------------------------------------------------------------------------------
Totals 3,440,000 $9,098,896 $2,758
==================================================================================================================================
(1) Solely for the purpose of calculating the registration fee, the Proposed
Aggregate Offering Price has been estimated in accordance with Rule 457(h).
Accordingly, the price per share of Common Stock subject to an outstanding
option is equal to $3.17, which is the average exercise price of the
outstanding options, and the price per share of Common Stock not subject to
an outstanding option is equal to $2.375, which is based on the average of
the high and low prices for a share of Common Stock as reported by the
NASDAQ National Market on December 11, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The Registrant hereby incorporates herein by reference the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) its Annual Report on Form 10-K for the Fiscal Year Ended June 30,
1996, which contains certified financial statements for the Registrant's latest
fiscal year for which a Form 10-K was required to have been filed;
(b) all other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since June
30, 1996, including but not limited to Quarterly Reports on Form 10-Q for the
Quarter Ended September 30, 1996 and the Current Reports on Form 8-K filed with
the Commission on July 22, 1996 and November 4, 1996; and
(c) the description of the Company's Common Stock, $.01 par value, as
contained in its Registration Statement on Form 8-A, filed with the Commission
on October 29, 1984, as amended by a Form 8 filed with the Commission on October
15, 1990.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
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 a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
- ------- --------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
- ------- ---------------------------------------
Not Applicable.
Item 6. Indemnification of Officers and Directors.
- ------- ------------------------------------------
Subsection (a) of Section 145 of the General Corporation Law of
Delaware 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 is or was a director, officer, employee or agent
II-1
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he 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 conduct was unlawful.
Subsection (b) of Section 145 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 he 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, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall 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 Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all of the circumstances of the
case, which person is fairly and reasonably entitled to indemnify for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that the indemnification provided by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the scope of indemnification extends to directors, officers,
employees, or agents of a constituent corporation absorbed in a consolidation or
merger and persons serving in that capacity at the request of the constituent
corporation for another. Section 145 also empowers the corporation to purchase
and maintain insurance on behalf of a director or officer of the corporation
against any liability asserted against him or incurred by him in any such
capacity or arising out of his status as such whether or not the corporation
would have the power to indemnify him against such liabilities under Section
145.
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Article 8 of the registrant's By-laws specifies that the registrant
shall indemnify its directors and officers to the full extent permitted by the
General Corporation Law of Delaware. This provision of the By-laws is deemed to
be a contract between the registrant and each director and officer who serves in
such capacity at any time while such provision and the relevant provisions of
the General Corporation Law of Delaware are in effect, and any repeal or
modification thereof shall not offset any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought or threatened in whole or
in part upon any such state of facts.
Section 102(b)(7) of the Delaware General Corporation Law 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. This Section does not, however, limit the liability of a director
for breaching his duty of loyalty, failing to act in good faith, engaging in
intentional misconduct or knowingly violating a law, or from any transaction in
which the director derived an improper personal benefit. This Section also will
have no effect on claims arising under the federal securities laws. The
registrant's certificate of incorporation limits the liability of its directors
as authorized by Section 102(b)(7).
On January 5, 1988, the registrant's Board of Directors approved, and
on January 12, 1988, the stockholders ratified, Indemnity Agreements with the
then current directors and executive officers of the registrant and approved
future Indemnity Agreements with directors, officers, employees and agents of
the registrant. All current officers and directors of the registrant now have
such agreements. The Indemnity Agreements provide to the current directors and
officers, and will provide to future directors, officers, employees and agents
of the registrant who may be provided Indemnity Agreements, substantially
broader indemnity rights than are provided currently to the directors, officers,
employees and agents of the registrant under the registrant's Bylaws and the
General Corporation Law of Delaware.
The Indemnity Agreements provide for indemnification of directors,
officers, employees or agents for liabilities arising out of claims against such
persons acting as directors, officers, employees or agents of the registrant (or
any entity controlling, controlled by or under common control with the
registrant) due to any actual or alleged breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done, or suffered or
wrongfully attempted by such directors, officers, employees and agents, except
as prohibited by law. The Indemnity Agreements also provide for the advancement
of costs and expenses, including attorneys' fees, incurred by directors,
officers, employees and agents in defending or investigating any action, suit,
proceeding
II-3
or claim, subject to an undertaking by the indemnified person to repay such
amounts if it is ultimately determined that such person is not entitled to
indemnification under such Agreement. The Indemnity Agreements cover future acts
and omissions of directors, officers, employees and agents for which actions may
be brought. The registrant has been advised by its counsel that the Indemnity
Agreements may also cover acts and omissions of directors, officers, employees
and agents which occurred prior to the execution of the Indemnity Agreements for
which actions may be brought, although there can be no assurance that, if
challenged, such retroactive indemnification will be upheld under Delaware law.
Thus, any recovery for past acts may be illegal and unenforceable. The foregoing
provisions of the Indemnity Agreements are consistent with Article 8 of the
registrant's By-laws and the registrant's policy to indemnify directors and
officers to the fullest extent permitted by law.
The Indemnity Agreements also provide that directors, officers,
employees and agents are entitled to indemnification against all expenses
(including attorneys' fees) incurred in seeking to collect an indemnity claim or
to obtain advancement of expenses from the registrant.
The rights of directors, officers, employees and agents under the
Indemnity Agreements are not exclusive of any other rights directors, officers,
employees and agents may have under Delaware law, any liability insurance
policies that may be obtained, the registrant's By-laws or otherwise. The
registrant currently carries liability insurance for the benefit of its
directors and officers which provides coverage for many of the same matters
covered by the Indemnity Agreements. The total coverage under the insurance
policy is $10,000,000. The Indemnity Agreements will not provide indemnification
to the extent that any claims are paid by insurance or through any source of
indemnification other than the Indemnity Agreements. Moreover, the registrant
would not be required to indemnify a director, officer, employee or agent for
any claim based upon the director, officer, employee or agent gaining, in fact,
a personal profit or advantage to which he or she was not legally entitled, any
claim for accounting of profits made in connection with a violation of Section
16(b) of the Securities Exchange Act of 1934 or a similar state or common law
provision or any claim brought about or contributed to by the dishonesty of the
director, officer, employee or agent. The registrant would be required to
indemnify a director, officer, employee and agent against a claim alleging
improper personal profit or advantage, or dishonesty, unless a final judgment of
a court of competent jurisdiction established that such person gained in fact an
improper personal profit or advantage or committed acts of active and deliberate
dishonesty with an actual dishonest purpose and intent and such acts were
material to the adjudicated proceedings. The Indemnity Agreements provide that
if the registrant pays a director, officer, employee or agent pursuant to such
Agreement,
II-4
the registrant will be subrogated to the indemnified person's right to recover
from third parties.
Item 7. Exemption from Registration Claimed.
- ------- ------------------------------------
Not applicable.
Item 8. Exhibits.
- ------- ---------
Exhibit
Number Description
- ------ -----------
5.1 - Opinion of Ross & Hardies.
23.1 - Consent of KPMG Peat Marwick LLP.
23.2 - Consent of Ross & Hardies (contained in opinion filed as
Exhibit 5.1).
24.1 - Powers of Attorney.*
- -----------------------
*Powers of Attorney are contained in signatures.
Item 9. Undertakings.
- ------- -------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this 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 the 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.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
II-5
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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) That for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) That, insofar as indemnification for liabilities arising
under the Securities Act of 1933 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 Securities
and Exchange Commission such indemnification is against public policy as
expressed in the 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 the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-6
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Piscataway, State of New Jersey, on this 13th
day of December, 1996.
ENZON, INC.
By: /S/ PETER G. TOMBROS
Peter G. Tombros
President, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Peter G. Tombros and Kenneth J.
Zuerblis, his true and lawful attorneys-in-fact and agents, each acting alone,
with full powers of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this Registration Statement and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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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 Capacity Date
--------- -------- ----
/S/ PETER G. TOMBROS President, Chief December 13, 1996
Peter G. Tombros Executive Officer and
Director (Principal
Executive Officer)
/S/ KENNETH J. ZUERBLIS Vice President, December 13, 1996
Kenneth J. Zuerblis Finance and Chief
Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
/S/ RANDY H.THURMAN Chairman of the Board December 13, 1996
Randy H. Thurman of Directors
/S/ ROBERT LEBUHN Director December 13, 1996
Robert LeBuhn
/S/ A.M. MACKINNON Director December 13, 1996
A.M. "Don" Mackinnon
Director December __, 1996
Rosina B. Dixon
II-8
Registration No. 33-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS FILED WITH
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENZON, INC.
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ENZON, INC.
EXHIBIT INDEX
Location
of
Document
in
Sequential
Numbering
Exhibit No. Description System
- ----------- ----------- ------
5.1 Opinion of Ross & Hardies E-1
23.1 Consent of KPMG Peat Marwick LLP E-2
EXHIBIT 5.1
December 13, 1996
Enzon, Inc.
20 Kingsbridge Road
Piscataway, New Jersey 08854
Ladies and Gentlemen:
You have requested our opinion with respect to the
registration by Enzon, Inc., a Delaware corporation (the "Company") pursuant to
a Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), of an aggregate of 3,440,000
shares of the Company's common stock, $.01 par value per share (the "Common
Stock" or "Common Shares"). Of such 3,440,000 shares (i) 240,000 may be issued
to members of the Board of Directors who are not officers and/or employees of
the Company pursuant to the Independent Directors' Stock Plan, and (ii)
3,200,000 are issuable upon exercise of options (the "Options") to purchase
shares of Common Stock which have been or may be granted to employees, officers,
directors or consultants of the Company pursuant to the Company's Non-Qualified
Stock Option Plan, as amended (collectively, the "Plans").
In so acting, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of such documents, corporate
records, certificates of public officials and other instruments and have
conducted such other investigations of fact and law as we have deemed relevant
and necessary to form a basis for the opinions hereinafter expressed. In
conducting such examination, we have assumed (i) that all signatures are
genuine, (ii) that all documents and instruments submitted to us as copies
conform with the originals, and (iii) the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof. As to any facts material to this opinion, we have relied
upon statements and representations of officers and other representatives of the
Company and certificates of public officials and have not independently verified
such facts.
Enzon, Inc.
December 13, 1996
Page Two
Based upon the foregoing, it is our opinion that the Common
Shares issuable under, or issuable upon exercise of the Options issued or
issuable under the Plans will be validly issued, fully paid and non-assessable
when issued in accordance with the Plans.
We express no opinion as to the laws of any jurisdiction other
than the State of New York, the United States of America, and, solely with
respect to matters of corporate organization and authority, the General
Corporation Law of the State of Delaware. We are not admitted to the practice of
law in the State of Delaware. Insofar as the foregoing opinion relates to
matters that would be controlled by the substantive laws of any jurisdiction
other than the United States of America, the General Corporation Law of the
State of Delaware with respect to matters of corporate organization and
authority, or the State of New York, we have assumed, that the substantive laws
of such jurisdiction conform in all respects to the internal laws of the State
of New York.
We hereby consent to the reference to our firm in the
Registration Statement relating to the registration of the Common Shares and the
Common Shares issuable upon exercise of Options which have been or may be
granted under the Plans.
Very truly yours,
/S/ ROSS & HARDIES
Ross & Hardies
EXHIBIT 23.1
Accountants' Consent
The Board of Directors
Enzon, Inc.:
We consent to the use of our report incorporated herein by reference.
/S/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
New York, New York
December 13, 1996
