UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(AMENDMENT NO. 1)
| x |
ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 |
For the Fiscal Year Ended December 31, 2019
OR
| ¨ |
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 |
For the transition period from ___ to ___
Commission file number: 0-12957
Enzon Pharmaceuticals,
Inc.
(Exact name of registrant as specified in its charter)
| Delaware |
|
22-2372868 |
| (State
or other jurisdiction of incorporation or organization) |
|
(I.R.S.
Employer Identification No.) |
| |
|
|
| 20
Commerce Drive (Suite 135), Cranford, New Jersey |
|
07016 |
| (Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s telephone number, including area code: (732)
980-4500
Securities registered pursuant to Section 12(b) of the Act:
None
Securities
registered pursuant to Section 12(g) of the Act: Common
Stock, $0.01 par value
Indicate
by check mark if the registrant is a well-known seasoned issuer, as
defined in Rule 405 of the Securities Act.
¨ Yes x No
Indicate
by check mark if the registrant is not required to file reports
pursuant to Section 13 or Section 15(d) of the
Exchange Act.
¨ Yes x No
Indicate
by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Exchange Act of
1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90
days.
x Yes ¨ No
Indicate
by check mark whether the registrant has submitted electronically
and posted on its corporate Web site, if any, every Interactive
Data File required to be submitted and posted pursuant to Rule 405
of Regulation S-T during the preceding 12 months (or for such
shorter period that the registrant was required to submit and post
such files).
x Yes ¨ No
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule
12b-2 of the Exchange Act.
| Large
accelerated filer ¨ |
|
Accelerated
filer ¨ |
| |
|
|
| Non-accelerated
filer x |
|
Smaller
reporting company x |
| |
|
|
| |
|
Emerging
growth company ¨ |
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act. ¨
Indicate
by check mark whether the registrant is a shell company (as defined
in Rule 12b-2 of the Act).
¨ Yes x No
The aggregate market value of the Common Stock, $0.01 par value per
share (“Common Stock”), held by non-affiliates of the registrant
was approximately $11,937,942 as of June 28, 2019, based upon the
closing sale price quoted on the OTCQX market of the OTC Markets
Group, Inc. of $0.27 per share reported for such date. Shares of
Common Stock held by each executive officer and director of the
registrant as of June 28, 2019 have been excluded in that such
shares may be deemed to be owned by affiliates. This determination
of affiliate status is not necessarily a conclusive determination
for other purposes.
There were 44,214,603 shares of Common Stock issued and outstanding
as of February 7, 2020.
DOCUMENTS INCORPORATED BY REFERENCE
None.
EXPLANATORY NOTE
Enzon Pharmaceuticals, Inc. (together with its subsidiaries, the
“Company”) is filing this Amendment No. 1 on Form 10-K/A (this
“Form 10-K/A”) to its original Annual Report on Form 10-K for the
fiscal year ended December 31, 2019 filed with the U.S. Securities
and Exchange Commission (the “SEC”) on February 19, 2020 (the
“Original 2019 Form 10-K”) for the sole purpose of including the
information required by Part III of Form 10-K. Except for Part III
of the Original 2019 Form 10-K, no other information included in
the Original 2019 Form 10-K has been amended by this Form 10-K/A.
This Form 10-K/A also includes the certifications required under
Section 302 of the Sarbanes-Oxley Act of 2002 as Exhibits 31.1 and
31.2 to this Form 10-K/A. Because no financial statements are
contained within this Form 10-K/A, this Form 10-K/A does not
include certifications pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002 as exhibits to this Form 10-K/A.
This Form 10-K/A does not amend, update or change any other items
or disclosure in the Original 2019 Form 10-K or, except with
respect to the beneficial ownership information provided in Part
III under the heading “Security Ownership of Certain Beneficial
Owners and Management,” reflect events that occurred after the date
of the Original 2019 Form 10-K. Therefore, this Form 10-K/A should
be read in conjunction with the Original 2019 Form 10-K and the
Company’s other filings made with the SEC subsequent to the filing
of the Original 2019 Form 10-K.
Unless the context requires otherwise, references in this Form
10-K/A to “Enzon,” the “Company,” “we,” “us,” or “our” and similar
terms mean Enzon Pharmaceuticals, Inc. and its subsidiaries.
PART III.
Item 10. Directors, Executive Officers and Corporate
Governance.
DIRECTORS
Set forth below is certain biographical information regarding our
current directors.
Jonathan
Christodoro (age 44) – Mr. Christodoro has been a
director of our Company since October 2013 and the Chairman of our
Board of Directors since November 2013. Mr. Christodoro is a
Partner at Patriot Management LP, an investment management firm.
Mr. Christodoro served as a Managing Director of Icahn Capital LP,
the entity through which Carl C. Icahn manages investment funds,
from July 2012 to February 2017. Mr. Christodoro was responsible
for identifying, analyzing and monitoring investment opportunities
and portfolio companies for Icahn Capital. Prior to joining Icahn
Capital, Mr. Christodoro served in various investment and research
roles at P2 Capital Partners, LLC, Prentice Capital Management, LP
and S.A.C. Capital Advisors, LP. Mr. Christodoro began his career
as an investment banking analyst at Morgan Stanley, where he
focused on merger and acquisition transactions across a variety of
industries. Mr. Christodoro has been a director of: PayPal
Holdings, Inc., a technology platform company that enables digital
and mobile payments worldwide, since July 2015; Herbalife Nutrition
Ltd., a developer and seller of nutrition solutions since March
2013; Lyft, Inc., a mobile ride-sharing application from May 2015
to March 2019; Xerox Corporation, a provider of document management
solutions, from June 2016 to December 2017 and since May 2019;
Cheniere Energy, Inc., a developer of natural gas liquification and
export facilities and related pipelines, from August 2015 until
August 2017; Hologic, Inc., a supplier of diagnostic, medical
imaging and surgical products, from December 2013 to March 2016;
eBay Inc., a global commerce and payments company, from March 2015
to July 2015; Talisman Energy, Inc., an independent oil and gas
exploration and production company, from December 2013 to May 2015;
American Railcar Industries, Inc., a railcar manufacturing company,
from June 2015 to February 2017; and Sandridge Energy, an oil and
gas exploration and natural gas exploration company, since June
2019. American Railcar Industries, Inc. is indirectly controlled by
Carl C. Icahn. Mr. Icahn has or previously had non-controlling
interests in each of Xerox, Cheniere, PayPal, eBay, Lyft, Hologic,
Talisman, Enzon and Herbalife through the ownership of securities.
Mr. Christodoro received an M.B.A. from the University of
Pennsylvania’s Wharton School of Business with Distinction,
majoring in Finance and Entrepreneurial Management. Mr. Christodoro
received a B.S. in Applied Economics and Management Magna Cum Laude
with Honors Distinction in Research from Cornell University. Mr.
Christodoro also served in the United States Marine Corps. Mr.
Christodoro’s qualifications to serve as a director of our Company
include his service on boards of other public companies, as well as
his extensive investment, research and investment banking
experience in a variety of industries.
Odysseas
Kostas, M.D. (age 45) – Dr. Kostas has been a director
of our Company since September 2013. Dr. Kostas is a Partner and
Senior Managing Director at Sarissa Capital Management LP. Sarissa
Capital focuses on improving the strategies of companies to enhance
shareholder value. Prior to joining Sarissa Capital, Dr. Kostas
served as a Director at Evercore ISI (formerly ISI), covering the
biotechnology and pharmaceutical industries. Previously, Dr. Kostas
practiced internal medicine as part of the Yale New Haven Health
System and was engaged as a consultant to various biotechnology
companies. Dr. Kostas has been a director of Armata
Pharmaceuticals, a clinical-stage biotechnology company, since
February 2018 and a director of Innoviva, Inc., a biopharmaceutical
company, since December 2017. Dr. Kostas has a B.S. from
Massachusetts Institute of Technology (MIT) and an M.D. from
University of Texas Southwestern Medical School. Dr. Kostas’
qualifications to serve as a director of our Company include his
service on the board of another public company, as well as his
extensive experience in the biotechnology and pharmaceutical
industries.
Jennifer
McNealey (age 46) – Ms. McNealey has been a director of
our Company since September 2013. Since December 2016, Ms. McNealey
has been Vice President, Investor Relations and Strategy of
Calithera Biosciences, Inc. From February 2015 to December 2016,
Ms. McNealey was Senior Director Investor Relations and served as a
member of the management team at Calithera Biosciences, Inc. Prior
to joining Calithera Biosciences, Inc., Ms. McNealey served as an
advisor to biotechnology companies. In 2005, Ms. McNealey founded
Laurient LLC, a research company focused on the biotechnology and
pharmaceutical industries, where she worked until 2012. Prior to
founding Laurient LLC, Ms. McNealey served as a portfolio manager
and biotechnology analyst at various firms, including Paramount
Capital, Franklin Templeton, Amerindo Investment Advisors and
Morgan Stanley Dean Witter Advisors. Ms. McNealey has a B.A. and an
M.H.A. from Cornell University. Ms. McNealey’s qualifications to
serve as a director of our Company include her service as a member
of the management team of another public company, as well as her
extensive experience in the biotechnology and pharmaceutical
industries.
EXECUTIVE OFFICERS
Set forth below is certain biographical information regarding our
current executive officers.
Andrew
Rackear (age 66) – Mr. Rackear has served as our Chief
Executive Officer and Secretary since March 2016. Prior to that,
since November 2013, Mr. Rackear provided consulting services to
the Company. Mr. Rackear previously served as the Company’s Vice
President and General Counsel from April 2010 to November 2013.
Prior to that, Mr. Rackear served as Senior Vice President and
General Counsel for NPS Pharmaceuticals, and Vice President and
General Counsel for Chugai Pharma USA and Amersham Biosciences
Corp, where he also served as President of North American
Operations. Prior to that, Mr. Rackear engaged in litigation and
commercial law practice at Marks & Murase and served as
Associate General Counsel at Sharp Electronics Corp. Mr. Rackear
holds a J.D. from New York University School of Law.
Mr. Rackear currently serves as our Chief Executive Officer and
Secretary on a consulting basis at a rate of $325 per hour for each
hour worked, together with reimbursement for reasonable expenses
incurred in performing his services, pursuant to the terms of a
separation agreement, as amended.
Richard
L. Feinstein (age 76) – Mr. Feinstein has served as our
Vice President-Finance and Chief Financial Officer since March
2016. Prior to that, Mr. Feinstein served as our Vice President -
Finance and Principal Financial Officer since December 2013. Mr.
Feinstein is a retired partner of KPMG LLP and currently a private
consultant providing management and financial advice to clients in
a variety of industries. From 2015 to 2019, he provided financial
consulting services to General Cannabis Corp, a public company.
During July 2016, he provided consulting services to Hamaspik, Inc.
From September 2010 to July 2013, as a consultant, he was the Chief
Financial Officer of Ameritrans Capital Corporation. From April
2004 to December 2004, Mr. Feinstein, as a consultant, served as
Chief Financial Officer for Image Technology Laboratories, Inc., a
developer and provider of radiological imaging, archiving and
communications systems. From December 1997 to October 2002, Mr.
Feinstein was a Senior Vice-President and Chief Financial Officer
for The Major Automotive Companies, Inc., formerly a diversified
holding company, but now engaged solely in retail automotive
dealership operations. Mr. Feinstein has served on boards of both
publicly-held and not-for-profit enterprises. Mr. Feinstein
previously served as a board member and chair of the audit
committee of MKTG, Inc.; a board member and chief financial officer
of the not-for-profit USA Fitness Corps; a board member and chair
of the audit committee of EDGAR Online, Inc., a board member and
chair of the finance committee of the New York Road Runners and a
member of the executive committee of the Association for a Better
New York. Mr. Feinstein, a certified public accountant, received a
BBA degree from Pace University. Mr. Feinstein also served in the
United States Marine Corps.
Mr. Feinstein currently serves as our Vice President-Finance and
Chief Financial Officer on a consulting basis at a rate of $325 per
hour for each hour worked, together with reimbursement for
reasonable expenses incurred in performing his services, pursuant
to the terms of an independent contractor agreement, as
amended.
There are no family relationships among any of our directors or
executive officers.
CORPORATE GOVERNANCE
Director Independence
Although our common stock is no longer listed on The Nasdaq Stock
Market (“Nasdaq”), our Board of Directors (our “Board”) continues
to use the definition of independence set forth in the listing
standards of Nasdaq in evaluating the independence of our
directors. Our Board has determined that each current member of our
Board is independent as defined by the listing standards of
Nasdaq.
Meetings and Attendance
Our Board held six meetings during fiscal year 2019. Each director
attended at least 75% of the total number of meetings held during
fiscal year 2019 by our Board and committees of our Board of which
such director was a member.
Board Leadership Structure
Our Board is led by a Chairperson appointed by our Board annually.
The Chairperson leads our Board in its role of providing advice to,
and overseeing the performance of, our Chief Executive Officer. Mr.
Christodoro currently serves as the Chairman of the Board, and Mr.
Rackear currently serves as our Chief Executive Officer. Our Board
does not have a formal policy with respect to the separation of the
positions of Chairperson and Chief Executive Officer. However, our
Board believes that separating these positions allows the Chief
Executive Officer to focus on day-to-day operations, while allowing
the Chairperson to lead our Board in its primary role of review and
oversight of management.
Communications with Directors
Stockholders may communicate directly with our directors. All
communications should be sent in care of our Secretary at our
address and should prominently indicate on the outside of the
envelope that it is intended for our Board or for a specific
director. If no director is specified, the communication will be
forwarded to the entire Board.
Standing Committees of our Board
Finance and Audit Committee
All three current members of our Board currently constitute the
Finance and Audit Committee. Accordingly, our entire Board
currently acts as the Finance and Audit Committee. When our Board
acts as the Finance and Audit Committee, Mr. Christodoro acts as
the Chairman of the Finance and Audit Committee. Our Board acting
as the Finance and Audit Committee held four meetings during fiscal
year 2019.
In evaluating the composition of our Board when acting as the
Finance and Audit Committee, our Board has determined that
each current member of our Board is independent as defined by the
listing standards of Nasdaq and Rule 10A-3 under the
Securities Exchange Act of 1934. Our Board has determined that Mr.
Christodoro satisfies the definition of “audit committee financial
expert” within the meaning of Item 407(d)(5) of Regulation
S-K.
The primary purpose of the Finance and Audit Committee is to
monitor the integrity of our Company’s financial reporting process
and financial statements, the systems of internal controls and
controls over financial reporting, our Company’s compliance with
legal and regulatory requirements, and the performance and
independence of our Company’s independent registered public
accounting firm. The Finance and Audit Committee is responsible for
discussing with management the adequacy of our Company’s internal
controls and the financial reporting process. The Finance and Audit
Committee also is responsible for discussing these matters with our
Company’s independent registered public accounting firm. In
addition, the Finance and Audit Committee is responsible for
reviewing our financial statements and discussing them with
management and our Company’s independent registered public
accounting firm before those financial statements are filed with
the SEC. The charter of the Finance and Audit Committee may be
found on our website at www.enzon.com.
Compensation Committee
All three current members of our Board currently constitute the
Compensation Committee. Accordingly, our entire Board currently
acts as the Compensation Committee. When our Board acts as the
Compensation Committee, Ms. McNealey acts as the Chairwoman of the
Compensation Committee. Our Board acting as the Compensation
Committee held three meetings during fiscal year 2019.
In evaluating the composition of our Board when acting as the
Compensation Committee, our Board has determined that each current
member of our Board is independent as defined by the listing
standards of Nasdaq.
The primary duties and responsibilities of the Compensation
Committee are to oversee our overall compensation structure,
policies and programs, and assess whether our compensation
structure establishes appropriate incentives for management.
The Compensation Committee has the authority to retain, at our
expense, such outside counsel, experts and other advisors as it
determines appropriate to assist it in the performance of its
functions, including the sole authority to retain and terminate any
compensation consultant and to approve the consultant’s fees and
other retention terms.
The charter of the Compensation Committee may be found on our
website at www.enzon.com.
Governance and Nominating Committee
All three current members of our Board currently constitute the
Governance and Nominating Committee. Accordingly, our entire Board
currently acts as the Governance and Nominating Committee. When our
Board acts as the Governance and Nominating Committee, Dr. Kostas
acts as the Chairman of the Governance and Nominating Committee.
Our Board acting as the Governance and Nominating Committee held
four meetings during fiscal year 2019.
In evaluating the composition of our Board when acting as the
Governance and Nominating Committee, our Board has determined that
each current member of our Board is independent as defined by the
listing standards of Nasdaq.
The Governance and Nominating Committee is responsible for
reviewing and setting corporate governance policy and is
responsible for making recommendations on organization and
procedures, performance evaluation of our Board and individual
directors, and nomination of directors. The Governance and
Nominating Committee’s Charter may be found on our website at
www.enzon.com.
Code of Conduct
Our Board has adopted a Code of Conduct that is applicable to all
of our directors and executive officers. Any material changes made
to the Code of Conduct or any waivers granted to any of our
directors and executive officers will be publicly disclosed on our
website at www.enzon.com within four business days of such material
change or waiver. A copy of our Code of Conduct is available on the
Corporate Governance page of our website at www.enzon.com.
Item 11. Executive Compensation.
Named Executive Officers
The following individuals were our named executive officers for
fiscal year 2019, whom we refer to in this Form 10-K/A as our named
executive officers:
Andrew
Rackear – Mr. Rackear currently serves as our Chief
Executive Officer and Secretary. During fiscal year 2019, Mr.
Rackear served as our Chief Executive Officer and Secretary on a
consulting basis at a rate of $300 per hour for each hour worked,
together with reimbursement for reasonable expenses incurred in
performing his services, pursuant to the terms of a separation
agreement, as amended.
Richard
L. Feinstein – Mr. Feinstein currently serves as our
Vice President - Finance and Chief Financial Officer. During fiscal
year 2019, Mr. Feinstein served as our Vice President-Finance and
Chief Financial Officer on a consulting basis at a rate of $300 per
hour for each hour worked, together with reimbursement for
reasonable expenses incurred in performing his services, pursuant
to the terms of an independent contractor agreement, as
amended.
Historical Compensation of our Named Executive
Officers
The following table sets forth information concerning compensation
earned for services rendered to us by our named executive officers
for fiscal year 2019 and fiscal year 2018.
Summary Compensation Table
|
Name and Principal Position |
|
Year |
|
|
Bonus
($) |
|
|
All Other
Compensation
($)(1)
|
|
|
Total ($) |
|
|
Andrew Rackear |
|
|
2019 |
|
|
|
0 |
|
|
|
173,513 |
|
|
|
173,513 |
|
|
Chief Executive Officer and Secretary |
|
|
2018 |
|
|
|
0 |
|
|
|
161,796 |
|
|
|
161,796 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard L. Feinstein |
|
|
2019 |
|
|
|
0 |
|
|
|
160,875 |
|
|
|
160,875 |
|
|
Vice President - Finance and Chief Financial Officer |
|
|
2018 |
|
|
|
0 |
|
|
|
151,116 |
|
|
|
151,116 |
|
|
(1) |
The amounts in this column for Mr.
Rackear reflect fees and expenses related to his services rendered
as our Chief Executive Officer and Secretary on a consulting basis.
The amounts in this column for Mr. Feinstein reflect fees and
expenses related to his services rendered as our Vice President -
Finance and Chief Financial Officer on a consulting basis. Neither
Mr. Rackear nor Mr. Feinstein received a base salary for fiscal
year 2019 or 2018. |
Outstanding Equity Awards at December 31, 2019
The following table sets forth information with respect to
outstanding equity awards held by each of our named executive
officers as of December 31, 2019.
|
|
|
OPTION AWARDS |
|
|
STOCK AWARDS |
|
|
Name |
|
Number of Securities Underlying Unexercised Options (#)
Exercisable(1)
|
|
|
Number of Securities Underlying Unexercised Options (#)
Unexercisable |
|
|
Equity Incentive Plan Awards: Number of Securities Underlying
Unexercised Unearned Options (#) |
|
|
Option Exercise Price(1) ($)
|
|
|
Option Expiration Date |
|
|
Number of Shares or Units of Stock That Have Not Vested (#) |
|
|
Market Value of Shares or Units of Stock That Have Not Vested
($) |
|
|
Equity Incentive Plan Awards: Number of Unearned Shares, Units or
Other Rights That Have Not Vested (#) |
|
|
Equity Incentive Plan Awards: Market or Payout Value of Unearned
Shares, Units or Other Rights That Have Not Vested ($) |
|
|
Andrew Rackear |
|
|
25,000 |
|
|
|
— |
|
|
|
— |
|
|
|
2.93 |
|
|
|
1/17/2022 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
Richard L. Feinstein |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| (1) |
The amounts in this column reflect
equitable adjustments that were approved by the Compensation
Committee and made to the stock options in connection with the
special cash dividend of $1.60 per share of common stock that we
paid on June 4, 2013, the special cash dividend of $0.45 per share
of common stock that we paid on December 23, 2013, the special cash
dividend of $0.10 per share of common stock that we paid on January
28, 2015, the special cash dividend of $0.50 per share of common
stock that we paid on August 12, 2015, the special cash dividend of
$0.25 per share of common stock that we paid on December 29, 2015,
the special cash dividend of $0.15 per share of common stock that
we paid on December 12, 2016, the special cash dividend of $0.15
per share of common stock that we paid on September 28, 2017, the
special cash dividend of $0.06 per share of common stock that we
paid on March 21, 2019 and the special cash dividend of $0.12 per
share of common stock that we paid on October 15, 2019. |
Potential Payments Upon Termination or Change in Control
None of our named executive officers is covered by a severance or
change in control agreement and, accordingly, none of our named
executive officers would have been entitled to receive any
termination or change in control-related payments as of December
31, 2019.
DIRECTOR COMPENSATION
Amended and Restated 2013 Outside Director Compensation
Plan
Under the Amended and Restated 2013 Outside Director Compensation
Plan, each non-employee director (i) receives an annual cash
retainer of $30,000, (ii) for service as chair of the Finance and
Audit Committee receives an additional annual cash retainer of
$10,000 and (iii) for service as a non-chair member of the Finance
and Audit Committee receives an additional annual cash retainer of
$5,000. These annual cash retainers are payable quarterly at the
end of each quarter.
Total Director Compensation
A summary of compensation paid to each of our directors during
fiscal year 2019 is set forth below.
|
Name |
|
Fees Earned or Paid in Cash ($) |
|
|
Stock Awards ($)(1)
|
|
|
Option Awards
($)(2)
|
|
|
Total ($) |
|
|
Jonathan Christodoro |
|
|
40,000 |
|
|
|
— |
|
|
|
— |
|
|
|
40,000 |
|
|
Odysseas Kostas, M.D. |
|
|
35,000 |
|
|
|
— |
|
|
|
— |
|
|
|
35,000 |
|
|
Jennifer McNealey |
|
|
35,000 |
|
|
|
— |
|
|
|
— |
|
|
|
35,000 |
|
___________________
|
(1) |
As of December 31, 2019, none of
our directors held any outstanding restricted stock units. |
|
(2) |
As of December 31, 2019, none of
our directors held any outstanding stock options. |
Item 12. Security Ownership of Certain Beneficial Owners
and Management and Related Stockholder Matters.
EQUITY COMPENSATION PLAN INFORMATION
The following table provides information as of December 31, 2019
regarding shares of our common stock that may be issued under our
equity compensation plans which consists of the 2011 Stock
Option:
|
|
|
Equity Compensation Plan Information |
|
|
Plan category |
|
Number of securities to be issued upon exercise of outstanding
options, warrants and rights |
|
|
Weighted Average exercise price of outstanding options, warrants
and rights |
|
|
Number of securities remaining available for future issuance under
equity compensation plan (excluding securities referenced in
column (a)) |
|
|
|
|
(a) |
|
|
(b) |
|
|
(c) |
|
|
Equity compensation plans approved by security holders: |
|
|
41,787 |
|
|
$ |
2.93 |
|
|
|
4,632,784 |
|
|
Equity compensation plans not approved by security holders: |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
Total |
|
|
41,787 |
|
|
$ |
2.93 |
|
|
|
4,632,784 |
|
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth certain information as of the close
of business on April 16, 2020 concerning stock ownership of (i)
each person known by us to own beneficially more than 5% of our
outstanding common stock, (ii) each current director, (iii) each of
our named executive officers and (iv) all of our current directors
and current executive officers as a group. In the tables below,
percentage of voting stock outstanding is based on 44,214,603
shares of Common Stock issued and outstanding as of February 7,
2020. Information set forth in this table as to our directors,
named executive officers and all directors and executive officers
as a group is based upon information supplied by these individuals.
Information in this table as to our greater than 5% stockholders is
based solely upon the Schedules 13D or 13G filed by these
stockholders with the SEC. Where information is based on a Schedule
13D or 13G, the number of shares owned is as of the date for which
information was provided in such schedules.
|
Name
and Address of Beneficial Owner or Identity of
Group(1) |
|
Amount
and
Nature of
Beneficial
Ownership(2) |
|
|
Percentage
of
Voting Stock
Outstanding(3) |
|
|
Jonathan Christodoro |
|
|
— |
|
|
|
— |
|
|
Odysseas Kostas, M.D. |
|
|
— |
|
|
|
— |
|
|
Jennifer McNealey |
|
|
— |
|
|
|
— |
|
|
Andrew Rackear |
|
|
25,000 |
(4) |
|
|
* |
|
|
Richard L. Feinstein |
|
|
— |
|
|
|
— |
|
|
Jonathan
Couchman and affiliated entities(5) |
|
|
7,345,162 |
|
|
|
16.61 |
% |
|
Carl
C. Icahn and affiliated entities(6) |
|
|
6,598,886 |
|
|
|
14.92 |
% |
|
Poplar
Point Capital Management LLC and affiliated
entities(7) |
|
|
2,906,966 |
|
|
|
6.6 |
% |
| All
Current Directors and Current Executive Officers as a group (5
persons) |
|
|
25,000 |
(4) |
|
|
* |
|
* Less than one
percent
|
(1) |
The address for each of the
executive officers and directors listed in this table is c/o Enzon
Pharmaceuticals, Inc., 20 Commerce Drive, Suite 135, Cranford, New
Jersey, 07016. |
|
(2) |
Beneficial ownership is determined
in accordance with the rules of the SEC that deem shares to be
beneficially owned by any person who has or shares voting or
investment power with respect to such shares. With respect to each
person set forth in the table, shares subject to stock options, if
any, held by such person that were exercisable as of February 7,
2020 or will become exercisable within 60 days after April 16, 2020
are deemed to be outstanding and to be beneficially owned by such
person for the purpose of computing the percentage ownership of
such person, but are not treated as outstanding for the purpose of
computing the percentage ownership of any other person. Unless
otherwise indicated below, the persons and entities named in the
table have sole voting and sole investment power with respect to
all the shares beneficially owned, subject to community property
laws where applicable. |
|
(3) |
Each share of common stock is
entitled to one vote. The percentage of voting stock outstanding
for each person set forth in the table is calculated by dividing
(i) the number of shares of common stock deemed to be beneficially
held by such person as of April 16, 2020 by (ii) the sum of (A) the
number of shares of common stock outstanding as of April 16, 2020,
plus (B) the number of shares of common stock subject to stock
options, if any, held by such person that were exercisable as of
April 16, 2020 or will become exercisable within 60 days after
April 16, 2020. |
|
(4) |
This number includes 25,000 shares
subject to options, which were exercisable as of April 16,
2020. |
|
(5) |
Information concerning stock ownership was obtained from the
Schedule 13D jointly filed with the SEC on April 16, 2020 by
Jonathan Couchman (“Mr. Couchman”), Couchman Family Fund (the
“Foundation”), Xstelos Corp. (“Xstelos”) and Myrexis, Inc.
(“Myrexis,” together with Mr. Couchman, the Foundation and Xstelos,
the “Reporting Persons”). The Reporting Persons reported that: (i)
Mr. Couchman has (a) the sole power to vote or to direct the vote
of and the sole power to dispose or to direct the disposition of
4,717,666 shares, and (b) the shared power to vote or to direct the
vote of and the shared power to dispose or to direct the
disposition of 2,627,496 shares, which includes 400,000 shares
owned directly by the Foundation, for which Mr. Couchman acts as
sole trustee, 1,594,232 shares owned directly by Xstelos, for which
Mr. Couchman serves as President and Chief Executive Officer, and
633,264 shares owned directly by Myrexis, for which Mr. Couchman
serves as President and Chief Executive Officer, (ii) the
Foundation has the shared power to vote or to direct the vote of
and the shared power to dispose or to direct the disposition of
400,000 shares, (iii) Xstelos has the shared power to vote or to
direct the vote of and the shared power to dispose or to direct the
disposition of 1,594,232 shares, and (iv) Xstelos has the shared
power to vote or to direct the vote of and the shared power to
dispose or to direct the disposition of 633,264 shares. The
principal business address for Mr. Couchman, the Foundation and
Myrexis is Couchman Management LLC, 600 Fifth Avenue, 2nd Floor,
New York, NY 10020. The principal business address for Xstelos is
1105 North Market Street, Suite 1300, Wilmington, DE 19801.
|
|
(6) |
Information concerning stock
ownership was obtained from Amendment No. 9 to the Schedule 13D
filed with the SEC on November 29, 2016 by Carl C. Icahn and
various entities affiliated with him. The address for Carl C. Icahn
and entities affiliated with him is 767 Fifth Avenue, 47th Floor,
New York, New York 10153. Mr. Icahn was reported to share voting
and dispositive power over all 6,598,886 shares with entities
affiliated with him. |
|
(7) |
Information concerning stock
ownership was obtained from Amendment No. 2 to the Schedule 13G
jointly filed with the SEC on January 22, 2020 by Poplar Point
Capital Management LLC (“PPCM”), Poplar Point Capital Partners LP
(“PPCP”), Poplar Point Capital GP LLC (“PPCGP”) and Jad Fakhry.
PPCM is the investment manager for PPCP. PPCGP is the general
partner of PPCP. Mr. Fakhry is the manager of, and owns a
controlling interest in, PPCM and PPCGP. The address for PPCM,
PPCP, PPCGP and Mr. Fakhry is c/o Poplar Point Capital Management
LLC, 840 Hinckley Road, Suite 250, Burlingame, CA 94010. PPCM,
PPCP, PPCGP and Mr. Fakhry reported that they have shared voting
and dispositive power over all 2,906,966 shares. |
Item 13. Certain Relationships and Related Transactions, and
Director Independence.
TRANSACTIONS WITH RELATED PERSONS
Our Board has adopted a formal written policy that we will not
enter into any “related party transaction” (defined consistent with
Item 404 of Regulation S-K under the Exchange Act) unless the
Finance and Audit Committee or a comparable committee of
disinterested directors approves such transaction. No member of the
Finance and Audit Committee or comparable committee shall
participate in the review or approval of any related party
transaction or any material amendment thereto where that member is
a related party in that transaction. In reviewing and approving any
related party transaction or any material amendment thereto, the
Finance and Audit Committee or comparable committee shall satisfy
itself that it has been fully informed as to the related party’s
relationship and interest and as to the material facts of the
proposed related party transaction or material amendment, and shall
determine that the related party transaction or material amendment
thereto is fair to our Company. Since January 1, 2019, there have
been no such related party transactions.
Item 14. Principal Accounting Fees and Services.
Pre-Approval Policies and Procedures
The Finance and Audit Committee is required to pre-approve the
audit and non-audit services performed by our independent
registered public accounting firm in order to assure that the
provision of such services does not impair the accountants’
independence. The Finance and Audit Committee specifically
pre-approves all audit fees, audit related fees, tax service fees
and all other fees. The Finance and Audit Committee has delegated
authority to the Chair of the Finance and Audit Committee to
approve any services not specifically pre-approved by the Finance
and Audit Committee provided that disclosure of such services and
fees is made to the Finance and Audit Committee at the next
scheduled meeting following such approval.
Audit Fees, Audit Related Fees, Tax Fees and All Other
Fees
The following table sets forth the aggregate fees paid or payable
for services provided to us by EisnerAmper LLP for professional
services rendered for the fiscal years ended December 31, 2019 and
2018. Our Board, acting as the Finance and Audit Committee,
considered whether the provision of these services by EisnerAmper
LLP was compatible with maintaining each firm’s independence and
concluded that EisnerAmper LLP was “independent.”
| |
|
EisnerAmper LLP |
|
| |
|
Fiscal Year Ended
December 31, 2019 |
|
|
Fiscal Year Ended
December 31, 2018 |
|
|
Audit
Fees(1) |
|
$ |
93,600 |
|
|
$ |
93,600 |
|
|
Audit-Related Fees |
|
|
— |
|
|
|
— |
|
| Tax
Fees(2) |
|
|
7,800 |
|
|
|
13,300 |
|
|
All Other Fees |
|
|
— |
|
|
|
— |
|
|
Total Fees |
|
$ |
101,400 |
|
|
$ |
106,900 |
|
___________________
|
(1) |
For fiscal years 2019 and 2018,
“Audit Fees” paid or payable to EisnerAmper LLP related to services
in connection with the audit of our annual consolidated financial
statements, review of quarterly financial statements, issuance of
consents, review of documents filed with the SEC and accounting
consultations. |
|
(2) |
For fiscal years
2019 and 2018, “Tax Fees” paid or payable to EisnerAmper LLP
related to tax preparation services and tax consulting
services. |
Item 15. Exhibits, Financial Statement Schedules.
(a)(1), (a)(2) and (c). The response to this portion of Item 15 is
submitted as a separate section of the Original 2019 Form 10-K
filed with the Securities and Exchange Commission on February 19,
2020.
(a)(3) and (b). Exhibits (numbered in accordance with Item 601 of
Regulation S-K):
Exhibit
Number |
|
Description |
|
Reference
No. |
|
2.1 |
|
Asset Purchase Agreement, dated as of
November 9, 2009, by and between Klee Pharmaceuticals, Inc.,
Defiante Farmacêutica, S.A. and Sigma-Tau Finanziaria S.p.A., on
the one hand, and Enzon Pharmaceuticals, Inc., on the other
hand |
|
(9) |
|
2.2 |
|
Plan of Liquidation and Dissolution
of Enzon Pharmaceuticals, Inc. (adopted by the Board of Directors
of Enzon Pharmaceuticals, Inc. on February 4, 2016) |
|
(17) |
|
3.1 |
|
Amended and Restated Certificate of
Incorporation dated May 18, 2006, together with that Certificate of
Amendment to the Amended and Restated Certificate of Incorporation
dated July 13, 2010 |
|
(1) |
|
3.2 |
|
Second Amended and Restated By-Laws
effective March 11, 2011, as amended by Amendment No. 1 to the
Second Amended and Restated By-Laws effective February 15,
2013 |
|
(11) |
|
3.3 |
|
Certificate of Designation of Series
A Junior Participating Preferred Stock of Enzon Pharmaceuticals,
Inc. filed with the Secretary of the State of Delaware on May 1,
2014 |
|
(15) |
|
4.1 |
|
Description of Registrant’s
Securities |
|
+ |
10.1
|
|
2001 Incentive Stock Plan, as amended
and restated, of Enzon Pharmaceuticals, Inc.**
|
|
(2) |
|
10.2 |
|
Development, License and Supply
Agreement between Enzon, Inc. (now known as Enzon Pharmaceuticals,
Inc.) and Schering Corporation; dated November 14, 1990, as
amended* |
|
(3) |
|
10.3 |
|
Amended and Restated 2013 Outside
Director Compensation Plan** |
|
(12) |
|
10.4 |
|
Form of Non-Qualified Stock Option
Agreement for Executive Officers under the 2001 Incentive Stock
Plan** |
|
(5) |
|
10.5 |
|
Form of Restricted Stock Award
Agreement for Executive Officers under the 2001 Incentive Stock
Plan** |
|
(5) |
|
10.6 |
|
Form of Restricted Stock Unit Award
Agreement for Executive Officers under the 2001 Incentive Stock
Plan** |
|
(6) |
|
10.7 |
|
Form of Restricted Stock Unit Award
Agreement for Independent Directors under the 2001 Incentive Stock
Plan** |
|
(4) |
|
10.8 |
|
Form of Stock Option Award Agreement
for Independent Directors under the 1987 Non-Qualified Stock Option
Plan** |
|
(4) |
|
10.9 |
|
Form of Stock Option Award Agreement
for Independent Directors under the 2001 Incentive Stock
Plan** |
|
(4) |
|
10.10 |
|
Amendment to Outstanding Awards Under
2001 Incentive Stock Plan** |
|
(8) |
|
10.11 |
|
2001 Incentive Stock Plan
Non-Qualified Stock Plan Terms and Conditions** |
|
(8) |
|
10.12 |
|
2001 Incentive Stock Plan Restricted
Stock Unit Award Terms and Conditions** |
|
(8) |
|
10.13 |
|
2001 Incentive Stock Plan Restricted
Stock Award Terms and Conditions** |
|
(8) |
|
10.14 |
|
2011 Stock Option and Incentive
Plan** |
|
(10) |
|
10.15 |
|
Form of Non-Qualified Stock Option
Agreement for Company Employees under the 2011 Stock Option and
Incentive Plan** |
|
(10) |
|
10.16 |
|
Form of Non-Qualified Stock Option
Agreement for Non-Employee Directors under the 2011 Stock Option
and Incentive Plan** |
|
(10) |
|
10.17 |
|
Form of Restricted Stock Unit Award
Agreement for Company Employees under the 2011 Stock Option and
Incentive Plan** |
|
(10) |
|
10.18 |
|
Form of Restricted Stock Unit Award
Agreement for Non-Employee Directors under the 2011 Stock Option
and Incentive Plan** |
|
(10) |
|
10.19 |
|
2007 Employee Stock Purchase
Plan |
|
(7) |
|
10.20 |
|
Independent Contractor Agreement,
dated as of December 13, 2013, between Enzon Pharmaceuticals, Inc.
and Richard L. Feinstein** |
|
(14) |
Exhibit
Number |
|
Description |
|
Reference
No. |
|
10.21 |
|
Assignment, Assumption and Release
Agreement, dated as of September 11, 2015, between Kingsbridge
2005, LLC and Enzon Pharmaceuticals, Inc. |
|
(16) |
|
10.22 |
|
Amendment 1 to Independent Contractor
Agreement, effective as of December 28, 2015, between Enzon
Pharmaceuticals, Inc. and Richard L. Feinstein** |
|
(18) |
|
10.23 |
|
Agreement, dated as of December 29,
2015, among Kingsbridge 2005, LLC, Enzon Pharmaceuticals,
Inc. and Axcellerate Pharma, LLC (executed by Enzon
Pharmaceuticals, Inc. on February 4, 2016) |
|
(18) |
|
10.24 |
|
Letter Agreement, dated February 4,
2016, between Kingsbridge 2005, LLC and Enzon Pharmaceuticals,
Inc. |
|
(18) |
|
10.25 |
|
Separation Agreement, dated as of
September 27, 2013, between Enzon Pharmaceuticals, Inc. and Andrew
Rackear** |
|
(13) |
|
10.26 |
|
Amendment to Separation Agreement,
dated as of January 1, 2016, between Enzon Pharmaceuticals, Inc.
and Andrew Rackear** |
|
(19) |
|
10.27 |
|
Amendment 2 to Separation Agreement,
dated as of March 31, 2016, between Enzon Pharmaceuticals, Inc. and
Andrew Rackear** |
|
(19) |
|
10.28 |
|
Amended and Restated Exclusive IP
Marketing Agreement, dated as of June 28, 2004, by and between
Microment AG and Enzon Pharmaceuticals, Inc. |
|
(20) |
|
10.29 |
|
Letter Agreement, dated January 30,
2019, between Servier IP UK Limited and Enzon Pharmaceuticals,
Inc. |
|
(20) |
|
21.1 |
|
Subsidiaries of Registrant |
|
+ |
|
23.1 |
|
Consent of EisnerAmper LLP |
|
+ |
|
31.1 |
|
Certification of Principal Executive
Officer pursuant to Section 302 of the Sarbanes-Oxley Act of
2002 |
|
++ |
|
31.2 |
|
Certification of Principal Financial
Officer pursuant to Section 302 of the Sarbanes-Oxley Act of
2002 |
|
++ |
|
32.1 |
|
Certification of Principal Executive
Officer pursuant to Section 906 of the Sarbanes-Oxley Act of
2002*** |
|
+++ |
|
32.2 |
|
Certification of Principal Financial
Officer pursuant to Section 906 of the Sarbanes-Oxley Act of
2002*** |
|
+++ |
|
101 |
The
following materials from Enzon Pharmaceuticals, Inc.’s Annual
Report on Form 10-K for the year ended December 31, 2019, formatted
in XBRL (Extensible Business Reporting Language): (i) Consolidated
Balance Sheets, (ii) Consolidated Statements of Income, (iii)
Consolidated Statements of Stockholders’ Equity, (iv) Consolidated
Statements of Cash Flow, and (v) Notes to Consolidated Financial
Statements. + |
|
+ |
Previously
filed as an exhibit to the Original 2019 Form 10-K filed with the
Securities and Exchange Commission on February 19,
2020. |
|
+++ |
Previously
furnished as an exhibit to the Original 2019 Form 10-K filed with
the Securities and Exchange Commission on February 19,
2020. |
|
* |
Portions of this exhibit have been
redacted and filed separately with the Commission pursuant to a
confidential treatment request. |
|
** |
Management contracts or
compensatory plans and arrangements required to be filed pursuant
to Item 601(b)(10)(ii)(A) or (iii) of Regulation S-K. |
|
*** |
These certifications are not deemed
filed by the Commission and are not to be incorporated by reference
in any filing the Company makes under the Securities Act of 1933 or
the Securities Exchange Act of 1934, irrespective of any general
incorporation language in any filings. |
Referenced exhibit was previously filed with the Commission as an
exhibit to the Company’s filing indicated below and is incorporated
herein by reference to that filing:
|
(1) |
Quarterly Report on Form 10-Q for
the quarter ended June 30, 2010 filed August 9, 2010 |
|
(2) |
Current Report on Form 8-K filed
May 19, 2006 |
|
(3) |
Annual Report on Form 10-K for the
fiscal year ended June 30, 2002 filed on September 26, 2002 |
|
(4) |
Quarterly Report on Form 10-Q for
the quarter ended September 30, 2005 filed November 9, 2005 |
|
(5) |
Quarterly Report on Form 10-Q for
the quarter ended December 31, 2004 filed February 9, 2005 |
|
(6) |
Quarterly Report on Form 10-Q for
the quarter ended March 31, 2005 filed May 10, 2005 |
|
(7) |
Registration Statement on Form S-8
(File No. 333-140282) filed January 29, 2007 |
|
(8) |
Annual Report on Form 10-K for the
year ended December 31, 2008 filed March 9, 2009 |
|
(9) |
Current Report on Form 8-K filed
November 12, 2009 |
|
(10) |
Registration Statement on Form S-8
(File No. 333-174099) filed May 10, 2011 |
|
(11) |
Annual Report on Form 10-K for the
year ended December 31, 2012 filed March 18, 2013 |
|
(12) |
Quarterly Report on Form 10-Q for
the quarter ended June 30, 2013 filed August 6, 2013 |
|
(13) |
Quarterly Report on Form 10-Q for
the quarter ended September 30, 2013 filed November 12, 2013 |
|
(14) |
Annual Report on Form 10-K for the
year ended December 31, 2014 filed March 14, 2014 |
|
(15) |
Current Report on Form 8-K filed
May 1, 2014 |
|
(16) |
Quarterly Report on Form 10-Q for
the quarter ended September 30, 2015 filed November 6, 2015 |
|
(17) |
Current Report on Form 8-K filed
February 9, 2016 |
|
(18) |
Annual Report on Form 10-K for the
fiscal year ended December 31, 2015 filed March 21, 2016 |
|
(19) |
Quarterly Report on Form 10-Q for
the quarter ended March 31, 2016 filed May 9, 2016 |
|
(20) |
Annual Report on Form 10-K for the
fiscal year ended December 31, 2018 filed on February 21, 2019 |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this Amendment No. 1 on Form 10-K/A to be signed on its behalf by
the undersigned, thereunto duly authorized.
| |
ENZON
PHARMACEUTICALS, INC. |
| |
(Registrant) |
| |
|
| Dated:
April 24, 2020 |
/s/
Andrew Rackear |
| |
Andrew
Rackear |
| |
Chief
Executive Officer and Secretary |
| |
(Principal
Executive Officer) |
| |
|
| Dated:
April 24, 2020 |
/s/
Richard L. Feinstein |
| |
Richard
L. Feinstein |
| |
Vice
President-Finance and Chief Financial Officer |
| |
(Principal
Financial Officer and |
| |
Principal
Accounting Officer) |
Pursuant to the requirements of the Securities Exchange Act of
1934, this Amendment No. 1 on Form 10-K/A has been signed below by
the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
|
Name |
|
Title |
|
Date |
| |
|
|
|
|
|
/s/
Andrew Rackear |
|
Chief
Executive Officer and Secretary |
|
April
24, 2020 |
| Andrew
Rackear |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
|
/s/
Richard L. Feinstein |
|
Vice
President - Finance and Chief Financial Officer |
|
April
24, 2020 |
| Richard
L. Feinstein |
|
(Principal
Financial Officer and Principal Accounting Officer)
|
|
|
| |
|
|
|
|
|
/s/
Jonathan Christodoro |
|
Chairman
of the Board |
|
April
24, 2020 |
| Jonathan
Christodoro |
|
|
|
|
| |
|
|
|
|
|
/s/
Odysseas Kostas, M.D. |
|
Director |
|
April
24, 2020 |
| Odysseas
Kostas, M.D. |
|
|
|
|
| |
|
|
|
|
|
/s/
Jennifer McNealey |
|
Director |
|
April
24, 2020 |
| Jennifer
McNealey |
|
|
|
|
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