Attached files
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| EX-2.1 - EXHIBIT 2.1 - ASSET PURCHASE AGREEMENT - ENZON PHARMACEUTICALS, INC. | ex2-1.htm |
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): November 9, 2009
ENZON
PHARMACEUTICALS, INC.
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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0-12957
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22-2372868
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(State
or Other Jurisdiction of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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685
Route 202/206, Bridgewater, NJ
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08807
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant's telephone number,
including area code: (908)
541-8600
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Not
Applicable
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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 (see General
Instruction A.2. below):
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□
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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□
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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□
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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□
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Section
1 – Registrant's Business and Operations
Item
1.01. Entry into a Material Definitive Agreement.
On
November 9, 2009, Enzon Pharmaceuticals, Inc. (the "Company"), Klee
Pharmaceuticals, Inc. ("Klee"), Defiante Farmacêutica, S.A. ("Defiante" and,
together with Klee, the "Purchasing Parties"), and Sigma-Tau Finanziaria S.p.A.
(solely with respect to certain sections of the Agreement) ("Sigma-Tau")
entered into an Asset Purchase Agreement (the "Agreement") pursuant to which the
Company has agreed to sell to the Purchasing Parties its specialty
pharmaceutical business (the "Business"), which includes (i) the Company's
marketed products Oncaspar®, DepoCyt®, Abelcet® and Adagen® (the "Products"),
(ii) related trademarks, patents, intellectual property and product inventory,
(iii) the Company's Indianapolis, Indiana manufacturing facility and (iv) other
related assets (collectively, the "Assets"). The Purchasing Parties
are indirect wholly-owned subsidiaries of Sigma-Tau.
Pursuant
to the terms of the Agreement, in consideration for the sale of the
Assets, the Purchasing Parties will pay the Company $300 million in cash,
subject to certain customary working capital adjustments, and assume certain
liabilities associated with the Business. In addition, the Agreement
provides that the Purchasing Parties will make certain milestone payments to the
Company as follows: (i) $5 million upon approval by the U.S. Food and Drug
Administration ("FDA") of a reformulation of Oncaspar® using the SS linker, (ii)
$7 million upon FDA approval of a reformulation of Oncaspar® using the SC linker
and (iii) either (a) $15 million if the European Medicines Agency ("EMEA")
approves a reformulation of Oncaspar® using the SC linker on an accelerated
basis or (b) $10 million if the EMEA approves a reformulation of Oncaspar® using
the SC linker on a non-accelerated basis. The Company will also
receive the following royalty payments: (i) for the years 2010 through
2014, 5% of the amount by which Net Receipts (as defined in the Agreement) in
respect of Products sold in the United States in such years exceeds Net Receipts
in respect of Products sold in the United States in 2009; (ii) for the years
2010 and 2011, 10% of the amount by which Net Receipts in respect of
Products sold outside the United States in such years exceeds Net Receipts in
respect of Products sold outside the United States in 2009; and (iii) for
the years 2012 through 2014, 5% of the amount by which Net Receipts in respect
of Products sold outside the United States in such years exceeds Net Receipts in
respect of Products sold outside the United States in 2009.
The
completion of the transactions contemplated by the Agreement is subject to
customary closing conditions, including the approval of the transactions by the
Company's stockholders, receipt of funds by Sigma-Tau pursuant to an executed
bank commitment letter and the expiration or termination of the applicable
waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), and any corresponding laws of other
applicable jurisdictions.
The
Company and the Purchasing Parties have made customary representations and
warranties in the Agreement. The Company has also agreed to various
covenants in the Agreement, including, among other things, (i) to operate the
Business in the ordinary course consistent with past practice in all material
respects during the period between the execution of the Agreement and the
closing of the transaction and (ii) not to solicit alternate transactions,
including a sale of the Business or a sale of the Company during the period
between execution of the Agreement and the closing of the
transaction.
As
part of the Agreement, the Company has agreed to certain non-competition
restrictions following the acquisition of the Business, including that, for a
period of four years following the
closing,
it will not develop, market or sell (i) the active pharmaceutical ingredient of
any of the Products, (ii) any active pharmaceutical ingredient that has the same
mechanism of action as any active pharmaceutical ingredient in any of the
Products, (iii) any finished pharmaceutical product that (a) has the same
mechanism of action as any of the Products or (b) contains an active
pharmaceutical ingredient referred to in the foregoing clauses (i) and (ii), and
(iv) any finished pharmaceutical product for the same labeled therapeutic
indications as of the closing as Abelcet® or Adagen®.
The
Agreement contains specified termination rights for the parties. The
Company has the right to terminate the Agreement if it enters into a definitive
agreement in respect of a Competing Proposal (as defined in the Agreement) that
constitutes a Superior Proposal (as defined in the Agreement), provided that the
Company complies with certain notice and other requirements set forth in the
Agreement. In such event, the Company would be required to pay Defiante a
termination fee equal to $15 million. The Company also would be
required to pay Defiante a termination fee of $15 million if the Purchasing
Parties terminate the Agreement because (i) the board of directors of the
Company (the "Board") withdraws or modifies its approval or recommendation of
the transactions contemplated by the Agreement; (ii) the Company or the Board
approves, recommends or enters into a definitive agreement in respect of a
Competing Proposal that constitutes a Superior Proposal; (iii) prior to the
transactions contemplated by the Agreement receiving the approval of the
Company's stockholders, a tender or exchange offer for the Company is commenced
by any third party and, within 10 business days, the Board does not recommend to
the Company's stockholders that they reject such tender or exchange offer; or
(iv) the Company fails to recommend that its stockholders approve the
transactions contemplated by the Agreement. Finally, if
(a) prior to the termination of the Agreement, a Competing
Proposal made after the date of the Agreement is publicly proposed and not
withdrawn prior to the special meeting of the Company's stockholders, (b) (i)
the closing of the transactions has not occurred by June 30, 2010 (which date
shall be extended if the transactions are then under review pursuant to the HSR
Act) and the Agreement is thereafter terminated by the Company or (ii) the
Agreement is terminated by either the Purchasing Parties or the Company because
stockholders do not approve the transactions contemplated by the Agreement and
(c) within one year following such termination, the Company enters into any
definitive agreement providing for a Qualifying Transaction (as defined in the
Agreement) with the person making the Competing Proposal and such transaction is
thereafter consummated, then the Company would be required to pay Defiante a
termination fee of $15 million.
The
Company also has the right to terminate the Agreement if, within 30 calendar
days following the satisfaction or waiver of the closing conditions jointly
applicable to the Company and the Purchasing Parties and the closing conditions
applicable to the Purchasing Parties, the Purchasing Parties have not received
sufficient financing to consummate the transaction. In connection
with such termination by the Company, Defiante would be required to pay the
Company a "reverse" termination fee of $15 million. The Company may
also terminate the Agreement if Sigma-Tau or either of the Purchasing Parties
breach or fail to perform any of the representations, warranties, covenants or
other agreements contained in the Agreement, including the obligation of
Sigma-Tau to use commercially reasonable efforts to obtain sufficient financing
to consummate the transaction and the obligation of the Purchasing Parties to
use commercially reasonable efforts to obtain alternative financing on customary
and commercially reasonable terms, if necessary. In connection with
such termination by the Company for breach or failure to perform, no "reverse"
termination fee would be payable by Defiante although the Company would have the
right to sue for damages.
Pursuant to the Agreement, Sigma-Tau has agreed to guarantee the payment by Defiante of all milestone and royalty payments and any termination fee owed by the Purchasing Parties. In addition, Sigma-Tau has agreed to undertake certain actions in connection with its and the Purchasing Parties efforts to obtain the financing necessary to consummate the transactions.
The
foregoing description of the Agreement and the transactions contemplated thereby
does not purport to be complete and is subject to and qualified in its entirety
by reference to the full text of the Agreement, which is filed as Exhibit 2.1 to
this Current Report on Form 8-K and is incorporated herein by
reference.
The
Agreement contains representations and warranties by each of the parties
thereto. These representations and warranties have been made solely
for the benefit of the other parties to the Agreement and:
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should
not be treated as categorical statements of fact, but rather as a way of
allocating the risk to one of the parties if those statements prove to be
inaccurate;
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may
have been qualified in the Agreement by disclosures that were made to the
other party in connection with the negotiation of the
Agreement;
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may
apply contract standards of "materiality" that are different from
"materiality" under the applicable securities laws; and
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·
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were
made only as of the date of the Agreement or such other date or dates as
may be specified in the Agreement.
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Section
9 – Financial Statements and Exhibits
Item
9.01. Financial Statements and Exhibits.
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Exhibit
No.
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Exhibit
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2.1
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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.
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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.
Date: November
11, 2009
| ENZON PHARMACEUTICALS, INC. | |||
| By: | /s/ Jeffrey H. Buchalter | ||
| Name: | Jeffrey H. Buchalter | ||
| Title: | President and Chief Executive Officer | ||
Exhibit
Index
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Exhibit
No.
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Exhibit
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2.1
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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.
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