SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
NPS PHARMACEUTICALS, INC.
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(Name of Issuer)
Common Stock, $0.001 par value
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(Title of Class of Securities)
62936P103
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(CUSIP Number)
Kenneth J. Zuerblis Copy to:
Chief Financial Officer Kevin T. Collins, Esq.
Enzon Pharmaceuticals, Inc. Dorsey & Whitney LLP
685 Route 202/206 250 Park Avenue
Bridgewater, New Jersey 08807 New York, NY 10177
(908) 541-8600 (212) 415-9200
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 19, 2003
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Secs. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. |_|
CUSIP No. 62936P103
1. NAMES OF REPORTING PERSONS
Enzon Pharmaceuticals, Inc.
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
22-2372868
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |_|
3. SEC USE ONLY
4. SOURCE OF FUNDS OO
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(D) OR 2(E) |_|
6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7. SOLE VOTING POWER -0-
8. SHARED VOTING POWER
2,380,828
(pursuant to
the Voting
Agreement
dated as of
February 19,
2003 and
incorporated
by reference
as Exhibit 2
to this
Schedule 13D)
9. SOLE DISPOSITIVE POWER -0-
10. SHARED DISPOSITIVE POWER -0-
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON 2,380,828
12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.6%
14. TYPE OF REPORTING PERSON CO
Neither the filing of this Schedule 13D nor any of its contents shall be deemed
to constitute and admission by Enzon Pharmaceuticals, Inc. that it is the
beneficial owner of any of the common stock of NPS Pharmaceuticals, Inc.
referred to herein for the purposes of Section 13(d) of the Securities Exchange
Act of 1934, as amended, or for any other purpose, and such beneficial ownership
is expressly disclaimed.
Item 1. Security and Issuer.
This statement on Schedule 13D relates to the common stock, par
value $0.001 per share (the "NPS Common Stock"), of NPS Pharmaceuticals, Inc.
("NPS"). The address of the principal executive office of NPS is 420 Chipeta
Way, Salt Lake City, Utah 84108-1256.
Item 2. Identity and Background.
(a) The name of the person filing this statement is Enzon
Pharmaceuticals, Inc., a Delaware corporation ("Enzon").
(b) The address of the principal executive office of Enzon is 685
Route 202/206, Bridgewater, New Jersey 08807. The business address of each of
Enzon's directors and executive officers is c/o Enzon Pharmaceuticals, Inc., 685
Route 202/206, Bridgewater, New Jersey 08807.
(c) Enzon is a biopharmaceutical company dedicated to the
discovery, development and commercialization of therapeutics to treat
life-threatening diseases. Set forth on Schedule A is the name and present
principal occupation or employment and the name, principal business and address
of any corporation or other organization in which such employment is conducted,
of each of Enzon's directors and executive officers, as of the date hereof.
(d) and (e) During the last five years neither Enzon, nor to
Enzon's knowledge, any person named in Schedule A has (i) been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) been a party to any civil proceeding of a judicial or administrative body
of competent jurisdiction, and is or was, as a result of such proceeding,
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws, or finding any violation with respect to such laws.
(f) Enzon is a Delaware corporation. The citizenship of each
person named in Schedule A is set forth thereon.
Item 3. Source and Amount of Funds or Other Consideration.
NPS and Enzon entered into an Agreement and Plan of Reorganization
dated as of February 19, 2003 (the "Merger Agreement"). Pursuant to the Merger
Agreement, (i) a Delaware corporation ("NPS Merger Sub") will be merged with and
into NPS, the separate corporate existence of NPS Merger Sub will thereupon
cease and NPS will continue as the surviving corporation and a wholly owned
subsidiary of Momentum Merger Corporation, a Delaware corporation ("Holdco")
(the "NPS Merger"), (ii) Enzon will be merged with and into a Delaware
Corporation ("Enzon Merger Sub"), the separate corporate existence of Enzon will
thereupon cease and Enzon Merger Sub will continue as the surviving corporation
and a wholly owned subsidiary of Holdco (the "Enzon Merger" and together with
the NPS Merger, the "Mergers"), such that NPS and Enzon Merger Sub will each be
a wholly owned subsidiary of Holdco and Holdco's name will be changed to a new
name to be agreed upon by NPS and Enzon. Pursuant to the terms of the Merger
Agreement, each issued and outstanding share of the common stock of Enzon
("Enzon Common Stock") not owned or held by Enzon or NPS will be exchanged for
0.7264 shares of the common stock of Holdco ("Holdco Common Stock"), and each
issued and outstanding share of the common stock of NPS ("NPS Common Stock") not
owned or held by Enzon or NPS will be exchanged for 1.0 share of Holdco Common
Stock.
In order to facilitate the consummation of the transactions
contemplated by the Merger Agreement and in consideration thereof, Enzon entered
into a voting agreement (the "Voting Agreement") dated as of February 19, 2003
with certain stockholders of NPS named therein (collectively, the "NPS
Stockholders") whereby the NPS Stockholders agreed to vote all of the shares of
NPS capital stock beneficially owned by them in favor of the approval and
adoption of the Merger Agreement, the NPS Merger and any other action required
in furtherance thereof. Enzon did not pay additional consideration to any NPS
Stockholder in connection with the execution and delivery of the Voting
Agreement.
References to, and descriptions of, the Merger Agreement and the
Voting Agreement as set forth above in this Item 3 are qualified in their
entirety by reference to the copies of the Merger Agreement and the form of
Voting Agreement included as Exhibits 1 and 2, respectively, to this Schedule
13D, and are incorporated in this Item 3 in their entirety where such references
and descriptions appear.
Item 4. Purpose of Transaction.
(a) - (b) The information set forth or incorporated by reference
in Items 2 and 3 is hereby incorporated herein by reference.
The Mergers are subject to customary closing conditions, including
the adoption of the Merger Agreement by both Enzon's stockholders and NPS's
stockholders, the expiration of the applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the
declaration by the SEC of the effectiveness of the Registration Statement and
the continued effectiveness of such Registration Statement, the receipt of any
other required regulatory approvals, and the satisfaction or waiver of certain
other conditions as more fully described in the Merger Agreement. There can be
no assurance that the required approvals will be obtained in a timely fashion,
if at all, or, in the case of regulatory approvals, if obtained, will not
contain certain conditions.
Pursuant to the terms of the Voting Agreement, the NPS
Stockholders have agreed, among other things, (i) to vote all of the shares of
NPS capital stock beneficially owned by them in favor of the approval and
adoption of the Merger Agreement, the NPS Merger and any other action required
in furtherance thereof, (ii) with certain exceptions, not to sell, transfer,
pledge, encumber, assign or otherwise dispose of such shares, unless the
transferee party agrees to be bound by the Voting Agreement, and (iii) to
appoint each of Arthur J. Higgins, Kenneth Zuerblis and Peter Cicala of Enzon as
his or her lawful attorney and proxy in relation to certain matters related to
the Mergers. Such proxy gives the above named attorneys and proxies the limited
right to vote such shares of NPS capital stock in certain matters related to the
Mergers. The Voting Agreement terminates upon the earlier to occur of the
completion of the Mergers or the termination of the Merger Agreement (the
"Expiration Date"). The name of each NPS Stockholder and the number of
outstanding shares of NPS Common Stock beneficially owned by each NPS
Stockholder and subject to the Voting Agreement are set forth on Schedule B
attached hereto and is incorporated herein by reference.
As lawful attorney and proxy of the NPS Stockholders, each of
Arthur J. Higgins, Kenneth Zuerblis and Peter Cicala of Enzon are authorized and
empowered at any time prior to the Expiration Date, to act as each of the NPS
Stockholder's attorney and proxy to vote all of the shares of NPS capital stock
owned by each NPS Stockholder, and to exercise all voting, consent and similar
rights of each NPS Stockholder with respect to all of such shares of NPS capital
stock (including, without limitation, the power to execute and deliver written
consents) at every annual or special meeting of stockholders of NPS (and at
every adjournment or postponement thereof), and in every written consent in lieu
of such meeting: (a) in favor of the approval and adoption of the Merger
Agreement and approval of the NPS Merger; (b) against the approval of any
proposal that would result in a breach by NPS of the Merger Agreement; and (c)
against any proposal made in opposition to, or in competition with, consummation
of the Mergers (or either of them) and the other transactions contemplated by
the Merger Agreement. Each of the attorneys and proxies named above may not
exercise the proxy on any other matter except as provided in the Voting
Agreement.
Enzon does not have any right to dispose (or direct the
disposition of) any shares of NPS capital stock pursuant to the Voting
Agreement. Accordingly, Enzon expressly disclaims beneficial ownership of all
such shares.
(c) Not Applicable
(d) Upon consummation of the Mergers as contemplated by the Merger
Agreement, the officers and directors of NPS Merger Sub shall be the officers
and directors of the surviving corporation of the NPS Merger.
(e) Other than as a result of the Mergers described in Item 3
above, not applicable.
(f) Not applicable.
(g) Upon consummation of the Mergers as contemplated by the Merger
Agreement, the Certificate of Incorporation and Bylaws of NPS Merger Sub will be
the Certificate of Incorporation and Bylaws of the surviving corporation of the
NPS Merger.
(h) - (i) Upon consummation of the Mergers as contemplated by the
Merger Agreement, each share of NPS Common Stock held by NPS will cease to be
outstanding and shall be canceled. It is also expected that the shares of NPS
Common Stock will become eligible for termination of registration pursuant to
the Securities Exchange Act of 1934, as amended.
(j) Other than as described above, Enzon currently has no plan or
proposals which relate to, or may result in, any of the matters listed in Items
4(a) - (i) of this Schedule 13D (although Enzon reserves the right to develop
such plans).
References to, and descriptions of, the Merger Agreement and the
Voting Agreement as set forth above in this Item 4 are qualified in their
entirety by reference to the copies of the Merger Agreement and the form of
Voting Agreement included as Exhibits 1 and 2, respectively, to this Schedule
13D, and are incorporated in this Item 4 in their entirety where such references
and descriptions appear. Capitalized terms used in Item 4 but not otherwise
defined herein have the respective meanings assigned to them in the Merger
Agreement.
Item 5. Interest in Securities of the Issuer.
The information set forth or incorporated by reference in
Items 2, 3 and 4 is incorporated herein by reference.
(a) - (b) As a result of the Voting Agreement, Enzon may be deemed
to be the beneficial owner of all 2,380,828 shares of NPS Common Stock disclosed
in this Schedule 13D. To the knowledge of Enzon, such NPS Common Stock
constitutes approximately 6.6% of the issued and outstanding shares of NPS
Common Stock as of February 19, 2003.
(c) Neither Enzon nor, to the knowledge of Enzon, any person named
in Schedule A, has effected any transaction in NPS Common Stock during the past
60 days.
(d) - (e) Not applicable.
References to, and descriptions of, the Merger Agreement and the
Voting Agreement as set forth above in this Item 5 are qualified in their
entirety by reference to the copies of the Merger Agreement and the form of
Voting Agreement included as Exhibits 1 and 2, respectively, to this Schedule
13D, and are incorporated in this Item 5 in their entirety where such references
and descriptions appear.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
As described in Items 3 and 4 above, as an inducement to Enzon to
enter into the Merger Agreement, Enzon entered into the Voting Agreement with
the NPS Stockholders whereby the NPS Stockholders agreed to vote all of the
shares of NPS capital stock beneficially owned by them in favor of the approval
and adoption of the Merger Agreement, the NPS Merger and any other action
required in furtherance thereof and appointed each of Arthur J. Higgins, Kenneth
Zuerblis and Peter Cicala of Enzon as his or her lawful attorney and proxy in
relation to certain matters related to the Mergers. Such proxy gives the
attorneys and proxies named above the limited right to vote such shares of NPS
capital stock in certain matters related to the Mergers. The NPS Stockholders
and the number of shares of NPS Common Stock beneficially owned by each of them
is set forth in Schedule B hereto which is hereby incorporated herein by
reference. The foregoing summary of the Voting Agreement is qualified in its
entirety by reference to the copy of the form of Voting Agreement included as
Exhibit 2 to this Schedule 13D and incorporated herein in its entirety by
reference.
Item 7. Material to be Filed as Exhibits.
The following documents are filed as exhibits:
1. Agreement and Plan of Reorganization, dated as of
February 19, 2003, by and among NPS Pharmaceuticals,
Inc., Enzon Pharmaceuticals, Inc., Momentum Merger
Corporation, Newton Acquisition Corporation and
Einstein Acquisition Corporation.
2. Form of Voting Agreement, dated as of February 19,
2003 by and among Enzon Pharmaceuticals, Inc. and
certain stockholders of NPS Pharmaceuticals, Inc.
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: February 28, 2003
ENZON PHARMACEUTICALS, INC.
By: /s/ Kenneth J. Zuerblis
-------------------------
Name: Kenneth J. Zuerblis
Title: Chief Financial Officer
SCHEDULE A
EXECUTIVE OFFICERS AND DIRECTORS OF ENZON PHARMACEUTICALS, INC.
The following table sets forth the name, business address and present
principal occupation or employment of each director and executive officer of
Enzon. Unless otherwise indicated below, each such person is a U.S. citizen, and
the business address of each such person is 685 Route 202/206, Bridgewater, New
Jersey 08807.
Board of Directors
Name and Title Present Principal Occupation
Arthur J. Higgins,(1) Chairman of the Board President, Chief Executive Officer
and Chairman of the Board of Enzon
Dr. Rosina B. Dixon, Director Self-employed consultant to the
pharmaceutical industry, c/o 685
Route 202/206, Bridgewater, New
Jersey 08807
David S. Barlow, Director Chairman and Chief Executive
Officer, Biostream, Inc., 160
Second Street Cambridge,
Massachusetts 02142
Rolf A. Classon,(2) Director Chairman, Executive Committee,
Bayer Health Care
Dr. David W. Golde, Director Attending Physician,
Sloan-Kettering Cancer Center, 1275
York Avenue, New York, New York
10021
Robert L. Parkinson, Jr., Director Dean, Loyola University Chicago's
School of Business Administration
and its Graduate School of
Business, 25 East Pearson, Chicago,
Illinois 60611
Executive Officers Who Are Not Directors
Title and Present
Name Principal Occupation
Dr. Ulrich Grau(3) Chief Scientific Officer of Enzon
Kenneth J. Zuerblis Chief Financial Officer, Vice
President, Finance, and Corporate
Secretary of Enzon
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(1) Mr. Higgins is a Scottish citizen.
(2) Mr. Classon is a Swedish citizen.
(3) Dr. Grau is a German citizen.
SCHEDULE B
STOCKHOLDERS PARTY TO A VOTING AGREEMENT
WITH NPS PHARMACEUTICALS, INC.
The following table sets forth the name of each NPS Stockholder that
has entered into a Voting Agreement with Enzon in connection with the Merger
Agreement, and the aggregate number of shares of NPS Common Stock beneficially
owned by each such NPS Stockholder as of February 19, 2003.(1)
NPS Stockholder Party to Voting Agreement Shares Beneficially Owned
------------------------------------------------ -------------------------
Hunter Jackson, Ph.D............................ 571,829 (2)
Thomas N. Parks, Ph.D........................... 328,241 (3)
Calvin Stiller, M.D............................. 265,499 (4)
Thomas B. Marriott, Ph.D........................ 172,951 (5)
John R. Evans................................... 338,041 (6)
N. Patricia Freston, Ph.D....................... 81,818 (7)
Donald E. Kuhla, Ph.D........................... 58,060 (8)
Peter J. Tombros................................ 35,960 (9)
Edward Rygiel................................... 36,124 (10)
Joseph Klein, III............................... 23,260 (11)
David L. Clark.................................. 28,619 (12)
Santo J. Costa.................................. 16,360 (13)
James G. Groninger.............................. 7,570 (14)
G. Thomas Heath................................. 10,200 (15)
James U. Jensen................................. 74,813 (16)
Allan L. Mueller, Ph.D.......................... 50,516 (17)
Edward F. Nemeth, Ph.D.......................... 280,967 (18)
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(1) Based solely on information provided by NPS, the number of shares of NPS
Common Stock issued and outstanding on February 19, 2003 was 35,136,393
shares, which amount includes 323,320 exchangeable shares. The calculation
of percentage ownership for each listed beneficial owner is based upon the
number of shares of NPS Common Stock issued and outstanding at February
19, 2003, plus shares of NPS Common Stock subject to options held by such
person at February 19, 2003 and exercisable within 60 days thereafter. The
persons and entities named in the table have sole voting and investment
power with respect to all shares shown as beneficially owned by them,
except as noted.
(2) Based solely on information provided by NPS and includes 50,000 shares
held in a charitable remainder unitrust of which Dr. Jackson is the
Trustee, 50,000 shares held in a charitable remainder unitrust of which
Dr. Jackson's spouse is the Trustee, 2 shares held by Dr. Jackson's
children of which Dr. Jackson disclaims beneficial ownership. Also
includes 371,600 shares of NPS Common Stock issuable upon exercise of
options to purchase NPS Common Stock which are exercisable or will become
exerciseable within 60 days of February 19, 2003.
(3) Based solely on information provided by NPS and includes 25,000 shares
held in a charitable remainder unitrust of which Dr. Parks is the Trustee
and 25,000 shares held in a charitable remainder unitrust of which Dr.
Parks' spouse is the Trustee, and 10,000 shares in a family trust, all of
which Dr. Parks disclaims beneficial ownership. Also includes 28,560
shares of NPS Common Stock issuable upon exercise of options to purchase
NPS Common Stock which are exercisable or will become exerciseable within
60 days of February 19, 2003.
(4) Based solely on information provided by NPS and includes 240,443 shares of
NPS Common Stock held by Canadian Medical Discoveries Fund, of which Dr.
Stiller disclaims beneficial ownership. Also includes 20,856 of NPS Common
Stock issuable upon exercise of options to purchase NPS Common Stock which
are exercisable or will become exerciseable within 60 days of February 19,
2003.
(5) Based solely on information provided by NPS and includes 6,641 shares of
NPS Common Stock held by Mr. Marriott's spouse of which Mr. Marriott
disclaims beneficial ownership. Also includes 152,700 shares of NPS Common
Stock issuable upon exercise of options to purchase NPS Common Stock which
are exercisable or will become exerciseable within 60 days of February 19,
2003.
(6) Based solely on information provided by NPS and includes 24,741 shares of
NPS Common Stock issuable upon exercise of options to purchase NPS Common
Stock which are exercisable or will become exerciseable within 60 days of
February 19, 2003.
(7) Based solely on information provided by NPS and includes 56,300 shares of
NPS Common Stock issuable upon exercise of options to purchase NPS Common
Stock which are exercisable or will become exerciseable within 60 days of
February 19, 2003.
(8) Based solely on information provided by NPS and includes 19,560 shares of
NPS Common Stock issuable upon exercise of options to purchase NPS Common
Stock which are exercisable or will become exerciseable within 60 days of
February 19, 2003.
(9) Based solely on information provided by NPS and includes 22,560 shares of
NPS Common Stock issuable upon exercise of options to purchase NPS Common
Stock which are exercisable or will become exercisable within 60 days of
February 19, 2003. Mr. Tombros also owns shares of Enzon Common Stock as
follows: 94,550 shares directly; 30,600 shares in a family trust; and
57,500 shares subject to options which will expire on March 9, 2003, and
are to be sold under a Rule 10b5-1 trading plan. Mr. Tombros also owns
approximately 3,819 shares of Enzon Common Stock under a 401(k) plan,
which is managed by Enzon.
(10) Based solely on information provided by NPS and includes 29,924 shares of
NPS Common Stock issuable upon exercise of options to purchase NPS Common
Stock which are exercisable or will become exerciseable within 60 days of
February 19, 2003.
(11) Based solely on information provided by NPS and includes 20,560 shares of
NPS Common Stock issuable upon exercise of options to purchase NPS Common
Stock which are exercisable or will become exerciseable within 60 days of
February 19, 2003.
(12) Based solely on information provided by NPS and includes 25,600 shares of
NPS Common Stock issuable upon exercise of options to purchase NPS Common
Stock which are exercisable or will become exerciseable within 60 days of
February 19, 2003.
(13) Based solely on information provided by NPS and includes 13,560 shares of
NPS Common Stock issuable upon exercise of options to purchase NPS Common
Stock which are exercisable or will become exerciseable within 60 days of
February 19, 2003.
(14) Based solely on information provided by NPS and includes 2,000 shares of
NPS Common Stock owned by Mr. Groninger's spouse of which Mr. Groninger
disclaims beneficial ownership. Also includes 3,720 shares of NPS Common
Stock issuable upon exercise of options to purchase NPS Common Stock which
are exercisable or will become exerciseable within 60 days of February 19,
2003.
(15) Based solely on information provided by NPS and includes 9,500 shares of
NPS Common Stock issuable upon exercise of options to purchase NPS Common
Stock which are exercisable or will become exerciseable within 60 days of
February 19, 2003.
(16) Based solely on information provided by NPS and includes 2,000 shares held
by a limited liability company of which Mr. Jensen disclaims beneficial
ownership. Also includes 27,245 shares of NPS Common Stock issuable upon
exercise of options to purchase NPS Common Stock which are exercisable or
will become exerciseable within 60 days of February 19, 2003.
(17) Based solely on information provided by NPS and includes 28,916 shares
held by a family trust of which Dr. Mueller's spouse is the trustee and of
which Dr. Mueller disclaims beneficial ownership. Also includes 21,600
shares of NPS Common Stock issuable upon exercise of options to purchase
NPS Common Stock which are exercisable or will become exerciseable within
60 days of February 19, 2003.
(18) Based solely on information provided by NPS and includes 225,800 shares of
NPS Common Stock issuable upon exercise of options to purchase NPS Common
Stock which are exercisable or will become exerciseable within 60 days of
February 19, 2003.
EXHIBIT INDEX
Exhibit
1. Agreement and Plan of Reorganization, dated as of February 19, 2003, by
and among NPS Pharmaceuticals, Inc., Enzon Pharmaceuticals, Inc.,
Momentum Merger Corporation, Newton Acquisition Corporation and
Einstein Acquisition Corporation.
2. Form of Voting Agreement, dated as of February 19, 2003 by and among
Enzon Pharmaceuticals, Inc. and certain stockholders of NPS
Pharmaceuticals, Inc.