UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): December 16, 2004
ENHANCE BIOTECH, INC.
--------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
Delaware 000-31653 13-3944580
- ---------------------------- ------------------------ -------------------
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
712 Fifth Avenue, 19th Floor, New York, NY 10019
----------------------------------------------------
(Address of principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (646) 723 8940
Not Applicable
-------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
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):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
SECTION 5 - CORPORATE GOVERNANCE AND MANAGEMENT
ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS;
APPOINTMENT OF PRINCIPAL OFFICERS.
(b) On December 16, 2004, the Registrant's Board of Directors appointed Phillip
S. Wise to become the Chief Financial Officer of the Registrant, effective only
upon the effective time of the previously-announced merger (the "Merger") of
Ardent Acquisition Corp. ("AAC"), a wholly-owned subsidiary of the Registrant,
with and into Ardent Pharmaceuticals, Inc. ("Ardent"), whereby Ardent
Pharmaceuticals, Inc. will become a wholly-owned subsidiary of the Registrant,
which merger is anticipated to become effective on or about December 20, 2004.
Such appointment is effected, when the same becomes effective, pursuant to the
terms and conditions of the Agreement and Plan of Merger dated August 11, 2004
by and among the Registrant, AAC, and Ardent, as amended by Amendment No. 1
thereto dated November 20, 2004 ("Amendment No. 1") by and among the Registrant,
AAC, and Ardent (the Agreement and Plan of Merger, as so amended, being
sometimes hereafter referred to as the "Agreement and Plan of Merger"). At the
effective time of the Merger, the Registrant shall enter into a three-year term
employment agreement with Mr. Wise (the "Wise Employment Agreement"),
substantially in the form previously filed as an Exhibit to the Registrant's
Current Report on Form 8K dated September 1, 2004, which Exhibit is specifically
incorporated herein by reference. The Wise Employment Agreement provides for an
annual base salary of $225,000, eligibility to receive an annual discretionary
bonus based on the attainment of performance targets established by the Board of
Directors, stock bonus equivalent to $35,000 on each of the first three
anniversaries of the effective date of the Merger and 1,200,000 options to
purchase common stock of the Registrant to be issued upon the effective date of
the Merger with 1/4 of the options vesting on the date of grant and the
remainder vesting equally over three years. If employment is terminated without
cause by the employer or for good reason by the executive, Mr. Wise would be
entitled to the following: (i) continuing salary payments over a severance
period of twelve (12) months if terminated on or after the first anniversary of
the effective date of the Merger or continuing salary payments over a severance
period lasting until the second anniversary of the effective date if terminated
prior to the first anniversary of the effective date, (ii) any accrued but
unpaid salary, bonus, expenses, and benefits, (iii) continuing coverage under
employee benefit plans during the severance period, and (iv) unvested options
scheduled to vest over the severance period shall vest immediately upon
termination.
Mr. Linden Boyne will cease to be the Chief Financial Officer of the Registrant
upon the effective time of the appointment of Mr. Wise as Chief Financial
Officer of the Registrant. Mr. Boyne will continue to be the Secretary of the
Registrant.
Prior to joining Ardent, Phillip Wise was Director of Marketing for New Product
Development and Managed Care Marketing for Glaxo Wellcome. While there he gained
experience in acute care areas such as stroke and septic shock, as well as acute
and chronic cardiovascular products. Prior to the merger with Glaxo, Mr. Wise
managed the Anesthesia Marketing Department for Burroughs Wellcome. He has a
Masters in Business Administration from the Colgate Darden School of Business at
the University of Virginia and an undergraduate degree in engineering from the
Georgia Institute of Technology.
(d) The Registrant's Board of Directors elected Andrew J. Cosentino to fill a
vacancy on the Registrant's Board of Directors created by increasing the number
of directors constituting the Registrant's Board of Directors from 3 directors
to 4 directors, to serve as a director of the Registrant until the next meeting
of stockholders and until his successor is elected and qualified or until his
earlier resignation or removal. Mr. Cosentino was also appointed by the Board to
be the Chairman of the Corporate Governance and Nominating Committee of the
Registrant's Board of Directors, and a member of the Audit Committee and the
Compensation Committee of the Registrant's Board of Directors.
Subsequent to the election of Mr. Cosentino to fill the vacancy on the
Registrant's Board of Directors, the Registrant amended the Registrant's Bylaws
to increase the number of directors constituting the Registrant's Board of
Directors from 4 directors to 7 directors. The Registrant elected each of
Kwen-Jen Chang (also known as Ken Chang), Jinn Wu and Tim Gupton to fill the
vacancies on the Registrant's Board of Directors so created, each to serve as a
director of the Registrant until the next meeting of stockholders and until his
successor is elected and qualified or until his earlier resignation or removal;
provided, that such elections are to be effective only upon the effective time
of the previously-announced merger of a wholly-owned subsidiary of the
Registrant with and into Ardent Pharmaceuticals, Inc., whereby Ardent
Pharmaceuticals, Inc. will become a wholly-owned subsidiary of the Registrant.
It is anticipated that the election of Messrs. Chang, Wu and Gupton to be
directors of the Registrant will become effective on or about December 20, 2004.
Effective upon the effective time of their respective elections to the
Registrant's Board of Directors, Mr. Gupton was also appointed to be the
Chairman of the Audit Committee of the Registrant's Board of Directors and a
member of the Compensation Committee of the Registrant's Board of Directors,
replacing Mr. Cosentino on the Compensation Committee, and Mr. Wu was also
appointed to be a member of the Corporate Governance and Nominating Committee of
the Registrant's Board of Directors.
The election of Messrs. Chang, Wu and Gupton is pursuant to the terms and
conditions of the Agreement and Plan of Merger referred to in response to Item
5.02(b) above. At the effective time of the Merger referred to in response to
Item 5.02(b) above, the Registrant shall enter into a three-year term employment
agreement with Dr. Chang (the "Chang Employment Agreement"), substantially in
the form previously filed as an Exhibit to the Registrant's Current Report on
Form 8K dated September 1, 2004, which Exhibit is specifically incorporated
herein by reference. Dr. Chang will serve as the Chief Science Officer and
President-Asia-Pacific Operations of the Registrant pursuant to the terms and
conditions of the Chang Employment Agreement, commencing upon the effectiveness
of that Agreement. The Chang Employment Agreement provides for an annual base
salary of $222,820, eligibility to receive an annual discretionary bonus based
on the attainment of performance targets established by the Board of Directors,
and 1,000,000 options to purchase common stock of the Registrant to be issued
upon the effective date of the Merger and with 1/4 of the options vesting on the
date of grant and the remainder vesting equally over three years. If employment
is terminated without cause by the employer or for good reason by the executive,
Dr. Chang would be entitled to the following: (i) continuing salary payments
over a severance period of twelve (12) months if terminated on or after the
first anniversary of the effective date of the Merger or continuing salary
payments over a severance period lasting until the second anniversary of the
effective date if terminated prior to the first anniversary of the effective
date, (ii) any accrued but unpaid salary, bonus, expenses, and benefits, (iii)
continuing coverage under employee benefit plans during the severance period,
and (iv) unvested options scheduled to vest over the severance period shall vest
immediately upon termination.
ITEM 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL
YEAR.
(a) On December 16, 2004, the Board of Directors of the Registrant amended
Article II, Section 2 of the Registrant's Bylaws to increase the number of
directors constituting the Registrant's Board of Directors from 3 directors to 4
directors, effective immediately. Subsequently on December 16, 2004, the Board
of Directors of the Registrant further amended Article II, Section 2 of the
Registrant's Bylaws to increase the number of directors constituting the
Registrant's Board of Directors from 4 directors to 7 directors, such amendment
to be effective upon the effective time of the previously-announced merger of a
wholly-owned subsidiary of the Registrant with and into Ardent Pharmaceuticals,
Inc., whereby Ardent Pharmaceuticals, Inc. will become a wholly-owned subsidiary
of the Registrant. It is anticipated that this subsequent amendment to the
Registrant's Bylaws will become effective on or about December 20, 2004.
ITEM 5.05 AMENDMENTS TO THE REGISTRANT'S CODE OF ETHICS, OR WAIVER OF A
PROVISION OF THE CODE OF ETHICS.
(a) As of December 16, 2004, the Registrant restated in its entirety the
Registrant's Code of Business Ethics and Conduct. The changes principally
involved incorporating directly in the Code of Business Ethics and Conduct
restrictions in the use of confidential information and restrictions on insider
trading already applicable to the Registrant's officers, directors, employees
and certain other related parties, including, without limitation, the
Registrant's principal executive officer, principal financial officer, principal
accounting officer or controller or persons performing similar functions, as
well as describing in more detail responsibilities and procedures for reporting
and considering allegations of violation of the Registrant's Code of Business
Ethics and Conduct, and the opportunity for confidential and anonymous
submission by employees of accounting- or audit-related concerns without
retaliation for truthful submission of such information. The revised Code of
Business Ethics and Conduct is set forth as Exhibit 14.1 to this Current Report
on Form 8K.
SECTION 8 - OTHER EVENTS
ITEM 8.01 OTHER EVENTS.
The Registrant's Board of Directors has created a Corporate Governance and
Nominating Committee, an Audit Committee and a Compensation Committee. The
charters of those Committees are set forth in Exhibits to this Current Report on
Form 8K, which Exhibits are specifically incorporated herein by reference.
At December 16, 2004, the members of the Corporate Governance and Nominating
Committee are Andrew J. Cosentino (Chairman), Lee J. Cole and David Scales; the
members of the Audit Committee are Lee J. Cole (Chairman), Andrew J. Cosentino
and David Scales; and the members of the Compensation Committee are Lee J. Cole
(Chairman), Andrew J. Cosentino and David Scales.
Upon the effective time of the Merger referred to in Item 5.02(b) above, Jinn Wu
will replace David Scales as a member of the Corporate Governance and Nominating
Committee, Tim Gupton will replace Andrew J. Cosentino as a member of the
Compensation Committee, and Tim Gupton will replace David Scales as a member of
the Audit Committee and become the Chairman of the Audit Committee, with Lee J.
Cole continuing as a member of that Committee although no longer as its
Chairman. It is anticipated that the Merger will be effective, and these changes
in the composition of the committees of the Registrant's Board of Directors will
be effective, on or about December 20, 2004.
SECTION 9 - FINANCIAL STATEMENTS AND EXHIBITS
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits. The following exhibits are filed with this report:
3.2 Amendments to Registrant's Bylaws
14.1 Registrant's Code of Business Ethics and Conduct dated as of December 16,
2004
99.1 Charter of the Registrant's Corporate Governance and Nominating Committee
dated as of December 16, 2004
99.2 Charter of the Registrant's Audit Committee dated as of December 16, 2004
99.3 Charter of the Registrant's Compensation Committee dated as of December
16, 2004
[Signature on following page.]
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.
ENHANCE BIOTECH, INC.
By: /s/ Christopher Every
--------------------------
Christopher Every
Chief Executive Officer
Date: December 17, 2004
EXHIBIT INDEX
Exhibit Description
- ------- -----------
3.2 Amendments to Registrant's Bylaws
14.1 Registrant's Code of Business Ethics and Conduct dated as of
December 16, 2004
99.1 Charter of the Registrant's Corporate Governance and Nominating
Committee dated as of December 16, 2004
99.2 Charter of the Registrant's Audit Committee dated as of December 16,
2004
99.3 Charter of the Registrant's Compensation Committee dated as of
December 16, 2004