-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Qc62MyYWnG8oIZRi5KRGhSJ8yVd7tmIW49ZbIZduAnjWEot5NWXKg3hv4JxY5lHd 9IO+yRZJzDMfOIw4XN3c8g== 0000902664-09-003634.txt : 20091001 0000902664-09-003634.hdr.sgml : 20091001 20091001171444 ACCESSION NUMBER: 0000902664-09-003634 CONFORMED SUBMISSION TYPE: SC 13G PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20091001 DATE AS OF CHANGE: 20091001 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: KERYX BIOPHARMACEUTICALS INC CENTRAL INDEX KEY: 0001114220 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 134087132 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13G SEC ACT: 1934 Act SEC FILE NUMBER: 005-78786 FILM NUMBER: 091099475 BUSINESS ADDRESS: STREET 1: 750 LEXINGTON AVENUE STREET 2: . CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 212-531-5965 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Empery Asset Management, LP CENTRAL INDEX KEY: 0001469336 IRS NUMBER: 262107121 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13G BUSINESS ADDRESS: STREET 1: 120 BROADWAY, SUITE 1019 CITY: NEW YORK STATE: NY ZIP: 10271 BUSINESS PHONE: 212-608-3300 MAIL ADDRESS: STREET 1: 120 BROADWAY, SUITE 1019 CITY: NEW YORK STATE: NY ZIP: 10271 SC 13G 1 p09-1841sc13g.txt KERYX BIOPHARMACEUTICALS, INC. UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------- SCHEDULE 13G Under the Securities Exchange Act of 1934 Keryx Biopharmaceuticals, Inc. (Name of Issuer) Common Stock, $0.001 par value (Title of Class of Securities) 492515101 (CUSIP Number) September 25, 2009 (Date of Event Which Requires Filing of this Statement) Check the appropriate box to designate the rule pursuant to which this Schedule is filed: [ ] Rule 13d-1(b) [X] Rule 13d-1(c) [ ] Rule 13d-1(d) - ---------------- *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required in the remainder of this cover page shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 1 of 10 Pages CUSIP No. 492515101 13G Page 2 of 10 Pages - ----------------------------------------------------------------------- (1) NAMES OF REPORTING PERSONS Hartz Capital Investments, LLC - ----------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions) (a) [X] (b) [ ] - ----------------------------------------------------------------------- (3) SEC USE ONLY - ----------------------------------------------------------------------- (4) CITIZENSHIP OR PLACE OF ORGANIZATION New Jersey - ----------------------------------------------------------------------- NUMBER OF (5) SOLE VOTING POWER 0 SHARES -------------------------------------------------------- BENEFICIALLY (6) SHARED VOTING POWER 3,917,574 shares of Common Stock OWNED BY -------------------------------------------------------- EACH (7) SOLE DISPOSITIVE POWER 0 REPORTING -------------------------------------------------------- PERSON WITH: (8) SHARED DISPOSITIVE POWER 3,917,574 shares of Common Stock - ----------------------------------------------------------------------- (9) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,917,574 shares of Common Stock - ----------------------------------------------------------------------- (10) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (see instructions) [ ] - ----------------------------------------------------------------------- (11) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 7.01% - ----------------------------------------------------------------------- (12) TYPE OF REPORTING PERSON (see instructions) OO - ----------------------------------------------------------------------- CUSIP No. 492515101 13G Page 3 of 10 Pages - ----------------------------------------------------------------------- (1) NAMES OF REPORTING PERSONS Empery Asset Management, LP - ----------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions) (a) [X] (b) [ ] - ----------------------------------------------------------------------- (3) SEC USE ONLY - ----------------------------------------------------------------------- (4) CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ----------------------------------------------------------------------- NUMBER OF (5) SOLE VOTING POWER 0 SHARES -------------------------------------------------------- BENEFICIALLY (6) SHARED VOTING POWER 4,348,769 shares of Common Stock OWNED BY -------------------------------------------------------- EACH (7) SOLE DISPOSITIVE POWER 0 REPORTING -------------------------------------------------------- PERSON WITH: (8) SHARED DISPOSITIVE POWER 4,348,769 shares of Common Stock - ----------------------------------------------------------------------- (9) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,348,769 shares of Common Stock - ----------------------------------------------------------------------- (10) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (see instructions) [ ] - ----------------------------------------------------------------------- (11) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 7.78% - ----------------------------------------------------------------------- (12) TYPE OF REPORTING PERSON (see instructions) PN - ----------------------------------------------------------------------- CUSIP No. 492515101 13G Page 4 of 10 Pages - ----------------------------------------------------------------------- (1) NAMES OF REPORTING PERSONS Ryan M. Lane - ----------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions) (a) [X] (b) [ ] - ----------------------------------------------------------------------- (3) SEC USE ONLY - ----------------------------------------------------------------------- (4) CITIZENSHIP OR PLACE OF ORGANIZATION United States - ----------------------------------------------------------------------- NUMBER OF (5) SOLE VOTING POWER 0 SHARES -------------------------------------------------------- BENEFICIALLY (6) SHARED VOTING POWER 4,348,769 shares of Common Stock OWNED BY ------------------------------------------------------- EACH (7) SOLE DISPOSITIVE POWER 0 REPORTING ------------------------------------------------------- PERSON WITH: (8) SHARED DISPOSITIVE POWER 4,348,769 shares of Common Stock - ----------------------------------------------------------------------- (9) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,348,769 shares of Common Stock - ---------------------------------------------------------------- (10) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (see instructions) [ ] - ----------------------------------------------------------------------- (11) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 7.78% - ----------------------------------------------------------------------- (12) TYPE OF REPORTING PERSON (see instructions) IN - ----------------------------------------------------------------------- CUSIP No. 492515101 13G Page 5 of 10 Pages - ----------------------------------------------------------------------- (1) NAMES OF REPORTING PERSONS Martin D. Hoe - ----------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions) (a) [X] (b) [ ] - ----------------------------------------------------------------------- (3) SEC USE ONLY - ----------------------------------------------------------------------- (4) CITIZENSHIP OR PLACE OF ORGANIZATION United States - ----------------------------------------------------------------------- NUMBER OF (5) SOLE VOTING POWER 0 SHARES -------------------------------------------------------- BENEFICIALLY (6) SHARED VOTING POWER 4,348,769 shares of Common Stock OWNED BY -------------------------------------------------------- EACH (7) SOLE DISPOSITIVE POWER 0 REPORTING -------------------------------------------------------- PERSON WITH: (8) SHARED DISPOSITIVE POWER 4,348,769 shares of Common Stock - ----------------------------------------------------------------------- (9) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,348,769 shares of Common Stock - ----------------------------------------------------------------------- (10) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (see instructions) [ ] - ----------------------------------------------------------------------- (11) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 7.78% - ----------------------------------------------------------------------- (12) TYPE OF REPORTING PERSON (see instructions) IN - ----------------------------------------------------------------------- CUSIP No. 492515101 13G Page 6 of 10 Pages Item 1. (a) Name of Issuer Keryx Biopharmaceuticals, Inc., a Delaware corporation (the "Company") (b) Address of Issuer's Principal Executive Offices 750 Lexington Avenue New York, New York 10022 Item 2(a). Name of Person Filing This statement is filed by the entities and persons listed below, who are collectively referred to herein as "Reporting Persons," with respect to the shares of Common Stock (as defined in Item 2(d) below) of the Company: MANAGED ACCOUNT (i) Hartz Capital Investments, LLC, with respect to the shares of Common Stock held by it in an account managed by the Investment Manager (as defined below) (the "Managed Account") and with respect to the shares of Common Stock held by it in an account not managed by the Investment Manager. INVESTMENT MANAGER (ii) Empery Asset Management, LP (the "Investment Manager"), with respect to the shares of Common Stock held by the Managed Account and certain funds to which the Investment Manager serves as investment manager (collectively, the "Empery Funds"). REPORTING INDIVIDUALS (iii) Mr. Ryan M. Lane ("Mr. Lane"), with respect to the shares of Common Stock held by the Empery Funds. (iv) Mr. Martin D. Hoe ("Mr. Hoe"), with respect to the shares of Common Stock held by the Empery Funds. The Investment Manager serves as the investment manager to each of the Empery Funds. Each of the Reporting Individuals is a Managing Member of Empery AM GP, LLC (the "General Partner"), the general partner of the Investment Manager. Item 2(b). Address of Principal Business Office or, if none, Residence The address of the principal business office of each of the Reporting Persons is: 120 Broadway, Suite 1019 New York, New York 10271 Item 2(c). Citizenship Citizenship is set forth in Row 4 of the cover page for each Reporting Person hereto and is incorporated herein by reference for each such Reporting Person. CUSIP No. 492515101 13G Page 7 of 10 Pages Item 2(d) Title of Class of Securities Common Stock, $0.001 par value (the "Common Stock") Item 2(e) CUSIP Number 492515101 Item 3. If this statement is filed pursuant to ss.ss.240.13d-1(b) or 240.13d-2(b) or (c), check whether the person filing is a: (a) [ ] Broker or dealer registered under Section 15 of the Act (15 U.S.C. 78o). (b) [ ] Bank as defined in Section 3(a)(6) of the Act (15 U.S.C. 78c). (c) [ ] Insurance company as defined in Section 3(a)(19) of the Act (15 U.S.C. 78c). (d) [ ] Investment company registered under Section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a-8). (e) [ ] An investment adviser in accordance with ss.240.13d-1(b)(1)(ii)(E); (f) [ ] An employee benefit plan or endowment fund in accordance with ss.240.13d-1(b)(1)(ii)(F); (g) [ ] A parent holding company or control person in accordance with ss.240.13d-1(b)(1)(ii)(G); (h) [ ] A savings association as defined in Section 3(b) of the Federal Deposit Insurance Act (12 U.S.C. 1813); (i) [ ] A church plan that is excluded from the definition of an investment company under Section 3(c)(14) of the Investment Company Act of 1940 (15 U.S.C. 80a-3); (j) [ ] Group, in accordance with Rule 13d-1(b)(1)(ii)(J). Item 4. Ownership Provide the following information regarding the aggregate number and percentage of the class of securities of the issuer identified in Item 1. The information as of the filing date required by Items 4(a) - (c) is set forth in Rows 5 - 11 of the cover page for each Reporting Person hereto and is incorporated herein by reference for each such Reporting Person. The Company's Current Report on Form 8-K filed on October 1, 2009 indicates that the total number of outstanding shares of Common Stock after giving effect to the offering described therein is 55,881,356. The percentages set forth on Row 11 of the cover page for each Reporting Person is based on the Company's outstanding shares of Common Stock. In addition to the reported shares of Common Stock, the Managed Account holds warrants to purchase 1,470,000 shares of Common Stock and a certain fund managed by the Investment Manager holds warrants to purchase 196,000 shares of Common Stock. However, pursuant to the terms of the reported warrants, the Reporting Persons cannot exercise any of these warrants until such time as the Reporting CUSIP No. 492515101 13G Page 8 of 10 Pages Persons would not beneficially own, after any such exercise, more than 4.9% of the outstanding shares of Common Stock. The Investment Manager, which serves as the investment manager to the Empery Funds, may be deemed to be the beneficial owner of all shares of Common Stock owned by the Empery Funds. Each of the Reporting Individuals, as Managing Members of the General Partner of the Investment Manager with the power to exercise investment discretion, may be deemed to be the beneficial owner of all shares of Common Stock owned by the Empery Funds. Each of the Investment Manager and the Reporting Individuals hereby disclaims any beneficial ownership of any such shares of Common Stock, except for their pecuniary interest therein. Item 5. Ownership of Five Percent or Less of a Class If this statement is being filed to report the fact that as of the date hereof the reporting person has ceased to be the beneficial owner of more than five percent of the class of securities, check the following: [ ] Item 6. Ownership of More than Five Percent on Behalf of Another Person Not applicable. Item 7. Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on by the Parent Holding Company Not applicable. Item 8. Identification and Classification of Members of the Group See Exhibit I. Item 9. Notice of Dissolution of Group Not applicable. Item 10. Certification By signing below each of the undersigned certifies that, to the best of its knowledge and belief, the securities referred to above were not acquired and are not held for the purpose of or with the effect of changing or influencing the control of the issuer of the securities and were not acquired and are not held in connection with or as a participant in any transaction having that purpose or effect. Exhibits: Exhibit I: Joint Filing Agreement, dated as of October 1, 2009, by and among Hartz Capital Investments, LLC, Empery Asset Management, LP, Ryan M. Lane and Martin D. Hoe. CUSIP No. 492515101 13G Page 9 of 10 Pages SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information with respect to it set forth in this statement is true, complete, and correct. Dated: October 1, 2009 EMPERY ASSET MANAGEMENT, LP HARTZ CAPITAL INVESTMENTS LLC By: EMPERY AM GP, LLC, its General By: EMPERY ASSET MANAGEMENT, LP Partner its Authorized Agent By: EMPERY AM GP, LLC, its General Partner By: /s/ Ryan M. Lane ------------------------------ Name: Ryan M. Lane Title: Managing Member By: /s/ Ryan M. Lane ------------------------------- Name: Ryan M. Lane Title: Managing Member /s/ Martin D. Hoe /s/ Ryan M. Lane - --------------------------------- ----------------------------------- MARTIN D. HOE RYAN M. LANE CUSIP No. 492515101 13G Page 10 of 10 Pages EXHIBIT I JOINT FILING AGREEMENT This will confirm the agreement by and among the undersigned that the Schedule 13G filed with the Securities and Exchange Commission on or about the date hereof with respect to the beneficial ownership by the undersigned of the common stock, par value $0.001 per share of Keryx Biopharmaceuticals, Inc. is being filed, and all amendments thereto will be filed, on behalf of each of the persons and entities named below in accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Dated as of October 1, 2009 EMPERY ASSET MANAGEMENT, LP Hartz Capital Investments LLC By: EMPERY AM GP, LLC, its General By: EMPERY ASSET MANAGEMENT, LP Partner its Authorized Agent By: EMPERY AM GP, LLC, its General Partner By: /s/ Ryan M. Lane ------------------------------ Name: Ryan M. Lane Title: Managing Member By: /s/ Ryan M. Lane ---------------------------- Name: Ryan M. Lane Title: Managing Member /s/ Martin D. Hoe /s/ Ryan M. Lane - ---------------------------- ---------------------------- MARTIN D. HOE RYAN M. LANE -----END PRIVACY-ENHANCED MESSAGE-----