Exhibit 4.3


 





SECOND AMENDMENT TO SECTION 382 RIGHTS
AGREEMENT


 


This SECOND AMENDMENT TO Section
382 Rights Agreement, dated as of December 8, 2016 (and effective as of 12:01 A.M., New York City time, on such date)
(this “Amendment”), is made and entered into by and between Enzon Pharmaceuticals, Inc., a Delaware corporation
(the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as rights agent
(the “Rights Agent”). Any capitalized term used herein and not otherwise defined shall have the meaning ascribed
to such term in the Section 382 Rights Agreement (as defined below).


 


WHEREAS, the Company and the Rights Agent
entered into a Section 382 Rights Agreement, dated as of May 1, 2014 (as amended by that certain First Amendment to Section 382
Rights Agreement, dated as of February 22, 2016, the “Section 382 Rights Agreement”), setting forth the terms
of the Rights (as defined therein);


 


WHEREAS, Section 26 of the Rights Agreement
provides that, prior to the Distribution Date, the Company and the Rights Agent shall, if the Company so directs, supplement or
amend any provision of the Section 382 Rights Agreement without the approval of any holders of certificates representing shares
of Common Stock;


 


WHEREAS, on November 29, 2016, High River
Limited Partnership, Hopper Investments LLC, Barberry Corp., Icahn Partners Master Fund LP, Icahn Offshore LP, Icahn Partners LP,
Icahn Onshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises Holdings L.P., Icahn Enterprises G.P. Inc., Beckton Corp. and
Carl C. Icahn (collectively, the “Icahn Parties”) filed an Amendment No. 9 to Schedule 13D with the Securities
and Exchange Commission (the “Amendment No. 9 to 13D”) reporting that, on November 28, 2016, certain Icahn Parties
acquired, in the aggregate, an additional 694,023 shares of common stock, par value $0.01 per share, of the Company (“Common
Stock”);


 


WHEREAS, the Board of Directors of the Company
has determined that the Icahn Parties’ becoming the beneficial owner of an additional 694,023 shares of Common Stock would
not jeopardize or endanger the availability to the Company of its net operating loss carryforwards;


 


WHEREAS, the Company has requested, and
the Icahn Parties have agreed, to enter into a Standstill Agreement, dated as of even date herewith, as a condition to entering
into this Amendment; and


 


WHEREAS, the Board of Directors of the Company
has determined that it is in the best interests of the Company and its stockholders to amend the Section 382 Rights Agreement so
that (i) none of the Icahn Parties nor any of their respective Affiliates or Associates shall be deemed to be an “Acquiring
Person” as a result of the Icahn Parties’ becoming the Beneficial Owner of an additional 694,023 shares of Common Stock
on November 28, 2016, (ii) no Distribution Date shall be deemed to have occurred as a result of the Icahn Parties’ becoming
the Beneficial Owner of an additional 694,023 shares of Common Stock on November 28, 2016 and/or the Icahn Parties’ filing
of the Amendment No. 9 to 13D and (iii) no Stock Acquisition Date shall be deemed to have occurred as a result of the Icahn Parties’
becoming the Beneficial Owner of an additional 694,023 shares of Common Stock on November 28, 2016 and/or the Icahn Parties’
filing of the Amendment No. 9 to 13D.


 






     


     


    

 


NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein set forth, the parties hereby agree as follows:


 


1.       The
Section 382 Rights Agreement is hereby amended by adding the following sentence at the end of the definition of “Acquiring
Person”:


 


Notwithstanding anything to the contrary
in this Agreement, none of the Icahn Parties nor any of their respective Affiliates or Associates shall be deemed to be an “Acquiring
Person” as a result of the Icahn Parties’ becoming the Beneficial Owner of an additional 694,023 shares of Common Stock
on November 28, 2016; provided, however, that the Icahn Parties shall thereafter be deemed an Acquiring Person if,
after November 28, 2016, the Icahn Parties, together with all Affiliates and Associates of the Icahn Parties, become the Beneficial
Owner of any additional shares of Common Stock unless, immediately prior to the time, and as a result, of becoming the Beneficial
Owner of such additional shares, the Icahn Parties, together with all Affiliates and Associates of the Icahn Parties, are not the
Beneficial Owner of 4.99% or more of the then outstanding shares of Common Stock. For purposes of the preceding sentence, none
of the Icahn Parties nor any of their respective Affiliates or Associates shall be deemed to become the Beneficial Owner of any
additional shares solely as a result of a dividend or distribution paid or made by the Company on outstanding Common Stock or a
split or subdivision of outstanding Common Stock.


 


2.       The
Section 382 Rights Agreement is hereby amended by adding the following sentence at the end of the definition of “Distribution
Date”:


 


Notwithstanding anything to the contrary
in this Agreement, no Distribution Date shall be deemed to have occurred as a result of the Icahn Parties’ becoming the Beneficial
Owner of an additional 694,023 shares of Common Stock on November 28, 2016 and/or the Icahn Parties’ filing of the Icahn
Amendment No. 9 to 13D.


 


3.       The
Section 382 Rights Agreement is hereby amended by adding the following sentence at the end of the definition of “Stock Acquisition
Date”:


 


Notwithstanding anything to the contrary
in this Agreement, no Stock Acquisition Date shall be deemed to have occurred as a result of the Icahn Parties’ becoming
the Beneficial Owner of an additional 694,023 shares of Common Stock on November 28, 2016 and/or the Icahn Parties’ filing
of the Icahn Amendment No. 9 to 13D.


 


4.       The
Section 382 Rights Agreement is hereby amended to add the following new Section 1(t) and new Section 1(u) after Section 1(s) and
the remaining subsections shall be renumbered accordingly:


 


(t) “Icahn Amendment No.
9 to 13D” shall mean the Amendment No. 9 to Schedule 13D filed by the Icahn Parties with the Securities and Exchange
Commission on November 29, 2016 reporting the Icahn Parties’ becoming the Beneficial Owner of an additional 694,023 shares
of Common Stock on November 28, 2016.


 


(u) “Icahn Parties”
shall mean, collectively, High River Limited Partnership, Hopper Investments LLC, Barberry Corp., Icahn Partners Master Fund LP,
Icahn Offshore LP, Icahn Partners LP, Icahn Onshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises Holdings L.P., Icahn Enterprises
G.P. Inc., Beckton Corp. and Carl C. Icahn.


 


5.       Except
as expressly amended hereby, the Section 382 Rights Agreement shall remain in full force and effect.


 


6.       This
Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to contracts made and to be performed entirely within such
State.


 






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7.       This
Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the same instrument.


 


8.       The
undersigned executive officer, in the undersigned’s capacity as an executive officer of the Company, hereby certifies, on
behalf of the Company, that this Amendment is in compliance with the terms of Section 26 of the Section 382 Rights Agreement.


 


[SIGNATURE PAGE IMMEDIATELY
FOLLOWS]


 




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IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed as of the date first written above.


 




	 	ENZON PHARMACEUTICALS, INC.	 
	 	 	 
	 	 	 
	 	By:	/s/ Andrew Rackear	 
	 	 	Name: Andrew Rackear	 
	 	 	Title: CEO	 
	 	 	 	 
	 	CONTINENTAL STOCK TRANSFER & 

TRUST COMPANY	 
	 	 	 
	 	 	 
	 	By: 	/s/ Margaret B. Lloyd	 
	 	 	Name: Margaret B. Lloyd	 
	 	 	Title: VP	 




 











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