UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-QSB
|X| QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2003
OR
|_| TRANSITION REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission file number 0-27282
Manhattan Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 36-3898269
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
787 Seventh Avenue, 48th Floor, New York, New York 10019
(Address of principal executive offices)
(212) 554-4525
(Issuer's telephone number)
(Former Name, Former Address and Former Fiscal Year,
if Changed Since Last Report)
Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the issuer was required to file such
reports), and (2) has been subject to such filing requirements for the past 90
days. Yes |X| No |_|
As of November 12, 2003 there were 23,362,396 shares of the issuer's common
stock, $.001 par value, outstanding.
1
INDEX
Page
----
PART I FINANCIAL INFORMATION
Item 1. Unaudited Condensed Consolidated Financial Statements....................................3
Unaudited Condensed Consolidated Balance Sheets..........................................3
Unaudited Condensed Consolidated Statements of Operations................................4
Unaudited Condensed Consolidated Statement of Stockholders' Equity (Deficiency)..........5
Unaudited Condensed Consolidated Statements of Cash Flows................................6
Notes to Unaudited Condensed Consolidated Financial Statements...........................7
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations...14
Item 3. Controls and Procedures.................................................................19
PART II OTHER INFORMATION
Item 1. Legal Proceedings.......................................................................20
Item 4. Submission of Matters to a Vote of Security Holders.....................................20
Item 6. Exhibits and Reports on Form 8-K........................................................20
Signatures..............................................................................21
Forward-Looking Statements
The statements contained in this Quarterly Report on Form 10-QSB that are
not historical are forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended, including statements regarding the
expectations, beliefs, intentions or strategies regarding the future. We intend
that all forward-looking statements be subject to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. In particular, the
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" section in Part I, Item 2 of this quarterly report include
forward-looking statements that reflect our current views with respect to future
events and financial performance. We use words such as we "expect,"
"anticipate," "believe," and "intend" and similar expressions to identify
forward-looking statements. A number of important factors could, individually or
in the aggregate, cause actual results to differ materially from those expressed
or implied in any forward-looking statements. Such factors include, but are not
limited to, the following: our lack of significant revenues and profitability;
our need for additional capital; our ability to successfully commercialize our
technologies; our ability to obtain various regulatory approvals; the
illiquidity and volatility of our common stock, and the other "Risk Factors"
identified in our Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2002.
2
PART I - FINANCIAL INFORMATION
Item 1. Unaudited Condensed Consolidated Financial Statements
MANHATTAN PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A Development Stage Company)
Condensed Consolidated Balance Sheets
(Unaudited)
September 30, December 31,
Assets 2003 2002
------------ -----------
Current assets:
Cash and cash equivalents $ 102,114 $ 1,721,123
Marketable equity securities, available for sale, at market 319,320
Prepaid expenses 27,009 --
----------- -----------
Total current assets 448,443 1,721,123
Property and equipment, net 10,004 --
Deposits 19,938 --
Deferred costs related to private placement 50,754 --
----------- -----------
Total assets $ 529,139 $ 1,721,123
=========== ===========
Liabilities and Stockholders' Equity (Deficiency)
Current liabilities:
Accounts payable $ 760,524 $ 164,899
Accrued expenses 435,069 15,973
Note payable to bank -- 600,000
Notes payable to stockholder 70,000 206,000
Due affiliate -- 96,328
----------- -----------
Total liabilities 1,265,593 1,083,200
----------- -----------
Commitments and Contingencies
Stockholders' equity (deficiency):
Common stock, $.001 par value. Authorized 150,000,000
shares; 23,362,396 and 15,753,008 shares issued and outstanding
at September 30, 2003 and December 31, 2002, respectively 23,362 15,753
Additional paid-in capital 4,826,177 1,754,154
Deficit accumulated during development stage (5,545,406) (1,094,116)
Accumulated other comprehensive loss (40,587) --
Unearned consulting costs -- (37,868)
----------- -----------
Total stockholders' equity (deficiency) (736,454) 637,923
----------- -----------
Total liabilities and stockholders' equity (deficiency) $ 529,139 $ 1,721,123
=========== ===========
See accompanying notes to unaudited condensed consolidated financial statements.
3
MANHATTAN PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A Development Stage Company)
Condensed Consolidated Statements of Operations
(Unaudited)
Cumulative
period from
Three Months ended Nine Months ended August 6, 2001
September 30, September 30, (inception) to
---------------------------- ---------------------------- September 30,
2003 2002 2003 2002 2003
------------ ------------ ------------ ------------ -----------
Revenue $ -- $ -- $ -- $ -- $ --
------------ ------------ ------------ ------------ -----------
Costs and expenses:
Research and development 377,820 172,719 734,351 624,971 1,459,748
General and administrative 412,730 148,144 1,255,446 198,485 1,605,027
Impairment of intangible assets 1,248,230 -- 1,248,230 -- 1,248,230
------------ ------------ ------------ ------------ -----------
Total operating expenses 2,038,780 320,863 3,238,027 823,456 4,313,005
------------ ------------ ------------ ------------ -----------
Operating loss (2,038,780) (320,863) (3,238,027) (823,456) (4,313,005)
------------ ------------ ------------ ------------ -----------
Other (income) expense:
Interest and other income (564) -- (4,704) -- (4,704)
Interest expense 933 6,299 4,089 12,113 23,227
Loss on disposition of intangible assets 1,213,878 -- 1,213,878 -- 1,213,878
------------ ------------ ------------ ------------ -----------
Total other (income) expense 1,214,247 6,299 1,213,263 12,113 1,232,401
------------ ------------ ------------ ------------ -----------
Net loss $ (3,253,027) $ (327,162) $ (4,451,290) $ (835,569) $(5,545,406)
============ ============ ============ ============ ===========
Net loss per common share:
Basic and diluted $ (0.14) $ (0.03) $ (0.20) $ (0.07)
============ ============ ============ ============
Weighted average shares of common stock
outstanding:
Basic and diluted 23,362,396 12,709,676 22,061,978 12,281,365
============ ============ ============ ============
See accompanying notes to unaudited condensed consolidated financial statements.
4
MANHATTAN PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A Development Stage Company)
Condensed Consolidated Statement of Stockholders' Equity (Deficiency)
(Unaudited)
Deficit
accumulated Accumulated
Common stock Additional during the other
-------------------- paid-in development comprehensive
Shares Amount capital stage loss
---------- ------- ----------- ----------- --------
Balance at January 1, 2003, as adjusted for
a 1-for-5 stock combination 15,753,008 $15,753 $ 1,754,154 $(1,094,116) $ --
Common stock issued, net of expenses 1,321,806 1,322 742,369 -- --
Effect of reverse acquisition 6,287,582 6,287 2,329,954 -- --
Amortization of unearned consulting costs -- -- -- -- --
Unrealized loss on marketable equity securities -- -- -- -- (40,587)
Payment for fractional shares for stock combination -- -- (300) -- --
Net loss -- -- -- (4,451,290) --
---------- ------- ----------- ----------- --------
Balance at September 30, 2003 23,362,396 $23,362 $ 4,826,177 $(5,545,406) $(40,587)
========== ======= =========== =========== ========
Total
stock-
Unearned holders'
consulting equity
costs (deficiency)
-------- ------------
Balance at January 1, 2003, as adjusted for
a 1-for-5 stock combination $(37,868) $ 637,923
Common stock issued, net of expenses -- 743,691
Effect of reverse acquisition -- 2,336,241
Amortization of unearned consulting costs 37,868 37,868
Unrealized loss on marketable equity securities -- (40,587)
Payment for fractional shares for stock combination -- (300)
Net loss -- (4,451,290)
-------- -----------
Balance at September 30, 2003 $ -- $ (736,454)
======== ===========
See accompanying notes to unaudited condensed consolidated financial statements.
5
MANHATTAN PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A Development Stage Company)
Condensed Consolidated Statements of Cash Flows
(Unaudited)
Cumulative
period from
Nine months ended August 1, 2001
September 30, (inception) to
----------------------- September 30,
2003 2002 2003
----------- --------- -----------
Cash flows from operating activities:
Net loss $(4,451,290) $(835,569) $(5,545,406)
Adjustments to reconcile net loss to
net cash provided by (used in) operating activities:
Common stock issued for license rights -- -- 1,000
Amortization of unearned consulting costs 37,868 16,147 60,589
Amortization of intangible assets 145,162 -- 145,162
Depreciation 4,233 -- 4,233
Loss on impairment of intangible assets 1,248,230 -- 1,248,230
Loss on disposition of intangible assets 1,213,878 -- 1,213,878
Changes in operating assets and liabilities, net of acquisition:
Decrease in prepaid expenses 11,298 -- 11,298
Increase in accounts payable 271,889 161,846 436,788
(Decrease) increase in accrued expenses (121,225) 14,400 (105,252)
(Decrease) increase in due affiliate (96,328) 51,315 --
Increase in interest payable -- 1,346 --
----------- --------- -----------
Net cash used in operating activities (1,736,285) (590,515) (2,529,480)
----------- --------- -----------
Cash flows from investing activities:
Purchase of property and equipment (6,554) -- (6,554)
Cash paid in connection with acquisition (32,808) -- (32,808)
Proceeds from sale of license 200,001 -- 200,001
----------- --------- -----------
Net cash provided by investing activities 160,639 -- 160,639
----------- --------- -----------
Cash flows from financing activities:
Proceeds from issuances of notes payable to stockholders -- 2,500 233,500
Repayments of notes payable to stockholders (136,000) -- (163,500)
Proceeds from issuance of note payable to bank -- 600,000 600,000
Repayment of note payable to bank (600,000) -- (600,000)
Proceeds from subscriptions receivable -- -- 4,000
Payment for fractional shares for stock combination 300 -- 300
Proceeds from sale of common stock, net 743,091 -- 2,447,409
Increase in deferred costs related to private placement (50,754) (8,706) (50,754)
----------- --------- -----------
Net cash provided by (used in) financing activities (43,363) 593,794 2,470,955
----------- --------- -----------
Net increase (decrease) in cash and cash equivalents (1,619,009) 3,279 102,114
Cash and cash equivalents at beginning of period 1,721,123 -- --
----------- --------- -----------
Cash and cash equivalents at end of period $ 102,114 $ 3,279 $ 102,114
=========== ========= ===========
Supplemental disclosure of cash flow information:
Interest paid $ 502 $ 10,676 $ 26,934
=========== ========= ===========
Supplemental disclosure of noncash investing and financing activities:
Stock options issued for consulting services $ -- -- $ 60,589
Issuance of common stock for acquisition 2,336,242 -- 2,336,242
Marketable equity securities received in connection with
sale of license 359,907 -- 359,907
=========== ========= ===========
See accompanying notes to unaudited condensed consolidated financial statements.
6
MANHATTAN PHARMACEUTICALS, INC. and SUBSIDIARIES
(A Development Stage Company)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 30, 2003
(1) BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with accounting principles generally accepted
in the United States of America for interim financial information. Accordingly,
the financial statements do not include all information and footnotes required
by accounting principles generally accepted in the United States of America for
complete annual financial statements. In the opinion of management, the
accompanying condensed consolidated financial statements reflect all
adjustments, consisting of only normal recurring adjustments, considered
necessary for a fair presentation. Interim operating results are not necessarily
indicative of results that may be expected for the year ending December 31, 2003
or for any subsequent period. These consolidated financial statements should be
read in conjunction with the Annual Report on Form 10-KSB of Manhattan
Pharmaceuticals, Inc. and its subsidiaries ("Manhattan" or the "Company") as of
and for the year ended December 31, 2002 and the Form 8-K/A of Manhattan
Pharmaceuticals, Inc. filed on May 9, 2003 containing the financial statements
of Manhattan Research Development, Inc.
(2) LIQUIDITY
The Company has reported a net loss of $1,037,320 for the year ended
December 31, 2002 and a net loss of $4,451,290 for the nine months ended
September 30, 2003. The net loss from date of inception, August 6, 2001, to
September 30, 2003 amounts to $5,545,406.
As discussed in Note 6, on February 21, 2003 the Company completed a
reverse acquisition of privately held Manhattan Research Development, Inc.
Management believes that the combined Company will continue to incur net losses
through at least September 30, 2004. Based on the resources of the combined
Company available at September 30, 2003, management believes that the combined
Company will need additional equity or debt financing or will need to generate
revenues through licensing its products or entering into strategic alliances to
be able to sustain its operations until it can achieve profitability, if ever.
The combined Company's continued operations will depend on its ability to
raise additional funds through various potential sources such as equity and debt
financing, collaborative agreements, strategic alliances and its ability to
realize the full potential of its technology in development. Additional funds
may not become available on acceptable terms, and there can be no assurance that
any additional funding that the combined Company does obtain will be sufficient
to meet the combined Company's needs in the short and long term. Through
September 30, 2003, a significant portion of the Company's financing has been
through private placements of common stock and warrants and debt financing.
Until and unless the combined Company's operations generate significant
revenues, the combined Company will attempt to continue to fund operations from
cash on hand and through the sources of capital previously described.
As described in Note 10, on November 7, 2003, the Company completed a
private placement of 1,000,000 shares of its newly-designated Series A
Convertible Preferred Stock at a price of $10 per share, resulting in gross
proceeds to the Company of $10,000,000. Each share of Series A Convertible
Preferred Stock is convertible at the holder's election into shares of the
company's common stock at a conversion price of $1.10 per share. The conversion
price of the Series A Convertible Preferred Stock was less than the market value
of the Company's common stock on November 7, 2003. Accordingly, the Company will
7
MANHATTAN PHARMACEUTICALS, INC. and SUBSIDIARIES
(A Development Stage Company)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 30, 2003
record a charge for the beneficial conversion feature associated with the
convertible preferred stock. Such charge is anticipated to approximate $418,000.
The Company's common stock is quoted on the Over-the-Counter Bulletin
Board (the "OTCBB") under the ticker symbol "MHTT.OB." This has an adverse
effect on the liquidity of our common stock, not only in terms of the number of
shares that can be bought and sold at a given price, but also through delays in
the timing of transactions and reduction in security analysts' and the media's
coverage of the Company. This may result in lower prices for shares of the
Company's common stock than might otherwise be obtained and could also result in
a larger spread between the bid and asked prices for the common stock.
On July 25, 2003, the Board of Directors adopted a resolution authorizing
an amendment to the certificate of incorporation providing for a 1-for-5
combination. A resolution approving the 1-for-5 combination was thereafter
consented to in writing by holders of a majority of the Company's outstanding
common stock. The proposed 1-for-5 combination became effective on September 25,
2003. Accordingly, all share and per share information in these unaudited
condensed consolidated financial statements has been restated to retroactively
reflect the 1-for-5 combination.
(3) COMPUTATION OF NET LOSS PER COMMON SHARE
Basic net loss per common share is calculated by dividing net loss
applicable to common shares by the weighted-average number of common shares
outstanding for the period. Diluted net loss per common share equals basic net
loss per common share, since common stock potentially issuable from the exercise
or conversion of stock options, stock warrants, stock subscriptions and
convertible preferred stock would have an anti dilutive effect because the
Company incurred a net loss during each period presented. The potentially
dilutive shares of common stock from stock options, stock warrants, stock
subscriptions, and convertible preferred stock, which have not been included in
the diluted calculations since their effect is antidilutive, was 4,111,935 as of
September 30, 2003.
(4) ISSUANCE OF STOCK, STOCK OPTIONS AND WARRANTS
On February 24, 2003, the Company granted employees options to purchase an
aggregate of 876,090 shares of common stock outside of the Company's 1995 Stock
Option Plan. An aggregate of 584,060 shares subject to these options vest on the
first anniversary of the grant date and the remaining 292,030 shares subject to
these options vest in two equal installments on each of the first and second
anniversaries of the grant date, provided the optionee continues in service. The
options were granted at the market price on the day of issuance and are
exercisable for a period of ten years regardless of whether the grantee
continues to be employed by the Company.
The Company uses the intrinsic value method of accounting for stock
options pursuant to the provisions of APB Opinion No. 25. Had compensation costs
been determined in accordance with the fair value method prescribed by SFAS No.
123 for all options issued to employees, the Company's net loss applicable to
common shares and net loss per common share (basic and diluted) for plan options
would have been increased to the pro forma amounts indicated below. There were
no options granted during the third quarter of 2003. There were no options
granted or outstanding in the 2002 periods.
8
MANHATTAN PHARMACEUTICALS, INC. and SUBSIDIARIES
(A Development Stage Company)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 30, 2003
Three Nine
months ended months ended
September 30, September 30,
2003 2003
------------ -------------
Net loss, as reported $(3,253,027) $(4,451,290)
Deduct: Total stock-based employee
compensation expense determined
under fair value method (74,763) (228,210)
----------- -----------
Net loss, pro forma $(3,327,790) $(4,679,500)
=========== ===========
Net loss per common share - basic
As reported $ (0.14) $ (0.20)
Pro forma (0.14) (0.21)
(5) PRIVATE PLACEMENT OF COMMON SHARES
During 2002, the Company's subsidiary, Manhattan Research Development,
Inc. (Manhattan Research) commenced a private placement and sold 239,450 shares
of common stock at $8 ($0.63 post merger) per share and received proceeds of
$1,704,318, net of expenses of $211,281. These shares converted into 3,043,332
shares of the Company's common stock when the Company completed the reverse
acquisition of Manhattan Research as described below. In addition, each investor
received warrants equal to 10% of the number of shares of common stock purchased
and, accordingly, Manhattan Research issued warrants to purchase 23,945 shares
of common stock in 2002 in connection with the private placement. Upon the
merger, these converted into warrants to purchase 304,333 shares of the
Company's common stock. Each warrant had an exercise price of $8 per share,
which post merger converted to approximately $0.63. These warrants expire in
2007.
During January and February 2003, Manhattan Research sold an additional
104,000 shares of common stock at $8 ($0.63, post merger) per share and warrants
to purchase 10,400 shares of common stock exercisable at $8 ($0.63 post merger)
through the private placement and received net proceeds of $743,691. These
shares converted into 1,321,806 shares of the Company's common stock when the
Company completed its reverse acquisition of Manhattan Research. The warrants to
purchase 10,400 shares of common stock converted into warrants to purchase
132,181 common shares of the combined Company.
In addition, in connection with the private placement, Manhattan Research
issued to Joseph Stevens & Co., Inc., a NASD-member broker-dealer, warrants to
purchase 130,511 shares of its common stock that are exercisable at $8 ($0.63
post merger) per share and expire in 2008. Upon the merger, these warrants
converted into warrants to purchase 1,658,753 shares of common stock of the
combined Company.
9
MANHATTAN PHARMACEUTICALS, INC. and SUBSIDIARIES
(A Development Stage Company)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 30, 2003
(6) MERGER
On February 21, 2003, the Company (formerly known as "Atlantic Technology
Ventures, Inc.") completed a reverse acquisition of privately held Manhattan
Research Development, Inc. (formerly Manhattan Pharmaceuticals, Inc.), a
Delaware corporation. The merger was effected pursuant to an Agreement and Plan
of Merger dated December 17, 2002 (the "Merger Agreement") by and among the
Company, Manhattan Research and Manhattan Pharmaceuticals Acquisition Corp, the
Company's wholly owned subsidiary ("MPAC"). In accordance with the terms of the
Merger Agreement, MPAC merged with and into Manhattan Research, with Manhattan
Research remaining as the surviving corporation and a wholly owned subsidiary of
the Company. Pursuant to the Merger Agreement, upon the effective time of the
merger, the outstanding shares of common stock of Manhattan Research
automatically converted into an aggregate of 18,689,917 shares of the Company's
common stock, which represented 80 percent of the Company's outstanding voting
stock after giving effect to the merger. In addition, immediately prior to the
merger Manhattan Research had outstanding options and warrants to purchase an
aggregate of 172,856 shares of its common stock, which, in accordance with the
terms of the merger, automatically converted into options and warrants to
purchase an aggregate of 2,196,944 shares of the Company's common stock. Since
the stockholders of Manhattan Research received the majority of the voting
shares of the Company, the merger was accounted for as a reverse acquisition
whereby Manhattan Research was the accounting acquirer (legal acquiree) and the
Company was the accounting acquiree (legal acquirer). Based on the five-day
average price of the Company's common stock of $0.50 per share, the purchase
price approximated $2,336,000, plus approximately $33,000 of acquisition costs,
which represents 20 percent of the market value of the combined Company's
post-merger total outstanding shares of 23,362,396. In connection with the
merger, the Company changed its name from "Atlantic Technology Ventures, Inc."
to "Manhattan Pharmaceuticals, Inc." At the time of the merger, Manhattan
Research recognized patents and licenses for substantially all of the purchase
price. A formal purchase price allocation was completed in the third quarter of
2003 and did not result in changes to the initial estimate. As a result of
acquiring Manhattan Research, the Company received new technologies.
A summary of the purchase price allocation is as follows:
10
MANHATTAN PHARMACEUTICALS, INC. and SUBSIDIARIES
(A Development Stage Company)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 30, 2003
Common stock issued $ 2,336,242
Acquisition costs paid 32,808
-----------
Total purchase price 2,369,050
Net liabilities assumed in acquisition 798,128
-----------
Excess purchase price (allocated to
intangible assets) $ 3,167,178
===========
Assets purchased:
Prepaid expenses $ 38,307
Property and equipment 7,683
Deposits 19,938
-----------
65,928
-----------
Liabilities assumed:
Accounts payable 323,735
Accrued expenses 540,321
-----------
864,056
-----------
Net liabilities assumed $ (798,128)
===========
The following pro forma financial information presents the combined
results of operations of Manhattan Pharmaceuticals and Manhattan Research as if
the acquisition had occurred as of January 1, 2003 and 2002, after giving effect
to certain adjustments, including the issuance of Manhattan Pharmaceuticals
common stock as part of the purchase price. For the purpose of this pro forma
presentation, both Manhattan Pharmaceuticals' and Manhattan Research's financial
information is presented for the three and nine months ended September 30, 2003
and 2002, respectively. The pro forma condensed consolidated financial
information does not necessarily reflect the results of operations that would
have occurred had Manhattan Pharmaceuticals and Manhattan Research been a single
entity during such periods.
Nine months ended
Three months ended September 30,
September 30, -------------------------------
2002 2003 2002
------------- ------------ ------------
Revenues $ -- $ -- $ --
Net loss $ (1,019,353) $ (4,650,838) $ (2,315,120)
Weighted-average shares of common
stock outstanding: Basic 12,709,676 22,150,857 12,709,676
Basic net loss per common share $ (0.08) $ (0.21) $ (0.18)
11
MANHATTAN PHARMACEUTICALS, INC. and SUBSIDIARIES
(A Development Stage Company)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 30, 2003
(7) LICENSE AND DEVELOPMENT AGREEMENT
In April 2003, the Company entered into a license and development
agreement with NovaDel Pharma, Inc. ("NovaDel"), under which the Company
received certain worldwide, exclusive rights to develop and commercialize
products related to NovaDel's proprietary lingual spray technology for
delivering propofol for pre-procedural sedation. Under the terms of this
agreement, the Company agreed to use its commercially reasonable efforts to
develop and commercialize the licensed products, to obtain necessary regulatory
approvals and to thereafter exploit the licensed products. The agreement also
provides that NovaDel will undertake to perform, at the Company's expense, a
substantial portion of the development activities, including without limitation,
preparation and filing of various applications with applicable regulatory
authorities.
In consideration of the license, upon the occurrence of certain
development and regulatory events, the Company is obligated to make payments to
NovaDel upon the occurrence of certain milestones, including filing a New Drug
Application or "NDA" that is accepted for review by the FDA for a licensed
product, filing a European Marketing Application for a licensed product, having
a filed NDA approved by the FDA, having a European Marketing Application
accepted for review within the European Union, receiving commercial approval in
Japan, Canada, Australia and South Africa, and upon receiving regulatory
approval in certain other countries. The aggregate amount of the milestone
payments is significant in light of the Company's currently available resources.
In addition, the Company is obligated to pay to NovaDel an annual royalty based
on a fixed rate of net sales of licensed products, or if greater, the annual
royalty is based on the Company's net profits from the sale of licensed products
at a rate that is twice the net sales rate. In the event the Company sublicenses
the licensed product to a third party, the Company is obligated to pay royalties
based on a fixed rate of fees or royalties received from the sublicensee until
such time as the Company recovers its out-of-pocket costs, and thereafter the
royalty rate doubles. Because of the continuing development efforts required of
NovaDel under the agreement, the royalty rates are substantially higher than
customary for the industry. The Company is also required to pay an up-front fee
in installments contingent on whether the Company receives certain amounts
through financings, revenues or otherwise. To date, the Company has paid and
expensed $125,000 of such up-front fee.
NovaDel may terminate the agreement (i) upon 10 days' notice if the
Company fails to make any required milestone or royalty payments, (ii) if the
Company fails to obtain financing of at least $5,000,000 by March 31, 2004 (see
Note 10), or (iii) if the Company becomes bankrupt or if a petition in
bankruptcy or insolvency is filed and not dismissed within 60 days or if the
Company becomes subject to a receiver or trustee for the benefit of creditors.
Each party may terminate the agreement upon 30 days' written notice and an
opportunity to cure in the event the other party committed a material breach or
default. The Company may also terminate the agreement for any reason upon 90
days' notice to NovaDel.
(8) ASSET SALE
On August 22, 2003, the Company sold all of its remaining rights to the
CT-3 technology to Indevus Pharmaceuticals, Inc. ("Indevus"), the Company's
licensee for aggregate consideration of approximately $559,000. The purchase
price was paid through a combination of cash and shares of Indevus' common
stock. On the same date, the Company settled its arbitration with Dr. Sumner
Burstein, the inventor of the CT-3 technology, which includes a complete mutual
release from all claims that either
12
MANHATTAN PHARMACEUTICALS, INC. and SUBSIDIARIES
(A Development Stage Company)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 30, 2003
party had against the other. As a result of the sale of the Company's rights to
the CT-3 technology to Indevus, the Company recorded a one-time charge of
$1,213,878 in the quarter ended September 30, 2003.
In addition, on August 8, 2003, Bausch & Lomb informed the Company that it
had elected not to pursue its development of the Avantix technology effective
August 11, 2003. According to the terms of Company's agreement with Bausch &
Lomb, the Company may re-acquire the technology from Bausch & Lomb and sell or
re-license the technology to a third party. The price to re-acquire the
technology from Bausch & Lomb is 50 percent of the proceeds from a third party
sale to a maximum of $3 million. The Company has no further obligation under the
agreement. As a result of Bausch & Lomb's decision not to develop the Avantix
technology, the Company recorded a one-time charge of $1,248,230 in the quarter
ended September 30, 2003 for the impairment of the related intangible asset.
(9) REVERSE STOCK SPLIT
On July 25, 2003, the Board of Directors adopted a resolution authorizing
an amendment to the certificate of incorporation providing for a 1-for-5
combination. A resolution approving the 1-for-5 combination was thereafter
consented to in writing by holders of a majority of the Company's outstanding
common stock. The proposed 1-for-5 combination became effective on September 25,
2003. Accordingly, all share and per share information in these unaudited
condensed consolidated financial statements has been restated to retroactively
reflect the 1-for-5 combination.
(10) SUBSEQUENT EVENTS
On November 7, 2003, the Company completed a private placement of
1,000,000 shares of its newly-designated Series A Convertible Preferred Stock at
a price of $10 per share, resulting in gross proceeds to the Company of
$10,000,000. Each share of Series A Convertible Preferred Stock is convertible
at the holder's election into shares of the company's common stock at a
conversion price of $1.10 per share. The conversion price of the Series A
Convertible Preferred Stock was less than the market value of the Company's
common stock on November 7, 2003. Accordingly, the Company will record a charge
for the beneficial conversion feature associated with the convertible preferred
stock. Such charge is anticipated to approximate $418,000.
The proceeds from the private placement will be used to fund clinical and
non-clinical research and development, working capital and general corporate
purposes. Maxim Group, LLC of New York, together with Paramount Capital, Inc.,
acted as the placement agent in connection with the private placement.
13
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations.
You should read the following discussion of our results of operations and
financial condition in conjunction with our Annual Report on Form 10-KSB for the
year ended December 31, 2002 and the Form 8-K/A of Manhattan Pharmaceuticals,
Inc. filed on May 9, 2003 containing the financial statements of Manhattan
Research Development, Inc. This discussion includes "forward-looking" statements
that reflect our current views with respect to future events and financial
performance. We use words such as we "expect," "anticipate," "believe," and
"intend" and similar expressions to identify forward-looking statements.
Investors should be aware that actual results may differ materially from our
expressed expectations because of risks and uncertainties inherent in future
events, particularly those risks identified in the "Risk Factors" section of our
most recent Annual Report on Form 10-KSB, and should not unduly rely on these
forward looking statements. All share and per share information in this
discussion has been adjusted for a 1-for-5 combination effective September 25,
2003.
RESULTS OF OPERATIONS
THREE-MONTH PERIOD ENDED SEPTEMBER 30, 2003 VS. 2002
During the quarters ended September 30, 2003 and 2002, we had no revenue.
We do not expect to have significant revenues relating to our technologies
within the next twelve months.
For the quarter ended September 30, 2003, research and development expense
was $377,820 as compared to $172,719 for the third quarter of 2002. The increase
of $205,001 is due primarily to an acceleration of pre-clinical development of
our Oleoyl-estrone drug and to the pre-clinical development of our Propofol
Lingual Spray, which was licensed in 2003.
For the quarter ended September 30, 2003, general and administrative
expense was $412,730 as compared to $148,144 for the quarter ended September 30,
2002. The increase of $264,586 is due primarily to expenses associated with
hiring full-time employees and consultants of approximately $68,000 and $56,000,
respectively. In addition, we had increases in legal and accounting fees of
approximately $45,000 as a result, in part, of becoming subject to the reporting
obligations under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") in February 2003. Insurance expense increased by approximately $42,000 and
other expenses increased by $14,000. Finally, in 2003, we had amortization of
intangible assets of approximately $40,000.
Net loss for the quarter ended September 30, 2003, was $3,253,027 as
compared to $327,162 for the quarter ended September 30, 2002. This increase in
net loss is attributable primarily to a loss on the disposition of intangible
assets as a result of our sale of our remaining rights to CT-3 to Indevus
Pharmaceuticals, Inc. of $1,213,878 as well as an impairment of intangible
assets of $1,248,230 as a result of a decision by Bausch & Lomb not to pursue
the Avantix cataract removal technology. In addition we had an increase in
general and administrative expenses of $264,586 primarily as a result of our
hiring employees and management and becoming a public company and an increase in
research and development expenses of $205,101.
NINE-MONTH PERIOD ENDED SEPTEMBER 30, 2003 VS. 2002
During the nine months ended September 30, 2003 and 2002, we had no
revenue.
14
For the nine months ended September 30, 2003, research and development
expense was $734,351 as compared to $624,971 for the nine months ended September
30, 2002. The increase of $109,380 is due primarily to an acceleration of
pre-clinical development of our Oleoyl-estrone drug and to the pre-clinical
development of our Propofol Lingual Spray, which was licensed in 2003 resulting
in an increase of associated expenses of approximately $149,000. This increase
is partially offset by the fact that we paid license fees of $175,000 to
Oleoyl-estrone Developments, Inc (OED) in 2002 but paid only $125,000 of license
fees to NovaDel Pharma, Inc. in 2003. We also had an increase in patent related
fees over the prior year of approximately $10,000.
For the nine months ended September 30, 2003, general and administrative
expense was $1,255,446 as compared to $198,485 for the nine months ended
September 30, 2002. The increase of $1,056,961 is due primarily to expenses
associated with hiring full time employees and consultants of approximately
$296,000 and $199,000, respectively. In addition, we had increases in legal and
accounting fees of approximately $193,000 associated with the Company becoming
subject to the reporting obligations under the Exchange Act upon completion of
the Atlantic Technology Ventures, Inc. - Manhattan Research Development Corp.
merger in February 2003. Rent, directors fees, insurance and other expenses
increased by approximately $36,000, $34,000, $108,000 and $46,000, respectively.
Finally, in 2003, we had amortization of intangible assets of approximately
$145,000.
Net loss for the nine months ended September 30, 2003, was $4,451,290 as
compared to $835,569 for the nine months ended September 30, 2002. This increase
in net loss is attributable primarily to a loss on the disposition of intangible
assets as a result of our sale of our remaining rights to CT-3 to Indevus
Pharmaceuticals, Inc. of $1,213,878 as well as an impairment of intangible
assets of $1,248,230 as a result of a decision by Bausch & Lomb not to pursue
the Avantix cataract removal technology. In addition, we had an increase in
general and administrative expenses of $1,056,961 primarily as a result of our
hiring employees and management and becoming a public company and an increase in
research and development expenses of $109,380.
LIQUIDITY AND CAPITAL RESOURCES
From inception to September 30, 2003, we incurred an accumulated deficit
of $5,545,406, and we expect to continue to incur additional losses through the
year ending September 30, 2004 and for the foreseeable future. This loss has
been incurred through a combination of research and development activities
related to the various technologies under our control and expenses supporting
those activities.
During 2002, our subsidiary, Manhattan Research Development, Inc.
(Manhattan Research) commenced a private placement and sold 239,450 shares of
common stock at $8 ($0.63 post merger) per share and received proceeds of
$1,704,318, net of expenses of $211,181. These shares converted into 3,043,332
shares of our common stock when we completed a reverse acquisition of Manhattan
Research as described below. In addition, each investor received warrants equal
to 10% of the number of shares of common stock purchased and, accordingly,
Manhattan Research issued warrants to purchase 23,945 shares of common stock in
2002 in connection with the private placement. Upon the merger, these converted
into warrants to purchase 304,333 shares of our common stock. Each warrant had
an exercise price of $8 per share, which post merger converted to $0.63. These
warrants expire in 2007.
During January and February 2003, Manhattan Research sold an additional
104,000 shares of common stock at $8 ($0.63, post merger) per share and warrants
to purchase 10,400 shares of common stock exercisable at $8 ($0.63 post merger)
through the private placement and received net proceeds of $743,691. These
shares converted into 1,321,806 shares of our common stock when we completed our
15
reverse acquisition of Manhattan Research. The warrants to purchase 10,400
shares of common stock converted into warrants to purchase 132,181 common shares
of the combined Company.
In addition, in connection with the private placement, Manhattan Research
issued to Joseph Stevens & Co., Inc., a NASD-member broker-dealer, warrants to
purchase 130,511 shares of its common stock that are exercisable at $8 ($0.63
post merger) per share and expire in 2008. Upon the merger, these warrants
converted into warrants to purchase 1,658,753 shares of common stock of the
combined Company.
We have financed our operations since inception primarily through equity
and debt financing and our licensing of CT-3 to Indevus. During the nine months
ended September 30, 2003, we had a net decrease in cash and cash equivalents of
$1,619,009. This decrease primarily resulted from net cash used in operating
activities for the nine months ended September 30, 2003 of $1,736,285. Total
cash resources as of September 30, 2003 were $102,114 compared to $1,721,123 at
December 31, 2002.
Our available working capital and capital requirements will depend upon
numerous factors, including progress of our research and development programs,
our progress in and the cost of ongoing and planned pre-clinical and clinical
testing, the timing and cost of obtaining regulatory approvals, the cost of
filing, prosecuting, defending, and enforcing patent claims and other
intellectual property rights, competing technological and market developments,
changes in our existing collaborative and licensing relationships, the resources
that we devote to developing manufacturing and commercializing capabilities,
technological advances, the status of our competitors, our ability to establish
collaborative arrangements with other organizations and our need to purchase
additional capital equipment.
Our continued operations will depend on whether we are able to raise
additional funds through various potential sources, such as equity and debt
financing, other collaborative agreements, strategic alliances, and our ability
to realize the full potential of our technology in development. Such additional
funds may not become available on acceptable terms and there can be no assurance
that any additional funding that the combined Company does obtain will be
sufficient to meet the combined Company's needs in the long term. Through
September 30, 2003, a significant portion of our financing has been through
private placements of common stock and warrants and debt financing. Unless our
operations generate significant revenues, we will continue to fund operations
from cash on hand and through the similar sources of capital previously
described. We can give no assurances that any additional capital that we are
able to obtain will be sufficient to meet our needs. Management believes that we
will continue to incur net losses through at least September 30, 2004. Based on
our current resources, we will need additional equity or debt financing or we
will need to generate revenues through licensing our products or entering into
strategic alliances to be able to sustain our operations until we can achieve
profitability, if ever.
On November 7, 2003, we completed a private placement of 1,000,000 shares
of our newly-designated Series A Convertible Preferred Stock at a price of $10
per share, resulting in gross proceeds to us of $10,000,000. Each share of
Series A Convertible Preferred Stock is convertible at the holder's election
into shares of our common stock at a conversion price of $1.10 per share. The
conversion price of the Series A Convertible Preferred Stock was less than the
market value of our common stock on November 7, 2003. Accordingly, we will
record a charge for the beneficial conversion feature associated with the
convertible preferred stock. Such charge is anticipated to approximate $418,000.
On February 21, 2003, we completed a reverse acquisition of privately held
Manhattan Research Development, Inc., (formerly Manhattan Pharmaceuticals, Inc.)
(Manhattan Research) a Delaware corporation. The merger was effected pursuant to
an Agreement and Plan of Merger dated December 17,
16
2002 (the "Merger Agreement") by and among the Company, Manhattan Research and
Manhattan Pharmaceuticals Acquisition Corp, the Company's wholly owned
subsidiary ("MPAC"). In accordance with the terms of the Merger Agreement, MPAC
merged with and into Manhattan Research, with Manhattan Research remaining as
the surviving corporation and our wholly owned subsidiary. Pursuant to the
Merger Agreement, upon the effective time of the merger, the outstanding shares
of common stock of Manhattan Research automatically converted into an aggregate
of 18,689,917 shares of our common stock, which represented 80 percent of our
outstanding voting stock after giving effect to the merger. In addition,
immediately prior to the merger Manhattan Research had outstanding options and
warrants to purchase an aggregate of 172,856 shares of its common stock, which,
in accordance with the terms of the merger, automatically converted into options
and warrants to purchase an aggregate of 2,196,944 shares of our common stock.
Since the stockholders of Manhattan Research received the majority of our voting
shares, the merger was being accounted for as a reverse acquisition whereby
Manhattan Research was the accounting acquirer (legal acquiree) and we were the
accounting acquiree (legal acquirer). Based on the five-day average price of our
common stock of $0.50 per share, the purchase price approximated $2,336,000 plus
approximately $33,000 of acquisition costs, which represents 20 percent of the
market value of the combined Company's post-merger total outstanding shares of
23,362,396. In connection with the merger, we changed our name from "Atlantic
Technology Ventures, Inc." to "Manhattan Pharmaceuticals, Inc." At the time of
the merger, Manhattan Research recognized patents and licenses for substantially
all of the purchase price. As a result of acquiring Manhattan Research, the
Company received new technologies. A formal purchase price allocation was
completed in the third quarter of 2003.
In April 2003, we entered into a license and development agreement with
NovaDel Pharma, Inc. ("NovaDel"), under which we received certain worldwide,
exclusive rights to develop and commercialize products related to NovaDel's
proprietary lingual spray technology for delivering propofol for pre-procedural
sedation. Under the terms of this agreement, we agreed to use our commercially
reasonable efforts to develop and commercialize the licensed products, to obtain
necessary regulatory approvals and to thereafter exploit the licensed products.
The agreement also provides that NovaDel will undertake to perform, at our
expense, a substantial portion of the development activities, including without
limitation, preparation and filing of various applications with applicable
regulatory authorities.
In consideration of the license, upon the occurrence of certain
development and regulatory events, we are obligated to make payments to NovaDel
upon the occurrence of certain milestones, including filing a New Drug
Application or "NDA" that is accepted for review by the FDA for a licensed
product, filing a European Marketing Application for a licensed product, having
a filed NDA approved by the FDA, having a European Marketing Application
accepted for review within the European Union, receiving commercial approval in
Japan, Canada, Australia and South Africa, and upon receiving regulatory
approval in certain other countries. The aggregate amount of the milestone
payments is significant in light of our currently available resources. In
addition, we are obligated to pay to NovaDel an annual royalty based on a fixed
rate of net sales of licensed products, or if greater, the annual royalty is
based on our net profits from the sale of licensed products at a rate that is
twice the net sales rate. In the event we sublicense the licensed product to a
third party, we are obligated to pay royalties based on a fixed rate of fees or
royalties received from the sublicensee until such time as we recover our
out-of-pocket costs, and thereafter the royalty rate doubles. Because of the
continuing development efforts required of NovaDel under the agreement, the
royalty rates are substantially higher than customary for the industry. We are
also required to pay an up-front fee in installments contingent on whether we
receive certain amounts through financings, revenues or otherwise. To date, we
have paid and expensed $125,000 of such up-front fee.
NovaDel may terminate the agreement (i) upon 10 days' notice if we fail to
make any required milestone or royalty payments, (ii) if we fail to obtain
financing of at least $5,000,000 by March
17
31, 2004 (see above), or (iii) if we become bankrupt or if a petition in
bankruptcy or insolvency is filed and not dismissed within 60 days or if we
become subject to a receiver or trustee for the benefit of creditors. Each party
may terminate the agreement upon 30 days' written notice and an opportunity to
cure in the event the other party committed a material breach or default. We may
also terminate the agreement for any reason upon 90 days' notice to NovaDel.
Our common stock is quoted on the OTC Bulletin Board under the symbol
"MHTT.OB". This has an adverse effect on the liquidity of our common stock, not
only in terms of the number of shares that can be bought and sold at a given
price, but also through delays in the timing of transactions and reduction in
security analysts' and the media's coverage of us. This may result in lower
prices for shares of our common stock than might otherwise be obtained and could
also result in a larger spread between the bid and asked prices for shares of
our common stock.
CRITICAL ACCOUNTING POLICIES
In December 2001, the SEC requested that all registrants discuss their
most "critical accounting policies" in management's discussion and analysis of
financial condition and results of operations. The SEC indicated that a
"critical accounting policy" is one which is both important to the portrayal of
the company's financial condition and results and requires management's most
difficult, subjective or complex judgments, often as a result of the need to
make estimates about the effect of matters that are inherently uncertain. Our
significant accounting policies are described in Note 1 to our consolidated
financial statements included in our previously filed Annual Report on Form
10-KSB for the year ended December 31, 2002; however, we believe that none of
them is considered to be critical.
RECENTLY ISSUED ACCOUNTING STANDARDS
In June 2002, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 146, "Accounting for
Costs Associated with Exit or Disposal Activities." SFAS No.146 addresses
financial accounting and reporting for costs associated with exit or disposal
activities and nullifies Emerging Issues Task Force ("EITF") issue No. 94-3,
"Liability Recognition for Certain Employee Termination Benefits and Other Costs
to Exit and Activity." SFAS No. 146 requires that liability for a cost
associated with an exit or disposal activity be recognized when the liability is
incurred. This statement also established that fair value is the objective for
initial measurement of the liability. The provisions of SFAS No. 146 are
effective for exit or disposal activities that initiated after December 31,
2002. The adoption of SFAS No. 146 did not have a material impact on our
consolidated financial statements.
In December 2002, FASB issued SFAS No. 148, "Accounting for Stock-Based
Compensation- Transition and Disclosure an Amendment of SFAS No. 123." SFAS No.
148 amends SFAS No. 123 to provide alternative methods of transition for a
voluntary change to the fair value based method of accounting for stock-based
employee compensation. In addition, SFAS No. 148 amends the disclosure
requirements of SFAS No. 123 to require prominent disclosures in both annual and
interim financial statements about the method of accounting for stock- based
employee compensation and the effect of the method used on reported results. The
Company adopted the disclosure provisions of SFAS No. 148, effective January 1,
2003.
18
Item 3. Controls and Procedures
As of September 30, 2003, we carried out an evaluation, under the
supervision and with the participation of our chief executive and chief
financial officers, of the effectiveness of the design and operation of our
disclosure controls and procedures (as defined in Rules 13a-14(c) and 15d-14(c)
of the Securities Exchange Act of 1934). Based upon that evaluation, our Chief
Executive Officer and Chief Financial Officer concluded that our disclosure
controls and procedures are effective in alerting them on a timely basis to
material information required to be disclosed in our periodic reports to the
Securities and Exchange Commission. During the quarter ended September 30, 2003,
there have been no significant changes in our internal controls over financial
reporting or in other factors, which have significantly affected, or are
reasonably likely to significantly affect, our internal controls over financial
reporting subsequent to such evaluation.
19
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
In connection with the sale of the Company's rights to the CT-3
technology, on August 22, 2003, the Company settled its arbitration proceeding
with Dr. Sumner Burstein, the inventor of the CT-3 technology. The terms of the
settlement included a complete mutual release from all claims that either party
had against the other. The Company is not a party to any other material legal
proceedings and is not aware of any threatened litigation that would have a
material adverse effect on its business.
Item 4. Submission of Matters to a Vote of Security Holders.
In August 2003, the Company obtained the written consent of holders of
13,216,694 shares of our common stock approving an amendment to our certificate
of incorporation that effected a combination of our common stock on a 1-for-5
basis. In accordance with the Company's bylaws and the General Corporation Law
of Delaware, the Company did not hold a meeting of stockholders with respect to
this action. The action taken by such written consent was described in more
detail in the Company's Notice of Action to be Taken by Written Consent of
Stockholders in Lieu of a Special Meeting and Information Statement, which was
mailed to the Company's stockholders and filed with the Securities and Exchange
Commission on August 28, 2003.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit No. Description
- ----------- -----------
3.1 Certificate of Incorporation, as amended through September 25,
2003.
31.1 Certification of Chief Executive Officer
31.2 Certification of Chief Financial Officer
32.1 Certifications of Chief Executive and Chief Financial Officer
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
(b) Reports on Form 8-K
On August 15, 2003, we filed a Current Report on Form 8-K disclosing under
Item 5 thereof a notice in accordance with Rule 135c under the Securities Act of
1933. On September 23, 2003, we filed a Current Report on Form 8-K disclosing
(i) our sale of the CT-3 technology to Indevus Pharmaceuticals, Inc., (ii) the
resolution of our arbitration proceeding with Dr. Sumner Burstein, and (iii)
Bausch & Lomb, Inc.'s decision not to pursue the development of our Avantix
technology.
20
SIGNATURES
In accordance with the requirements of the Exchange Act of 1934, the
registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
MANHATTAN PHARMACEUTICALS, INC.
Date: November 14, 2003 By: /s/ Leonard Firestone
-------------------------------------
Leonard Firestone
President and Chief Executive Officer
Date: November 14, 2003 By: /s/ Nicholas J. Rossettos
-------------------------------------
Nicholas J. Rossettos
Chief Financial Officer and
Chief Operating Officer
21
Exhibit Index
Exhibit No. Description
- ----------- -----------
3.1 Certificate of Incorporation, as amended through September 25,
2003.
31.1 Certification of Chief Executive Officer
31.2 Certification of Chief Financial Officer
32.1 Certifications of Chief Executive and Chief Financial Officer
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
22
Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF ATLANTIC PHARMACEUTICAL, INC.
[as amended through September 25, 2003]
I, the sole director, for purposes of restating the Certificate of
Incorporation of Atlantic Pharmaceuticals, Inc., a Delaware corporation which
has not received payment for any of its stock and which was originally
incorporated on May 18, 1993 under this same name (the "Corporation"), hereby
certificate as follows:
1. This Restated Certificate of Incorporation of the Corporation has been
duly adopted in accordance with the provisions of Sections 241 and 245 of the
General Corporation Law of the State of Delaware.
2. The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
FIRST: The name of the corporation is Manhattan Pharmaceuticals, Inc.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle, and the name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: A. The corporation is authorized to issue two classes of stock
designated "Common Stock" and "Preferred Stock," respectively. The total number
of shares of Common Stock authorized to be issued is 150,000,000, and each such
share will have a par value of $0.001. The total number of shares of Preferred
Stock authorized to be issued is 10,000,000, and each such share will have a par
value of $0.001.
B. Effective 12:01 a.m. on September 25, 2003 (the "Effective Time")
every five (5) shares of Common Stock of the Corporation issued and
outstanding immediately prior to the Effective Time ("Old Common Stock")
shall automatically be combined, without any action on the part of the
holder thereof, into one (1) share of fully paid and nonassessable Common
Stock of the Corporation ("New Common Stock"), subject to the treatment of
fractional share interests described below.
C. Following the Effective Time, each holder of Old Common Stock
shall be entitled to receive upon surrender of such holder's
certificate(s) representing Old Common Stock (whether one or more, "Old
Certificates") for cancellation pursuant to procedures adopted by the
Corporation, a certificate(s) representing the number of whole shares of
New Common Stock (whether one or more, "New Certificates") into which and
for which the shares of Old Common Stock formerly represented by such Old
Certificates so surrendered are reclassified under the terms hereof. From
and after the Effective Time, until surrendered for exchange, each
outstanding Old Certificate shall be deemed for all purposes to represent
(i) the whole number of shares of New Common Stock into which the Old
Common Stock represented by such Old Certificate shall be combined, and
(ii) the right to receive New Certificates and, where applicable, cash in
lieu of fractional shares, as provided below.
D. No fractional shares of Common Stock of the Corporation shall be
issued. No stockholder of the Corporation shall transfer any fractional
shares of Common Stock of the Corporation. The Corporation shall not
recognize on its stock record books any purported transfer of any
fractional share of Common Stock of the Corporation. A holder of Old
Certificates at the Effective Time who would otherwise be entitled to a
fraction of a share of New Common Stock shall, in lieu thereof, be
entitled to receive a cash payment in an amount equal to the fraction to
which the stockholder would otherwise be entitled multiplied by the last
reported per share sale price of the Common Stock on the day immediately
prior to the Effective Time, as reported on the Over-the-Counter Bulletin
Board (or if such price is not available, then such other price as
determined by the Board of Directors).
E. Shares of Preferred Stock may be issued from time to time in one
or more series. The Board of Directors is hereby authorized, by adopting
appropriate resolutions and causing one or more certificates of amendment
to be signed, verified and delivered in accordance with the General
Corporation Law, to establish from time to time the number of shares to be
included in such series, and to fix the designations, relative rights,
preferences and limitations of the shares of each such series. Such
designations, relative rights, preferences and limitations may include,
but are not limited to, the fixing or alteration of the dividend rights,
dividend rate, conversion rights, exchange rights, voting rights, rights
and terms of redemption (including sinking fund provisions), the
redemption price or prices, and the liquidation preferences of any wholly
unissued series of shares of Preferred Stock, or any of them. In
accordance with the authority hereby granted, the Board of Directors may
increase or decrease the number of shares of any series subsequent to the
issue of shares of that series, but not above the total number of
authorized shares of Preferred Stock and not below the number of shares of
such series then outstanding. In case the number of shares of any series
shall be so decreased, the shares constituting such decrease shall resume
the status that they had prior to the adoption of the resolution
originally fixing the number of shares of such series. Except as may
otherwise be required by law or this Certificate of Incorporation, the
terms of any series of Preferred Stock may be amended without the consent
of the holders of any other series of Preferred Stock, or Common Stock.
FIFTH: The number of directors which shall constitute the whole Board of
Directors shall be fixed by, or in the same manner provided in, the Bylaws of
the Corporation.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind the Bylaws of the Corporation.
SEVENTH: Election of directors at an annual or special meeting of
stockholders need not be made by written ballot unless the Bylaws of the
Corporation shall so provide.
EIGHTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware, may, on application in a summary way
of the Corporation or of any creditor or stockholder thereof on the application
or any receiver or receivers appointed for the Corporation under the provisions
of Section 291 of Title 8 of the Delaware Code or on the application of the
trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or
2
class of creditors, and/or of the stockholders or a class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, the binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders or class of stockholders, of the Corporation, as the case may be,
and also on the Corporation.
NINTH: The personal liability of directors of the Corporation is hereby
eliminated to the fullest extent permitted by paragraph 7 of Subsection (b) of
Section 102 of the General Corporation Law of the State of Delaware as the same
may be amended and supplemented.
TENTH: The Corporation shall, to the full extent permitted by Section 145
of the Delaware General Corporation Law, as amended and supplemented from time
to time, indemnify all persons whom it may indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such person.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation.
IN WITNESS WHEREOF, the undersigned being the sole member of the Board of
Directors has duly executed this certificate in the name and on behalf of
Atlantic Pharmaceuticals, Inc., and affirms that the statements made herein are
true under the penalties of perjury, this 1st day of July, 1990.
ATLANTIC PHARMACEUTICALS, INC.
By: /s/ Lindsay A. Rosenwald
-------------------------------------
Name: Lindsay A. Rosenwald
Title: Sole Director
[Including amendments filed on or about September 5, 1995, October 6, 1998,
February 21, 2003 and September 22, 2003, all of which are reflected in the
above Restated Certificate of Incorporation.]
3
EXHIBIT 31.1
CERTIFICATIONS
I, Leonard Firestone, certify that:
1. I have reviewed this Quarterly Report on Form 10-QSB of Manhattan
Pharmaceuticals, Inc. (the "Registrant");
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the Registrant as of, and for, the periods presented in this report;
4. The Registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Registrant
and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
Registrant, including its consolidated subsidiaries, is made known
to us by others within those entities, particularly during the
period in which this report is being prepared;
(b) Evaluated the effectiveness of the Registrant's disclosure controls
and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of
the end of the period covered by this report based on such
evaluation; and
(c) Disclosed in this report any change in the Registrant's internal
control over financial reporting that occurred during the
Registrant's most recent fiscal quarter (the Registrant's fourth
fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the
Registrant's internal control over financial reporting; and
5. The Registrant's other certifying officer(s) and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the Registrant's auditors and the audit committee of the
Registrant's board of directors (or persons performing the equivalent
functions):
(a) All significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Registrant's ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the Registrant's
internal control over financial reporting.
Date: November 14, 2003 /s/ Leonard Firestone
----------------------------------------
Leonard Firestone
President and Chief Executive Officer
EXHIBIT 31.2
CERTIFICATIONS
I, Nicholas J. Rossettos, certify that:
1. I have reviewed this Quarterly Report on Form 10-QSB of Manhattan
Pharmaceuticals, Inc. (the "Registrant");
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the Registrant as of, and for, the periods presented in this report;
4. The Registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) for the small business issuer and
have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
Registrant, including its consolidated subsidiaries, is made known
to us by others within those entities, particularly during the
period in which this report is being prepared;
(b) Evaluated the effectiveness of the Registrant's disclosure controls
and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of
the end of the period covered by this report based on such
evaluation; and
(c) Disclosed in this report any change in the Registrant's internal
control over financial reporting that occurred during the
Registrant's most recent fiscal quarter (the Registrant's fourth
fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the
Registrant's internal control over financial reporting; and
5. The Registrant's other certifying officer(s) and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the Registrant's auditors and the audit committee of the
Registrant's board of directors (or persons performing the equivalent
functions):
(a) All significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Registrant's ability to
record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the Registrant's
internal control over financial reporting.
Date: November 14, 2003 /s/ Nicholas J. Rossettos
----------------------------------------
Nicholas J. Rossettos
Chief Financial Officer and
Chief Operating Officer
Exhibit 32.1
CERTIFICATION
OF
CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER
Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002, each of the undersigned officers of Manhattan
Pharmaceuticals, Inc. do hereby certify that:
(a) the Quarterly Report on Form 10-QSB of Manhattan
Pharmaceuticals, Inc. for the quarter ended September 30, 2003 (the "Report:)
fully complies with the requirements of Section 13(a) or 15(d) of the Securities
Exchange Act of 1934; and
(b) information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations of
Manhattan Pharmaceuticals, Inc.
Dated: November 14, 2003 /s/ Leonard Firestone
----------------------------------------
Leonard Firestone
President and Chief Executive Officer
Dated: November 14, 2003 /s/ Nicholas J. Rossettos
----------------------------------------
Nicholas J. Rossettos
Chief Financial Officer and
Chief Operating Officer
