As filed with the Securities and Exchange Commission on February 17, 2004
Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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MANHATTAN PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 787 Seventh Avenue, 48th Floor 36-3898269
(State or other New York, NY 10019 (I.R.S. Employer
jurisdiction of Telephone (212) 554-4525 Identification No.)
Incorporation or Facsimile (212) 554-4545
organization) (Address of principal executive offices)
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Common Stock Options Issued Outside of Any Plan
between April 12, 2000 and February 24, 2003
(Full title of the Plans)
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Nicholas J. Rossettos Copies to:
Chief Financial Officer Christopher J. Melsha, Esq.
Manhattan Pharmaceuticals, Inc. Maslon Edelman Borman & Brand, LLP
787 Seventh Avenue, 48th Floor 90 South 7th Street, Suite 3300
New York, NY 10019 Minneapolis, Minnesota 55402
Telephone (212) 554-4555 Telephone: (612) 672-8200
(Name and address of agent for Facsimile: (612) 642-8343
service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount to Offering Aggregate Amount of
Securities to be Registered be Price Offering Registration
Registered Per Share Price Fee
(1) (2)
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Common Stock, par value 876,090 $0.40 $350,436 $44.40
$.001 per share
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Common Stock, par value 5,000 4.38 $21,900 $2.77
$.001 per share
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Common Stock, par value 5,000 20.94 $104,700 $13.27
$.001 per share
- ----------------------------------------------------------------------------
Common Stock, par value 189,000 1.25 $236,250 $29.93
$.001 per share
- ----------------------------------------------------------------------------
Common Stock, par value 115,000 1.00 $115,000 $14.57
$.001 per share
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TOTAL: 1,190,090 $828,286 $104.94
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(1) There is also being registered hereunder an indeterminate
number of shares of common stock as shall be issuable as a
result of a stock split, stock dividend, combination or
other change in the outstanding shares of common stock.
(2) The Offering Price per Share in based upon the exercise
price of each of the options, in accordance with Rule 457(g).
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PART I
As permitted by the rules of the Securities and Exchange Commission, this
registration statement omits the information specified in Part I of Form S-8.
The documents containing the information specified in Part I of this
registration statement will be sent or given to eligible employees as specified
in Rule 428(b) promulgated under the Securities Act of 1933, as amended (the
"Securities Act"). Such documents are not being filed with the Commission either
as part of this registration statement or as prospectuses or prospectus
supplements pursuant to Rule 424 promulgated under the Securities Act.
PART II
Item 3. Incorporation of Documents by Reference.
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The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference herein:
1. Annual Report on Form 10-KSB for the fiscal year ended December 31, 2002
(filed on April 14, 2003);
2. Quarterly Reports on Form 10-QSB for the quarters ended March 31, 2003
(including amendment thereto filed on August 11, 2003), June 30, 2003,
and September 30, 2003;
3. Current Reports on Form 8-K filed March 10, 2003, August 15, 2003,
September 23, 2003, and November 11, 2003, and on Form 8-K/A filed May
9, 2003; and
4. The description of capital stock as set forth on Form 8-A filed on
November 28, 1995 (No. 00-27282).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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As a condition to consenting to allow the Registrant to incorporate by
reference into this registration statement its audit report, KPMG LLP ("KPMG")
has required the Registrant, and the Registrant has agreed, to indemnify and
hold KPMG harmless against and from any and all legal costs and expenses
incurred by KPMG in successful defense of any legal action or proceeding that
arises as a result of KPMG's consent to the incorporation by reference of its
audit report on the Registrant's past financial statements incorporated by
reference in this registration statement.
Item 6. Indemnification of Directors and Officers.
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Under provisions of the certificate of incorporation and bylaws of the
Registrant, directors and officers will be indemnified for any and all
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys fees, in connection with threatened, pending or completed actions,
suits or proceedings, whether civil, or criminal, administrative or
investigative (other than an action arising by or in the right of the
Registrant), if such director or officer has been wholly successful on the
merits or otherwise, or is found to have acted in good faith and in a manner he
or she reasonably believes to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. In addition,
directors and officers will be indemnified for reasonable expenses in connection
with threatened, pending or completed actions or suits by or in the right of
Registrant if such director or officer has been wholly successful on the merits
or otherwise, or is found to have acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Registrant, except in the case of certain findings by a court that such person
is liable for negligence or misconduct in his or her duty to the Registrant
unless such court or the Delaware Court of Chancery also finds that such person
is nevertheless fairly and reasonably entitled to indemnity. The Registrant's
Certificate of Incorporation also eliminates the liability of directors of the
Registrant for monetary damages to the fullest extent permissible under Delaware
law.
Section 145 of the Delaware General Corporation Law states:
"(a) A corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action arising by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect to any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expense which the Court of Chancery or
such other court shall deem proper."
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit Description
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4.1 Registrant's 1995 Stock Option Plan (incorporated by reference to
Exhibit 10.18 to the Registrant's Form 10-QSB for the quarter
ended September 30, 1996).
4.2 Form of Notice of Stock Option Grant issued to employees of the
Registrant from April 12, 2000 to February 21, 2003 (incorporated
by reference to Exhibit 99.2 to the Registrant's Registration
Statement on Form S-8 filed March 24, 1998 (File No. 333-48531)).
4.3 Schedule of Notices of Stock Option Grants, the form of which is
attached as Exhibit 4.2.
4.4 Form of Stock Option Agreement issued to employees of the
Registrant from April 12, 2000 to February 21, 2003 (incorporated
by reference to Exhibit 99.3 to the Registrant's Registration
Statement on Form S-8 filed March 24, 1998 (File No. 333-48531)).
5.1 Opinion of Maslon Edelman Borman & Brand, LLP.
23.1 Consent of J.H. Cohn LLP.
23.2 Consent of Weinberg & Company, P.A.
23.3 Consent of KPMG LLP.
23.4 Consent of Maslon Edelman Borman & Brand, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included on signature page hereof).
Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person connected with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City and State of New York, on the 11th day of February,
2004.
Manhattan Pharmaceuticals, Inc.
By: /s/ Leonard Firestone
Leonard Firestone
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature to this Registration Statement appears below
hereby constitutes and appoints Nicholas J. Rossettos as his or her true and
lawful attorney-in-fact and agent, with full power of substitution, to sign on
his or her behalf individually and in the capacity stated below and to perform
any acts necessary to be done in order to file all amendments to this
Registration Statement and any and all instruments or documents filed as part of
or in connection with this Registration Statement or the amendments thereto and
each of the undersigned does hereby ratify and confirm all that said
attorney-in-fact and agent, or his substitutes, shall do or cause to be done by
virtue hereof. The undersigned also grants to said attorney-in-fact, full power
and authority to do and perform any and all acts necessary or incidental to the
performance and execution of the powers herein expressly granted. This Power of
Attorney shall remain in effect until revoked in writing by the undersigned.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
Registration Statement has been signed as of the 11th day of February, 2004, by
the following persons in the capacities indicated.
Name Title
---- -----
/s/ Leonard Firestone President and Chief Executive
-------------------------
Leonard Firestone Officer (Principal Executive
Officer)
/s/ Nicholas J. Rossettos Chief Operating Officer, Chief
-------------------------
Nicholas J. Rossettos Financial Officer, Treasurer and
Secretary (Principal Financial
and Accounting Officer)
/s/ Joshua Kazam Director
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Joshua Kazam
/s/ Joan Pons Gimbert Director
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Joan Pons Gimbert
/s/ David M. Tanen Director
-------------------------
David M. Tanen
/s/ Michael Weiser Director
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Michael Weiser
INDEX TO EXHIBITS
Exhibit Description
4.1 Registrant's 1995 Stock Option Plan (incorporated by reference to
Exhibit 10.18 to the Registrant's Form 10-QSB for the quarter
ended September 30, 1996).
4.2 Form of Notice of Stock Option Grant issued to employees
of the Registrant from April 12, 2000 to February 21,
2003 (incorporated by reference to Exhibit 99.2 to the
Registrant's Registration Statement on Form S-8 filed March 24,
1998 (File No. 333-48531)).
4.3 Schedule of Notices of Stock Option Grants, the form of which is
attached as Exhibit 4.2.
4.4 Form of Stock Option Agreement issued to employees of the
Registrant from April 12, 2000 to February 21, 2003 (incorporated
by reference to Exhibit 99.3 to the Registrant's Registration
Statement on Form S-8 filed March 24, 1998 (File No. 333-48531)).
5.1 Opinion of Maslon Edelman Borman & Brand, LLP.
23.1 Consent of J.H. Cohn LLP.
23.2 Consent of Weinberg & Company, P.A.
23.3 Consent of KPMG LLP.
23.4 Consent of Maslon Edelman Borman & Brand, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included on signature page hereof).
EXHIBIT 4.3
The following schedule identifies the material details of the respective option
agreements issued by the Registrant substantially identical to the form of
Notice of Option Grant incorporated by reference into the accompany registration
statement as Exhibit 4.2. Although not issued pursuant to the Registrant's 1995
Stock Option Plan, each Notice of Option Grant incorporates all of the terms of
such plan. A copy of the 1995 Stock Option Plan is incorporated by reference
into the accompanying registration statement as Exhibit 4.1.
Option Holder Issuance Date No. of Shares Exercise Price ($) Termination
Date
------------- ------------- ------------- ------------------ -----------
Leonard Firestone. 2/24/2003 584,060 (1) 0.40 2/24/2013
A. Joseph Rudick.. 4/12/2000 5,000 (2) 20.94 4/12/2010
2/20/2001 5,000 (2) 4.38 2/20/2011
2/19/2002 25,000 (2) 1.25 2/19/2012
2/19/2002 25,000 (3) 1.25 2/19/2012
2/19/2002 25,000 (4) 1.25 2/19/2012
3/28/2002 25,000 (5) 1.00 3/28/2012
Frederic P. Zotos. 2/19/2002 25,000 (6) 1.25 2/19/2012
2/19/2002 50,000 (4) 1.25 2/19/2012
3/28/2002 50,000 (5) 1.00 3/28/2012
Nicholas J.
Rossettos......... 2/19/2002 10,000 (2) 1.25 2/19/2012
2/19/2002 10,000 (3) 1.25 2/19/2012
2/19/2002 10,000 (4) 1.25 2/19/2012
3/28/2002 25,000 (5) 1.00 3/28/2012
2/24/2003 292,030 (1) 0.40 2/24/2013
Michael L. Ferrari 2/19/2002 3,000 (6) 1.25 2/19/2012
2/19/2002 6,000 (4) 1.25 2/19/2012
3/28/2002 10,000 (5) 1.00 3/28/2012
Sarah E. Laut..... 2/19/2002 2,000 (6) 1.25 2/19/2012
2/19/2002 4,000 (4) 1.25 2/19/2012
3/28/2002 5,000 (5) 1.00 3/28/2012
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(1) Option vests 50% on first anniversary of grant date and then 50% on
second anniversary.
(2) Option vested 25% on issuance and then 25% on each anniversary thereafter.
(3) Option vests upon the earlier of FDA approval of Avantix or 5 years
from grant date; provided that to the extent optionee ceases to provide
services to the Registrant before such vesting date, the option does not
vest.
(4) Option vested entirely in June 2002 upon the Registrant's license of
its former rights to CT-3 to Indevus Pharmaceuticals, Inc. and remains
exercisable for entire term of the option regardless of any change in
optionee's employment status with the Registant.
(5) Option vested upon issuance and remains exercisable for entire term of
the option without regard to any change in optionee's employment status
with the Registrant.
(6) Represents one-half of original grant, which one-half was vested at
February 21, 2003, the time of optionee's employment termination;
remainder of option grant lapsed.
EXHIBIT 5.1
February 12, 2004
Manhattan Pharmaceuticals, Inc.
787 Seventh Avenue, 48th Floor
New York, NY 10019
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted on behalf of Manhattan Pharmaceuticals, Inc. (the "Company")
in connection with a Registration Statement on Form S-8 (the "Registration
Statement") filed by the Company with the Securities and Exchange Commission
relating to registration of an aggregate of 1,190,090 shares of Common Stock,
$.001 par value, to be issued by the Company (the "Shares"), pursuant to the
terms of various option grants made by the Company to certain current and former
employees pursuant to option agreements dated from April 12, 2000 to February
24, 2003 outside of any plan (collectively, the "Options"). Upon examination of
such corporate documents and records as we have deemed necessary or advisable
for the purposes hereof, it is our opinion that:
1. The Company is a validly existing corporation in good standing under
the laws of the State of Delaware.
2. The Shares, when issued and paid for as contemplated by the Options,
and when delivered against payment thereof in the manner
contemplated by the Options, will be validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Maslon Edelman Borman & Brand, LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report, which is included in the Company's Form 8-K/A filed with
the Securities and Exchange Commission on May 9, 2003 and contains an
explanatory paragraph relating to Manhattan Research and Development, Inc.'s
(formerly known as Manhattan Pharmaceuticals, Inc.) ability to continue as a
going concern, dated February 14, 2003, except for Notes 1, 2, and 10, which are
as of February 21, 2003 on the financial statements of Manhattan Research
Development, Inc. as of December 31, 2002, and for the year then ended and for
the period from August 1, 2001 (date of inception) to December 31, 2002. We also
consent to the incorporation by reference in this registration statement on Form
S-8 of our report, which is included in the Company's Annual Report on Form
10-KSB filed with the Securities and Exchange Commission on April 14, 2003 and
contains an explanatory paragraph relating to Manhattan Pharmaceuticals, Inc.'s
(formerly known as Atlantic Technology Ventures, Inc.) ability to continue as a
going concern, dated February 14, 2003, except for Notes 1 and 14 which are as
of February 21, 2003 and Note 13 which is as of March 1, 2003 on the
consolidated financial statements of Manhattan Pharmaceuticals, Inc. as of
December 31, 2002 and for the year then ended and for the period from July 13,
1993 (date of inception) to December 31, 2002.
/s/ J.H. COHN LLP
Roseland, New Jersey
February 11, 2004
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the foregoing
Registration Statement on Form S-8 of our report dated November 1, 2002,
relating to the financial statements of Manhattan Pharmaceuticals, Inc. as of
December 31, 2001 and for the period from August 6, 2001 (inception) to December
31, 2001, which appears in the Registrant's Form 8-K, filed with the Securities
and Exchange Commission on May 9, 2003.
/s/ Weinberg & Company, P.A.
Weinberg & Company, P.A.
Certified Public Accountants
Boca Raton, Florida
February 12, 2004
EXHIBIT 23.3
Independent Auditors' Consent
The Board of Directors
Manhattan Pharmaceuticals, Inc.
(formerly Atlantic Technology Ventures, Inc.):
We consent to the use of our report dated March 22, 2002, with respect to the
consolidated balance sheet of Manhattan Pharmaceuticals, Inc. (formerly Atlantic
Technology Ventures, Inc. (a development stage company)) as of December 31,
2001, and the related consolidated statements of operations, stockholders'
equity (deficiency), and cash flows for the years ended December 31, 2001 and
2000, and for the period from July 13, 1993 (inception) to December 31, 2001,
incorporated herein by reference.
Our report dated March 22, 2002 contains an explanatory paragraph that states
that the Company has suffered recurring losses from operations and has limited
liquid resources that raise substantial doubt about its ability to continue as a
going concern. The consolidated financial statements do not include any
adjustments that might result from the outcome of that uncertainty.
/s/ KPMG LLP
Short Hills, New Jersey
February 11, 2004