| As filed with the Securities and Exchange Commission on June 18, 2007 | Registration No. 333-______ |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_________________________________
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________________
MANHATTAN
PHARMACEUTICALS, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
36-3898269
|
|
|
(State
or other jurisdiction of
Incorporation
or organization)
|
810
Seventh Avenue
New
York, New York 10019
Telephone
(212) 582-3950
Facsimile
(212) 582-3957
|
(I.R.S.
Employer
Identification
No.)
|
|
|
|
(Address
of principal executive offices)
_______________________________
2003
STOCK OPTION PLAN
(Full
title of the Plan)
__________________________
|
Michael
G. McGuinness
Chief
Financial Officer
Manhattan
Pharmaceuticals, Inc.
810
Seventh Avenue
New
York, New York 10019
Telephone
(212) 582-3950
Facsimile
(212) 582-3957
(Name
and address of agent for service)
|
Copies
to:
Christopher
J. Melsha, Esq.
Maslon
Edelman Borman & Brand, LLP
90
South 7th Street, Suite 3300
Minneapolis,
Minnesota 55402
Telephone:
(612) 672-8200
Facsimile:
(612) 642-8343
|
__________________________________
|
CALCULATION
OF REGISTRATION
FEE
|
||||
|
Title
of
Securities
to be Registered
|
Proposed
Maximum
Amount to be Registered
(1)
|
Proposed
Maximum
Offering
Price
Per
Share (2)
|
Aggregate
Offering
Price (2)
|
Amount
of
Registration
Fee
|
|
Common
Stock, par value $.001 per share (3)
|
5,000,000
(3)
|
$0.80
|
$4,000,000
|
$122.80
(4)
|
| (1) |
In
addition, pursuant to Rule 416(a) under the Securities Act of 1933,
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) |
Estimated
solely for the purpose of determining the registration fee pursuant
to
Rule 457(c) and (h) and based upon the average low and high prices
of our
Common Stock on June 14, 2007, as reported on the American Stock
Exchange.
|
| (3) |
The
Registrant’s 2003 Stock Option Plan (the “2003 Plan”) authorizes the
issuance of a maximum of 10,400,000 shares of the Registrant’s common
stock, of which 5,400,000 shares were previously registered on Form
S-8,
File No. 333-112889, filed on February 17, 2004. The contents of
such
prior registration statement is incorporated by reference herein.
This
registration statement registers an additional 5,000,000 shares under
the
2003 Plan.
|
| (4) |
Registration
fees are currently being paid with respect to the 5,000,000 shares
under
the 2003 Plan being registered under this registration statement.
We
previously registered 5,400,000 shares under the 2003 Plan for which
a fee
was previously paid. See “Incorporation of Contents of Registration
Statement by Reference.”
|
INCORPORATION
OF CONTENTS OF REGISTRATION STATEMENT BY REFERENCE
A
registration statement on Form S-8 (File No. 333-112889) was filed with the
Securities and Exchange Commission on February 17, 2004 covering the
registration of 5,400,000 shares initially authorized for issuance under our
2003 Stock Option Plan (the “2003 Plan”). Pursuant to Rule 429 and General
Instruction E of Form S-8, this registration statement is being filed to
register an additional 5,000,000 shares authorized under the 2003 Plan. This
registration statement should also be considered a post-effective amendment
to
the prior registration statement. The contents of the aforementioned
registration statement are incorporated herein by reference.
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)(1) 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. These
documents and the documents incorporated by reference in the registration
statement pursuant to Item 3 of Part II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities
Act.
I-1
PART
II
Item
3. Incorporation of Documents by Reference.
The
following documents, previously 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,
2006;
|
| 2. |
The
portions of the Registrant’s proxy statement on Schedule 14A filed on
April 30, 2007 that are deemed “filed” with the Commission under the
Securities Exchange Act of 1934, as
amended;
|
| 3. |
Quarterly
Report on Form 10-Q for the quarter ended March 31,
2007;
|
| 4. |
Current
Reports on Form 8-K filed with the Securities and Exchange Commission
on
January 12, 2007, February 5, 2007, March 30, 2007, April 5, 2007,
April
9, 2007 and May 31, 2007, respectively;
and
|
| 5. | The description of our common stock set forth in the registration statement on Form 8-A filed with the Securities and Exchange Commission on October 6, 2005, including any amendments or reports filed for the purpose of updating such information. |
All
documents subsequently filed 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.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Under
provisions of our amended and restated certificate of incorporation and amended
bylaws, directors and officers will be indemnified for any and all judgments,
fines, amounts paid in settlement and reasonable expenses, including attorney’s
fees, in connection with threatened, pending or completed actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action arising by or in the right of the Company), 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 Company, 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 the Company, 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 Company, 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 Company unless such court or the Delaware Court of
Chancery also finds that such person is nevertheless fairly and reasonably
entitled to indemnity. Our amended and restated certificate of incorporation
also eliminates the liability of directors 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.
II-1
(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.
Not
applicable.
Item
8. Exhibits.
|
Exhibit
|
Description
|
|
|
5.1
|
Opinion
of Maslon Edelman Borman & Brand, LLP
|
|
|
10.1
|
Manhattan
Pharmaceuticals, Inc. 2003 Stock Option Plan, as amended (incorporated
by
reference to Exhibit 10.1 to the Registrant’s Form 8-K filed May 31,
2007)
|
|
|
23.1
|
Consent
of J.H. Cohn LLP
|
|
|
23.2
|
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.
|
(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 (the “Securities Act”);
(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. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering rage may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
II-2
(iii)
To
include any additional or material information on 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-8, and the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated
by reference in the registration statement.
(2) For
the
purpose of determining any liability under the Securities Act of 1933, each
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.
(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 in connection 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.
II-3
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 June 18, 2007.
| MANHATTAN PHARMACEUTICALS, INC. | ||
| |
|
|
| By: | /s/ Michael G. McGuinness | |
|
Michael G. McGuinness |
||
| Chief Financial Officer | ||
POWER
OF ATTORNEY
Each
person whose signature to this registration statement appears below hereby
constitutes and appoints Douglas Abel and Michael G. McGuinness, signing singly,
as his true and lawful attorney-in-fact and agent, with full power of
substitution, to sign on his 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
attorneys-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 Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated:
|
/s/
Douglas Abel
|
Chief
Executive Officer, President and Director (principal executive
officer)
|
June
18, 2007
|
||
| Douglas Abel | ||||
|
/s/
Michael G. McGuinness
|
Chief
Financial Officer and Secretary (principal financial and accounting
and
officer)
|
June
18, 2007
|
||
|
Michael
G. McGuinness
|
||||
|
/s/
Neil Herskowitz
|
Director
|
June
18, 2007
|
||
|
Neil
Herskowitz
|
||||
|
Malcolm
Hoenlein
|
Director
|
June
18, 2007
|
||
|
/s/
Timothy McInerney
|
Director
|
June
18, 2007
|
||
|
Timothy
McInerney
|
||||
|
/s/
Joan Pons
|
Director
|
June
18, 2007
|
||
|
Joan
Pons
|
||||
| /s/ Richard Steinhart | ||||
|
Richard
Steinhart
|
Director
|
June
18, 2007
|
||
|
/s/
Michael Weiser
|
Director
|
June
18, 2007
|
||
|
Michael
Weiser
|
II-4
INDEX
TO EXHIBITS
|
Exhibit
|
Description
|
|
|
5.1
|
Opinion
of Maslon Edelman Borman & Brand, LLP
|
|
|
10.1
|
Manhattan
Pharmaceuticals, Inc. 2003 Stock Option Plan, as amended (incorporated
by
reference to Exhibit 10.1 to the Registrant’s Form 8-K filed May 31,
2007)
|
|
|
23.1
|
Consent
of J.H. Cohn LLP
|
|
|
23.2
|
Consent
of Maslon Edelman Borman & Brand, LLP (included in Exhibit
5.1)
|
|
|
24.1
|
Power
of Attorney (included on signature page
hereof)
|
Exhibit
5.1
Maslon
Edelman Borman & Brand,
LLP
90
South
Seventh Street, Suite 3300
Minneapolis,
Minnesota 55402
(612)
672-8200
June
18,
2007
Manhattan
Pharmaceuticals, Inc.
810
Seventh Avenue, 4th Floor
New
York,
New York 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 the
registration of an aggregate of 5,000,000 shares of common stock (the “Shares”),
issued or to be issued by the Company, pursuant to the terms of the Company's
2003 Stock Option Plan (the “Plan”). Upon examination of such corporate
documents and records as we have deemed necessary or advisable for the purposes
hereof, it is our opinion that the Shares, when issued and paid for as
contemplated by the Plan, and when delivered against payment thereof in the
manner contemplated by the Plan, 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 REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement of
Manhattan Pharmaceuticals, Inc. on Form S-8 of our report, dated March 2, 2007,
except for Notes 2 and 12 which are as of March 30, 2007, on our audits of
the
financial statements of Manhattan Pharmaceuticals, Inc. included in the Annual
Report on Form 10−KSB of Manhattan Pharmaceuticals, Inc. for the year ended
December 31, 2006.
/s/
J.H.
Cohn LLP
Roseland,
New Jersey
June
11,
2007