Attached files
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EX-31.1 - EX-31.1 - ALSERES PHARMACEUTICALS INC /DE | b78727bexv31w1.htm |
EX-31.2 - EX-31.2 - ALSERES PHARMACEUTICALS INC /DE | b78727bexv31w2.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K/A
Amendment No. 1
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2009
OR
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period
Commission file number 0-6533
ALSERES PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE (State or Other Jurisdiction of Incorporation or Organization) |
87-0277826 (I.R.S. Employer Identification No.) |
|
239 SOUTH STREET HOPKINTON, MASSACHUSETTS (Address of Principal Executive Offices) |
01748 (Zip Code) |
Registrants telephone number, including area code (508) 497-2360
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class | Name of Each Exchange on Which Registered | |
Common Stock, $.01 par value (Excluding Rights to Purchase Preferred Stock) |
Nasdaq Capital Market |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as
defined in Rule 405 of the Securities Act. Yes o No þ
Indicate by check mark if the registrant is not required to file reports pursuant to Section
13 or Section 15(d) of the Act. Yes o No þ
Indicate by check mark whether the registrant: (1) has 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 registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files).
Yes o No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation
S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in
definitive proxy or information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. o
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer o | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company þ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Exchange Act). Yes o No þ
Based on the last sales price of the registrants Common Stock as reported on the NASDAQ
Capital Market on December 31, 2009 (the last business day of our most recently completed fiscal
quarter), the aggregate market value of the shares of voting stock held by nonaffiliates of the
registrant was $1,668,193.
As of April 26, 2010, there were 27,055,645 shares of the registrants Common Stock issued and
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE:
None.
TABLE OF CONTENTS
1 | ||||
4 | ||||
8 | ||||
11 | ||||
14 | ||||
15 | ||||
16 | ||||
17 |
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A (the Amendment) amends the Annual Report on Form 10-K of
Alseres Pharmaceuticals, Inc. (the Company, our or we) for the year ended December 31, 2009
that was originally filed with the Securities and Exchange Commission on March 31, 2010 and is
being filed to provide the information required by Items 10, 11, 12, 13 and 14 of Part III. This
Amendment does not otherwise modify or update disclosures in the original filing, or change our
previously reported financial statements and other financial disclosure.
PART III
ITEM 10. | DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
Directors
In January 2010 we announced that 4 of our 7 directors had resigned their positions effective
immediately. These directors were Messrs. Brem, Frashier, Preston and Langer. At the time of their
resignations and at April 30, 2010 these directors were owed approximately $250,000 in fees for
past services as board members.
At December 31, 2009 our Board of Directors (the Board) consisted of seven directors. Set
forth below are the names of each member of our Board at December 31, 2009, their ages, the year
in which each first became a director and their principal occupations and business experience
during the past five years.
First Year | ||||||||||||||
Elected as | ||||||||||||||
Name | Age | a Director | Resigned | Position(s) with the Company (6) | ||||||||||
Peter G. Savas (5)
|
61 | 2004 | Chairman of the Board of Directors, Chief Executive Officer and Director | |||||||||||
Robert S. Langer, Jr. Sc.D. (3)(4)
|
61 | 2000 | 2010 | Former Director | ||||||||||
Michael J. Mullen, C.P.A. (1)(2)(3)(5)
|
51 | 2004 | Director | |||||||||||
John T. Preston (1)(2)(5)
|
60 | 2004 | 2010 | Former Director | ||||||||||
William Guinness (2)
|
70 | 2006 | Director | |||||||||||
Henry Brem (4)
|
57 | 2007 | 2010 | Former Director | ||||||||||
Gary E. Frashier (1)(3)(4)(5)
|
73 | 2007 | 2010 | Former Director |
(1) | Member of the Compensation Committee. | |
(2) | Member of the Audit Committee. | |
(3) | Member of Nominating and Corporate Governance Committee. | |
(4) | Member of the Science and Technology Committee. | |
(5) | Member of the Finance Committee. | |
(6) | References to committee memberships apply only to the year ended 12/31/2009 for former directors |
The principal occupations and qualifications of each director are as follows:
Peter G. Savas . Mr. Savas has been the Chairman of the Board and our Chief Executive Officer
since September 2004. From March 2004 to September 2004, Mr. Savas was the Managing Partner of
Tughill Partners, a life sciences consulting firm. From September 2000 to March 2004, Mr. Savas
served as Chief Executive Officer and President and, from April 2001 to March 2004, as Chairman, of
Aderis Pharmaceuticals, Inc., a privately-held biopharmaceutical company. From 1992 to 2000, Mr.
Savas served as President of Unisyn, Inc., a contract manufacturer of biologics, and was also
Unisyns Chief Executive Officer from 1995 to 2000. Mr. Savas serves on the board of directors of
pSivida Corp., a leading drug delivery company.
Robert S. Langer, Jr., Sc.D. Dr. Langer was a member of our Board from June 2000 through
January 2010. Dr. Langer is an Institute Professor at the Massachusetts Institute of Technology
(MIT) and has been on the faculty of MIT since 1977. Dr. Langer serves on the boards of directors
of Momenta Pharmaceuticals, Inc., a biotechnology company, Echo Therapeutics, Inc., a medical
device and specialty pharmaceutical company, and Wyeth, a pharmaceutical company. In addition, Dr.
Langer is on the board of directors of several private companies.
1
Michael J. Mullen, C.P.A. Mr. Mullen has been a member of our Board since June 2004. Mr.
Mullen has been the Chief Financial Officer of Magellan Biosciences, Inc., a clinical diagnostics
company, since July 2006. From March 2006 to July 2006, Mr. Mullen was an independent consultant.
From February 2003 to March 2006, Mr. Mullen was the Chief Financial Officer of JMH Capital, a
private equity firm. From September 2000 to December 2002, Mr. Mullen was the Chief Financial
Officer of Magellan Discovery Technologies, a private equity sponsored buyout firm.
John T. Preston . Mr. Preston was a member of our Board from June 2004 through January 2010.
Mr. Preston has been a Partner of C Change Investments since June 2008 and President and Chief
Executive Officer of Continuum Energy Technologies since April 1999. He is also a Senior Lecturer
at MIT. Mr. Preston serves on the board of directors of Clean Harbors, Inc., an environmental
services and hazardous waste treatment company. In addition, Mr. Preston is on the board of
directors of several private companies.
William Guinness. Mr. Guinness has been a member of our Board since July 2006. Mr. Guinness
has been Chairman of Sibir Energy plc, a UK independent oil and gas production company, since March
1999, having previously been a Non-Executive Director of Pentex Energy plc and Pentex Oil plc.
Since 1988, Mr. Guinness has been involved with various private venture capital operations, which
cover areas as diverse as metal manufacturing, general aviation and fine art consultancy. Mr.
Guinness is also a director of a number of private companies involved in a wide range of commercial
activities. Mr. Guinness previously served on our Board of Directors from June 30, 2003 to
September 20, 2003.
Henry Brem. Dr. Brem was a member of our Board from February 2007 through January 2010. Dr.
Brem is a professor at Johns Hopkins University School of Medicine and has been on the faculty
since 1984. Dr. Brem serves as the Director of the Department of Neurosurgery, Harvey Cushing
Professor of Neurosurgery, Ophthalmology, and Oncology. Dr. Brem is also Director of the Hunterian
Neurosurgical Research Laboratory. Dr Brem trained in surgery at the Peter Bent Brigham Hospital of
Harvard Medical School, and in neurosurgery at the Neurological Institute of New York at Columbia
University. Dr. Brem has authored more than 150 articles in scientific journals and has developed
FDA-approved therapies for neurological diseases.
Gary E. Frashier. Mr. Frashier was a member of our Board from February 2007 through January
2010. Mr. Frashier, through his company Management Associates, has been a strategic consultant to
emerging growth companies in the life sciences field since January 1999. Since June 2006, Mr.
Frashier has served as a director and Executive Vice President, and since June 2007 as Chief
Financial Officer and Secretary of Apex BioVentures Acquisition Corporation, a special purpose
acquisition company. From 1990 until September 1998, Mr. Frashier served as Chief Executive Officer
of OSI Pharmaceuticals, Inc., a biotechnology company, and, from January 1997 until September 2000,
as its Chairman of the Board. From 1987 until 1990, Mr. Frashier served as President and CEO of
Genex Corporation, a protein engineering company, and from 1984 until 1987, as Chairman and CEO of
Continental Water Systems, Inc., a manufacturer and marketer of equipment to produce high purity
water used by the pharmaceutical, medical, electronics and research industries. Previously, Mr.
Frashier also served as Executive Vice President of Millipore Corporation, a provider of products
and services to biopharmaceutical, manufacturing, clinical, analytical and research laboratories,
and President of Millipores Waters Associates subsidiary. Mr. Frashier serves on the board of
directors of Texmira Pharmaceuticals Corporation, a Canadian biopharmaceutical company, Apex
BioVentures Acquisition Corp, a blank check company and Achillion Pharmaceuticals, Inc., a
biopharmaceutical company.
Code of Business Conduct and Ethics
We have adopted a written Code of Business Conduct and Ethics that applies to our directors,
officers and employees, including our principal executive officer, principal financial officer,
principal accounting officer or controller, or persons performing similar functions. We amended and
restated our Code of Business Conduct and Ethics in July 2005. We have posted the Amended and
Restated Code of Business Conduct and Ethics on our website, which is located at www.alseres.com.
In addition, we intend to disclose on our website all disclosures that are required by law or The
NASDAQ Stock Market, Inc. listing standards concerning any amendments to, or waivers from, any
provision of the Code.
2
Executive Officers:
Effective as of December 31, 2009, Mr. Mark Pykett resigned his position as President and Chief
Operating Officer of the Company.
The following is a list of our current executive officers and their principal positions:
In Current | ||||||||
Name | Age | Position | Position Since | |||||
Peter G. Savas
|
61 | Chairman of the Board of Directors and Chief Executive Officer | September 2004 | |||||
Kenneth L. Rice, Jr., J.D., LL.M., M.B.A.
|
56 | Executive Vice President, Finance and Administration, Chief Financial Officer and Secretary | September 2005 (Executive Vice President, Finance and Administration and Chief Financial Officer since July 2005) |
Kenneth L. Rice, Jr., J.D., LL.M., M.B.A . Mr. Rice was appointed Executive Vice President,
Finance and Administration and Chief Financial Officer in July 2005. Mr. Rice was appointed
Secretary in September 2005. In June 2005, Mr. Rice served as a part-time consultant to the
Company. From April 2001 to June 2005, Mr. Rice served as Vice President, Chief Financial Officer,
Chief Commercial Officer and Secretary of Aderis Pharmaceuticals, Inc., a privately-held
biopharmaceutical company. From August 1999 through March 2001, Mr. Rice served as Vice President
and Chief Financial Officer of MacroChem Corporation, a publicly-traded drug delivery company.
No family relationships exist between any of our executive officers and our directors. Our
executive officers are elected annually by the board of directors and serve until their successors
are duly elected and qualified.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires our directors, executive officers (including a
person performing a principal policy-making function) and persons who own more than 10% of a
registered class of our equity securities (10% Holders) to file with the Securities and Exchange
Commission initial reports of ownership on a Form 3 and reports of changes in ownership of our
common stock and our other equity securities on a Form 4 or Form 5. Directors, executive officers
and 10% Holders are required by Securities and Exchange Commission regulations to furnish to us
copies of all of the Section 16(a) reports they file. Based solely upon a review of the copies of
the Forms 3, 4 and 5 (and any amendments thereto) furnished to us and the written representations
made by the reporting persons to us, we believe that during fiscal 2009 each of our directors,
officers and 10% Holders filed all of their respective reports required by Section 16(a) in a
timely fashion, except as described herein. We were not provided with any information regarding
whether or not Robert Gipson, a 10% holder, timely filed Schedule 13 G/A for 2009.
Audit Committee
Our Board has a standing Audit Committee that currently consists of Messrs. Mullen and
Guinness. Our Board has determined that each of the members of the Audit Committee are independent
as defined under the the independence requirements contemplated by Rule 10A-3 under the Exchange
Act.
The Board has also determined that Mr. Mullen is an audit committee financial expert as
defined in Item 407(d)(5) of Regulation S-K.
3
ITEM 11. | EXECUTIVE COMPENSATION |
SUMMARY COMPENSATION TABLE FOR FISCAL YEAR 2009
The following table sets forth information concerning compensation for services in all
capacities earned by our Chief Executive Officer, our Chief Financial Officer and each other of our
executive officers as of December 31, 2009, collectively referred to as the Named Executive
Officers for the fiscal years indicated.
Incentive | ||||||||||||||||||||||||||||
Name and | Stock | Option | Plan | All Other | ||||||||||||||||||||||||
Principal | Salary | Awards(1) | Awards(2) | Compensation(3) | Compensation(4) | Total | ||||||||||||||||||||||
Position | Year | ($) | ($) | ($) | ($) | ($) | ($) | |||||||||||||||||||||
Peter G. Savas |
2009 | $ | 408,085 | $ | | $ | 334,373 | $ | | $ | 8,688 | $ | 751,146 | |||||||||||||||
Chairman and CEO (5) |
2008 | $ | 472,500 | $ | | $ | 304,695 | $ | | $ | 20,313 | $ | 797,508 | |||||||||||||||
Mark J. Pykett, |
2009 | $ | 304,260 | $ | | $ | 184,828 | $ | | $ | | $ | 489,088 | |||||||||||||||
V.M.D, Ph.D, M.B.A. |
2008 | $ | 357,000 | $ | | $ | 166,487 | $ | | $ | 11,625 | $ | 535,112 | |||||||||||||||
President and Chief Operating Officer(6) |
||||||||||||||||||||||||||||
Kenneth L. Rice, Jr., |
2009 | $ | 267.750 | $ | | $ | 184,828 | $ | | $ | | $ | 442,112 | |||||||||||||||
J.D., LL.M., |
2008 | $ | 315,000 | $ | | $ | 139,593 | $ | | $ | 11,625 | $ | 466,218 | |||||||||||||||
M.B.A. Executive Vice President and Chief Financial Officer |
4
(1) | No stock awards were granted to the above officers during the fiscal year ended December 31, 2009. | |
(2) | Valuation based on the dollar amount recognized for financial statement reporting purposes pursuant to FASB ASC Topic 820 with respect to fiscal 2009, except that (i) such amounts do not reflect an estimate of forfeitures related to service-based vesting conditions and (ii) the amounts reported in these columns reflect additional expense, if any, resulting from the requirements of the SEC to report option grants made prior to 2009 using the modified prospective transition method pursuant to FASB ASC Topic 820. The assumptions used by us with respect to the valuation of option grants are set forth in Note 6 to our consolidated financial statements included as part of our Annual Report on Form 10-K for the fiscal year ended December 31, 2009. | |
(3) | The amounts disclosed in this column were awarded under our variable cash compensation plan. No variable cash compensation was paid with respect to fiscal 2009 due to our cash constraints and in light of the fact that the 2009 corporate performance targets were not achieved. | |
(4) |
401(k) Matching | ||||||||||||||||
Name | Year | Disability | Contribution ($) | Total ($) | ||||||||||||
Peter G. Savas |
2009 | $ | 8,688 | $ | | $ | 8,688 | |||||||||
2008 | $ | 8,688 | $ | 11,625 | $ | 20,313 | ||||||||||
Mark J. Pykett, |
2009 | $ | | $ | | $ | | |||||||||
V.M.D., Ph.D, M.B.A |
2008 | $ | | $ | 11,625 | $ | 11,625 | |||||||||
Kenneth L. Rice, Jr., |
2009 | $ | | $ | | $ | | |||||||||
J.D., LL.M., M.B.A. |
2008 | $ | | $ | 11,625 | $ | 11,625 |
(5) | Mr. Savas is also a member of our board of directors, but does not receive any additional compensation in his capacity as a director. | |
(6) | Effective December 31, 2009, Mr. Pykett resigned his position as President and Chief Operating Officer. |
5
We have entered into employment agreements with each of our named executive officers, which
are effective for one year terms and automatically renew for additional 12 month periods
thereafter, unless either party notifies the other party in writing not less than 90 days prior to
expiration. These agreements establish base salaries (subject to annual adjustment by the
Compensation Committee), provide other benefits, and include confidentiality and non-competition
provisions. Subject to certain contingencies, each Named Executive Officer is entitled to a
severance allowance in the event that he is terminated in certain circumstances, as more fully
described under the caption Potential Payments Upon Termination or Change-in-Control below.
Our Compensation Committee typically makes initial awards of stock options to new executives
and additional grants as part of our overall compensation program annually thereafter in
conjunction with the review of their individual performance. Historically, we have generally
granted stock options subject to time-based vesting, typically over the first three to four years
of the ten-year option term. However, in January 2006, the Compensation Committee granted option
awards to each of our executive officers, subject to vesting upon the achievement of certain
corporate milestones. These performance-based vesting stock options were all cancelled in January
2009 in connection with an option repricing program.
Vesting and exercise rights cease shortly after termination of employment except in the case
of death or disability or as specifically set forth in the respective employment agreements. Prior
to the exercise of an option, the holder has no rights as a stockholder with respect to the shares
subject to such option, including voting rights and the right to receive dividends or dividend
equivalents.
We set the exercise price of all stock options to be equal to or greater than the closing
price of our common stock on the grant date. No option grants were awarded to our Named Executive
Officers in 2009.
Outstanding Equity Awards at Fiscal Year-End 2009
The following table sets forth information regarding outstanding option awards held by our
Named Executive Officers as of December 31, 2009.
Option Awards | ||||||||||||||||||||
Number of | ||||||||||||||||||||
Securities | ||||||||||||||||||||
Underlying | ||||||||||||||||||||
Unexercised | Option | |||||||||||||||||||
Options | Exercise | Option | ||||||||||||||||||
(#) | Price | Expiration | ||||||||||||||||||
Name | Exercisable | ($) | Date | |||||||||||||||||
Peter G. Savas |
200,000 | (1) | $ | 2.31 | 3/11/2015 | |||||||||||||||
950,000 | (2) | $ | 1.15 | 1/31/2014 | ||||||||||||||||
Mark J. Pykett, V.M.D, Ph.D,
M.B.A. |
100,000 | (1) | $ | 2.31 | 3/11/2015 | |||||||||||||||
100,000 | (1) | $ | 3.75 | 2/4/2015 | ||||||||||||||||
425,000 | (2) | $ | 1.15 | 1/31/2014 | ||||||||||||||||
Kenneth L. Rice, Jr., J.D.,
LL.M., M.B.A. |
375,000 | (2) | $ | 1.15 | 1/31/2014 |
(1) | The options are 33% exercisable initially, and thereafter vest in 36 equal monthly installments. | |
(2) | The options are fully vested and exercisable at any time. |
6
Potential Payments Upon Termination or Change-in-Control
On March 31, 2006, we entered into employment agreements with each of Messrs. Savas and Rice
effective January 1, 2006 for a term of one year. These agreements are collectively referred to as
the Employment Agreements. Each Employment Agreement automatically renews for an additional 12
month period, unless either party notifies the other party in writing not less than 90 days prior
to expiration.
In general, in the event of termination without cause (as defined in the Employment
Agreements) or voluntarily by an executive within one year following a change in control (as
defined below), the Employment Agreements provide for (i) a cash severance payment equal to the sum
of 75% 100% of the sum of an executives highest base salary in effect during the preceding 12
month period and the average annual cash bonus paid during the preceding twenty-four month period,
(ii) the continuation of health care benefits for a period of 9 to 12 months following termination
of employment, and (iii) full acceleration of the vesting of all of the executives unvested equity
awards. In the event of termination of employment by us for disability (as defined in the
Employment Agreements), the Employment Agreements provide for a cash severance payment equal to the
sum of 75% 100% of the sum of an executives highest base salary in effect during the preceding
12 month period and the average annual cash bonus paid during the preceding twenty-four month
period.
A change in control means:
(1) | an acquisition of any of our voting securities by any person immediately after which such person has beneficial ownership of 45% or more of the combined voting power of our then outstanding voting securities; or | ||
(2) | approval by our stockholders of: | ||
(a) our merger, consolidation, share exchange or reorganization, unless our stockholders, immediately before such merger, consolidation, share exchange or reorganization, own, directly or indirectly immediately following such merger, consolidation, share exchange or reorganization, at least 51% of the combined voting power of the outstanding voting securities of the corporation that is the successor in such merger, consolidation, share exchange or in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation, share exchange or reorganization; or | |||
(b) our complete liquidation or dissolution; or | |||
(c) an agreement for the sale or other disposition of all or substantially all of our assets. |
If the employment of any Named Executive Officer is terminated, unless employment is
terminated without cause or after the occurrence of a change in control, such Named Executive
Officer will remain subject to certain conditions regarding non-competition, non-solicitation and
confidentiality, for a period of one year following the date of termination of employment.
Compensation of Directors
In 2009, our non-employee directors consisted of: (i) Robert S. Langer, Jr.; (ii) Michael J.
Mullen; (iii) John T. Preston, (iv) William Guinness, (v) Henry Brem, and (vi) Gary E. Frashier.
Our non-employee director compensation is as follows:
(i) an annual retainer of $25,000; | |||
(ii) a fee per meeting attended of $2,500; and | |||
(iii) an annual fee of $10,000 for chairing each of the Nominating and Corporate Governance and Science and Technology committees and $20,000 for chairing each of the Audit and Compensation Committees. |
Each new non-employee director is automatically granted an option to purchase 25,000 shares of
our common stock, referred to as New Director Options, upon initial election or appointment, or the
Automatic Grant Date. The exercise price of any New Director Options granted shall equal the fair
market value of shares of our common stock subject thereto on the Automatic Grant Date. New
Director Options immediately vest as to 1/3 of the shares with the remaining 2/3 of the shares
subject to such New Director Options vesting in equal monthly installments over two years, or New
Director Option Vesting.
Each non-employee director is automatically granted an option to purchase 25,000 shares of our
common stock annually, or the Annual Director Options. The Annual Director Options are granted in
the fourth quarter of each calendar year, or the Annual Grant Date. The exercise price of any
Annual Director Options granted shall equal the fair market value of shares of our common stock
subject thereto on the Annual Grant Date. Annual Director Options vest in equal monthly
installments over two years, or Annual Director Option Vesting. Newly elected non-employee
directors are eligible to receive the Annual Director Options in the fourth quarter of the second
calendar year of service.
7
During 2008, the Company did not grant the Annual Director Options in accordance with the
compensation plan as described above. The Annual Director Options for 2008 were granted in January
2009. No grants for 2009 were made to directors.
As described more fully below, this table sets forth the compensation information for our
non-employee directors in 2009:
Option | ||||||||||||||||
Fees Earned or | Awards ($) | All Other | Total | |||||||||||||
Name | Paid in Cash ($)(1) | (2) | Compensation ($) | ($) | ||||||||||||
Robert S. Langer, Jr. Sc.D |
$ | 42,500 | $ | 28,750 | $ | | $ | 71,250 | ||||||||
Michael J. Mullen, C.P.A |
$ | 47,500 | $ | 28,750 | $ | | $ | 76,250 | ||||||||
John T. Preston |
$ | 65,000 | $ | 28,750 | $ | | $ | 93,750 | ||||||||
William Guinness |
$ | 47,500 | $ | 28,750 | $ | | $ | 76,250 | ||||||||
Henry Brem |
$ | 30,000 | $ | 28,750 | $ | | $ | 58,750 | ||||||||
Gary E. Frashier |
$ | 47,500 | $ | 28,750 | $ | | $ | 76,250 |
(1) | As of March 31, 2010, portions of the fees earned in 2008 and 2009 totaling approximately $445,000 have not been paid. | |
(2) | Valuation based on the dollar amount recognized for financial statement reporting purposes pursuant to FASB ACS Topic 820, Share-Based Payment with respect to 2009. Such amounts do not reflect an estimate of forfeitures related to service-based vesting conditions and with respect to Messrs. Langer, Mullen and Preston, the amounts reported in these columns reflect additional expense resulting from the requirements of the SEC to report option grants made prior to 2008 using the modified prospective transition method pursuant to FASB ACS Topic 820. There were no forfeitures of options in 2009 by our directors. The assumptions used by us with respect to the valuation of option grants are set forth in Note 6 to our consolidated financial statements included as part of our Annual Report on Form 10-K for the fiscal year ended December 31, 2009. |
As of December 31, 2009, the number of shares underlying options held by each non-employee
director was as follows:
Number of Securities | ||||
Underlying Unexercised | ||||
Name | Options | |||
Robert S. Langer, Jr. Sc.D |
160,603 | |||
Michael J. Mullen, C.P.A. |
125,417 | |||
John T. Preston |
125,417 | |||
William Guinness |
80,000 | |||
Henry Brem |
70,000 | |||
Gary E. Frashier |
70,000 |
ITEM 12. | SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
Security Ownership
The following table sets forth information, as of March 31, 2010, regarding the beneficial
ownership of our common stock by:
| each person or group, as that term is defined in Section 13(d)(3) of the Exchange Act, that beneficially owns more than 5% of our outstanding common stock based on currently available Schedules 13D and 13G filed with the Securities and Exchange Commission; | ||
| each of our directors; | ||
| each of the Named Executive Officers; and | ||
| all of our directors and executive officers as a group. |
Unless otherwise indicated below, the address for each listed director and executive officer
is c/o Alseres Pharmaceuticals, Inc., 239 South Street, Hopkinton, Massachusetts 01748. Beneficial
ownership shown is determined in accordance with the rules of the Securities and Exchange
Commission and, as a result, includes voting and investment power with respect to shares.
8
Amount and Nature | ||||||||
of Beneficial | Percent of | |||||||
Name and Address of Beneficial Owner | Ownership (1) | Class (2) | ||||||
5% Beneficial Owners of Common Stock: |
||||||||
Robert L. Gipson (3) |
28,423,748 | 53.5 | % | |||||
c/o Ingalls & Snyder LLC 61 Broadway, New York, NY 10006 |
||||||||
Thomas L. Gipson (4) |
6,567,504 | 12.4 | ||||||
c/o Ingalls & Snyder LLC 61 Broadway, New York, NY 10006 |
||||||||
Ingalls & Snyder Value Partners, LP (5) |
7,351,872 | 13.8 | ||||||
61 Broadway, New York, NY 10006 |
||||||||
Ingalls & Snyder LLC (6) |
2,825,205 | 5.3 | ||||||
61 Broadway, New York, NY 10006 |
||||||||
Arthur Koenig (7) |
3,516,500 | 6.6 | ||||||
c/o Duferco Steel Inc. Metro Park South 100 Matawan Rd Suite 400 Matawan, NJ 07747-3916 |
||||||||
Highbridge International LLC (8) |
2,695,000 | 5.1 | ||||||
c/o Highbridge Capital Management, LLC 9 West 57 th Street, 27 th Floor New York, NY 10019 |
Amount and Nature | ||||||||
of Beneficial | Percent of | |||||||
Name and Address of Beneficial Owner | Ownership (1) | Class (2) | ||||||
Directors and Named Executive Officers: |
||||||||
Peter G. Savas (9) |
1,161,212 | 2.2 | ||||||
Chairman of the Board and Chief Executive Officer |
||||||||
Kenneth L. Rice, Jr., J.D., LL.M., M.B.A. (10) |
379,485 | * | ||||||
Executive Vice President Finance and Administration, Chief Financial Officer and Secretary |
||||||||
Michael J. Mullen, C.P.A. (11) |
117,084 | * | ||||||
Director |
||||||||
William Guinness (12) |
71,667 | * | ||||||
Director |
||||||||
All directors and executive officers as a group (4 persons) (13) |
1,729,448 | 3.2 | % | |||||
* | Represents less than 1% of the outstanding shares. | |
(1) | Except as set forth in the footnotes to this table and subject to applicable community property law, the persons and entities named in the table have sole voting and investment power with respect to all shares. | |
(2) | Applicable percentage ownership for each holder is based on 27,055,645 shares of common stock outstanding on March 31, 2010, plus common stock issuable upon conversion of any outstanding |
9
convertible promissory notes, Series F Convertible Preferred Stock, any common stock equivalents and presently exercisable stock options or warrants held by each such holder, and options or warrants held by each such holder that will become exercisable within 60 days after March 31, 2010. | ||
(3) | Information is based on a Schedule 13G/A filed January 30, 2009 with the SEC and subsequent Form 8-K filings during 2009 relating to additional funding. Mr. Gipson is a Senior Director of Ingalls & Snyder, LLC. Consists of (i) 17,762,526 shares of our common stock currently issued and outstanding, (ii) 4,900,000 shares of our common stock into which 196,000 shares of our Series F Convertible Preferred Stock, $0.01 par value per share, or Series F Preferred, were convertible as of March 31, 2009, and (iii) 5,761,222 shares of common stock into which our promissory notes in the aggregate principal and interest amount of $14,403,056 were convertible as of March 31, 2010. As of March 31, 2010, Mr. Gipson held 100% of the issued and outstanding Series F Preferred. | |
(4) | Information is based on a Schedule 13G/A filed January 8, 2010 with the SEC. Consists of (i) 5,186,004 shares of our common stock currently issued and outstanding, and (ii)1,381,500 shares of common stock into which our promissory notes in the aggregate principal and interest amount of $3,453,750 were convertible as of March 31, 2010. | |
(5) | Information is based on a Schedule 13G/A filed January 8, 2010 with the SEC. Consists of (i) 2,825,205 shares of our common stock currently issued and outstanding, and (ii) 4,526,667 shares of common stock into which our promissory notes in the aggregate principal and interest amount of $11,316,668 were convertible as of March 31, 2010. | |
(6) | Information is based on a Schedule 13G/A filed January 8, 2010 with the SEC. Ingalls & Snyder LLC beneficially owns 2,825,205 shares of common stock and has shared power to dispose or direct the disposition of 2,825,205 shares. Securities reported under shared dispositive power include securities | |
owned by clients of Ingalls & Snyder LLC, a registered broker dealer and a registered investment advisor, in accounts managed under investment advisory contracts. Such clients include Ingalls & Snyder Value Partners, LP. | ||
(7) | Information is based on a Schedule 13G/A filed January 7, 2010 with the SEC. Consists of (i) 2,135,000 shares of our common stock currently issued and outstanding, and (ii) 1,381,500 shares of common stock into which our promissory notes in the aggregate principal and interest amount of $3,453,750 were convertible as of March 31, 2010. | |
(8) | Consists of 2,695,000 shares of common stock into which our promissory notes in the aggregate principal and interest amount of $6,737,500 were convertible as of March 31, 2010. | |
(9) | Includes11,212 shares of common stock owned outright and 1,150,000 shares of common stock issuable upon exercise of options that are or may be exercisable as of March 31, 2010 or 60 days after such date. | |
(10) | Includes 4,485 shares of common stock owned outright and 375,000 shares of common stock issuable upon exercise of options that are or may be exercisable as of March 31, 2010 or 60 days after such date. | |
(11) | Consists of 117,084 shares of common stock issuable upon exercise of options that are or may be exercisable as of March 31, 2010 or 60 days after such date and 200 shares of common stock held by a revocable trust of which Mr. Mullen is the trustee. | |
(12) | Consists of 71,667 shares of common stock issuable upon exercise of options that are exercisable as of March 31, 2010 or 60 days after such date. | |
(13) | See footnotes 9 through 12. |
10
Equity Compensation Plan Information
This table shows information about our common stock that may be issued upon the exercise of
options under all of our equity compensation plans as of December 31, 2009. As required by the
Securities and Exchange Commission rules, we include in footnote (2) to this table a brief
description of the material features of our option issuances that have not been approved by our
stockholders.
Number of Securities | ||||||||||||
Remaining Available for Future | ||||||||||||
issuance Under | ||||||||||||
Equity Compensation | ||||||||||||
Number of Securities to be | Weighted-Average | Plans (Excluding | ||||||||||
Issued Upon Exercise of | Exercise Price of | Securities Reflected in | ||||||||||
Outstanding Options | Outstanding Options | Column (a)) | ||||||||||
Plan Category | (a) | (b) | (c) | |||||||||
Equity compensation plans approved by security holders (1) |
3,695,745 | $ | 1.63 | 384,172 | ||||||||
Total |
3,695,745 | $ | 1..63 | 384,172 | ||||||||
(1)
| Amended and Restated Omnibus Stock Option Plan; | ||
| 1998 Omnibus Stock Option Plan; | ||
| Amended and Restated 1990 Non-Employee Directors Non-Qualified Stock Option Plan; and | ||
| 2005 Stock Incentive Plan. |
On January 14, 2009, our compensation committee approved the cancellation of options to
purchase an aggregate of 2,617,000 shares of the Companys common stock and the re-grant of options
to purchase an aggregate of 2,562,500 shares of the our common stock. The per share exercise prices
of the cancelled options ranged from $1.96 to $4.06, with a weighted average exercise price of
$2.92. These cancellations were effected under the 2005 Plan and inducement grants pursuant to
Nasdaq Marketplace Rule 4350, each of which expressly permitted option exchanges and all re-grants
were effected under the 2005 Plan. Each of the re-granted options contains the following terms: (i)
an exercise price equal to the fair market value on the grant date which was the last sale price on
January 14, 2009, or $1.15 per share; (ii) exercisable through January 31, 2014; and (iii) 50%
vesting on the date of grant, 25% vesting on February 28, 2009, and 25% vesting on March 31, 2009.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
Certain Relationships and Related Transactions
For information relating to a consulting agreement with Mr. Langer, who served during 2009 as
a member of our Compensation Committee, see Corporate Governance Compensation of Directors. For
information relating to our employment and severance arrangements with our Named Executive
Officers, see EXECUTIVE COMPENSATION Potential Payments Upon Termination or Change-in-Control.
11
Common Stock
In November 2008, we completed a private placement with Robert Gipson of 543,478 shares
of its common stock which raised $1,000,000 in gross proceeds. In connection with the November 2008
private placement, we also issued warrants (the November 2008 Warrants) to purchase 543,478
additional shares of common stock that were exercisable at $1.84 per share between six months and
two years after the closing. In connection with the private placement, we agreed with Mr. Gipson
(the Letter Agreement) that if we sold shares of its common stock at a price below $1.84, subject
to certain exceptions, prior to December 31, 2009, Mr. Gipson would be entitled to receive, for no
additional consideration, additional shares of common stock and warrants in accordance with a
pre-determined formula.
In January 2009, we completed a private placement with Robert Gipson of 1,000,000 shares
of its common stock which raised $1,000,000 in gross proceeds. In addition, we issued an additional
456,522 shares of its common stock to Mr. Gipson pursuant to a Letter Agreement. In connection with
the January 2009 private placement, Mr. Gipson agreed to the cancellation of the November 2008
Warrants.
In February 2009, we entered into a private placement with Cato Holding Company (Cato) of
200,000 shares of our common stock at a purchase price of $1.00 per share. In connection with the
February 2009 private placement, we agreed with Cato that if we sell shares of our common stock, or
securities convertible into common stock, prior to September 30, 2009, and the purchaser of such
securities receives warrants to purchase additional shares of common stock (a Qualified
Financing), subject to certain exceptions, Cato shall be entitled to receive, for no additional
consideration, a warrant to purchase shares of common stock with the same terms and conditions as
those provided to a purchaser in a Qualified Financing.
In November 2009, we entered into a private placement with Robert Gipson of 2,500,000 shares
of our common stock which raised $1,000,000 in gross proceeds. In addition, in March 2010 we
issued an additional 1,500,000 shares of our common stock to Mr. Gipson pursuant to a Letter
Agreement.
Promissory Notes
On March 18, 2008, we amended and restated our outstanding amended and restated unsecured
convertible promissory note purchase agreement in favor of Robert L. Gipson, a holder of greater
than 5% of our outstanding capital stock, or the March 2008 Amended Purchase Agreement, to
(i) increase the amount we could borrow by $5,000,000 to $30,000,000 and (ii) provide that we may
incur up to an additional $5,000,000 of indebtedness from the Purchasers upon the same terms and
conditions pursuant to the March 2008 Amended Purchase Agreement. In March 2008, we issued a
convertible promissory note to Robert Gipson in the aggregate principal amount of $5,000,000
pursuant to the March 2008 Amended Purchase Agreement.
The amounts borrowed by us under the March 2008 Amended Purchase Agreement bear interest
at the rate of 5% per annum and may be converted, at the option of the Purchasers into (i) shares
of our common stock at a conversion price per share of $2.50, (ii) the right to receive future
royalty payments related to our molecular imaging products (including Altropane and Fluoratec) in
amounts equal to 2% of our pre-commercial revenue related to such products plus 0.5% of future net
sales of such products for each $1,000,000 of outstanding principal and interest that a Purchaser
elects to convert into future payments, or (iii) a combination of (i) and (ii). Any outstanding
notes that are not converted into our common stock or into the right to receive future payments
will become due and payable by the earlier of December 31, 2010 or the date on which a Purchaser
declares an event of default (as defined in the March 2008 Amended Purchase Agreement). However,
each Purchaser is prohibited from effecting a conversion if at the time of such conversion the
common stock issuable to such Purchaser, when taken together with all shares of common stock then
held or otherwise beneficially owned by a Purchaser exceeds 19.9%, or 9.99% for Highbridge and
ISVP, of the total number of issued and outstanding shares of our common stock immediately prior to
such conversion unless and until our stockholders approve the conversion of all of the shares of
common stock issuable thereunder.
In June 2008, we entered into a convertible promissory note purchase agreement, or the
June 2008 Purchase Agreement, with Robert Gipson pursuant to which we could borrow up to
$5,000,000. In June 2008, we issued a convertible promissory note to Robert Gipson, or the
June 2008 RG Note, in the aggregate principal amount of $5,000,000 pursuant to the June 2008
Purchase Agreement. The terms of the June 2008 Purchase Agreement are consistent with those of the
March 2008 Amended Purchase Agreement described above.
We are subject to certain debt covenants pursuant to the March 2008 Amended Purchase
Agreement and the June 2008 Purchase Agreement, or Purchase Agreements as amended. If we (i) fail
to pay the principal or interest due under the Purchase Agreements, (ii) file a petition for action
for relief under any bankruptcy or similar law or (iii) an involuntary petition is filed against
us, all amounts borrowed under the Purchase Agreements may become immediately due and payable by
us. In addition, without the consent of the Purchasers, we may not (i) create, incur or otherwise
permit to be outstanding any additional indebtedness for money borrowed, (ii) declare or pay any
cash dividend, or make a distribution on, repurchase, or redeem, any class of our stock, subject to
certain exceptions or sell, lease, transfer or otherwise dispose of any of our material assets or
property or (iii) dissolve or liquidate.
12
In February 2009, Neurobiologics, Inc., or the Subsidiary, issued to Robert Gipson an
unsecured promissory note, pursuant to which the Subsidiary borrowed an aggregate principal amount
of $1,000,000 (the Subsidiary Note). Interest on the Subsidiary Note accrues at the rate of 7%
per annum and all principal and accrued interest is due and payable on demand of Mr. Gipson.
As of March 31, 2009, we had issued six promissory notes, including the note with the
Subsidiary, for an aggregate principal amount of $35,880,000. At December 31, 2009, the
aggregate carrying value of the Highbridge Note, the March Notes, the 2007 ISVP Note, the March
2008 RG Note and the June 2008 RG Note of $34,155,632 and the related accrued interest was
classified as a long-term liability
In December 2009, we issued a promissory note to Robert Gipson in the amount of $350,000,
payable on demand. The note bears interest at the rate of 7% per annum.
In each of January, February and March 2010 the Company issued Promissory Notes to Mr. Robert
Gipson totaling $800,000. The Notes bear interest at 7% per annum and are due and payable on
demand.
Convertible Preferred Stock
During 2009 the company completed the following sales of Series F convertible Preferred Stock
to Robert Gipson:
Number of Shares | ||||||||
Date of Issuance | Issued | Gross Proceeds | ||||||
March 19, 2009 |
20,000 | $ | 500,000 | |||||
March 31, 2009 |
20,000 | 500,000 | ||||||
April 16, 2009 |
20,000 | 500,000 | ||||||
May 12, 2009 |
40,000 | 1,000,000 | ||||||
June 10, 2009 |
20,000 | 500,000 | ||||||
July 9, 2009 |
12,000 | 300,000 | ||||||
July 23, 2009 |
12,000 | 300,000 | ||||||
August 11, 2009 |
12,000 | 300,000 | ||||||
August 26, 2009 |
12,000 | 300,000 | ||||||
September 10, 2009 |
12,000 | 300,000 | ||||||
September 28, 2009 |
16,000 | 400,000 | ||||||
196,000 | $ | 4,900,000 | ||||||
The key terms of the Series F Stock are summarized below:
Dividend. The Series F Stock is entitled to receive any dividend that is paid to holders of
our common stock. Any subdivisions, combinations, consolidations or reclassifications to the common
stock must also be made accordingly to Series F Stock, respectively.
Liquidation Preference. In the event of our liquidation, dissolution or winding up, before
any payments are made to holders of our common stock or any other class or series of our capital
stock ranking junior as to liquidation rights to the Series F Stock, the holders of the Series F
Stock will be entitled to receive the greater of (i) $25.00 per share (subject to adjustment in the
event of any stock dividend, stock split, combination or other similar recapitalization affecting
such shares) plus any outstanding and unpaid dividends thereon and (ii) such amount per share as
would have been payable had each share been converted into common stock. After such payment to the
holders of Series F Stock and the holders of shares of any other series of our preferred stock
ranking senior to the common stock as to distributions upon liquidation, the remaining our assets
will be distributed pro rata to the holders of our common stock.
Voting Rights. Each share of Series F Stock shall entitle its holder to a number of votes
equal to the number of shares of our common stock into which such share of Series F Stock is
convertible.
In March and April 2009, we entered into three Securities Purchase Agreements to sell 60,000
shares of our Series F Convertible Preferred Stock, $0.01 par value per share, or the Series F
Preferred Stock, to Robert Gipson for gross proceeds of $1,500,000.
Indemnity Agreements
We have entered into indemnity agreements with each of our directors and executive
officers containing provisions that may require us, among other things, to indemnify those
directors and officers against liabilities that may arise by reason of their status or service as
directors and officers. The agreements also provide for us to advance to our directors and officers
expenses that they expect to incur as a result of any proceeding against them related to their
service as directors and officers.
13
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
Independent Registered Public Accounting Firms Fees and Other Matters
The following table summarizes the fees billed to us for professional services
rendered by McGladrey & Pullen, LLP and PricewaterhouseCoopers LLP, our prior independent
registered public accounting firm, for each of the last two fiscal years:
Fee Category | 2009 | 2008 | ||||||
Audit Fees |
$ | 131,000 | $ | 137,430 | ||||
Audit-Related Fees |
7,500 | 7,200 | ||||||
Tax Fees |
30,000 | 30,000 | ||||||
All Other Fees |
2,445 | 2,445 | ||||||
Total Fees |
$ | 170,945 | $ | 177,075 | ||||
Audit Fees
Audit fees consist of fees for the audit of our consolidated annual financial statements,
the review of the interim consolidated financial statements included in our quarterly reports on
Form 10-Q and other professional services provided in connection with statutory and regulatory
filings or engagements.
14
Audit-Related Fees
Audit-related fees consist of fees for assurance and related services that are reasonably
related to the performance of the audit or review of our consolidated financial statements and are
not reported under Audit Fees. These services include consultations concerning financial
accounting and reporting matters not classified as audits.
Tax Fees
Tax fees consist of fees for tax compliance, tax advice and tax planning services.
All Other Fees
All other fees for 2009 consisted of fees relating to an accounting research tool.
Policy on Audit Committee Pre-approval of Audit and Permissible Non-audit Services of Independent
Registered Public Accounting Firm
Consistent with policies of the SEC regarding independent registered public accounting
firm independence and our Audit Committee Charter, our Audit Committee has the responsibility for
appointing, retaining, setting compensation and overseeing the work of the independent registered
public accounting firm. Our Audit Committees policy is to pre-approve all audit and permissible
non-audit services provided by the independent registered public accounting firm. Our Audit
Committee presently pre-approves particular services on a case-by-case basis. In assessing requests
for services by the independent registered public accounting firm, our Audit Committee considers
whether such services are consistent with the independent registered public accounting firms
independence, whether the independent registered public accounting firm is likely to provide the
most effective and efficient service based upon their familiarity with us, and whether the service
could enhance our ability to manage or control risk or improve audit quality.
All of the audit-related, tax and other services provided by McGladrey & Pullen, LLP and
PricewaterhouseCoopers LLP in fiscal year 2009 and related fees were approved in advance by our
Audit Committee. None of the services and fees were approved using the de-minimis exception under
SEC rules.
Our Audit Committee believes that the provision of the non-audit services above is
compatible with maintaining the independent registered public accounting firms
independence. PricewaterhouseCoopers LLP served as our independent registered public accounting
firm for 2006. On April 18, 2007, the Audit Committee of the Board of Directors dismissed
PricewaterhouseCoopers LLP as our independent registered public accounting firm. The reports of
PricewaterhouseCoopers LLP on our consolidated financial statements as of and for the fiscal years
ended December 31, 2005 and 2006 did not contain any adverse opinion or disclaimer of opinion and
were not qualified or modified as to uncertainty, audit scope or accounting principles, except that
the reports of PricewaterhouseCoopers LLP included an explanatory paragraph regarding the existence
of substantial doubt about our ability to continue as a going concern. During our fiscal years
ended December 31, 2005 and 2006 and through April 18, 2007 (the Relevant Period), (a) there were
no disagreements with PricewaterhouseCoopers LLP on any matter of accounting principles or
practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if
not resolved to the satisfaction of PricewaterhouseCoopers LLP, would have caused them to make
reference thereto in their reports on the financial statements for such years and (b) there were no
reportable events as defined in Item 304(a)(1)(v) of Regulation S-K.
On April 18, 2007, the Audit Committee selected McGladrey & Pullen, LLP to serve as our independent
registered public accounting firm to audit our consolidated financial statements beginning with the
fiscal year ending December 31, 2007.
During the Relevant Period, neither we nor anyone on behalf of us consulted with
McGladrey & Pullen, LLP on any matter regarding: (1) either the application of accounting
principles to a specified transaction, either completed or proposed; or the type of audit opinion
that might be rendered on our consolidated financial statements, and neither a written report nor
oral advice was provided to us that McGladrey & Pullen, LLP concluded was an important factor
considered by us in reaching a decision as to an accounting, auditing or financial reporting issue;
or (2) either a disagreement or a reportable event, as defined in Item 304(a)(1)(iv) and (v) of
Regulation S-K, respectively.
PART IV
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The exhibits listed in the accompanying Exhibit Index are filed as part
of this Amendment No. 1 to Annual Report on Form 10-K.
(b) The financial statements are included in the original filing on Form 10-K.
15
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized this 30th day of April, 2010.
Alseres Pharmaceuticals, Inc. |
||||
By: | /s/ Peter G. Savas | |||
Peter G. Savas | ||||
Chairman and Chief Executive Officer | ||||
16
EXHIBIT INDEX
Incorporated by Reference to | ||||||||||||||
Exhibit | Exhibit | Filing | SEC File | |||||||||||
Number | Description | Form | Number | Date | Number | |||||||||
Articles of Incorporation and By-Laws | ||||||||||||||
3.1 | Amended and Restated
Certificate of
Incorporation, dated
March 28, 1996
|
10-K/A for 12/31/1998 |
3.1 | 3/19/1999 | 000-6533 | |||||||||
3.2 | Certificate of
Amendment of
Certificate of
Incorporation, dated
June 6, 1997
|
10-K/A for 12/31/1998 |
3.1 | 3/19/1999 | 000-6533 | |||||||||
3.3 | Certificate of
Amendment of Amended
and Restated
Certificate of
Incorporation, dated
June 28, 1999
|
10-Q for 9/30/1999 | 3.5 | 11/15/1999 | 000-6533 | |||||||||
3.4 | Certificate of
Amendment of Amended
and Restated
Certificate of
Incorporation, dated
June 14, 2000
|
10-K for 12/31/2000 | 3.3 | 3/29/2001 | 000-6533 | |||||||||
3.5 | Certificate of
Correction to the
Amended and Restated
Certificate of
Incorporation, dated
March 14, 2001
|
10-K for 12/31/2000 | 3.3 | 3/29/2001 | 000-6533 | |||||||||
3.6 | Form of Certificate
of Amendment of
Amended and Restated
Certificate of
Incorporation dated
June 11, 2002
|
Proxy Statement | App. A | 5/1/2002 | 000-6533 | |||||||||
3.7 | Certificate of
Amendment of Amended
and Restated
Certificate of
Incorporation of the
Company, dated as of
July 9, 2003
|
10-Q for 6/30/2003 | 3.1 | 8/13/2003 | 000-6533 | |||||||||
3.8 | Certificate of
Amendment of Amended
and Restated
Certificate of
Incorporation of the
Company, dated as of
August 5, 2004
|
10-Q for 6/30/2004 | 3.1 | 8/13/2004 | 000-6533 | |||||||||
3.9 | Certificate of
Amendment of Amended
and Restated
Certificate of
Incorporation of the
Company, dated as of
February 4, 2005
|
8-K | 3.1 | 2/7/2005 | 000-6533 | |||||||||
3.10 | Certificate of
Amendment of Amended
and Restated
Certificate of
Incorporation of the
Company, dated as of
June 7, 2007
|
8-K | 3.1 | 6/8/2007 | 000-6533 | |||||||||
3.11 | Amended and Restated
By-Laws, effective
as of December 6,
2007
|
8-K | 3.1 | 12/7/2007 | 000-6533 | |||||||||
Instruments Defining the Rights of Security Holders | ||||||||||||||
4.1 | Specimen certificate
evidencing shares of
common stock, par
value $.01 per share
|
10-Q for 6/30/2007 | 4.1 | 8/14/2007 | 000-6533 | |||||||||
Series D | ||||||||||||||
4.2 | Restated Certificate
of Designations,
Preferences, and
Rights of Series D
Preferred Stock
|
8-A/A | Ex. A to 3.3 | 9/13/2001 | 000-6533 | |||||||||
Series F | ||||||||||||||
4.3 | Certificate of
Designations,
Preferences, and
Rights of Series F
Convertible
Preferred Stock
|
8-K | 4.1 | 3/25/2009 | 000-6533 |
17
Incorporated by Reference to | ||||||||||||||
Exhibit | Exhibit | Filing | SEC File | |||||||||||
Number | Description | Form | Number | Date | Number | |||||||||
Rights Agreement | ||||||||||||||
4.4 | Rights Agreement,
dated as of
September 11, 2001,
including the form
of Certificate of
Designation with
Respect to the
Series D Preferred
Stock and the form
of Rights
Certificate, between
the Company and
Continental Stock
Transfer & Trust
Company, as Rights
Agent (the Rights
Agreement)
|
8-A/A | 1 | 9/13/2001 | 000-6533 | |||||||||
4.5 | Amendment No. 1 to
the Rights
Agreement, dated
November 13, 2001
|
8-A/A | 2 | 11/25/2002 | 000-6533 | |||||||||
4.6 | Amendment No. 2 to
the Rights
Agreement, dated
November 22, 2002
|
8-A/A | 3 | 11/25/2002 | 000-6533 | |||||||||
4.7 | Amendment No. 3 to
the Rights
Agreement, dated
March 12, 2003
|
8-K | 99.6 | 3/13/2003 | 000-6533 | |||||||||
4.8 | Amendment No. 4 to
the Rights
Agreement, dated
December 23, 2003
|
8-A/A | 5 | 12/29/2003 | 000-6533 | |||||||||
4.9 | Amendment No. 5 to
the Rights
Agreement, dated
March 14, 2005
|
8-K | 4.1 | 3/15/2005 | 000-6533 | |||||||||
Miscellaneous | ||||||||||||||
4.10 | Form of Warrant
issued by the
Company under the
Securities Purchase
Agreement dated
November 20, 2008
|
8-K | 10.2 | 11/25/2008 | 000-6533 | |||||||||
4.11 | Promissory Note
dated February 11,
2009 issued by
Neurobiologics, Inc.
to Robert L. Gipson
|
8-K | 10.1 | 2/18/2009 | 000-6533 | |||||||||
Ingalls | ||||||||||||||
4.12 | Amended and Restated
Registration Rights
Agreement, dated as
of March 9, 2005, by
and among the
Company and Ingalls,
Robert L. Gipson and
Nickolaos D.
Monoyios and other
Investors
|
10-K for 12/31/2004 | 10.42 | 3/31/2005 | 000-6533 | |||||||||
4.13 | Amendment No. 1,
dated August 30,
2005, to the Amended
and Restated
Registration Rights
Agreement, dated as
of March 9, 2005, by
and among the
Company and Ingalls,
Robert L. Gipson and
Nickolaos D.
Monoyios and other
Investors
|
10-Q for 9/30/2005 | 10.6 | 11/14/2005 | 000-6533 | |||||||||
4.14 | Common Stock
Purchase Agreement,
dated March 9, 2005,
by and among the
Company, Ingalls and
other Investors
|
10-K for 12/31/2004 | 10.41 | 3/31/2005 | 000-6533 | |||||||||
4.15 | Common Stock
Purchase Agreement,
dated August 30,
2005, by and among
the Company, Ingalls
and other Investors
|
10-Q for 9/30/2005 | 10.5 | 11/14/2005 | 000-6533 | |||||||||
4.16 | Mutual Release of
Claims, dated as of
June 15, 2004, by
and among the
Company, S. David
Hillson, Marc E.
Lanser, Robert L.
Gipson, Thomas O.
Boucher, Jr.,
Ingalls & Snyder,
LLC and Ingalls
|
8-K | 99.3 | 6/17/2004 | 000-6533 |
18
Incorporated by Reference to | ||||||||||||||
Exhibit | Exhibit | Filing | SEC File | |||||||||||
Number | Description | Form | Number | Date | Number | |||||||||
Material Contracts Supply, License, Distribution | ||||||||||||||
CMCC | ||||||||||||||
10.1+ | License Agreement
between CMCC and the
Company dated as of
May 10, 2006 (Dr.
Larry Benowitz)
(relating to
INOSINE)
|
10-Q for 6/30/2006 | 10.1 | 8/14/2006 | 000-6533 | |||||||||
10.2+ | License Agreement
between CMCC and the
Company dated as of
May 10, 2006 (Dr.
Zhigang He)
(relating to
Oncomodulin)
|
10-Q for 6/30/2006 | 10.2 | 8/14/2006 | 000-6533 | |||||||||
Harvard | ||||||||||||||
10.3 | License Agreement
between President
and Fellows of
Harvard College
(Harvard) and
NeuroBiologics, Inc.
(a subsidiary of the
Company) dated as of
December 10, 1993
(relating to
ALTROPANE)
|
S-4 | 10.16 | 4/12/1995 | 333-91106 | |||||||||
10.4 | Amendment, dated May
7, 2004, to License
Agreement between
Harvard and the
Company dated as of
December 10, 1993
(relating to
ALTROPANE)
|
10-Q for 6/30/2005 | 10.6 | 8/15/2005 | 000-6533 | |||||||||
10.5 | License Agreement
between Harvard and
the Company dated as
of March 15, 2000
(relating to
ALTROPANE)
|
S-3/A | 10.11 | 9/3/2002 | 333-88726 | |||||||||
10.6 | Amendment, dated May
11, 2004, to License
Agreement between
Harvard and the
Company dated as of
March 15, 2000
(relating to
ALTROPANE)
|
10-Q for 6/30/2005 | 10.4 | 8/15/2005 | 000-6533 | |||||||||
10.7 | License Agreement,
effective as of
October 15, 1996,
between Harvard and
the Company; as
amended on August
22, 2001 and on May
4, 2004 (relating to
FLUORATEC)
|
10-Q for 9/30/2005 | 10.8 | 11/14/2005 | 000-6533 | |||||||||
10.8 | Third Amendment,
dated April 1, 2007,
to License Agreement
between Harvard and
the Company dated as
of October 15, 1996,
as amended on August
22, 2001 and on May
4, 2004 (relating to
FLUORATEC)
|
10-Q for 3/31/2007 | 10.2 | 5/15/2007 | 000-6533 | |||||||||
Nordion | ||||||||||||||
10.9+ | Manufacturing
Agreement dated
August 9, 2000
between the Company
and MDS Nordion,
Inc. (Nordion
Agreement)
|
10-K for 12/31/2001 | 10.15 | 3/29/2002 | 000-6533 | |||||||||
10.10+ | Amendment dated
August 23, 2001 to
Nordion Agreement
|
10-K for 12/31/2001 | 10.16 | 3/29/2002 | 000-6533 | |||||||||
10.11 | Amendment No. 2
dated as of
September 18, 2002
to Nordion Agreement
|
10-K for 12/31/2002 | 10.16 | 3/31/2003 | 000-6533 | |||||||||
10.12 | Amendment No. 3
dated as of November
22, 2003 to Nordion
Agreement
|
10-K for 12/31/2003 | 10.17 | 3/30/2004 | 000-6533 | |||||||||
10.13+ | Amendment No. 4
dated as of December
22, 2004 to Nordion
Agreement
|
10-K for 12/31/2004 | 10.48 | 3/31/2005 | 000-6533 |
19
Incorporated by Reference to | ||||||||||||||
Exhibit | Exhibit | Filing | SEC File | |||||||||||
Number | Description | Form | Number | Date | Number | |||||||||
10.14+ | Amendment No. 5
dated as of January
24, 2005 to Nordion
Agreement
|
10-K for 12/31/2004 | 10.48 | 3/31/2005 | 000-6533 | |||||||||
10.15+ | Amendment No. 6
dated as of December
19, 2005 to Nordion
Agreement
|
8-K | 99.1 | 12/19/2005 | 000-6533 | |||||||||
10.16+ | Amendment No. 7
dated as of December
7, 2006 to Nordion
Agreement
|
8-K | 10.1 | 12/8/2006 | 000-6533 | |||||||||
10.17+ | Amendment No. 8
dated as of December
4, 2007 to Nordion
Agreement
|
8-K | 10.1 | 12/7/2007 | 000-6533 | |||||||||
10.18+ | Amendment No. 9
dated as of December
3, 2008 to Nordion
Agreement
|
8-K | 10.1 | 12/8/2008 | 000-6533 | |||||||||
Organix | ||||||||||||||
10.19 | License Agreement,
effective as of July
1, 2000, between
Organix, Inc. and
the Company
(Organix
Agreement)
(relating to 0-1369)
|
10-Q for 9/30/2005 | 10.7 | 11/14/2005 | 000-6533 | |||||||||
10.20 | Amendment, dated May
11, 2004, to Organix
Agreement (relating
to 0-1369)
|
10-Q for 9/30/2005 | 10.7 | 11/14/2005 | 000-6533 | |||||||||
10.21 | Second Amendment,
dated April 1, 2007,
to Organix Agreement
(relating to 0-1369)
|
10-Q for 3/31/2007 | 10.3 | 5/15/2007 | 000-6533 | |||||||||
BioAxone | ||||||||||||||
10.22+ | License Agreement,
dated December 28,
2006, by and between
the Company and
BioAxone Therapeutic
Inc. (BioAxone
Agreement) (relating
to CETHRIN)
|
8-K | 10.1 | 1/4/2007 | 000-6533 | |||||||||
10.23+ | First Amendment,
dated March 23,
2007, to BioAxone
Agreement (relating
to CETHRIN)
|
10-Q for 3/31/2007 | 10.1 | 5/15/2007 | 000-6533 | |||||||||
Material Contracts Leases | ||||||||||||||
10.24 | Lease Agreement,
dated as of January
28, 2002, between
the Company and
Brentwood
Properties, Inc.
(Brentwood)
|
10-K for 12/31/2004 | 10.47 | 3/31/2005 | 000-6533 | |||||||||
10.25 | Amendment of Lease,
dated September 9,
2005, by and between
Brentwood and the
Company
|
10-Q for 9/30/2005 | 10.1 | 11/14/2005 | 000-6533 | |||||||||
10.26 | Lease Agreement,
dated as of June 9,
2005, by and between
Straly Corporation
and the Company
|
10-Q for 6/30/2005 | 10.3 | 8/15/2005 | 000-6533 | |||||||||
10.27 | Sublease, dated
September 9, 2005,
by and between Small
Army, Inc. and the
Company
|
10-Q for 9/30/2005 | 10.2 | 11/14/2005 | 000-6533 | |||||||||
10.28 | Sublease, dated
September 9, 2005,
by and between Dell
Mitchell Architects,
Inc. and the Company
|
10-Q for 9/30/2005 | 10.3 | 11/14/2005 | 000-6533 |
20
Incorporated by Reference to | ||||||||||||||
Exhibit | Exhibit | Filing | SEC File | |||||||||||
Number | Description | Form | Number | Date | Number | |||||||||
Material Contracts Stock Purchase, Financing and Credit Agreements | ||||||||||||||
10.29 | Third Amended and
Restated Convertible
Promissory Note
Purchase Agreement
(unsecured), dated
March 18, 2008 by
and among the
Company and the
purchasers listed
therein
|
8-K | 10.1 | 3/20/2008 | 000-6533 | |||||||||
10.30 | Convertible
Promissory Note
Purchase Agreement
(unsecured) dated
June 25, 2008, by
and between the
Company and Robert
L. Gipson
|
8-K | 10.1 | 6/30/2008 | 000-6533 | |||||||||
10.31 | Securities Purchase
Agreement, dated
November 20, 2008,
by and between the
Company and Robert
L. Gipson
|
8-K | 10.1 | 11/25/2008 | 000-6533 | |||||||||
10.32 | Letter Agreement,
dated November 20,
2008, by and between
the Company and
Robert L. Gipson
|
8-K | 10.3 | 11/25/2008 | 000-6533 | |||||||||
10.33 | Securities Purchase
Agreement, dated
January 8, 2009, by
and between the
Company and Robert
L. Gipson
|
10-K | 10.3 | 3/31/2010 | 000-6533 | |||||||||
10.34 | Securities Purchase
Agreement, dated
February 24, 2009,
by and between the
Company and Cato
Holding Company
|
8-K | 10.1 | 2/27/2009 | 000-6533 | |||||||||
10.35 | Letter Agreement,
dated February 24,
2009, by and between
the Company and Cato
BioVentures
|
8-K | 10.2 | 2/27/2009 | 000-6533 | |||||||||
10.36 | Securities Purchase
Agreement, dated
March 19, 2009, by
and between the
Company and Robert
L. Gipson
|
8-K | 10.1 | 3/25/2009 | 000-6533 | |||||||||
Management Contract or Compensatory Plan or Arrangement | ||||||||||||||
10.37 | Non-Employee
Director
Compensation Summary
|
10-K | 10.3 | 3/31/2010 | 000-6533 | |||||||||
10.38 | Executive Officer
Compensation Summary
|
10-K | 10.3 | 3/31/2010 | 000-6533 | |||||||||
10.39 | Form of Indemnity
for Directors and
Executive Officers
|
10-K for 12/31/2003 | 10.32 | 3/30/2004 | 000-6533 | |||||||||
10.40 | Form of Incentive
Stock Option
Agreement, as
amended
|
10-Q for 3/31/2005 | 10.1 | 5/16/2005 | 000-6533 | |||||||||
10.41 | Form of
Non-Statutory Stock
Option Agreement, as
amended
|
10-Q for 3/31/2005 | 10.2 | 5/16/2005 | 000-6533 | |||||||||
10.42 | Form of Incentive
Stock Option
Agreement for 2005
Stock Incentive Plan
|
10-K for 12/31/2005 | 10.54 | 3/31/2006 | 000-6533 | |||||||||
10.43 | Form of
Non-Statutory Stock
Option Agreement for
2005 Stock Incentive
Plan
|
10-K for 12/31/2005 | 10.55 | 3/31/2006 | 000-6533 | |||||||||
10.44 | Amended and Restated
1990 Non-Employee
Directors Non
Qualified Stock
Option Plan, as
amended
|
10-K | 10.4 | 3/31/2010 | 000-6533 | |||||||||
10.45 | Amended and Restated
Omnibus Stock Option
Plan
|
10-K | 10.4 | 3/31/2010 | 000-6533 |
21
Incorporated by Reference to | ||||||||||||||
Exhibit | Exhibit | Filing | SEC File | |||||||||||
Number | Description | Form | Number | Date | Number | |||||||||
10.46 | Amended and Restated
1998 Omnibus Stock
Option Plan
|
10-K | 10.4 | 3/31/2010 | 000-6533 | |||||||||
10.47 | Amended and Restated
2005 Stock Incentive
Plan
|
10-K | 10.4 | 3/31/2010 | 000-6533 | |||||||||
10.48 | Director and Officer
Indemnity Trust
Agreement, dated
June 15, 2004,
between S. David
Hillson, Boston
Private Bank & Trust
Company and the
Company
|
8-K | 99.6 | 6/17/2004 | 000-6533 | |||||||||
10.49 | Amended and Restated
Employment
Agreement, dated
December 31, 2008,
between the Company
and Peter G. Savas
|
8-K | 10.1 | 1/6/2009 | 000-6533 | |||||||||
10.50 | Amended and Restated
Employment
Agreement, dated
December 31, 2008,
between the Company
and Mark J. Pykett
|
8-K | 10.2 | 1/6/2009 | 000-6533 | |||||||||
10.51 | Amended and Restated
Employment
Agreement, dated
December 31, 2008,
between the Company
and Kenneth L. Rice,
Jr.
|
8-K | 10.3 | 1/6/2009 | 000-6533 | |||||||||
10.52 | Consulting Agreement
dated September 29,
2006, by and between
the Company and
Robert S. Langer,
Jr.
|
8-K | 10.1 | 10/4/2006 | 000-6533 | |||||||||
31.1 |
Certification of Chief Executive Officer pursuant to Rule 13a-
14(a)/Rule 15d-14(a) of the Securities Exchange Act of 1934, as
amended
|
* | ||||||||||||
31.2 |
Certification of Chief Financial Officer pursuant to Rule 13a-
14(a)/Rule 15d-14(a) of the Securities Exchange Act of 1934, as
amended
|
* |
* | Filed herewith |
22