|
Filed
Pursuant to Rule 424(b)(3) and 424(c)
Commission
File No. 333-150580
|
|
Delaware
|
|
001-32639
|
|
36-3898269
|
|
(State
or other jurisdiction
of
incorporation)
|
|
(Commission
File Number)
|
|
(IRS
Employer
Identification
No.)
|
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
|
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
|
| Item 5.02 |
Departure
of Directors or Certain Officers; Election of Directors; Appointment
of
Certain Officers; Compensatory Arrangements of Certain
Officers
|
|
10.1
|
Securities
Purchase Agreement, dated November 19, 2008, by and among the Company
and
the investors listed on Exhibit A-1 and A-2
thereto.
|
|
10.2
|
Registration
Rights Agreement, dated November 19, 2008, by and among the Company,
the
Placement Agent and the investors listed on Exhibit A
thereto.
|
|
10.3
|
Security
Agreement, dated November 19, 2008, by and among the Company and
each
person named on Exhibit A-1 and A-2 of the Securities Purchase
Agreement.
|
|
10.4
|
Default
Agreement, dated November 19, 2008, by and among the Company and
the
persons and entities listed on Schedule A
thereto.
|
|
10.5
|
Form
of 12% Senior Secured Promissory Note
|
| 10.6 |
Form
of Warrant
|
|
10.7
|
Amendment
No. 2 to the Employment Agreement between the Company and Douglas
Abel,
dated November 19, 2008.
|
|
10.8
|
Amendment
No. 1 to the Employment Agreement between the Company and Michael
McGuinness, dated November 19,
2008.
|
|
10.9
|
Form
of Placement Agent Warrant
|
|
99.1
|
Press
release issued by the Company on November 25,
2008
|
|
|
MANHATTAN
PHARMACEUTICALS, INC.
|
|
|
|
|
|
|
Date: November
25, 2008
|
By:
|
/s/
Michael G. McGuinness
|
|
|
Michael
G. McGuinness
|
|
|
|
Chief
Financial Officer
|
|
|
A.
|
WHEREAS,
the Investors wish to purchase from the Company, and the Company
wishes to
sell and issue to the Investors, upon the terms and conditions stated
in
this Agreement, a minimum of 200 units (the “Minimum
Amount”)
and a maximum of 500 units (the “Maximum
Amount”);
provided, however, there shall be an overallotment option to purchase
an
additional 200 units (the “Overallotment
Amount”),
at a purchase price of $5,000 per unit (each, a “Unit”),
each Unit consisting of:
|
|
(a)
|
a
twelve (12%) percent senior secured promissory note (each a “Note,”
and, collectively, the “Notes”)
of the Company in the aggregate principal amount of $5,000 in the
form
annexed hereto as Exhibit
B;
and
|
|
(b)
|
a
warrant (each a “Warrant,”
and, collectively, the “Warrants”)
to purchase up to 166,667 shares (the “Warrant
Shares”)
of the Company’s common stock, par value $0.001 per share (together with
any securities into which such shares may be reclassified, the
“Common
Stock”),
at an exercise price of $0.09 per share (subject to adjustment as
set
forth in the Warrants), which Warrants shall be substantially in
the form
attached hereto as Exhibit
C,
upon the terms and conditions set forth in this
Agreement;
|
|
B.
|
WHEREAS,
the Units, Notes, Warrants and Warrant Shares issued pursuant to
this
Agreement are
collectively referred to herein as the “Securities,”
and
|
|
C.
|
WHEREAS,
contemporaneous with the sale of the Units, the parties hereto will
execute and deliver a Registration Rights Agreement, substantially
in the
form attached hereto as Exhibit
D
(the “Registration
Rights Agreement”),
pursuant to which the Company will agree to provide certain registration
rights with respect to the Warrant Shares under the Securities Act
and the
rules and regulations promulgated thereunder, and applicable state
securities laws.
|
|
1.
|
DEFINITIONS
|
|
(a)
|
“Affiliate”
means, with respect to any specified
Person:
|
|
(i)
|
if
such Person is an individual, the spouse of that Person and, if deceased
or disabled, his heirs, executors, or legal representatives, if
applicable, or any trusts for the benefit of such individual or such
individual’s spouse and/or lineal descendants,
or
|
|
(ii)
|
otherwise,
another Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control
with, the Person specified. As used in this definition, “control” shall
mean the possession, directly or indirectly, of the power to cause
the
direction of the management and policies of a Person, whether through
the
ownership of voting securities or by contract or other written
instrument.
|
|
(b)
|
“Business
Day”
means any day on which banks located in New York City are not required
or
authorized by law to remain closed.
|
|
(c)
|
“Closing”
and “Closing
Date”
as defined in Section
2.2(c).
|
|
(d)
|
“Common
Stock”
as defined in the recitals above.
|
|
(e)
|
“Company
Financial Statements”
as
defined in Section
6.5 hereto.
|
|
(f)
|
“Company’s
knowledge”
means the information and/or other items that the Executives of the
Company have actual knowledge of after due
inquiry.
|
|
(g)
|
“Default
Agreement”
means the Default Agreement, dated the date of the First Closing,
by and
among each Investor and the Company, the form of which is annexed
hereto
has Exhibit
E.
|
|
(h)
|
“Deposit
Account Agreement”
means the Deposit Agreement, dated October 21, 2008, by and among
the
Company, the Placement Agent and the Escrow
Agent.
|
|
(i)
|
“ERISA”
as
defined in Section
6.18
hereto.
|
|
(j)
|
“Environmental
Laws”
as defined in Section
6.12
hereto.
|
|
(k)
|
“Escrow
Agent”
means Signature Bank, a New York commercial
bank.
|
|
(l)
|
“Escrow
Agreement”
means the Amended and Restated Escrow Deposit Agreement, dated October
16,
2008, by and among the Company, the Placement Agent and the Escrow
Agent.
|
|
(m)
|
“Exchange Act” means
the Securities Exchange Act of 1934, as
amended.
|
|
(n)
|
“Executives”
means Douglas Abel and Michael
McGuinness.
|
|
(o)
|
“Executive
Agreements”
as defined in Section
8.5.
|
|
(p)
|
“First
Closing”
and “First
Closing Date”
as defined in Section
2.2(a).
|
|
(q)
|
“Intellectual
Property”
means the Company’s patents, patent applications, provisional patents,
trademarks, service marks, trade names, trademark registrations,
service
mark registrations, copyrights, licenses, formulae, mask works, customer
lists, internet domain names, know-how and other intellectual property,
including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems, procedures or
registrations or applications relating to the
same.
|
|
(r)
|
“Indebtedness”
of any Person means all obligations of such Person (i) for borrowed
money,
(ii) evidenced by notes, bonds, debentures or similar instruments,
(iii)
for the deferred purchase price of goods or services (other than
trade
payables or accruals incurred in the ordinary course of business),
(iv)
under capital leases, and (v) in the nature of guarantees of the
obligations described in clauses (i) through (iv) above of any other
Person.
|
|
(s)
|
“Investor”
means any person who purchases Units in the Offering pursuant to
this
Agreement.
|
|
(t)
|
“Lien(s)”
means any interest in Property securing an obligation owed to a Person
whether such interest is based on the common law, statute or contract,
and
including but not limited to a security interest arising from a mortgage,
lien, title claim, assignment, encumbrance, adverse claim, contract
of
sale, pledge, conditional sale or trust receipt or a lease, consignment
or
bailment for security purposes. The term “Lien” includes but is not
limited to mechanics’, materialmens’, warehousemens’ and carriers’ liens
and other similar encumbrances. For the purposes hereof, a Person
shall be
deemed to be the owner of Property which it has acquired or holds
subject
to a conditional sale agreement or other arrangement pursuant to
which
title to the Property has been retained by or vested in some other
Person
for security purposes.
|
|
(u)
|
“Material
Adverse Effect”
means a material adverse effect on, and a “Material
Adverse Change”
means a material adverse change in:
|
|
(i)
|
the
assets, liabilities, results of operations, condition (financial
or
otherwise), business, or prospects of the Company taken as a whole;
or
|
|
(ii)
|
the
ability of the Company to perform its obligations under the Transaction
Documents,
|
|
(v)
|
“Maximum
Amount”
as defined in the recitals above.
|
|
(w)
|
“Minimum
Amount”
as defined in the recitals above.
|
|
(x)
|
“Note(s)”
as
defined in the recitals above.
|
|
(y)
|
“OTCBB”
shall mean the Over-the-Counter Bulletin Board
system.
|
|
(z)
|
“Overallotment
Amount”
as defined in the recitals above.
|
|
(aa)
|
“Offering”
shall mean the offering and sale of the Units pursuant to this Agreement
and the Private Placement
Memorandum.
|
|
(bb)
|
“Person”
shall mean an individual, entity, corporation, partnership, association,
limited liability company, limited liability partnership, joint-stock
company, trust or unincorporated
organization.
|
|
(cc)
|
“Placement
Agent”
shall mean [l].
|
|
(dd)
|
“Private
Placement Memorandum”
means the Company’s Confidential Private Placement Memorandum, dated
October 22, 2008, together with any and all amendments and/or supplements
thereto.
|
|
(ee)
|
“Property”
means any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or
intangible.
|
|
(ff)
|
“Public
Information Failure”
as defined in Section
6.25
hereto.
|
|
(gg)
|
“Public
Information Failure Payments”
as defined in Section
6.25
hereto.
|
|
(hh)
|
“Purchase
Price”
shall mean up to $3,500,000 (which amount includes the $1,000,000
Overallotment Amount).
|
|
(ii)
|
“Registration
Rights Agreement”
shall have the meaning set forth in the
recitals.
|
|
(jj)
|
“Regulation
D”
as defined in Section
4.11
hereto.
|
|
(kk)
|
“Rule
144”
as defined in Section
4.10(c)
hereto.
|
|
(ll)
|
“SEC”
means the United States Securities and Exchange
Commission.
|
|
(mm)
|
“SEC
Documents”
as defined in Section
6.5
hereto.
|
|
(nn)
|
“Securities”
as defined in the recitals above.
|
|
(oo)
|
“Securities
Act” means the
Securities Act of 1933, as amended.
|
|
(pp)
|
“Security
Agreement” means
the Security Agreement by and among each Investor and the
Company,
the form of which is annexed hereto has Exhibit
F.
|
|
(qq)
|
“Subsequent
Closing”
and “Subsequent
Closing Date”
as defined in Section
2.2(b).
|
|
(rr)
|
“Subsidiaries”
shall
mean any corporation or other entity or organization, whether incorporated
or unincorporated, in which the Company owns, directly or indirectly,
any
controlling equity or other controlling ownership interest or otherwise
controls through contract or
otherwise.
|
|
(ss)
|
“Transaction
Documents”
shall mean this Agreement, the Private Placement Memorandum, the
Notes,
the Security Agreement, the Default Agreement, the Executive Agreements,
the Registration Rights Agreement, the Warrants, the Escrow Agreement
and
the Deposit Account Agreement.
|
|
(tt)
|
“Transfer”
shall mean any sale, transfer, assignment, conveyance, charge, pledge,
mortgage, encumbrance, hypothecation, security interest or other
disposition, or to make or effect any of the
above.
|
|
(uu)
|
“Warrant
Shares”
as
defined in the recitals above.
|
|
(vv)
|
“Warrants”
as
defined in the recitals above.
|
|
2.
|
SALE
AND PURCHASE OF UNITS.
|
|
2.1
|
Subscription
for Units by Investors.
Subject to the terms and conditions of this Agreement, on the Closing
Date, each of the Investors shall severally, and not jointly, purchase,
and the Company shall sell and issue to each Investor, the number
of Units
specified by it on its respective signature page attached hereto
in
exchange for the Purchase Price.
|
|
2.2
|
Closings.
|
|
(a)
|
First
Closing.
Subject to the terms and conditions set forth in this Agreement,
the
Company shall issue and sell to each Investor listed on Exhibit
A-1,
and each such Investor shall, severally and not jointly, purchase
from the
Company on the First Closing Date, such number of Units set forth
on the
respective signature pages attached hereto, which will be reflected
opposite such Investor’s name on Exhibit A-1
(the “First
Closing”).
The date of the First Closing is hereinafter referred to as the
“First
Closing Date”.
Units equal to at least the Minimum Amount are required to be sold
at the
First Closing within the time period set forth in the Private Placement
Memorandum.
|
|
(b)
|
Subsequent
Closing(s).
The Company agrees to issue and sell to each Investor listed on
Exhibit
A-2
(the Subsequent Closing Schedule of Investors), and each such Investor
agrees, severally and not jointly, to purchase from the Company on
the
date set forth on Exhibit
A-2
(each a “Subsequent
Closing Date”)
such number of Units set forth on the signature pages attached hereto,
which will be reflected opposite such Investor’s name on Exhibit A-2
(a
“Subsequent
Closing”).
There may be more than one Subsequent Closing; provided,
however,
that the final Subsequent Closing shall take place within the time
periods
set forth in the Private Placement Memorandum. The date of any Subsequent
Closing is hereinafter referred to as a “Subsequent
Closing Date”).
|
|
(c)
|
Closing.
The First Closing and any applicable Subsequent Closings are each
referred
to in this Agreement as a “Closing”.
The First Closing Date and any Subsequent Closing Dates are sometimes
referred to herein as a “Closing
Date”.
All Closings shall occur within the time periods set forth in the
Private
Placement Memorandum at the offices of Gusrae, Kaplan, Bruno & Nusbaum
PLLC, counsel to the Placement Agent, at 120 Wall Street, 11th Floor,
New
York, NY 10005 or remotely via the exchange of documents and
signatures.
|
|
2.3
|
Closing
Deliveries.
At each Closing, the Company shall deliver to the Investors purchasing
Units at such Closing, against delivery by the Investor of the Purchase
Price (as provided below), the Notes and the Warrants. At each Closing,
each Investor purchasing Units at such Closing shall deliver or cause
to
be delivered to the Company the Purchase Price set forth in its
counterpart signature page annexed hereto by paying United States
dollars
via bank, certified or personal check which has cleared prior to
the
applicable Closing or in immediately available funds, by wire transfer
to
the following Escrow Account, pursuant to the Escrow
Agreement:
|
|
Acct.
Name:
|
Signature
Bank as Escrow Agent for Manhattan Pharmaceuticals,
Inc.
|
|
ABA
Number:
|
026013576
|
|
Acct
Number:
|
1501128178
|
|
2.4
|
Terms
of the Notes. Each
of the Notes shall have the terms and conditions and be in the form
attached hereto as Exhibit
B.
The Company’s obligations to the Investors under the Notes shall be
secured by the assets of the Company as provided in the Security
Agreement
and in the Default Agreement. Upon an Event of Default (as defined
in the
Note),
the Investors shall have, in addition to any rights provided hereunder,
the rights provided them under the Transaction Documents.
|
|
2.5
|
Restrictions
on Release of Proceeds.
In
addition to the other conditions to Closing listed in Section
8
hereof, the release of proceeds from the Escrow Account to the Company
shall be subject to the following
restrictions:
|
|
(i)
|
The
proceeds from the sale of the Units to be released to the Company
shall be
released from the Escrow Account and transferred to the deposit account
(the “Deposit
Account”)
established by the Deposit Account Agreement. Funds shall be released
from
the Deposit Account retroactive as of October 1, 2008, in a series
of
monthly payments (a “Monthly
Payment”)
and Closing lump sum payments (“Lump
Sum Payment”)
in the amounts set forth above:
|
|
Gross
Proceeds
|
Monthly
Payment
|
Aggregate
Lump
Sum
Payment
at
Closing
|
|||||
|
$1,000,000
to $1,499,999
|
$
|
106,000
|
0
|
||||
|
$1,500,000
to $1,999,999
|
$
|
113,300
|
$
|
200,000
|
|||
|
$2,000,000
to 2,500,000
|
$
|
119,375
|
$
|
225,000
|
|||
|
$2,500,000
or more
|
$
|
125,000
|
Any
amount in excess of $1,500,000
|
||||
|
(ii)
|
At
the First Closing the Company shall receive an amount equal to the
Monthly
Payment for the month in which such Closing occurs, plus any applicable
Lump Sum Payment; provided,
however,
that if the First Closing shall occur after October 31, 2008 and
prior to
or on November 30, 2008, the Company shall receive an amount equal
to two
Monthly Payments, plus any applicable Lump Sum Payment; provided,
further,
that if the First Closing shall occur after November 30, 2008 and
on or
prior to December 31, 2008, the Company shall receive an amount equal
to
three Monthly Payments, plus any applicable Lump Sum Payment and
provided,
further,
that if First Closing after December 31, 2008, the Company shall
receive
an amount equal to four Monthly Payments, plus any applicable Lump
Sum
Payment. Following the First Closing, Monthly Payments shall be paid
by
the Escrow Agent to the Company on the first Business Day of each
month
and shall be increased, as applicable in accordance with Section
2.5(i).
The Escrow Agent shall pay to the Company the applicable Lump Sum
Payment
at each Closing which results in gross proceeds from the sale of
the Units
being at least equal to $1,500,000, $2,000,000 or $2,500,000, as
the case
may be.
|
|
2.6
|
Use
of Proceeds. The
Company hereby covenants and agrees that the proceeds from the sale
of
Units shall be used as provided for in the Private Placement
Memorandum.
|
|
3.
|
ACKNOWLEDGEMENTS
OF THE INVESTORS.
|
|
3.1
|
Resale
Restrictions.
None of the Securities have been registered under the Securities
Act, or
under any state securities or “blue sky” laws of any state of the United
States, and, unless so registered, none of the Securities may be
offered
or sold by the Investor except pursuant to an effective registration
statement under the Securities Act, or pursuant to an exemption from,
or
in a transaction not subject to, the registration requirements of
the
Securities Act and in each case only in accordance with applicable
state
securities laws.
|
|
3.2
|
Legends
on Notes, Warrants and Warrant Shares.
Such Investor understands that the Notes, the Warrants and certificates
evidencing the Warrant Shares shall bear a restrictive legend in
substantially the following form (and a stop-transfer order may be
placed
against transfer of the certificates evidencing such Warrant
Shares):
|
|
3.3
|
Agreements.
It
has received and carefully read the Transaction Documents and Private
Placement Memorandum, including the Risk Factors set forth in the
Private
Placement Memorandum;
|
|
3.4
|
Books
and Records.
The books and records of the Company were available upon reasonable
notice
for inspection, subject to certain confidentiality restrictions,
by the
Investor during reasonable business hours at its principal place
of
business, that all documents, records and books in connection with
the
sale of the Securities hereunder have been made available for inspection
by it and its attorney and/or advisor(s) and that the Investor and/or
its
advisor has reviewed all such documents, records and books to its
full
satisfaction and all questions it and/or its advisor may have had
been
answered to their respective full
satisfaction;
|
|
3.5
|
Independent
Advice.
The Investor has been advised to consult the Investor’s own legal, tax and
other advisors with respect to the merits and risks of an investment
in
the Securities and with respect to applicable resale restrictions,
and it
is solely responsible (and neither the Company nor the Placement
Agent is
in any way, directly and/or indirectly, responsible) for compliance
with:
|
|
(a)
|
any
applicable laws of the jurisdiction in which the Investor is resident
in
connection with the distribution of the Securities hereunder,
and
|
|
(b)
|
applicable
resale restrictions;
|
|
3.6
|
No
Insurance.
There is no government or other insurance covering any of the
Securities.
|
|
4.
|
REPRESENTATIONS,
WARRANTIES AND ACKNOWLEDGMENTS OF THE
INVESTORS.
|
|
4.1
|
Capacity.
The Investor: (i) if a natural person, represents that the Investor
has
reached the age of 21 and has full authority, legal capacity and
competence to enter into, execute and deliver this Agreement and
the
Transaction Documents to which the Investor is a party and all other
related agreements or certificates and to take all actions required
pursuant hereto and thereto and to carry out the provisions hereof
and
thereof and, (ii) if a corporation, partnership, or limited liability
company or partnership, or association, joint stock company, trust,
unincorporated organization or other entity, represents that such
entity
was not formed for the specific purpose of acquiring the Units, such
entity is duly organized, validly existing and in good standing under
the
laws of the state of its organization, such entity has full power
and
authority to execute and deliver this Agreement, the Transaction
Documents
to which it is a party and all other related agreements or certificates
and to take all actions required pursuant hereto and thereto and
to carry
out the provisions hereof and thereof and to purchase and hold the
Units,
the execution and delivery of this Agreement and the Transaction
Documents
to which it is a Party have been duly authorized by all necessary
action;
or (iii) if executing this Agreement in a representative or fiduciary
capacity, represents that it has full power and authority to execute
and
deliver this Agreement and the Transaction Documents to which it
is a
Party in such capacity and on behalf of the subscribing individual,
ward,
partnership, trust, estate, corporation, or limited liability company
or
partnership, or other entity for whom the Investor is executing this
Agreement and the Transaction Documents, and such individual, partnership,
ward, trust, estate, corporation, or limited liability company or
partnership, or other entity has full right and power to perform
pursuant
to this Agreement and the Transaction Documents to which it is a
Party and
make an investment in the
Company;
|
|
4.2
|
No
Violation of Corporate Governance Documents.
If
the Investor is a corporation or other entity, the entering into
of this
Agreement and the other Transaction Documents to which it is a party
and
the transactions contemplated hereby and thereby do not and will
not
result in the violation of any of the terms and provisions of any
law
applicable to, or the charter or other organizational documents,
bylaws or
other constating documents of, the Investor or of any agreement,
written
or oral, to which the Investor may be a party or by which the Investor
is
or may be bound;
|
|
4.3
|
Binding
Agreement. The
Investor has duly executed and delivered this Agreement and the other
Transaction Documents to which it is a party, and this Agreement
and the
other Transaction Documents to which it is a party constitute a valid
and
binding agreement of the Investor enforceable against the Investor
in
accordance with their respective terms, except as such enforceability
may
be limited by general principals of equity, or to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other similar
laws
relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.
|
|
4.4
|
No
SEC Review or Approval.
Neither the SEC nor any other securities commission, securities regulator
or similar regulatory authority has reviewed or passed on the merits
of
the Securities or on any of the documents reviewed or executed by
the
Investor in connection with the sale of the Securities.
|
|
4.5
|
Purchase
Entirely for Own Account.
The Securities are being acquired for such Investor’s own account, not as
nominee or agent, for investment purposes only and not with a view
to the
resale or distribution of any part thereof in violation of the Securities
Act, and such Investor has no present intention of selling, granting
any
participation in, or otherwise distributing the same in violation
of the
Securities Act,
without prejudice, however, to such Investor’s right at all times to sell
or otherwise dispose of all or any part of such Securities in compliance
with applicable federal and state securities laws.
|
|
4.6
|
Not
a Broker-Dealer. Such
Investor is neither a registered representative under the Financial
Industry Regulatory Authority (“FINRA”),
a member of FINRA or associated or Affiliated with any member of
FINRA,
nor a broker-dealer registered with the SEC under the Exchange Act
or
engaged in a business that would require it to be so registered,
nor is it
an Affiliate of a such a broker-dealer or any Person engaged in a
business
that would require it to be registered as a broker-dealer. In the
event
such Investor is a member of FINRA, or associated or Affiliated with
a
member of FINRA, such Investor agrees, if requested by FINRA, to
sign a
lock-up, the form of which shall be satisfactory to FINRA with respect
to
the Warrants and the Warrant
Shares.
|
|
4.7
|
Not
an Underwriter.
Such Investor is not an underwriter of the Common Stock, nor is it
an
Affiliate of an underwriter of the Common
Stock.
|
|
4.8
|
Investment
Experience.
Such Investor acknowledges that the purchase of the Securities is
a highly
speculative investment and that it can bear the economic risk and
complete
loss of its investment in the Securities and has such knowledge and
experience in financial and/or business matters that it is capable
of
evaluating the merits and risks of the investment contemplated
hereby.
|
|
4.9
|
Disclosure
of Information.
Such Investor has had an opportunity to receive, and fully and carefully
review, all information related to the Company and the Securities
requested by it and to ask questions of and receive answers from
the
Company regarding the Company, its business and the terms and conditions
of the offering of the Securities. Neither such inquiries nor any
other
due diligence investigation conducted by such Investor shall modify,
amend
or affect such Investor’s right to rely on the Company’s representations
and warranties contained in this Agreement. Such Investor acknowledges
that it has received, and fully and carefully reviewed and understands
all
of the Transaction Documents, including, but not limited to, the
Private
Placement Memorandum describing, among other items, the Company,
its
business, its risks, the Securities and the offering of the Securities.
Investor acknowledges that it has received, and fully and carefully
reviewed and understands, copies of the SEC Documents, either in
hard copy
or electronically through the SEC’s EDGAR system. Such Investor
understands that its investment in the Securities involves a high
degree
of risk. Such Investor’s decision to enter into this Agreement and the
Registration Rights Agreement has been made based solely on the
independent evaluation of the Investor and its representatives. Such
Investor has received such accounting, tax and legal advice from
Persons
other than the Company as it has considered necessary to make an
informed
investment decision with respect to the acquisition of the
Securities.
|
|
4.10
|
Restricted
Securities.
Such Investor understands that except as provided in the Registration
Rights Agreement, the sale or re-sale of the Securities has not been
and
is not being registered under the Securities Act or any applicable
state
securities laws, and the Securities, as applicable, may not be transferred
unless:
|
|
(a)
|
they
are sold pursuant to an effective registration statement under the
Securities Act; or
|
|
(b)
|
they
are being sold pursuant to a valid exemption from the registration
requirements of the Securities Act and, if required by the Company,
such
Investor shall have delivered to the Company, at the Investor’s sole cost
and expense, an opinion of counsel that shall be in form, substance
and
scope customary for opinions of counsel in comparable transactions
to the
effect that the Securities to be sold or transferred may be sold
or
transferred pursuant to an exemption from the registration requirements
of
the Securities Act, which opinion shall be acceptable to the Company;
or
|
|
(c)
|
they
are sold or transferred to an “affiliate” (as defined in Rule 144,
promulgated under the Securities Act (or a successor rule (“Rule
144”))
of such Investor who agrees to sell or otherwise transfer the Securities
only in accordance with this Section
4.10
and who is an accredited investor,
or
|
|
(d)
|
they
are sold pursuant to Rule 144.
|
|
4.11
|
Accredited
Investor.
Such Investor is an accredited investor as defined in Rule 501(a)
of
Regulation D, as amended, under the Securities Act (“Regulation
D”).
|
|
4.12
|
No
General Solicitation.
Such Investor did not learn of the investment in the Securities as
a
result of any public advertising or general solicitation, and is
not aware
of any public advertisement or general solicitation in respect of
the
Company or its securities.
|
|
4.13
|
Brokers
and Finders.
No Investor will have, as a result of the transactions contemplated
by the
Transaction Documents, any valid right, interest or claim against
or upon
the Company, any Subsidiary or any other Investor for any commission,
fee
or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of such
Investor.
|
|
4.14
|
Prohibited
Transactions.
Other
than with respect to the transactions contemplated herein, since
the
earlier to occur of (i) the time that such Investor was first contacted
by
the Company, or any other Person regarding an investment in the Company
and (ii) the thirtieth (30th)
day prior to the date hereof, neither the Investor nor any Affiliate
of
the Investor which (x) had knowledge of the transactions contemplated
hereby, (y) has or shares discretion relating to the Investor’s
investments or trading or information concerning such Investor’s
investments, including in respect of the Securities, or (z) is subject
to
the Investor’s review or input concerning such Affiliate’s investments or
trading decisions (collectively, “Trading
Affiliates”)
has, directly or indirectly, nor has any Person acting on behalf
of, or
pursuant to, any understanding with such Investor or Trading Affiliate
effected or agreed to effect any transactions in the securities of
the
Company or involving the Company’s securities (a
“Prohibited
Transaction”).
|
|
4.15
|
Residency.
Such Investor is a resident of the jurisdiction set forth in the
Investor
Questionnaire provided separately.
|
|
4.16
|
Reliance
on Exemptions.
The Investor understands that the Securities are being offered and
sold to
it in reliance upon specific exemptions from the registration requirements
of United States federal and state securities laws and that the Company
is
relying upon the truth and accuracy of, and the Investor’s compliance
with, the representations, warranties, agreements, acknowledgments
and
understandings of the Investor set forth herein in order to determine
the
availability of such exemptions and the eligibility of the Investor
to
acquire the Securities. All of the information which the Investor
has
provided to the Company is true, correct and complete as of the date
this
Agreement is signed, and if there should be any change in such information
prior to the Closing, the Investor will immediately provide the Company
with such information.
|
|
4.17
|
Conflicts.
The Investor understands that Affiliates and/or employees of the
Placement
Agent (i) beneficially own in the aggregate approximately 1,087,920
shares
of Common Stock, (ii) will receive the compensation set forth elsewhere
herein in connection with the Offering, and (iii) may, but are not
obligated to, purchase Securities in the Offering and any and all
such
Securities purchased shall be counted toward the Minimum Amount and
the
Maximum Amount.
|
|
5.
|
COVENANTS
OF THE COMPANY
|
|
5.1
|
Affirmative
Covenants.
|
|
(a)
|
Furnishing
of Information.
Until the date that any Investor owning Warrant Shares may sell all
of
them under Rule 144 of the Securities Act (or any successor provision)
without restriction, the Company covenants to use its commercially
reasonable efforts to (a) timely file (or obtain extensions in respect
thereof and file within the applicable grace period) all reports
required
to be filed by the Company after the date hereof pursuant to the
Exchange
Act and (b) make and keep adequate “current public information” (as such
term is described in Rule 144)
available.
|
|
(b)
|
Rule
144 Sales.
In connection with any proposed sale of Warrant Shares pursuant to
Rule
144 (or any successor provision) by the Investor, the Company covenants
that it shall take such reasonable action as the Investor may request
(including, without limitation, promptly obtaining any required legal
opinions from Company counsel necessary to effect the sale of Warrant
Shares under Rule 144 and paying all related fees and expenses of
such counsel in connection with such opinions), all to the extent
required
from time to time to enable such Investor to sell Warrant Shares
without
registration under the Securities Act pursuant to the provisions
of
Rule 144 under the Securities Act (or any successor provision). The
Company further covenants to take such action and to provide such
legal
opinions within three (3) business days after receipt from such Investor
(or its representative) of documentation reasonably required by Company
counsel to provide such opinion.
|
|
(c)
|
Filing
of Tax Reports.
The Company shall, and shall cause each of its Subsidiaries to prepare
and
timely file (or obtain extensions in respect thereof and file within
the
applicable grace period) all tax returns and tax reports required
to be
filed by each of them in all required jurisdictions after the date
hereof
pursuant to applicable tax laws.
|
|
6.
|
REPRESENTATIONS
AND WARRANTIES OF THE
COMPANY.
|
|
6.1
|
Organization;
Execution, Delivery and Performance.
|
|
(a)
|
The
Company and each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
in which
it is incorporated or organized, with full power and authority (corporate
and other) to own, lease, use and operate its properties and to carry
on
its business as and where now owned, leased, used, operated and conducted.
The Company is duly qualified as a foreign corporation to do business
and
is in good standing in every jurisdiction in which its ownership
or use of
property or the nature of the business conducted by it makes such
qualification necessary except where the failure to be so qualified
or in
good standing would not have a Material Adverse Effect.
|
|
(b)
|
Subsidiaries.
The Company has no Subsidiaries other than those listed in Schedule
6.1(b)
hereto. Except as disclosed in Schedule
6.1(b)
hereto or in the SEC Documents, the Company owns, directly or indirectly,
all of the capital stock or comparable equity interests of each Subsidiary
free and clear of any and all Liens and all of the issued and outstanding
shares of capital stock or comparable equity interest of each Subsidiary
are validly issued and are fully paid, non-assessable and free of
preemptive rights of first refusal and other similar rights. The
Company
has the unrestricted right to vote, and (subject to limitations imposed
by
applicable law) to receive dividends and distributions on, all capital
stock or other equity securities of its Subsidiaries that are owned
by the
Company.
|
| (c) |
(i) The
Company has all requisite corporate power and authority to enter
into and
perform the Transaction Documents and to consummate the transactions
contemplated hereby and thereby and to issue the Securities in accordance
with the terms hereof and thereof;
|
|
(ii)
|
the
execution and delivery of the Transaction Documents by the Company
and the
consummation by the Company of the transactions contemplated hereby
and
thereby have been duly authorized by the Company’s Board of Directors and
no further consent or authorization of the Company, its Board of
Directors, or its stockholders, is required except as expressly
contemplated by this Agreement;
|
|
(iii)
|
each
of the Transaction Documents has been duly executed and delivered
by the
Company by its authorized representative, and such authorized
representative is a true and official representative with authority
to
sign each such document and the other documents or certificates executed
in connection herewith and bind the Company accordingly;
and
|
|
(iv)
|
each
of the Transaction Documents constitutes, and upon execution and
delivery
thereof by the Company will constitute, a legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by general
principals of equity, or to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating
to, or affecting generally, the enforcement of applicable creditors’
rights and remedies.
|
|
6.2
|
Warrants
Shares Duly Authorized. The
Warrant Shares will be duly authorized and reserved for future issuance
and, upon exercise of the Warrants in accordance with their terms,
will be
duly and validly issued, fully paid and non-assessable, and free
from all
taxes or Liens with respect to the issue thereof and shall not be
subject
to preemptive rights, rights of first refusal and/or other similar
rights
of stockholders of the Company and/or any other
Person.
|
|
6.3
|
No
Conflicts.
Except as disclosed in Schedule
6.3,
the execution, delivery and performance of the Transaction Documents
by
the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance and reservation for issuance of the Warrant Shares) will
not:
|
|
(a)
|
conflict
with or result in a violation of any provision of the Certificate
of
Incorporation or By-laws or similar documents of the Company;
or
|
|
(b)
|
violate
or conflict with, or result in a breach of any provision of, or
constitutes a default and/or an event of default (or an event which
with
notice or lapse of time or both could become a default and/or an event
of
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture, patent,
patent
license or instrument to which the Company is a party, except for
possible
violations, conflicts or defaults as would not, individually or in
the
aggregate, have a Material Adverse Effect;
or
|
|
(c)
|
result
in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations and
regulations of any self-regulatory organizations to which the Company
or
its securities are subject) applicable to the Company or by which
any
property or asset of the Company is bound or
affected.
|
|
6.4
|
Capitalization.
|
|
(a)
|
As
of September 15, 2008, the authorized capital stock of the Company
consists solely of 1,500,000 share of preferred stock, of which no
shares
of preferred stock are issued and outstanding and 300,000,000 shares
of
Common Stock, of which 70,624,232 shares of
Common Stock are issued and outstanding, 10,766,336 shares of Common
Stock
are reserved for issuance pursuant to options granted under the Company’s
stock option plan, and 15,966,710 shares are reserved for issuance
pursuant to securities (other than the Warrants and the warrants
issued to
the Placement Agent in the Offering) exercisable for, or convertible
into
or exchangeable for shares of Common Stock.
|
|
(b)
|
Except
as described above, in the SEC Documents or Schedule
6.4(b)
annexed hereto, as of September 15,
2008:
|
|
(i)
|
there
are no outstanding options, warrants, scrip, rights to subscribe
for,
puts, calls, rights of first refusal, agreements, understandings,
claims
or other commitments or rights of any character whatsoever relating
to, or
securities or rights convertible into or exchangeable for any shares
of
capital stock of the Company, or arrangements by which the Company
is or
may become bound to issue additional shares of capital stock of the
Company;
|
|
(ii)
|
other
than the Registration Rights Agreement there are no agreements or
arrangements under which the Company is obligated to register the
sale of
any of its securities under the Securities Act (except for the
registration rights provisions contained herein);
and
|
|
(iii)
|
there
are no anti-dilution or price adjustment provisions contained in
any
security issued by the Company (or in any agreement providing rights
to
security holders) that will be triggered by the issuance of any of
the
Notes, the Warrants and/or the Warrant Shares. All of such outstanding
shares of capital stock are, or upon issuance will be, duly authorized,
validly issued, fully paid and nonassessable. No shares of capital
stock
and/or other securities of the Company are subject to preemptive
rights,
rights of first refusal and/or any other similar rights of the
stockholders of the Company and/or any other Person or any Lien imposed
through the actions or failure to act of the
Company.
|
|
6.5
|
SEC
Information.
|
|
(a)
|
Except
as set forth in Schedule
6.5
or
in the SEC Documents, since January 1, 2007, the Company has timely
filed
(subject to 12b-25 filings with respect to certain periodic filings)
all
reports, schedules, forms, statements and other documents required
to be
filed by it with the SEC pursuant to the reporting requirements of
the
Exchange Act, including, but not limited to, all Current Reports
on Form
8-K (all of the foregoing filed with the SEC prior to the date hereof
and
all exhibits included therein and financial statements and schedules
thereto and documents incorporated by reference therein, being hereinafter
referred to herein as the “SEC
Documents”).
The SEC Documents have been made available to the Investors via the
SEC’s
EDGAR system. Except as set forth on Schedule
6.5
to
this Agreement, as of their respective dates the SEC Documents complied
in
all material respects with the requirements of the Exchange Act and
the
rules and regulations of the SEC promulgated thereunder applicable
to the
SEC Documents, and none of the SEC Documents, at the time they were
filed
with the SEC, contained any untrue statement of a material fact or
omitted
to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances
under
which they were made, not misleading. In addition, as of each Closing,
the
SEC Documents, together with any additional documents filed with
the SEC
after the date hereof and through the date of Closing, when taken
in their
entirety, shall not contain any untrue statements of a material fact
or
omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the date upon
which
they were made and the circumstances under which they were made,
not
misleading. As of their respective dates, the financial statements
of the
Company included in the SEC Documents (“Company
Financial Statements”)
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with
respect thereto as in effect at the time of the filing. The Company
Financial Statements have been prepared in accordance with United
States
generally accepted accounting principles (“GAAP”),
consistently applied, during the periods involved
(except:
|
|
(i)
|
as
may be otherwise indicated in such financial statements or the notes
thereto; or
|
|
(ii)
|
in
the case of unaudited interim statements, to the extent they may
not
include footnotes or may be condensed or summary statements) and
fairly
present in all material respects the consolidated financial position
of
the Company and its consolidated Subsidiaries, if any, as of the
dates
thereof and the consolidated results of their operations and cash
flows
for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit
adjustments).
|
|
(i)
|
liabilities
incurred in the ordinary course of business subsequent to December
31,
2007; and
|
|
(ii)
|
obligations
under contracts and commitments incurred in the ordinary course of
business and not required under GAAP to be reflected in such financial
statements, which, individually or in the aggregate, are not material
to
the financial condition or operating results of the
Company.
|
|
(b)
|
The
shares of Common Stock are quoted on the OTCBB under the symbol “MHAN.”
The Company has not received notice (written or oral) from the OTCBB
to
the effect that the Company is not in compliance with the continuing
requirements of the OTCBB. The Company is, and it has no reason to
believe
that it will not in the foreseeable future continue to be, in compliance
with all such maintenance
requirements.
|
|
(c)
|
All
information relating to or concerning the Company and its officers,
directors, employees, customers or clients (including, without limitation,
all information regarding the Company’s internal financial accounting
controls and procedures) set forth in the Transaction Documents and
the
SEC Documents incorporated by reference therein, when taken together
as a
whole, does not contain an untrue statement of material fact or omit
to
state any material fact necessary in order to make the statements
made
herein or therein, in light of the circumstances under which they
were
made, not misleading.
|
|
6.6
|
Intellectual
Property.
Except as set forth in Schedule
6.6
or
in the SEC Documents, the Company or its Subsidiaries owns valid
title,
free and clear of any Liens, or possesses the requisite valid and
current
licenses or rights, free and clear of any Liens, to use all Intellectual
Property in connection with the conduct its business as now operated.
There is no pending claim or action by any person pertaining to,
or
proceeding pending, or to the Company’s knowledge threatened, which
challenges the right of the Company or of a Subsidiary with respect
to any
Intellectual Property necessary to enable it to conduct its business
as
now operated. To the best of the Company’s knowledge, the Company’s
current products, services and processes do not infringe on any
Intellectual Property or other rights held by any person, and the
Company
is unaware of any facts or circumstances which might give rise to
any of
the foregoing. The Company has not received any written notice of
infringement of, or conflict with, the asserted rights of others
with
respect to the Intellectual Property. The Company has taken reasonable
security measures to protect the secrecy, confidentiality and value
of its
Intellectual Property.
|
|
6.7
|
Permits;
Compliance.
The Company is in possession of all franchises, grants, authorizations,
licenses, permits, easements, variances, exemptions, consents,
certificates, approvals and orders necessary to own, lease and operate
its
properties and to carry on its business as it is now being conducted
(collectively, the “Company Permits”),
except where such failure to posses would not have a Material Adverse
Effect, and there is no action pending or, to the knowledge of the
Company, threatened regarding suspension or cancellation of any of
the
Company Permits. The Company is not in conflict with, or in default
or
violation of, any of the Company Permits, except for any such conflicts,
defaults or violations which, individually or in the aggregate, would
not
reasonably be expected to have a Material Adverse Effect. Since December
31, 2007, the Company has received no notification with respect to
possible conflicts, defaults or violations of applicable laws, except
for
notices relating to possible conflicts, defaults or violations, which
conflicts, defaults or violations would not have a Material Adverse
Effect.
|
|
6.8
|
Absence
of Litigation.
Except as set forth in Schedule
6.8 or
in the SEC Documents, there is no action, suit, claim, proceeding,
inquiry
or investigation before or by any court, public board, government
agency,
self-regulatory organization or body pending or, to the knowledge
of the
Company, threatened against or affecting the Company, or its businesses,
properties or assets or their officers or directors in their capacity
as
such, that would have a Material Adverse
Effect.
|
|
6.9
|
No
Materially Adverse Contracts, etc.
Except as set forth in Schedule
6.9,
the Company is not subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation which
in
the judgment of the Company’s officers has or is expected in the future to
have a Material Adverse Effect. The Company is not a party to any
contract
or agreement which has or is reasonably expected to have a Material
Adverse Effect.
|
|
6.10
|
No
Material Changes.
Except as set forth in the SEC Documents, since December 31, 2007,
there
has not been:
|
|
(a)
|
Any
material adverse change in the financial condition, operations or
business
of the Company from that shown on the Company Financial Statements,
or any
material transaction or commitment effected or entered into by the
Company
outside of the ordinary course of
business;
|
|
(b)
|
To
the Company’s Knowledge, any effect, change or circumstance which has had,
or could reasonably be expected to have, a Material Adverse Effect;
or
|
|
(c)
|
Any
incurrence of any material liability outside of the ordinary course
of
business.
|
|
6.11
|
Labor
Matters.
|
|
(a)
|
The
Company is not a party to or bound by any collective bargaining agreements
or other agreements with labor organizations. The Company has not
violated
in any material respect any laws, regulations, orders or contract
terms,
affecting the collective bargaining rights of employees, labor
organizations or any laws, regulations or orders affecting employment
discrimination, equal opportunity employment, or employees’ health,
safety, welfare, wages and hours.
|
|
(b)
|
The
Company is, and at all times has been, in compliance in all material
respects with all applicable laws respecting employment (including
laws
relating to classification of employees and independent contractors)
and
employment practices, terms and conditions of employment, wages and
hours,
and immigration and naturalization.
|
|
6.12
|
Environmental
Matters.
To the Company’s knowledge, neither the Company nor any Subsidiary is in
violation of any statute, rule, regulation, decision or order of
any
governmental agency or body or any court, domestic or foreign, relating
to
the use, disposal or release of hazardous or toxic substances or
relating
to the protection or restoration of the environment or human exposure
to
hazardous or toxic substances (collectively, “Environmental
Laws”),
owns or operates any real property contaminated with any substance
that is
subject to any Environmental Laws, is liable for any off-site disposal
or
contamination pursuant to any Environmental Laws, and is subject
to any
claim relating to any Environmental Laws, which violation, contamination,
liability or claim has had or could reasonably be expected to have
a
Material Adverse Effect, individually or in the aggregate; and there
is no
pending or, to the Company’s knowledge, threatened investigation that
might lead to such a claim.
|
|
6.13
|
Tax
Matters. None
of the Company and its Subsidiaries has made or filed any federal,
state
and foreign income or any other tax returns, reports and declarations
required by any jurisdiction to which it is subject and none of them
has
ever paid any taxes or other governmental assessments or charges
that are
material in amount, nor is it aware of any that have been assessed
or are
due. There are no unpaid taxes in any material amount claimed to
be due by
the taxing authority of any jurisdiction, and the officers of the
Company
know of no basis for any such claim. Neither the Company nor any
of its
Subsidiaries have executed a waiver with respect to the statute of
limitations relating to the assessment or collection of any foreign,
federal, state or local tax.
|
|
6.14
|
Certain
Transactions.
Except as set forth on Schedule
6.14
or
in the SEC Documents, there are no loans, leases, royalty agreements
or
other transactions between:
|
|
(a)
|
the
Company or any of its customers or suppliers;
and
|
|
(b)
|
any
officer, employee, consultant or director of the Company or any person
owning five (5%) percent or more of the capital stock of the Company
or
five (5%) percent or more of the ownership interests of the Company
or any
member of the immediate family of such officer, employee, consultant,
director, stockholder or owner or any corporation or other entity
controlled by such officer, employee, consultant, director, stockholder
or
owner, or a member of the immediate family of such officer, employee,
consultant, director, stockholder or
owner.
|
|
6.15
|
No
General Solicitation.
The Company has not, and to the Company’s knowledge no other Person has
conducted any “general solicitation,” as such term is defined in
Regulation D promulgated under the Securities Act, with respect to
any of
the Securities being offered
hereby.
|
|
6.16
|
No
Integrated Offering; Compliance With Prior Sales of
Securities.
Neither the Company, nor any of its Affiliates, nor any person acting
on
its or their behalf, has directly or indirectly made any offers or
sales
of any security or solicited any offers to buy any security under
circumstances that would require registration under the Securities
Act of
the issuance of the Securities to the Investors. The issuance of
the
Securities to the Investors will not be integrated with any other
issuance
of the Company’s securities (past, current or future) for purposes of any
stockholder approval provisions applicable to the Company or its
securities. All prior sales of the Company’s Securities were made in
compliance with all Federal and State laws, rules and
regulations.
|
|
6.17
|
No
Brokers.
Except as set forth in Section
10.1,
the Company has taken no action which would give rise to any claim
by any
person for brokerage commissions, transaction fees or similar payments
relating to this Agreement or the transactions contemplated
hereby.
|
|
6.18
|
ERISA.
The Company has not made or currently makes no contributions to any
employee pension benefit plan for its employees which plan is subject
to
the Employee Retirement Income Security Act of l974, as amended from
time
to time (“ERISA”).
|
|
6.19
|
Title
to Property.
The Company holds no title in fee simple to any real property. The
Company
holds good and marketable title to all personal property owned by
it which
is material to the business of the Company, in each case free and
clear of
all Liens, except such as are described in Schedule
6.1(b).
Any real property and facilities held under lease by the Company
is held
under valid, subsisting and enforceable leases against the
Company.
|
|
6.20
|
Insurance.
Except as set forth on Schedule
6.20
and for Directors’ and Officers’ liability insurance, the Company does not
carry any insurance policies.
|
|
6.21
|
Internal
Controls.
Except as set forth in Schedule
6.21
or
the SEC Documents, the Company is
in material compliance with the provisions of the Sarbanes-Oxley
Act
of
2002 currently applicable to the Company that are effective as of
the date
hereof and the Company maintains
a system of internal accounting controls sufficient to provide reasonable
assurance that:
|
|
(a)
|
transactions
are executed in accordance with management's general or specific
authorizations;
|
|
(b)
|
transactions
are recorded as necessary to permit preparation of financial statements
in
conformity with GAAP and to maintain asset
accountability;
|
|
(c)
|
access
to assets is permitted only in accordance with management's general
or
specific authorization; and
|
|
(d)
|
the
recorded accountability for assets is compared with the existing
assets at
reasonable intervals and appropriate action is taken with respect
to any
differences.
|
|
6.22
|
Books
and Records.
The books of account, ledgers, order books, records and documents
of the
Company accurately and completely reflect all material information
relating to the businesses of the Company, the location and collection
of
its assets, and the nature of all transactions giving rise to the
obligations or accounts receivable of the
Company.
|
|
6.23
|
FCPA
Matters.
Neither the Company, nor to the Knowledge of the Company any director,
officer, agent, employee or other person acting on behalf of the
Company
has, in the course of his or her actions for, or on behalf of, the
Company:
|
|
(a)
|
used
any corporate funds for any unlawful contribution, gift, entertainment
or
other unlawful expenses relating to political
activity;
|
|
(b)
|
made
any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate
funds;
|
|
(c)
|
violated
or is in violation of any provision of the U.S. Foreign
Corrupt Practices Act
of
1977, as amended; or
|
|
(d)
|
made
any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment to any foreign or domestic governmental or private official
or
person.
|
|
6.24
|
Form
D; Blue Sky Laws.
The Company shall file a Form D with respect to the Securities as
required
under Regulation D and to provide a copy thereof to the Placement
Agent,
promptly after such filing. The Company shall assist the Placement
Agent’s
legal counsel, on or before the Closing Date, in qualifying the Securities
for sale to the Investors in the applicable closing pursuant to this
Agreement under applicable securities or “blue sky” laws of the states of
the United States (or to obtain an exemption from such qualification),
and
shall pay all fees and expenses of such counsel in connection therewith,
including, but not limited to, all State filing fees and such counsel’s
legal fees and expenses.
|
|
6.25
|
Public
Information.
Public
Information.
At any time during the period commencing from the six (6) month
anniversary of the First Closing Date and ending at such time that
all of
the Warrant Shares can be sold either pursuant to a registration
statement, or if a registration statement is not available for the
resale
of all of such securities, may be sold without the requirement for
the
Company to be in compliance with Rule 144(c)(1) and otherwise without
restriction or limitation pursuant to Rule 144, if the Company shall
fail
for any reason or no reason to satisfy the current public information
requirement under Rule 144(c) (a “Public
Information Failure”)
then, as a remedy for the damages to any holder of Securities by
reason of
any such delay in or reduction of its ability to sell the Warrant
Shares
(which remedy shall not be exclusive of any other remedies available),
including, without limitation, specific performance), the Company
shall
pay to each holder of Warrant Shares who is not eligible to sell
all of
his, her or its Warrant Shares pursuant to Rule 144 as a result of
such
Public Information Failure an amount in cash, as liquidated damages
and
not as a penalty equal to two (2%) percent of the aggregate Purchase
Price
of such holder’s Securities on the day of a Public Information Failure and
on every thirtieth (30th) day (pro rated for periods totalling less
than
thirty (30) days) thereafter until the earlier of (i) the date such
Public
Information Failure is cured and (ii) such time that such public
information is no longer required pursuant to Rule 144. The payments
to
which a holder shall be entitled pursuant to this Section
6.25
are referred to herein as “Public Information Failure Payments.” Public
Information Failure Payments shall be paid on the earlier of (I)
the last
day of the calendar month during which such Public Information Failure
Payments are incurred and (II) the fifth (5th) Business Day after
the
event or failure giving rise to the Public Information Failure Payments
is
cured. The parties agree that the maximum aggregate amount of Public
Information Failure Payments payable to any Holder by the Company
shall be
ten (10%) percent of the aggregate Purchase Price of such holder’s
Securities. In the event the Company fails to make Public Information
Failure Payments in a timely manner, such Public Information Failure
Payments shall bear interest at the rate of two (2%) percent per
month
(prorated for partial months) until paid in
full.
|
|
6.26
|
Registration
Rights.
Except as contemplated pursuant to this Agreement or as set forth
on
Schedule
6.26
to
this Agreement or in the SEC Documents, the Company has not granted
or
agreed to grant to any Person any rights (including “piggy-back”
registration rights) to have any securities of the Company registered
pursuant to the Registration Rights Agreement that have not been
satisfied
or expressly waived, in writing, by the Person who has such registration
rights.
|
|
6.27
|
Ranking
of Notes.
Except as set forth on Schedule
6.27,
no Indebtedness of the Company (and/or Subsidiary) ranks senior to
or pari
passu with the Notes in right of
payment.
|
|
6.28
|
Indebtedness
of the Company.
Schedule
6.28
sets forth a complete and correct list of all outstanding Indebtedness
of
the Company (including a description of the obligors and obligees,
principal amount outstanding and collateral therefor, if any, and
guaranty
thereof, if any). The Company is not in default and no waiver of
default
is currently in effect in the payment of any principal or interest
on any
Indebtedness of the Company, and no event or condition exists with
respect
to any Indebtedness of the Company that would permit (or that with
notice
or the lapse of time, or both, would permit) one or more Persons
to cause
such Indebtedness to become due and payable before its stated maturity
or
before its regularly scheduled dates of
payment.
|
|
7.
|
TRANSFER
RESTRICTIONS.
|
|
7.1
|
Transfer
or Resale.
Except
as provided in the Registration Rights Agreement, the resale of the
Securities by the Investor has not been and will not be registered
under
the Securities Act or any applicable state securities laws, and none
of
the Securities may be transferred or sold by the Investor unless:
|
|
(a)
|
they
are sold pursuant to an effective registration statement under the
Securities Act;
|
|
(b)
|
they
are being sold pursuant to a valid exemption from the registration
requirements of the Securities Act and, if required by the Company,
the
Investor shall have delivered to the Company, at the Investor’s sole cost
and expense, an opinion of counsel that shall be in form, substance
and
scope customary for opinions of counsel in comparable transactions
to the
effect that the Securities to be sold or transferred may be sold
or
transferred pursuant to an exemption from the registration requirements
of
the Securities Act, which opinion shall be acceptable to the
Company;
|
|
(c)
|
the
Securities are sold or transferred to an “affiliate” (as defined in Rule
144) of the Investor who agrees to sell or otherwise transfer the
Securities only in accordance with this Section
7.1
and who is an Accredited Investor;
or
|
|
(d)
|
the
Securities are sold pursuant to Rule
144.
|
|
7.2
|
Transfer
Agent Instructions.
The Company shall issue irrevocable instructions to its transfer
agent,
substantially in the form attached hereto as Exhibit
G,
to issue certificates, registered in the name of each Investor or
its
nominee, for any Warrant Shares in such amounts as specified from
time to
time by each Investor to the Company upon exercise of the Warrants
in
accordance with the terms thereof (the “Irrevocable
Transfer Agent Instructions”).
Prior to registration of the Warrant Shares under the Securities
Act or
the date on which the Warrant Shares may be sold pursuant to Rule
144
without any restriction as to the number of securities as of a particular
date that can then be immediately sold, all such certificates shall
bear
the restrictive legend specified in Section
3.2
of
this Agreement. Nothing in this Section shall affect in any way the
Investor’s obligations and agreement set forth in Section
7.1
hereof to comply with all applicable prospectus delivery requirements,
if
any, upon re-sale of the Securities. If an Investor provides the
Company
with a customary opinion of counsel, that shall be in form, substance
and
scope reasonably acceptable to the Company, to the effect that a
public
sale or transfer of such Securities may be made without registration
under
the Securities Act and such sale or transfer is effected, the Company
shall permit the transfer, and, in the case of the Warrant Shares,
promptly instruct its transfer agent to issue one or more certificates,
free from restrictive legend, in such name and in such denominations
as
specified by such Investor. The Company acknowledges that a breach
by it
of its obligations hereunder will cause irreparable harm to the Investors,
by vitiating the intent and purpose of the transactions contemplated
hereby. Accordingly, the Company acknowledges that the remedy at
law for a
breach of its obligations under this Section
7.2
may be inadequate and agrees, in the event of a breach or threatened
breach by the Company of the provisions of this Section
7.2,
that the Investors shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach and requiring immediate
transfer, without the necessity of showing economic loss and without
any
bond or other security being
required.
|
|
8.
|
CONDITIONS
TO EACH CLOSING OF THE
INVESTORS.
|
|
8.1
|
Representations
and Warranties.
The representations and warranties made by the Company in Section
8
hereof qualified as to materiality shall be true and correct at all
times
prior to and on the applicable Closing Date, except to the extent
any such
representation or warranty expressly speaks as of an earlier date,
in
which case such representation or warranty shall be true and correct
as of
such earlier date, and, the representations and warranties made by
the
Company in Section
8
hereof not qualified as to materiality shall be true and correct
in all
material respects at all times prior to and on the applicable Closing
Date, except to the extent any such representation or warranty expressly
speaks as of an earlier date, in which case such representation or
warranty shall be true and correct in all material respects as of
such
earlier date. The Company shall have performed in all material respects
all obligations and covenants herein required to be performed by
it on or
prior to the applicable Closing
Date.
|
|
8.2
|
Approvals.
The Company shall have obtained any and all consents, permits, approvals,
registrations and waivers necessary or appropriate for consummation
of the
purchase and sale of the Securities and the consummation of the other
transactions contemplated by the Transaction Documents, all of which
shall
be in full force and effect.
|
|
8.3
|
Judgments,
Etc.
No
judgment, writ, order, injunction, award or decree of or by any court,
or
judge, justice or magistrate, including any bankruptcy court or judge,
or
any order of or by any governmental authority, shall have been issued,
and
no action or proceeding shall have been instituted by any governmental
authority, enjoining or preventing the consummation of the transactions
contemplated hereby or in the other Transaction
Documents.
|
|
8.4
|
Stop
Orders.
No stop order or suspension of trading shall have been imposed by
the SEC
or any other governmental or regulatory body having jurisdiction
over the
Company or the market(s) where the Common Stock is listed or quoted,
with
respect to public trading in the Common
Stock.
|
|
8.5
|
Executive
Agreements.
The Company shall have entered into an agreement with each of the
Executives (the “Executive
Agreements”),
substantially the form attached hereto as Exhibits
H-1
and H-2.
|
|
8.6
|
Company
CEO/CFO Certificate.
The Company shall have delivered a Certificate, executed on behalf
of the
Company by its Chief Executive Officer or its Chief Financial Officer,
dated as of the applicable Closing Date, certifying to the fulfillment
of
the conditions specified in Subsections
8.1, 8.3 and 8.4
hereof.
|
|
8.7
|
Company
Secretary Certificate.
The Company shall have delivered a Certificate, executed on behalf
of the
Company by its Secretary, dated as of the First Closing Date, certifying
the resolutions adopted by the Board of Directors of the Company
approving
the transactions contemplated by this Agreement and the other Transaction
Documents and the issuance of the Securities, certifying the current
versions of the Certificate of Incorporation and Bylaws of the Company
and
certifying as to the signatures and authority of persons signing
the
Transaction Documents and related documents on behalf of the Company.
The
foregoing certificate shall only be required to be delivered on the
First
Closing Date, unless any material information contained in the certificate
has changed.
|
|
8.8
|
Opinion
of Counsel.
The Investors and the Placement Agent shall have received an opinion
from
Lowenstein Sandler PC, the Company’s legal counsel, dated as of each
Closing Date, in such form and substance as agreed to by the Company
and
the Placement Agent.
|
|
8.9
|
Registration
Rights Agreement.
The Company shall have executed and delivered the Registration Rights
Agreement.
|
|
8.10
|
Security
Agreement.
The Company shall have executed and delivered the Security
Agreement.
|
|
8.11
|
Default
Agreement.
The Company shall have executed and delivered the Default
Agreement.
|
|
8.12
|
Escrow
Agreements.
The Company shall have executed and delivered the Escrow Agreement
and the
Deposit Account Agreement.
|
|
8.13
|
10b-5
Letters.
The Company shall have delivered to the Placement Agent, a representation
letter, in form and substance as mutually agreed by the Company and
the
Placement Agent, from each of the Company’s officers and directors,
addressed to the Company.
|
|
8.14
|
Note
and Warrants.
The Company shall have delivered the Notes and Warrants being sold
at the
applicable Closing.
|
|
9.
|
CONDITIONS
TO EACH CLOSING OF THE
COMPANY.
|
|
9.1
|
Representations
and Warranties.
The representations and warranties made by the Investors in Section
4
shall be true and correct in all material respects at the time of
Closing
as if made on and as of such
date.
|
|
9.2
|
Corporate
Proceedings.
All corporate and other proceedings required to be undertaken by
the
Investor in connection with the transactions contemplated hereby
shall
have occurred and all documents and instruments incident to such
proceedings shall be reasonably satisfactory in substance and form
to the
Company.
|
|
9.3
|
Agreements.
Such Investor shall have completed and executed this Agreement, the
Registration Rights Agreement and the investor questionnaire, and
delivered the same to the Company
|
|
9.4
|
Purchase
Price.
The Investors shall have delivered or caused to be delivered the
Purchase
Price to the Company.
|
|
9.5
|
Minimum
Amount.
The Minimum Amount shall have been
raised.
|
|
9.6
|
Payment
of Expenses.
The Company shall have delivered checks or initiated wire transfers
to
Lowenstein Sandler PC for its fees and
expenses.
|
|
10.
|
MISCELLANEOUS.
|
|
10.1
|
Compensation
of Placement Agent, Brokers, etc.
The Investor acknowledges that it is fully aware that the Placement
Agent
will receive from the Company, in consideration of its services as
placement agent in respect of the offer and sale of the Units contemplated
hereby:
|
|
(a)
|
a
success fee of ten (10%) percent of the aggregate Purchase Price
of the
Units sold at each Closing, payable in cash (five (5%) percent of
the
Purchase Price of the Units sold to investors introduced by the Company,
up to the sale of $500,000 of Units);
and
|
|
(b)
|
a
warrant to purchase a number of shares of Common Stock equal fifteen
(15%)
of the number of Warrant Shares underlying the Units sold in the
Offering,
at exercise price per share of $0.09, subject to adjustment, which
expire
on December 31, 2013.
|
|
10.2
|
Notices.
All notices, requests, demands and other communications provided
in
connection with this Agreement shall be in writing and shall be deemed
to
have been duly given at the time when hand delivered, delivered by
express
courier, or sent by facsimile (with receipt confirmed by the sender’s
transmitting device) in accordance with the contact information provided
below or such other contact information as the parties may have duly
provided by notice.
|
|
(a)
|
The
Company:
|
|
Manhattan
Pharmaceuticals, Inc.
|
|
|
48
Wall Street, Suite 1100
|
|
|
New
York, NY 10005
|
|
|
Facsimile:
(212) 582-3957
|
|
|
Attention:
Doug Abel
|
|
|
Chief
Executive Officer
|
|
|
With
a copy to:
|
|
|
Lowenstein
Sandler PC
|
|
|
65
Livingston Avenue
|
|
|
Roseland,
NJ 07068-1791
|
|
|
Facsimile:
(973) 597-2445
|
|
|
Attention:
Anthony Pergola, Esq.
|
|
|
(b)
|
The
Investors:
|
|
As
per the contact information provided on the signature page
hereof.
|
|
|
(c)
|
The
Placement Agent:
|
|
[l]
|
|
|
With
a copy to:
|
|
|
Gusrae,
Kaplan, Bruno & Nusbaum PLLC
|
|
|
120
Wall Street
|
|
|
New
York, NY 10005
|
|
|
Facsimile:
(212) 809-5449
|
|
|
Attention:
Lawrence G. Nusbaum, Esq.
|
|
10.3
|
Survival
of Representations and Warranties.
|
|
10.4
|
Indemnification.
|
|
(a)
|
The
Company expressly and irrevocably agrees to indemnify and hold harmless
each Investor and its Affiliates and their respective directors,
officers,
employees and agents (the “Investor
Indemnitees”)
from and against any and all losses, claims, damages, liabilities
and
expenses (including without limitation reasonable attorney fees and
disbursements and other expenses as and when incurred in connection
with
investigating, preparing or defending any action, claim or proceeding,
pending or threatened and the costs of enforcement thereof) (collectively,
“Losses”)
to which such Investor Indemnitees may become subject as a result
of any
breach of representation, warranty, covenant or agreement made by
the
Company under the Transaction Documents and will reimburse any such
Investor Indemnitees for all such amounts as they are incurred by
such
Investor Indemnitees.
|
|
(b)
|
Each
Investor agrees to indemnify and hold harmless the Company and its
Affiliates and their respective directors, officers, employees and
agents
(collectively, the “Company
Indemnitees”)
from and against any and all Losses to which such Company Indemnitees
may
become subject as a result of any breach of representation, warranty,
covenant or agreement made by or to be performed on the part of such
Investors under the Transaction Documents, and will reimburse any
such
Company Indemnitees for all such amounts as they are incurred by
such
Company Indemnitees.
|
|
(c)
|
Promptly
after receipt by any Investor Indemnitees or Company Indemnitees,
as
applicable, of notice of any demand, claim or circumstances which
would or
might give rise to a claim or the commencement of any action, proceeding
or investigation in respect of which indemnity may be sought pursuant
to
Section
10.4,
such Investor Indemnitees or Company Indemnitees, as applicable,
shall
promptly notify the other Party in writing and such other Party shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Investor Indemnitees or Company Indemnitees,
as
applicable, and shall assume the payment of all fees and expenses;
provided,
however, that
the failure of any Investor Indemnitees or Company Indemnitees, as
applicable, so to notify the other Party shall not relieve the other
Party
of its obligations hereunder except to the extent that the other
Party is
materially prejudiced by such failure to notify. In any such proceeding,
any Investor Indemnitees or Company Indemnitees, as applicable, shall
have
the right to retain its own counsel, but the fees and expenses of
such
counsel shall be at the expense of such Investor Indemnitees or Company
Indemnitees, as applicable, unless:
|
|
(i)
|
the
Parties shall have mutually agreed to the retention of such counsel;
or
|
|
(ii)
|
in
the reasonable judgment of counsel to such Investor Indemnitees or
Company
Indemnitees, as applicable, representation of both parties by the
same
counsel would be inappropriate due to actual or potential differing
interests between them.
|
|
10.5
|
Entire
Agreement.
This Agreement and the other Transaction Documents contain the entire
agreement between the Company and each Investor in respect of the
subject
matter contained herein and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to
the
subject matter contained herein.
|
|
10.6
|
Third
Party Beneficiaries.
This Agreement is intended for the benefit of the parties hereto
and their
respective permitted successors and assigns, and
is
not for the benefit of, nor may any provision hereof be enforced
by, any
other person.
|
|
10.7
|
Successors
and Assigns.
This Agreement shall be binding upon and inure to the benefit of
the
parties and their successors and assigns. Neither the Company nor
any
Investor shall assign this Agreement or any rights or obligations
hereunder without the prior written consent of the
other.
|
|
10.8
|
Independent
Nature of Investors’ Obligations and Rights.
The obligations of each Investor under any Transaction Document are
several and not joint with the obligations of any other Investor,
and
neither the Company nor any other Investor shall be responsible in
any way
for the performance of the obligations of any other Investor under
any
Transaction Document. Nothing contained herein or in any other Transaction
Document, and no action taken by any Investor pursuant hereto or
thereto,
shall be deemed to constitute the Investors as a partnership, an
association, a joint venture or any other kind of entity, or create
a
presumption that the Investors are in any way acting in concert or
as a
group with respect to such obligations or the transactions contemplated
by
the Transaction Documents and the Company acknowledges that the Investors
are not acting in concert or as a group with respect to such obligations
or the transactions contemplated by the Transaction Documents. Each
Investor confirms that it has independently participated in the
negotiation of the transaction contemplated hereby with the advice
of its
own counsel and advisors. Each Investor shall be entitled to independently
protect and enforce its rights, including, without limitation, the
rights
arising out of this Agreement or out of any other Transaction Document,
and it shall not be necessary for any other Investor to be joined
as an
additional party in any proceeding for such
purpose.
|
|
10.9
|
Publicity.
The Company and [l]
shall have the right to review a reasonable period
of time
before issuance of any press releases or any other public statements
with
respect to the transactions contemplated hereby; provided,
however,
that the Company shall be entitled, without the prior approval of
[l]
or the Investors, to make any press release or SEC or other
regulatory filings with respect to such transactions as is expressly
required by applicable law and regulations (although [l]
shall be consulted by the Company in connection with any press
release prior to its release and shall be provided with a copy thereof
and
be given an opportunity to comment thereon). No Investor shall issuance
any press release or public statement with respect to the transactions
contemplated hereby without the prior written approval of the
Company.
|
|
10.10
|
Binding
Effect; Benefits.
This Agreement and all the provisions hereof shall be binding upon
and
inure to the benefit of the parties hereto and their respective successors
and permitted assigns; nothing in this Agreement, expressed or implied,
is
intended to confer on any persons other than the parties hereto or
their
respective successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this
Agreement.
|
|
10.11
|
Amendment;
Waivers.
All modifications, amendments or waivers to this Agreement shall
require
the written consent of both the Company and a majority in interest
of the
Investors (based on the number of Units purchased
hereunder).
|
|
10.12
|
Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial.
This Agreement shall be governed by, and construed solely and exclusively
in accordance with, the internal laws of the State of New York without
regard to the choice of law principles thereof. Each of the parties
hereto
irrevocably submits to the sole and exclusive jurisdiction of the
courts
of the State of New York located in New York County and the United
States
District Court for the Southern District of New York for the purpose
of
any suit, action, proceeding or judgment relating to or arising out
of
this Agreement and the transactions contemplated hereby (a “Proceeding”).
Each of the parties hereto irrevocably consents to the sole and exclusive
jurisdiction of any such court in any such Proceeding and to the
laying of
venue in such court. Each party hereto expressly and irrevocably
waives
any objection to the laying of venue of any such Proceeding brought
in
such courts and irrevocably waives any claim that any such Proceeding
brought in any such court has been brought in an inconvenient forum.
The
successful party in any Proceeding shall be entitled to its legal
fees and
expenses from the losing party. EACH
OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY
IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL
HAS
BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
|
|
10.13
|
Further
Assurances.
Each party hereto shall do and perform or cause to be done and performed
all such further acts and shall execute and deliver all such other
agreements, certificates, instruments and documents as any other
party
hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of
the
transactions contemplated hereby.
|
|
10.14
|
Counterparts.
This agreement may be executed in any number of counterparts, each
of
which shall be deemed to be an original, and all of which shall constitute
one and the same document. in the event that any signature (including
a
financing signature page) is delivered by facsimile transmission
or by
e-mail delivery of a “.pdf” format data file, such signature shall create
a valid and binding obligation of the party executing (or on whose
behalf
such signature is executed) with the same force and effect as if
such
facsimile or “.pdf” signature page were an original
thereof.
|
|
10.15
|
Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent
of such prohibition or unenforceability without invalidating the
remaining
provisions hereof but shall be interpreted as if it were written
so as to
be enforceable to the maximum extent permitted by applicable law,
and any
such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties
hereby waive any provision of law which renders any provision hereof
prohibited or unenforceable in any
respect.
|
|
10.16
|
Use
of Proceeds.
The Company agrees, represents, warranties and covenants that it
shall use
the net proceeds received in the Offering expressly as set forth
in the
Private Placement Memorandum.
|
|
MANHATTAN
PHARMACEUTICALS, INC.
|
||
|
|
||
|
|
By:
|
/s/
Michael McGuinness
|
|
|
Name:
Michael McGuinness
Title:
Chief Financial Officer
|
|
|
|
INVESTORS:
The
Investors executing the Signature Page in the form attached hereto
as
Annex
A
and delivering the same to the Company or its agents shall be deemed
to
have executed this Agreement and agreed to the terms
hereof.
|
|
(a)
|
enter
into this Securities Purchase Agreement dated as of November 19, 2008
(the “Agreement”),
between the undersigned, Manhattan Pharmaceuticals, Inc., a Delaware
corporation (the “Company”),
and the other parties thereto, in or substantially in the form furnished
to the undersigned; and
|
|
(b)
|
purchase
the securities of the Company as set forth
below,
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Neel B. Ackerman
|
|
|
|
|
Signature:
|
Signature: /s/
Neel B. Ackerman
|
|
|
|
|
Date:
|
Date:
October 27, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name: Martha N. Ackerman
|
|
|
|
|
Title:
|
Co-Investor
Signature: /s/ Martha N. Ackerman
|
|
Date:
October 27, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print Name of Entity:
|
Stephen
M. Burnich Revocable Trust u/a 10/08/04
|
Print
Name:
|
|
|
||
|
Signature: /s/
Stephen M. Burnich
|
Signature:
|
|
|
|
||
|
Date: October
29, 2008
|
Date:
|
|
|
|
||
|
Print
Name: Stephen M. Burnich
|
Co-Investor
Print Name:
|
|
|
|
||
|
Title: Trustee
|
Co-Investor
Signature:
|
|
|
Date:
|
||
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Ennio De Pianto
|
|
|
|
|
Signature:
|
Signature: /s/
Ennio De Pianto
|
|
|
|
|
Date:
|
Date: October
29, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Matthew Ernst
|
|
|
|
|
Signature:
|
Signature: /s/
Matthew Ernst
|
|
|
|
|
Date:
|
Date: October
29, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity: John
M. Goodman Living Trust
|
Print
Name:
|
|
|
|
|
Signature: /s/
John M. Goodman
|
Signature:
|
|
|
|
|
Date: November
4, 2008
|
Date:
|
|
Print
Name: John M. Goodman
|
Co-Investor
Print Name:
|
|
|
|
|
Title: Trustee
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Leon Kanner
|
|
|
|
|
Signature:
|
Signature: /s/
Leon Kanner
|
|
|
|
|
Date:
|
Date:
October 29, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name: Rosemary
Kanner
|
|
|
|
|
Title:
|
Co-Investor
Signature: /s/
Rosemary Kanner
|
|
Date:
October 29, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Richard Kindt
|
|
|
|
|
Signature:
|
Signature: /s/
Ricahrd Kindt
|
|
|
|
|
Date:
|
Date:
October 29, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Douglas E. Pritchett
|
|
|
|
|
Signature:
|
Signature: /s/
Douglas E. Pritchett
|
|
|
|
|
Date:
|
Date:
October 31, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Jerome A. Shinkay
|
|
|
|
|
Signature:
|
Signature: /s/
Jerome A. Shinkay
|
|
|
|
|
Date:
|
Date:
October 31, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Michael J. Spezia
|
|
|
|
|
Signature:
|
Signature: /s/
Michael J. Spezia
|
|
|
|
|
Date:
|
Date:
November 3, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: George D. Wilson
|
|
|
|
|
Signature:
|
Signature: /s/
George D. Wilson
|
|
|
|
|
Date:
|
Date:
October 27, 2008
|
|
Print
Name:
|
Co-Investor
Print Name: Diane
J. Wilson
|
|
|
|
|
Title:
|
Co-Investor
Signature: /s/
Diane J. Wilson
|
|
Date:
October 27, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Joseph L. Jerger
|
|
|
|
|
Signature:
|
Signature: /s/
Joseph L. Jerger
|
|
|
|
|
Date:
|
Date:
November 6, 2008
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: David Pudelsky
|
|
|
|
|
Signature:
|
Signature: /s/
David Pudelsky
|
|
|
|
|
Date:
|
Date: November
6, 2008
|
|
Print
Name:
|
Co-Investor
Print Name: Nancy
Pudelsky
|
|
|
|
|
Title:
|
Co-Investor
Signature: /s/
Nancy Pudelsky
|
|
Date:
November 6, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: James R. Buck
|
|
|
|
|
Signature:
|
Signature: /s/
James R. Buck
|
|
|
|
|
Date:
|
Date:
November 6, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: John O. Dunkin
|
|
|
|
|
Signature:
|
Signature: /s/
John O. Dunkin
|
|
Date:
|
Date:
November 4, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print Name of Entity:
|
NFS/FMTC
SEP IRA FBO Jay Jennings
|
Print
Name:
|
|
|
||
|
Signature: /s/
Jay Jennings
|
Signature:
|
|
|
|
||
|
Date: October
29, 2008
|
Date:
|
|
|
|
||
|
Print
Name: Jay Jennings
|
Co-Investor
Print Name:
|
|
|
|
||
|
Title: IRA
Owner
|
Co-Investor
Signature:
|
|
|
Date:
|
||
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print Name of Entity:
|
Landmark
Community Bank Collateral Account FBO Estate of Catherine
Nasser
|
Print
Name:
|
|
|
||
|
Signature:
/s/ William K. Nasser, Jr.
|
Signature:
|
|
|
|
||
|
Date: November
4, 2008
|
Date:
|
|
|
Print
Name: William K. Nasser, Jr.
|
Co-Investor
Print Name:
|
|
|
|
||
|
Title:
Attorney-in-fact
|
Co-Investor
Signature:
|
|
|
|
||
|
Date:
|
||
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity: Nasser
Family Trust
|
Print
Name:
|
|
|
|
|
Signature: /s/
William K. Nasser
|
Signature:
|
|
|
|
|
Date: November
4, 2008
|
Date:
|
|
|
|
|
Print
Name: William K. Nasser
|
Co-Investor
Print Name:
|
|
|
|
|
Title: Trustee
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: James R. Kahn
|
|
|
|
|
Signature:
|
Signature:
/s/ James R. Kahn
|
|
|
|
|
Date:
|
Date:
November 12, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name: Debra
A. Kahn
|
|
|
|
|
Title:
|
Co-Investor
Signature: /s/
Debra A. Kahn
|
|
Date:
November 12, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: A. Starke Taylor, Jr.
|
|
|
|
|
Signature:
|
Signature:
/s/ A. Starke Taylor, Jr.
|
|
|
|
|
Date:
|
Date:
October 7, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name: Carolyn Taylor
|
|
|
|
|
Title:
|
Co-Investor
Signature: /s/
Carolyn Taylor
|
|
Date:
October 7, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Mark Vollmer
|
|
|
|
|
Signature:
|
Signature: /s/
Mark Vollmer
|
|
|
|
|
Date:
|
Date:
November 11, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Robert J. Guercio
|
|
|
|
|
Signature:
|
Signature:
/s/ Robert J. Guercio
|
|
|
|
|
Date:
|
Date:
November 6, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Ralph Hanby
|
|
|
|
|
Signature:
|
Signature:
/s/ Ralph Hanby
|
|
|
|
|
Date:
|
Date:
November 13, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Robert E. Jacobson
|
|
Signature:
|
Signature:
/s/ Robert E. Jacobson
|
|
Date:
|
Date:
November 10, 2008
|
|
Print
Name:
|
Co-Investor
Print Name: Saralee
Jacobson
|
|
Title:
|
Co-Investor
Signature: /s/
Saralee Jacobson
|
|
Date:
November 10, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Michael Cushing
|
|
|
|
|
Signature:
|
Signature:
/s/ Michael Cushing
|
|
|
|
|
Date:
|
Date:
November 13, 2008
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Raymond Yarusi, Jr.
|
|
|
|
|
Signature:
|
Signature:
/s/ Raymond Yarusi, Jr.
|
|
|
|
|
Date:
|
Date:
November 12, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: James C. Orr
|
|
|
|
|
Signature:
|
Signature:
/s/ James C. Orr
|
|
Date:
|
Date:
November 9, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Vernon L. Simpson
|
|
|
|
|
Signature:
|
Signature:
/s/ Vernon L. Simpson
|
|
|
|
|
Date:
|
Date:
November 17, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print Name of Entity:
|
Michael
Yokoyama & Jaye Ventui Family Trust
|
Print
Name:
|
|
|
||
|
Signature:
/s/ Michael Yokoyama & /s/ Jaye Venuti
|
Signature:
|
|
|
Date: November
12, 2008
|
Date:
|
|
|
|
||
|
Print
Name: Michael Yokoyama & Jaye Ventui
|
Co-Investor
Print Name:
|
|
|
|
||
|
Title: Co-Trustees
|
Co-Investor
Signature:
|
|
|
Date:
|
||
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Frederick Peet
|
|
|
|
|
Signature:
|
Signature:
/s/ Frederick Peet
|
|
|
|
|
Date:
|
Date:
November 7, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Ronald Rasmussen
|
|
|
|
|
Signature:
|
Signature:
/s/ Ronald Rasmussen
|
|
|
|
|
Date:
|
Date:
November 12, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Lewis R. Jacobson
|
|
|
|
|
Signature:
|
Signature:
/s/ Lewis R. Jacobson
|
|
|
|
|
Date:
|
Date:
November 17, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Mark B. Ginsburg
|
|
|
|
|
Signature:
|
Signature: /s/
Mark B. Ginsburg
|
|
|
|
|
Date:
|
Date:
November 18, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Gregory Dovolis
|
|
|
|
|
Signature:
|
Signature: /s/
Greogory Dovolis
|
|
|
|
|
Date:
|
Date:
November 3, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: William S. Silver
|
|
|
|
|
Signature:
|
Signature:
/s/ William S. Silver
|
|
|
|
|
Date:
|
Date:
November 5, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Praful Desai
|
|
|
|
|
Signature:
|
Signature:
/s/ Praful Desai
|
|
|
|
|
Date:
|
Date:
November 5, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity:
|
Print
Name: Thomas Gemellaro
|
|
|
|
|
Signature:
|
Signature:
/s/ Thomas Gemellaro
|
|
|
|
|
Date:
|
Date:
November 13, 2008
|
|
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
Print
Name of Entity: Howard
M. Tanning Rollover IRA
|
Print
Name:
|
|
|
|
|
Signature:
/s/ Howard M. Tanning
|
Signature:
|
|
|
|
|
Date:
November 3, 2008
|
Date:
|
|
|
|
|
Print
Name: Howard M. Tanning
|
Co-Investor
Print Name:
|
|
|
|
|
Title:
IRA Owner
|
Co-Investor
Signature:
|
|
Date:
|
|
Investor
|
Notes
|
Warrants
|
Purchase Price
|
|||||||
|
Neel
B. Ackerman and Martha N. Ackerman
|
$
|
200,000
|
6,666,680
|
$
|
200,000
|
|||||
|
Stephen
M. Burnich Revocable Trust u/a 10/08/04
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
Ennio
De Pianto
|
$
|
50,000
|
1,666,670
|
$
|
50,000
|
|||||
|
Matthew
Ernst
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
John
M. Goodman Living Trust
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
Leon
Kanner & Rosemary E. Kanner
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
Richard
Kindt
|
$
|
10,000
|
333,334
|
$
|
10,000
|
|||||
|
Douglas
E. Pritchett
|
$
|
50,000
|
1,666,670
|
$
|
50,000
|
|||||
|
Jerome
A. Shinkay
|
$
|
10,000
|
333,334
|
$
|
10,000
|
|||||
|
Michael
J. Spezia
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
George
D. Wilson & Diane J. Wilson
|
$
|
10,000
|
333,334
|
$
|
10,000
|
|||||
|
Joseph
L. Jerger
|
$
|
10,000
|
333,334
|
$
|
10,000
|
|||||
|
David
& Nancy Pudelsky
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
James
R. Buck
|
$
|
10,000
|
333,334
|
$
|
10,000
|
|||||
|
John
O. Dunkin
|
$
|
15,000
|
500,001
|
$
|
15,000
|
|||||
|
NFS/FMTC
SEP IRA FBO Jay Jennings
|
$
|
15,000
|
500,001
|
$
|
15,000
|
|||||
|
Landmark
Community Bank Collateral Account FBO Estate of Catherine
Nasser
|
$
|
65,000
|
2,166,671
|
$
|
65,000
|
|||||
|
Nasser
Family Trust
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
James
R. Kahn & Debra A. Kahn, JTWROS
|
$
|
5,000
|
166,667
|
$
|
5,000
|
|||||
|
Carolyn
N. Taylor & A. Starke Taylor, Jr.
|
$
|
50,000
|
1,666,670
|
$
|
50,000
|
|||||
|
Mark
Vollmer
|
$
|
5,000
|
166,667
|
$
|
5,000
|
|||||
|
Robert
J. Guercio
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
Ralph
Hanby
|
$
|
5,000
|
166,667
|
$
|
5,000
|
|||||
|
Robert
E. Jacobson & Saralee Jacobson, JTWROS
|
$
|
10,000
|
333,334
|
$
|
10,000
|
|||||
|
Michael
Cushing
|
$
|
30,000
|
1,000,002
|
$
|
30,000
|
|||||
|
Raymond
Yarusi, Jr.
|
$
|
5,000
|
166,667
|
$
|
5,000
|
|||||
|
James
Orr
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
Vernon
L. Simpson
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
Michael
H. Yokoyama & Jaye S. Venuti Family Trust
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
Frederick
Peet
|
$
|
20,000
|
666,668
|
$
|
20,000
|
|||||
|
Ronald
Rasmussen
|
$
|
10,000
|
333,334
|
$
|
10,000
|
|||||
|
Lewis
R. Jacobson
|
$
|
5,000
|
166,667
|
$
|
5,000
|
|||||
|
Mark
B. Ginsburg
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
Gregory
J. Dovolis
|
$
|
20,000
|
666,668
|
$
|
20,000
|
|||||
|
William
S. Silver
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
Praful
Desai
|
$
|
25,000
|
833,335
|
$
|
25,000
|
|||||
|
Thomas
Gemellaro
|
$
|
5,000
|
166,667
|
$
|
5,000
|
|||||
|
Howard
M. Tanning Rollover IRA
|
$
|
70,000
|
2,333,338
|
$
|
70,000
|
|||||
|
FIRST
CLOSING TOTAL:
|
$
|
1,035,000
|
34,500,069
|
$
|
1,035,000
|
|||||
|
Investor
|
Notes
|
Warrants
|
Purchase Price
|
|||||||
|
SUBSEQUENT
CLOSING TOTAL
|
||||||||||
|
MANHATTAN
PHARMACEUTICALS, INC.
|
||
|
By:
|
/s
Michael McGuinness
|
|
|
Michael
McGuinness
|
||
|
Chief
Financial Officer
|
||
|
[l]
|
||
|
By:
|
|
|
|
|
||
|
|
||
|
|
||
|
Neel
B. Ackerman and Martha N. Ackerman
|
|
Stephen
M. Burnich Revocable Trust u/a 10/08/04
|
|
Ennio
De Pianto
|
|
Matthew
Ernst
|
|
John
M. Goodman Living Trust
|
|
Leon
Kanner & Rosemary E. Kanner
|
|
Richard
Kindt
|
|
Douglas
E. Pritchett
|
|
Jerome
A. Shinkay
|
|
Michael
J. Spezia
|
|
George
D. Wilson & Diane J. Wilson
|
|
Joseph
L. Jerger
|
|
David
& Nancy Pudelsky
|
|
James
R. Buck
|
|
John
O. Dunkin
|
|
NFS/FMTC
SEP IRA FBO Jay Jennings
|
|
Landmark
Community Bank Collateral Account FBO Estate of Catherine
Nasser
|
|
Nasser
Family Trust
|
|
James
R. Kahn & Debra A. Kahn, JTWROS
|
|
Carolyn
N. Taylor & A. Starke Taylor,
Jr.
|
|
Mark
Vollmer
|
|
Robert
J. Guercio
|
|
Ralph
Hanby
|
|
Robert
E. Jacobson & Saralee Jacobson, JTWROS
|
|
Michael
Cushing
|
|
Raymond
Yarusi, Jr.
|
|
James
Orr
|
|
Vernon
L. Simpson
|
|
Michael
H. Yokoyama & Jaye S. Venuti Family Trust
|
|
Frederick
Peet
|
|
Ronald
Rasmussen
|
|
Lewis
R. Jacobson
|
|
Mark
B. Ginsburg
|
|
Gregory
J. Dovolis
|
|
William
S. Silver
|
|
Praful
Desai
|
|
Thomas
Gemellaro
|
|
Howard
M. Tanning Rollover IRA
|
|
Signature:
|
||
|
Name:
|
||
|
Title:
|
|
Accepted:
|
||
|
[__________________________________________]
|
|
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:_______________________________,
20__
|
|
|
|
DEBTOR:
|
|||
|
MANHATTAN
PHARMACEUTICALS, INC.
|
|||
|
By:
|
/s/
Michael McGuinness
|
||
|
Name:
Michael
McGuinness
|
|||
|
Title:
Chief Financial Officer
|
|||
|
|
SECURED
PARTIES:
The
Secured Parties executing the Signature Page in the form attached
hereto
as Annex
A
and delivering the same to the Company or its agents shall be deemed
to
have executed this Security Agreement and agreed to the terms
hereof.
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Neel B. Ackerman
|
|
|
Signature:
|
Signature: /s/
Neel B. Ackerman
|
|
|
Date:
|
Date:
October 27, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Martha N. Ackerman
|
|
|
Title:
|
Co-Investor
Signature: /s/ Martha N. Ackerman
|
|
|
Date:
October 27, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|||
|
Print Name of Entity:
|
Stephen M. Burnich
Revocable Trust u/a 10/08/04
|
Print
Name:
|
||
|
Signature: /s/
Stephen M. Burnich
|
Signature:
|
|||
|
Date:
October 29, 2008
|
Date:
|
|||
|
Print
Name: Stephen M. Burnich
|
Co-Investor
Print Name:
|
|||
|
Title:Trustee
|
Co-Investor
Signature:
|
|||
|
Date:
|
||||
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Ennio De Pianto
|
|
|
Signature:
|
Signature:
/s/ Ennio De Pianto
|
|
|
Date:
|
Date: October
29, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Matthew Ernst
|
|
|
Signature:
|
Signature:
/s/ Matthew Ernst
|
|
|
Date:
|
Date: October
29, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity: John
M. Goodman Living Trust
|
Print
Name:
|
|
|
Signature: /s/
John M. Goodman
|
Signature:
|
|
|
Date: November
4, 2008
|
Date:
|
|
|
Print
Name: John M. Goodman
|
Co-Investor
Print Name:
|
|
|
Title: Trustee
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Leon Kanner
|
|
|
Signature:
|
Signature: /s/
Leon Kanner
|
|
|
Date:
|
Date:
October 29, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Rosemary
Kanner
|
|
|
Title:
|
Co-Investor
Signature: /s/
Rosemary Kanner
|
|
|
Date:
October 29, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Richard Kindt
|
|
|
Signature:
|
Signature: /s/
Ricahrd Kindt
|
|
|
Date:
|
Date:
October 29, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Douglas E. Pritchett
|
|
|
Signature:
|
Signature: /s/
Douglas E. Pritchett
|
|
|
Date:
|
Date:
October 31, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Jerome A. Shinkay
|
|
|
Signature:
|
Signature: /s/
Jerome A. Shinkay
|
|
|
Date:
|
Date:
October 31, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Michael J. Spezia
|
|
|
Signature:
|
Signature: /s/
Michael J. Spezia
|
|
|
Date:
|
Date:
November 3, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: George D. Wilson
|
|
|
Signature:
|
Signature: /s/
George D. Wilson
|
|
|
Date:
|
Date:
October 27, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Diane
J. Wilson
|
|
|
Title:
|
Co-Investor
Signature: /s/
Diane J. Wilson
|
|
|
Date:
October 27, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Joseph L. Jerger
|
|
|
Signature:
|
Signature: /s/
Joseph L. Jerger
|
|
|
Date:
|
Date:
November 6, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: David Pudelsky
|
|
|
Signature:
|
Signature: /s/
David Pudelsky
|
|
|
Date:
|
Date: November
6, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Nancy
Pudelsky
|
|
|
Title:
|
Co-Investor
Signature: /s/
Nancy Pudelsky
|
|
|
|
|
Date:
November 6, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
|
Print
Name: James R. Buck
|
|
Signature:
|
Signature: /s/
James R. Buck
|
|
|
Date:
|
Date:
November 6, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: John O. Dunkin
|
|
Signature:
|
Signature: /s/
John O. Dunkin
|
|
|
Date:
|
Date:
November 4, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity: NFS/FMTC
SEP IRA FBO
Jay Jennings
|
|
Print
Name:
|
|
Signature: /s/
Jay Jennings
|
Signature:
|
|
|
Date: October
29, 2008
|
Date:
|
|
|
Print
Name: Jay Jennings
|
Co-Investor
Print Name:
|
|
|
Title: IRA
Owner
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity: Landmark
Community Bank
Collateral
Account FBO
Estate of Catherine Nasser
|
Print
Name:
|
|
|
Signature:
/s/ William K. Nasser, Jr.
|
Signature:
|
|
|
Date: November
4, 2008
|
Date:
|
|
|
Print
Name: William K. Nasser, Jr.
|
Co-Investor
Print Name:
|
|
|
Title:
Attorney-in-fact
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity: Nasser
Family Trust
|
|
Print
Name:
|
|
Signature: /s/
William K. Nasser
|
Signature:
|
|
|
Date: November
4, 2008
|
Date:
|
|
|
Print
Name: William K. Nasser
|
Co-Investor
Print Name:
|
|
|
Title: Trustee
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: James R. Kahn
|
|
Signature:
|
Signature:
/s/ James R. Kahn
|
|
|
Date:
|
Date:
November 12, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Debra
A. Kahn
|
|
|
Title:
|
Co-Investor
Signature: /s/
Debra A. Kahn
|
|
|
|
|
Date:
November 12, 2008
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: A. Starke Taylor, Jr.
|
|
Signature:
|
Signature:
/s/ A. Starke Taylor, Jr.
|
|
|
Date:
|
Date:
October 7, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Carolyn Taylor
|
|
|
Title:
|
Co-Investor
Signature: /s/
Carolyn Taylor
|
|
|
|
|
Date:
October 7, 2008
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Mark Vollmer
|
|
Signature:
|
Signature: /s/
Mark Vollmer
|
|
|
Date:
|
Date:
November 11, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Robert J. Guercio
|
|
Signature:
|
Signature:
/s/ Robert J. Guercio
|
|
|
Date:
|
Date:
November 6, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Ralph Hanby
|
|
Signature:
|
Signature:
/s/ Ralph Hanby
|
|
|
Date:
|
Date:
November 13, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Robert E. Jacobson
|
|
Signature:
|
Signature:
/s/ Robert E. Jacobson
|
|
|
Date:
|
Date:
November 10, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Saralee
Jacobson
|
|
|
Title:
|
Co-Investor
Signature: /s/
Saralee Jacobson
|
|
|
|
|
Date:
November 10, 2008
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Michael Cushing
|
|
Signature:
|
Signature:
/s/ Michael Cushing
|
|
|
Date:
|
Date:
November 13, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Raymond Yarusi, Jr.
|
|
Signature:
|
Signature:
/s/ Raymond Yarusi, Jr.
|
|
|
Date:
|
Date:
November 12, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: James C. Orr
|
|
Signature:
|
Signature:
/s/ James C. Orr
|
|
|
Date:
|
Date:
November 9, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Vernon L. Simpson
|
|
Signature:
|
Signature:
/s/ Vernon L. Simpson
|
|
|
Date:
|
Date:
November 17, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity: Michael
Yokoyama & Jaye
Ventui Family Trust
|
|
Print
Name:
|
|
Signature:
/s/ Michael Yokoyama & /s/ Jaye Venuti
|
Signature:
|
|
|
Date: November
12, 2008
|
Date:
|
|
|
Print
Name: Michael Yokoyama & Jaye Ventui
|
Co-Investor
Print Name:
|
|
|
Title: Co-Trustees
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Frederick Peet
|
|
Signature:
|
Signature:
/s/ Frederick Peet
|
|
|
Date:
|
Date:
November 7, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Ronald Rasmussen
|
|
Signature:
|
Signature:
/s/ Ronald Rasmussen
|
|
|
Date:
|
Date:
November 12, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Lewis R. Jacobson
|
|
Signature:
|
Signature:
/s/ Lewis R. Jacobson
|
|
|
Date:
|
Date:
November 17, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Mark B. Ginsburg
|
|
Signature:
|
Signature: /s/
Mark B. Ginsburg
|
|
|
Date:
|
Date:
November 18, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Gregory Dovolis
|
|
Signature:
|
Signature: /s/
Greogory Dovolis
|
|
|
Date:
|
Date:
November 3, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: William S. Silver
|
|
Signature:
|
Signature:
/s/ William S. Silver
|
|
|
Date:
|
Date:
November 5, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Praful Desai
|
|
Signature:
|
Signature:
/s/ Praful Desai
|
|
|
Date:
|
Date:
November 5, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity:
|
|
Print
Name: Thomas Gemellaro
|
|
Signature:
|
Signature:
/s/ Thomas Gemellaro
|
|
|
Date:
|
Date:
November 13, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
|
IF
AN INDIVIDUAL:
|
|
|
|
|
|
Print
Name of Entity: Howard
M. Tanning Rollover
IRA
|
|
Print
Name:
|
|
Signature:
/s/ Howard M. Tanning
|
Signature:
|
|
|
Date:
November 3, 2008
|
Date:
|
|
|
Print
Name: Howard M. Tanning
|
Co-Investor
Print Name:
|
|
|
Title:
IRA Owner
|
Co-Investor
Signature:
|
|
|
|
|
Date:
|
|
Name, Address and
Telephone Number
|
Account Name
|
Description
|
Account Number
|
|||
|
Chase
45
Wall Street
New
York, New York 10005
|
Manhattan
Pharmaceuticals, Inc.
|
Checking
|
904
807 479
|
|||
|
Signature
Bank
261
Madison Avenue, New York, New York 10016
|
Manhattan
Pharmaceuticals, Inc.
|
Deposit
|
1501126434
|
|
MANHATTAN
PHARMACEUTICALS, INC.
|
||
|
|
By:
|
/s/
Michael McGuinness
|
|
|
Name:
Michael McGuinness
Title:
Chief Financial Officer
|
|
|
|
LENDERS:
The
LENDERS executing the Signature Page in the form attached hereto
as
Annex
A
and delivering the same to the Company or its agents shall be deemed
to
have executed this Agreement and agreed to the terms
hereof.
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Neel B. Ackerman
|
|
|
Signature:
|
Signature: /s/
Neel B. Ackerman
|
|
|
Date:
|
Date:
October 27, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Martha N. Ackerman
|
|
|
Title:
|
Co-Investor
Signature: /s/ Martha N. Ackerman
|
|
|
Date:
October 27, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity: Stephen M. Burnich
Revocable Trust u/a 10/08/04
|
Print
Name:
|
|
|
Signature: /s/
Stephen M. Burnich
|
Signature:
|
|
|
Date: October
29, 2008
|
Date:
|
|
|
Print
Name: Stephen M. Burnich
|
Co-Investor
Print Name:
|
|
|
Title: Trustee
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Ennio De Pianto
|
|
|
Signature:
|
Signature: /s/
Ennio De Pianto
|
|
|
Date:
|
Date: October
29, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Matthew Ernst
|
|
|
Signature:
|
Signature: /s/
Matthew Ernst
|
|
|
Date:
|
Date: October
29, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
||
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity: John M. Goodman Living Trust
|
Print
Name:
|
|
|
Signature: /s/
John M. Goodman
|
Signature:
|
|
|
Date: November
4, 2008
|
Date:
|
|
|
Print
Name: John M. Goodman
|
Co-Investor
Print Name:
|
|
|
Title: Trustee
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Leon Kanner
|
|
|
Signature:
|
Signature: /s/
Leon Kanner
|
|
|
Date:
|
Date:
October 29, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Rosemary Kanner
|
|
|
Title:
|
Co-Investor
Signature: /s/ Rosemary Kanner
|
|
|
Date:
October 29, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Richard Kindt
|
|
|
Signature:
|
Signature: /s/
Ricahrd Kindt
|
|
|
Date:
|
Date:
October 29, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Douglas E. Pritchett
|
|
|
Signature:
|
Signature: /s/
Douglas E. Pritchett
|
|
|
Date:
|
Date:
October 31, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Jerome A. Shinkay
|
|
|
Signature:
|
Signature: /s/
Jerome A. Shinkay
|
|
|
Date:
|
Date:
October 31, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Michael J. Spezia
|
|
|
Signature:
|
Signature: /s/
Michael J. Spezia
|
|
|
Date:
|
Date:
November 3, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: George D. Wilson
|
|
|
Signature:
|
Signature: /s/
George D. Wilson
|
|
|
Date:
|
Date:
October 27, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Diane J. Wilson
|
|
|
Title:
|
Co-Investor
Signature: /s/ Diane J. Wilson
|
|
|
Date:
October 27, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Joseph L. Jerger
|
|
|
Signature:
|
Signature: /s/
Joseph L. Jerger
|
|
|
Date:
|
Date:
November 6, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: David Pudelsky
|
|
|
Signature:
|
Signature: /s/
David Pudelsky
|
|
|
Date:
|
Date: November
6, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Nancy Pudelsky
|
|
|
Title:
|
Co-Investor
Signature: /s/ Nancy Pudelsky
|
|
|
Date:
November 6, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: James R. Buck
|
|
|
Signature:
|
Signature: /s/
James R. Buck
|
|
|
Date:
|
Date:
November 6, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: John O. Dunkin
|
|
|
Signature:
|
Signature: /s/
John O. Dunkin
|
|
|
Date:
|
Date:
November 4, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity: NFS/FMTC SEP IRA FBO
Jay Jennings
|
Print
Name:
|
|
|
Signature: /s/
Jay Jennings
|
Signature:
|
|
|
Date: October
29, 2008
|
Date:
|
|
|
Print
Name: Jay Jennings
|
Co-Investor
Print Name:
|
|
|
Title: IRA
Owner
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity: Landmark Community Bank
Collateral Account FBO
Estate of Catherine Nasser
|
Print
Name:
|
|
|
Signature:
/s/ William K. Nasser, Jr.
|
Signature:
|
|
|
Date: November
4, 2008
|
Date:
|
|
|
Print
Name: William K. Nasser, Jr.
|
Co-Investor
Print Name:
|
|
|
Title:
Attorney-in-fact
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity: Nasser Family Trust
|
Print
Name:
|
|
|
Signature: /s/
William K. Nasser
|
Signature:
|
|
|
Date: November
4, 2008
|
Date:
|
|
|
Print
Name: William K. Nasser
|
Co-Investor
Print Name:
|
|
|
Title: Trustee
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: James R. Kahn
|
|
|
Signature:
|
Signature:
/s/ James R. Kahn
|
|
|
Date:
|
Date:
November 12, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Debra A. Kahn
|
|
|
Title:
|
Co-Investor
Signature: /s/ Debra A. Kahn
|
|
|
Date:
November 12, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: A. Starke Taylor, Jr.
|
|
|
Signature:
|
Signature:
/s/ A. Starke Taylor, Jr.
|
|
|
Date:
|
Date:
October 7, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Carolyn Taylor
|
|
|
Title:
|
Co-Investor
Signature: /s/ Carolyn Taylor
|
|
|
Date:
October 7, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Mark Vollmer
|
|
|
Signature:
|
Signature: /s/
Mark Vollmer
|
|
|
Date:
|
Date:
November 11, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Robert J. Guercio
|
|
|
Signature:
|
Signature:
/s/ Robert J. Guercio
|
|
|
Date:
|
Date:
November 6, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
|
||
|
Print
Name of Entity:
|
Print
Name: Ralph Hanby
|
|
|
|
||
|
Signature:
|
Signature:
/s/ Ralph Hanby
|
|
|
Date:
|
Date:
November 13, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Robert E. Jacobson
|
|
|
Signature:
|
Signature:
/s/ Robert E. Jacobson
|
|
|
Date:
|
Date:
November 10, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name: Saralee Jacobson
|
|
|
Title:
|
Co-Investor
Signature: /s/ Saralee Jacobson
|
|
|
Date:
November 10, 2008
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Michael Cushing
|
|
|
Signature:
|
Signature:
/s/ Michael Cushing
|
|
|
Date:
|
Date:
November 13, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Raymond Yarusi, Jr.
|
|
|
Signature:
|
Signature:
/s/ Raymond Yarusi, Jr.
|
|
|
Date:
|
Date:
November 12, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: James C. Orr
|
|
|
Signature:
|
Signature:
/s/ James C. Orr
|
|
|
Date:
|
Date:
November 9, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Vernon L. Simpson
|
|
|
Signature:
|
Signature:
/s/ Vernon L. Simpson
|
|
|
Date:
|
Date:
November 17, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity: Michael Yokoyama & Jaye
Ventui Family Trust
|
Print
Name:
|
|
|
|
||
|
Signature:
/s/ Michael Yokoyama & /s/ Jaye Venuti
|
Signature:
|
|
|
Date: November
12, 2008
|
Date:
|
|
|
Print
Name: Michael Yokoyama & Jaye Ventui
|
Co-Investor
Print Name:
|
|
|
Title: Co-Trustees
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Frederick Peet
|
|
|
Signature:
|
Signature:
/s/ Frederick Peet
|
|
|
Date:
|
Date:
November 7, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Ronald Rasmussen
|
|
|
Signature:
|
Signature:
/s/ Ronald Rasmussen
|
|
|
Date:
|
Date:
November 12, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Lewis R. Jacobson
|
|
|
Signature:
|
Signature:
/s/ Lewis R. Jacobson
|
|
|
Date:
|
Date:
November 17, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Mark B. Ginsburg
|
|
|
Signature:
|
Signature: /s/
Mark B. Ginsburg
|
|
|
Date:
|
Date:
November 18, 2008
|
|
|
|
||
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Gregory Dovolis
|
|
|
Signature:
|
Signature: /s/
Greogory Dovolis
|
|
|
Date:
|
Date:
November 3, 2008
|
|
|
|
||
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: William S. Silver
|
|
|
Signature:
|
Signature:
/s/ William S. Silver
|
|
|
Date:
|
Date:
November 5, 2008
|
|
|
|
||
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Praful Desai
|
|
|
Signature:
|
Signature:
/s/ Praful Desai
|
|
|
Date:
|
Date:
November 5, 2008
|
|
|
|
||
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity:
|
Print
Name: Thomas Gemellaro
|
|
|
Signature:
|
Signature:
/s/ Thomas Gemellaro
|
|
|
Date:
|
Date:
November 13, 2008
|
|
|
Print
Name:
|
Co-Investor
Print Name:
|
|
|
Title:
|
Co-Investor
Signature:
|
|
|
Date:
|
|
IF
AN ENTITY:
|
IF
AN INDIVIDUAL:
|
|
|
Print
Name of Entity: Howard M. Tanning Rollover
IRA
|
Print
Name:
|
|
|
Signature:
/s/ Howard M. Tanning
|
Signature:
|
|
|
Date:
November 3, 2008
|
Date:
|
|
|
Print
Name: Howard M. Tanning
|
Co-Investor
Print Name:
|
|
|
Title:
IRA Owner
|
Co-Investor
Signature:
|
|
|
Date:
|
|
Name of Lenders
|
Principal Amount
of Note
|
|||
|
Neel
B. Ackerman and Martha N. Ackerman
|
$
|
200,000
|
||
|
Stephen
M. Burnich Revocable Trust u/a 10/08/04
|
$
|
25,000
|
||
|
Ennio
De Pianto
|
$
|
50,000
|
||
|
Matthew
Ernst
|
$
|
25,000
|
||
|
John
M. Goodman Living Trust
|
$
|
25,000
|
||
|
Leon
Kanner & Rosemary E. Kanner
|
$
|
25,000
|
||
|
Richard
Kindt
|
$
|
10,000
|
||
|
Douglas
E. Pritchett
|
$
|
50,000
|
||
|
Jerome
A. Shinkay
|
$
|
10,000
|
||
|
Michael
J. Spezia
|
$
|
25,000
|
||
|
George
D. Wilson & Diane J. Wilson
|
$
|
10,000
|
||
|
Joseph
L. Jerger
|
$
|
10,000
|
||
|
David
& Nancy Pudelsky
|
$
|
25,000
|
||
|
James
R. Buck
|
$
|
10,000
|
||
|
John
O. Dunkin
|
$
|
15,000
|
||
|
NFS/FMTC
SEP IRA FBO Jay Jennings
|
$
|
15,000
|
||
|
Landmark
Community Bank Collateral Account FBO Estate of Catherine
Nasser
|
$
|
65,000
|
||
|
Nasser
Family Trust
|
$
|
25,000
|
||
|
James
R. Kahn & Debra A. Kahn, JTWROS
|
$
|
5,000
|
||
|
Carolyn
N. Taylor & A. Starke Taylor, Jr.
|
$
|
50,000
|
||
|
Mark
Vollmer
|
$
|
5,000
|
||
|
Robert
J. Guercio
|
$
|
25,000
|
||
|
Ralph
Hanby
|
$
|
5,000
|
||
|
Robert
E. Jacobson & Saralee Jacobson, JTWROS
|
$
|
10,000
|
||
|
Michael
Cushing
|
$
|
30,000
|
||
|
Raymond
Yarusi, Jr.
|
$
|
5,000
|
||
|
James
Orr
|
$
|
25,000
|
||
|
Vernon
L. Simpson
|
$
|
25,000
|
||
|
Michael
H. Yokoyama & Jaye S. Venuti Family Trust
|
$
|
25,000
|
||
|
Frederick
Peet
|
$
|
20,000
|
||
|
Ronald
Rasmussen
|
$
|
10,000
|
||
|
Lewis
R. Jacobson
|
$
|
5,000
|
||
|
Mark
B. Ginsburg
|
$
|
25,000
|
||
|
Gregory
J. Dovolis
|
$
|
20,000
|
||
|
William
S. Silver
|
$
|
25,000
|
||
|
Praful
Desai
|
$
|
25,000
|
||
|
Thomas
Gemellaro
|
$
|
5,000
|
||
|
Howard
M. Tanning Rollover IRA
|
$
|
70,000
|
||
|
TOTAL:
|
1,035,000
|
|||
|
Note
No.: __
|
November
19, 2008
|
|
(i)
|
the
Notes; and
|
|
(ii)
|
the
10% secured promissory notes of the Company in the aggregate principal
amount of $70,000 due March 10,
2009.
|
|
(f)
|
Prohibitions
of Fundamental Changes and Acquisitions.
|
|
(i)
|
issue
any securities or enter into any agreements to issue securities,
or
rights, options or warrants for the issuance of any securities,
other than
(1) issuances under the Company’s 2003 Stock Option Plan, provided that
the Company shall not increase the number of shares eligible for
issuance
thereunder, (2) issuances of Common Stock upon the exercise of
options or
warrants outstanding on the date hereof, (3) pursuant to the SPA,
(4) the
issuance of the Warrants and shares of Common Stock issuable upon
exercise
thereof , (5) the issuance warrants issued to the Placement Agent
in
connection with the transactions contemplated by the SPA and the
shares of
Common Stock issuable upon exercise thereof and (6) issuances pursuant
to
the Joint Venture Agreement, between the Company and Nordic Biotech
Venture Fund II K/S. dated January 31, 2008, as amended from time
to time
(the “JV
Agreement”);
|
|
(ii)
|
consolidate
with or merge into any other
Person;
|
|
(iii)
|
except
as may otherwise be required under the Default Agreement, sell,
lease,
exchange or otherwise dispose of, any of its securities in one
transaction
or a series of related transactions, or dispose of any of its assets
except in the ordinary course of business or make any material
change in
the present methods of conducting
business;
|
|
(iv)
|
except
as contemplated by the JV Agreement, acquire the business of any
other
Person by way of a purchase of securities or of all or substantially
all
of the assets of such other Person;
and
|
|
(v)
|
form
any subsidiary; dissolve or
liquidate.
|
|
(i)
|
Liens
existing on the date hereof;
|
|
(ii)
|
Liens
and security interests in favor of Holders securing the Company’s
obligations under the Notes;
|
|
(iii)
|
Liens
for taxes not yet due or which are being contested in good faith
and by
appropriate proceedings, if adequate reserves with respect thereto
are
maintained on the books of the
Company;
|
|
(iv)
|
deposits
to secure the performances of leases, contracts, surety bonds,
performance
bonds and other obligations of like nature incurred in the ordinary
course
of business; and
|
|
(v)
|
carriers’,
warehousemen’s, mechanics’ or other like liens arising in the ordinary
course of business for sums not yet due for a period of more than
thirty
days or which are being contested in good faith and by appropriate
proceedings.
|
|
(i)
|
apply
for, consent to, or acquiesce in, the appointment of a trustee,
receiver,
sequestrator or other custodian for the Company or any of its properties,
or make a general assignment for the benefit of
creditors;
|
|
(ii)
|
in
the absence of such application, consent or acquiesce in, permit
or suffer
to exist the appointment of a trustee, receiver, sequestrator or
other
custodian for the Company or for any part of its properties, and
such
trustee, receiver, sequestrator or other custodian shall not be
discharged
within thirty (30) days;
|
|
(iii)
|
permit
or suffer to exist the commencement of any bankruptcy, reorganization,
debt arrangement or other case or proceeding under any bankruptcy
or
insolvency law, or any dissolution, winding up or liquidation proceeding,
in respect of the Company, and, if such case or proceeding is not
commenced by the Company or converted to a voluntary case, such
case or
proceeding shall be consented to or acquiesced in by the Company
or shall
result in the entry of an order for relief or shall remain for
sixty (60)
days undismissed; or
|
|
(iv)
|
take
any corporate action authorizing, or in furtherance of, any of
the
foregoing;
|
|
To
Holder:
|
To
the Company:
|
|
Manhattan
Pharmaceuticals, Inc.
|
|
|
48
Wall Street, Suite 1100
New
York, New York 10005
|
|
|
Attn:
Douglas Abel
Chief Executive Officer
|
|
|
Fax
Number:
|
Fax
Number: (212) 582-3957
|
|
Manhattan
Pharmaceuticals, Inc.
|
|
|
By:
|
|
|
Name:
Michael McGuinness
|
|
|
Title:
Chief Financial Officer
|
|
|
Warrant
No. MPI-__
|
Dated:
November 19, 2008
|
|
MANHATTAN
PHARMACEUTICALS, INC.
|
|
|
By:
|
|
|
Name:
Michael McGuinness
|
|
|
Title:
Chief Financial Officer
|
|
|
(a)
|
The
Warrant is currently exercisable to purchase a total of ______________
Warrant Shares.
|
|
(b)
|
The
undersigned Holder hereby exercises its right to purchase
_________________ Warrant Shares pursuant to the
Warrant.
|
|
(c)
|
The
holder shall pay the sum of $____________ to the Company in accordance
with the terms of the Warrant.
|
|
(d)
|
Following
this exercise, the Warrant shall be exercisable to purchase a total
of
______________ Warrant Shares.
|
|
(e)
|
Notwithstanding
anything to the contrary contained herein, this Exercise Notice shall
constitute a representation by the Holder that, after giving effect
to the
exercise provided for in this Exercise Notice, the Holder (together
with
its affiliates) will not have beneficial ownership (together with
the
beneficial ownership of such Person’s affiliates) of a number of shares of
Common Stock which exceeds the Maximum Percentage of the total outstanding
shares of Common Stock as determined pursuant to the provisions of
Section
11
of
the Warrant.
|
|
(f)
|
The
Holder represents that, as of the date of
exercise:
|
|
i.
|
the
Warrant Shares being purchased pursuant to this Exercise Notice are
being
acquired solely for the Holder’s own account and not as a nominee for any
other party, for investment, and not with a view toward distribution
or
resale; and
|
|
ii.
|
the
Holder is an “accredited
investor”
as such term is defined in Rule 501(a)(1) of Regulation D promulgated
by
the Securities and Exchange Commission under the Securities
Act.
|
|
(g)
|
If
the Holder cannot make the representations required in Section
(f)(ii),
above, because it is factually incorrect, it shall be a condition
to the
exercise of the Warrant that the Company receive such other
representations as the Company considers necessary, acting reasonably,
to
assure the Company that the issuance of securities upon exercise
of this
Warrant shall not violate any United States or other applicable securities
laws.
|
|
Dated:
_____________ ,
______
|
Name
of Holder:__________________________________
|
||
|
(Print)
|
|||
|
By:
|
______________________________ | ||
|
Name:
|
______________________________ | ||
|
Title:
|
______________________________ | ||
|
(Signature
must conform in all respects to name of
holder
as specified on the face of the
Warrant)
|
|||
| i. |
the
Warrant Shares being purchased pursuant to this Assignment are being
acquired solely for the transferee’s own account and not as a nominee for
any other party, for investment, and not with a view toward distribution
or resale; and
|
| ii. |
the
undersigned transferee is an “accredited
investor”
as such term is defined in Rule 501(a)(1) of Regulation D promulgated
by
the Securities and Exchange Commission under the Securities
Act.
|
|
Dated:
_____________ ,
______
|
|
| _____________________________________ | |
|
(Signature
must conform in all respects to name of holder as specified on the
face of
the Warrant)
|
|
| __________________________________ | |
|
Address
of Transferee
|
|
| __________________________________ | |
| __________________________________ | |
|
In
the presence of:
|
__________________________________ |
|
Signature
of Transferee
|
|
| ______________________ |
|
MANHATTAN
PHARMACEUTICALS, INC.
|
||
|
By:
|
/s/
Michael G. McGuinness
|
|
|
Name:
|
Michael
G. McGuinness
|
|
|
Title:
|
Chief
Financial Officer
|
|
|
/s/ Douglas Abel
|
||
|
DOUGLAS
ABEL
|
||
|
MANHATTAN
PHARMACEUTICALS, INC.
|
||
|
By:
|
/s/
Douglas Abel
|
|
|
Name:
|
Douglas
Abel
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
/s/
Michael G. McGuinness
|
||
|
Michael
G. McGuinness
|
||
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Warrant
No. MPI-
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Dated:
November 19, 2008
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X
=
Y [(A-B)/A]
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where:
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X
=
the number of Warrant Shares to be issued to the
Holder.
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Y
=
the number of Warrant Shares with respect to which this Warrant is
being
exercised (prior to cashless exercise).
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A
=
the average of the Closing Prices for the five (5) Trading Days
immediately prior to (but not including) the Exercise
Date.
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B
=
the Exercise Price.
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MANHATTAN
PHARMACEUTICALS, INC.
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By:
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Name:
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Michael
McGuinness
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Title:
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Chief
Financial Officer
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(a)
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The
Warrant is currently exercisable to purchase a total of ______________
Warrant Shares.
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(b)
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The
undersigned Holder hereby exercises its right to purchase
_________________ Warrant Shares pursuant to the
Warrant.
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(c)
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The
Holder shall make Payment of the Exercise Price as follows (check
one):
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(d)
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If
the holder is making a Cash Exercise, the holder shall pay the sum
of
$____________ to the Company in accordance with the terms of the
Warrant.
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(e)
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Pursuant
to this exercise, the Company shall deliver to the holder ______________
Warrant Shares in accordance with the terms of the
Warrant.
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(f)
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Following
this exercise, the Warrant shall be exercisable to purchase a total
of
______________ Warrant Shares.
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(h)
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The
Holder represents that, as of the date of
exercise:
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i.
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the
Warrant Shares being purchased pursuant to this Exercise Notice are
being
acquired solely for the Holder’s own account and not as a nominee for any
other party, for investment, and not with a view toward distribution
or
resale; and
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ii.
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the
Holder is an “accredited
investor”
as such term is defined in Rule 501(a)(1) of Regulation D promulgated
by
the Securities and Exchange Commission under the Securities
Act.
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(i)
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If
the Holder cannot make the representations required in Section
(h)(ii),
above, because it is factually incorrect, it shall be a condition
to the
exercise of the Warrant that the Company receive such other
representations as the Company considers necessary, acting reasonably,
to
assure the Company that the issuance of securities upon exercise
of this
Warrant shall not violate any United States or other applicable securities
laws.
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Dated:
________________,
_____
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Name of Holder:
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(Print)
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By:
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Name:
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Title:
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(Signature
must conform in all respects to name of
holder as specified on the face of the Warrant) |
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| i. |
the
Warrant Shares being purchased pursuant to this Assignment are being
acquired solely for the transferee’s own account and not as a nominee for
any other party, for investment, and not with a view toward distribution
or resale; and
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the
undersigned transferee is an “accredited
investor”
as such term is defined in Rule 501(a)(1) of Regulation D promulgated
by
the Securities and Exchange Commission under the Securities
Act.
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Dated:
________________,
_____
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(Signature
must conform in all respects to name of holder
as specified on the face of the Warrant) |
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Address
of Transferee
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In
the presence of:
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Signature
of Transferee
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