Page
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PROSPECTUS
SUMMARY
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1
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RISK
FACTORS
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6
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FORWARD-LOOKING
STATEMENTS
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18
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USE
OF PROCEEDS
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18
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DETERMINATION
OF OFFERING PRICE
|
19
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DIVIDEND
POLICY
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19
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CAPITALIZATION
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20
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DILUTION
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21
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SELLING
STOCKHOLDERS
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21
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ADDITIONAL
INFORMATION ABOUT TRANSACTIONS BETWEEN THE COMPANY AND THE SELLING
STOCKHOLDERS
|
31
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DESCRIPTION
OF BUSINESS
|
52
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|
DESCRIPTION
OF PROPERTY
|
62
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LEGAL
PROCEEDINGS
|
62
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PRICE
RANGE OF COMMON STOCK
|
63
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EQUITY
COMPENSATION PLAN INFORMATION
|
64
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SELECTED
FINANCIAL INFORMATION
|
65
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SUPPLEMENTARY
FINANCIAL INFORMATION
|
67
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MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
|
68
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|
CHANGE
IN INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
|
83
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|
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
83
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MANAGEMENT
|
84
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EXECUTIVE
COMPENSATION
|
86
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SECURITY
OWNERSHIP OF MANAGEMENT
|
100
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SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
|
101
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SHARES
ELIGIBLE FOR FUTURE SALE
|
105
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CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
|
106
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DESCRIPTION
OF CAPITAL STOCK
|
107
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PLAN
OF DISTRIBUTION
|
110
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LEGAL
MATTERS
|
111
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EXPERTS
|
111
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|
HOW
TO GET MORE INFORMATION
|
112
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INDEX
TO FINANCIAL STATEMENTS
|
F-1
|
Common
stock offered by selling stockholders
|
•
54,713,329 shares of our common stock, including 37,391,688 shares issued
as part of the July 7, 2009 and September 4, 2009 financings, 1,215,000
shares issuable upon the exercise of the July 2009 Warrants, 14,574,141
shares issuable upon the conversion of the July 2009 Notes and 1,532,500
shares issuable upon the conversion of the September 2009
Notes.
|
|
Use
of proceeds
|
We
will not receive any proceeds from the sale of the shares of our common
stock by the selling stockholders other than as a result of the exercise
of the July 2009 Warrants for cash held by the selling
stockholders.
|
|
Trading
|
Our
common stock is traded on the OTC Bulletin Board under the symbol
“GETA.OB.”
|
|
Risk
Factors
|
You
should read the “Risk Factors” section of this prospectus for a discussion
of factors to consider carefully before deciding to invest in our common
stock.
|
Nine
months
ended
September
30,
(unaudited)
|
Year ended
December 31,
|
|||||||||||||||
2009
|
2008
|
2007
|
2006
|
|||||||||||||
Consolidated
Statements of Operations Data
|
||||||||||||||||
(in thousands except per share
amounts) :
|
||||||||||||||||
Product
sales — net
|
$
|
180
|
$
|
363
|
$
|
580
|
$
|
708
|
||||||||
Costs
of goods sold
|
12
|
102
|
90
|
108
|
||||||||||||
Operating
expenses
|
24,854
|
33,410
|
26,116
|
59,764
|
||||||||||||
Amortization
of deferred financing costs and debt discount
|
(22,362
|
)
|
(11,229
|
)
|
—
|
—
|
||||||||||
Fair
value — conversion feature liability
|
(19,040
|
)
|
(460,000
|
)
|
—
|
—
|
||||||||||
Fair
value — warrant liability
|
(7,655
|
)
|
(2,000
|
)
|
—
|
—
|
||||||||||
All
other (expense)/income -net
|
(837
|
)
|
(1,435
|
)
|
836
|
1,454
|
||||||||||
Loss
before income taxes
|
(74,580
|
)
|
(507,813
|
)
|
(24,790
|
)
|
(57,710
|
)
|
||||||||
Income
tax benefit
|
-
|
1,975
|
1,470
|
929
|
||||||||||||
Net
loss
|
$
|
(74,580
|
)
|
$
|
(505,838
|
)
|
$
|
(23,320
|
)
|
$
|
(56,781
|
)
|
||||
Net
loss per basic and diluted common share *
|
$
|
(0.98
|
)
|
$
|
(455.09
|
)
|
$
|
(39.36
|
)
|
$
|
(125.88
|
)
|
||||
Common
shares used in computing net loss per basic and diluted share
*
|
75,850
|
1,112
|
592
|
451
|
*
|
all figures
prior to June 26, 2009 have been retroactively adjusted to reflect a
1-for-50 reverse stock split effected in June
2009
|
September 30, 2009
(unaudited, )
|
December 31, 2008
|
|||||||
Balance
Sheet Data
|
||||||||
(in
thousands except per share amounts):
|
||||||||
Cash
and cash equivalents
|
$ | 7,383 | $ | 4,908 | ||||
Working
capital deficiency
|
(4,010 | ) | (5,220 | ) | ||||
Total
assets
|
18,853 | 12,693 | ||||||
Total
stockholders’ equity/(deficit)
|
3,494 | (4,864 | ) |
|
·
|
delay, scale back or eliminate
some or all of our research and product development
programs;
|
|
·
|
license third parties to develop
and commercialize products or technologies that we would otherwise seek to
develop and commercialize
ourselves;
|
|
·
|
attempt to sell our
company;
|
|
·
|
cease operations;
or
|
|
·
|
declare
bankruptcy.
|
|
·
|
our ability to demonstrate
clinically that our products are useful and safe in particular
indications;
|
|
·
|
delays or refusals by regulatory
authorities in granting marketing
approvals;
|
|
·
|
our limited financial resources
and sales and marketing experience relative to our
competitors;
|
|
·
|
actual and perceived differences
between our products and those of our
competitors;
|
|
·
|
the availability and level of
reimbursement for our products by third-party
payors;
|
|
·
|
incidents of adverse reactions to
our products;
|
|
·
|
side effects or misuse of our
products and the unfavorable publicity that could result;
and
|
|
·
|
the occurrence of manufacturing,
supply or distribution
disruptions.
|
|
·
|
we may discover that a product
candidate does not exhibit the expected therapeutic results in humans, may
cause harmful side effects or have other unexpected characteristics that
may delay or preclude regulatory approval or limit commercial use if
approved;
|
|
·
|
the results from early clinical
trials may not be statistically significant or predictive of results that
will be obtained from expanded, advanced clinical
trials;
|
|
·
|
institutional review boards or
regulators, including the FDA, may hold, suspend or terminate our clinical
research or the clinical trials of our product candidates for various
reasons, including noncompliance with regulatory requirements or if, in
their opinion, the participating subjects are being exposed to
unacceptable health risks;
|
|
·
|
subjects may drop out of our
clinical trials;
|
|
·
|
our preclinical studies or
clinical trials may produce negative, inconsistent or inconclusive
results, and we may decide, or regulators may require us, to conduct
additional preclinical studies or clinical trials;
and
|
|
·
|
the cost of our clinical trials
may be greater than we currently
anticipate.
|
|
·
|
making it more difficult for us
to meet our payment and other obligations under our outstanding
debt;
|
|
·
|
resulting in an event of default
if we fail to comply with the restrictive covenants contained in our debt
agreements, which could result in all of our debt becoming due and payable
and, in the case of an event of default under our secured debt, could
permit the lenders to foreclose on our assets securing such
debt;
|
|
·
|
limiting our flexibility in
planning for, or reacting to, and increasing our vulnerability to, changes
in our business, the industry in which we operate and the general economy;
and
|
|
·
|
placing us at a competitive
disadvantage compared to our competitors that have less debt or are less
leveraged.
|
|
·
|
obtain U.S. and foreign patent or
other proprietary protection for our technologies, products and
processes;
|
|
·
|
preserve trade secrets;
and
|
|
·
|
operate without infringing the
patent and other proprietary rights of third
parties.
|
|
·
|
inability to obtain sufficient
quantities of materials for use in clinical
trials;
|
|
·
|
inability to adequately monitor
patient progress after
treatment;
|
|
·
|
unforeseen safety
issues;
|
|
·
|
the failure of the products to
perform well during clinical trials;
and
|
|
·
|
government or regulatory
delays.
|
|
·
|
difficulties in assimilating the
operations and personnel of acquired
companies;
|
|
·
|
diversion of our management’s
attention from ongoing business
concerns;
|
|
·
|
our potential inability to
maximize our financial and strategic position through the successful
incorporation of acquired technology and rights to our products and
services;
|
|
·
|
additional expense associated
with amortization of acquired
assets;
|
|
·
|
maintenance of uniform standards,
controls, procedures and policies;
and
|
|
·
|
impairment of existing
relationships with employees, suppliers and customers as a result of the
integration of new management
personnel.
|
|
·
|
the results of preclinical
studies and clinical trials by us or our
competitors;
|
|
·
|
announcements of technological
innovations or new therapeutic products by us or our
competitors;
|
|
·
|
government
regulation;
|
|
·
|
developments in patent or other
proprietary rights by us or our competitors, including
litigation;
|
|
·
|
fluctuations in our operating
results; and
|
|
·
|
market conditions for
biopharmaceutical stocks in
general.
|
(000)
|
As
of September 30, 2009
|
As reported
(unaudited)
|
||||
Convertible
notes as of September 30, 2009 actual $15,312 outstanding net of debt
discount of ($12,647)
|
$
|
2,665
|
||
Common
stock, $.001 par value; 6,000,000 shares authorized, 173,514 shares issued
and outstanding at September 30, 2009
|
174
|
|||
Preferred
stock, 5,000 authorized:
|
||||
Series
A convertible preferred stock, $.001 par value; 8 shares issued and
outstanding, liquidation value of $385 at September 30, 2009 (actual and
as adjusted)
|
—
|
|||
Series
G participating cumulative preferred stock, $.001 par value; 0 shares
issued and outstanding at September 30, 2009 (actual and as
adjusted)
|
—
|
|||
Additional
paid-in capital
|
1,022,026
|
|||
Accumulated
deficit
|
(1,018,706
|
)
|
||
Total
stockholders’equity
|
3,494
|
|||
Total
capitalization
|
$
|
6,159
|
Number of Shares
held or acquirable
(without reference to
restrictions prior to
the Offering)
|
Shares of Common Stock
Beneficially Owned
Prior to the Offering
|
Maximum
Number of
Shares
to be Sold
Pursuant to
this
Prospectus(4)
|
Number of
Shares held or
acquirable
(without
reference to
restrictions)
After the
Offering (5)
|
Shares of Common Stock
Beneficially Owned
After the Offering
|
||||||||||||||||||||||||
Selling stockholder
|
Number of
Shares
Beneficially
Owned (1)
|
Percent
of Class (1)(2)(3)
|
Number of
Shares
Beneficially
Owned (5)
|
Percent
of Class
(1)(2)(3)
|
||||||||||||||||||||||||
Tang
Capital Partners, LP
|
125,848,675 | (6) | 19,477,127 | 9.999 | % | 17,774,309 | 108,074,366 | 27,388,539 | 9.999 | % | ||||||||||||||||||
667,
L.P.
|
112,995,981 | (7) | 19,179,170 | 9.999 | % | 1,483,611 | 96,994,750 | 24,649,956 | 9.999 | % | ||||||||||||||||||
667,
L.P. #2
|
112,995,981 | (8) | 19,179,170 | 9.999 | % | 1,328,660 | 96,994,750 | 24,649,956 | 9.999 | % | ||||||||||||||||||
Baker
Brothers Life Sciences, L.P.
|
112,995,981 | (9) | 19,179,170 | 9.999 | % | 12,807,879 | 96,994,750 | 24,649,956 | 9.999 | % | ||||||||||||||||||
14159,
L.P.
|
112,995,981 | (10) | 19,179,170 | 9.999 | % | 381,081 | 96,994,750 | 24,649,956 | 9.999 | % | ||||||||||||||||||
BAM
Opportunity Fund, L.P.
|
23,051,359 | (11) | 14,383,626 | 7.190 | % | 4,820,064 | 18,231,295 | 18,231,295 | 7.050 | % | ||||||||||||||||||
Boxer
Capital LLC
|
30,026,844 | (12) | 15,491,026 | 7.666 | % | 5,028,437 | 24,998,407 | 24,649,956 | 9.999 | % | ||||||||||||||||||
Cat
Trail Private Equity Fund, LLC
|
44,911,703 | (13) | 19,179,170 | 9.999 | % | 6,353,230 | 38,558,473 | 24,649,956 | 9.999 | % | ||||||||||||||||||
Arcus
Ventures Fund
|
23,007,926 | (14) | 14,171,842 | 7.084 | % | 3,176,615 | 19,831,311 | 19,831,311 | 7.615 | % | ||||||||||||||||||
Cranshire
Capital LP
|
2,450,192 | (15) | 2,450,192 | 1.268 | % | 362,692 | 2,087,500 | 2,087,500 | * | |||||||||||||||||||
Rockmore
Investment Master Fund Ltd.
|
2,372,973 | (16) | 2,372,973 | 1.229 | % | 226,391 | 2,146,582 | 2,146,582 | * | |||||||||||||||||||
RRC
BioFund, LP
|
1,225,096 | (17) | 1,225,096 | * | 181,346 | 1,043,750 | 1,043,750 | * | ||||||||||||||||||||
Rodman
& Renshaw, LLC (18)
|
12,935,750 | (19) | 10,060,426 | 4.985 | % | 346,384 | 12,589,366 | 12,589,366 | 4.860 | % | ||||||||||||||||||
MVA
Investors LLC, II
|
2,423,691 | (20) | 2,423,691 | 1.252 | % | 442,630 | 1,981,061 | 1,981,061 | * |
*
|
Represents beneficial ownership
of less than one percent of our outstanding common
stock.
|
(1)
|
The Issuer’s 15% Senior Secured
Convertible Promissory Notes due June 2011 (the “June 2008 Notes”) and the
Issuer’s 8% Senior Secured Convertible Promissory Notes due April 2012
(the “April 2009 Notes”) can only be converted to the extent that, after
such conversion, the Reporting Persons would beneficially own no more than
4.999% of the Issuer’s Common Stock. The July 2009 Notes and the
September 2009 Notes can only be converted to the extent that, after such
conversion, the Reporting Persons would beneficially own no more than
9.999% of the Issuer’s Common Stock. Warrants issued in April 2009
(the “April 2009 Warrants”) can only be exercised to the extent that,
after such exercise, the Reporting Person would beneficially own no more
than 4.999% of the Issuer’s Common Stock. The July 2009
Warrants are not exercisable until after January 7, 2010 and March 4,
2010, respectively, and the September 2009 Warrants are not exercisable
until after March 4, 2010, and after each such date, the warrants are only
exercisable to the extent that, after such exercise, the Reporting Persons
would beneficially own no more than 4.999% of the Issuer’s Common
Stock. Additionally, the July 2009 Notes and the September 2009 Notes
can only be converted beginning the earlier of (i) two weeks from the
effectiveness of a resale registration statement registering the common
stock underlying such notes and (ii) the date that is six months following
the issuance date. The beneficial ownership total in this column
assumes that this registration statement has been declared effective and
the July 2009 Notes and the September 2009 Notes are currently convertible
according to their respective terms. The shares numbers and percentages
set forth in the columns below reflect these limitations on conversion and
exercise. Please note that the holders of the convertible notes and
warrants may negotiate with the Company to amend the provisions limiting
their conversion/exchange.
|
(2)
|
Calculated assuming the total
number of shares of common stock outstanding are 191,810,882, the number
of shares of common stock outstanding on December 16,
2009.
|
(3)
|
Shares of common stock underlying
convertible notes or warrants are deemed outstanding for computing the
percentage ownership of the selling stockholder holding the convertible
notes or warrants, prior to and after giving effect to the offering, but
are not deemed outstanding for computing the percentage ownership of any
other selling stockholder.
|
(4)
|
The
information regarding the type and amount of securities being registered
for resale by each selling stockholders is set forth below in the section
entitled “Additional Information About the Transactions Between the
Company and the Selling Stockholders,” and to the extent there is a
difference between that information and the information set forth in this
column, that difference consists of Common Stock registered for resale by
each selling stockholder.
|
(5)
|
We do not know when or in what
amounts a selling stockholder may offer shares for sale. The selling
stockholders might not sell any or all of the shares offered by this
prospectus. Because the selling stockholders may offer all or some of the
shares pursuant to this offering and because there are currently no
agreements, arrangements or understandings with respect to the sale of any
of the shares, we cannot estimate the number of the shares that will be
held by the selling stockholders after completion of the offering.
However, for purposes of this table, we have assumed that, after
completion of the offering, none of the shares covered by this prospectus
will be held by the selling
stockholders.
|
(6)
|
Tang Capital Partners, LP has the
right to acquire (setting aside for these purposes the restrictions
described in footnote 1) 125,848,675 shares of Common Stock, comprised of
16,497,257 shares of Common Stock, $86,047.74 face amount of the June 2008
Notes, which are convertible into 860,478 shares of Common Stock,
$1,911,666.67 face amount of the April 2009 Notes, which are convertible
into 19,116,667 shares of Common Stock, $1,954,299.48 face amount of July
2009 Notes, which are convertible into 19,542,995 shares of Common Stock,
and $633,614.68 face amount of September 2009 Notes, which are convertible
into 6,336,147 shares of Common Stock. Additionally, Tang Capital
Partners, LP holds an April 2009 Warrant to purchase 4,625,000 shares of
the Issuer’s Common Stock at an exercise price of $0.50 per share, July
2009 Warrants to purchase 5,831,576 shares of the Issuer’s Common Stock at
an exercise price of $1.00 per share and a September 2009 Warrant to
purchase 1,584,037 shares of the Issuer’s Common Stock at an exercise
price of $1.00 per share. Tang Capital Partners, LP also has the
right, pursuant to a Securities Purchase Agreement dated April 2, 2009, to
purchase an additional $1,850,000.00 face amount of the April 2009 Notes,
which are convertible into 18,500,000 shares of Common Stock, and a
warrant to purchase 4,625,000 shares at an exercise price of $0.50 per
share. Tang Capital Partners LP also has the right, pursuant to a
Consent Agreement dated April 2, 2009, and amended on May 22, 2009 and
July 7, 2009, to purchase $2,832,951.79 face amount of the April 2009
Notes, which are convertible into 28,329,518 shares of Common Stock.
Tang Capital Partners shares voting and dispositive power over such
shares, notes and warrants with Tang Capital Management and Kevin C.
Tang. Tang Capital Management, as the general partner of Tang
Capital Partners, may be deemed to beneficially own the shares held or
acquirable by Tang Capital Partners. Tang Capital Management shares
voting and dispositive power over such shares with Tang Capital Partners
and Kevin C. Tang. Kevin C. Tang, as manager of Tang Capital
Management, may be deemed to beneficially own the shares held or
acquirable by Tang Capital Partners. Mr. Tang shares voting and
dispositive power over such shares with Tang Capital Partners and Tang
Capital Management. Mr. Tang disclaims beneficial ownership of all
shares reported herein except to the extent of his pecuniary interest
therein.
|
(7)
|
667, L.P., 667, L.P. #2, Baker
Brothers Life Sciences, L.P. and 14159, L.P. (collectively, the “Baker
Bros. Affiliates”) have the right to acquire (setting aside for these
purposes the restrictions described in footnote 1) a total of 112,995,981
shares of Common Stock which are held as set forth below. 667, L.P.:
9,545,699 shares of Common Stock, comprised of 1,551,822 shares of Common
Stock, $9,835.03 of the June 2008 Notes, which are convertible into 98,350
shares of Common Stock, $196,333.33 of the April 2009 Notes, which are
convertible into 1,963,333 shares of Common Stock, $162,303.62 of July
2009 Notes, which are convertible into 1,623,036 shares of Common Stock,
and $78,279.60 of September 2009 Notes, which are convertible into 782,796
shares of Common Stock. The fund also holds an April 2009 Warrant to
purchase 475,000 shares with an exercise price of $0.50 per share, a July
2009 Warrant to purchase 170,000 shares with an exercise price of $1.00
per share, which warrant is not exercisable until January 7, 2010, a July
2009 Warrant to purchase 314,217 shares with an exercise price of $1.00
per share, which warrant is not exercisable until March 4, 2010, and a
September 2009 Warrant to purchase 195,700 shares with an exercise price
of $1.00 per share, which warrant is not exercisable until March 4, 2010.
The fund also has the right, pursuant to a Securities Purchase
Agreement dated April 2, 2009, to purchase an additional $190,000.00 face
amount of the April 2009 Notes, which are convertible into 1,900,000
shares of Common Stock, and a warrant to purchase 475,000 shares with an
exercise price of $0.50 per share. The fund also has the right,
pursuant to a Consent Agreement dated April 2, 2009, and amended on May
22, 2009 and July 7, 2009, to purchase $212,687.50 face amount of the
April 2009 Notes, which are convertible into 2,126,875 shares of Common
Stock. 667, L.P. #2: 7,661,357 shares of Common Stock,
comprised of 1,262,179 shares of Common Stock, $7,852.39 of the June 2008
Notes, which are convertible into 78,524 shares of Common Stock,
$160,166.07 of the April 2009 Notes, which are convertible into 1,601,667
shares of Common Stock, $120,325.80 of July 2009 Notes, which are
convertible into 1,203,258 shares of Common Stock, and $63,798.40 of
September 2009 Notes, which are convertible into 637,984 shares of Common
Stock. The fund also holds an April 2009 Warrant to purchase 387,500
shares with an exercise price of $0.50 per share, a July 2009 Warrant to
purchase 140,000 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, a July 2009 Warrant to
purchase 256,087 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010, and a September 2009
Warrant to purchase 159,496 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The fund also
has the right, pursuant to a Securities Purchase Agreement dated April 2,
2009, to purchase an additional $155,000.00 face amount of the April 2009
Notes, which are convertible into 1,550,000 shares of Common Stock, and a
warrant to purchase 387,500 shares with an exercise price of $0.50 per
share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $174,300 face amount of the April 2009 Notes, which are
convertible into 1,743,000 shares of Common Stock. Baker
Brothers Life Sciences L.P.: 93,416,380 shares of Common Stock, comprised
of 11,882,595 shares of Common Stock, $73,101.63 of the June 2008 Notes,
which are convertible into 731,017 shares of Common Stock, $1,506,600 of
the April 2009 Notes, which are convertible into 15,066,000 shares of
Common Stock, $1,192,999.17 of July 2009 Notes, which are convertible into
11,929,992 shares of Common Stock, and $599,836.10 of September 2009
Notes, which are convertible into 5,998,361 shares of Common Stock. The
fund also holds an April 2009 Warrant to purchase 3,645,000 shares with an
exercise price of $0.50 per share, a July 2009 Warrant to purchase
1,307,500 shares with an exercise price of $1.00 per share, which warrant
is not exercisable until January 7, 2010, a July 2009 Warrant to purchase
2,407,747 shares with an exercise price of $1.00 per share, which warrant
is not exercisable until March 4, 2010, and a September 2009 Warrant to
purchase 1,499,590 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010. The fund also has the
right, pursuant to a Securities Purchase Agreement dated April 2, 2009, to
purchase an additional $1,458,000.00 face amount of the April 2009 Notes,
which are convertible into 14,580,000 shares of Common Stock, and a
warrant to purchase 3,645,000 shares with an exercise price of $0.50 per
share. The fund also has the right, pursuant to a Consent Agreement dated
April 2, 2009, and amended on May 22, 2009 and July 7, 2009, to purchase
$1,635,100 face amount of the April 2009 Notes, which are convertible into
16,351,000 shares of Common Stock. 14159, L.P.: 2,338,925
shares of Common Stock, comprised of 381,318 shares of Common Stock,
$2,226.62 of the June 2008 Notes, which are convertible into 22,267 shares
of Common Stock, $48,566.67 of the April 2009 Notes, which are convertible
into 485,667 shares of Common Stock, $38,443.80 of July 2009 Notes, which
are convertible into 384,438 shares of Common Stock, and $19,288.96 of
September 2009 Notes, which are convertible into 192,890 shares of Common
Stock. The fund also holds an April 2009 Warrant to purchase 117,500
shares with an exercise price of $0.50 per share, a July 2009 Warrant to
purchase 42,500 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, a July 2009 Warrant to
purchase 77,427 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010, and a September 2009
Warrant to purchase 48,223 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The
fund also has the right, pursuant to a Securities Purchase Agreement dated
April 2, 2009, to purchase an additional $47,000.00 face amount of the
April 2009 Notes, which are convertible into 470,000 shares of Common
Stock, and a warrant to purchase 117,500 shares with an exercise price of
$0.50 per share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $52,912.50 face amount of the April 2009 Notes, which
are convertible into 529,125 shares of Common Stock. By virtue
of their ownership of entities that have the power to control the
investment decisions of the Baker Bros. Affiliates, Felix J. Baker and
Julian C. Baker may each be deemed to be beneficial owners of shares held
or acquirable by the Baker Bros Affiliates and may be
deemed to have shared power to vote or direct the vote of and shared power
to dispose or direct the disposition of such
securities.
|
(8)
|
667, L.P., 667, L.P. #2, Baker
Brothers Life Sciences, L.P. and 14159, L.P. (collectively, the “Baker
Bros. Affiliates”) have the right to acquire (setting aside for these
purposes the restrictions described in footnote 1) a total of 112,995,981
shares of Common Stock which are held as set forth below. 667, L.P.:
9,545,699 shares of Common Stock, comprised of 1,551,822 shares of Common
Stock, $9,835.03 of the June 2008 Notes, which are convertible into 98,350
shares of Common Stock, $196,333.33 of the April 2009 Notes, which are
convertible into 1,963,333 shares of Common Stock, $162,303.62 of July
2009 Notes, which are convertible into 1,623,036 shares of Common Stock,
and $78,279.60 of September 2009 Notes, which are convertible into 782,796
shares of Common Stock. The fund also holds an April 2009 Warrant to
purchase 475,000 shares with an exercise price of $0.50 per share, a July
2009 Warrant to purchase 170,000 shares with an exercise price of $1.00
per share, which warrant is not exercisable until January 7, 2010, a July
2009 Warrant to purchase 314,217 shares with an exercise price of $1.00
per share, which warrant is not exercisable until March 4, 2010, and a
September 2009 Warrant to purchase 195,700 shares with an exercise price
of $1.00 per share, which warrant is not exercisable until March 4, 2010.
The fund also has the right, pursuant to a Securities Purchase
Agreement dated April 2, 2009, to purchase an additional $190,000.00 face
amount of the April 2009 Notes, which are convertible into 1,900,000
shares of Common Stock, and a warrant to purchase 475,000 shares with an
exercise price of $0.50 per share. The fund also has the right,
pursuant to a Consent Agreement dated April 2, 2009, and amended on May
22, 2009 and July 7, 2009, to purchase $212,687.50 face amount of the
April 2009 Notes, which are convertible into 2,126,875 shares of Common
Stock. 667, L.P. #2: 7,661,357 shares of Common Stock,
comprised of 1,262,179 shares of Common Stock, $7,852.39 of the June 2008
Notes, which are convertible into 78,524 shares of Common Stock,
$160,166.07 of the April 2009 Notes, which are convertible into 1,601,667
shares of Common Stock, $120,325.80 of July 2009 Notes, which are
convertible into 1,203,258 shares of Common Stock, and $63,798.40 of
September 2009 Notes, which are convertible into 637,984 shares of Common
Stock. The fund also holds an April 2009 Warrant to purchase 387,500
shares with an exercise price of $0.50 per share, a July 2009 Warrant to
purchase 140,000 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, a July 2009 Warrant to
purchase 256,087 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010, and a September 2009
Warrant to purchase 159,496 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The fund also
has the right, pursuant to a Securities Purchase Agreement dated April 2,
2009, to purchase an additional $155,000.00 face amount of the April 2009
Notes, which are convertible into 1,550,000 shares of Common Stock, and a
warrant to purchase 387,500 shares with an exercise price of $0.50 per
share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $174,300 face amount of the April 2009 Notes, which are
convertible into 1,743,000 shares of Common Stock. Baker
Brothers Life Sciences L.P.: 93,416,380 shares of Common Stock, comprised
of 11,882,595 shares of Common Stock, $73,101.63 of the June 2008 Notes,
which are convertible into 731,017 shares of Common Stock, $1,506,600 of
the April 2009 Notes, which are convertible into 15,066,000 shares of
Common Stock, $1,192,999.17 of July 2009 Notes, which are convertible into
11,929,992 shares of Common Stock, and $599,836.10 of September 2009
Notes, which are convertible into 5,998,361 shares of Common Stock. The
fund also holds an April 2009 Warrant to purchase 3,645,000 shares with an
exercise price of $0.50 per share, a July 2009 Warrant to purchase
1,307,500 shares with an exercise price of $1.00 per share, which warrant
is not exercisable until January 7, 2010, a July 2009 Warrant to purchase
2,407,747 shares with an exercise price of $1.00 per share, which warrant
is not exercisable until March 4, 2010, and a September 2009 Warrant to
purchase 1,499,590 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010. The fund also has the
right, pursuant to a Securities Purchase Agreement dated April 2, 2009, to
purchase an additional $1,458,000.00 face amount of the April 2009 Notes,
which are convertible into 14,580,000 shares of Common Stock, and a
warrant to purchase 3,645,000 shares with an exercise price of $0.50 per
share. The fund also has the right, pursuant to a Consent Agreement dated
April 2, 2009, and amended on May 22, 2009 and July 7, 2009, to purchase
$1,635,100 face amount of the April 2009 Notes, which are convertible into
16,351,000 shares of Common Stock. 14159, L.P.: 2,338,925
shares of Common Stock, comprised of 381,318 shares of Common Stock,
$2,226.62 of the June 2008 Notes, which are convertible into 22,267 shares
of Common Stock, $48,566.67 of the April 2009 Notes, which are convertible
into 485,667 shares of Common Stock, $38,443.80 of July 2009 Notes, which
are convertible into 384,438 shares of Common Stock, and $19,288.96 of
September 2009 Notes, which are convertible into 192,890 shares of Common
Stock. The fund also holds an April 2009 Warrant to purchase 117,500
shares with an exercise price of $0.50 per share, a July 2009 Warrant to
purchase 42,500 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, a July 2009 Warrant to
purchase 77,427 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010, and a September 2009
Warrant to purchase 48,223 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The
fund also has the right, pursuant to a Securities Purchase Agreement dated
April 2, 2009, to purchase an additional $47,000.00 face amount of the
April 2009 Notes, which are convertible into 470,000 shares of Common
Stock, and a warrant to purchase 117,500 shares with an exercise price of
$0.50 per share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $52,912.50 face amount of the April 2009 Notes, which
are convertible into 529,125 shares of Common Stock. By virtue
of their ownership of entities that have the power to control the
investment decisions of the Baker Bros. Affiliates, Felix J. Baker and
Julian C. Baker may each be deemed to be beneficial owners of shares held
or acquirable by the Baker Bros Affiliates and may be
deemed to have shared power to vote or direct the vote of and shared power
to dispose or direct the disposition of such
securities.
|
(9)
|
667, L.P., 667, L.P. #2, Baker
Brothers Life Sciences, L.P. and 14159, L.P. (collectively, the “Baker
Bros. Affiliates”) have the right to acquire (setting aside for these
purposes the restrictions described in footnote 1) a total of 112,995,981
shares of Common Stock which are held as set forth below. 667, L.P.:
9,545,699 shares of Common Stock, comprised of 1,551,822 shares of Common
Stock, $9,835.03 of the June 2008 Notes, which are convertible into 98,350
shares of Common Stock, $196,333.33 of the April 2009 Notes, which are
convertible into 1,963,333 shares of Common Stock, $162,303.62 of July
2009 Notes, which are convertible into 1,623,036 shares of Common Stock,
and $78,279.60 of September 2009 Notes, which are convertible into 782,796
shares of Common Stock. The fund also holds an April 2009 Warrant to
purchase 475,000 shares with an exercise price of $0.50 per share, a July
2009 Warrant to purchase 170,000 shares with an exercise price of $1.00
per share, which warrant is not exercisable until January 7, 2010, a July
2009 Warrant to purchase 314,217 shares with an exercise price of $1.00
per share, which warrant is not exercisable until March 4, 2010, and a
September 2009 Warrant to purchase 195,700 shares with an exercise price
of $1.00 per share, which warrant is not exercisable until March 4, 2010.
The fund also has the right, pursuant to a Securities Purchase
Agreement dated April 2, 2009, to purchase an additional $190,000.00 face
amount of the April 2009 Notes, which are convertible into 1,900,000
shares of Common Stock, and a warrant to purchase 475,000 shares with an
exercise price of $0.50 per share. The fund also has the right,
pursuant to a Consent Agreement dated April 2, 2009, and amended on May
22, 2009 and July 7, 2009, to purchase $212,687.50 face amount of the
April 2009 Notes, which are convertible into 2,126,875 shares of Common
Stock. 667, L.P. #2: 7,661,357 shares of Common Stock,
comprised of 1,262,179 shares of Common Stock, $7,852.39 of the June 2008
Notes, which are convertible into 78,524 shares of Common Stock,
$160,166.07 of the April 2009 Notes, which are convertible into 1,601,667
shares of Common Stock, $120,325.80 of July 2009 Notes, which are
convertible into 1,203,258 shares of Common Stock, and $63,798.40 of
September 2009 Notes, which are convertible into 637,984 shares of Common
Stock. The fund also holds an April 2009 Warrant to purchase 387,500
shares with an exercise price of $0.50 per share, a July 2009 Warrant to
purchase 140,000 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, a July 2009 Warrant to
purchase 256,087 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010, and a September 2009
Warrant to purchase 159,496 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The fund also
has the right, pursuant to a Securities Purchase Agreement dated April 2,
2009, to purchase an additional $155,000.00 face amount of the April 2009
Notes, which are convertible into 1,550,000 shares of Common Stock, and a
warrant to purchase 387,500 shares with an exercise price of $0.50 per
share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $174,300 face amount of the April 2009 Notes, which are
convertible into 1,743,000 shares of Common Stock. Baker
Brothers Life Sciences L.P.: 93,416,380 shares of Common Stock, comprised
of 11,882,595 shares of Common Stock, $73,101.63 of the June 2008 Notes,
which are convertible into 731,017 shares of Common Stock, $1,506,600 of
the April 2009 Notes, which are convertible into 15,066,000 shares of
Common Stock, $1,192,999.17 of July 2009 Notes, which are convertible into
11,929,992 shares of Common Stock, and $599,836.10 of September 2009
Notes, which are convertible into 5,998,361 shares of Common Stock. The
fund also holds an April 2009 Warrant to purchase 3,645,000 shares with an
exercise price of $0.50 per share, a July 2009 Warrant to purchase
1,307,500 shares with an exercise price of $1.00 per share, which warrant
is not exercisable until January 7, 2010, a July 2009 Warrant to purchase
2,407,747 shares with an exercise price of $1.00 per share, which warrant
is not exercisable until March 4, 2010, and a September 2009 Warrant to
purchase 1,499,590 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010. The fund also has the
right, pursuant to a Securities Purchase Agreement dated April 2, 2009, to
purchase an additional $1,458,000.00 face amount of the April 2009 Notes,
which are convertible into 14,580,000 shares of Common Stock, and a
warrant to purchase 3,645,000 shares with an exercise price of $0.50 per
share. The fund also has the right, pursuant to a Consent Agreement dated
April 2, 2009, and amended on May 22, 2009 and July 7, 2009, to purchase
$1,635,100 face amount of the April 2009 Notes, which are convertible into
16,351,000 shares of Common Stock. 14159, L.P.: 2,338,925
shares of Common Stock, comprised of 381,318 shares of Common Stock,
$2,226.62 of the June 2008 Notes, which are convertible into 22,267 shares
of Common Stock, $48,566.67 of the April 2009 Notes, which are convertible
into 485,667 shares of Common Stock, $38,443.80 of July 2009 Notes, which
are convertible into 384,438 shares of Common Stock, and $19,288.96 of
September 2009 Notes, which are convertible into 192,890 shares of Common
Stock. The fund also holds an April 2009 Warrant to purchase 117,500
shares with an exercise price of $0.50 per share, a July 2009 Warrant to
purchase 42,500 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, a July 2009 Warrant to
purchase 77,427 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010, and a September 2009
Warrant to purchase 48,223 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The
fund also has the right, pursuant to a Securities Purchase Agreement dated
April 2, 2009, to purchase an additional $47,000.00 face amount of the
April 2009 Notes, which are convertible into 470,000 shares of Common
Stock, and a warrant to purchase 117,500 shares with an exercise price of
$0.50 per share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $52,912.50 face amount of the April 2009 Notes, which
are convertible into 529,125 shares of Common Stock. By virtue
of their ownership of entities that have the power to control the
investment decisions of the Baker Bros. Affiliates, Felix J. Baker and
Julian C. Baker may each be deemed to be beneficial owners of shares held
or acquirable by the Baker Bros Affiliates and may be
deemed to have shared power to vote or direct the vote of and shared power
to dispose or direct the disposition of such
securities.
|
(10)
|
667, L.P., 667, L.P. #2, Baker
Brothers Life Sciences, L.P. and 14159, L.P. (collectively, the “Baker
Bros. Affiliates”) have the right to acquire (setting aside for these
purposes the restrictions described in footnote 1) a total of 112,995,981
shares of Common Stock which are held as set forth below. 667, L.P.:
9,545,699 shares of Common Stock, comprised of 1,551,822 shares of Common
Stock, $9,835.03 of the June 2008 Notes, which are convertible into 98,350
shares of Common Stock, $196,333.33 of the April 2009 Notes, which are
convertible into 1,963,333 shares of Common Stock, $162,303.62 of July
2009 Notes, which are convertible into 1,623,036 shares of Common Stock,
and $78,279.60 of September 2009 Notes, which are convertible into 782,796
shares of Common Stock. The fund also holds an April 2009 Warrant to
purchase 475,000 shares with an exercise price of $0.50 per share, a July
2009 Warrant to purchase 170,000 shares with an exercise price of $1.00
per share, which warrant is not exercisable until January 7, 2010, a July
2009 Warrant to purchase 314,217 shares with an exercise price of $1.00
per share, which warrant is not exercisable until March 4, 2010, and a
September 2009 Warrant to purchase 195,700 shares with an exercise price
of $1.00 per share, which warrant is not exercisable until March 4, 2010.
The fund also has the right, pursuant to a Securities Purchase
Agreement dated April 2, 2009, to purchase an additional $190,000.00 face
amount of the April 2009 Notes, which are convertible into 1,900,000
shares of Common Stock, and a warrant to purchase 475,000 shares with an
exercise price of $0.50 per share. The fund also has the right,
pursuant to a Consent Agreement dated April 2, 2009, and amended on May
22, 2009 and July 7, 2009, to purchase $212,687.50 face amount of the
April 2009 Notes, which are convertible into 2,126,875 shares of Common
Stock. 667, L.P. #2: 7,661,357 shares of Common Stock,
comprised of 1,262,179 shares of Common Stock, $7,852.39 of the June 2008
Notes, which are convertible into 78,524 shares of Common Stock,
$160,166.07 of the April 2009 Notes, which are convertible into 1,601,667
shares of Common Stock, $120,325.80 of July 2009 Notes, which are
convertible into 1,203,258 shares of Common Stock, and $63,798.40 of
September 2009 Notes, which are convertible into 637,984 shares of Common
Stock. The fund also holds an April 2009 Warrant to purchase 387,500
shares with an exercise price of $0.50 per share, a July 2009 Warrant to
purchase 140,000 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, a July 2009 Warrant to
purchase 256,087 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010, and a September 2009
Warrant to purchase 159,496 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The fund also
has the right, pursuant to a Securities Purchase Agreement dated April 2,
2009, to purchase an additional $155,000.00 face amount of the April 2009
Notes, which are convertible into 1,550,000 shares of Common Stock, and a
warrant to purchase 387,500 shares with an exercise price of $0.50 per
share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $174,300 face amount of the April 2009 Notes, which are
convertible into 1,743,000 shares of Common Stock. Baker
Brothers Life Sciences L.P.: 93,416,380 shares of Common Stock, comprised
of 11,882,595 shares of Common Stock, $73,101.63 of the June 2008 Notes,
which are convertible into 731,017 shares of Common Stock, $1,506,600 of
the April 2009 Notes, which are convertible into 15,066,000 shares of
Common Stock, $1,192,999.17 of July 2009 Notes, which are convertible into
11,929,992 shares of Common Stock, and $599,836.10 of September 2009
Notes, which are convertible into 5,998,361 shares of Common Stock. The
fund also holds an April 2009 Warrant to purchase 3,645,000 shares with an
exercise price of $0.50 per share, a July 2009 Warrant to purchase
1,307,500 shares with an exercise price of $1.00 per share, which warrant
is not exercisable until January 7, 2010, a July 2009 Warrant to purchase
2,407,747 shares with an exercise price of $1.00 per share, which warrant
is not exercisable until March 4, 2010, and a September 2009 Warrant to
purchase 1,499,590 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010. The fund also has the
right, pursuant to a Securities Purchase Agreement dated April 2, 2009, to
purchase an additional $1,458,000.00 face amount of the April 2009 Notes,
which are convertible into 14,580,000 shares of Common Stock, and a
warrant to purchase 3,645,000 shares with an exercise price of $0.50 per
share. The fund also has the right, pursuant to a Consent Agreement dated
April 2, 2009, and amended on May 22, 2009 and July 7, 2009, to purchase
$1,635,100 face amount of the April 2009 Notes, which are convertible into
16,351,000 shares of Common Stock. 14159, L.P.: 2,338,925
shares of Common Stock, comprised of 381,318 shares of Common Stock,
$2,226.62 of the June 2008 Notes, which are convertible into 22,267 shares
of Common Stock, $48,566.67 of the April 2009 Notes, which are convertible
into 485,667 shares of Common Stock, $38,443.80 of July 2009 Notes, which
are convertible into 384,438 shares of Common Stock, and $19,288.96 of
September 2009 Notes, which are convertible into 192,890 shares of Common
Stock. The fund also holds an April 2009 Warrant to purchase 117,500
shares with an exercise price of $0.50 per share, a July 2009 Warrant to
purchase 42,500 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, a July 2009 Warrant to
purchase 77,427 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010, and a September 2009
Warrant to purchase 48,223 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The
fund also has the right, pursuant to a Securities Purchase Agreement dated
April 2, 2009, to purchase an additional $47,000.00 face amount of the
April 2009 Notes, which are convertible into 470,000 shares of Common
Stock, and a warrant to purchase 117,500 shares with an exercise price of
$0.50 per share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $52,912.50 face amount of the April 2009 Notes, which
are convertible into 529,125 shares of Common Stock. By virtue
of their ownership of entities that have the power to control the
investment decisions of the Baker Bros. Affiliates, Felix J. Baker and
Julian C. Baker may each be deemed to be beneficial owners of shares held
or acquirable by the Baker Bros Affiliates and may be
deemed to have shared power to vote or direct the vote of and shared power
to dispose or direct the disposition of such
securities.
|
(11)
|
The BAM Opportunity Fund, L.P.
has the right to acquire (setting aside for these purposes the
restrictions described in footnote 1) 23,051,359 shares of Common Stock,
comprised of 6,157,564 shares of Common Stock, $18,254.50 of the April
2009 Notes, which are convertible into 182,545 shares of Common Stock, and
$479,500 of September 2009 Notes, which are convertible into 4,795,000
shares of Common Stock. The fund also holds a July 2009 Warrant to
purchase 717,500 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, and a September 2009
Warrant to purchase 1,198,750 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The fund also
has the right, pursuant to a Securities Purchase Agreement dated April 2,
2009, to purchase an additional $800,000 face amount of the April 2009
Notes, which are convertible into 8,000,000 shares of Common Stock, and a
warrant to purchase 2,000,000 shares with an exercise price of $0.50 per
share. The BAM Opportunity Fund, L.P. is a private investment partnership,
the sole general partner of which is BAM Capital, LLC. As the sole general
partner, BAM Capital, LLC has the power to vote and dispose of the Common
Stock owned by the BAM Opportunity Fund, L.P. and, accordingly, may be
deemed the “beneficial owner” of such Common Stock. As the investment
manager of the BAM Opportunity Fund, L.P., BAM Management, LLC has the
power to vote and dispose of the Common Stock owned by the BAM Opportunity
Fund, L.P. and, accordingly, may be deemed the “beneficial owner” of such
Common Stock. The managing members of BAM Capital, LLC and BAM Management,
LLC are Hal Mintz and Ross Berman. Each of BAM Capital, LLC, BAM
Management, LLC, Hal Mintz and Ross Berman disclaims beneficial ownership
of all shares of Common Stock held or acquirable by the BAM Opportunity
Fund, L.P., except to the extent of their pecuniary interest
therein.
|
(12)
|
Boxer Capital LLC has the right
to acquire (setting aside for these purposes the restrictions described in
footnote 1) a total of 30,026,844 shares of Common Stock, comprised of
5,221,907 shares of Common Stock, $52,500 face amount of April 2009 Notes,
which are convertible into 525,000 shares of Common Stock, $469,868.53 of
July 2009 Notes, which are convertible into 4,698,685 shares of Common
Stock, and $120,371.47 of September 2009 Notes, which are convertible into
1,203,715 shares of Common Stock. The fund also holds a July 2009 Warrant
to purchase 470,000 shares with an exercise price of $1.00 per share,
which warrant is not exercisable until January 7, 2010, a July 2009
Warrant to purchase 1,174,671 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010, and a
September 2009 Warrant to purchase 300,929 shares with an exercise price
of $1.00 per share, which warrant is not exercisable until March 4, 2010.
The fund also has the right, pursuant to a Securities Purchase Agreement
dated April 2, 2009, to purchase an additional $525,000 face amount of the
April 2009 Notes, which are convertible into 5,250,000 shares of Common
Stock, and a warrant to purchase 1,312,500 shares with an exercise price
of $0.50 per share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $986,943.70 face amount of the April 2009 Notes, which
are convertible into 9,869,437 shares of Common Stock. Boxer Asset
Management Inc. is the managing member and majority owner of Boxer Capital
LLC. Joseph Lewis is the sole indirect owner and controls Boxer Asset
Management Inc. Boxer Capital LLC has shared voting and dispositive power
with regard to the Common Stock, the warrants to purchase Common Stock,
and the notes convertible into shares of Common Stock it owns directly.
Boxer Asset Management Inc. and Joseph Lewis each have shared voting and
dispositive power with regard to the Common Stock owned directly by Boxer
Capital LLC. MVA Investors LLC, II is the independent, personal investment
vehicle of certain employees of Boxer Capital LLC and Tavistock Life
Sciences Company, which is a Delaware corporation and an affiliate of
Boxer Capital LLC. Investment decisions of Boxer Capital LLC are made by a
majority vote of its investment committee. As such, MVA Investors LLC, II
is not controlled by Boxer Capital LLC, Boxer Asset Management Inc. or
Joseph Lewis. MVA Investors LLC, II has sole voting and dispositive power
over the Common Stock, the warrants to purchase Common Stock and the notes
convertible into Common Stock owned by it. Neither Boxer Capital LLC,
Boxer Asset Management Inc. nor Mr. Lewis have any voting or dispositive
power with regard to the Common Shares held by MVA Investors LLC, II. For
more information regarding MVA Investors LLC, II, see footnote
20.
|
(13)
|
Cat Trail Private Equity Fund,
LLC has the right to acquire (setting aside for these purposes the
restrictions described in footnote 1) 44,911,703 shares of Common Stock,
comprised of 4,616,163 shares of Common Stock and $450,000 face amount of
April 2009 Notes, which are convertible into 4,500,000 shares of Common
Stock, and $1,078,643.21 face amount of July 2009 Notes, which are
convertible into 10,786,432 shares of Common Stock. The fund also holds an
April 2009 Warrant to purchase 1,125,000 shares with an exercise price of
$0.50 per share, a July 2009 Warrant to purchase 405,000 shares with an
exercise price of $1.00 per share, which warrant is not exercisable until
January 7, 2010, and a July 2009 Warrant to purchase 2,291,608 shares with
an exercise price of $1.00 per share, which warrant is not exercisable
until March 4, 2010. The fund also has the right, pursuant to a Securities
Purchase Agreement dated April 2, 2009, to purchase an additional $450,000
face amount of the April 2009 Notes, which are convertible into 4,500,000
shares of Common Stock, and a warrant to purchase 1,125,000 shares with an
exercise price of $0.50 per share. The fund also has the right, pursuant
to a Consent Agreement dated April 2, 2009, and amended on May 22, 2009
and July 7, 2009, to purchase $1,556,250 face amount of the April 2009
Notes, which are convertible into 15,562,500 shares of Common Stock. David
Dekker, as the managing member of Cat Trail Private Equity, LLC, may be
deemed to beneficially own the shares of Common Stock held or acquirable
by Cat Trail Private Equity, LLC. Mr. Dekker shares voting and dispositive
power over such shares with Cat Trail Private Equity, LLC. Mr. Dekker
disclaims beneficial ownership of all shares reported herein except to the
extent of his pecuniary interest
therein.
|
(14)
|
Arcus Ventures Fund has the right
to acquire (setting aside for these purposes the restrictions described in
footnote 1) 23,007,926 shares of Common Stock. The fund owns 5,920,156
shares of Common Stock and $458,321.61 of July 2009 Notes, which are
convertible into 4,583,216 shares of Common Stock. The fund also holds an
April 2009 Warrant to purchase 562,500 shares of Common Stock with an
exercise price of $0.50 per share, a July 2009 Warrant to purchase 202,500
shares with an exercise price of $1.00 per share, which warrant is not
exercisable until January 7, 2010, and a July 2009 Warrant to purchase
1,145,804 shares with an exercise price of $1.00 per share, which warrant
is not exercisable until March 4, 2010. The fund also has the right,
pursuant to a Securities Purchase Agreement dated April 2, 2009, to
purchase an additional $225,000 face amount of the April 2009 Notes, which
are convertible into 2,250,000 shares of Common Stock, and a warrant to
purchase 562,500 shares with an exercise price of $0.50 per share. The
fund also has the right, pursuant to a Consent Agreement dated April 2,
2009, and amended on May 22, 2009 and July 7, 2009, to purchase $778,125
face amount of the April 2009 Notes, which are convertible into 7,781,250
shares of Common Stock. As the general partner of Arcus Ventures Fund,
Arcus Ventures Management, LLC may be deemed to be the beneficial owner of
the shares held or acquirable by the fund. As members of Arcus Ventures
Management, LLC, James B. Dougherty and Steven Soignet may be deemed to be
the beneficial owners of the shares held or acquirable by the fund. Each
of Messrs. Dougherty and Soignet disclaims beneficial ownership of the
shares of Common Stock held or acquirable by the fund, except to the
extent of his pecuniary interest
therein.
|
(15)
|
Cranshire Capital LP has the
right to acquire (setting aside for these purposes the restrictions
described in footnote 1) 2,450,192 shares of Common Stock, comprised of
1,057,692 shares of Common Stock and $35,000 of September 2009 Notes,
which are convertible into 350,000 shares of Common Stock. The fund also
holds an April 2009 Warrant to purchase 150,000 shares of Common Stock
with an exercise price of $0.50 per share, a July 2009 Warrant to purchase
55,000 shares of Common Stock with an exercise price of $1.00 per share,
which warrant is not exercisable until January 7, 2010, and a September
2009 Warrant to purchase 87,500 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The fund also
has the right, pursuant to a Securities Purchase Agreement dated April 2,
2009, to purchase an additional $60,000 face amount of the April 2009
Notes, which are convertible into 600,000 shares of Common Stock, and a
warrant to purchase 150,000 shares with an exercise price of $0.50 per
share. Downsview Capital, Inc. (“Downsview”) is the general partner of
Cranshire Capital LP, and consequently, has voting control and investment
discretion over securities held by Cranshire Capital LP. Mitchell P.
Kopin, President of Downsview, has voting control over Downsview. As a
result of the foregoing, each of Mr. Kopin and Downsview may be deemed to
have beneficial ownership (as determined under Section 13(d) of the
Exchange Act) of the shares of Common Stock beneficially owned by
Cranshire Capital LP.
|
(16)
|
Rockmore Investment Master Fund
Ltd. has the right to acquire (setting aside for these purposes the
restrictions described in footnote 1) 2,372,973 shares of Common Stock,
comprised of 1,114,710 shares of Common Stock, $839.06 face amount of June
2008 Notes, which are convertible into 8,390 shares of Common Stock,
$15,000 face amount of April 2009 Notes, which are convertible into
150,000 shares of Common Stock, $22,341.93 face amount of July 2009 Notes,
which are convertible into 223,419 shares of Common Stock, and $14,243.07
of September 2009 Notes, which are convertible into 142,431 shares of
Common Stock. The fund also holds an April 2009 Warrant to purchase 75,000
shares with an exercise price of $0.50 per share, a July 2009 Warrant to
purchase 27,500 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, a July 2009 Warrant to
purchase 28,355 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010, and a September 2009
Warrant to purchase 35,608 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The fund also
has the right, pursuant to a Securities Purchase Agreement dated April 2,
2009, to purchase an additional $30,000 face amount of the April 2009
Notes, which are convertible into 300,000 shares of Common Stock, and a
warrant to purchase 75,000 shares with an exercise price of $0.50 per
share. The fund also has the right, pursuant to a Consent Agreement dated
April 2, 2009, and amended on May 22, 2009 and July 7, 2009, to purchase
$19,256 face amount of the April 2009 Notes, which are convertible into
192,560 shares of Common Stock. Rockmore Capital, LLC (“Rockmore Capital”)
and Rockmore Partners, LLC (“Rockmore Partners”), each a limited liability
company formed under the laws of the State of Delaware, serve as the
investment manager and general partner, respectively, to Rockmore
Investments (US) LP, a Delaware limited partnership, which invests all of
its assets through Rockmore Investment Master Fund Ltd., an exempted
company formed under the laws of Bermuda. By reason of such relationships,
Rockmore Capital and Rockmore Partners may be deemed to share dispositive
power over the shares of Common Stock owned by Rockmore Investment Master
Fund Ltd. Rockmore Capital and Rockmore Partners disclaim beneficial
ownership of such shares of Common Stock. Rockmore Partners has delegated
authority to Rockmore Capital regarding the portfolio management decisions
with respect to the shares of Common Stock owned by Rockmore Investment
Master Fund Ltd. and, as of September 16, 2009, Mr. Bruce T. Bernstein and
Mr. Brian Daly, as officers of Rockmore Capital, are responsible for the
portfolio management decisions of the shares of Common Stock owned by
Rockmore Investment Master Fund Ltd. By reason of such authority, Messrs.
Bernstein and Daly may be deemed to share dispositive power over the
shares of Common Stock owned by Rockmore Investment Master Fund Ltd.
Messrs. Bernstein and Daly disclaim beneficial ownership of such shares of
Common Stock and neither of such persons has any legal right to maintain
such authority. No other person has sole or shared voting or dispositive
power with respect to the shares of Common Stock as those terms are used
for purposes under Regulation 13D-G of the Exchange Act. No person or
“group” (as that term is used in Section 13(d) of the Exchange Act, or the
SEC’s Regulation 13D-G) controls Rockmore Investment Master Fund
Ltd.
|
(17)
|
RRC BioFund, LP has the right to
acquire (setting aside for these purposes the restrictions described in
footnote 1) 1,225,096 shares of Common Stock, comprised of 528,846 shares
of Common Stock and $17,500 of September 2009 Notes, which are convertible
into 175,000 shares of Common Stock. The fund also holds an April 2009
Warrant to purchase 75,000 shares with an exercise price of $0.50 per
share, a July 2009 Warrant to purchase 27,500 shares with an exercise
price of $1.00 per share, which warrant is not exercisable until January
7, 2010, and a September 2009 Warrant to purchase 43,750 shares with an
exercise price of $1.00 per share, which warrant is not exercisable until
March 4, 2010. The fund also has the right, pursuant to a Securities
Purchase Agreement dated April 2, 2009, to purchase an additional $30,000
face amount of the April 2009 Notes, which are convertible into 300,000
shares of Common Stock, and a warrant to purchase 75,000 shares with an
exercise price of $0.50 per share. As manager of RRC Management, LLC, the
sole general partner of RRC BioFund, LP, James A. Silverman has the sole
authority to vote and dispose of all of the shares held by RRC BioFund,
LP.
|
(18)
|
Rodman & Renshaw, LLC is a
broker-dealer under the Exchange
Act.
|
(19)
|
Rodman & Renshaw, LLC has the
right to acquire (setting aside for these purposes the restrictions
described in footnote 1) 12,935,750 shares of Common Stock, comprised of
72,000 shares of Common Stock, $41,554.49 of July 2009 Notes, which are
convertible into 415,545 shares of Common Stock, and $5,625.51 of
September 2009 Notes, which are convertible into 56,255 shares of Common
Stock. They also hold a June 2008 Warrant to purchase 800,000 shares with
an exercise price of $1.00 per share, an April 2009 Warrant to purchase
2,566,000 shares with an exercise price of $0.50 per share, a July 2009
Warrant to purchase 1,827,500 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until January 7, 2010, a July 2009
Warrant to purchase 4,303,886 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010, and a
September 2009 Warrant to purchase 1,814,064 shares with an exercise price
of $1.00 per share, which warrant is not exercisable until March 4, 2010 .
Rodman has the right, pursuant to a Securities Purchase Agreement dated
April 2, 2009, to purchase an additional $30,000 face amount of the April
2009 Notes, which are convertible into 300,000 shares of Common Stock, and
a warrant to purchase 75,000 shares with an exercise price of $0.50 per
share. Rodman also has the right, pursuant to a Consent Agreement dated
April 2, 2009, and amended on May 22, 2009 and July 7, 2009, to purchase
$70,550 face amount of the April 2009 Notes, which are convertible into
705,500 shares of Common Stock. 15,800,000 of the total shares set forth
above were acquired by Rodman & Renshaw, LLC as compensation in
connection with its service as placement agent to the Company for the June
2008 financing, April 2009 financing, July 2009 financing and September
2009 financing. Dave Horin, the Chief Financial Officer of Rodman &
Renshaw, LLC, has sole voting and dispositive power over the shares held
by Rodman & Renshaw,
LLC.
|
(20)
|
MVA Investors LLC, II has the
right to acquire (setting aside for these purposes the restrictions
described in footnote 1) 2,423,691 shares of Common Stock, comprised of
618,815 shares of Common Stock, $111,448.90 of July 2009 Notes, which are
convertible into 1,114,489 shares of Common Stock, and $32,941.16 of
September 2009 Notes, which are convertible into 329,412 shares of Common
Stock. They also hold a July 2009 Warrant to purchase 278,622 shares with
an exercise price of $1.00 per share, which warrant is not exercisable
until March 4, 2010, and a September 2009 Warrant to purchase 82,353
shares with an exercise price of $1.00 per share, which warrant is not
exercisable until March 4, 2010. MVA Investors LLC, II has sole voting and
dispositive power over the Common Stock, the warrants to purchase Common
Stock and the notes convertible into Common Stock owned by it. MVA
Investors LLC, II is the independent, personal investment vehicle of
certain employees of Boxer Capital LLC and Tavistock Life Sciences
Company, which is a Delaware corporation and an affiliate of Boxer Capital
LLC. As such, MVA Investors LLC, II is not controlled by Boxer Capital,
Boxer Asset Management Inc. or Joseph Lewis. Neither Boxer Capital LLC,
Boxer Asset Management Inc. nor Mr. Lewis have any voting or dispositive
power with regard to the Common Shares held by MVA Investors LLC, II.
Investment decisions of MVA Investors LLC, II are made by a majority vote
of its investment committee. The purchase, disposition and voting of all
shares held by MVA Investors LLC, II is controlled by a majority vote of
an investment committee comprised of Shehan Dissanayake, Neil Reisman,
Aaron Davis and Christopher Fuglesang. For additional
information regarding Boxer Capital LLC, see footnote
12.
|
Date of Sale
|
Type of Security
|
Shares of Common
Stock Underlying
Security
|
Closing Price of
Common Stock on
Date of Sale
|
Total Dollar Value of
Common Stock
Underlying Security on
the Date of Sale
|
||||||||||
July
7, 2009
|
July
2009 Notes
|
12,364,495 | $ | 0.39 | $ | 4,822,153.05 | ||||||||
July
7, 2009
|
July
2009 Warrants
|
1,215,000 | $ | 0.39 | $ | 473,850.00 | ||||||||
September
4, 2009
|
July
2009 Notes
|
2,209,646 | $ | 0.40 | $ | 883,858.40 | ||||||||
September
4, 2009
|
September
2009 Notes
|
1,532,500 | $ | 0.40 | $ | 613,000.00 | ||||||||
Total
|
$ | 6,792,861.45 |
Selling Stockholder
|
Total Gross
Proceeds
Payable to
Company (1)
|
Total Maximum
Payments by
Company (2)
|
Net Proceeds to Company (3)
|
|||||||||
Tang
Capital Partners, LP
|
$ | 506,036.40 | (4) | $ | 91,086.55 | (5) | $ | 414,949.85 | ||||
Boxer
Capital LLC
|
$ | 188,000.00 | (6) | $ | 33,840.00 | (7) | $ | 154,160.00 | ||||
Cat
Trail Private Equity Fund, LLC
|
$ | 162,000.00 | (8) | $ | 29,160.00 | (9) | $ | 132,840.00 | ||||
Arcus
Ventures Fund
|
$ | 81,000.00 | (10) | $ | 14,580.00 | (11) | $ | 66,420.00 | ||||
Cranshire
Capital LP
|
$ | 22,000.00 | (12) | $ | 3,960.00 | (13) | $ | 18,040.00 | ||||
Rockmore
Investment Master Fund Ltd.
|
$ | 11,000.00 | (14) | $ | 1,980.00 | (15) | $ | 9,020.00 | ||||
RRC
BioFund, LP
|
$ | 11,000.00 | (14) | $ | 1,980.00 | (15) | $ | 9,020.00 | ||||
Rodman
& Renshaw, LLC
|
$ | 11,000.00 | (14) | $ | 129,432.88 | (16) | $ | 0.00 | ||||
667,
L.P.
|
$ | 31,383.00 | (17) | $ | 5,648.94 | (18) | $ | 25,734.06 | ||||
667,
L.P. #2
|
$ | 38,109.00 | (19) | $ | 6,859.62 | (20) | $ | 31,249.38 | ||||
Baker
Brothers Life Sciences, L.P.
|
$ | 386,358.70 | (21) | $ | 69,544.57 | (22) | $ | 316,814.13 | ||||
14159,
L.P.
|
$ | 9,527.00 | (23) | $ | 1,714.86 | (24) | $ | 7,812.14 | ||||
BAM
Opportunity Fund, LP
|
$ | 153,250.00 | (25) | $ | 24,520.00 | (26) | $ | 128,730.00 | ||||
MVA
Investors II, LLC
|
$ | 0.00 | (27) | $ | 0.00 | $ | 0.00 | |||||
Total
|
$ | 1,314,789.56 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price
of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale
(2)
|
Conversion/
Exercise
Price
of
Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As a
Result
of the
Conversion
/Exercise
Discount
for
the
Security
(3)
|
||||||||||||||||
Tang
Capital Partners, LP
|
July
2009 Notes
|
3,783,309 | $ | 0.39 | (4) | $ | 1,475,490.51 | $ | 378,330.90 | (5) | $ | 1,097,159.61 | ||||||||||
Boxer
Capital LLC
|
July
2009 Notes
|
1,880,000 | $ | 0.39 | (4) | $ | 733,200.00 | $ | 188,000.00 | (5) | $ | 545,200.00 | ||||||||||
Cat
Trail Private Equity Fund, LLC
|
July
2009 Notes
|
1,620,000 | $ | 0.39 | (4) | $ | 631,800.00 | $ | 162,000.00 | (5) | $ | 469,800.00 | ||||||||||
Arcus
Ventures Fund
|
July
2009 Notes
|
810,000 | $ | 0.39 | (4) | $ | 315,900.00 | $ | 81,000.00 | (5) | $ | 234,900.00 | ||||||||||
Cranshire
Capital LP
|
July
2009 Notes
|
220,000 | $ | 0.39 | (4) | $ | 85,800.00 | $ | 22,000.00 | (5) | $ | 63,800.00 | ||||||||||
Rockmore
Investment Master Fund Ltd.
|
July
2009 Notes
|
110,000 | $ | 0.39 | (4) | $ | 42,900.00 | $ | 11,000.00 | (5) | $ | 31,900.00 | ||||||||||
RRC
BioFund, LP
|
July
2009 Notes
|
110,000 | $ | 0.39 | (4) | $ | 42,900.00 | $ | 11,000.00 | (5) | $ | 31,900.00 | ||||||||||
Rodman
& Renshaw, LLC
|
July
2009 Notes
|
110,000 | $ | 0.39 | (4) | $ | 42,900.00 | $ | 11,000.00 | (5) | $ | 31,900.00 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price
of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale
(2)
|
Conversion/
Exercise
Price
of
Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As a
Result
of the
Conversion
/Exercise
Discount
for
the
Security
(3)
|
||||||||||||||||
667,
L.P.
|
July
2009 Notes
|
381,090 | $ | 0.39 | (4) | $ | 148,625.10 | $ | 38,109.00 | (5) | $ | 110,516.10 | ||||||||||
667,
L.P. #2
|
July
2009 Notes
|
313,830 | $ | 0.39 | (4) | $ | 122,393.70 | $ | 31,383.00 | (5) | $ | 91,010.70 | ||||||||||
Baker
Brothers Life Sciences, L.P.
|
July
2009 Notes
|
2,930,996 | $ | 0.39 | (4) | $ | 1,143,088.44 | $ | 293,099.60 | (5) | $ | 849,988.84 | ||||||||||
14159,
L.P.
|
July
2009 Notes
|
95,270 | $ | 0.39 | (4) | $ | 37,155.30 | $ | 9,527.00 | (5) | $ | 27,628.30 | ||||||||||
MVA
Investors II, LLC
|
July
2009 Notes
|
0 | $ | 0.39 | (4) | $ | 0.00 | $ | 0.00 | $ | 0.00 | |||||||||||
Boxer
Capital LLC
|
July
2009 Warrants
|
470,000 | $ | 0.39 | (4) | $ | 183,300.00 | $ | 470,000.00 | (6) | $ | 0.00 | ||||||||||
Cat
Trail Private Equity Fund, LLC
|
July
2009 Warrants
|
405,000 | $ | 0.39 | (4) | $ | 157,950.00 | $ | 405,000.00 | (6) | $ | 0.00 | ||||||||||
Arcus
Ventures Fund
|
July
2009 Warrants
|
202,500 | $ | 0.39 | (4) | $ | 78,975.00 | $ | 202,500.00 | (6) | $ | 0.00 | ||||||||||
Cranshire
Capital LP
|
July
2009 Warrants
|
55,000 | $ | 0.39 | (4) | $ | 21,450.00 | $ | 55,000.00 | (6) | $ | 0.00 | ||||||||||
Rockmore
Investment Master Fund Ltd.
|
July
2009 Warrants
|
27,500 | $ | 0.39 | (4) | $ | 10,725.00 | $ | 27,500.00 | (6) | $ | 0.00 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price
of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale
(2)
|
Conversion/
Exercise
Price
of
Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As a
Result
of the
Conversion
/Exercise
Discount
for
the
Security
(3)
|
||||||||||||||||
RRC
BioFund, LP
|
July
2009 Warrants
|
27,500 | $ | 0.39 | (4) | $ | 10,725.00 | $ | 27,500.00 | (6) | $ | 0.00 | ||||||||||
Rodman
& Renshaw, LLC
|
July
2009 Warrants
|
27,500 | $ | 0.39 | (4) | $ | 10,725.00 | $ | 27,500.00 | (6) | $ | 0.00 | ||||||||||
MVA
Investors II, LLC
|
July
2009 Warrants
|
0 | $ | 0.39 | (4) | $ | 0.00 | $ | 0.00 | $ | 0.00 | |||||||||||
Tang
Capital Partners, LP
|
July
2009 Notes
|
1,277,055 | $ | 0.40 | (7) | $ | 510,822.00 | $ | 127,705.50 | (5) | $ | 383,116.50 | ||||||||||
Baker
Brothers Life Sciences, L.P.
|
July
2009 Notes
|
932,591 | $ | 0.40 | (7) | $ | 373,036.40 | $ | 93,259.10 | (5) | $ | 279,777.30 | ||||||||||
MVA
Investors II, LLC
|
July
2009 Notes
|
0 | $ | 0.40 | (7) | $ | 0.00 | $ | 0.00 | $ | 0.00 | |||||||||||
BAM
Opportunity Fund, L.P.
|
September
2009 Notes
|
1,532,500 | $ | 0.40 | (7) | $ | 613,000.00 | $ | 153,250.00 | (5) | $ | 459,750.00 | ||||||||||
MVA
Investors II, LLC
|
September
2009 Notes
|
0 | $ | 0.40 | (7) | $ | 0.00 | $ | 0.00 | $ | 0.00 | |||||||||||
Total
|
$ | 4,708,347.35 |
|
·
|
stock
splits or combinations of the outstanding shares of our common
stock;
|
|
·
|
dividends
or distributions on our common stock payable in shares of our common stock
to all or substantially all holders of our common
stock;
|
|
·
|
dividends
or distributions on our common stock payable in other than shares of our
common stock to all or substantially all holders of our common
stock;
|
|
·
|
reclassifications,
exchanges or substitutions to our common stock whereby our common stock is
changed to the same or different number of shares or other securities of
any class or classes of stock or other property, other than by way of a
stock split, combination of shares or stock dividends or a reorganization,
merger, consolidation, or sale of
assets;
|
|
·
|
distributions
to all or substantially all holders of our common stock of certain rights
or warrants to purchase or subscribe for shares of our common stock, or
securities convertible into or exchangeable or exercisable for shares of
our common stock, at a price per share that is less than the applicable
conversion price then in effect, or if after any such issuance, the price
per share is amended or adjusted and such price as amended or adjusted is
less than the applicable conversion
price;
|
|
·
|
in
the event of a reorganization, merger, consolidation or sale of assets;
and
|
|
·
|
issuances
or sales by us of additional shares of common stock at a price per share
less than the conversion price then in effect or without
consideration.
|
|
·
|
distribute
shares of common stock in accordance with the second bullet point above,
then we will generally decrease the conversion price then in effect
immediately prior to such event by multiplying the applicable conversion
price then in effect by a fraction the numerator of which shall be the
total number of shares of common stock issued and outstanding immediately
prior to the time of such issuance or the close of business on such record
date and the denominator of which shall be the total number of shares of
common stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of
shares of common stock issuable in payment of such dividend or
distribution.
|
|
·
|
make
distributions or issue dividends in other than shares of common stock in
accordance with the third bullet point above, then, we will make an
appropriate revision to the applicable conversion price and provision will
be made so that upon conversion of the July 2009 Notes and September 2009
Notes, the holders will receive (in addition to the number of shares of
common stock they are entitled to upon conversion) the number of
securities or other property that they would have received had the July
2009 Notes or September 2009 Notes, respectively, been converted into
common stock on the date of such event and had thereafter, during the
period from the date of such event to and including the conversion date,
retained such securities and any distributions or assets, applying all
adjustments called for during such period pursuant to the terms of the
July 2009 Notes and September 2009 Note with respect to the rights of the
holders of the July 2009 Notes and September 2009 Notes; however, if a
record date has been fixed and the dividend is not fully paid or such
distribution is not fully made on the date fixed for such payment or
distribution, then the conversion price will be adjusted as provided in
this bullet point as of the time of actual payment of such dividends or
distributions.
|
|
·
|
make
distributions in accordance with the fifth or seventh bullet point above,
the applicable conversion price upon each such issuance or distribution
shall be reduced to a price equal to the consideration per share paid for
such additional shares of common stock; however, the amount of
consideration received for such additional shares of common stock shall
not include the value of any additional securities or other rights
received in connection with such issuance or distribution of additional
shares of common stock.
|
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale(2)
|
Conversion/Exercise
Price
of Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As
a Result of
the
Conversion
/Exercise
Discount
for the
Security
(3)
|
||||||||||||||||
667,
L.P.
|
June
2008 Notes
|
98,350 | $ | 10.00 | (4) | $ | 983,500.00 | $ | 9,835.00 | (5) (6) | $ | 973,665.00 | ||||||||||
667,
L.P. #2
|
June
2008 Notes
|
78,524 | $ | 10.00 | (4) | $ | 785,240.00 | $ | 7,852.40 | (5) (6) | $ | 777,387.60 | ||||||||||
Baker
Brothers Life Sciences, L.P.
|
June
2008 Notes
|
731,017 | $ | 10.00 | (4) | $ | 7,310,170.00 | $ | 73,101.70 | (5) (6) | $ | 7,237,068.30 | ||||||||||
14159,
L.P.
|
June
2008 Notes
|
22,267 | $ | 10.00 | (4) | $ | 222,670.00 | $ | 2,226.70 | (5) (6) | $ | 220,443.30 | ||||||||||
Boxer
Capital LLC
|
June
2008 Notes
|
383,976 | $ | 10.00 | (4) | $ | 3,839,760.00 | $ | 38,397.60 | (5) (6) | $ | 3,801,362.40 | ||||||||||
Rockmore
Investment Master Fund Ltd.
|
June
2008 Notes
|
8,390 | $ | 10.00 | (4) | $ | 83,900.00 | $ | 839.00 | (5) (6) | $ | 83,061.00 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale(2)
|
Conversion/Exercise
Price
of Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As
a Result of
the
Conversion
/Exercise
Discount
for the
Security
(3)
|
||||||||||||||||
Tang
Capital Partners, LP
|
June
2008 Notes
|
829,376 | $ | 10.00 | (4) | $ | 8,293,760.00 | $ | 82,937.60 | (5) (6) | $ | 8,210,822.40 | ||||||||||
Rodman
& Renshaw, LLC
|
June
2008 Warrants
|
800,000 | $ | 10.00 | (4) | $ | 8,000,000.00 | $ | 800,000.00 | (7) | $ | 7,200,000.00 | ||||||||||
Tang
Capital Partners, LP
|
April
2009 Notes
|
65,946,184 | (8) | $ | 1.16 | (9) | $ | 76,497,573.44 | $ | 6,594,618.40 | (5) | $ | 69,902,955.04 | |||||||||
Baker
Brothers Life Sciences, L.P.
|
April
2009 Notes
|
30,795,100 | (8) | $ | 1.16 | (9) | $ | 35,722,316.00 | $ | 3,079,510.00 | (5) | $ | 32,642,806.00 | |||||||||
667,
L.P.
|
April
2009 Notes
|
5,926,875 | (8) | $ | 1.16 | (9) | $ | 6,875,175.00 | $ | 592,687.50 | (5) | $ | 6,282,487.50 | |||||||||
667,
L.P. #2
|
April
2009 Notes
|
4,843,000 | (8) | $ | 1.16 | (9) | $ | 5,617,880.00 | $ | 484,300.00 | (5) | $ | 5,133,580.00 | |||||||||
14159,
L.P.
|
April
2009 Notes
|
1,469,125 | (8) | $ | 1.16 | (9) | $ | 1,704,185.00 | $ | 146,912.50 | (5) | $ | 1,557,272.50 | |||||||||
BAM
Opportunity Fund, L.P.
|
April
2009 Notes
|
11,876,350 | (8) | $ | 1.16 | (9) | $ | 13,776,566.00 | $ | 1,187,635.00 | (5) | $ | 12,588,931.00 | |||||||||
Boxer
Capital LLC
|
April
2009 Notes
|
19,319,437 | (8) | $ | 1.16 | (9) | $ | 22,410,546.92 | $ | 1,931,943.70 | (5) | $ | 20,478,603.22 | |||||||||
Cat
Trail Private Equity Fund, LLC
|
April
2009 Notes
|
24,562,500 | (8) | $ | 1.16 | (9) | $ | 28,492,500.00 | $ | 2,456,250.00 | (5) | $ | 26,036,250.00 | |||||||||
Arcus
Ventures Fund
|
April
2009 Notes
|
10,593,750 | (8) | $ | 1.16 | (9) | $ | 12,288,750.00 | $ | 1,059,375.00 | (5) | $ | 11,229,375.00 | |||||||||
Cranshire
Capital LP
|
April
2009 Notes
|
600,000 | (8) | $ | 1.16 | (9) | $ | 696,000.00 | $ | 60,000.00 | (5) | $ | 636,000.00 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale(2)
|
Conversion/Exercise
Price
of Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As
a Result of
the
Conversion
/Exercise
Discount
for the
Security
(3)
|
||||||||||||||||
Rockmore
Investment Master Fund Ltd.
|
April
2009 Notes
|
792,560 | (8) | $ | 1.16 | (9) | $ | 919,369.60 | $ | 79,256.00 | (5) | $ | 840,113.60 | |||||||||
RRC
BioFund, LP
|
April
2009 Notes
|
300,000 | (8) | $ | 1.16 | (9) | $ | 348,000.00 | $ | 30,000.00 | (5) | $ | 318,000.00 | |||||||||
Rodman
& Renshaw, LLC
|
April
2009 Notes
|
1,005,500 | (8) | $ | 1.16 | (9) | $ | 1,166,380.00 | $ | 100,550.00 | (5) | $ | 1,065,830.00 | |||||||||
Tang
Capital Partners, LP
|
April
2009 Warrants
|
9,250,000 | (10) | $ | 1.16 | (9) | $ | 10,730,000.00 | $ | 4,625,000.00 | (11) | $ | 6,105,000.00 | |||||||||
667,
L.P.
|
April
2009 Warrants
|
950,000 | (10) | $ | 1.16 | (9) | $ | 1,102,000.00 | $ | 475,000.00 | (11) | $ | 627,000.00 | |||||||||
667,
L.P. #2
|
April
2009 Warrants
|
775,000 | (10) | $ | 1.16 | (9) | $ | 899,000.00 | $ | 387,500.00 | (11) | $ | 511,500.00 | |||||||||
Baker
Brothers Life Sciences, L.P.
|
April
2009 Warrants
|
7,290,000 | (10) | $ | 1.16 | (9) | $ | 8,456,400.00 | $ | 3,645,000.00 | (11) | $ | 4,811,400.00 | |||||||||
14159,
L.P.
|
April
2009 Warrants
|
235,000 | (10) | $ | 1.16 | (9) | $ | 272,600.00 | $ | 117,500.00 | (11) | $ | 155,100.00 | |||||||||
BAM
Opportunity Fund, L.P.
|
April
2009 Warrants
|
4,000,000 | (10) | $ | 1.16 | (9) | $ | 4,640,000.00 | $ | 2,000,000.00 | (11) | $ | 2,640,000.00 | |||||||||
Boxer
Capital LLC
|
April
2009 Warrants
|
2,625,000 | (10) | $ | 1.16 | (9) | $ | 3,045,000.00 | $ | 1,312,500.00 | (11) | $ | 1,732,500.00 | |||||||||
Cat
Trail Private Equity Fund, LLC
|
April
2009 Warrants
|
2,250,000 | (10) | $ | 1.16 | (9) | $ | 2,610,000.00 | $ | 1,125,000.00 | (11) | $ | 1,485,000.00 | |||||||||
Arcus
Ventures Fund
|
April
2009 Warrants
|
562,500 | (10) | $ | 1.16 | (9) | $ | 652,500.00 | $ | 281,250.00 | (11) | $ | 371,250.00 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale(2)
|
Conversion/Exercise
Price
of Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As
a Result of
the
Conversion
/Exercise
Discount
for the
Security
(3)
|
||||||||||||||||
Cranshire
Capital LP
|
April
2009 Warrants
|
300,000 | (10) | $ | 1.16 | (9) | $ | 348,000.00 | $ | 150,000.00 | (11) | $ | 198,000.00 | |||||||||
Rockmore
Investment Master Fund Ltd.
|
April
2009 Warrants
|
150,000 | (10) | $ | 1.16 | (9) | $ | 174,000.00 | $ | 75,000.00 | (11) | $ | 99,000.00 | |||||||||
RRC
BioFund, LP
|
April
2009 Warrants
|
150,000 | (10) | $ | 1.16 | (9) | $ | 174,000.00 | $ | 75,000.00 | (11) | $ | 99,000.00 | |||||||||
Rodman
& Renshaw, LLC
|
April
2009 Warrants
|
2,991,000 | (10) | $ | 1.16 | (9) | $ | 3,469,560.00 | $ | 1,495,500.00 | (11) | $ | 1,974,060.00 | |||||||||
667,
L.P.
|
July
2009 Notes
|
52,340 | $ | 0.38 | (12) | $ | 19,889.20 | $ | 5,234.00 | (5) | $ | 14,655.20 | ||||||||||
Tang
Capital Partners, LP
|
July
2009 Notes
|
2,856,691 | $ | 0.38 | (12) | $ | 1,085,542.58 | $ | 285,669.10 | (5) | $ | 799,873.48 | ||||||||||
Tang
Capital Partners, LP
|
July
2009 Warrants
|
1,660,000 | $ | 0.38 | (12) | $ | 630,800.00 | $ | 1,660,000.00 | (7) | $ | 0 | ||||||||||
667,
L.P.
|
July
2009 Warrants
|
170,000 | $ | 0.38 | (12) | $ | 64,600.00 | $ | 170,000.00 | (7) | $ | 0 | ||||||||||
667,
L.P. #2
|
July
2009 Warrants
|
140,000 | $ | 0.38 | (12) | $ | 53,200.00 | $ | 140,000.00 | (7) | $ | 0 | ||||||||||
Baker
Brothers Life Sciences, L.P.
|
July
2009 Warrants
|
1,307,500 | $ | 0.38 | (12) | $ | 496,850.00 | $ | 1,307,500.00 | (7) | $ | 0 | ||||||||||
14159,
L.P.
|
July
2009 Warrants
|
42,500 | $ | 0.38 | (12) | $ | 16,150.00 | $ | 42,500.00 | (7) | $ | 0 | ||||||||||
BAM
Opportunity Fund, L.P.
|
July
2009 Warrants
|
717,500 | $ | 0.38 | (12) | $ | 272,650.00 | $ | 717,500.00 | (7) | $ | 0 | ||||||||||
Rodman
& Renshaw, LLC
|
July
2009 Warrants
|
1,800,000 | $ | 0.38 | (12) | $ | 684,000.00 | $ | 1,800,000.00 | (7) | $ | 0 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale(2)
|
Conversion/Exercise
Price
of Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As
a Result of
the
Conversion
/Exercise
Discount
for the
Security
(3)
|
||||||||||||||||
Tang
Capital Partners, LP
|
July
2009 Notes
|
15,409,249 | $ | 0.40 | (13) | $ | 6,163,699.60 | $ | 1,540,924.90 | (5) | $ | 4,622,774.70 | ||||||||||
667,
L.P.
|
July
2009 Notes
|
1,256,866 | $ | 0.40 | (13) | $ | 502,746.40 | $ | 125,686.60 | (5) | $ | 377,059.80 | ||||||||||
667,
L.P. #2
|
July
2009 Notes
|
1,024,348 | $ | 0.40 | (13) | $ | 409,739.20 | $ | 102,434.80 | (5) | $ | 307,304.40 | ||||||||||
Baker
Brothers Life Sciences, L.P.
|
July
2009 Notes
|
8,698,397 | $ | 0.40 | (13) | $ | 3,479,358.80 | $ | 869,839.70 | (5) | $ | 2,609,519.10 | ||||||||||
14159,
L.P.
|
July
2009 Notes
|
309,708 | $ | 0.40 | (13) | $ | 123,883.20 | $ | 30,970.80 | (5) | $ | 92,912.40 | ||||||||||
Cat
Trail Private Equity Fund, LLC
|
July
2009 Notes
|
9,166,432 | $ | 0.40 | (13) | $ | 3,666,572.80 | $ | 916,643.20 | (5) | $ | 2,749,929.60 | ||||||||||
Boxer
Capital LLC
|
July
2009 Notes
|
4,698,685 | $ | 0.40 | (13) | $ | 1,879,474.00 | $ | 469,868.50 | (5) | $ | 1,409,605.50 | ||||||||||
MVA
Investors LLC, II
|
July
2009 Notes
|
1,114,489 | $ | 0.40 | (13) | $ | 445,795.60 | $ | 111,448.90 | (5) | $ | 334,346.70 | ||||||||||
Arcus
Ventures Fund
|
July
2009 Notes
|
4,583,216 | $ | 0.40 | (13) | $ | 1,833,286.40 | $ | 458,321.60 | (5) | $ | 1,374,964.80 | ||||||||||
Rodman
& Renshaw, LLC
|
July
2009 Notes
|
415,545 | $ | 0.40 | (13) | $ | 166,218.00 | $ | 41,554.50 | (5) | $ | 124,663.50 | ||||||||||
Rockmore
Investment Master Fund Ltd.
|
July
2009 Notes
|
113,419 | $ | 0.40 | (13) | $ | 45,367.60 | $ | 11,341.90 | (5) | $ | 34,025.70 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale(2)
|
Conversion/Exercise
Price
of Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As
a Result of
the
Conversion
/Exercise
Discount
for the
Security
(3)
|
||||||||||||||||
Tang
Capital Partners, LP
|
July
2009 Warrants
|
4,171,576 | $ | 0.40 | (13) | $ | 1,668,630.40 | $ | 4,171,576.00 | (7) | $ | 0 | ||||||||||
667,
L.P.
|
July
2009 Warrants
|
314,217 | $ | 0.40 | (13) | $ | 125,686.80 | $ | 314,217.00 | (7) | $ | 0 | ||||||||||
667,
L.P. #2
|
July
2009 Warrants
|
256,087 | $ | 0.40 | (13) | $ | 102,434.80 | $ | 256,087.00 | (7) | $ | 0 | ||||||||||
Baker
Brothers Life Sciences, L.P.
|
July
2009 Warrants
|
2,407,747 | $ | 0.40 | (13) | $ | 963,098.80 | $ | 2,407,747.00 | (7) | $ | 0 | ||||||||||
14159,
L.P.
|
July
2009 Warrants
|
77,427 | $ | 0.40 | (13) | $ | 30,970.80 | $ | 77,427.00 | (7) | $ | 0 | ||||||||||
Cat
Trail Private Equity Fund, LLC
|
July
2009 Warrants
|
2,291,608 | $ | 0.40 | (13) | $ | 916,643.20 | $ | 2,291,608.00 | (7) | $ | 0 | ||||||||||
Boxer
Capital LLC
|
July
2009 Warrants
|
1,174,671 | $ | 0.40 | (13) | $ | 469,868.40 | $ | 1,174,671.00 | (7) | $ | 0 | ||||||||||
MVA
Investors LLC, II
|
July
2009 Warrants
|
278,622 | $ | 0.40 | (13) | $ | 111,448.80 | $ | 278,622.00 | (7) | $ | 0 | ||||||||||
Arcus
Ventures Fund
|
July
2009 Warrants
|
1,145,804 | $ | 0.40 | (13) | $ | 458,321.60 | $ | 1,145,804.00 | (7) | $ | 0 | ||||||||||
Rodman
& Renshaw, LLC
|
July
2009 Warrants
|
103,886 | $ | 0.40 | (13) | $ | 41,554.40 | $ | 103,886.00 | (7) | $ | 0 | ||||||||||
Rockmore
Investment Master Fund Ltd.
|
July
2009 Warrants
|
28,355 | $ | 0.40 | (13) | $ | 11,342.00 | $ | 28,355.00 | (7) | $ | 0 | ||||||||||
Tang
Capital Partners, LP
|
September
2009 Notes
|
6,336,147 | $ | 0.40 | (13) | $ | 2,534,458.80 | $ | 633,614.70 | (5) | $ | 1,900,844.10 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale(2)
|
Conversion/Exercise
Price
of Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As
a Result of
the
Conversion
/Exercise
Discount
for the
Security
(3)
|
||||||||||||||||
667,
L.P.
|
September
2009 Notes
|
782,796 | $ | 0.40 | (13) | $ | 313,118.40 | $ | 78,279.60 | (5) | $ | 234,838.80 | ||||||||||
667,
L.P. #2
|
September
2009 Notes
|
637,984 | $ | 0.40 | (13) | $ | 255,193.60 | $ | 63,798.40 | (5) | $ | 191,395.20 | ||||||||||
Baker
Brothers Life Sciences, L.P.
|
September
2009 Notes
|
5,998,361 | $ | 0.40 | (13) | $ | 2,399,344.40 | $ | 599,836.10 | (5) | $ | 1,799,508.30 | ||||||||||
14159,
L.P.
|
September
2009 Notes
|
192,890 | $ | 0.40 | (13) | $ | 77,156.00 | $ | 19,289.00 | (5) | $ | 57,867.00 | ||||||||||
BAM
Opportunity Fund, L.P.
|
September
2009 Notes
|
4,795,000 | $ | 0.40 | (13) | $ | 1,918,000.00 | $ | 479,500.00 | (5) | $ | 1,438,500.00 | ||||||||||
Boxer
Capital LLC
|
September
2009 Notes
|
1,203,715 | $ | 0.40 | (13) | $ | 481,486.00 | $ | 120,371.50 | (5) | $ | 361,114.50 | ||||||||||
Cranshire
Capital LP
|
September
2009 Notes
|
350,000 | $ | 0.40 | (13) | $ | 140,000.00 | $ | 35,000.00 | (5) | $ | 105,000.00 | ||||||||||
Rockmore
Investment Master Fund Ltd.
|
September
2009 Notes
|
142,431 | $ | 0.40 | (13) | $ | 56,972.40 | $ | 14,243.10 | (5) | $ | 42,729.30 | ||||||||||
RRC
BioFund, LP
|
September
2009 Notes
|
175,000 | $ | 0.40 | (13) | $ | 70,000.00 | $ | 17,500.00 | (5) | $ | 52,500.00 | ||||||||||
Rodman
& Renshaw, LLC
|
September
2009 Notes
|
56,255 | $ | 0.40 | (13) | $ | 22,502.00 | $ | 5,625.50 | (5) | $ | 16,876.50 | ||||||||||
MVA
Investors LLC, II
|
September
2009 Notes
|
329,412 | $ | 0.40 | (13) | $ | 131,764.80 | $ | 32,941.20 | (5) | $ | 98,823.60 | ||||||||||
Tang
Capital Partners, LP
|
September
2009 Warrants
|
1,584,037 | $ | 0.40 | (13) | $ | 633,614.80 | $ | 1,584,037.00 | (7) | $ | 0 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale(2)
|
Conversion/Exercise
Price
of Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As
a Result of
the
Conversion
/Exercise
Discount
for the
Security
(3)
|
||||||||||||||||
667,
L.P.
|
September
2009 Warrants
|
195,700 | $ | 0.40 | (13) | $ | 78,280.00 | $ | 195,700.00 | (7) | $ | 0 | ||||||||||
667,
L.P. #2
|
September
2009 Warrants
|
159,496 | $ | 0.40 | (13) | $ | 63,798.40 | $ | 159,496.00 | (7) | $ | 0 | ||||||||||
Baker
Brothers Life Sciences, L.P.
|
September
2009 Warrants
|
1,499,590 | $ | 0.40 | (13) | $ | 599,836.00 | $ | 1,499,590.00 | (7) | $ | 0 | ||||||||||
14159,
L.P.
|
September
2009 Warrants
|
48,223 | $ | 0.40 | (13) | $ | 19,289.20 | $ | 48,223.00 | (7) | $ | 0 | ||||||||||
BAM
Opportunity Fund, L.P.
|
September
2009 Warrants
|
1,198,750 | $ | 0.40 | (13) | $ | 479,500.00 | $ | 1,198,750.00 | (7) | $ | 0 | ||||||||||
Boxer
Capital LLC
|
September
2009 Warrants
|
300,929 | $ | 0.40 | (13) | $ | 120,371.60 | $ | 300,929.00 | (7) | $ | 0 | ||||||||||
Cranshire
Capital LP
|
September
2009 Warrants
|
87,500 | $ | 0.40 | (13) | $ | 35,000.00 | $ | 87,500.00 | (7) | $ | 0 | ||||||||||
Rockmore
Investment Master Fund Ltd.
|
September
2009 Warrants
|
35,608 | $ | 0.40 | (13) | $ | 14,243.20 | $ | 35,608.00 | (7) | $ | 0 | ||||||||||
RRC
BioFund, LP
|
September
2009 Warrants
|
3,750 | $ | 0.40 | (13) | $ | 17,500.00 | $ | 43,750.00 | (7) | $ | 0 | ||||||||||
Rodman
& Renshaw, LLC
|
September
2009 Warrants
|
1,814,064 | $ | 0.40 | (13) | $ | 725,625.60 | $ | 1,814,064.00 | (7) | $ | 0 |
Selling
Stockholder
|
Security
|
Shares
of
Common
Stock
Underlying
Security
(1)
|
Closing
Price
of
Common
Stock
on
Date
of
Sale
|
Market
Price of
Total
Number
of
Shares
Underlying
Security
on
Date
of Sale(2)
|
Conversion/Exercise
Price
of Total
Number
of
Shares
Underlying
Security
|
Total
Potential
Profit
the
Selling
Stockholders
Could
Realize
As
a Result of
the
Conversion
/Exercise
Discount
for the
Security
(3)
|
||||||||||||||||
MVA
Investors LLC, II
|
September
2009 Warrants
|
82,353 | $ | 0.40 | (13) | $ | 32,941.20 | $ | 82,353.00 | (7) | $ | 0 | ||||||||||
Total
|
$ | 259,484,365.84 |
Selling
Stockholder
|
Total Gross
Proceeds
Payable to
Company (1)
|
Total
Maximum
Payments by
Company (2)
|
Net Proceeds to
Company (3)
|
Combined Total Potential Profit to be
Realized by the Selling Stockholders as
Upon the Sale of the July 2009 Notes,
July 2009 Warrants and September
2009 Notes Registered For Resale on this
Registration Statement and Any Other
Convertible Securities Held by the
Selling Stockholders (4) (5)
|
||||||||||||
Tang
Capital Partners, LP
|
$ | 506,036.40 | $ | 91,086.55 | $ | 414,949.85 | $ | 93,022,545.83 | ||||||||
Boxer
Capital LLC
|
$ | 188,000.00 | $ | 33,840.00 | $ | 154,160.00 | $ | 28,328,385.62 | ||||||||
Cat
Trail Private Equity Fund, LLC
|
$ | 162,000.00 | $ | 29,160.00 | $ | 132,840.00 | $ | 30,740,979.60 | ||||||||
Arcus
Ventures Fund
|
$ | 81,000.00 | $ | 14,580.00 | $ | 66,420.00 | $ | 13,210,489.80 | ||||||||
Cranshire
Capital LP
|
$ | 22,000.00 | $ | 3,960.00 | $ | 18,040.00 | $ | 1,002,800.00 | ||||||||
Rockmore
Investment Master Fund Ltd.
|
$ | 11,000.00 | $ | 1,980.00 | $ | 9,020.00 | $ | 1,130,829.60 | ||||||||
RRC
BioFund, LP
|
$ | 11,000.00 | $ | 1,980.00 | $ | 9,020.00 | $ | 501,400.00 | ||||||||
Rodman
& Renshaw, LLC
|
$ | 11,000.00 | $ | 129,432.88 | $ | 0.00 | $ | 10,413,330.00 | ||||||||
667,
L.P.
|
$ | 31,383.00 | $ | 5,648.94 | $ | 25,734.06 | $ | 8,620,222.40 | ||||||||
667,
L.P. #2
|
$ | 38,109.00 | $ | 6,859.62 | $ | 31,249.38 | $ | 7,012,237.90 | ||||||||
Baker
Brothers Life Sciences, L.P.
|
$ | 386,358.70 | $ | 69,544.57 | $ | 316,814.13 | $ | 50,230,067.84 | ||||||||
14159,
L.P.
|
$ | 9,527.00 | $ | 1,714.86 | $ | 7,812.14 | $ | 2,111,223.50 | ||||||||
BAM
Opportunity Fund, LP
|
$ | 153,250.00 | $ | 24,520.00 | $ | 128,730.00 | $ | 17,127,181.00 | ||||||||
MVA Investors LLC, II
|
$ | 0.00 | $ | 0.00 | $ | 0.00 | $ | 433,170.30 | ||||||||
Total
|
$ | 1,314,789.56 | $ | 264,192,713.19 |
Selling
Stockholder
|
Date of the
Transaction
|
Total
Number of
Shares
Outstanding
Prior to the
Transaction
|
Total
Number of
Shares held
by Non-
Affiliates (1)
of the
Company
Prior to the
Transaction
|
Total
Number of
Shares
Issued or
Issuable to
the Selling
Stockholders
in the
Transaction
(2)
|
Shares as
a
Percentage
of Non-
Affiliates
(1)
|
Market
Price Per
Share
Immediately
Prior to the
Transaction
|
Current
Market
Price Per
Share (3)
|
|||||||||||||||||||
Tang
Capital Partners,
LP
|
June
9, 2008
|
734,811 | 732,262 | 27,500,000 | (4) | 2.66 | % | $ | 10.00 | $ | 0.08 | |||||||||||||||
Boxer
Capital LLC
|
June
9, 2008
|
734,811 | 732,262 | 17,500,000 | 4.18 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
Cat
Trail Private Equity Fund, LLC
|
June
9, 2008
|
734,811 | 732,262 | 15,000,000 | 4.88 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
Arcus
Ventures Fund
|
June
9, 2008
|
734,811 | 732,262 | 7,500,000 | 9.76 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
Cranshire
Capital LP
|
June
9, 2008
|
734,811 | 732,262 | 2,500,000 | 29.29 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
Rockmore
Investment Master Fund Ltd.
|
June
9, 2008
|
734,811 | 732,262 | 1,000,000 | 73.23 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
RRC
BioFund, LP
|
June
9, 2008
|
734,811 | 732,262 | 1,000,000 | 73.23 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
Rodman
& Renshaw, LLC
|
June
9, 2008
|
734,811 | 732,262 | 1,000,000 | (5) | 73.23 | % | $ | 10.00 | $ | 0.08 | |||||||||||||||
667,
L.P.
|
June
9, 2008
|
734,811 | 732,262 | 2,050,000 | 35.72 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
667,
L.P. #2
|
June
9, 2008
|
734,811 | 732,262 | 1,680,000 | 43.59 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
Baker
Brothers Life Sciences, L.P.
|
June
9, 2008
|
734,811 | 732,262 | 15,760,000 | 4.65 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
14159, L.P.
|
June 9, 2008
|
734,811 | 732,262 | 510,000 | 143.58 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
Total
|
734,811 | 732,262 | 93,800,000 | (6) | 0.78 | % | $ | 10.00 | $ | 0.08 | ||||||||||||||||
$ | 0.08 | |||||||||||||||||||||||||
Tang
Capital Partners, LP
|
April
2, 2009
|
20,282,825 | 20,268,780 | 23,125,000 | (7) | 87.65 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
Baker
Brothers Life Sciences, L.P.
|
April
2, 2009
|
20,282,825 | 20,268,780 | 18,225,000 | (8) | 111.21 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
667,
L.P.
|
April
2, 2009
|
20,282,825 | 20,268,780 | 2,375,000 | (9) | 853.42 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
667,
L.P. #2
|
April
2, 2009
|
20,282,825 | 20,268,780 | 1,937,500 | (10) | 1046.13 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
14159,
L.P.
|
April
2, 2009
|
20,282,825 | 20,268,780 | 587,500 | (11) | 3450.00 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
BAM
Opportunity Fund, L.P.
|
April
2, 2009
|
20,282,825 | 20,268,780 | 10,000,000 | (12) | 202.69 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
Boxer
Capital LLC
|
April
2, 2009
|
20,282,825 | 20,268,780 | 6,562,500 | (13) | 308.86 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
Cat
Trail Private Equity Fund, LLC
|
April
2, 2009
|
20,282,825 | 20,268,780 | 5,625,000 | (14) | 360.33 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
Arcus
Ventures Fund
|
April
2, 2009
|
20,282,825 | 20,268,780 | 2,812,500 | (15) | 720.67 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
Cranshire
Capital LP
|
April
2, 2009
|
20,282,825 | 20,268,780 | 750,000 | (16) | 2702.50 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
Rockmore
Master Investment Fund Ltd.
|
April
2, 2009
|
20,282,825 | 20,268,780 | 375,000 | (17) | 5405.01 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
RRC
BioFund, LP
|
April
2, 2009
|
20,282,825 | 20,268,780 | 375,000 | (18) | 5405.01 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
Rodman & Renshaw, LLC
|
April 2, 2009
|
20,282,825 | 20,268,780 | 375,000 | (19) | 5405.01 | % | $ | 1.15 | $ | 0.08 | |||||||||||||||
Total
|
20,282,825 | 20,268,780 | 73,125,000 | (20) | 27.72 | % | $ | 1.15 | $ | 0.08 |
Total Number of
Shares Outstanding
Prior to the July
2009 Financing
held by Non-
Affiliates
|
Number of Shares
Registered for
Resale by the
Selling
Stockholders in
Prior Registration
Statements
|
Number of Shares
Registered for
Resale by the
Selling
Stockholders that
Continue to be
Held by the Selling
Stockholder
|
Number of Shares
that have been Sold
in Registered
Resale
Transactions by the
Selling
Stockholders
|
Number of Shares
Registered for
Resale in this
Registration
Statement
|
|||||||||||||||
94,568,797 | 0 | 0 | 0 | 54,713,330 |
|
•
|
Build on our core competitive
strength of oncology development expertise to establish a leadership
position in providing biopharmaceutical products for the treatment of
cancer.
|
|
•
|
Expand our pipeline of products
in two therapeutic categories, DNA/RNA Medicines and Small Molecules,
through internal development, licensing and
acquisitions.
|
|
•
|
Establish our lead antisense
compound, Genasense®, as the preferred chemosensitizing drug for use in
combination with other cancer therapies in a variety of human cancer
types; and
|
|
•
|
Establish a sales and marketing
presence in the U.S. oncology
market.
|
High*
|
Low*
|
|||||||
2007
|
||||||||
First
Quarter
|
$
|
168.00
|
$
|
93.00
|
||||
Second
Quarter
|
$
|
123.00
|
$
|
84.00
|
||||
Third
Quarter
|
$
|
90.00
|
$
|
40.00
|
||||
Fourth
Quarter
|
$
|
65.50
|
$
|
26.00
|
||||
2008
|
||||||||
First
Quarter
|
$
|
43.50
|
$
|
18.50
|
||||
Second
Quarter (through May 7, 2008)
|
$
|
22.50
|
$
|
7.50
|
*
|
all figures have been
retroactively adjusted to reflect a 1-for-50 reverse stock split effected
in June 2009.
|
High*
|
Low*
|
|||||||
2008
|
||||||||
Second
Quarter (from May 7, 2008)
|
$
|
20.50
|
$
|
5.00
|
||||
Third
Quarter
|
$
|
37.50
|
$
|
12.50
|
||||
Fourth
Quarter
|
$
|
20.00
|
$
|
0.135
|
||||
2009
|
||||||||
First
Quarter
|
$
|
15.50
|
$
|
0.145
|
||||
Second
Quarter
|
$
|
1.06
|
$
|
0.27
|
||||
Third
Quarter
|
$
|
1.26
|
$
|
0.34
|
||||
Fourth
Quarter (through December 16, 2009)
|
$
|
1.10
|
$
|
0.08
|
*
|
all figures prior to June 26,
2009 have been retroactively adjusted to reflect a 1-for-50
reverse stock split effected in June
2009.
|
Plan Category
|
Number of
Securities to
Be Issued Upon
Exercise of
Outstanding
Options and
Rights
|
Weighted-Average
Exercise Price of
Outstanding Options
and Rights
|
Number of
Securities
Remaining
Available for
Future Issuance
Under Equity
Compensation
Plans (Excluding
Securities
Reflected in the
First Column)
|
|||||||||
Equity compensation
plans approved by security holders (1)
|
39,594 | $ | 1,053.50 |
(2)
|
3,070 |
(3)
|
||||||
Equity
compensation plans not approved by security holders
|
— | — | ||||||||||
Total
|
39,594 | $ | 1,053.50 | 3,070 |
(1)
|
Consists of the 1998 Stock
Incentive Plan and the Non-Employee Directors’ 1998 Stock Option
Plan.
|
(2)
|
This calculation takes into
account the 5,070 shares of Common Stock subject to outstanding restricted
stock units. Such shares will be issued at the time the restricted stock
units vest, without any cash consideration payable for those shares. If
the calculation did not take into account the 5,070 shares of Common Stock
subject to outstanding restricted stock units, the weighted-average
exercise price of outstanding options would be
$1,188.50.
|
(3)
|
Consists of shares available for
future issuance under the Non-Employee Directors’ 1998 Stock Option
Plan.
|
Nine Months
ended
September 30,
2009
|
Year Ended December 31,
(in thousands except per share amounts)
|
|||||||||||||||||||||||
(Unaudited)
|
2008
|
2007
|
2006
|
2005
|
2004
|
|||||||||||||||||||
Consolidated Statements of
Operations Data :
|
||||||||||||||||||||||||
License
fees & royalties
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
5,241
|
$
|
3,022
|
||||||||||||
Development
funding
|
—
|
—
|
—
|
—
|
20,988
|
12,105
|
||||||||||||||||||
Product
sales — net
|
180
|
363
|
580
|
708
|
356
|
(512
|
)
|
|||||||||||||||||
Total
revenues
|
180
|
363
|
580
|
708
|
26,585
|
14,615
|
||||||||||||||||||
Costs
of goods sold
|
12
|
102
|
90
|
108
|
52
|
170
|
||||||||||||||||||
Provision
for excess inventory
|
—
|
—
|
—
|
—
|
—
|
1,350
|
||||||||||||||||||
Total
cost of goods sold
|
12
|
102
|
90
|
108
|
52
|
1,520
|
||||||||||||||||||
Operating
expenses — gross
|
24,854
|
33,410
|
26,116
|
59,764
|
37,006
|
101,324
|
||||||||||||||||||
sanofi-aventis
reimbursement
|
—
|
—
|
—
|
—
|
(6,090
|
)
|
(43,292
|
)
|
||||||||||||||||
Operating
expenses — net
|
24,854
|
33,410
|
26,116
|
59,764
|
30,916
|
58,032
|
||||||||||||||||||
Gain
on forgiveness of debt
|
—
|
—
|
—
|
—
|
1,297
|
11,495
|
||||||||||||||||||
Amortization
of deferred financing costs and debt discount
|
(22,362
|
)
|
(11,229
|
)
|
—
|
—
|
—
|
—
|
||||||||||||||||
Fair
value — conversion feature liability
|
(19,040
|
)
|
(460,000
|
)
|
—
|
—
|
—
|
—
|
||||||||||||||||
Fair
value — warrant liability
|
(7,655
|
)
|
(2,000
|
)
|
—
|
—
|
—
|
—
|
||||||||||||||||
All
other (expense)/income-net
|
(837
|
)
|
(1,435
|
)
|
836
|
1,454
|
502
|
(147
|
)
|
|||||||||||||||
Loss
before income taxes
|
(74,580
|
)
|
(507,813
|
)
|
(24,790
|
)
|
(57,710
|
)
|
(2,584
|
)
|
(33,589
|
)
|
||||||||||||
Income
tax benefit
|
—
|
1,975
|
1,470
|
929
|
381
|
904
|
||||||||||||||||||
Net
loss
|
$
|
(74,580
|
)
|
$
|
(505,838
|
)
|
$
|
(23,320
|
)
|
$
|
(56,781
|
)
|
$
|
(2,203
|
)
|
$
|
(32,685
|
)
|
||||||
Net
loss per basic and diluted common share *
|
$
|
(0.98
|
)
|
$
|
(455.09
|
)
|
$
|
(39.36
|
)
|
$
|
(125.88
|
)
|
$
|
(6.42
|
)
|
$
|
(122.87
|
)
|
||||||
Shares
used in computing net loss per basic and diluted common
share*
|
75,850
|
1,112
|
592
|
451
|
343
|
266
|
*
|
all figures prior to June 26,
2009 have been retroactively adjusted to reflect a 1-for-50 reverse stock
split effected in June 2009.
|
At
September
30,
2009
(unaudited)
|
At
December 31,
(in
thousands)
|
|||||||||||||||||||||||
2008
|
2007
|
2006
|
2005
|
2004
|
||||||||||||||||||||
Balance
Sheet Data:
|
||||||||||||||||||||||||
Cash,
cash equivalents and marketable securities
|
$
|
7,383
|
$
|
4,908
|
$
|
7,813
|
$
|
29,496
|
$
|
21,282
|
$
|
42,247
|
||||||||||||
Working
capital (deficit)
|
(4,010
|
)
|
(5,220
|
)
|
877
|
12,682
|
11,703
|
(4,269
|
)
|
|||||||||||||||
Total
assets
|
18,853
|
12,693
|
29,293
|
51,778
|
27,386
|
50,532
|
||||||||||||||||||
Total
stockholders’ equity (deficit)
|
3,494
|
(4,864
|
)
|
2,931
|
14,642
|
15,697
|
1,752
|
Sep
30
2009
|
Jun
30
2009
|
Mar
31
2009
|
Dec
31
2008
|
Sep
30
2008
|
June
30
2008
|
Mar
31
2008
|
Dec
31
2007
|
|||||||||||||||||||||||||
Total
revenues
|
$ | 49 | $ | 69 | $ | 62 | $ | — | $ | 115 | $ | 131 | $ | 117 | $ | 266 | ||||||||||||||||
Net
income/(loss)
|
$ | (20,431 | ) | $ | (43,082 | ) | $ | (11,067 | ) | $ | 29,569 | $ | 212,613 | $ | (738,364 | ) | $ | (9,657 | ) | $ | (1,748 | ) | ||||||||||
Net
income/(loss) per basic common share: *
|
$ | (0.15 | ) | $ | (0.63 | ) | $ | (0.61 | ) | $ | 12.90 | $ | 289.22 | $ | (1,004.58 | ) | $ | (14.29 | ) | $ | (2.85 | ) | ||||||||||
Net
income/(loss) per diluted common share: *
|
$ | (0.15 | ) | $ | (0.63 | ) | $ | (0.61 | ) | $ | 1.08 | $ | 5.12 | $ | (1,004.58 | ) | $ | (14.29 | ) | $ | (2.85 | ) | ||||||||||
Shares
used in computing basic per common share amounts: *
|
139,349 | 68,870 | 17,999 | 2,292 | 735 | 735 | 676 | 612 | ||||||||||||||||||||||||
Shares
used in computing diluted per common share amounts: *
|
139,349 | 68,870 | 17,999 | 27,401 | 41,524 | 735 | 676 | 612 |
*
|
all figures prior to June 26,
2009 have been retroactively adjusted to reflect a 1-for-50 reverse stock
split effected in June 2009.
|
($ thousands)
|
2009
|
2008
|
||||||
Product
sales – net
|
$
|
49
|
$
|
115
|
||||
Cost
of goods sold
|
10
|
26
|
||||||
Gross
margin
|
39
|
89
|
||||||
Operating
expenses:
|
||||||||
Research
and development
|
5,874
|
5,255
|
||||||
Selling,
general and administrative
|
8,869
|
2,308
|
||||||
Total
operating expenses
|
14,743
|
7,563
|
||||||
Other
(expense)/income:
|
||||||||
Interest
income and other income/(expense), net
|
(12
|
)
|
56
|
|||||
Interest
expense
|
(265
|
)
|
(769
|
)
|
||||
Amortization
of deferred financing costs and debt discount
|
(5,450
|
)
|
(3,600
|
)
|
||||
Fair
value – conversion feature liability
|
-
|
220,000
|
||||||
Fair
value – warrant liability
|
-
|
4,400
|
||||||
Total
other income/(expense), net
|
(5,727
|
)
|
220,087
|
|||||
Net
loss
|
$
|
(20,431
|
)
|
$
|
212,613
|
($ thousands)
|
2009
|
2008
|
||||||
Product
sales – net
|
$
|
180
|
$
|
363
|
||||
Cost
of goods sold
|
12
|
79
|
||||||
Gross
margin
|
168
|
284
|
||||||
Operating
expenses:
|
||||||||
Research
and development
|
11,846
|
16,146
|
||||||
Selling,
general and administrative
|
13,008
|
8,534
|
||||||
Settlement
of office lease obligation
|
—
|
3,307
|
||||||
Reduction
in liability for settlement of litigation
|
—
|
(340
|
)
|
|||||
Total
operating expenses
|
24,854
|
27,647
|
||||||
Other
(expense)/income:
|
||||||||
Interest
income and other income, net
|
4
|
188
|
||||||
Interest
expense
|
(841
|
)
|
(992
|
)
|
||||
Amortization
of deferred financing costs and debt discount
|
(22,362
|
)
|
(4,441
|
)
|
||||
Fair
value – conversion feature liability
|
(19,040
|
)
|
(500,000
|
)
|
||||
Fair
value – warrant liability
|
(7,655
|
)
|
(2,800
|
)
|
||||
Total
other income/(expense), net
|
(49,894
|
)
|
(508,045
|
)
|
||||
Net
loss
|
$
|
(74,580
|
)
|
$
|
(535,408
|
)
|
·
|
Going
concern. Our
recurring losses from operations and negative cash flows from operations
raise substantial doubt about our ability to continue as a going concern
and as a result, our independent registered public accounting firm
included an explanatory paragraph in its report on our consolidated
financial statement for the year ended December 31, 2008 with respect to
this uncertainty. We have prepared our financial statements on a going
concern basis, which contemplates the realization of assets and the
satisfaction of liabilities and commitments in the normal course of
business. The financial statements do not include any adjustments relating
to the recoverability and classification of recorded asset amounts or
amounts of liabilities that might be necessary should we be unable to
continue in existence.
|
·
|
Revenue
recognition. We
recognize revenue from product sales when title to product and associated
risk of loss has passed to the customer and we are reasonably assured of
collecting payment for the sale. All revenue from product sales are
recorded net of applicable allowances for returns, rebates and other
applicable discounts and allowances. We allow return of our product for up
to twelve months after product
expiration.
|
·
|
Research and
development costs.
All such costs are expensed as incurred, including raw material costs
required to manufacture drugs for clinical
trials.
|
·
|
Estimate of
fair value of convertible notes and warrant. We use a Black-Scholes model to
estimate the fair value of our convertible notes and
warrant.
|
Summary
Operating Results
|
||||||||||||||||||||
For
the years ended December 31,
|
||||||||||||||||||||
($
thousands)
|
$
Change
|
|||||||||||||||||||
2008
|
2007
|
2006
|
‘08 vs. ‘07
|
‘07 vs. ‘06
|
||||||||||||||||
Product
sales - net
|
$
|
363
|
$
|
580
|
$
|
708
|
$
|
(217
|
)
|
$
|
(128
|
)
|
||||||||
Cost
of goods sold
|
102
|
90
|
108
|
12
|
(18
|
)
|
||||||||||||||
Gross
margin
|
261
|
490
|
600
|
(229
|
)
|
(110
|
)
|
|||||||||||||
Operating
expenses:
|
||||||||||||||||||||
Research
and development
|
19,991
|
13,491
|
28,064
|
6,500
|
(14,573
|
)
|
||||||||||||||
Selling,
general and administrative
|
10,452
|
16,865
|
25,152
|
(6,413
|
)
|
(8,287
|
)
|
|||||||||||||
Settlement
of office lease obligation
|
3,307
|
-
|
-
|
3,307
|
-
|
|||||||||||||||
Provision
for settlement of litigation
|
(340
|
)
|
(4,240
|
)
|
5,280
|
3,900
|
(9,520
|
)
|
||||||||||||
Write-off
of prepaid royalty
|
-
|
-
|
1,268
|
-
|
(1,268
|
)
|
||||||||||||||
Total
operating expenses
|
33,410
|
26,116
|
59,764
|
7,294
|
(33,648
|
)
|
||||||||||||||
Other
(expense)/ income, net
|
(1,435
|
)
|
836
|
1,454
|
(2,271
|
)
|
(618
|
)
|
||||||||||||
Amortization
of deferred financing costs and debt discount
|
(11,229
|
)
|
-
|
-
|
(11,229
|
)
|
-
|
|||||||||||||
Fair
value – conversion feature liability
|
(460,000
|
)
|
-
|
-
|
(460,000
|
)
|
-
|
|||||||||||||
Fair
value – warrant liability
|
(2,000
|
)
|
-
|
-
|
(2,000
|
)
|
-
|
|||||||||||||
Loss
before income taxes
|
(507,813
|
)
|
(24,790
|
)
|
(57,710
|
)
|
(483,023
|
)
|
32,920
|
|||||||||||
Income
tax benefit
|
1,975
|
1,470
|
929
|
505
|
541
|
|||||||||||||||
Net
loss
|
$
|
(505,838
|
)
|
$
|
(23,320
|
)
|
$
|
(56,781
|
)
|
$
|
(482,518
|
)
|
$
|
33,461
|
·
|
Going concern. Our
recurring losses from operations and negative cash flows from operations
raise substantial doubt about our ability to continue as a going concern
and as a result, our independent registered public accounting firms
included an explanatory paragraph in their reports on our consolidated
financial statements for the years ended December 31, 2008 and December
31, 2007 with respect to this uncertainty. We have prepared our financial
statements on a going concern basis, which contemplates the realization of
assets and the satisfaction of liabilities and commitments in the normal
course of business. The financial statements do not include any
adjustments relating to the recoverability and classification of recorded
asset amounts or amounts of liabilities that might be necessary should we
be unable to continue in existence.
|
·
|
Revenue recognition. We
recognize revenue from product sales when title to product and associated
risk of loss has passed to the customer and we are reasonably assured of
collecting payment for the sale. All revenue from product sales are
recorded net of applicable allowances for returns, rebates and other
applicable discounts and allowances. We allow return of our product for up
to twelve months after product
expiration.
|
·
|
Research and development
costs. All such costs are expensed as incurred, including raw
material costs required to manufacture drugs for clinical
trials.
|
·
|
Estimate of fair value of
convertible notes and warrant. We use a Black-Scholes model to
estimate the fair value of our convertible notes and
warrant.
|
Total
|
Less than
1 year
|
1 - 3 years
|
3 - 5 years
|
More than
5 years
|
||||||||||||||||
Uncertain
tax positions*
|
$
|
841
|
$
|
841
|
$
|
0
|
$
|
0
|
$
|
0
|
||||||||||
Operating
lease obligations
|
2,859
|
706
|
2,153
|
0
|
0
|
|||||||||||||||
Maturity
of convertible notes
|
15,540
|
0
|
15,540
|
0
|
0
|
|||||||||||||||
License
obligations to Daiichi Sankyo
|
2,125
|
2,125
|
0
|
0
|
0
|
|||||||||||||||
Total
|
$
|
21,365
|
$
|
3,672
|
$
|
17,693
|
$
|
0
|
$
|
0
|
Name
|
Age
|
Position With The
Company
|
||
Raymond
P. Warrell, Jr., M.D.
|
60
|
Chairman
and Chief Executive Officer
|
||
Gary
Siegel
|
51
|
Vice
President, Finance
|
||
Loretta
M. Itri, M.D., F.A.C.P.
|
60
|
President
Pharmaceutical Development and Chief Medical Officer
|
||
W.
Lloyd Sanders
|
48
|
Sr.
Vice President and Chief Operating Officer
|
||
Christopher
P. Parios
|
68
|
Director
|
||
Daniel
D. Von Hoff, M.D.
|
61
|
Director
|
||
Douglass
G. Watson
|
64
|
Director
|
•
|
Providing
a total compensation package which is competitive and therefore, enables
us to attract and retain, high-caliber executive
personnel;
|
•
|
Integrating
compensation programs with our short-term and long-term strategic plan and
business objectives; and
|
•
|
Encouraging
achievement of business objectives and enhancement of stockholder value by
providing executive management long-term incentive through equity
ownership.
|
•
|
Double
trigger. Unlike “single trigger” plans that pay out immediately upon a
change in control, Genta’s severance pay program requires a “double
trigger” — a change in control followed by an involuntary loss of
employment within one year thereafter. This is consistent with the purpose
of the program, which is to provide employees with financial protection
upon loss of employment.
|
•
|
Covered
terminations. Employees may be eligible for payments, if there is either a
workforce reduction or if within one year of a change in control, their
employment is terminated without cause by the
Company.
|
•
|
Severance
payment. Subject to signing a release, eligible terminated employees may
receive severance.
|
•
|
Benefit
continuation. Subject to signing a release, basic health and dental
insurance may be continued following termination of
employment.
|
•
|
Accelerated
vesting of equity awards. Upon a change in control, any unvested equity
awards become vested.
|
Name
and
Principal
Position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock
Awards
($)(1)
|
Option
Awards
($)(1)
|
Non-Equity
Incentive
Plan
Compensation
($)(2)
|
Nonqualified
Deferred
Compensation
earnings ($)(3)
|
All
Other
Compensation
($)
|
Total
($)
|
|||||||||||||||||
Raymond
P. Warrell, Jr. M.D.
|
2008
|
409,662 | — | — | 446,667 | — | — | 31,060 | (4) | 887,389 | ||||||||||||||||
Chairman
and Chief Executive
|
2007
|
480,000 | — | — | 1,139,940 | — | — | 41,096 | (4) | 1,661,036 | ||||||||||||||||
Officer
|
2006
|
460,000 | — | — | 2,743,824 | 50,000 | — | 40,462 | (4) | 3,294,286 | ||||||||||||||||
|
||||||||||||||||||||||||||
Richard
J. Moran (5)
|
2008
|
61,538 | — | — | 28,400 | — | — | 3,077 | (6) | 93,015 | ||||||||||||||||
Senior
Vice President,
|
2007
|
320,000 | — | 10,463 | 29,100 | — | — | 17,261 | (6) | 376,824 | ||||||||||||||||
Chief
Financial Officer and Corporate Secretary
|
2006
|
304,500 | — | — | 35,900 | 100,000 | — | 11,000 | (6) | 451,400 | ||||||||||||||||
|
||||||||||||||||||||||||||
Gary
Siegel
|
2008
|
210,000 | — | 12,551 | 17,278 | — | — | 11,518 | (7) | 251,347 | ||||||||||||||||
Vice
President, Finance
|
2007
|
196,846 | — | — | 32,007 | — | — | 11,250 | (7) | 240,103 | ||||||||||||||||
2006
|
183,750 | — | — | 46,778 | 66,500 | — | 11,000 | (7) | 308,028 | |||||||||||||||||
Loretta
M. Itri, M.D.
|
2008
|
467,500 | — | — | 78,221 | — | — | 20,061 | (8) | 565,782 | ||||||||||||||||
President,
Pharmaceutical
|
2007
|
467,500 | — | — | 459,201 | — | — | 21,836 | (8) | 948,537 | ||||||||||||||||
Development
and
Chief
Medical Officer
|
2006
|
445,200 | — | — | 979,852 | — | — | 19,848 | (8) | 1,444,900 | ||||||||||||||||
W.
Lloyd Sanders
|
2008
|
285,000 | — | 20,396 | 39,100 | — | — | 5,642 | (9) | 350,138 | ||||||||||||||||
Senior
Vice President and
|
2007
|
285,000 | — | — | 39,100 | — | — | 40,405 | (9) | 364,505 | ||||||||||||||||
Chief
Operating Officer
|
2006
|
245,000 | — | — | 36,250 | 78,000 | — | 33,579 | (9) | 392,829 |
(1)
|
The amounts reflect the dollar amount recognized for financial
statement reporting purposes for the years ended December 31, 2008, 2007
and 2006, respectively, in accordance with FAS 123(R). These figures
include amounts from awards granted in 2003, 2004, 2005, 2006 and 2007.
Assumptions used in the calculations of these amounts for the years ended
December 31, 2006, 2007 and 2008, respectively, are in Note 14 of the
Company’s Annual Report on Form 10-K for the year ended December 31,
2008.
|
(2)
|
As described above, no payments
were made for 2007 or 2008 performance under our cash incentive bonus
program.
|
(3)
|
Drs. Warrell and Itri deferred a
portion of their salaries from April 19, 2008 through August 17,
2008.
|
(4)
|
All other compensation for 2008
includes $6,000 for auto allowance, $4,068 for long-term disability
(including $1,139 for income tax gross-up), $9,492 for life insurance
(including $2,657 for income tax gross-up) and $11,500 Company match to
the 401(k) Plan. All other compensation for 2007 includes $6,000 for auto
allowance, $13,419 for long-term disability (including $4,641 for income
tax gross-up), $10,427 for life insurance, (including $3,592 for income
tax gross-up) and $11,250 Company match to the 401(k) Plan. All other
compensation for 2006 includes $6,000 for auto allowance, $13,003 for
long-term disability (including 4,506 for income tax gross-up), $10,459
for life insurance (including $3,624 for income tax gross-up) and $11,000
Company match to the 401(k)
Plan.
|
(5)
|
Mr. Moran retired from Genta
effective February 29, 2008
|
(6)
|
All other compensation for 2008
includes $3,077 Company match to the 401(k) Plan. All other compensation
for 2007 includes $6,011 for life insurance (including $2,011 for income
tax gross-up) and $11,250 Company match to the 401(k) Plan. All other
compensation for 2006 includes $11,000 Company match to 401(k)
Plan.
|
(7)
|
All other compensation for 2008
includes $1,018 for life insurance, (including $313 for income tax
gross-up) and $10,500 Company match to the 401(k) Plan. All other
compensation for 2007 includes $11,250 Company match to the 401(k) Plan.
All other compensation for 2006 includes $11,000 Company match to the
401(k) Plan.
|
(8)
|
All other compensation for 2008
includes $6,605 for long-term disability (including $1,998 for income tax
gross-up), $1,956 for life insurance (including $703 for income tax
gross-up) and $11,500 Company match to the 401(k) Plan. All other
compensation for 2007 includes $6,770 for long-term disability (including
$2,161 for income tax gross-up), $3,816 for life insurance (including
$1,315 for income tax gross-up) and $11,250 Company match to the 401(k)
Plan. All other compensation for 2006 includes $7,028 for long-term
disability, (including $2,421 for income tax gross-up), $1,820 for life
insurance, (including $627 for income tax gross-up) and $11,000 Company
match to the 401(k) Plan.
|
(9)
|
All other compensation for 2008
includes $4,326 for long-term disability (including $1,064 for income tax
gross-up) and $1,316 Company match to the 401(k) Plan. All other
compensation for 2007 includes $4,497 for long-term disability (including
$1,235 for income tax gross-up), $24,658 relocation reimbursement
(including $6,106 for income tax gross-up) and $11,250 Company match to
the 401(k) Plan. All other compensation for 2006 includes $4,370 for
long-term disability, (including $1,108 for income tax gross-up), $19,459
relocation reimbursement (including $4,914 for income tax gross-up) and
$9,750 Company match to the 401(k)
Plan.
|
|
Estimated Future Payouts
Under Non-Equity Incentive
|
Estimated Future Payouts
Under Equity Incentive
Plan Awards (2)
|
All
Other
Stock
Awards:
Number
of Shares
of Stock
or
|
All Other
Option
Awards:
Number of
Securities
Underlying
|
Exercise
Price of
Option
|
Grant Date
Fair Value
of Stock
and Option
|
||||||||||||||||||||||||||||||||||||||
|
Plan Awards (1)
|
Threshold
|
Target
|
Maximum
|
Units
|
Options
|
Awards
|
Awards
|
||||||||||||||||||||||||||||||||||||
Name
|
Grant Date
|
Threshold ($)
|
Target ($)
|
Maximum ($)
|
(# Shares)
|
(# Shares)
|
(# Shares)
|
(#)(3)
|
(#)
|
($/sh)
|
($)
|
|||||||||||||||||||||||||||||||||
Dr.
Warrell
|
|
(4)
|
—
|
3,840
|
5,760
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||||||
Mr.
Moran (3)
|
|
(4)
|
—
|
1,920
|
2,560
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||||||
Mr.
Siegel
|
4/11/2008
|
0
|
1,050
|
1,470
|
0
|
400
|
600
|
800
|
—
|
—
|
16,400
|
|||||||||||||||||||||||||||||||||
Dr.
Itri
|
|
(4)
|
—
|
2,805
|
4,675
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||||||||||
Mr.
Sanders
|
4/11/2008
|
0
|
1,710
|
2,280
|
0
|
600
|
800
|
1,300
|
—
|
—
|
26,650
|
(1)
|
Reflects the range of payouts
targeted for 2008 performance under the Genta Cash Incentive Bonus
Program, which would ordinarily be paid in January 2009; however, no
payments were earned based on 2008 performance.
|
(2)
|
Reflects restricted stock units
awarded in April 2008, which vested 50% on January 15, 2009 and 50% on
June 30, 2009.
|
(3)
|
Mr. Moran retired from Genta
effective February 29, 2008.
|
(4)
|
There were no grants of
plan-based awards during
2008.
|
|
Option Awards
|
Stock Awards
|
||||||||||||||||||||||
Name
|
Number Of
Securities
Underlying
Unexercised
Options
Exercisable
(#)
|
Number Of
Securities
Underlying
Unexercised
Options
Unexercisable
(#(1))
|
Option
Exercise
Price
($)
|
Option
Expiration
Date
|
Number of
Shares or
Units of
Stock
That
Have
Not
Vested
(#)
|
Market
Value of
Shares or
Units of
Stock
That
Have
not
Vested
($)
|
||||||||||||||||||
Dr.
Warrell
|
10,585
|
—
|
800.50
|
10/27/09
|
—
|
—
|
||||||||||||||||||
2,646
|
—
|
800.50
|
02/14/10
|
—
|
—
|
|||||||||||||||||||
1,000
|
—
|
2,390.50
|
01/01/11
|
—
|
—
|
|||||||||||||||||||
1,000
|
—
|
4,110.00
|
01/25/12
|
—
|
—
|
|||||||||||||||||||
1,000
|
—
|
2,358.50
|
01/28/13
|
—
|
—
|
|||||||||||||||||||
—
|
3,333
|
2,964.00
|
05/16/13
|
—
|
—
|
|||||||||||||||||||
250
|
—
|
3,096.00
|
01/04/14
|
—
|
—
|
|||||||||||||||||||
500
|
—
|
486.00
|
01/28/15
|
—
|
—
|
|||||||||||||||||||
2,646
|
—
|
800.50
|
10/28/15
|
—
|
—
|
|||||||||||||||||||
563
|
188
|
615.00
|
01/23/16
|
—
|
—
|
|||||||||||||||||||
1,667
|
1,666
|
648.00
|
03/31/16
|
—
|
—
|
|||||||||||||||||||
167
|
166
|
137.00
|
01/12/07
|
—
|
—
|
|||||||||||||||||||
Mr.
Siegel
|
46
|
—
|
3,015.00
|
05/22/13
|
—
|
—
|
||||||||||||||||||
23
|
—
|
3,096.00
|
01/04/14
|
—
|
—
|
|||||||||||||||||||
33
|
—
|
750.00
|
06/30/14
|
—
|
—
|
|||||||||||||||||||
33
|
—
|
486.00
|
01/07/15
|
—
|
—
|
|||||||||||||||||||
93
|
12
|
282.00
|
04/04/15
|
—
|
—
|
|||||||||||||||||||
25
|
8
|
270.00
|
04/15/15
|
—
|
—
|
|||||||||||||||||||
02
|
8
|
555.00
|
09/19/15
|
—
|
—
|
|||||||||||||||||||
25
|
8
|
615.00
|
01/23/16
|
—
|
—
|
|||||||||||||||||||
8
|
16
|
231.00
|
12/01/16
|
—
|
—
|
|||||||||||||||||||
20
|
20
|
137.00
|
01/12/17
|
—
|
—
|
|||||||||||||||||||
—
|
—
|
—
|
—
|
800
|
(2)
|
108
|
(3)
|
|||||||||||||||||
Dr.
Itri
|
1,000
|
—
|
1,719.00
|
03/28/11
|
—
|
—
|
||||||||||||||||||
133
|
—
|
4,110.00
|
01/25/12
|
—
|
—
|
|||||||||||||||||||
100
|
—
|
2,358.50
|
01/28/13
|
—
|
—
|
|||||||||||||||||||
—
|
1,000
|
3,585.00
|
08/05/13
|
—
|
—
|
|||||||||||||||||||
166
|
—
|
3,096.00
|
01/05/14
|
—
|
—
|
|||||||||||||||||||
100
|
—
|
486.00
|
01/07/15
|
—
|
—
|
|||||||||||||||||||
125
|
41
|
615.00
|
01/23/16
|
—
|
—
|
|||||||||||||||||||
407
|
1,259
|
477.00
|
07/27/16
|
—
|
—
|
|||||||||||||||||||
83
|
83
|
137.00
|
01/12/17
|
—
|
—
|
|||||||||||||||||||
Mr.
Sanders
|
250
|
83
|
543.00
|
01/16/16
|
—
|
—
|
||||||||||||||||||
50
|
50
|
137.00
|
01/12/17
|
—
|
—
|
|||||||||||||||||||
—
|
—
|
—
|
—
|
1,300
|
(2)
|
176
|
(3)
|
(1)
|
Each option will vest in full on
an accelerated basis upon certain changes in control as described in more
detail under the heading “Termination of Employment and Change in Control
Agreements” herein.
|
(2)
|
Reflects restricted stock units
awarded in April 2008, which vested 50% on January 15, 2009 and 50% on
June 30, 2009.
|
|
|
(3)
|
Based on the $0.13 closing price
of our common stock on December 31,
2008.
|
Name
|
Executive
Contributions
in Last FY
($)
|
Registrant
Contributions
in Last FY
($)
|
Aggregate
Earnings in
Last FY
($)
|
Aggregate
Withdrawals/
Distributions
($)
|
Aggregate
Balance at
Last FYE
($)
|
||||||||
(a)
|
(b)
|
(c)
|
(d)
|
(e)
|
(f)
|
||||||||
Dr.
Warrell
|
178,104
|
178,104
|
|||||||||||
Dr.
Itri
|
203,010
|
203,010
|
Name
|
Fees paid ($)
(1)
|
Stock
Awards
($)
|
Option
awards
($) (2)
|
Non-Equity
Incentive Plan
Compensation ($)
|
Change in Pension
Value and Nonqualified
Deferred Compensation
($)
|
All Other
Compensation
($)
|
Total
($)
|
|||||||||||||||||||||
Martin J. Driscoll (3)
|
$
|
38,000
|
-
|
$
|
6,753
|
-
|
-
|
-
|
$
|
44,753
|
||||||||||||||||||
Christopher P. Parios
|
$
|
36,750
|
-
|
$
|
4,267
|
-
|
-
|
-
|
$
|
41,017
|
||||||||||||||||||
Daniel D. Von Hoff, M.D.
|
$
|
27,000
|
-
|
$
|
733
|
-
|
-
|
-
|
$
|
27,733
|
||||||||||||||||||
Douglas G. Watson
|
$
|
43,250
|
-
|
$
|
1,100
|
-
|
-
|
-
|
$
|
44,350
|
|
(1)
|
Reflects the dollar amount earned
by the non-employee Director during 2008. Due to the Company’s inability
to raise capital and in order to conserve cash, only a small portion of
the amounts earned by each Director was paid during 2008. The amount of
fees paid to each Director during 2008 was: Martin J. Driscoll: $2,250;
Christopher P. Parios: $3,750; Daniel D. Von Hoff, M.D.: $3,000; Douglas
G. Watson: $3,750
|
|
(2)
|
Represents the compensation cost
recognized for financial statement purposes for the year ended December
31, 2008, in accordance with Statement of Financial Accounting Standards
No. 123(R) (FAS 123(R)) with respect to the option awards made to the
non-employee Directors, including awards which may have been made in
earlier years. For information regarding assumptions underlying the FAS
123(R) valuation of our equity awards, see Note 15 of the Consolidated
Financial Statements in the Company’s Annual Report on Form 10-K for the
year ended December 31, 2008. As of December 31, 2008, each Director had
the following number of options outstanding, (adjusted for the Company’s
1-for-50 reverse stock split that became effective on June 26, 2009):
Martin J. Driscoll: 363; Christopher P. Parios: 280; Daniel D. Von Hoff:
756; Douglas G. Watson: 647.
|
|
(3)
|
As
of August 26, 2009, Mr. Driscoll is not a member of the Board of
Directors.
|
|
Amount and Nature of Beneficial Ownership
|
|||||||
Name and Address (1)
|
Number of Shares (2)
|
Percent of Class
|
||||||
Raymond
P. Warrell, Jr., M.D.
|
9,590,534 | (3) | 4.999 | % | ||||
Loretta
M. Itri, M.D.
|
9,590,534 | (4) | 4.999 | % | ||||
Richard
J. Moran
|
434 | (5) | * | |||||
Gary
Siegel
|
- | * | ||||||
W.
Lloyd Sanders
|
919 | (6) | * | |||||
Martin
J. Driscoll (7)
|
408 | (6) | * | |||||
Christopher
P. Parios
|
585,658 | (6) | * | |||||
Daniel
D. Von Hoff, M.D.
|
420,658 | (6) | * | |||||
Douglas
G. Watson
|
450,858 | (6) | * | |||||
All
Directors and Executive Officers as a group
|
11,049,111 | (8) | 5.6 | % |
*
|
Less than one percent
(1%).
|
(1)
|
The address of each named holder
is in care of Genta Incorporated, 200 Connell Drive, Berkeley Heights, NJ
07922.
|
(2)
|
Beneficial ownership is
determined in accordance with the rules of the SEC and generally includes
voting or investment power with respect to securities. Shares of common
stock subject to options exercisable within 60 days of December 16, 2009
or issuable on conversion of Senior Secured Convertible Promissory Notes
due June 9, 2010 are deemed outstanding for computing the percentage of
the person holding such securities but are not deemed outstanding for
computing the percentage of any other person. Except as indicated by
footnote, and subject to community property laws where applicable, the
person named in the table has sole voting and investment power with
respect to all shares of common stock shown as beneficially owned by
them.
|
(3)
|
Consists
of 486,380 shares of common stock held in Dr. Warrell’s IRA and 943,978
shares of common stock held in a joint account with Dr. Warrell’s wife,
Dr. Itri. Dr. Warrell indirectly owns 3,114,224 shares held in Dr.
Itri’s IRA, of which Dr. Warrell is the beneficiary. Also includes
5,045,952 shares of common stock issuable upon the conversion of Senior
Secured Convertible Promissory Notes due June 9,
2010.
|
(4)
|
Consists
of 943,978 shares of common stock held in a joint account with Dr. Warrell
and 3,114,224 shares held in Dr. Itri’s IRA. Dr. Itri indirectly
owns 486,380 shares of common stock held in Dr. Warrell’s IRA, of which
Dr. Itri is the beneficiary. Also includes 5,045,952 shares of common
stock issuable upon the conversion of Senior Secured Convertible
Promissory Notes due June 9, 2010
|
(5)
|
Consists of 433 shares of common
stock and 1 share of common stock owned by Mr. Moran’s wife. Mr. Moran
retired from the Company in February
2008.
|
(6)
|
Consists
of shares of common stock
|
(7)
|
As of August 26, 2009, Mr.
Driscoll is not a member of the Board of
Directors
|
(8)
|
Consists of 6,003,159 shares of
common stock and 5,045,952 shares of common stock issuable upon the
conversion of Senior Secured Convertible Promissory Notes due June 9,
2010.
|
|
Amount and Nature of Beneficial Ownership
|
|||||||
Name and Address
|
Number of Shares
|
Percent of Class
|
||||||
Tang
Capital Partners, LP
4401
Eastgate Mall
San
Diego, CA 92121
|
19,477,127 | (1) | 9.9 | % | ||||
BAM
Opportunity Fund, L.P.
|
14,383,626 | (2) | 7.2 | % | ||||
Felix
J. Baker and Julian C. Baker
|
19,179,170 | (3) | 9.9 | % | ||||
Arcus
Ventures Fund, L.P.
|
14,171,842 | (4) | 7.1 | % | ||||
Cat
Trail Private Equity Fund, LLC
|
19,179,170 | (5) | 9.9 | % | ||||
Boxer
Capital LLC
|
15,491,026 | (6) | 7.7 | % |
(1)
|
Tang Capital Partners, LP is the
beneficial owner of 19,477,127 shares of Common Stock, comprised of
16,497,257 shares of Common Stock, $86,047.74 face amount of the June 2008
Notes, which are convertible into 860,478 shares of Common Stock,
$1,911,666.67 face amount of the April 2009 Notes, which are convertible
into 19,116,667 shares of Common Stock, $1,954,299.48 face amount of July
2009 Notes, which are convertible into 19,542,995 shares of Common Stock,
and $633,614.68 face amount of September 2009 Notes, which are convertible
into 6,336,147 shares of Common Stock. Additionally, Tang Capital
Partners, LP holds an April 2009 Warrant to purchase 4,625,000 shares of
the Issuer’s Common Stock at an exercise price of $0.50 per share, July
2009 Warrants to purchase 5,831,576 shares of the Issuer’s Common Stock at
an exercise price of $1.00 per share and a September 2009 Warrant to
purchase 1,584,037 shares of the Issuer’s Common Stock at an exercise
price of $1.00 per share. Tang Capital Partners, LP also has the
right, pursuant to a Securities Purchase Agreement dated April 2, 2009, to
purchase an additional $1,850,000.00 face amount of the April 2009 Notes,
which are convertible into 18,500,000 shares of Common Stock, and a
warrant to purchase 4,625,000 shares at an exercise price of $0.50 per
share. Tang Capital Partners LP also has the right, pursuant to a
Consent Agreement dated April 2, 2009, and amended on May 22, 2009 and
July 7, 2009, to purchase $2,832,951.79 face amount of the April 2009
Notes, which are convertible into 28,329,518 shares of Common Stock.
The June 2008 Notes and the April 2009 Notes can only be converted to the
extent that, after such conversion, the Reporting Persons would
beneficially own no more than 4.999% of the Issuer’s Common Stock.
The July 2009 Notes and the September 2009 Notes can only be converted to
the extent that, after such conversion, the Reporting Persons would
beneficially own no more than 9.999% of the Issuer’s Common Stock.
The July 2009 Warrants are not exercisable until after January 7, 2010 and
March 4, 2010, respectively, and the September 2009 Warrants are not
exercisable until after March 4, 2010, and after each such date, the
warrants are only exercisable to the extent that, after such exercise, the
Reporting Persons would beneficially own no more than 4.999% of the
Issuer’s Common Stock. Additionally, the July 2009 Notes and the
September 2009 Notes can only be converted beginning the earlier of (i)
two weeks from the effectiveness of a resale registration statement
registering the common stock underlying such notes and (ii) the date that
is six months following the issuance date. The beneficial ownership
total assumes that this registration statement has been declared effective
and the July 2009 Notes and the September 2009 Notes are currently
convertible according to their respective terms. Tang Capital Partners
shares voting and dispositive power over such shares, notes and warrants
with Tang Capital Management and Kevin C. Tang. Tang Capital
Management, as the general partner of Tang Capital Partners, may be deemed
to beneficially own the shares held or acquirable by Tang Capital
Partners. Tang Capital Management shares voting and dispositive
power over such shares with Tang Capital Partners and Kevin C. Tang.
Kevin C. Tang, as manager of Tang Capital Management, may be deemed to
beneficially own the shares held or acquirable by Tang Capital
Partners. Mr. Tang shares voting and dispositive power over such
shares with Tang Capital Partners and Tang Capital Management. Mr.
Tang disclaims beneficial ownership of all shares reported herein except
to the extent of his pecuniary interest
therein.
|
(2)
|
The BAM Opportunity Fund, L.P. is
the beneficial owner of 14,383,626 shares of Common Stock, comprised of
6,157,564 shares of Common Stock, $18,254.50 of the April 2009 Notes,
which are convertible into 182,545 shares of Common Stock, and $479,500 of
September 2009 Notes, which are convertible into 4,795,000 shares of
Common Stock. The fund also holds a July 2009 Warrant to purchase 717,500
shares with an exercise price of $1.00 per share, which warrant is not
exercisable until January 7, 2010, and a September 2009 Warrant to
purchase 1,198,750 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010. The fund also has the
right, pursuant to a Securities Purchase Agreement dated April 2, 2009, to
purchase an additional $800,000 face amount of the April 2009 Notes, which
are convertible into 8,000,000 shares of Common Stock, and a warrant to
purchase 2,000,000 shares with an exercise price of $0.50 per share. The
April 2009 Notes can only be converted to the extent that, after such
conversion, the Reporting Persons would beneficially own no more than
4.999% of the Issuer’s Common Stock. The September 2009 Notes can
only be converted to the extent that, after such conversion, the Reporting
Persons would beneficially own no more than 9.999% of the Issuer’s Common
Stock. The July 2009 Warrants are not exercisable until after
January 7, 2010, and the September 2009 Warrants are not exercisable until
after March 4, 2010, and after each such date, the warrants are only
exercisable to the extent that, after such exercise, the Reporting Persons
would beneficially own no more than 4.999% of the Issuer’s Common
Stock. Additionally, the September 2009 Notes can only be converted
beginning the earlier of (i) two weeks from the effectiveness of a resale
registration statement registering the common stock underlying such notes
and (ii) the date that is six months following the issuance date.
The beneficial ownership total assumes that this registration statement
has been declared effective and the September 2009 Notes are currently
convertible according to their respective terms. The BAM Opportunity Fund,
L.P. is a private investment partnership, the sole general partner of
which is BAM Capital, LLC. As the sole general partner, BAM Capital, LLC
has the power to vote and dispose of the Common Stock owned by the BAM
Opportunity Fund, L.P. and, accordingly, may be deemed the “beneficial
owner” of such Common Stock. As the investment manager of the BAM
Opportunity Fund, L.P., BAM Management, LLC has the power to vote and
dispose of the Common Stock owned by the BAM Opportunity Fund, L.P. and,
accordingly, may be deemed the “beneficial owner” of such Common Stock.
The managing members of BAM Capital, LLC and BAM Management, LLC are Hal
Mintz and Ross Berman. Each of BAM Capital, LLC, BAM Management, LLC, Hal
Mintz and Ross Berman disclaims beneficial ownership of all shares of
Common Stock held or acquirable by the BAM Opportunity Fund, L.P., except
to the extent of their pecuniary interest
therein.
|
(3)
|
667, L.P., 667, L.P. #2, Baker
Brothers Life Sciences, L.P. and 14159, L.P. (collectively, the “Baker
Bros. Affiliates”) are the beneficial owners of a total of 19,179,170
shares of Common Stock which are held as set forth below. .
667, L.P.: 9,545,699 shares of Common Stock, comprised of 1,551,822 shares
of Common Stock, $9,835.03 of the June 2008 Notes, which are convertible
into 98,350 shares of Common Stock, $196,333.33 of the April 2009 Notes,
which are convertible into 1,963,333 shares of Common Stock, $162,303.62
of July 2009 Notes, which are convertible into 1,623,036 shares of Common
Stock, and $78,279.60 of September 2009 Notes, which are convertible into
782,796 shares of Common Stock. The fund also holds an April 2009 Warrant
to purchase 475,000 shares with an exercise price of $0.50 per share, a
July 2009 Warrant to purchase 170,000 shares with an exercise price of
$1.00 per share, which warrant is not exercisable until January 7, 2010, a
July 2009 Warrant to purchase 314,217 shares with an exercise price of
$1.00 per share, which warrant is not exercisable until March 4, 2010, and
a September 2009 Warrant to purchase 195,700 shares with an exercise price
of $1.00 per share, which warrant is not exercisable until March 4, 2010.
The fund also has the right, pursuant to a Securities Purchase
Agreement dated April 2, 2009, to purchase an additional $190,000.00 face
amount of the April 2009 Notes, which are convertible into 1,900,000
shares of Common Stock, and a warrant to purchase 475,000 shares with an
exercise price of $0.50 per share. The fund also has the right,
pursuant to a Consent Agreement dated April 2, 2009, and amended on May
22, 2009 and July 7, 2009, to purchase $212,687.50 face amount of the
April 2009 Notes, which are convertible into 2,126,875 shares of Common
Stock. 667, L.P. #2: 7,661,357 shares of Common Stock, comprised of
1,262,179 shares of Common Stock, $7,852.39 of the June 2008 Notes, which
are convertible into 78,524 shares of Common Stock, $160,166.07 of the
April 2009 Notes, which are convertible into 1,601,667 shares of Common
Stock, $120,325.80 of July 2009 Notes, which are convertible into
1,203,258 shares of Common Stock, and $63,798.40 of September 2009 Notes,
which are convertible into 637,984 shares of Common Stock. The fund also
holds an April 2009 Warrant to purchase 387,500 shares with an exercise
price of $0.50 per share, a July 2009 Warrant to purchase 140,000 shares
with an exercise price of $1.00 per share, which warrant is not
exercisable until January 7, 2010, a July 2009 Warrant to purchase 256,087
shares with an exercise price of $1.00 per share, which warrant is not
exercisable until March 4, 2010, and a September 2009 Warrant to purchase
159,496 shares with an exercise price of $1.00 per share, which warrant is
not exercisable until March 4, 2010. The fund also has the right, pursuant
to a Securities Purchase Agreement dated April 2, 2009, to purchase an
additional $155,000.00 face amount of the April 2009 Notes, which are
convertible into 1,550,000 shares of Common Stock, and a warrant to
purchase 387,500 shares with an exercise price of $0.50 per share.
The fund also has the right, pursuant to a Consent Agreement dated April
2, 2009, and amended on May 22, 2009 and July 7, 2009, to purchase
$174,300 face amount of the April 2009 Notes, which are convertible into
1,743,000 shares of Common Stock. Baker Brothers Life Sciences L.P.:
93,416,380 shares of Common Stock, comprised of 11,882,595 shares of
Common Stock, $73,101.63 of the June 2008 Notes, which are convertible
into 731,017 shares of Common Stock, $1,506,600 of the April 2009 Notes,
which are convertible into 15,066,000 shares of Common Stock,
$1,192,999.17 of July 2009 Notes, which are convertible into 11,929,992
shares of Common Stock, and $599,836.10 of September 2009 Notes, which are
convertible into 5,998,361 shares of Common Stock. The fund also holds an
April 2009 Warrant to purchase 3,645,000 shares with an exercise price of
$0.50 per share, a July 2009 Warrant to purchase 1,307,500 shares with an
exercise price of $1.00 per share, which warrant is not exercisable until
January 7, 2010, a July 2009 Warrant to purchase 2,407,747 shares with an
exercise price of $1.00 per share, which warrant is not exercisable until
March 4, 2010, and a September 2009 Warrant to purchase 1,499,590 shares
with an exercise price of $1.00 per share, which warrant is not
exercisable until March 4, 2010. The fund also has the right, pursuant to
a Securities Purchase Agreement dated April 2, 2009, to purchase an
additional $1,458,000.00 face amount of the April 2009 Notes, which are
convertible into 14,580,000 shares of Common Stock, and a warrant to
purchase 3,645,000 shares with an exercise price of $0.50 per share. The
fund also has the right, pursuant to a Consent Agreement dated April 2,
2009, and amended on May 22, 2009 and July 7, 2009, to purchase $1,635,100
face amount of the April 2009 Notes, which are convertible into 16,351,000
shares of Common Stock. 14159, L.P.: 2,338,925 shares of Common
Stock, comprised of 381,318 shares of Common Stock, $2,226.62 of the June
2008 Notes, which are convertible into 22,267 shares of Common Stock,
$48,566.67 of the April 2009 Notes, which are convertible into 485,667
shares of Common Stock, $38,443.80 of July 2009 Notes, which are
convertible into 384,438 shares of Common Stock, and $19,288.96 of
September 2009 Notes, which are convertible into 192,890 shares of Common
Stock. The fund also holds an April 2009 Warrant to purchase 117,500
shares with an exercise price of $0.50 per share, a July 2009 Warrant to
purchase 42,500 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until January 7, 2010, a July 2009 Warrant to
purchase 77,427 shares with an exercise price of $1.00 per share, which
warrant is not exercisable until March 4, 2010, and a September 2009
Warrant to purchase 48,223 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010. The
fund also has the right, pursuant to a Securities Purchase Agreement dated
April 2, 2009, to purchase an additional $47,000.00 face amount of the
April 2009 Notes, which are convertible into 470,000 shares of Common
Stock, and a warrant to purchase 117,500 shares with an exercise price of
$0.50 per share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $52,912.50 face amount of the April 2009 Notes, which
are convertible into 529,125 shares of Common Stock. The June 2008
Notes and the April 2009 Notes can only be converted to the extent that,
after such conversion, the Reporting Persons would beneficially own no
more than 4.999% of the Issuer’s Common Stock. The July 2009 Notes
and the September 2009 Notes can only be converted to the extent that,
after such conversion, the Reporting Persons would beneficially own no
more than 9.999% of the Issuer’s Common Stock. The July 2009
Warrants are not exercisable until after January 7, 2010 and March 4,
2010, respectively, and the September 2009 Warrants are not exercisable
until after March 4, 2010, and after each such date, the warrants are only
exercisable to the extent that, after such exercise, the Reporting Persons
would beneficially own no more than 4.999% of the Issuer’s Common
Stock. Additionally, the July 2009 Notes and the September 2009
Notes can only be converted beginning the earlier of (i) two weeks from
the effectiveness of a resale registration statement registering the
common stock underlying such notes and (ii) the date that is six months
following the issuance date. The beneficial ownership total assumes
that this registration statement has been declared effective and the July
2009 Notes and the September 2009 Notes are currently convertible
according to their respective terms. By virtue of their ownership of
entities that have the power to control the investment decisions of the
Baker Bros. Affiliates, Felix J. Baker and Julian C. Baker may each be
deemed to be beneficial owners of shares held or acquirable
by the Baker Bros Affiliates and may be deemed to have
shared power to vote or direct the vote of and shared power to dispose or
direct the disposition of such
securities.
|
(4)
|
Arcus Ventures Fund is the
beneficial owner of 14,171,842 shares of Common Stock. The fund owns
5,920,156 shares of Common Stock and $458,321.61 of July 2009 Notes, which
are convertible into 4,583,216 shares of Common Stock. The fund also holds
an April 2009 Warrant to purchase 562,500 shares of Common Stock with an
exercise price of $0.50 per share, a July 2009 Warrant to purchase 202,500
shares with an exercise price of $1.00 per share, which warrant is not
exercisable until January 7, 2010, and a July 2009 Warrant to purchase
1,145,804 shares with an exercise price of $1.00 per share, which warrant
is not exercisable until March 4, 2010. The fund also has the right,
pursuant to a Securities Purchase Agreement dated April 2, 2009, to
purchase an additional $225,000 face amount of the April 2009 Notes, which
are convertible into 2,250,000 shares of Common Stock, and a warrant to
purchase 562,500 shares with an exercise price of $0.50 per share. The
fund also has the right, pursuant to a Consent Agreement dated April 2,
2009, and amended on May 22, 2009 and July 7, 2009, to purchase $778,125
face amount of the April 2009 Notes, which are convertible into 7,781,250
shares of Common Stock. The June 2008 Notes and the April 2009 Notes can
only be converted to the extent that, after such conversion, the Reporting
Persons would beneficially own no more than 4.999% of the Issuer’s Common
Stock. The July 2009 Notes can only be converted to the extent that,
after such conversion, the Reporting Persons would beneficially own no
more than 9.999% of the Issuer’s Common Stock. The July 2009
Warrants are not exercisable until after January 7, 2010 and March 4,
2010, respectively, after each such date, the warrants are only
exercisable to the extent that, after such exercise, the Reporting Persons
would beneficially own no more than 4.999% of the Issuer’s Common
Stock. Additionally, the July 2009 Notes can only be converted
beginning the earlier of (i) two weeks from the effectiveness of a resale
registration statement registering the common stock underlying such notes
and (ii) the date that is six months following the issuance date.
The beneficial ownership total assumes that this registration statement
has been declared effective and the July 2009 Notes are currently
convertible according to their respective terms. As the general partner of
Arcus Ventures Fund, Arcus Ventures Management, LLC may be deemed to be
the beneficial owner of the shares held or acquirable by the fund. As
members of Arcus Ventures Management, LLC, James B. Dougherty and Steven
Soignet may be deemed to be the beneficial owners of the shares held or
acquirable by the fund. Each of Messrs. Dougherty and Soignet disclaims
beneficial ownership of the shares of Common Stock held or acquirable by
the fund, except to the extent of his pecuniary interest
therein.
|
(5)
|
Cat Trail Private Equity Fund,
LLC is the beneficial owner of 19,179,170 shares of Common Stock,
comprised of 4,616,163 shares of Common Stock and $450,000 face amount of
April 2009 Notes, which are convertible into 4,500,000 shares of Common
Stock, and $1,078,643.21 face amount of July 2009 Notes, which are
convertible into 10,786,432 shares of Common Stock. The fund also holds an
April 2009 Warrant to purchase 1,125,000 shares with an exercise price of
$0.50 per share, a July 2009 Warrant to purchase 405,000 shares with an
exercise price of $1.00 per share, which warrant is not exercisable until
January 7, 2010, and a July 2009 Warrant to purchase 2,291,608 shares with
an exercise price of $1.00 per share, which warrant is not exercisable
until March 4, 2010. The fund also has the right, pursuant to a Securities
Purchase Agreement dated April 2, 2009, to purchase an additional $450,000
face amount of the April 2009 Notes, which are convertible into 4,500,000
shares of Common Stock, and a warrant to purchase 1,125,000 shares with an
exercise price of $0.50 per share. The fund also has the right, pursuant
to a Consent Agreement dated April 2, 2009, and amended on May 22, 2009
and July 7, 2009, to purchase $1,556,250 face amount of the April 2009
Notes, which are convertible into 15,562,500 shares of Common Stock. The
April 2009 Notes can only be converted to the extent that, after such
conversion, the Reporting Persons would beneficially own no more than
4.999% of the Issuer’s Common Stock. The July 2009 Notes can only be
converted to the extent that, after such conversion, the Reporting Persons
would beneficially own no more than 9.999% of the Issuer’s Common
Stock. The July 2009 Warrants are not exercisable until after
January 7, 2010 and March 4, 2010, respectively, and after each such date,
the warrants are only exercisable to the extent that, after such exercise,
the Reporting Persons would beneficially own no more than 4.999% of the
Issuer’s Common Stock. Additionally, the July 2009 Notes can only be
converted beginning the earlier of (i) two weeks from the effectiveness of
a resale registration statement registering the common stock underlying
such notes and (ii) the date that is six months following the issuance
date. The beneficial ownership total assumes that this registration
statement has been declared effective and the July 2009 Notes are
currently convertible according to their respective terms. David
Dekker, as the managing member of Cat Trail Private Equity, LLC, may be
deemed to beneficially own the shares of Common Stock held or acquirable
by Cat Trail Private Equity, LLC. Mr. Dekker shares voting and dispositive
power over such shares with Cat Trail Private Equity, LLC. Mr. Dekker
disclaims beneficial ownership of all shares reported herein except to the
extent of his pecuniary interest
therein.
|
(6)
|
Boxer Capital LLC is the
beneficial owner of 15,491,026 shares of Common Stock, comprised of
5,221,907 shares of Common Stock, $52,500 face amount of April 2009 Notes,
which are convertible into 525,000 shares of Common Stock, $469,868.53 of
July 2009 Notes, which are convertible into 4,698,685 shares of Common
Stock, and $120,371.47 of September 2009 Notes, which are convertible into
1,203,715 shares of Common Stock. The fund also holds a July 2009 Warrant
to purchase 470,000 shares with an exercise price of $1.00 per share,
which warrant is not exercisable until January 7, 2010, a July 2009
Warrant to purchase 1,174,671 shares with an exercise price of $1.00 per
share, which warrant is not exercisable until March 4, 2010, and a
September 2009 Warrant to purchase 300,929 shares with an exercise price
of $1.00 per share, which warrant is not exercisable until March 4, 2010.
The fund also has the right, pursuant to a Securities Purchase Agreement
dated April 2, 2009, to purchase an additional $525,000 face amount of the
April 2009 Notes, which are convertible into 5,250,000 shares of Common
Stock, and a warrant to purchase 1,312,500 shares with an exercise price
of $0.50 per share. The fund also has the right, pursuant to a Consent
Agreement dated April 2, 2009, and amended on May 22, 2009 and July 7,
2009, to purchase $986,943.70 face amount of the April 2009 Notes, which
are convertible into 9,869,437 shares of Common Stock. Each of the April
2009 Notes, April 2009 Warrant, July 2009 Warrant and September 2009
Warrant contains a limitation on conversion/exercise which prevents the
Reporting Persons from such conversion/exercise if, after giving effect to
the conversion/exercise, the Reporting Persons would in the aggregate
beneficially own more than 4.999% of the outstanding shares of Common
Stock. Additionally, the July 2009 Notes and the September 2009
Notes can only be converted beginning the earlier of (i) two weeks from
the effectiveness of a resale registration statement registering the
common stock underlying such notes and (ii) the date that is six months
following the issuance date. The beneficial ownership total column
assumes that this registration statement has been declared effective and
the July 2009 Notes and the September 2009 Notes are currently convertible
according to their respective terms. Boxer Asset Management Inc. is the
managing member and majority owner of Boxer Capital LLC. Joseph Lewis is
the sole indirect owner and controls Boxer Asset Management Inc. Boxer
Capital LLC has shared voting and dispositive power with regard to the
Common Stock, the warrants to purchase Common Stock, and the notes
convertible into shares of Common Stock it owns directly. Boxer
Asset Management Inc. and Joseph Lewis each have shared voting and
dispositive power with regard to the Common Stock owned directly by Boxer
Capital LLC. MVA Investors LLC, II is the independent,
personal investment vehicle of certain employees of Boxer Capital LLC and
Tavistock Life Sciences Company, which is a Delaware corporation and an
affiliate of Boxer Capital LLC. Investment decisions of Boxer Capital LLC
are made by a majority vote of its investment committee. As such,
MVA Investors LLC, II is not controlled by Boxer Capital LLC, Boxer Asset
Management Inc. or Joseph Lewis. MVA Investors LLC, II has
sole voting and dispositive power over the Common Stock, the warrants to
purchase Common Stock and the notes convertible into Common Stock owned by
it. Neither Boxer Capital LLC, Boxer Asset Management Inc. nor Mr. Lewis
have any voting or dispositive power with regard to the Common Shares held
by MVA Investors LLC, II. For more information regarding MVA
Investors LLC, II, see footnote 19 to the Selling Stockholder
table.
|
|
•
|
1%
of the total number of shares of the same class then outstanding, which
will equal approximately 1,822,019 shares immediately after this offering;
or
|
|
•
|
the average weekly trading volume
of such shares during the four calendar weeks preceding the filing of a
notice on Form 144 with respect to such
sale.
|
•
|
the corporation has elected in
its certificate of incorporation not to be governed by Section 203 (we
have not made such an
election);
|
•
|
either the business combination
or the transaction which resulted in the stockholder becoming an
interested stockholder was approved by the board of directors of the
corporation before the other party to the business combination became an
interested stockholder;
|
•
|
upon consummation of the
transaction that made it an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the commencement of the transaction excluding voting stock
owned by directors who are also officers or held in employee benefit plans
in which the employees do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer;
|
•
|
on or subsequent to such date the
business combination is approved by the board of directors and authorized
at an annual or special meeting of stockholders by the affirmative vote of
at least 66-2/3% of the outstanding voting stock which is not owned by the
interested stockholder.
|
•
|
ordinary brokerage transactions
and transactions in which the broker-dealer solicits
purchasers;
|
•
|
block trades in which the
broker-dealer will attempt to sell the shares as agent, but may position
and resell a portion of the block as principal to facilitate the
transaction;
|
•
|
purchases by a broker-dealer as
principal and resale by the broker-dealer for its
account;
|
•
|
an exchange distribution in
accordance with the rules of the applicable
exchange;
|
•
|
privately negotiated
transactions;
|
•
|
broker-dealers may agree with the
selling stockholders to sell a specified number of such shares at a
stipulated price per share;
|
•
|
through the writing or settlement
of options or other hedging transactions, whether through an options
exchange or otherwise;
|
•
|
a combination of any such methods
of sale; and
|
•
|
any other method permitted by
applicable law.
|
At
December 31, 2008
|
||||
Reports
of Independent Registered Public Accounting Firms
|
F-2
|
|||
Consolidated
Balance Sheets as of December 31, 2008 and 2007
|
F-4
|
|||
Consolidated
Statements of Operations for the years ended December 31, 2008, 2007 and
2006
|
F-5
|
|||
Consolidated
Statements of Stockholders’ (Deficit) /Equity for the years ended December
31, 2008, 2007 and 2006
|
F-6
|
|||
Consolidated
Statements of Cash Flows for the years ended December 31, 2008, 2007 and
2006
|
F-7
|
|||
Notes
to Consolidated Financial Statements
|
F-8
|
|||
At
September 30, 2009
|
||||
Consolidated
Balance Sheets as of September 30, 2009 (unaudited) and December 31,
2008
|
F-28
|
|||
Consolidated
Statements of Operations (unaudited) for three and six months ended
September 30, 2009 and 2008
|
F-29
|
|||
Consolidated
Statements of Cash Flows (unaudited) for three and six months ended
September 30, 2009 and 2008
|
F-30
|
|||
Notes
to Consolidated Financial Statements
|
F-31
|
(In thousands, except par value)
|
December 31,
2008
|
December 31,
2007
|
||||||
ASSETS
|
||||||||
Current
assets:
|
||||||||
Cash
and cash equivalents
|
$
|
4,908
|
$
|
5,814
|
||||
Marketable
securities (Note 3)
|
—
|
1,999
|
||||||
Accounts
receivable — net of allowances of $12 at December 31, 2008 and $38 at
December 31, 2007
|
2
|
31
|
||||||
Inventory
(Note 4)
|
121
|
225
|
||||||
Prepaid
expenses and other current assets (Note 6)
|
973
|
19,170
|
||||||
Total
current assets
|
6,004
|
27,239
|
||||||
Property
and equipment, net (Note 7)
|
300
|
323
|
||||||
Deferred
financing costs on convertible note financing (Note 11)
|
911
|
—
|
||||||
Deferred
financing costs — warrant (Note 11)
|
5,478
|
—
|
||||||
Other
assets (Note 5)
|
—
|
1,731
|
||||||
Total
assets
|
$
|
12,693
|
$
|
29,293
|
||||
LIABILITIES
AND STOCKHOLDERS’ (DEFICIT)/EQUITY
|
||||||||
Current
liabilities:
|
||||||||
Accounts
payable and accrued expenses (Note 6 and Note 9)
|
$
|
11,224
|
$
|
25,850
|
||||
Notes
payable (Note 10)
|
—
|
512
|
||||||
Total
current liabilities
|
11,224
|
26,362
|
||||||
Long-term
liabilities:
|
||||||||
Office
lease settlement obligation (Note 5)
|
1,979
|
—
|
||||||
Convertible
notes due June 9, 2010, $15,540 outstanding, net of debt discount of
($11,186) (Note 11)
|
4,354
|
—
|
||||||
Total
long-term liabilities
|
6,333
|
—
|
||||||
Commitments
and contingencies (Note 18)
|
||||||||
Stockholders’
(deficit)/equity (Note 13):
|
||||||||
Preferred
stock, 5,000 shares authorized:
|
||||||||
Series
A convertible preferred stock, $.001 par value; 8 shares issued and
outstanding, liquidation value of $385 at December 31, 2008 and December
31, 2007, respectively
|
—
|
—
|
||||||
Series
G participating cumulative preferred stock, $.001 par value; 0 shares
issued and outstanding at December 31, 2008 and December 31, 2007,
respectively
|
—
|
—
|
||||||
Common
stock, $.001 par value; 6,000,000 and 250,000 shares authorized 9,734 and
611 shares issued and outstanding at December 31, 2008 and December 31,
2007, respectively
|
10
|
1
|
||||||
Additional
paid-in capital
|
939,252
|
441,189
|
||||||
Accumulated
deficit
|
(944,126
|
)
|
(438,288
|
)
|
||||
Accumulated
other comprehensive income
|
—
|
29
|
||||||
Total
stockholders’ (deficit)/equity
|
(4,864
|
)
|
2,931
|
|||||
Total
liabilities and stockholders’ (deficit)/equity
|
$
|
12,693
|
$
|
29,293
|
Years Ended December 31,
|
||||||||||||
(In thousands, except per share data)
|
2008
|
2007
|
2006
|
|||||||||
Product
sales — net
|
$
|
363
|
$
|
580
|
$
|
708
|
||||||
Cost
of goods sold
|
102
|
90
|
108
|
|||||||||
Gross
margin
|
261
|
490
|
600
|
|||||||||
Operating
expenses:
|
||||||||||||
Research
and development
|
19,991
|
13,491
|
28,064
|
|||||||||
Selling,
general and administrative
|
10,452
|
16,865
|
25,152
|
|||||||||
Settlement
of office lease obligation (Note 5)
|
3,307
|
—
|
—
|
|||||||||
Provision
for settlement of litigation (Note 6 and Note 18)
|
(340
|
)
|
(4,240
|
)
|
5,280
|
|||||||
Write-off
of prepaid royalty (Note 8)
|
—
|
—
|
1,268
|
|||||||||
Total
operating expenses
|
33,410
|
26,116
|
59,764
|
|||||||||
Other
(expense)/income, net:
|
||||||||||||
Gain
on maturity of marketable securities
|
31
|
159
|
310
|
|||||||||
Interest
income and other income, net
|
252
|
837
|
1,216
|
|||||||||
Interest
expense
|
(1,718
|
)
|
(160
|
)
|
(72
|
)
|
||||||
Amortization
of deferred financing costs and debt discount (Note 11)
|
(11,229
|
)
|
—
|
—
|
||||||||
Fair
value — conversion feature liability (Note 11)
|
(460,000
|
)
|
—
|
—
|
||||||||
Fair
value — warrant liability (Note 11)
|
(2,000
|
)
|
—
|
—
|
||||||||
Total
other (expense)/income, net
|
(474,664
|
)
|
836
|
1,454
|
||||||||
Loss
before income taxes
|
(507,813
|
)
|
(24,790
|
)
|
(57,710
|
)
|
||||||
Income
tax benefit (Note 12)
|
1,975
|
1,470
|
929
|
|||||||||
Net
loss
|
$
|
(505,838
|
)
|
$
|
(23,320
|
)
|
$
|
(56,781
|
)
|
|||
Net
loss per basic and diluted common share
|
$
|
(455.09
|
)
|
$
|
(39.36
|
)
|
$
|
(125.88
|
)
|
|||
Shares
used in computing net loss per basic and diluted common
share
|
1,112
|
592
|
451
|
Convertible
Preferred Stock
|
Common Stock
|
Additional
Paid-in
|
Accumulated
|
Accumulated
Other
Comprehensive
Income
|
Total
Stockholders’
(Deficit)/
|
|||||||||||||||||||||||||||
(In thousands)
|
Shares
|
Amount
|
Shares
|
Amount
|
Capital
|
Deficit
|
(Loss)
|
Equity
|
||||||||||||||||||||||||
Balance
at January 1, 2006
|
10
|
$
|
—
|
381
|
$
|
$
|
373,824
|
$
|
(358,187
|
)
|
$
|
60
|
$
|
15,697
|
||||||||||||||||||
Net
loss
|
—
|
—
|
—
|
—
|
—
|
(56,781
|
)
|
—
|
(56,781
|
)
|
||||||||||||||||||||||
Net
change in value of marketable securities
|
—
|
—
|
—
|
—
|
—
|
—
|
(29
|
)
|
(29
|
)
|
||||||||||||||||||||||
Issuance
of common stock, net of issuance costs of $3,125
|
—
|
—
|
63
|
37,725
|
—
|
—
|
37,725
|
|||||||||||||||||||||||||
Issuance
of common stock in connection with conversion of Series A preferred
stock
|
(2
|
)
|
—
|
—-
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||||||||
Issuance
of common stock, net of issuance costs of $925
|
—
|
—
|
67
|
—
|
14,875
|
—
|
—
|
14,875
|
||||||||||||||||||||||||
Issuance
of common stock in connection with exercise of stock
options
|
—
|
—
|
—
|
—
|
156
|
—
|
—
|
156
|
||||||||||||||||||||||||
Stock-based
compensation expense
|
—
|
—
|
—
|
—
|
2,999
|
—
|
—
|
2,999
|
||||||||||||||||||||||||
Balance
at December 31, 2006
|
8
|
—
|
511
|
429,579
|
(414,968
|
)
|
31
|
14,642
|
||||||||||||||||||||||||
Net
loss
|
—
|
—
|
—
|
—
|
—
|
(23,320
|
)
|
—
|
(23,320
|
)
|
||||||||||||||||||||||
Net
change in value of marketable securities
|
—
|
—
|
—
|
—
|
—
|
—
|
(2
|
)
|
(2
|
)
|
||||||||||||||||||||||
Issuance
of common stock, net of issuance costs of $562
|
—
|
—
|
100
|
1
|
10,237
|
—
|
—
|
10,238
|
||||||||||||||||||||||||
Stock-based
compensation expense
|
—
|
—
|
—
|
—
|
1,373
|
—
|
—
|
1,373
|
||||||||||||||||||||||||
Balance
at December 31, 2007
|
8
|
—
|
611
|
1
|
441,189
|
(438,288
|
)
|
29
|
2,931
|
|||||||||||||||||||||||
Net
loss
|
—
|
—
|
—
|
—
|
—
|
(505,838
|
)
|
—
|
(505,838
|
)
|
||||||||||||||||||||||
Net
change in value of marketable securities
|
—
|
—
|
—
|
—
|
—
|
—
|
(29
|
)
|
(29
|
)
|
||||||||||||||||||||||
Issuance
of common stock, net of issuance costs of $183
|
—
|
—
|
123
|
2,876
|
—
|
—
|
2,876
|
|||||||||||||||||||||||||
Issuance
of common stock as interest payment on Senior Convertible Promissory
Note
|
—
|
—
|
80
|
647
|
—
|
—
|
647
|
|||||||||||||||||||||||||
Issuance
of common stock on voluntary conversions of Senior Convertible Promissory
Note
|
—
|
—
|
8,920
|
9
|
4,451
|
—
|
—
|
4,460
|
||||||||||||||||||||||||
Transfer
of warrant liability to paid-in-capital
|
—
|
—
|
—
|
—
|
9,600
|
—
|
—
|
9,600
|
||||||||||||||||||||||||
Transfer
conversion feature liability to paid-in-capital
|
—
|
—
|
—
|
—
|
480,000
|
—
|
—
|
480,000
|
||||||||||||||||||||||||
Vesting
of restricted stock
|
—
|
—
|
-
|
—
|
—
|
—
|
—
|
—
|
||||||||||||||||||||||||
Stock-based
compensation expense
|
—
|
—
|
—
|
—
|
489
|
—
|
—
|
489
|
||||||||||||||||||||||||
Balance
at December 31, 2008
|
8
|
$
|
—
|
9,734
|
$
|
10
|
$
|
939,252
|
$
|
(944,126
|
)
|
$
|
—
|
$
|
(4,864
|
)
|
Years Ended December 31,
|
||||||||||||
(In thousands)
|
2008
|
2007
|
2006
|
|||||||||
Operating
activities:
|
||||||||||||
Net
loss
|
$
|
(505,838
|
)
|
$
|
(23,320
|
)
|
$
|
(56,781
|
)
|
|||
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||||||||||
Depreciation
and amortization
|
154
|
170
|
942
|
|||||||||
Loss
on disposition of equipment
|
10
|
—
|
—
|
|||||||||
Amortization
of deferred financing costs and debt discount (Note 11)
|
11,229
|
—
|
—
|
|||||||||
Share-based
compensation (Note 14)
|
489
|
1,373
|
2,999
|
|||||||||
Provision
for sales returns
|
79
|
(133
|
)
|
(300
|
)
|
|||||||
Gain
on maturity of marketable securities
|
(31
|
)
|
(159
|
)
|
(310
|
)
|
||||||
Interest
payment settled in shares of common stock (Note 19)
|
647
|
—
|
—
|
|||||||||
Provision
for settlement of litigation, net (Note 6)
|
(340
|
)
|
(4,240
|
)
|
5,280
|
|||||||
Write-off
of prepaid royalty (Note 8)
|
—
|
—
|
1,268
|
|||||||||
Change
in fair value — conversion feature liability (Note 11)
|
460,000
|
—
|
—
|
|||||||||
Change
in fair value — warrant liability (Note 11)
|
2,000
|
—
|
—
|
|||||||||
Changes
in operating assets and liabilities:
|
—
|
—
|
||||||||||
Accounts
receivable
|
29
|
(14
|
)
|
42
|
||||||||
Inventory
|
104
|
83
|
88
|
|||||||||
Prepaid
expenses and other current assets
|
198
|
627
|
(142
|
)
|
||||||||
Accounts
payable and accrued expenses
|
5,615
|
(6,071
|
)
|
2,264
|
||||||||
Other
assets
|
—
|
(42
|
)
|
(40
|
)
|
|||||||
Net
cash used in operating activities
|
(25,655
|
)
|
(31,726
|
)
|
(44,690
|
)
|
||||||
Investing
activities:
|
||||||||||||
Purchase
of marketable securities
|
—
|
(13,900
|
)
|
(56,784
|
)
|
|||||||
Maturities
of marketable securities
|
2,000
|
32,000
|
49,091
|
|||||||||
Release
of restricted cash deposits (Note 5)
|
1,731
|
—
|
—
|
|||||||||
Purchase
of property and equipment
|
(141
|
)
|
(222
|
)
|
(136
|
)
|
||||||
Net
cash provided by (used in) investing activities
|
3,590
|
17,878
|
(7,829
|
)
|
||||||||
Financing
activities:
|
||||||||||||
Net
proceeds from sale of common stock, net (Note 13)
|
2,876
|
10,238
|
52,691
|
|||||||||
Issuance
of note payable (Note 10)
|
—
|
1,155
|
1,174
|
|||||||||
Repayments
of note payable (Note 10)
|
(512
|
)
|
(1,285
|
)
|
(1,261
|
)
|
||||||
Issuance
of convertible notes net of financing cost of $1,205 (Note
11)
|
18,795
|
—
|
—
|
|||||||||
Issuance
of common stock upon exercise of stock options (Note 15)
|
—
|
—
|
155
|
|||||||||
Net
cash provided by financing activities
|
21,159
|
10,108
|
52,759
|
|||||||||
Increase
(decrease) in cash and cash equivalents
|
(906
|
)
|
(3,740
|
)
|
240
|
|||||||
Cash
and cash equivalents at beginning of year
|
5,814
|
9,554
|
9,314
|
|||||||||
Cash
and cash equivalents at end of year
|
$
|
4,908
|
$
|
5,814
|
$
|
9,554
|
•
|
delay, scale back or eliminate
some or all of the Company’s research and product development programs and
sales and marketing
activity;
|
•
|
license third parties to develop
and commercialize products or technologies that the Company would
otherwise seek to develop and commercialize
themselves;
|
•
|
attempt to sell the
Company;
|
•
|
cease operations;
or
|
•
|
declare
bankruptcy.
|
December
31,
2007
|
||||
Cost
|
$
|
1,970
|
||
Gross
unrealized gains
|
29
|
|||
Gross
unrealized losses
|
—
|
|||
Fair
value
|
$
|
1,999
|
December
31,
|
||||||||
2008
|
2007
|
|||||||
Raw
materials
|
$
|
24
|
$
|
24
|
||||
Work
in process
|
—
|
—
|
||||||
Finished
goods
|
97
|
201
|
||||||
$
|
121
|
$
|
225
|
2009
|
$
|
706
|
||
2010
|
146
|
|||
2011
|
2,007
|
|||
2012
|
—
|
|||
2013
|
—
|
|||
Thereafter
|
—
|
|||
$
|
2,859
|
Estimated
|
December
31,
|
|||||||||||
Useful
Lives
|
2008
|
2007
|
||||||||||
Computer
equipment
|
3
|
$
|
2,298
|
$
|
2,855
|
|||||||
Software
|
3
|
3,206
|
3,211
|
|||||||||
Furniture
and fixtures
|
5
|
899
|
936
|
|||||||||
Leasehold
improvements
|
Life
of lease
|
463
|
420
|
|||||||||
Equipment
|
5
|
182
|
182
|
|||||||||
7,048
|
7,604
|
|||||||||||
Less
accumulated depreciation and amortization
|
(6,748
|
)
|
(7,281
|
)
|
||||||||
$
|
300
|
$
|
323
|
December
31,
|
||||||||
2008
|
2007
|
|||||||
Accounts
payable
|
$
|
4,654
|
$
|
2,519
|
||||
Accrued
compensation
|
574
|
488
|
||||||
Reserve
for settlement of litigation obligation
|
700
|
19,040
|
||||||
License
obligations to Daiichi Sankyo
|
2,125
|
—
|
||||||
State
of New Jersey (AMA) tax liability
|
841
|
776
|
||||||
Other
accrued expenses
|
2,330
|
3,027
|
||||||
$
|
11,224
|
$
|
25,850
|
October
6,
2008
|
June
9, 2008
|
|||||||
Price
of Genta common stock
|
$
|
12.50
|
$
|
10.00
|
||||
Volatility
|
137.4
|
%
|
125.6
|
%
|
||||
Risk-free
interest rate
|
1.36
|
%
|
2.73
|
%
|
||||
Remaining
contractual lives
|
1.68
|
2.00
|
October
6,
2008
|
June
9, 2008
|
|||||||
Price
of Genta common stock
|
$
|
12.50
|
$
|
10.00
|
||||
Volatility
|
128.6
|
%
|
115.0
|
%
|
||||
Risk-free
interest rate
|
2.32
|
%
|
3.41
|
%
|
||||
Remaining
contractual lives
|
4.68
|
5.00
|
December
31,
|
||||||||
2008
|
2007
|
|||||||
Deferred
tax assets:
|
||||||||
Deferred
compensation
|
$
|
772
|
$
|
772
|
||||
Net
operating loss carryforwards
|
135,990
|
130,111
|
||||||
Research
and development credit and Orphan Drug credit
carryforwards
|
51,288
|
41,484
|
||||||
Purchased
technology and license fees
|
0
|
4,850
|
||||||
Depreciation
and amortization, net
|
193
|
261
|
||||||
Share-based
compensation expense
|
911
|
892
|
||||||
Provision
for settlement of litigation, net
|
308
|
458
|
||||||
Write-off
of prepaid royalties
|
558
|
558
|
||||||
New
Jersey Alternative Minimum Assessment (AMA) Tax
|
730
|
730
|
||||||
New
Jersey research and development credits
|
4,979
|
5,612
|
||||||
Provision
for excess inventory
|
714
|
714
|
||||||
Reserve
for product returns
|
0
|
2
|
||||||
Accrued
liabilities
|
1,576
|
355
|
||||||
Other,
net
|
197
|
323
|
||||||
Total
deferred tax assets
|
198,216
|
187,122
|
||||||
Valuation
allowance for deferred tax assets
|
(190,884
|
)
|
(187,122
|
)
|
||||
Net
deferred tax assets
|
$
|
7,332
|
$
|
—
|
||||
Deferred
tax liabilities:
|
||||||||
Deferred
financing costs
|
$
|
(4,922
|
)
|
$
|
—
|
|||
Debt
discount
|
(2,410
|
)
|
—
|
|||||
Total
deferred tax liabilities
|
$
|
(7,332
|
)
|
$
|
—
|
|||
Net
deferred tax assets (liabilities)
|
$
|
—
|
$
|
—
|
($
in thousands)
|
2008
|
2007
|
||||||
Unrecognized
tax benefits: January 1
|
$
|
1,567
|
$
|
1,388
|
||||
Gross
increases: Tax positions taken in prior periods
|
||||||||
Gross
decreases: Tax positions taken in prior periods
|
||||||||
Gross
Increases- Current period tax positions
|
$
|
278
|
$
|
179
|
||||
Lapse
of Statute of Limitations
|
||||||||
Unrecognized
tax benefits: December 31
|
$
|
1,845
|
$
|
1,567
|
2008
|
2007
|
2006
|
||||||||||
Expected
volatility
|
115.7
|
%
|
102
|
%
|
97
|
%
|
||||||
Expected
dividends
|
—
|
—
|
—
|
|||||||||
Expected
term (in years)
|
6.25
|
6.25
|
6.25
|
|||||||||
Risk-free
rate
|
2.7
|
%
|
4.8
|
%
|
4.6
|
%
|
($
thousands, except per share data)
|
2008
|
2007
|
2006
|
|||||||||
Research
and development expenses
|
$
|
151
|
$
|
521
|
$
|
997
|
||||||
Selling,
general and administrative
|
338
|
852
|
2,002
|
|||||||||
Total
share-based compensation expense
|
$
|
489
|
$
|
1,373
|
$
|
2,999
|
||||||
Share-based
compensation expense, per basic and diluted common share
|
$
|
0.44
|
$
|
2.32
|
$
|
6.65
|
Number of
Shares
(in thousands)
|
Weighted
Average
Exercise
Price
|
Weighted
Average
Remaining
Contractual
Term
(in years)
|
Aggregate
Intrinsic Value
(in thousands)
|
|||||||||||||
Stock
Options
|
||||||||||||||||
Outstanding
at December 31, 2005
|
31
|
1,512.00
|
||||||||||||||
Granted
|
9
|
582.00
|
||||||||||||||
Exercised
|
—
|
—
|
||||||||||||||
Forfeited
or expired
|
(1
|
)
|
1,266.00
|
|||||||||||||
Outstanding
at December 31, 2006
|
39
|
$
|
1,311.00
|
|||||||||||||
Granted
|
6
|
70.00
|
||||||||||||||
Exercised
|
—
|
—
|
||||||||||||||
Forfeited
or expired
|
(2
|
)
|
819.00
|
|||||||||||||
Outstanding
at December 31, 2007
|
43
|
$
|
1,152.50
|
|||||||||||||
Granted
|
—
|
—
|
||||||||||||||
Exercised
|
—
|
—
|
||||||||||||||
Forfeited
or expired
|
(6
|
)
|
888.00
|
|||||||||||||
Outstanding
at December 31, 2008
|
37
|
$
|
1,191.50
|
3.8
|
$
|
—
|
||||||||||
Vested
and exercisable at December 31, 2008.
|
26
|
$
|
1,109.50
|
1.7
|
$
|
—
|
Restricted Stock Units
|
Number of
Shares
(in thousands)
|
Weighted
Average
Grant Date
Fair
Value per
Share
|
||||||
Outstanding
nonvested RSUs at January 1, 2007
|
0
|
$
|
—
|
|||||
Granted
|
1
|
$
|
71.00
|
|||||
Vested
|
0
|
$
|
—
|
|||||
Forfeited
or expired
|
(1
|
)
|
$
|
71.00
|
||||
Outstanding
nonvested RSUs at December 31, 2007
|
0
|
$
|
71.00
|
|||||
Granted
|
10
|
$
|
20.50
|
|||||
Vested
|
0
|
$
|
71.00
|
|||||
Forfeited
or expired
|
(5
|
)
|
$
|
20.50
|
||||
Outstanding
nonvested RSUs at December 31, 2008
|
5
|
$
|
20.50
|
Number of
Shares
(in thousands)
|
Weighted
Average
Exercise
Price
|
Weighted
Average
Remaining
Contractual
Term
(in years)
|
Aggregate
Intrinsic Value
(in thousands)
|
|||||||||||||
Stock
Options
|
||||||||||||||||
Outstanding
at December 31, 2005
|
4
|
$
|
1,878.00
|
|||||||||||||
Granted
|
0
|
621.00
|
||||||||||||||
Exercised
|
0
|
300.00
|
||||||||||||||
Forfeited
or expired
|
(2
|
)
|
2,049.00
|
|||||||||||||
Outstanding
at December 31, 2006
|
2
|
$
|
1,851.00
|
|||||||||||||
Granted
|
0
|
90.00
|
||||||||||||||
Exercised
|
—
|
—
|
||||||||||||||
Forfeited
or expired
|
0
|
2,004.00
|
||||||||||||||
Outstanding
at December 31, 2007
|
2
|
$
|
1,530.50
|
|||||||||||||
Granted.
|
0
|
12.50
|
||||||||||||||
Exercised
|
—
|
—
|
||||||||||||||
Forfeited
or expired
|
0
|
2,091.00
|
||||||||||||||
Outstanding
at December 31, 2008
|
2
|
$
|
1,130.50
|
6.2
|
$
|
—
|
||||||||||
Vested
and exercisable at December 31, 2008.
|
2
|
$
|
1,130.50
|
6.2
|
$
|
—
|
Year
|
Options Granted
(in Thousands)
|
Weighted
Average
Grant Date
Per Share
Fair Value
|
||||||
2008
|
0
|
$
|
12.50
|
|||||
2007
|
7
|
71.00
|
||||||
2006
|
9
|
585.00
|
Range of Prices
|
Options
Outstanding
|
Weighted
Average
Remaining
Life in Years
|
Weighted
Average
Exercise
Price
|
Options
Exercisable
|
Weighted
Average
Exercise Price
of
Options
Exercisable
|
||||||||||||||||
$12.50 - $99.00 |
4
|
9.0
|
$
|
39.00
|
1
|
$
|
43.00
|
||||||||||||||
$136.50 - $477.00 |
3
|
7.4
|
353.50
|
1
|
347.50
|
||||||||||||||||
$483.00 - $648.00 |
6
|
7.0
|
612.00
|
3
|
604.50
|
||||||||||||||||
$729.00 - $800.50 |
16
|
0.9
|
800.00
|
16
|
800.00
|
||||||||||||||||
$1,719.00 - $2,805.00 |
4
|
2.8
|
2,162.00
|
4
|
2,162.00
|
||||||||||||||||
$2,964.00 - $5,475.00 |
6
|
4.2
|
3,314.50
|
2
|
3,761.50
|
||||||||||||||||
39
|
3.9
|
$
|
1,188.50
|
27
|
1,111.00
|
18.
|
Comprehensive
Loss
|
Years Ended December 31,
|
||||||||||||
($ in thousands)
|
2008
|
2007
|
2006
|
|||||||||
Net
loss
|
$
|
(505,838
|
)
|
$
|
(23,320
|
)
|
$
|
(56,781
|
)
|
|||
Change
in market value on available-for-sale marketable
securities
|
(29
|
)
|
29
|
31
|
||||||||
Total
comprehensive loss
|
$
|
(505,867
|
)
|
$
|
(23,291
|
)
|
$
|
(56,750
|
)
|
Quarter Ended
|
||||||||||||||||
($ thousands, except per share data)
|
Mar. 31
|
Jun. 30
|
Sep. 30
|
Dec. 31
|
||||||||||||
Revenues
|
$
|
117
|
$
|
131
|
$
|
115
|
$
|
—
|
||||||||
Gross
margin
|
92
|
102
|
89
|
(23
|
)
|
|||||||||||
Operating
expenses
|
9,816
|
10,268
|
7,563
|
5,763
|
||||||||||||
Other
income/(expense), net
|
67
|
(728,198
|
)
|
220,087
|
33,380
|
|||||||||||
Net
(loss)/income
|
(9,657
|
)
|
(738,364
|
)
|
212,613
|
29,569
|
||||||||||
Net
(loss)/income per basic common share**
|
$
|
(14.29
|
)
|
$
|
(1,004.58
|
)
|
$
|
289.22
|
$
|
12.90
|
||||||
Net
(loss)/income per diluted common share
|
$
|
(14.29
|
)
|
$
|
(1,004.58
|
)
|
$
|
5.12
|
$
|
1.08
|
Quarter Ended
|
||||||||||||||||
($ thousands, except per share data)
|
Mar. 31
|
Jun. 30
|
Sep. 30
|
Dec. 31
|
||||||||||||
Revenues
|
$
|
94
|
$
|
105
|
$
|
115
|
$
|
266
|
||||||||
Gross
margin
|
72
|
79
|
95
|
244
|
||||||||||||
Operating
expenses-net
|
5,875
|
8,594
|
8,046
|
3,601
|
||||||||||||
Net
loss
|
(5,605
|
)
|
(8,235
|
)
|
(7,732
|
)
|
(1,748
|
)
|
||||||||
Net
loss per common share:
|
||||||||||||||||
Basic
and diluted
|
$
|
(10.50
|
)
|
$
|
(13.45
|
)
|
$
|
(12.63
|
)
|
$
|
(2.85
|
)
|
**
|
Net
(loss)/income per basic common share and net (loss)/income per diluted
common share are calculated independently for each quarter and the full
year based upon respective average shares outstanding. Therefore, the sum
of the quarterly amounts does not equal the annual amounts
reported.
|
Quarter ended
|
||||||||
June 30, 2008
|
September 30,
2008
|
|||||||
($ thousands)
|
(restated)
|
(restated)
|
||||||
Selected
Balance Sheet Data:
|
||||||||
Current
assets
|
$
|
17,230
|
$
|
9,450
|
||||
Total
assets
|
26,029
|
17,113
|
||||||
Current
liabilities
|
767,403
|
12,827
|
||||||
Total
liabilities
|
767,986
|
546,310
|
(as previously
reported)
|
(as previously
reported)
|
|||||||
Current
assets
|
$
|
35,230
|
$
|
27,450
|
||||
Total
assets
|
44,029
|
35,113
|
||||||
Current
liabilities
|
785,403
|
30,827
|
||||||
Total
liabilities
|
785,986
|
564,310
|
(In thousands, except par value data)
|
||||||||
September 30,
2009
|
December
31,
|
|||||||
(unaudited)
|
2008
|
|||||||
ASSETS
|
||||||||
Current
assets:
|
||||||||
Cash
and cash equivalents
|
$ | 7,383 | $ | 4,908 | ||||
Accounts
receivable – net of allowances of $21 at September 30, 2009 and $12 at
December 31, 2008, respectively
|
1 | 2 | ||||||
Inventory
(Note 4)
|
109 | 121 | ||||||
Prepaid
expenses and other current assets
|
510 | 973 | ||||||
Total
current assets
|
8,003 | 6,004 | ||||||
Property
and equipment, net
|
239 | 300 | ||||||
Deferred
financing costs and debt discount (Note 6)
|
10,611 | 6,389 | ||||||
Total
assets
|
$ | 18,853 | $ | 12,693 | ||||
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
||||||||
Current
liabilities:
|
||||||||
Accounts
payable and accrued expenses
|
$ | 10,715 | $ | 11,224 | ||||
Convertible
notes due June 9, 2010, $2,186 outstanding, net of debt discount of ($888)
(Note 6)
|
1,298 | — | ||||||
Total
current liabilities
|
12,013 | 11,224 | ||||||
Long-term
liabilities:
|
||||||||
Office
lease settlement obligation (Note 4)
|
1,979 | 1,979 | ||||||
Convertible
notes due June 9, 2010, $15,540 outstanding, net of debt discount of
($11,186) (Note 6)
|
— | 4,354 | ||||||
Convertible
notes due April 2, 2012, $5,375 outstanding, net of debt discount of
($4,347) (Note 6)
|
1,028 | — | ||||||
Convertible
notes due July 7, 2011, $751 outstanding, net of debt discount of ($665)
(Note 6)
|
86 | - | ||||||
Convertible
notes due September 4, 2011, $7,000 outstanding, net of debt discount of
($6,747) (Note 6)
|
253 | - | ||||||
Total
long-term liabilities
|
3,346 | 6,333 | ||||||
Commitments
and contingencies (Note 9)
|
||||||||
Stockholders’
deficit:
|
||||||||
Preferred
stock, 5,000 shares authorized:
|
||||||||
Series
A convertible preferred stock, $.001 par value; 8 shares issued and
outstanding, liquidation value of $385 at September 30, 2009 and December
31, 2008, respectively
|
— | — | ||||||
Series
G participating cumulative preferred stock, $.001 par value; 0 shares
issued and outstanding at September 30, 2009 and December 31, 2008,
respectively
|
— | — | ||||||
Common
stock, $.001 par value; 6,000,000 and 6,000,000 shares authorized, 173,514
and 9,734 shares issued and outstanding at September 30, 2009 and December
31, 2008, respectively
|
174 | 10 | ||||||
Additional
paid-in capital
|
1,022,026 | 939,252 | ||||||
Accumulated
deficit
|
(1,018,706 | ) | (944,126 | ) | ||||
Total
stockholders’ deficit
|
3,494 | (4,864 | ) | |||||
Total
liabilities and stockholders’ deficit
|
$ | 18,853 | $ | 12,693 |
Three Months Ended
September
30,
|
Nine
Months Ended
September 30,
|
|||||||||||||||
(In thousands, except per share data)
|
2009
|
2008
|
2009
|
2008
|
||||||||||||
Product
sales – net
|
$ | 49 | $ | 115 | $ | 180 | $ | 363 | ||||||||
Cost
of goods sold
|
10 | 26 | 12 | 79 | ||||||||||||
Gross
margin.
|
39 | 89 | 168 | 284 | ||||||||||||
Operating
expenses:
|
||||||||||||||||
Research
and development.
|
5,874 | 5,255 | 11,846 | 16,146 | ||||||||||||
Selling,
general and administrative
|
8,869 | 2,308 | 13,008 | 8,534 | ||||||||||||
Settlement
of office lease obligation (Note 5)
|
— | - | — | 3,307 | ||||||||||||
Reduction
in liability for settlement of litigation, net
|
— | - | — | (340 | ) | |||||||||||
Total
operating expenses
|
14,743 | 7,563 | 24,854 | 27,647 | ||||||||||||
Other
income/(expense):
|
||||||||||||||||
Gain
on maturity of marketable securities
|
— | — | — | 31 | ||||||||||||
Interest
income and other income, net
|
(12 | ) | 56 | 4 | 188 | |||||||||||
Interest
expense
|
(265 | ) | (769 | ) | (841 | ) | (992 | ) | ||||||||
Amortization
of deferred financing costs and debt discount (Note 6)
|
(5,450 | ) | (3,600 | ) | (22,362 | ) | (4,441 | ) | ||||||||
Fair
value – conversion feature liability (Note 6)
|
- | 220,000 | (19,040 | ) | (500,000 | ) | ||||||||||
Fair
value – warrant liability (Note 6)
|
- | 4,400 | (7,655 | ) | 2,800 | ) | ||||||||||
Total
other income/(expense)
|
(5,727 | ) | 220,087 | (49,894 | ) | (508,045 | ) | |||||||||
Net
(loss)/income
|
$ | (20,431 | ) | $ | 212,613 | $ | (74,580 | ) | $ | (535,408 | ) | |||||
Net
(loss)/income per basic share
|
$ | (0.15 | ) | $ | 289.23 | $ | (0.98 | ) | $ | (748.55 | ) | |||||
Net
(loss)/income per diluted share
|
$ | (0.15 | ) | $ | 5.12 | $ | (0.98 | ) | $ | (748.55 | ||||||
Shares
used in computing net (loss)/income per
|
||||||||||||||||
basic
share
|
139,349 | 735 | 75,850 | 715 | ||||||||||||
Shares
used in computing net (loss)/income per
|
||||||||||||||||
diluted
share
|
139,349 | 41,524 | 75,850 | 715 |
Nine Months Ended September
30,
|
||||||||
(In thousands)
|
2009
|
2008
|
||||||
Operating
activities:
|
||||||||
Net
loss
|
$
|
(74,580
|
)
|
$
|
(535,408
|
)
|
||
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||||||
Depreciation
and amortization
|
112
|
119
|
||||||
Amortization
of deferred financing costs and debt discount
|
22,362
|
4,441
|
||||||
Share-based
compensation
|
9,624
|
432
|
||||||
Gain
on maturity of marketable securities
|
—
|
(31
|
)
|
|||||
Reduction
in liability for settlement of litigation (Note 5)
|
—
|
(340
|
)
|
|||||
Change
in fair value – conversion feature liability (Note 6)
|
19,040
|
500,000
|
||||||
Change
in fair value – warrant liability (Note 6)
|
7,655
|
2,800
|
||||||
Changes
in operating assets and liabilities:
|
||||||||
Accounts
receivable
|
1
|
(38
|
)
|
|||||
Inventory
|
12
|
80
|
||||||
Prepaid
expenses and other current assets
|
463
|
649
|
||||||
Accounts
payable and accrued expenses
|
257
|
5,317
|
||||||
Net
cash used in operating activities
|
(15,054
|
)
|
(21,979
|
)
|
||||
Investing
activities:
|
||||||||
Maturities
of marketable securities
|
—
|
2,000
|
||||||
Elimination
of restricted cash deposits
|
—
|
1,731
|
||||||
Purchase
of property and equipment
|
(51
|
)
|
(11
|
)
|
||||
Net
cash provided by (used in) investing activities
|
(51
|
)
|
3,720
|
|||||
Financing
activities:
|
||||||||
Repayments
of note payable
|
—
|
(512
|
)
|
|||||
February
2008 issuance of common stock, net of costs of $173
|
-
|
2,877
|
||||||
June
2008 issuance of notes, net of costs of $1,205 (Note 6)
|
-
|
18,795
|
||||||
April
2009 issuance of notes and warrants, net of costs of $660 (Note
6)
|
5,290
|
-
|
||||||
July
2009 issuance of common stock, notes and warrants, net of costs of $105
(Note 6)
|
2,895
|
-
|
||||||
September
2009 issuance of common stock, notes and warrants, net of costs of $605
(Note 6)
|
9,395
|
-
|
||||||
Net
cash provided by financing activities
|
17,580
|
21,160
|
||||||
Increase/(decrease)
in cash and cash equivalents
|
2,475
|
2,901
|
||||||
Cash
and cash equivalents at beginning of period
|
4,908
|
5,814
|
||||||
Cash
and cash equivalents at end of period
|
$
|
7,383
|
$
|
8,715
|
1.
|
Reverse Stock
Split
|
2.
|
Organization, Business and
Liquidity
|
3.
|
Summary of Significant Accounting
Policies
|
4.
|
Inventory
|
September 30,
|
December 31,
|
|||||||
2009
|
2008
|
|||||||
Raw
materials
|
$
|
24
|
$
|
24
|
||||
Finished
goods
|
85
|
97
|
||||||
$
|
109
|
$
|
121
|
5.
|
Office Lease Settlement
Obligation
|
6.
|
Convertible Notes and
Warrants
|
June 26, 2009
|
April 2, 2009
|
|||||||
Price
of share of Genta common stock
|
$
|
0.425
|
$
|
1.15
|
||||
Volatility
|
258
|
%
|
240
|
%
|
||||
Risk-free
interest rate
|
1.50
|
%
|
1.25
|
%
|
||||
Remaining
contractual lives
|
2.8
|
3.0
|
June 26, 2009
|
April 2, 2009
|
|||||||
Price
of share of Genta common stock
|
$
|
0.425
|
$
|
1.15
|
||||
Volatility
|
244
|
%
|
224
|
%
|
||||
Risk-free
interest rate
|
1.75
|
%
|
1.89
|
%
|
||||
Remaining
contractual lives
|
3.3
|
3.5
|
7.
|
Stock Incentive Plans and
Share-Based Compensation
|
Restricted Stock Units
|
Number of Shares
(in thousands)
|
Weighted Average
Grant Date Fair
Value per Share
|
||||||
Outstanding nonvested
RSUs at July 1, 2009
|
- | - | ||||||
Granted
|
56,378 | $ | 0.395 | |||||
Vested
|
(6,512 | ) | $ | 0.395 | ||||
Forfeited
or expired
|
- | - | ||||||
Outstanding nonvested
RSUs at September 30, 2009
|
49,866 | $ | 0.395 |
Stock Options
|
Number of
Shares
(in
thousands)
|
Weighted
Average
Exercise
Price
|
Weighted
Average
Remaining
Contractual
Term
(in years)
|
Aggregate
Intrinsic
Value
(in
thousands)
|
||||||||||||
Outstanding
at July 1, 2009
|
- | - | ||||||||||||||
Granted
|
300 | $ | 0.77 | |||||||||||||
Exercised
|
- | - | ||||||||||||||
Forfeited
or expired
|
- | - | ||||||||||||||
Outstanding
at September 30, 2009
|
300 | $ | 0.77 | 10 | $ | 69 |
Stock Options
|
Number of
Shares
(in thousands)
|
Weighted
Average
Exercise
Price
|
Weighted
Average
Remaining
Contractual
Term
(in years)
|
Aggregate
Intrinsic Value
(in thousands)
|
||||||||||||
Outstanding
at January 1, 2009
|
37 | $ | 1,191.50 | |||||||||||||
Granted
|
— | — | ||||||||||||||
Exercised
|
— | — | ||||||||||||||
Forfeited
or expired
|
(37 | ) | 1,191.50 | |||||||||||||
Outstanding
at September 30, 2009
|
- | - | - | — |
Restricted Stock Units
|
Number of
Shares
(in thousands)
|
Weighted
Average
Grant Date
Fair Value
per Share
|
||||||
Outstanding nonvested
RSUs at January 1, 2009
|
5 | $ | 20.50 | |||||
Granted
|
— | — | ||||||
Vested
|
(5 | ) | - | 20.50 | ||||
Forfeited
or expired
|
— | — | ||||||
Outstanding nonvested
RSUs at September 30, 2009
|
- | - | - |
Stock Options
|
Number of
Shares
(in thousands)
|
Weighted
Average
Exercise
Price
|
Weighted
Average
Remaining
Contractual
Term
(in years)
|
Aggregate
Intrinsic Value
(in thousands)
|
||||||||||||
Outstanding
at January 1, 2009
|
2 | $ | 1,130.47 | |||||||||||||
Granted
|
— | — | ||||||||||||||
Exercised
|
— | — | ||||||||||||||
Forfeited
or expired
|
(2 | ) | $ | 1,130.47 | ||||||||||||
Outstanding
at September 30, 2009
|
- | - | - | — |
Expected
volatility
|
193 | % | ||
Expected
dividends
|
- | |||
Expected
term (in years)
|
6.25 | |||
Risk-free
rate
|
2.6 | % |
Three months ended
September 30
|
Nine months ended
September 30
|
|||||||||||||||
($
thousands, except per share data)
|
2009
|
2008
|
2009
|
2008
|
||||||||||||
Research
and development expenses
|
$ | 2,918 | $ | 35 | $ | 2,950 | $ | 131 | ||||||||
Selling,
general and administrative
|
6,599 | 92 | 6,674 | 301 | ||||||||||||
Total
share-based compensation expense
|
$ | 9,517 | $ | 127 | $ | 9,624 | $ | 432 | ||||||||
Share-based
compensation expense, per basic and diluted common share
|
$ | 0.07 | $ | 0.17 | $ | 0.13 | $ | 0.60 |
8.
|
Commitments and
Contingencies
|
9.
|
Supplemental Disclosure of Cash
Flows Information and Non-cash Investing and Financing
Activities
|