Table of Contents
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 2008 |
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO |
Commission file number 1-16467
Cortex Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 33-0303583 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
15241 Barranca Parkway, Irvine, California 92618
(Address of principal executive offices, including zip code)
(949) 727-3157
(Registrant’s telephone number, including area code)
NOT APPLICABLE
(Former name, former address and former fiscal year, if changed since last report)
Indicate by mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. YES x NO ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨ Accelerated filer x Non-accelerated filer ¨ Smaller reporting company x
Indicate by check mark whether the registrant is a shell company (as defined in Exchange Act Rule 12b-2). YES ¨ NO x
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.
47,592,459 shares of Common Stock as of November 5, 2008
Table of Contents
CORTEX PHARMACEUTICALS, INC.
Page Number | ||||
PART I. | FINANCIAL INFORMATION | |||
Item 1. | Financial Statements and Notes (Unaudited) | |||
Condensed Balance Sheets — September 30, 2008 and December 31, 2007 | 3 | |||
Condensed Statements of Operations — Three months and nine months ended September 30, 2008 and 2007 | 4 | |||
Condensed Statements of Cash Flows — Nine months ended September 30, 2008 and 2007 | 5 | |||
6 | ||||
Item 2. | Management’s Discussion and Analysis of Financial Condition and Results of Operations | 12 | ||
Item 3. | 22 | |||
Item 4. | 22 | |||
PART II. | OTHER INFORMATION | |||
Item 6. | 24 | |||
25 |
Items 1-A and 1-5 of Part II have been omitted because they are not applicable with respect to the current reporting period.
Page 2 of 25
Table of Contents
PART I. FINANCIAL INFORMATION
Item 1. | Financial Statements |
Condensed Balance Sheets
(Unaudited) September 30, 2008 | (Note) December 31, 2007 | |||||||
Assets | ||||||||
Current assets: | ||||||||
Cash and cash equivalents | $ | 2,796,410 | $ | 4,020,881 | ||||
Marketable securities | 4,174,318 | 13,263,560 | ||||||
Accounts receivable | 14,028 | — | ||||||
Other current assets | 201,525 | 246,960 | ||||||
Total current assets | 7,186,281 | 17,531,401 | ||||||
Furniture, equipment and leasehold improvements, net | 860,741 | 850,647 | ||||||
Other | 46,667 | 46,667 | ||||||
$ | 8,093,689 | $ | 18,428,715 | |||||
Liabilities and Stockholders’ Equity | ||||||||
Current liabilities: | ||||||||
Accounts payable | $ | 1,234,472 | $ | 970,702 | ||||
Accrued wages, salaries and related expenses | 277,947 | 398,344 | ||||||
Advance for MCI project | 310,464 | 305,422 | ||||||
Deferred rent | 43,397 | 52,226 | ||||||
Total current liabilities | 1,866,280 | 1,726,694 | ||||||
Deferred rent | — | 25,119 | ||||||
Total liabilities | 1,866,280 | 1,751,813 | ||||||
Stockholders’ equity: | ||||||||
Series B convertible preferred stock, $0.001 par value; $0.6667 per share liquidation preference; shares authorized: 3,200,000; shares issued and outstanding: 37,500; common shares issuable upon conversion: 3,679 | 21,703 | 21,703 | ||||||
Common stock, $0.001 par value; shares authorized: 105,000,000; shares issued and outstanding: 47,592,459 (September 30, 2008) and 47,542,426 (December 31, 2007) | 47,592 | 47,542 | ||||||
Additional paid-in capital | 112,441,724 | 111,339,508 | ||||||
Unrealized (loss) gain, available for sale marketable securities | (58,321 | ) | 27,073 | |||||
Accumulated deficit | (106,225,289 | ) | (94,758,924 | ) | ||||
Total stockholders’ equity | 6,227,409 | 16,676,902 | ||||||
$ | 8,093,689 | $ | 18,428,715 | |||||
See accompanying notes.
Note: The balance sheet as of December 31, 2007 has been derived from the audited financial statements at that date, but does not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements.
Page 3 of 25
Table of Contents
Condensed Statements of Operations
(Unaudited)
Three months ended September 30, | Nine months ended September 30, | |||||||||||||||
2008 | 2007 | 2008 | 2007 | |||||||||||||
Revenues: | ||||||||||||||||
Research and license revenue | $ | — | $ | — | $ | — | $ | — | ||||||||
Grant revenue | — | — | — | — | ||||||||||||
Total revenues | — | — | — | — | ||||||||||||
Operating expenses (A): | ||||||||||||||||
Research and development | 2,204,810 | 1,941,392 | 8,758,819 | 6,943,262 | ||||||||||||
General and administrative | 1,025,883 | 1,181,831 | 3,107,694 | 3,179,203 | ||||||||||||
Total operating expenses | 3,230,693 | 3,123,223 | 11,866,513 | 10,122,465 | ||||||||||||
Loss from operations | (3,230,693 | ) | (3,123,223 | ) | (11,866,513 | ) | (10,122,465 | ) | ||||||||
Interest income, net | 82,717 | 161,012 | 400,148 | 425,997 | ||||||||||||
Net loss | $ | (3,147,976 | ) | $ | (2,962,211 | ) | $ | (11,466,365 | ) | $ | (9,696,468 | ) | ||||
Net loss per share: | ||||||||||||||||
Basic and diluted | $ | (0.07 | ) | $ | (0.07 | ) | $ | (0.24 | ) | $ | (0.24 | ) | ||||
Shares used in calculating per share amounts: | ||||||||||||||||
Basic and diluted | 47,592,459 | 42,612,990 | 47,564,703 | 40,316,291 | ||||||||||||
(A) Operating expenses include the following non-cash stock compensation charges: | ||||||||||||||||
Research and development | $ | 162,106 | $ | 313,654 | $ | 645,804 | $ | 1,038,425 | ||||||||
General and administrative | 155,001 | 321,469 | 417,436 | 665,993 | ||||||||||||
$ | 317,107 | $ | 635,123 | $ | 1,063,240 | $ | 1,704,418 | |||||||||
See accompanying notes.
Page 4 of 25
Table of Contents
Condensed Statements of Cash Flows
(Unaudited)
Nine months ended September 30, | ||||||||
2008 | 2007 | |||||||
Cash flows from operating activities: | ||||||||
Net loss | $ | (11,466,365 | ) | $ | (9,696,468 | ) | ||
Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
Depreciation and amortization | 112,382 | 89,922 | ||||||
Stock option compensation expense | 1,063,240 | 1,704,418 | ||||||
Changes in operating assets/liabilities: | ||||||||
Accrued interest on marketable securities | (34,505 | ) | (18,345 | ) | ||||
Accounts receivable | (14,028 | ) | 129,755 | |||||
Other current assets | 45,435 | 1,341 | ||||||
Accounts payable and accrued expenses | 173,570 | (17,854 | ) | |||||
Advance for MCI project and other | (33,903 | ) | (8,226 | ) | ||||
Net cash used in operating activities | (10,154,174 | ) | (7,815,457 | ) | ||||
Cash flows from investing activities: | ||||||||
Purchase of marketable securities | (2,338,900 | ) | (12,820,206 | ) | ||||
Proceeds from sales and maturities of marketable securities | 11,391,079 | 7,857,872 | ||||||
Purchase of fixed assets | (122,476 | ) | (489,033 | ) | ||||
Net cash provided by (used in) investing activities | 8,929,703 | (5,451,367 | ) | |||||
Cash flows from financing activities: | ||||||||
Proceeds from issuance of common stock in August 2007 registered direct offering, net | — | 13,135,411 | ||||||
Proceeds from issuance of common stock in January 2007 registered direct offering, net | — | 5,080,300 | ||||||
Proceeds from issuance of common stock upon exercise of warrants and stock options | — | 833,470 | ||||||
Net cash provided by financing activities | — | 19,049,181 | ||||||
(Decrease) increase in cash and cash equivalents | (1,224,471 | ) | 5,782,357 | |||||
Cash and cash equivalents, beginning of period | 4,020,881 | 1,649,414 | ||||||
Cash and cash equivalents, end of period | $ | 2,796,410 | $ | 7,431,771 | ||||
See accompanying notes.
Page 5 of 25
Table of Contents
Notes to Condensed Financial Statements
(Unaudited)
Note 1 — Basis of Presentation
The accompanying unaudited interim condensed financial statements have been prepared in accordance with accounting principles generally accepted in the United States for interim financial information and the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements. In the opinion of management, all adjustments (consisting only of normal recurring accruals) considered necessary for a fair presentation have been included. Operating results for the nine-month period ended September 30, 2008 are not necessarily indicative of the results that may be expected for the full fiscal year. For further information, refer to the financial statements and notes thereto included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007.
In January 1999, Cortex Pharmaceuticals, Inc. (“Cortex” or the “Company”) entered into a research collaboration and exclusive worldwide license agreement with NV Organon (“Organon”). The agreement will enable Organon to develop and commercialize the Company’s AMPAKINE® technology for the treatment of schizophrenia and depression. In November 2007, Organon was acquired by Schering-Plough Corporation.
In October 2000, the Company entered into a research collaboration agreement and a license agreement with Les Laboratoires Servier (“Servier”), covering defined territories. The agreements, as amended to date, will enable Servier to develop and commercialize select AMPAKINE compounds developed during the research collaboration period for the treatment of (i) declines in cognitive performance associated with aging, (ii) neurodegenerative diseases and (iii) anxiety disorders. The indications covered include, but are not limited to, Alzheimer’s disease, mild cognitive impairment, sexual dysfunction, and the dementia associated with multiple sclerosis and amyotrophic lateral sclerosis. In early December 2006, Cortex terminated the research collaboration with Servier and as a result the wordwide rights for the AMPAKINE technology for treatment of neurodegenerative diseases were returned to Cortex, other than three compounds retained by Servier for commercialization.
The Company is seeking collaborative arrangements with other pharmaceutical companies for other applications of the AMPAKINE compounds, under which such companies would provide additional capital to the Company in exchange for exclusive or non-exclusive license or other rights to the technologies and products that the Company is developing. Competition for corporate partnering with major pharmaceutical companies is intense, with a large number of biopharmaceutical companies attempting to arrive at such arrangements. Accordingly, although the Company is in discussions with candidate companies, there is no assurance that an agreement will arise from these discussions in a timely manner, or at all, or that an agreement that may arise from these discussions will successfully reduce the Company’s short or longer-term funding requirements.
To supplement its existing resources, in addition to seeking licensing arrangements with other pharmaceutical companies, the Company may seek to raise additional capital through the sale of debt or equity. There can be no assurance that such capital will be available on favorable terms, or at all. If additional funds are raised by issuing equity securities, dilution to existing stockholders is likely to result.
Page 6 of 25
Table of Contents
Revenue Recognition
Revenues from milestone payments are recognized when earned, as evidenced by written acknowledgement from the collaborator, provided that (i) the milestone event is substantive and its achievement was not reasonably assured at the inception of the agreement, and (ii) the Company’s performance obligations after the milestone achievement will continue to be funded by the collaborator at a comparable level to that before the milestone achievement. If both of these criteria are not met, the milestone payment is recognized over the remaining period of the Company’s performance obligations under the arrangement.
In November 2002, the Emerging Issues Task Force (“EITF”) of the Financial Accounting Standards Board (the “FASB”) reached consensus on Issue 00-21. EITF Issue 00-21 addresses the accounting for arrangements that may involve the delivery or performance of multiple products, services and/or rights to use assets. As required, the Company applies the principles of Issue 00-21 to multiple element research and licensing agreements that it enters into after July 1, 2003.
In accordance with the Securities and Exchange Commission’s Staff Accounting Bulletin No. 104 (“SAB 104”), amounts received for upfront technology license fees under multiple-element arrangements are deferred and recognized over the period of committed services or performance, if such arrangements require the Company’s on-going services or performance.
Employee Stock Options and Stock-based Compensation
The Company’s 2006 Stock Incentive Plan (the “2006 Plan”) provides for a variety of equity vehicles to allow flexibility in implementing equity awards, including incentive stock options, nonqualified stock options, restricted stock grants, stock appreciation rights, stock payment awards, restricted stock units and dividend equivalents to qualified employees, officers, directors, consultants and other service providers. The exercise price of stock options offered under the 2006 Plan must be at least 100% of the fair market value of the common stock on the date of grant. If the person to whom an incentive stock option is granted is a 10% stockholder of the Company on the date of grant, the exercise price per share shall not be less than 110% of the fair market value on the date of grant. Options granted generally vest over a three-year period, although options granted to officers may include more accelerated vesting. Options generally expire ten years from the date of grant, but options granted to consultants may expire five years from the date of grant.
In accordance with Statement of Financial Accounting Standards (“SFAS”) No. 123(R), “Share Based Payment,” the Company recognizes expense in its financial statements for all share-based payments to employees, including grants of employee stock options, based on their fair values.
For options granted during the three months and nine months ended September 30, 2008 and 2007, the fair value of each option award was estimated using the Black-Scholes option pricing model and the following assumptions:
Three months ended September 30, | Nine months ended September 30, | |||||||||||
2008 | 2007 | 2008 | 2007 | |||||||||
Weighted average risk-free interest rate | 3.3 | % | 4.2 | % | 3.0 | % | 4.6 | % | ||||
Dividend yield | 0 | % | 0 | % | 0 | % | 0 | % | ||||
Volatility factor of the expected market price of the Company’s common stock | 93 | % | 87 | % | 97 | % | 90 | % | ||||
Weighted average life | 6.8 years | 6.6 years | 6.7 years | 4.8 years |
Page 7 of 25
Table of Contents
Expected volatility is based on the historical volatility of the Company’s stock. The Company also uses historical data to estimate the expected term of options granted and employee termination rates. The risk-free rate for periods within the contractual life of the options is based on the U.S. Treasury yield curve in effect at the time of grant.
The weighted-average grant-date fair value of options granted during the three months ended September 30, 2008 and 2007 was $0.76 and $2.08, respectively. The weighted-average grant-date fair value of options granted during the nine months ended September 30, 2008 and 2007 was $0.52 and $1.10, respectively.
A summary of option activity for the nine months ended September 30, 2008 is as follows:
Shares | Weighted Average Exercise Price | Weighted Average Remaining Contractual Term | Aggregate Intrinsic Value | ||||||||
Balance, December 31, 2007 | 10,141,496 | $ | 1.92 | ||||||||
Granted | 1,817,000 | $ | 0.64 | ||||||||
Exercised | — | — | |||||||||
Forfeited | (144,999 | ) | $ | 1.23 | |||||||
Expired | (229,459 | ) | $ | 2.10 | |||||||
Balance, September 30, 2008 | 11,584,038 | $ | 1.73 | 6.5 years | $ | 536,503 | |||||
Exercisable, September 30, 2008 | 7,652,181 | $ | 2.03 | 5.4 years | $ | 164,638 | |||||
As of September 30, 2008, there was approximately $1,047,000 of total unrecognized compensation cost related to non-vested share-based compensation arrangements. That non-cash cost is expected to be recognized over a weighted-average period of 1.1 years.
The Company continues to follow EITF Issue 96-18, “Accounting for Equity Instruments that are Issued to Other than Employees for Acquiring, or in Conjunction with Selling Goods and Services,” for stock options and warrants issued to consultants and other non-employees. In accordance with EITF Issue 96-18, these stock options and warrants issued as compensation for services to be provided to the Company are accounted for based upon the fair value of the services provided or the estimated fair market value of the option or warrant, whichever can be more clearly determined. The Company recognizes these expenses over the period in which the services are provided. These expenses are non-cash charges and have no impact on the Company’s available cash or working capital.
There were no stock option exercises during the nine months ended September 30, 2008. During the nine months ended September 30, 2007, the Company received cash from stock option exercises totaling approximately $220,000. The Company issues new shares to satisfy stock option exercises.
A summary of warrant activity for the nine months ended September 30, 2008 is as follows:
Shares | Weighted Average Per Share Exercise Price | |||||
Balance, December 31, 2007 | 13,811,296 | $ | 2.65 | |||
Granted | — | — | ||||
Exercised | — | — | ||||
Expired | (1,887,668 | ) | $ | 2.50 | ||
Balance, September 30, 2008 | 11,923,628 | $ | 2.67 | |||
Page 8 of 25
Table of Contents
Outstanding warrants as of September 30, 2008 include a five-year warrant issued in July 2005 to purchase 100,000 shares of the Company’s common stock at an exercise price of $2.75 per share. This warrant is subject to certain conditions before becoming exercisable, which conditions remain unmet as of September 30, 2008. All other warrants outstanding as of September 30, 2008 are immediately exercisable.
The effect of potentially issuable shares of common stock was not included in the calculation of diluted loss per share given that the effect would be anti-dilutive.
Registration Payment Arrangements
On January 7, 2004, the Company issued 6,909,091 shares of common stock to accredited investors in a private placement transaction for $2.75 per share, resulting in gross proceeds of $19,000,000. Net proceeds from the transaction, after issuance costs and placement fees, were approximately $17,500,000. In connection with the January 2004 transaction, the Company issued five-year warrants to the investors to purchase up to 4,490,910 shares of the Company’s common stock at an exercise price of $3.25 per share. As of September 30, 2008, related warrants issued to investors to purchase 3,969,137 shares of common stock remained outstanding.
On December 14, 2004, the Company issued 4,233,333 shares of common stock to accredited investors in a private placement transaction for $2.66 per share, resulting in gross proceeds of $11,260,663. Net proceeds from the transaction, after issuance costs and placement fees, were approximately $10,400,000. In connection with the December 2004 transaction, the Company issued five-year warrants to the investors to purchase up to 2,116,666 shares of the Company’ common stock at an exercise price of $3.00 per share. As of September 30, 2008, related warrants issued to investors to purchase 1,775,689 shares of common stock remained outstanding.
Pursuant to the terms of the registration rights agreements entered into in connection with each of the above transactions, within defined timelines the Company was required to file, and did file, with the Securities and Exchange Commission (the “SEC”) a registration statement under the Securities Act of 1933, as amended, covering the resale of all of the common stock purchased and the common stock underlying the issued warrants.
The registration rights agreement for each transaction further provides that if a registration statement is not filed or does not become effective within the defined time period, or if after its initial effectiveness the registration statement ceases to remain continuously effective for all securities for which it is required to be effective, then in addition to any other rights the holders may have, the Company would be required to pay each holder an amount in cash, as liquidated damages, equal to 2% per month of the aggregate purchase price paid by such holder in the private placements for the common stock and warrants then held, prorated daily.
The registration statement for each transaction was filed and declared effective by the SEC within the allowed timeframe. As a result, the Company was not required to pay any liquidated damages in connection with the initial registration for any of the foregoing transactions.
In December 2006, the FASB issued FASB Staff Position (“FSP”) EITF No. 00-19-2, “Accounting for Registration Payment Arrangements.” This FSP specifies that companies that enter into agreements to register securities will be required to recognize a liability if a payment to investors for failing to fulfill the agreement is probable and can be reasonably estimated. This accounting differs from the guidance in EITF 00-19, “Accounting for Derivative Financial Instruments Indexed To, and Potentially Settled In a Company’s Own Stock,” which required a liability to be recognized and measured at fair value, regardless of probability.
Page 9 of 25
Table of Contents
EITF No. 00-19-2 is effective immediately for registration payment arrangements and the financial instruments subject to those arrangements that are entered into or modified after the date of issuance of this FSP. For the Company’s registration payment arrangements and financial instruments subject to those arrangements that were entered into prior to the issuance of this FSP, the guidance was effective beginning January 1, 2007.
In connection with its obligation to maintain effectiveness of the registration statements filed with each of the January 2004 and December 2004 transactions, as of September 30, 2008 the Company has estimated the maximum potential amount of undiscounted payments that it could be required to make under the registration arrangements as approximately $668,000 and $2,309,000, respectively.
Given that the Company did not deem the transfer of consideration under its existing registration payment arrangements as probable as of September 30, 2008 or 2007, no related expense or liability has been recorded during the nine-month periods ended September 30, 2008 and 2007.
Comprehensive Loss
The Company presents unrealized gains and losses on its marketable securities, classified as “available for sale,” in its statement of stockholders’ equity and comprehensive income or loss on an annual basis and in a footnote in its quarterly reports. During the three months ended September 30, 2008 and 2007, total comprehensive loss was approximately $3,209,000 and $2,949,000, respectively. During the nine months ended September 30, 2008 and 2007, total comprehensive loss was approximately $11,551,000 and $9,674,000, respectively. Other comprehensive income or loss consists of unrealized gains or losses on the Company’s marketable securities, which are comprised of securities of the U.S. government or its agencies, corporate bonds and other asset backed securities. Unrealized gains and losses on the Company’s marketable securities for the three months ended September 30, 2008 and 2007 amounted to a loss of approximately $61,000 and a gain of approximately $14,000, respectively. For the nine months ended September 30, 2008, unrealized gains and losses on the Company’s marketable securities amounted to a loss of approximately $85,000 and a gain of approximately $22,000, respectively.
New Accounting Standards
In December 2007, the FASB issued SFAS No. 141(R), “Business Combinations” (“SFAS 141(R)”). SFAS 141(R) establishes principles and requirements for how an acquirer’s financial statements recognize and measure the identifiable assets acquired, the liabilities assumed, any noncontrolling interest in the acquiree and the goodwill acquired. SFAS 141(R) also establishes disclosure requirements to enable the evaluation of the nature and financial effects of the business combination. SFAS 141(R) is effective for fiscal years beginning after December 15, 2008. Given that the Company has not entered into any business combinations, at this time it does not anticipate that adoption of SFAS 141(R) will have a material impact on its financial statements.
In December 2007, the FASB issued SFAS No. 160, “Noncontrolling Interests in Consolidated Financial Statements – an amendment of Accounting Research Bulletin No. 51” (“SFAS 160”). SFAS 160 changes the accounting and reporting for minority interests, which will be re-characterized as non-controlling interests and classified as a component of equity. SFAS 160 is effective for fiscal years beginning after December 15, 2008. Given that the Company does not currently have any minority interests, at this time it does not anticipate that adoption of SFAS 160 will have a material impact on its financial statements.
Page 10 of 25
Table of Contents
In March 2008, the FASB issued SFAS No. 161, “Disclosures about Derivative Instruments and Hedging Activities, an amendment to FASB Statement No. 133” (“SFAS 161”), which changes the disclosure requirements for derivative instruments and hedging activities. SFAS 161 requires entities to provide enhanced disclosures on how and why the entity uses derivative instruments, how derivative instruments and related hedging items are accounted for under SFAS No. 133, and how derivative instruments and related hedging items affect an entity’s financial position, financial performance and cash flows. The provisions of SFAS 161 are effective for fiscal years and interim periods beginning after November 15, 2008. Given that the Company does not currently invest or intend to invest in derivative instruments in the near term, the Company does not expect the adoption of this pronouncement to have an impact on its financial statements.
Page 11 of 25
Table of Contents
Item 2. | Management’s Discussion and Analysis of Financial Condition and Results of Operations |
The following discussion and analysis should be read in conjunction with the Financial Statements and Notes relating thereto appearing elsewhere in this report and with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” presented in our Annual Report on Form 10-K for the fiscal year ended December 31, 2007.
Introductory Note
This Quarterly Report on Form 10-Q contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and we intend that such forward looking statements be subject to the safe harbors created thereby. These forward-looking statements, which may be identified by words including “anticipates,” “believes,” “intends,” “estimates,” “expects,” “plans,” and similar expressions include, but are not limited to, statements regarding (i) future research plans, expenditures and results, (ii) potential collaborative arrangements, (iii) the potential utility of our proposed products and (iv) the need for, and availability of, additional financing.
The forward-looking statements included herein are based on current expectations, which involve a number of risks and uncertainties and assumptions regarding our business and technology. These assumptions involve judgments with respect to, among other things, future scientific, economic and competitive conditions, and future business decisions, all of which are difficult or impossible to predict accurately and many of which are beyond our control. Although we believe that the assumptions underlying the forward-looking statements are reasonable, any of the assumptions could prove inaccurate and, therefore, there can be no assurance that the results contemplated in forward-looking statements will be realized and actual results may differ materially. In light of the significant uncertainties inherent in the forward-looking information included herein, the inclusion of such information should not be regarded as a representation by us or any other person that our objectives or plans will be achieved. We undertake no obligation to publicly release the result of any revisions to these forward-looking statements that may be made to reflect events or circumstances after the date hereof, or to reflect the occurrence of unanticipated events. Readers should carefully review the risk factors described in this and other documents that we file from time to time with the Securities and Exchange Commission, or the SEC, including, without limitation, Quarterly Reports on Form 10-Q, Annual Reports on Form 10-K and subsequent Current Reports on Form 8-K.
About Cortex Pharmaceuticals
We are engaged in the discovery and development of innovative pharmaceuticals for the treatment of psychiatric disorders, neurological diseases and brain mediated breathing disorders. Our primary focus is to develop novel small molecule compounds that positively modulate AMPA-type glutamate receptors, a complex of proteins involved in communication between nerve cells in the mammalian brain. These compounds, termed AMPAKINE® compounds, enhance the activity of the AMPA receptor. These molecules are designed and developed as proprietary pharmaceuticals because we believe that they hold promise for the treatment of neurological and psychiatric diseases and disorders that are known, or thought, to involve depressed functioning of pathways in the brain that use glutamate as a neurotransmitter. Our most advanced clinical compound is CX717, which currently is in Phase II clinical development.
Page 12 of 25
Table of Contents
The AMPAKINE program addresses large potential markets. Our business plan involves partnering with larger pharmaceutical companies for research, development, clinical testing, manufacturing and global marketing of AMPAKINE products for those indications that require sizable, expensive Phase III clinical trials and very large sales forces to achieve significant market penetration.
At the same time, we plan to develop compounds internally for a selected set of indications, many of which will allow us to apply for orphan drug status. Such designation by the Food and Drug Administration, or the FDA, is usually applied to products where the number of patients in the United States in the given disease category is typically less than 200,000. These orphan drug indications typically require more modest investment in the development stages, follow a quicker regulatory path to approval, and involve a more concentrated and smaller sales force targeted at selected medical centers and a limited number of medical specialists in the United States.
In our licensing discussions, we seek to reserve rights that may be viewed as a natural expansion beyond some of the orphan drug uses to selected larger areas of therapy to thereby allow us to potentially further develop our compounds for such larger non-orphan drug indications. If we are successful in the pursuit of this operating strategy, we may consequently be in a position to contain our costs over the next few years, to maintain our focus on the research and early development of novel pharmaceuticals (where we believe that we have the ability to compete) and eventually to participate more fully in the commercial development of AMPAKINE products in the United States.
Critical Accounting Policies and Management Estimates
The SEC defines critical accounting policies as those that are, in management’s view, most important to the portrayal of our financial condition and results of operations and most demanding of our judgment. Our discussion and analysis of our financial condition and results of operations are based upon our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses and related disclosures of contingent assets and liabilities.
We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances. This process forms the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.
Revenue Recognition
In accordance with the SEC’s Staff Accounting Bulletin No. 104, “Revenue Recognition,” revenues from up-front fees from our collaborators are deferred and recorded over the term that we provide ongoing services. Similarly, research support payments are recorded as revenue as we perform the research under the related agreements. All amounts received under collaborative research agreements or research grants are nonrefundable, regardless of the success of the underlying research.
Page 13 of 25
Table of Contents
Revenues from milestone payments are recognized when earned, as evidenced by written acknowledgment from our collaborator, provided that (i) the milestone event is substantive and its achievement was not reasonably assured at the inception of the agreement, and (ii) our performance obligations after the milestone achievement will continue to be funded by its collaborator at a comparable level to that before the milestone achievement. If both of these criteria are not met, the milestone payment is recognized over the remaining minimum period of our performance obligations under the agreement.
In November 2002, the Emerging Issues Task Force, or EITF, of the Financial Accounting Standards Board reached consensus on Issue 00-21. EITF Issue 00-21 addresses the accounting for arrangements that may involve the delivery or performance of multiple products, services and/or rights to use assets. As required, we apply the principles of Issue 00-21 to multiple element agreements that we enter into after July 1, 2003.
Employee Stock Options and Stock-Based Compensation
Under the fair value recognition provisions of Statement of Financial Accounting Standards No. 123(R), “Share Based Payment,” or SFAS 123(R), we measure our share-based compensation cost at the grant date based on the estimated value of the award and recognize it as expense over the vesting period. Determining the fair value of share-based awards at the grant date requires judgment in estimating the amount of share-based awards that are expected to be forfeited. If actual results differ significantly from these estimates, stock-based compensation expense and our results of operations could be materially impacted.
As of September 30, 2008, there was approximately $1,047,000 of total unrecognized compensation cost related to non-vested share-based compensation arrangements. These non-cash costs are expected to be recognized over a weighted-average period of 1.1 years.
In accordance with EITF Issue 96-18, “Accounting for Equity Instruments that are Issued to Other than Employees for Acquiring, or in Conjunction with Selling Goods and Services,” stock options and warrants issued to our consultants and other non-employees as compensation for services to be provided to us are accounted for based upon the fair value of the services provided or the estimated fair market value of the option or warrant, whichever can be more clearly determined. We recognize this expense over the period the services are provided.
Registration Payment Arrangements
In connection with prior private placements of our common stock and warrants to purchase shares of our common stock, we entered into agreements with investors that committed us to timely register the shares of common stock purchased as well as the shares underlying the issued warrants. Those registration agreements specified potential cash penalties if we did not timely register the related shares with the SEC.
Page 14 of 25
Table of Contents
In December 2006, the FASB issued FASB Staff Position, or FSP, EITF No. 00-19-2, “Accounting for Registration Payment Arrangements.” This FSP specifies that companies that enter into agreements to register securities will be required to recognize a liability if a payment to investors for failing to fulfill the agreement is probable and can be reasonably estimated. This accounting differs from the guidance in EITF 00-19, “Accounting for Derivative Instruments Indexed To, and Potentially Settled In a Company’s Own Stock,” which required a liability to be recognized and measured at fair value, regardless of probability.
EITF 00-19-2 is effective immediately for registration payment arrangements and the financial instruments subject to those arrangements that we enter into or modify after the date of issuance of this FSP. For our registration payment arrangements and financial instruments subject to those arrangements that were entered prior to the issuance of this FSP, the guidance was effective beginning January 1, 2007.
Given that we did not deem the transfer of consideration under our existing registration payment arrangements as probable, we have not recorded a related liability or expense for these arrangements in the accompanying financial statements.
The above listing is not intended to be a comprehensive list of all of our accounting policies. In many cases, the accounting treatment of a particular transaction is specifically dictated by accounting principles generally accepted in the United States, with no need for our judgment in their application. There are also areas in which our judgment in selecting any available alternative would not produce a materially different result.
Results of Operations
General
In January 1999, we entered into a research collaboration and exclusive worldwide license agreement with NV Organon, or Organon. In November 2007, Organon was acquired by Schering-Plough Corporation. Our agreement with Organon will allow them to develop and commercialize our proprietary AMPAKINE technology for the treatment of schizophrenia and depression. In connection with the agreement, we received $2,000,000 up-front and research support payments of approximately $3,000,000 per year for two years. The agreement with Organon also includes milestone payments based upon clinical development, plus royalty payments on worldwide sales. To date, we have received milestone payments from Organon totaling $6,000,000. For each milestone payment, we recorded the related revenue upon achievement of the milestone.
In October 2000, we entered into a research collaboration agreement and a license agreement with Les Laboratoires Servier, or Servier. The agreements will allow Servier to develop and commercialize select AMPAKINE compounds in defined territories of Europe, Asia the Middle East and certain South American countries as a treatment for (i) declines in cognitive performance associated with aging, (ii) neurodegenerative diseases and (iii) anxiety disorders. The indications covered include, but are not limited to, Alzheimer’s disease, MCI, sexual dysfunction and anxiety disorders. The research collaboration agreement, as amended, included an up-front payment by Servier of $5,000,000 and research support payments of approximately $2,025,000 per year through early December 2006 (subject to us providing agreed-upon levels of research personnel). In early December 2006, we terminated the research collaboration with Servier and as a result the worldwide rights for the AMPAKINE technology for the treatment of (a) declines
Page 15 of 25
Table of Contents
in cognitive performance associated with aging, (b) neurodegenerative diseases, (c) anxiety disorders, and (d) sexual dysfunction have been returned to us, other than three compounds selected by Servier for commercialization in its territory. Should any of these compounds be successfully commercialized by Servier, we would receive payments based upon key clinical development milestones and royalty payments on sales in licensed territories.
From inception (February 10, 1987) through September 30, 2008, we have sustained losses aggregating approximately $104,193,000. Continuing losses are anticipated over the next several years. During that time, our ongoing operating expenses will only be offset, if at all, by proceeds from Small Business Innovative Research grants and by possible milestone payments from Organon and Servier. Ongoing operating expenses may also be funded by payments under planned strategic alliances that we are seeking with other pharmaceutical companies for the clinical development, manufacturing and marketing of our products. The nature and timing of payments to us under the Organon and Servier agreements or other planned strategic alliances, if and when entered into, are likely to significantly affect our operations and financing activities and to produce substantial period-to-period fluctuations in reported financial results. Over the longer term, we will be dependent upon the successful introduction of a new product into the North American market from our internal development, as well as the successful commercial development of our products by Organon, Servier or our other prospective partners to attain profitable operations from royalties or other product-based revenues.
Comparison of the Three Months and Nine Months ended September 30, 2008 and 2007
For the three months ended September 30, 2008, our net loss of approximately $3,148,000 compares with a net loss of approximately $2,962,000 for the corresponding prior year period, an increase of 6%. Our net loss of approximately $11,466,000 for the nine months ended September 30, 2008 compares with a net loss of approximately $9,696,000 for the corresponding prior year period, an increase of 18%. Net losses for both the three and nine months ended September 30, 2008 reflect increased research and development expenses, as explained more fully below.
Our research and development expenses for the three-month period ended September 30, 2008 increased from approximately $1,941,000 to approximately $2,205,000, or by 14%, from the corresponding prior year period. For the nine-month period ended September 30, 2008, our research and development expenses increased from approximately $6,943,000 to approximately $8,759,000, or by 26%, compared to the corresponding prior year period. Results for both the three months and nine months ended September 30, 2008 reflect increased clinical development expenses, including amounts related to our Phase IIa studies of our AMPAKINE CX717 in respiratory depression.
Top-line results from the first reported study demonstrated that a single oral dose of 2100mg of CX717 has positive effects on respiratory depression induced by pain relieving opiates. The primary performance measures for the study were derived from a CO2 re-breathing procedure that measured the breathing response of the subject to increased CO2 levels in the presence of alfentanil. The primary measure, the minute expiratory volume (VE) at 55mgHg CO2 (VE55), was reversed by 2100mg of CX717 in comparison to placebo (p<0.03).
Page 16 of 25
Table of Contents
A second study evaluated whether CX717 may prevent the respiratory depression induced by alfentanil, while preserving that opiate’s desired pain relieving effects. Top-line data from the related study demonstrated that a single oral dose of 1500mg of CX717 achieved statistical significance (p = 0.005) over placebo on the primary endpoint measure of spontaneous basal respiration without affecting the analgesic properties of the opioid, alfentanil. The degree of the reversal of the basal respiratory rate was similar to that obtained with the opioid antagonist, naloxone (Narcan®). The analgesic properties of alfentanil were maintained in an acute pain model in the presence of CX717, whereas alfentanil’s pain relieving properties were blocked by naloxone.
Our non-cash stock compensation charges related to research and development for the three months ended September 30, 2008 decreased from approximately $314,000 to approximately $162,000, or by 48%, relative to the corresponding prior year period. For the nine months ended September 30, 2008, the non-cash stock compensation charges for research and development decreased from approximately $1,038,000 to approximately $646,000, or by 38%, compared to the corresponding prior year period, with decreases for the current year periods reflecting fluctuations in our stock price and the vesting schedules of granted stock options.
Our general and administrative expenses for the three-month period ended September 30, 2008 decreased from approximately $1,182,000 to approximately $1,026,000, or by 13%, relative to the corresponding prior year period, mostly due to decreased non-cash stock compensation charges. For the three months ended September 30, 2008, non-cash stock compensation charges decreased from approximately $321,000 to approximately $155,000, or by 52%, relative to the corresponding prior year period.
For the nine-month period ended September 30, 2008 our general and administrative expenses of approximately $3,108,000 decreased slightly, or by 2% from the approximately $3,179,000 of related expenses for the corresponding prior year period, with a decrease in non-cash stock compensation charges, partially offset by an increase in consulting fees. For the nine months ended September 30, 2008, our general and administrative non-cash stock compensation charges decreased from approximately $666,000 to approximately $417,000, or by 37%, compared to the corresponding prior year period, primarily due to fluctuations in our stock price. Increased consulting fees resulted from market research related to respiratory depression, an indication currently being tested with our AMPAKINE CX717, as indicated above.
Liquidity and Capital Resources
Sources and Uses of Cash
From inception (February 10, 1987) through September 30, 2008, we have funded our organizational and research and development activities primarily through the issuance of equity securities, funding related to collaborative agreements, various research grants and net interest income.
Page 17 of 25
Table of Contents
Under the agreements signed with Servier in October 2000, as amended to date, Servier has selected three AMPAKINE compounds that it may develop for potential commercialization. We remain eligible to receive payments based upon defined clinical development milestones of the licensed compounds and royalties on sales in licensed territories. Under the terms of the agreement with Organon, we may receive additional milestone payments based on clinical development of the licensed technology and ultimately, royalties on worldwide sales.
In January 2004, we completed a private placement of an aggregate of 6,909,091 shares of our common stock at $2.75 per share and five-year warrants to purchase up to an additional aggregate of 4,490,910 shares at an exercise price of $3.25 per share. We received approximately $17,500,000 in net proceeds from the private placement. In connection with the January 2004 private placement, we also issued two additional warrants to purchase 54,750 and 272,959 shares of our common stock, respectively, to two placement agents. The warrant to purchase 54,750 shares of our common stock has an exercise price of $2.75 per share and a five-year term. The warrant to purchase 272,959 shares of our common stock has an exercise price of $3.48 per share and a three-year term. All of the warrants issued in the January 2004 transaction provide a call right in our favor to the extent that the closing price of our common stock exceeds $7.50 per share for 13 consecutive trading days, subject to certain circumstances. During the year ended December 31, 2007 and the nine months ended September 30, 2008, we did not receive any proceeds from the exercise of related warrants. As of September 30, 2008, related warrants issued to investors to purchase up to 3,969,137 shares remained outstanding and warrants issued to placement agents to purchase up to 4,000 shares remained outstanding. If the remaining warrants are fully exercised, of which there can be no assurance, these warrants would provide us approximately $12,911,000 of additional capital.
In December 2004, we completed a private placement of an aggregate of 4,233,333 shares of our common stock at $2.66 per share and five-year warrants to purchase up to an additional aggregate of 2,116,666 shares at an exercise price of $3.00 per share. We received approximately $10,400,000 in net proceeds from the private placement. In connection with the December 2004 private placement, we also issued three-year warrants to purchase 164,289 shares of our common stock at an exercise price of $3.43 per share to the placement agent for the transaction. The warrants issued to the placement agent expired unexercised. All of the warrants issued in the December 2004 transaction provide a call right in our favor to the extent that the closing price of our common stock exceeds $7.50 per share for 13 consecutive trading days, subject to certain circumstances. During the year ended December 31, 2007 and the nine months ended September 30, 2008, we did not receive any proceeds from the exercise of related warrants. As of September 30, 2008, warrants issued to the investors to purchase up to 1,775,689 shares remained outstanding. If the remaining warrants are fully exercised, of which there can be no assurance, these warrants would provide us approximately $5,327,000 of additional capital.
In January 2007, we completed a registered direct offering with several institutional investors for 5,021,427 shares of our common stock and warrants to purchase 3,263,927 shares of our common stock for an aggregate purchase price of approximately $5,624,000. Net proceeds from the offering were approximately $5,100,000. The warrants have an exercise price of $1.66 per share and, subject to the terms therein, are exercisable at any time on or before January 21, 2012. The warrants are subject to a call right in our favor to the
Page 18 of 25
Table of Contents
extent that the closing price of our common stock exceeds $3.35 per share for any 13 consecutive trading days. During the year ended December 31, 2007, we received approximately $443,000 from the exercise of related warrants. During the nine months ended June 30, 2008, we did not receive any proceeds from the exercise of related warrants. As of September 30, 2008, warrants to purchase up to 2,996,927 shares remained outstanding. If the remaining warrants are fully exercised, of which there can be no assurance, these warrants would provide us approximately $4,975,000 of additional capital.
In August 2007, we completed a registered direct offering with several institutional investors for 7,075,000 shares of our common stock and warrants to purchase 2,830,000 shares of our common stock for an aggregate purchase price of $14,150,000. Net proceeds from the offering were approximately $13,135,000. The investors’ warrants have an exercise price of $2.64 per share and, subject to the terms therein, are exercisable on or before August 28, 2012. In addition, we issued warrants to purchase up to an aggregate of 176,875 shares of our common stock to the placement agents in the offering. The placement agents’ warrants have an exercise price of $3.96 per share and, subject to the terms therein, are exercisable on or before August 28, 2012. During the year ended December 31, 2007 and the nine month period ended September 30, 2008, we did not receive any proceeds from the exercise of related warrants. As of September 30, 2008, warrants to purchase 3,006,875 shares remained outstanding. If the related warrants are fully exercised, of which there can be no assurance, these warrants would provide us approximately $8,172,000 of additional capital.
As of September 30, 2008, we had cash, cash equivalents and marketable securities totaling approximately $6,971,000 and working capital of approximately $5,320,000. In comparison, as of December 31, 2007, we had cash, cash equivalents and marketable securities of approximately $17,284,000 and working capital of approximately $15,805,000. The decreases in cash and working capital reflect amounts required to fund our operations.
Net cash used in operating activities was approximately $10,154,000 during the nine months ended September 30, 2008, and included our net loss for the period of approximately $11,466,000, adjusted for non-cash expenses for depreciation and stock compensation approximating $1,176,000, and changes in operating assets and liabilities. For the nine months ended September 30, 2007, net cash used in operating activities was approximately $7,815,000, and included our net loss for the period of approximately $9,696,000, adjusted for non-cash expenses for depreciation and stock compensation approximating $1,794,000, and changes in operating assets and liabilities.
Net cash provided by investing activities approximated $8,930,000 during the nine months ended September 30, 2008, and primarily resulted from the sales and maturities of marketable securities of approximately $11,391,000, partially offset by the purchases of marketable securities of approximately $2,339,000. Fixed asset purchases for the current year period approximated $122,000. For the nine months ended September 30, 2007, net cash used in investing activities approximated $5,451,000, and primarily resulted from the purchases of marketable securities of approximately $12,820,000, partially offset by the sales and maturities of marketable securities of approximately $7,858,000. Fixed asset purchases for the prior year period approximated $489,000.
Page 19 of 25
Table of Contents
There was no cash provided by or used in financing activities for the nine months ended September 30, 2008. For the nine months ended September 30, 2007, net cash provided by financing activities amounted to approximately $19,049,000 and primarily represented the net proceeds related to our offerings of our common stock and warrants to purchase shares of our common stock in January and August 2007.
Commitments
We lease approximately 32,000 square feet of research laboratory, office and expansion space under an operating lease that expires May 31, 2012. The commitments under the lease agreement for the remaining three months of the year ending December 31, 2008 and for each of the years ending December 31, 2009, 2010, 2011 and 2012 are approximately $141,000, $552,000, $556,000, $581,000 and $238,000, respectively.
In addition to amounts reflected on the balance sheet as of September 30, 2008, our remaining commitments for preclinical and clinical studies amount to approximately $2,210,000. Separately, we are committed to approximately $387,000 for sponsored research at academic institutions, of which $344,000 is payable over the next twelve months.
In June 2000, we received approximately $247,000 from the Institute for the Study of Aging, or the Institute, a non-profit foundation supported by the Estee Lauder Trust. The advance partially offset our limited costs for our testing in patients with mild cognitive impairment that we conducted with our partner, Servier. Provided that we comply with the conditions of the funding agreement, including the restricted use of the amounts received, we will not be required to repay the advance unless we enter an AMPAKINE compound into Phase III clinical trials for Alzheimer’s disease. Upon such potential clinical trials, repayment would include interest computed at a rate equal to one-half of the prime lending rate. In lieu of cash, in the event of repayment the Institute may elect to receive the balance of outstanding principal and accrued interest as shares of our common stock. The conversion price for such form of repayment shall initially equal $4.50 per share, subject to adjustment under certain circumstances.
Staffing
As of September 30, 2008, we had a total of 27 full-time research and administrative employees. We anticipate modest increases in staffing and investments in equipment through the next twelve months.
Page 20 of 25
Table of Contents
Outlook
We anticipate that our cash, cash equivalents and marketable securities will be sufficient to satisfy our capital requirements into 2009. Additional funds will be required to continue operations beyond that time. We may receive additional milestone payments from the Organon and Servier agreements. However, there is no assurance that we will receive such milestone payments from Organon or Servier. We may also receive funds from the exercise of warrants to purchase shares of our common stock. As of September 30, 2008, warrants to purchase approximately 11.9 million shares of our common stock were outstanding with a weighted average exercise price of $2.67 per share. If all remaining warrants are fully exercised, of which there can be no assurance, such exercise would provide approximately $31,860,000 of additional capital.
In order to provide for our longer-term capital requirements, we are presently seeking additional collaborative or other arrangements with larger pharmaceutical companies. Under these agreements, it is intended that such companies would provide capital to us in exchange for an exclusive or non-exclusive license or other rights to certain of the technologies and products that we are developing. Competition for such arrangements is intense with a large number of biopharmaceutical companies attempting to secure alliances with more established pharmaceutical companies. Although we have been engaged in discussions with candidate companies, there is no assurance that an agreement or agreements will arise from these discussions in a timely manner, or at all, or that revenues that may be generated thereby will offset operating expenses sufficiently to reduce our longer-term funding requirements.
Because there is no assurance that we will secure additional corporate partnerships, we may seek to raise additional capital through the sale of debt or equity securities. There is no assurance that funds will be available on favorable terms, or at all. If equity securities are issued to raise additional funds, dilution to existing stockholders is likely to result. Such additional capital would, more importantly, enhance the ability of us to achieve significant milestones in our efforts to develop the AMPAKINE technology.
Additional Risks and Uncertainties
Our proposed products are in the preclinical or early clinical stage of development and will require significant further research, development, clinical testing and regulatory clearances. They are subject to the risks of failure inherent in the development of products based on innovative technologies. These risks include, but are not limited to, the possibilities that any or all of the proposed products will be found to be ineffective or unsafe, or otherwise fail to receive necessary regulatory clearances; that the proposed products, although effective, will be uneconomical to market; that third parties may now or in the future hold proprietary rights that preclude us from marketing them; or that third parties will market superior or equivalent products. Accordingly, we are unable to predict whether our research and development activities will result in any commercially viable products or applications. Further, due to the extended testing and regulatory review process required before marketing clearance can be obtained, we do not expect to be able to commercialize any therapeutic drug for at least four years, either directly or through our current or prospective partners or licensees. There can be no assurance that our proposed products will prove to be safe or effective or receive regulatory approvals that are required for commercial sale.
Page 21 of 25
Table of Contents
Off-Balance Sheet Arrangements
We have not engaged in any “off-balance sheet arrangements” within the meaning of Item 303(a)(4)(ii) of Regulation S-K.
Item 3. | Quantitative and Qualitative Disclosures About Market Risk |
We are exposed to certain market risks associated with interest rate fluctuations on our marketable securities and borrowing arrangement. All investments in marketable securities are entered into for purposes other than trading. We are not subject to significant risks from currency rate fluctuations as we do not typically conduct transactions in foreign currencies. In addition, we do not utilize hedging contracts or similar instruments.
Our exposure to interest rate risk arises from financial instruments entered into in the normal course of business. Certain of our financial instruments are fixed rate, short-term investments in government and corporate notes and bonds. Changes in interest rates generally affect the fair value of the investments, however, because these financial instruments are considered “available for sale,” all such changes are reflected in the financial statements in the period affected. We manage interest rate risk on our investment portfolio by matching scheduled investment maturities with our cash requirements. As of September 30, 2008, our investment portfolio had a fair value and carrying amount of approximately $4,174,000. If market interest rates were to increase immediately and uniformly by 10% from levels as of September 30, 2008, the resulting decline in the fair value of fixed rate bonds held within the portfolio would not be material to our financial position, results of operations and cash flows.
Our borrowing consists of our advance from the Institute for the Study of Aging, which is subject to potential repayment in the event that we enter an AMPAKINE compound into Phase III clinical testing as a potential treatment for Alzheimer’s disease. Potential repayment would include interest accruing at a rate equal to one-half of the prime lending rate. Changes in interest rates generally affect the fair value of such debt, but, based upon historical activity, such changes are not expected to have a material impact on earnings or cash flows. As of September 30, 2008, the principal and accrued interest of the advance amounted to approximately $310,000.
Item 4. | Controls and Procedures |
We maintain disclosure controls and procedures (as defined in Rules 13a-15(e) and 15(d)-15(e) under the Exchange Act) that are designed to ensure that information required to be disclosed in our reports under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer, or the CEO, and Chief Financial Officer, or the CFO, as appropriate, to allow timely decisions regarding required disclosure.
Page 22 of 25
Table of Contents
We performed an evaluation, under the supervision and with the participation of our management, including the CEO and CFO, of the effectiveness of the design and operation of our disclosure controls and procedures as of the end of the period covered by this report, pursuant to Rules 13a-15(b) and 15d-15(b) under the Exchange Act. Based upon that evaluation, the CEO and CFO have concluded that our disclosure controls and procedures, as of the end of the period covered by this report, were effective in timely alerting them to material information required to be included in our periodic filings under the Exchange Act.
There has been no change in our internal control over financial reporting (as defined in Rules 13(a)-15(f) and 15(d)-15(f) under the Exchange Act) during the period covered by this report that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Limitations on the Effectiveness of Controls
Our management, including our CEO and CFO, does not expect that our disclosure controls and internal controls will prevent all error and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control.
The design of any system of controls is also based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, a control may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.
Page 23 of 25
Table of Contents
PART II. OTHER INFORMATION
Exhibits
10.109 | Fourth Amendment, dated July 11, 2008, to the employment agreement dated October 29, 2002 between the Company and Roger G. Stoll, Ph.D., incorporated by reference to the same numbered Exhibit to the Company’s Current Report on Form 8-K filed July 17, 2008. | |
31.1 | Certification by Chief Executive Officer Pursuant to Rule 13a-14(a)/15d-14(a), As Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
31.2 | Certification by Chief Financial Officer Pursuant to Rule 13a-14(a)/15d-14(a), As Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
32 | Certification Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
Page 24 of 25
Table of Contents
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
CORTEX PHARMACEUTICALS, INC. | ||||||||
November 7, 2008 | By: | /s/ Maria S. Messinger | ||||||
Maria S. Messinger | ||||||||
Vice President and Chief Financial Officer; | ||||||||
Corporate Secretary | ||||||||
(Chief Accounting Officer) |
Page 25 of 25