10-K/A: Annual report pursuant to Section 13 and 15(d)
Published on September 22, 2008
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
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x
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Annual
Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 for the fiscal year ended December 31, 2007
or
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*
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Transition
Report pursuant to Section 13 or 15 (d) of the Securities Exchange Act of
1934 for the transition period from __________ to
__________
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Commission
File Number 0-9314
ACCESS PHARMACEUTICALS,
INC.
(Name of
Registrant as Specified in Its Charter)
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Delaware
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83-0221517
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(State
of
Incorporation)
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(I.R.S.
Employer I.D. No.)
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| 2600 Stemmons Freeway, Suite 176, Dallas, TX |
75207
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| (Address of Principal Executive Offices) |
(Zip
Code)
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Issuer's
telephone number, including area code: (214) 905-5100
Securities
registered pursuant to Section 12(b) of the Act:
None None
(Title
of
Class) (Name
of each exchange on which registered)
Securities
registered pursuant to Section 12(g) of the Act:
Common Stock, One Cent
($0.01) Par Value Per Share
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes ____ No P
Indicate
by check mark whether the issuer is not required to file reports pursuant to
Section 13 or Section 15(d) of the Exchange Act. Yes P No
____
Indicate
by check mark whether the issuer (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act 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
P No
____
Check if
disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not
contained herein, and will not be contained herein, to the best of
registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
(Check one):
Larger accelerated
filer ¨ Accelerated
filer ¨
Non-accelerated filer ¨ Smaller
reporting company x
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes __ No
P
State
issuer’s revenues for the fiscal year ended December 31, 2007 was
$57,000.
State the
aggregate market value of the voting and non-voting common equity held by
non-affiliates computed by reference to the price at which the common equity was
sold, or the average bid and asked price of such common equity, as of the last
business day of the registrant’s most recently completed fiscal quarter.
$15,335,000 as of June 30, 2007.
As of
March 31, 2008 there were 5,623,781 shares of Access Pharmaceuticals, Inc.
Common Stock issued and outstanding. Also at March 31, 2008 there were
3,499.8617 shares of Series A Convertible Preferred Stock convertible into
11,666,195 shares of Common Stock.
DOCUMENTS INCORPORATED BY
REFERENCE: Portions of Registrant's Definitive Proxy Statement
to be filed with the Commission pursuant to Regulation 14A in connection with
the 2008 Annual Meeting are incorporated herein by reference into Part III of
this report.
Access
Pharmaceuticals, Inc. ("Access") filed an Annual Report on Form 10-K with the
Securities and Exchanges Commission on March 31, 2008 (the "Original Filing").
This Amendment to the Original Filing on Form 10-K/A is being filed solely to
amend and restate Item 9A.(T) and Item 15(b) - Exhibits 31.1 and 31.2.
ITEM
9A.(T) CONTROLS AND PROCEDURES
Our
management is responsible for establishing and maintaining adequate internal
control over financial reporting, as such term is defined in
Rules 13a-15(f) and 15d-15(f) of the Exchange Act. Our internal control
system was designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes, in accordance with generally accepted accounting principles. Because
of inherent limitations, a system of internal control over financial reporting
may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become
inadequate due to change in conditions, or that the degree of compliance with
the policies or procedures may deteriorate.
Our
management, including our principal executive officer and principal accounting
officer, conducted an evaluation of the effectiveness of our internal control
over financial reporting using the criteria set forth by the Committee of
Sponsoring Organizations of the Treadway Commission (COSO) in Internal
Control—Integrated Framework. Based on its evaluation, our management concluded
that there is a material weakness in our internal control over financial
reporting. Our Chief Executive Officer and Chief Financial Officer have
concluded that as a result of the material weakness, as of the end of the period
covered by this Annual Report on Form 10-K, our disclosure controls and
procedures were not effective. The
material weakness identified did not result in the restatement of any previously
reported financial statements or any related financial disclosure, nor does
management believe that it had any effect on the accuracy of the Company’s
financial statements for the current reporting period. A material
weakness is a deficiency, or a combination of control deficiencies, in internal
control over financial reporting such that there is a reasonable possibility
that a material misstatement of the Company’s annual or interim financial
statements will not be prevented or detected on a timely basis.
The
material weakness relates to the monitoring and review of work performed by our
Chief Financial Officer in the preparation of audit and financial statements,
footnotes and financial data provided to the Company’s registered public
accounting firm in connection with the annual audit. All of our financial
reporting is carried out by our Chief Financial Officer. This lack of accounting
staff results in a lack of segregation of duties and accounting technical
expertise necessary for an effective system of internal control.
In order
to mitigate this material weakness to the fullest extent possible, all financial
reports are reviewed by the Chief Executive Officer as well as the Chairman of
the Audit Committee for reasonableness. All unexpected results are investigated.
At any time, if it appears that any control can be implemented to continue to
mitigate such weaknesses, it is immediately implemented. As soon as our finances
allow, we will hire sufficient accounting staff and implement appropriate
procedures for monitoring and review of work performed by our Chief Financial
Officer.
This
annual report does not include an attestation report of the Company’s registered
public accounting firm regarding internal control over financial reporting.
Management’s report was not subject to attestation by the Company’s registered
public accounting firm pursuant to temporary rules of the SEC that permit the
Company to provide only management’s report in this annual report.
This
report shall not be deemed to be filed for purposes of Section 18 of the
Securities Exchange Act of 1934, or otherwise subject to the liabilities of that
section, and is not incorporated by reference into any filing of the Company,
whether made before or after the date hereof, regardless of any general
incorporation language in such filing.
Changes In Internal Control
Over Financial Reporting
There
were no changes in our internal control over financial reporting that occurred
during the quarter ended December 31, 2007 that have materially affected,
or are reasonable likely to materially affect, our internal control over
financial reporting.
ITEM
15. EXHIBITS
b. Exhibits
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Exhibit
Number
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2.1
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Amended
and Restated Agreement of Merger and Plan of Reorganization between Access
Pharmaceuticals, Inc. and Chemex Pharmaceuticals, Inc., dated as of
October 31, 1995 (Incorporated by reference to Exhibit A of the our
Registration Statement on Form S-4 dated December 21, 1995, Commission
File No. 33-64031)
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2.2
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Agreement
and Plan of Merger, by and among Access Pharmaceuticals, Inc., Somanta
Acquisition Corporation, Somanta Pharmaceuticals, Inc. Somanta
Incorporated and Somanta Limited, dated April 18, 2007. (Incorporated by
reference to Exhibit 2.1 to our Form 8-K dated April 18,
2007)
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3.0
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Articles
of incorporation and bylaws
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3.1
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Certificate
of Incorporation (Incorporated by Reference to Exhibit 3(a) of our Form
8-B dated July 12, 1989, Commission File Number
9-9134)
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3.2 Certificate
of Amendment of Certificate of Incorporation filed August 21, 1992
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3.3
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Certificate
of Merger filed January 25, 1996. (Incorporated by reference to Exhibit E
of our Registration Statement on Form S-4 dated December 21, 1995,
Commission File No. 33-64031)
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3.4
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Certificate
of Amendment of Certificate of Incorporation filed January 25, 1996.
(Incorporated by reference to Exhibit E of our Registration Statement on
Form S-4 dated December 21, 1995, Commission File No.
33-64031)
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3.5
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Certificate
of Amendment of Certificate of Incorporation filed July 18, 1996.
(Incorporated by reference to Exhibit 3.8 of our Form 10-K for the year
ended December 31, 1996)
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3.6
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Certificate
of Amendment of Certificate of Incorporation filed June 18, 1998.
(Incorporated by reference to Exhibit 3.8 of our Form 10-Q for the quarter
ended June 30, 1998
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3.7
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Certificate
of Amendment of Certificate of Incorporation filed July 31, 2000.
(Incorporated by reference to Exhibit 3.8 of our Form 10-Q for the quarter
ended March 31, 2001)
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3.8
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Certificate
of Designations of Series A Junior Participating Preferred Stock filed
November 7, 2001 (Incorporated by reference to Exhibit 4.1.h of our
Registration Statement on Form S-8, dated December 14, 2001, Commission
File No. 333-75136)
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3.9
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Amended
and Restated Bylaws (Incorporated by reference to Exhibit 3.1 of our Form
10-Q for the quarter ended June 30,
1996)
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3.10
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Certificate
of Designation of Series A Cumulative Convertible Preferred Stock filed
November 9, 2007
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10.1*
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1995
Stock Option Plan (Incorporated by reference to Exhibit F of our
Registration Statement on Form S-4 dated December 21, 1995, Commission
File No. 33-64031
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10.2*
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Amendment
to 1995 Stock Option Plan (Incorporated by reference to Exhibit 10.25 of
our Form 10-K for the year ended December 31,
2001)
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10.3
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Lease
Agreement between Pollock Realty Corporation and us dated July 25, 1996
(Incorporated by reference to Exhibit 10.19 of our Form 10-Q for the
quarter ended September 30, 1996)
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10.4
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Platinate
HPMA Copolymer Royalty Agreement between The School of Pharmacy,
University of London and the Company dated November 19, 1996 (Incorporated
by reference to Exhibit 10.11 of our Form 10-K for the year ended December
31, 1996)
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10.5*
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Employment
Agreement of David P. Nowotnik, PhD (Incorporated by reference to Exhibit
10.19 of our Form 10-K for the year ended December 31,
1999)
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10.6*
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401(k)
Plan (Incorporated by reference to Exhibit 10.20 of our Form 10K for the
year ended December 31, 1999)
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10.7
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Form
of Convertible Note (Incorporated by reference to Exhibit 10.24 of our
Form 10-Q for the quarter ended September 30,
2000)
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10.8
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Rights
Agreement, dated as of October 31, 2001 between the us and American Stock
Transfer & Trust Company, as Rights Agent (incorporated by reference
to Exhibit 99.1 of our Current Report on Form 8-K dated October 19,
2001)
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10.9
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Amendment
to Rights Agreement, dated as of February 16, 2006 between us and American
Stock Transfer & Trust Company, as Rights Agent
(2)
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10.10
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Amendment
to Rights Agreement, dated as of November 9, 2007 between us and American
Stock Transfer & Trust Company as Rights
Agent
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10.11*
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2001
Restricted Stock Plan (Incorporated by reference to Appendix A of our
Proxy Statement filed on April 16,
2001)
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10.12*
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2005
Equity Incentive Plan (Incorporated by reference to Exhibit 1 of our Proxy
Statement filed on April 18, 2005
(2)
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10.13*
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Employment
Agreement, dated as of June 1, 2005 by and between us and Stephen B.
Thompson (1)
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10.14 Asset
Sale Agreement, dated as of October 12, 2005, between us and Uluru, Inc.
(1)
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10.15
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Amendment
to Asset Sale Agreement, dated as of December 8, 2006, between us and
Uluru, Inc. (3)
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10.16 License
Agreement, dated as of October 12, 2005, between us and Uluru, Inc.
(1)
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10.17
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Form
of Warrant, dated February 16, 2006, issued by us to certain Purchasers
(2)
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10.18
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Form
of Warrant, dated October 24, 2006, issued by us to certain Purchasers
(3)
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10.19
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Form
of Warrant, December 6, 2006, issued by us to certain Purchasers
(3)
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10.20*
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2007
Special Stock Option Plan and Agreement, dated January 4, 2007, by and
between us and Stephen R. Seiler, President and Chief Executive Officer
(4)
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10.21
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Note
Purchase Agreement dated April 26, 2007 between us and Somanta
Pharmaceuticals, Inc. (Incorporated by reference to Exhibit 10.42 of our
Form 10-Q for the quarter ended June 30,
2007)
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10.22
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Preferred
Stock and Warrant Purchase Agreement, dated November 7, 2007, between us
and certain Purchasers (5)
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10.23
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Investor
Rights Agreement, dated November 10, 2007, between us and certain
Purchasers (5)
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10.24
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Form
of Warrant Agreement dated November 10, 2007, between us and certain
Purchasers (5)
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10.25
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Board
Designation Agreement, dated November 15, 2007, between us and SCO Capital
Partners LLC (5)
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10.26
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Amendment
and Restated Purchase Agreement, dated February 4, 2008 between us and
certain Purchasers (5)
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10.27
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Amended
and Restated Investor Rights Agreement, dated February 4, 2008 between us
and certain Purchasers (5)
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10.28*
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Employment
Agreement, dated January 4, 2008 between us and Jeffrey B. Davis
(5)
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21
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Subsidiaries
of the registrant
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23.1 Consent
of Whitley Penn LLP
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31.1
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Chief
Executive Officer Certification Pursuant to 18 U.S.C. Section 1350, as
Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
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31.2
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Chief
Financial Officer Certification Pursuant to 18 U.S.C. Section 1350, as
Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002
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32
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Chief
Executive Officer Certification Chief Financial Officer Certification
Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002
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*
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[Management
contract or compensatory plan required to be filed as an Exhibit to this
Form pursuant to Item 15(c) of the
report.]
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(1)
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Incorporated
by reference to our Form 10-K for the year ended December 31,
2005.
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(2)
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Incorporated
by reference to our Form 10-Q for the quarter ended March 31,
2006.
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(3)
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Incorporated
by reference to our Form 10-K for the year ended December 31,
2006.
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(4)
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Incorporated
by reference to our Form 10-Q for the quarter ended March 31,
2007.
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(5)
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Incorporated
by reference to our Form S-1,
333-149633.
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