10-K/A 1 form10ka2003.txt AMENDMENT NO. 1 TO FORM 10-K OF 12/31/03 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K/A (AMENDMENT NO. 1) (Mark One) [ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Fiscal Year Ended December 31, 2003 [ ] 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 0-13634 MACROCHEM CORPORATION ------------------------------------------------------ (Exact name of registrant as specified in its charter) DELAWARE 04-2744744 --------------------------------------- ------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 110 HARTWELL AVENUE LEXINGTON, MASSACHUSETTS 02421-3134 ---------------------------------------- (Address of principal executive offices) (781) 862-4003 ------------------ (Telephone number) Securities registered pursuant to Section 12(b) of the Act: None Securities registered pursuant to Section 12(g) of the Act: Title of Class Name of Each Exchange on Which Registered -------------- ----------------------------------------- Common Stock, $.01 par value The Nasdaq SmallCap Market Series B Preferred Stock Purchase The Nasdaq SmallCap Market Rights, $.01 par value Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. Yes X No --------- --------- Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the 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. [ X ] Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Act). Yes No X --------- --------- THE AGGREGATE MARKET VALUE OF THE SHARES OF COMMON STOCK HELD BY NON-AFFILIATES, BASED UPON THE CLOSING PRICE FOR SUCH STOCK ON JUNE 30, 2003 WAS APPROXIMATELY $32,203,453. AS OF APRIL 30, 2004, 38,620,990 SHARES OF COMMON STOCK, $.01 PAR VALUE, WERE OUTSTANDING. Portions of the following documents are incorporated into the Parts of this Report on Form 10-K indicated below: None. EXPLANATORY NOTE This Amendment No. 1 on Form 10-K/A is being filed to amend Item 10 and Item 14 of Part III to include disclosure of information originally incorporated by reference to our Proxy Statement for the 2004 Annual Meeting, which will be filed pursuant to Regulation 14A on or about May 26, 2004. INDEX TO FORM 10-K/A PAGE NUMBER ----------- PART III FINANCIAL INFORMATION Item 10 Directors and Executive Officers of the Registrant 1 Item 14 Principal Accountant Fees and Services 5 PART IV OTHER INFORMATION Item 15 Exhibits, Financial Statement Schedules and Reports on Form 8-K 7-11 SIGNATURES 12 EXHIBIT INDEX 13 i. Part III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT The following table sets forth the year each Director was first elected and the age, positions, and offices presently held by each Director with the Company: YEAR FIRST BECAME A NAME AGE DIRECTOR POSITION WITH COMPANY -------------------------------------------------------------------------------- John L. Zabriskie........64 2000 Chairman of the Board of Directors Robert J. DeLuccia.......58 2000 President, Chief Executive Officer and Vice Chairman of the Board of Directors Michael A. Davis........62 1997 Director Paul S. Echenberg........60 2000 Director Peter G. Martin.........55 1995 Director The following is a brief summary of the background of each Director of the Company: JOHN L. ZABRISKIE, PH.D., has served as a Director of the Company since 2000 and was elected Chairman of the Board of Directors in 2001. Since 2001, he has been a co-founder and Director of PureTech Ventures, LLC. From 1997 to 2000, he was Chairman, President and Chief Executive Officer of NEN Life Science Products, which was sold to Perkin Elmer. In 1994, Dr. Zabriskie became Chairman, President and Chief Executive Officer of Upjohn; he was responsible for Upjohn's merger with the Swedish pharmaceutical company Pharmacia, and became Chief Executive Officer of the merged company. Before his appointment at Upjohn, he spent nearly 30 years with Merck & Company, rising to Executive Vice President and President of Merck Manufacturing Division. He is a member of the Board of Directors of PureTech Ventures, LLC (since 2000) and the following publicly traded companies: Array Biopharma (since 2001); Biosource International (since 2002); and Kellogg Company (since 1995). Dr. Zabriskie received a B.S. in chemistry from Dartmouth College and a Ph.D. in organic chemistry from the University of Rochester. ROBERT J. DELUCCIA has served as the Company's President and Chief Executive Officer and Vice Chairman of the Board since June of 2003 and as a Director since 2000. Mr. DeLuccia is the former President and Chief Executive Officer of Immunomedics, Inc., a NASDAQ biopharmaceutical company focused on the development and commercialization of antibody diagnostic imaging and therapeutic products for cancer and infectious diseases. Prior to Immunomedics, he was President of Sterling Winthrop Pharmaceuticals, the U.S. subsidiary of Sanofi (now Sanofi-Sythelabo). Mr. DeLuccia began his career as a pharmaceutical sales representative for Pfizer and progressed to Vice President Marketing and Sales Operations for Pfizer's Roerig Division. He is also a member of the board of directors of IBEX Technologies, a publicly traded (TSX) pharmaceutical company specializing in the development of biological markers for diagnosis, monitoring and treatment of certain diseases. Mr. DeLuccia holds both an M.B.A. and a B.S. in marketing from Iona College. 1 MICHAEL A. DAVIS, M.D., SC.D., has served as a Director of the Company since 1997 and provided medical and pharmaceutical consulting services to the Company from 1991 to 2003. He currently is Medical Director of E-Z-EM, Inc., a public company engaged in supplying oral radiographic contrast media, as well as medical devices, where he also serves as a Director. From 2002 to 2003, Dr. Davis, in addition to being Medial Director of E-Z-EM, was Senior Vice President of MedEView, a start-up radiology informatics company and Visiting Scientist in the Department of Radiology at Massachusetts General Hospital. From 1980 to 2002, Dr. Davis was Professor of Radiology and Nuclear Medicine and Director of the Division of Radiologic Research at the University of Massachusetts Medical School. From 1982 to 1997, Dr. Davis was Adjunct Professor of Surgery at Tufts University School of Veterinary Medicine. From 1986 to 2002, he was Affiliate Professor of Biomedical Engineering at Worcester Polytechnic Institute. In addition, from February to November 1999 he was President and Chief Executive Officer of Amerimmune Pharmaceuticals, Inc., a public company, and its wholly owned subsidiary, Amerimmune Inc., which is engaged in developing drugs relating to the immune system. From February 1999 to March 2003, Dr. Davis served as a Director of both Amerimmune Pharmaceuticals, Inc. and Amerimmune Inc. Dr. Davis received a B.S. and M.S. from Worcester Polytechnic Institute, an S.M. and Sc.D. from the Harvard School of Public Health, an M.B.A. from Northeastern University and an M.D. from the University of Massachusetts Medical School. PAUL S. ECHENBERG has served as a Director of the Company since 2000. Since 1997, he has been the President and Chief Executive Officer of Schroders & Associates Canada, Inc. and a director of Schroder Ventures Limited. These firms provide merchant banking advisory services to a number of Canadian buy-out funds. He is a director of the following publicly traded companies: E-Z-EM, Inc., a supplier of oral radiographic contrast media and medical devices and Benvest Capital Inc., a merchant bank that he founded. From 1989 through 1997, Mr. Echenberg was President of Eckvest Equity, Inc., a private merchant bank providing consulting and personal investment services. From 1970 to 1989, he was President and Chief Executive Officer of Twinpak, Inc., a manufacturer of plastic packaging, and from 1982 to 1989 he was Executive Vice President of CB Pak, Inc., a publicly traded plastic, glass and packaging company. Mr. Echenberg received a B.Sc. from McGill University and an M.B.A. from Harvard Business School. PETER G. MARTIN has served as a Director of the Company since 1995. Since 1990, Mr. Martin has been an independent investment banker and venture capitalist and currently an advisor to Enzo Biochem. Prior to 1990, he was a commercial banker. Mr. Martin was initially elected to the Board of Directors as the designee of David Russell, who privately purchased 1 million shares of the Company's Common Stock in 1995. Mr. Russell is no longer entitled to designate a Director of the Company. Mr. Martin received a B.A. and J.D. from Fordham University and an M.B.A. from Columbia University. AUDIT COMMITTEE The Board of Directors has established an Audit Committee, whose members are Mr. Martin (Chairman), Dr. Davis and Mr. Echenberg. The Board has determined that Mr. Echenberg is the "audit committee financial expert." Each of the Audit Committee members meet the definition of "independence" as required by applicable listing standards of The NASDAQ Stock Market, Inc. and the established criteria of the SEC. 2 EXECUTIVE OFFICERS The executive officers of the Company, their ages and their positions with the Company are as follows: Name Age Position with Company ---------------------------------------------------------------------------- Robert J. DeLuccia.........58 President and Chief Executive Officer Thomas C.K. Chan...........48 Vice President of Research and Development, Chief Technology Officer Glenn E. Deegan ...........37 Vice President and General Counsel Bernard R. Patriacca.......60 Vice President, Chief Financial Officer and Treasurer Melvin A. Snyder...........61 Vice President, Market Development The following is a brief summary of the backgrounds of Dr. Chan, Mr. Deegan, Mr. Patriacca and Mr. Snyder. The background of the Company's other executive officer, Mr. DeLuccia, is summarized above. THOMAS C.K. CHAN, PH.D., has served as the Company's Vice President of Research and Development and Chief Technology Officer since April 2003. From September 2001 until April 2003, Dr. Chan served as the Company's Vice President of Research and Technology. From December 2000 until September 2001, he served as the Company's Senior Director of Preclinical Studies. From 1997 to 2000, he served as Senior Director of Pharmacology and Toxicology at EPIX Medical, Inc. From 1994 to 1997, he served as Director of Therapeutic Development at Creative BioMolecules, Inc. and from 1992 to 1993, Dr. Chan served as their Manager of Pharmacology and Toxicology. From 1990 to 1992, he served as Associate Director at the Purdue Cancer Center. Dr. Chan earned a B.Sc. in Biochemistry/Microbiology and a doctorate in Pharmacology from the University of British Columbia. He then completed a fellowship in Hematology/Oncology at the UCSD Cancer Center in San Diego. GLENN E. DEEGAN, ESQ., has served as the Company's Vice President, General Counsel and Secretary since July 2003. From June 2001 until July 2003, Mr. Deegan served as the Company's Director of Legal Affairs and as General Counsel and Secretary. Prior to joining MacroChem, he served as Assistant General Counsel of Summit Technology, Inc. Earlier in his career, Mr. Deegan was engaged in the private practice of law in Boston at Holland & Knight LLP and at Nutter, McClennen & Fish, LLP. Mr. Deegan holds a bachelor of science degree from Providence College and a juris doctor degree from Boston College. BERNARD R. PATRIACCA, C.P.A., has served as the Company's Vice President, Chief Financial Officer and Treasurer since April 2001. From 1997 to 2001, he served as Vice President and Controller of Summit Technology, Inc. From 1994 to 1997, he served as Vice President of Errands Etc., Inc., a privately held homeowners' personal service company. From 1991 to 1994, Mr. Patriacca held senior financial management positions at several privately held consumer services companies. From 1973 to 1991, he was employed in various capacities at Dunkin Donuts, Inc., including Chief Financial Officer and Director. Mr. Patriacca received a B.S. and an M.B.A. from Northeastern University. 3 MELVIN A. SNYDER, has served as the Company's Vice President for Market Development since October 2000. From June 1999 until October 2000, he served as a consultant to the Company in the area of business development. From 1998 until 1999, he was Vice President of Marketing and Business Development at Immunomedics, and, between 1995 and 1998, he served as a consultant to several pharmaceutical companies including Immunomedics. Between 1975 and 1995, he was President of ProClinica Inc., a marketing communications and licensing-support company. Mr. Snyder holds a bachelor's degree from Lehigh University. CODE OF CONDUCT AND ETHICS MacroChem's Board of Directors has adopted a code of ethics and conduct that applies to its principal executive officer, principal accounting officer or controller, or persons performing similar functions. That Code of Ethics and Conduct has been posted on MacroChem's Internet website at www.macrochem.com. MacroChem would intend to satisfy the disclosure requirements under Item 10 of Form 8-K regarding an amendment to, or waiver from, a provision of its Code of Ethics and Conduct and that relates to a substantive amendment or material departure from a provision of the Code by posting such information on its internet website at www.macrochem.com. SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE Section 16(a) of the Securities Exchange Act of 1934 requires the Company's officers and directors, and persons who beneficially own more than 10 percent of the Company's Common Stock to file reports of ownership and changes in ownership with the Securities and Exchange Commission. Based solely on its review of the copies of such reports received by it, and written representations from certain reporting persons that no Forms 5 were required for those persons, the Company believes that during 2003 all filing requirements applicable to its officers, directors, and such 10 percent beneficial owners were complied with. 4 ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES. Deloitte & Touche LLP is the Company's independent auditor. The following table sets forth the estimated aggregate fees billed to the Company for the fiscal years ended December 31, 2003 and 2002 by Deloitte & Touche: 2003 2002 ---- ---- Audit Fees $115,480 $83,900 Audit-Related Fees -- -- Tax Fees -- -- All Other Fees -- -- ------- ------- ------- ------- Total $115,480 $83,900 AUDIT FEES Audit fees were for professional services rendered for the audit of the Company's annual financial statements, review of financial statements included in the Company's quarterly reports on Form 10-Q and services that were provided in connection with statutory and regulatory filings or engagements. AUDIT-RELATED FEES Audit-Related Fees refer to assurance and related services that are reasonably related to the performance of the audit or review of Company's consolidated financial statements and are not reported under "Audit Fees." The Company did not pay any Audit-Related Fees during 2003 or 2002. TAX FEES Tax Fees refer to fees for professional services rendered regarding tax compliance, tax advice or tax planning. The Company did not pay any Tax Fees to Deloitte & Touche during 2003 or 2002. ALL OTHER FEES All Other Fees refer to fees for services other than those described above. The Company did not pay Deloitte & Touche fees for any other services during 2003 or 2002. PRE-APPROVAL POLICIES AND PROCEDURES It is the policy of the Company that all services provided by Deloitte & Touche shall be pre-approved by the Audit Committee. Deloitte & Touche will provide the Audit Committee with an engagement letter outlining the scope of the audit services proposed to be performed during the fiscal year and the estimated fees for such services. Pre-approval of audit and permitted non-audit services may be given by the Audit Committee at any time up to one year before the commencement of such services by Deloitte & Touche. Pre-approval must be 5 detailed as to the particular services to be provided. Pre-approval may be given for a category of services, provided that (i) the category is narrow enough and detailed enough that management of the Company will not be called upon to make a judgment as to whether a particular proposed service by Deloitte & Touche fits within such pre-approved category of services and (ii) the Audit Committee also establishes a limit on the fees for such pre-approved category of services. 6 PART IV ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K. (a)(1) The following Financial Statements as of December 31, 2003 and 2002 and for the three years in the period ended December 31, 2003 are incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 2003 (File No. 0-13634): Independent Auditors' Report Balance Sheets Statements of Operations Statements of Stockholders' Equity Statements of Cash Flows Notes to Financial Statements (a)(2) The following Financial Statement Schedules are filed herewith: None. Schedules not included herein are omitted because they are not applicable or the required information appears in the Financial Statements or Notes thereto. (a)(3) The following exhibits are filed herewith or are incorporated by reference as may be indicated: 3.1 Certificate of Incorporation as amended, incorporated by reference to Exhibit 3a to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997 (File No. 0-13634). 3.2 Amended and Restated By-Laws of the Company, incorporated by reference to Exhibit 5 to the Company's Current Report on Form 8-K dated August 13, 1999 (File No. 0-13634). 4.1 Stock Purchase Warrant, incorporated by reference to Exhibit 4 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996 (File No. 0-13634). 4.2 Rights Agreement dated as of August 13, 1999 between the Company and American Stock Transfer & Trust Company, as Rights Agent, including Form of Certificate of Designation with respect to the Series B Preferred Stock, par value $.01 per share (attached as Exhibit A to the Rights Agreement), Form of Rights Certificate (attached as Exhibit B to the Rights Agreement), and Summary of Rights (attached as Exhibit C to the Rights Agreement), incorporated by reference to Exhibits 1, 2, 3 and 4, respectively, to the Company's Current Report on Form 8-K dated August 13, 1999 (File No. 0-13634). 7 4.3 Common Stock Certificate, incorporated by reference to Exhibit 4c to the Company's Annual Report on Form 10-K for the year ended December 31, 1999 (File No. 0-13634). 10.1 MacroChem Corporation 2001 Incentive Plan incorporated by reference to Exhibit 99 to the Company's Form S-8 as filed on August 8, 2001 (File No. 333-67080). 10.2 1994 Equity Incentive Plan as amended November 14, 1997, incorporated by reference to Exhibit 99.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1997 (File No. 0-13634). * 10.3 1984 Non-Qualified Stock Option Plan as amended November 15, 1996, incorporated by reference to Exhibit 10.2 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996 (File No. 0-13634). * 10.4 1984 Incentive Stock Option Plan as amended November 15, 1996, incorporated by reference to Exhibit 10.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996 (File No. 0-13634). * 10.5 Form of Employment Agreement between the Company and Mr. Mel Snyder, incorporated by reference to Exhibit 10f to the Company's Annual Report on Form 10-K for the year ended December 31, 2000 (File No. 0-13634). * 10.6 Form of Employment Agreement between the Company and Mr. Robert J. Palmisano, incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2001 (File No. 0-13634). * 10.7 MacroChem Corporation Option Certificate between the Company and Robert J. Palmisano, incorporated by reference to Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2001 (File No. 0-13634). * 10.8 Form of Employment Agreement between the Company and Mr. Bernard R. Patriacca, incorporated by reference to Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2001 (File No. 0-13634). * 10.9 Form of Employment Agreement between the Company and Dr. Thomas C.K. Chan, incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the Quarter ended September 30, 2001 (File No. 0-13634).* 10.10 Form of Severance Agreement between the Company and Mr. Bernard R. Patriacca, dated as of October 25, 2002 incorporated by reference to Exhibit 10h to the Company's Annual Report on Form 10-K for the year ended December 31, 2002 (File No. 0-13634).* 10.11 Form of Severance Agreement between the Company and Dr. Thomas C.K. Chan, dated as of October 25, 2002 incorporated by reference to Exhibit 10i to the Company's Annual Report on Form 10-K for the year ended December 31, 2002 (File No. 0-13634).* 8 10.12 Form of Noncompetition Agreement between the Company and Glenn E. Deegan, Esq., dated as of June 5, 2001 is incorporated by reference to Exhibit 10.12 to the Company's Annual Report on Form 10-K for the year ended December 31, 2003 (File No. 0-13634).* 10.13 Form of Confidentiality Agreement between the Company and Glenn E. Deegan, Esq., dated as of June 5, 2001 is incorporated by reference to Exhibit 10.13 to the Company's Annual Report on Form 10-K for the year ended December 31, 2003 (File No. 0-13634).* 10.14 Form of Severance Agreement between the Company and Glenn E. Deegan, Esq., dated as of October 25, 2002 is incorporated by reference to Exhibit 10.14 to the Company's Annual Report on Form 10-K for the year ended December 31, 2003 (File No. 0-13634).* 10.15 Form of Employment Agreement between the Company and Robert J. DeLuccia incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 2003 (File No. 0-13634).* 10.16 MacroChem Corporation Option Certificate reflecting grant by the Company to Robert J. DeLuccia incorporated by reference to Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 2003 (File No. 0-13634).* 10.17 Form of Retention Agreement between the Company and Bernard R. Patriacca incorporated by reference to Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 2003 (File No. 0-13634).* 10.18 Form of Retention Agreement between the Company and Melvin A. Snyder incorporated by reference to Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 2003 (File No. 0-13634).* 10.19 Form of Retention Agreement between the Company and Thomas C.K. Chan incorporated by reference to Exhibit 10.5 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 2003 (File No. 0-13634).* 10.20 Form of Retention Agreement between the Company and Glenn E. Deegan incorporated by reference to Exhibit 10.6 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 2003 (File No. 0-13634).* 10.21 Securities Purchase Agreement among the Company, Bay Harbor Investments, Inc. and Strong River Investments, Inc., incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K dated October 23, 2000 (File No. 0-13634). 10.22 Form of Closing Warrant dated as of October 23, 2000, incorporated by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K dated October 23, 2000 (File No. 0-13634). 10.23 Form of Adjustable Warrant dated as of October 23, 2000, incorporated by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K dated October 23, 2000 (File No. 0-13634). 9 10.24 Form of Registration Rights Agreement by and among the Company, Bay Harbor Investments, Inc. and Strong River Investments, Inc., incorporated by reference to Exhibit 10.4 to the Company's Current Report on Form 8-K dated October 23, 2000 (File No. 0-13634). 10.25 Warrant issued to Leerink Swann & Company dated as of October 23, 2000, incorporated by reference to Exhibit 10.5 to the Company's Current Report on Form 8-K dated October 23, 2000 (File No. 0-13634). 10.26 Securities Purchase Agreement among MacroChem Corporation, Pine Ridge Financial Ltd., DMG Legacy International, Ltd., SDS Merchant Fund, LP, Par Investment Partners, L.P., Narragansett I, LP, and Narragansett Offshore Ltd., incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K dated July 24, 2001 (File No. 0-13634). 10.27 Form of Warrant incorporated by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K dated July 24, 2001 (File No. 0-13634). 10.28 Form of Registration Rights Agreement by and among MacroChem Corporation, Pine Ridge Financial Ltd., DMG Legacy International, Ltd., SDS Merchant Fund, LP, Par Investment Partners, L.P., Narragansett I, LP, and Narragansett Offshore Ltd., incorporated by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K dated July 24, 2001 (File No. 0-13634). 10.29 Securities Purchase Agreement, dated as of September 10, 2003, by and among MacroChem Corporation and the purchasers listed on Schedule A thereto, incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K dated September 12, 2003 (File No. 0-13634). 10.30 Form of Warrant dated as of September 10, 2003, incorporated by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K dated September 12, 2003 (File No. 0-13634). 10.31 Registration Rights Agreement, dated as of September 10, 2003, by and among MacroChem Corporation and the investors listed on the signature page thereto, incorporated by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K dated September 12, 2003 (File No. 0-13634). 10.32 Securities Purchase Agreement, dated as of March 9, 2004, by and among MacroChem Corporation and the purchasers listed on Schedule A thereto, incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K dated March 10, 2004 (File No. 0-13634). 10.33 Form of Warrant dated as of March 9, 2004, incorporated by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K dated March 10, 2004 (File No. 0-13634). 10.34 Registration Rights Agreement, dated as of March 9, 2004, by and among MacroChem Corporation and the investors listed on the signature page thereto, incorporated by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K dated March 10, 2004 (File No. 0-13634). 10 10.35 Lease between GLB Lexington Limited Partnership and the Company dated as of July 21, 1999, for space located at 110 Hartwell Avenue, Lexington, MA 02421, incorporated by reference to Exhibit 10.11 to the Company's Annual Report on Form 10-K for the year ended December 31, 1999 (File No. 0-13634). 23.1 Consent of Deloitte & Touche LLP. 31.1 Certification of Principal Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 31.2 Certification of Principal Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 32.1 Certification of Principal Executive Officer Pursuant to Section 1350, Chapter 63 of Title 18, United States Code, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. 32.2 Certification of Principal Financial Officer Pursuant to Section 1350, Chapter 63 of Title 18, United States Code, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. (b) A report on Form 8-K was filed on October 14, 2003 and included an unaudited balance sheet of the Company in response to a request from Nasdaq regarding the Company's stockholders' equity. -------------------------- *Management contract or compensatory plan or arrangement 11 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. MACROCHEM CORPORATION Dated: May 12, 2004 By: /s/ Robert J. DeLuccia ---------------- ------------------------------------- Robert J. DeLuccia President and Chief Executive Officer By: /s/ Bernard R. Patriacca ------------------------------------- Bernard R. Patriacca Vice President, Chief Financial Officer and Treasurer 12 EXHIBIT INDEX The following Exhibits are filed herewith: 23.1 Consent of Deloitte & Touche LLP. 31.1 Certification of Principal Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 31.2 Certification of Principal Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 32.1 Certification of Principal Executive Officer Pursuant to Section 1350, Chapter 63 of Title 18, United States Code, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. 32.2 Certification of Principal Financial Officer Pursuant to Section 1350, Chapter 63 of Title 18, United States Code, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. 13