Nevada
|
000-16731
|
87-0233535
|
(State or other jurisdiction of incorporation)
|
(Commission File Number)
|
(IRS Employer Identification No.)
|
o
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
o
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a -12)
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o
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d -2(b))
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o
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e -4(c))
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Cautionary Statement Concerning Forward-Looking Information
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3
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Explanatory Note
|
3
|
4
|
|
4
|
|
Agreement and Plan of Merger with VitaMedMD, LLC
|
4
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Form 10 Information
|
6
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The Business
|
6
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Reports to Security Holders
|
23
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Risk Factors
|
24
|
Risks Related to VitaMed's Business and Industry
|
24
|
Risks Related to VitaMed's Dependence on Third Parties
|
35
|
Risks Related to the Company's Common Stock
|
36
|
Trends, Risks and Uncertainties
|
41
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Selected Financial Information
|
42
|
Management's Discussion and Analysis or Plan of Operations
|
43
|
Summary of Key Results
|
43
|
Properties
|
47
|
Security Ownership of Certain Beneficial Owners and Management
|
48
|
Directors and Executive Officers
|
49
|
Executive Compensation
|
53
|
Certain Relationships and Related Transactions and Director Independence
|
57
|
Legal Proceedings
|
59
|
Market Price of and Dividends on Common Equity and Related Stockholder Matters
|
59
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Indemnification of Directors and Officers
|
60
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Financial Statements
|
62
|
62
|
|
63
|
|
63
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|
64
|
|
Item 1.01
|
Entry into
a Material Definitive Agreement.
|
·
|
a reverse split of its outstanding shares of Common Stock on a ratio of 1 for 100 (the "Reverse Split"),
|
·
|
an increase of its authorized shares of Common Stock to 250,000,000,
|
·
|
a change in the name of the Company to TherapeuticsMD, Inc., and
|
·
|
an amendment to the Company's Long Term Incentive Compensation Plan ("LTIP") to increase the authorized shares for issuance thereunder to 25,000,000.
|
Item 2.01
|
Completion of
Acquisition or Disposition of Assets.
|
·
|
A Reverse Split of the Company's 16,575,209 issued and outstanding shares of Common Stock. As a result of the Reverse Split, each share of Common Stock outstanding on the July 28, 2011 (the "Record Date"), without any action on the part of the holder thereof, became one one-hundredth of a share of Common Stock. The Reverse Split decreased the number of outstanding shares of the Company's Common Stock by approximately 99% resulting in 165,856 shares outstanding after the Reverse Split. The effectuation of the Reverse Split did not result in a change in the relative equity position or voting power of the shareholders of the Company.
|
·
|
An increase in the Company's number of shares of Common Stock authorized for issuance to 250,000,000.
|
·
|
A change in the name of the Company to TherapeuticsMD, Inc.
|
·
|
An amendment to the Company's LTIP to increase the shares authorized for issuance thereunder to 25,000,000.
|
●
|
The members who exchanged their Units in connection with the Merger acquired an aggregate beneficial ownership of approximately ninety-nine percent (99%) of the issued and outstanding shares of Common Stock of the Company; and
|
●
|
Shareholders beneficially owning 100% of the shares of the Company's Common Stock immediately prior to the consummation of the Transaction were diluted to an aggregate beneficial ownership of approximately one percent (1%) of the issued and outstanding shares of Common Stock of the Company.
|
The market for supplements in the women's health market is estimated at $2 billion annually (see illustration to left). A common misperception by healthcare providers is that prescription Nutrition and Medical Foods (i.e., prenatal vitamins) are drugs that require approval of and fall under the drug manufacturing standards of the U.S. Food and Drug Administration ("FDA"). The fact is that prescription nutritional products are dietary supplements, NOT drugs, even though they may be dispensed through a pharmacy to fulfill a doctor's prescription. Our business model is designed to transform this large market currently burdened by unnecessary costs and inefficiencies. |
As healthcare becomes increasingly consumer driven, patients are seeking more information, control and convenience which place additional time and financial pressures on physicians. Physicians are looking for improved ways to provide better service to their patients. A recent study by IMS Health Incorporated, the leading provider of information servcies for the healthcare industry, concludes that physicians desire fewer but more encompassing relationships with companies that can provide more valuable information, deliver more relevant services, and better respond to specific needs of their practice and patients. VitaMed meets this
challenge by focusing on the opportunities in women’s health, specifically the OB/GYN market, to provide a better customer experience for physician and patient.
|
·
|
VitaMed offers the highest quality products incorporating patented ingredients like chelated iron and life’s DHA™ into its formulations while maintaining value pricing. This results in greater patient acceptance and satisfaction of our products versus the competition.
|
·
|
VitaMed is able to show physician practices that by recommending VitaMed products, the practice is able to realize office efficiencies and cost savings over prescribing competing prescription products.
|
·
|
Through the use of our data collection, VitaMed is able to provide to physician practices with statistics and data that show they have helped reduced the cost of patient care and improved patient compliance.
|
·
|
Physician practices that choose to dispense products directly to their patients from their offices earn revenue from the sale of the products. Additionally, selected physicians that participate in our studies can receive compensation for their time and services.
|
·
|
Our statistical data indicates that a high level of patient compliance is achieved as a result of VitaMed’s direct interaction with patients which supplements patient education.
|
·
|
Improved patient education, a high level of patient compliance and reduced cost of products all result in lower cost of care for payors.
|
·
|
ensure the potency and quality of our vitamin products,
|
·
|
help physicians/providers and payors deliver the best possible outcomes to patients by deliveringbetter information on patient compliance and satisfaction,
|
·
|
provide a 30-day money back guarantee for all of our products, and
|
·
|
ensure a safe, secure online shopping experience through our encrypted website.
|
·
|
OPERA™ business process patents
|
·
|
Physician/provider portal; a key way to gather and share physician data
|
·
|
Mobile applications linked to the OPERA™ system
|
·
|
New product technologies and formulations
|
·
|
be a food for oral ingestion or tube feeding (nasogastric tube);
|
·
|
be labeled for the dietary management of a specific medical disorder, disease or condition for which there are distinctive nutritional requirements; and
|
·
|
be intended to be used under medical supervision. Medical foods require a prescription from a physician.
|
·
|
The federal healthcare anti-kickback statute prohibits, among other things, persons from knowingly and willfully soliciting, offering, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce or reward either the referral of an individual for, or the purchase, order or recommendation of, any good or service, for which payment may be made under federal healthcare programs such as Medicare and Medicaid.
|
·
|
The Ethics in Patient Referrals Act, commonly referred to as the Stark Law, and its corresponding regulations, prohibit physicians from referring patients for designated health services reimbursed under the Medicare and Medicaid programs to entities with which the physicians or their immediate family members have a financial relationship or an ownership interest, subject to narrow regulatory exceptions.
|
·
|
The federal False Claims Act imposes criminal and civil penalties, including civil whistleblower or
qui tam
actions, against individuals or entities for knowingly presenting, or causing to be presented, to the federal government claims for payment that are false or fraudulent or making a false statement to avoid, decrease, or conceal an obligation to pay money to the federal government.
|
·
|
HIPAA imposes criminal and civil liability for executing a scheme to defraud any healthcare benefit program and also imposes obligations, including mandatory contractual terms, with respect to safeguarding the privacy, security and transmission of individually identifiable health information.
|
·
|
The federal false statements statute prohibits knowingly and willfully falsifying, concealing or covering up a material fact or making any materially false statement in connection with the delivery of or payment for healthcare benefits, items or services.
|
·
|
Analogous state laws and regulations, such as state anti-kickback and false claims laws, may apply to sales or marketing arrangements and claims involving healthcare items or services reimbursed by non-governmental third party payors, including private insurers, and some state laws require pharmaceutical companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the federal government.
|
·
|
Further development and launching of our proprietary technology,
|
·
|
acceptance of our products by physicians and consumers,
|
·
|
our ability to negotiate satisfactory payment agreements with insurance companies, and
|
·
|
our ability to continue to manage satisfactory relationships with manufacturers of our products.
|
·
|
actual or perceived lack of security of information or privacy protection;
|
·
|
possible disruptions, computer viruses or other damage to the Internet servers or to users' computers; and
|
·
|
excessive governmental regulation.
|
·
|
The federal healthcare anti-kickback statute prohibits, among other things, persons from knowingly and willfully soliciting, offering, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce or reward either the referral of an individual for, or the purchase, order or recommendation of, any good or service, for which payment may be made under federal healthcare programs such as Medicare and Medicaid.
|
·
|
The Ethics in Patient Referrals Act, commonly referred to as the Stark Law, and its corresponding regulations, prohibit physicians from referring patients for designated health services reimbursed under the Medicare and Medicaid programs to entities with which the physicians or their immediate family members have a financial relationship or an ownership interest, subject to narrow regulatory exceptions.
|
·
|
The federal False Claims Act imposes criminal and civil penalties, including civil whistleblower or
qui tam
actions, against individuals or entities for knowingly presenting, or causing to be presented, to the federal government claims for payment that are false or fraudulent or making a false statement to avoid, decrease, or conceal an obligation to pay money to the federal government.
|
·
|
HIPAA imposes criminal and civil liability for executing a scheme to defraud any healthcare benefit program and also imposes obligations, including mandatory contractual terms, with respect to safeguarding the privacy, security and transmission of individually identifiable health information.
|
·
|
The federal false statements statute prohibits knowingly and willfully falsifying, concealing or covering up a material fact or making any materially false statement in connection with the delivery of or payment for healthcare benefits, items or services.
|
·
|
Analogous state laws and regulations, such as state anti-kickback and false claims laws, may apply to sales or marketing arrangements and claims involving healthcare items or services reimbursed by non-governmental third party payors, including private insurers, and some state laws require pharmaceutical companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the federal government.
|
● | reliance on third party for regulatory compliance and quality assurance; | |
● | the possible breach of the manufacturing arrangement by the third party because of factors beyond our control; and | |
● | the possible termination or nonrenewal of the manufacturing relationship by the third party, based on its own business priorities, at a time that is costly or inconvenient for us. |
December 31,
|
||||||||||||
June 30, 2011
|
2010
|
2009 | ||||||||||
TOTAL ASSETS
|
$ | 1,152,879 | $ | 1,197,253 | $ | 585,404 | ||||||
TOTAL LIABILITIES
|
1,011,805 | 232,842 | 101,774 | |||||||||
TOTAL MEMBERS’ EQUITY
|
141,074 | 964,411 | 483,630 | |||||||||
TOTAL LIABILITIES AND MEMBERS’ EQUITY
|
$ | 1,152,879 | $ | 1,197,253 | $ | 585,404 | ||||||
Years Ended
December 31,
|
||||||||||||
Period Ended
June 30, 2011
|
2010
|
2009
|
||||||||||
REVENUE, NET
|
$ | 994,159 | $ | 1,241,921 | $ | 221,192 | ||||||
COSTS OF REVENUE
|
444,849 | 556,390 | 205,097 | |||||||||
OPERATING EXPENSES
|
2,551,909 | 3,739,144 | 1,304,603 | |||||||||
LOSS BEFORE INCOME TAXES
|
(2,002,599 | ) | (3,053,613 | ) | (1,228,508 | ) | ||||||
PROVISION FOR INCOME TAXES
|
0 | 0 | 0 | |||||||||
NET LOSS
|
$ | (2,002,599 | ) | $ | (3,053,613 | ) | $ | (1,228,508 | ) |
● | an increase of approximately $482,000 in salaries, benefits, commissions, and incentives related to an increase in the management and sales teams; |
● | an increase of approximately $33,000 in non-cash compensation related to the issuance of options to purchase Units of VitaMed; | ||
● | an increase in professional fees of approximately $122,000 required by the Merger; | ||
● | an increase in other sales, general and administrative expenses of approximately $278,000 related to the marketing, advertising, promotions, rent, travel, communications, and vehicle expenses; | ||
● | an increase in research and amortization expenses of $22,000 related to the testing of current products' stability and packaging; and | ||
● | an increase in depreciation expense of approximately $5,000 related to the purchase of property and equipment. |
● | an increase of approximately $1,279,000 in salaries, benefits, commissions, and incentives related to an increase in the management and sales teams; | ||
● | an increase of approximately $168,000 in non-cash compensation related to the issuance of options to purchase Units of VitaMed; | ||
● | an increase in other sales, general and administrative expenses of approximately $922,000 related to the marketing, advertising, promotions, rent, travel, communications, and vehicle expenses; | ||
● | an increase in research and amortization expenses of $42,000 related to the testing of current products' stability and packaging; and | ||
● | an increase in depreciation expense of approximately $19,000 related to the purchase of property and equipment. |
Name and Address of Beneficial Owner
|
Title of Class
|
Number of Shares Beneficially Owned
(1)
|
Percent of Class
|
|||
Robert G. Finizio
Chairman and Chief Executive Officer
|
Common Stock
|
23,552,668
(2)
|
37.63%
|
|||
John C.K. Milligan, IV
President, Secretary and Director
|
Common Stock
|
8,367,631
(3)
|
13.24%
|
|||
Daniel A. Cartwright
Chief Financial Officer, Vice President Finance, Treasurer
|
Common Stock
|
-0-
|
-0-
|
|||
Mitchell L. Krassan
Executive Vice President, Chief Strategy Officer
|
Common Stock
|
431,646
(4)
|
0.70%
|
|||
Brian Bernick, M.D.
Director
|
Common Stock
|
10,572,221
(5)
|
16.87%
|
|||
All directors and executive officers as a group ( 5 persons):
|
Common Stock
|
42,924,166
(6)
|
64.57%
|
(1)
|
Unless otherwise noted, we believe that all shares are beneficially owned and that all persons named in the table have sole voting and investment power with respect to all shares of Common Stock owned by them. Applicable percentage of ownership is based on 61,204,766 shares of Common Stock currently outstanding as adjusted for each shareholder.
|
(2)
|
This amount includes 22,161,586 shares directly owned by Finizio and 1,391,082 shares due to Finizio upon exercise of vested options. The percentage of class for Finizio is based on 62,595,848 shares which would be outstanding if all of Finizio's vested options were exercised.
|
(3)
|
This amount includes (i) 6,368,018 shares directly owned by Milligan, (ii) 1,938,241 shares due to Milligan upon exercise of vested options, and (iii) 61,372 shares due to Milligan upon exercise of warrants. The percentage of class for Milligan is based on 63,204,379 shares which would be outstanding if all of Milligan's vested options and warrants were exercised.
|
(4)
|
This amount includes 431,646 shares due to Krassan upon exercise of vested options. The percentage of class for Krassan is based on 61,636,412 shares which would be outstanding if all of Krassan's vested options were exercised.
|
(5)
|
This amount includes (i) 9,119,766 shares beneficially owned by BF Investment Enterprises, Ltd., a company controlled by Mr. Bernick ("BF Investment"), (ii) 1,391,082 shares due to BF Investment upon exercise of vested options, and (iii) 61,372 shares due to BF Investment upon exercise of warrants. The percentage of class for Bernick is based on 62,657,220 shares which would be outstanding if all of BF Investment's vested options and warrants were exercised.
|
(6)
|
This amount includes all shares directly and indirectly owned by all officers and directors and all shares to be issued directly and indirectly upon exercise of options and warrants, The percentage of class for all officers and directors is based on 66,479,561 which would be outstanding if all of the officers' and directors' vested options and warrants were exercised.
|
NAME
|
AGE
|
POSITION
|
Robert G. Finizio
|
40
|
Chairman, Chief Executive Officer of the Company
Chief Executive Officer of VitaMed
|
John C. K. Milligan, IV
|
49
|
President, Secretary, Director of the Company
President, Secretary of VitaMed
|
Daniel A. Cartwright
|
53
|
Chief Financial Officer, Vice President Finance, Treasurer of the Company
Chief Financial Officer, Vice President Finance, Treasurer of VitaMed
|
Mitchell L. Krassan
|
46
|
Executive Vice President, Chief Strategy Officer of the Company
Executive Vice President, Chief Strategy Officer of VitaMed
|
Brian Bernick, M.D.
|
42
|
Director of the Company
|
Robert G. Finizio – Chairman, Chief Executive Officer of the Company
Chairman, Chief Executive Officer of VitaMed
|
John C.K. Milligan, IV – President, Secretary, Director of the Company
President Secretary of VitaMed
|
Daniel A. Cartwright – Chief Financial Officer, Vice President of Finance, and Treasurer of the Company
Chief Financial Officer, Vice President of Finance, Treasurer of VitaMed
|
Mitchell L. Krassan – Executive Vice President, Chief Strategy Officer of the Company
Executive Vice President, Chief Strategy Officer of VitaMed
|
Annual Compensation
|
Long Term Compensation
|
|||||
Name and
Principal Position
|
Fiscal Year
End
|
Salary ($)
|
Bonus ($)
|
All other and annual Compensation and LTIP Payouts ($)
|
Securities under Options/
SARS Granted (#)
|
Restricted Shares or Restricted Share Units
(#)
|
Robert G. Finizio*
Chief Executive Officer
|
2011
|
114,000
|
-0-
|
45,554
|
-0-
|
-0-
|
2010
|
140,282
|
-0-
|
45,554
|
-0-
|
-0-
|
|
2009
|
1,846
|
-0-
|
45,554
|
1,472,910
|
-0-
|
|
John C.K. Milligan*
President, Secretary
|
2011
|
114,000
|
-0-
|
63,471
|
-0-
|
-0-
|
2010
|
144,787
|
-0-
|
63,471
|
-0-
|
-0-
|
|
2009
|
1,846
|
-0-
|
63,471
|
2,052,255
|
-0-
|
|
Daniel A. Cartwright*
Chief Financial Officer, Vice President Finance, Treasurer
|
2011
|
22,406
|
-0-
|
-0-
|
-0-
|
-0-
|
2010
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
|
2009
|
-0-
|
-0-
|
-0-
|
-0-
|
||
Mitchell L. Krassan*
Chief Strategy Officer
|
2011
|
80,385
|
-0-
|
53,426
|
-0-
|
-0-
|
2010
|
15,096
|
-0-
|
31,945
|
902,158
|
-0-
|
|
2009
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
|
Jeffrey D. Howes
(1)
Former Principal Executive Officer
|
2011
|
15,000
|
-0-
|
-0-
|
-0-
|
-0-
|
2010
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
|
2009
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
|
Robert Cambridge
(2)
Former Principal Executive Officer
|
2011
|
5,000
|
-0-
|
-0-
|
-0-
|
-0-
|
2010
|
60,000
|
-0-
|
-0-
|
-0-
|
-0-
|
|
2009
|
26,000
|
-0-
|
-0-
|
-0-
|
-0-
|
|
Sky Kelley
(3)
Former Chief Executive Officer
|
2011
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
2010
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
|
2009
|
50,679
|
-0-
|
-0-
|
-0-
|
34,235
|
|
Gregory R. Woodhill
(4)
Former Chief Executive Officer
|
2011
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
2010
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
|
2009
|
-0-
|
-0-
|
3,500
|
-0-
|
-0-
|
|
Gerald L. Jensen
Former Principal Executive Officer
|
2011
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
2010
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
|
2009
|
-0-
|
-0-
|
-0-
|
-0-
|
-0-
|
(1)
|
Mr. Howes served as the Company's sole officer and director from February 15, 2011 through the Closing of the Merger for which services he received an aggregate of $15,000 pursuant to a consulting arrangement with the Company.
|
(2)
|
Mr. Cambridge's compensation for 2011 including consulting fees from January 1 through February 15, 2011. Compensation for 2009 included consulting fees from July 2009 to December 2009. Mr. Cambridge's compensation was invoiced and paid through his consulting company.
|
(3)
|
Includes compensation paid by America's Minority Health Network from June 2009 through December 2009. Also includes 3,423,422 shares of the Company's restricted Common Stock valued at $291,667.
|
(4)
|
Mr. Woodhill was not an employee of the Company; he received $500 per month for his services pursuant to a consulting arrangement with the Company.
|
Name (a)
|
Fees earned or paid in cash
($)
(b)
|
Stock awards
($)
(c)
|
Option awards
($)
(d)
|
Non-equity incentive plan com-
pensation
($)
(e)
|
Nonqualified
deferred
compensation
earnings
($)
(f)
|
All
other
compen-sation
($)
(g)
|
Total
($)
(h)
|
Robert G. Finizio
|
0
|
0
|
0
|
0
|
0
|
0
|
|
John C.K. Milligan, IV
|
0
|
0
|
0
|
0
|
0
|
0
|
|
Nick Segal*
|
0
|
0
|
13,986
|
0
|
0
|
0
|
13,986
|
Alan Wurtzel*
|
0
|
0
|
13,986
|
0
|
0
|
0
|
13,986
|
Brian Bernick
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
Larry Lewin*
|
0
|
0
|
13,986
|
0
|
0
|
0
|
13,986
|
|
*These individuals are not serving as directors of the Company post Merger, but were directors of VitaMed prior to the Merger through the Closing of the Merger.
|
Option Awards | Stock Awards | ||||||||
Name
|
Number of Securities Underlying Unexercised Options
(#) Exercisable
|
Number of Securities Underlying Unexercised Options
(#) Unexercis-able
|
Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options
(#)
|
Option Exercise Price
($)
|
Option Expiry Date
|
Number of Shares
or Units of Stock That Have Not Vested (#)
|
Market Value of Shares or Units of Stock That Have Not Vested
($)
|
Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested
(#)
|
Equity Incentive Plan Awards Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($)
|
Robert G. Finizio, Chairman, CEO | 1,391,082 (1) | 81,828 (1) | -0- | $0.10 | 01/01/19 | -0- | -0- | -0- | -0- |
John C.K. Milligan, IV,
President,
Secretary,
Director
|
1,938,241 (1) | 114,014 (1) | -0- | $0.10 | 01/01/19 |
-0-
|
-0- | -0- | -0- |
Daniel A. Cartwright, VP-Finance, C FO, Treasurer | -0- | -0- | -0- | -0- | N/A | -0- | -0- | -0- | -0- |
Mitchell Krassan,
|
73,646 (2) | -0- | -0- | $0.19 |
05/01/20
|
-0- |
-0-
|
-0-
|
-0- |
Exec. Vice President | 23,015 (3) | 69,042 (3) | -0- | $0.19 | 05/01/20 | -0- | -0- | -0- | -0- |
265,943 (4) | 470,512 (4) | -0- | $0.20 | 05/01/20 | -0- | -0- | -0- | -0- | |
Brian Bernick, Director | 1,391,082 (1) | 81,828 (1) | -0- | $0.10 | 01/01/19 | -0- | -0- | -0- | -0- |
|
(1)
The options granted on January 1, 2009 vest monthly on the first of each month over three years.
|
|
(2)
All 73,646 underlying shares vested on May 1, 2011.
|
|
(3)
The options granted on May 1, 2010 vest annually on the anniversary date over four years.
|
|
(4)
The options granted on September 1, 2010 vest monthly on the first of each month over three years.
|
Quarter Ended
|
High
|
Low
|
Fiscal Year 2011
|
||
Third Quarter
|
$0.04
|
$0.01
|
Second Quarter
|
$0.07
|
$0.01
|
First Quarter
|
$0.10
|
$0.02
|
Fiscal Year 2010
|
||
Fourth Quarter
|
$0.15
|
$0.03
|
Third Quarter
|
$0.90
|
$0.06
|
Second Quarter
|
$1.34
|
$0.25
|
First Quarter
|
$1.60
|
$0.10
|
Fiscal Year 2009
|
||
Fourth Quarter
|
$1.55
|
$0.51
|
Third Quarter
|
$1.50
|
$0.20
|
Second Quarter
|
$1.01
|
$0.51
|
First Quarter
|
$1.50
|
$1.01
|
Plan Category
|
Number of Securities to be issued upon exercise of outstanding options
(a)
|
Weighted-average exercise price of
outstanding options
(b)
|
Number of securities remaining
available for future issuance under
equity compensation plans
(excluding securities reflected in column (a)
(c)
|
Equity compensation plans not approved by security holders
|
-0-
|
-0-
|
-0-
|
Equity compensation plan (LTIP) approved by security holders
|
10,365,281
|
$0.147
|
14,364,719
|
Total
|
10,365,281
|
$0.147
|
14,364,719
|
·
|
issued 58,407,331 shares of its Common Stock to the members of VitaMed;
|
·
|
issued Company Options for the purchase of an aggregate of 10,365,281 underlying shares of its Common Stock;
|
·
|
issued Company Warrants for the purchase of an aggregate of 613,718 underlying shares of its Common Stock, and
|
·
|
reserved 613,710 underlying shares of its Common Stock for issuance upon exercise of Company Warrants to guarantee a bank loan.
|
●
|
The members who exchanged their units of VitaMed in connection with the Merger acquired an aggregate beneficial ownership of 58,407,331 shares or approximately ninety-nine percent (99%) of the issued and outstanding shares of the Company's Common Stock, and
|
●
|
Shareholders beneficially owning 100% of the shares of the Company's Common Stock immediately prior to the consummation of the Merger were diluted to an aggregate beneficial ownership of 165,856 shares or approximately one percent (1%) of the Company's issued and outstanding shares of Common Stock.
|
Robert G. Finizio | Chief Executive Officer | |
John C.K. Milligan | President, Secretary | |
Daniel A. Cartwright | Chief Financial Officer, Vice President Finance, Treasurer | |
Mitchell Krassan | Executive Vice President, Chief Strategy Officer |
Item 9.01 | Financial Stat ements and Exhibits. | |
(a)
|
Financial Statements of Business Acquired: | |
See Financial Statements of VitaMed for six months ended June 30, 2011 and for yearsended December 31, 2010 and 2009 filed as exhibits to the 14C filed with the Commissionon September 12, 2011.
|
||
(b) | Pro Forma Financial Information: | |
See Unaudited Proforma Consolidated Financial Statements filed as exhibits to the 14C filedwith the Commission on September 12, 2011.
|
||
(c) |
Shell Company Transactions:
|
|
None.
|
||
(d) |
Exhibits:
|
(1)(2)
(3)
|
Filed as an exhibit to Form 8-K filed with the Commission on July 21, 2011.
Filed as an exhibit to Definitive Information Statement on Schedule 14C filed with the Commission on September 12, 2011.
Filed as an exhibit to Form 8-K filed with the Commission on September 14, 2011.
|
Date: October 11, 2011 | THERAPEUTICSMD, INC. | ||
By: | /s/Robert G. Finizio | ||
Robert G. Finizio, Chief Executive Officer
|
STATE OF NEVADA
|
||
ROSS MILLER
Secretary of State
|
SCOTT W. ANDERSON
Deputy Secretary
for Commercial Recordings
|
|
OFFICE OF THE
|
||
SECRETARY OF STATE
|
||
Certified Copy
|
||
August 3, 2011
|
Job Number:
|
C20110803-0552
|
Reference Number:
|
|
Expedite:
|
|
Through Date:
|
Document Number(s)
|
Description
|
Number of Pages
|
20110575061-58
|
Amended & Restated Articles
|
4 Pages/1 Copies
|
Respectfully,
|
||
ROSS MILLER
|
||
Secretary of State
|
||
ROSS MILLER
|
*09050l*
|
|
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www.nvsos.gov
|
Filed in the office of
Ross Miller
Secretary of State
State of Nevada
|
Document Number
|
|||
Certificate to Accompany
Restated Articles or
Amended and Restated Articles
(PURSUANT TO NRS)
|
20110575061-58
|
|||
Filing Date and Time
|
||||
08/03/2011 9:19 AM
|
||||
Entity Number
|
||||
E0343302010-6
|
||||
USE BLACK INK ONLY - DO NOT HIGHLIGHT
|
ABOVE SPACE IS FOR OFFICE USE ONLY
|
AMHN, INC.
|
2
.
The articles are: (mark only one box)
|
o
Restated
|
x
Amended and Restated
|
Please entitle your attached articles “Restated” or “Amended and Restated,” accordingly.
|
o
|
No amendments; articles are restated only and are signed by an officer of the corporation who has been authorized to execute the certificate by resolution of the board of directors adopted on:
|
|
The certificate correctly sets forth the text of the articles or certificate as amended to the date of the certificate.
|
||
x | The entity name has been amended. | |
o
|
The registered agent has been changed. (attach Certificate of Acceptance from new registered agent)
|
|
o
|
The purpose of the entity has been amended.
|
|
x
|
The authorized shares have been amended.
|
|
o
|
The directors, managers or general partners have been amended.
|
|
o
|
IRS tax language has been added.
|
|
o
|
Articles have been added.
|
|
x
|
Articles have been deleted.
|
|
o
|
Other. The articles or certificate have been amended as follows: (provide article numbers, if available)
|
|
|
This form must be accompanied by appropriate fees.
|
Nevada Secretary of State Restated Articles
Revised: 10-16-09
|
/s/ Jeffrey D. Howes | |
Jeffrey D. Howes, President
|
§
|
Section
|
Page
|
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1.
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2
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2.
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3.
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4.
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5.
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6.
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4
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7.
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8.
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9.
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10.
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11.
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6
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12.
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13.
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7
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14.
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7
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15.
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7
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16.
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7
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17.
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7
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18.
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7
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19.
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8
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20.
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8
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21.
|
9
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22.
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9
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23.
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10
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24.
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10
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25.
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10
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26.
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11
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27.
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11
|
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28.
|
12
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29.
|
12
|
||
30.
|
12
|
||
31.
|
12
|
||
32.
|
13
|
1.
|
||
(a)
|
Premises:
Suites 300 and 320, consisting of a total of approximately 7,130 rentable square feet as shown on
Exhibit “A”
.
|
|
(b)
|
Building:
Approximate rentable square feet: 85,610.
|
|
Address: Paragon Business Center, 951 Broken Sound Parkway, NW, Boca Raton, Florida 33487.
|
||
(c)
|
Term:
Forty Five (45) consecutive months (plus any partial month from the Commencement Date until the first day of the next full calendar month during the Term).
|
|
(d)
|
Commencement Date:
The later to occur of the following dates: (i) September 1, 2009, or (ii) the date Landlord delivers the Premises to Tenant with all of the improvements set forth on
Exhibit “D”
substantially completed. Notwithstanding the foregoing, in the event Tenant opens for business in the Premises at any time prior to September 1, 2009, such date will be deemed the Commencement Date.
|
|
(e)
|
Expiration Date:
The last day of the Term.
|
|
(f)
|
Minimum Annual Rent:
Payable in monthly installments as follows:
|
Month of
|
||||||||
Term
|
Annual
|
Monthly
|
||||||
1
—
3*
|
$ | 0.00 | $ | 0.00 | ||||
4 — 12
|
$ | 48,983.13 | $ | 5,442.57 | ||||
13 — 24
|
$ | 67,216.70 | $ | 5,601.39 | ||||
25 — 36
|
$ | 69,232.30 | $ | 5,769.36 | ||||
37 — 45
|
$ | 53,401.14 | $ | 5,933.46 |
* Monthly installments of Annual Operating Expenses (as defined below) and all applicable Florida sales tax shall be payable by Tenant for these months notwithstanding that no installments of Minimum Annual Rent are then due and payable.
|
|
The foregoing Minimum Annual Rent does not include applicable Florida sales tax payable by Tenant, which applicable sales tax shall be paid by Tenant in addition to the above-noted Minimum Annual Rent, together with each installment of Minimum Annual Rent.
|
|
So long as no Event of Default (defined below) has occurred as noted above, the monthly installments of Minimum Annual Rent (but not the monthly installment of estimated Annual Operating Expenses) shall be abated for a period of three (3) months (specifically months one (1), two (2) and three (3) of the Term) (the “Rent Abatement Period”). Upon the expiration of the Rent Abatement Period, that is the first (1
st
) day of the fourth (4th) month of the Term of this Lease, Tenant shall commence payment of all Rent due under this Lease.
|
(g)
|
Annual Operating Expenses:
Estimated for calendar year 2009 to be $41,995.70, payable in monthly installments of $3,499.64, subject to adjustment as provided in this Lease. The foregoing Annual Operating Expenses do not include applicable Florida sales tax payable by Tenant, which applicable sales tax shall be paid by Tenant in addition to the above-noted Annual Operating Expenses, together with each monthly installment of Annual Operating Expenses.
|
|
(h)
|
Tenant’s Share:
8.33% (also see Definitions)
|
|
(i)
|
Use:
Office and light industrial, specifically, office use in Suite 320 and warehouse/light industrial for Suite 300.
|
|
(j)
|
Security Deposit:
$18,642.57
|
(k)
|
Addresses For
Notices:
|
Landlord:
|
Liberty Property Limited Partnership
|
Tenant:
|
Before the Commencement Date:
|
750 Park of Commerce Blvd., Suite 105
|
VitaMedMC, LLC
|
||
Boca Raton, FL 33431
|
6501 Congress Avenue
|
||
Attn: Vice President
|
Boca Raton, Florida 33487
|
||
On or after the Commencement Date: Premises
|
(l)
|
Guarantor:
None.
|
|||
(m)
|
Additional Defined Terms:
See Rider 1 for the definitions of other capitalized terms.
|
|||
(n)
|
Contents:
The following are attached to and made a part of this Lease:
|
|||
Rider 1
—
Additional Definitions
|
Exhibits:
|
“A” — Plan showing Premises
|
||
“B” — Building Rules
|
||||
“C” — Estoppel Certificate Form
|
||||
“D” — Improvements by Landlord
|
(a)
|
Landlord shall maintain insurance against loss or damage to the Building or the Property with coverage for perils as set forth under the ‘‘Causes of Loss-Special Form” or equivalent properly insurance policy in an amount equal to the full insurable replacement cost of the Building (excluding coverage of Tenant’s personal property and any Alterations by Tenant), and such other insurance, including rent loss coverage, as Landlord may reasonably deem appropriate or as any Mortgagee may require.
|
|
(b)
|
Tenant, at its expense, shall keep in effect commercial general liability insurance, including blanket contractual liability insurance, covering Tenant’s use of the Property, with such coverages and limits of liability as Landlord may reasonably require, but not less than a $1,000,000 combined single limit with a $5,000,000 general aggregate limit (which general aggregate limit may be satisfied by an umbrella liability policy) for bodily injury or property damage; however, such limits shall not limit Tenant’s liability hereunder. The policy shall name Landlord, Liberty Property Trust and any other associated or affiliated entity as their interests may appear and at Landlord’s request, any
Mortgagee(s), as additional insureds, shall be written on an “occurrence” basis and not on a “‘claims made” basis and shall be endorsed to provide that it is primary to and not contributory to any policies carried by Landlord and to provide that it shall not be cancelable or reduced without at least 30 days prior notice to Landlord. The insurer shall be authorized to issue such insurance, licensed to do business and admitted in the state in which the Property is located and rated at least A VII in the most current
|
edition
of Best’s Insurance Reports.
Tenant shall deliver to Landlord on or before the Commencement Date or any earlier date on which Tenant accesses the Premises, and at least 30 days prior to the date of each policy renewal, a certificate of insurance evidencing such coverage.
|
||
(c)
|
Landlord and Tenant each waive, and release each other from and against, all claims for recovery against the other for any loss or damage to the property of such party arising out of fire or other casualty coverable by a standard “Causes of Loss-Special Form” property insurance policy with, in the case of Tenant, such endorsements and additional coverages as are considered good business practice in Tenant’s business, even if such loss or damage shall be brought about by the fault or negligence of the other party or its Agents; provided, however, such waiver by Landlord shall not be effective with respect to Tenant’s liability described in Sections 9(b) and 10(d) below. This waiver and
release is effective regardless of whether the releasing party actually maintains the insurance described above in this subsection and is not limited to the amount of insurance actually carried, or to the actual proceeds received after a loss. Each party shall have its insurance company that issues its property coverage waive any rights of subrogation, and shall have the insurance company include an endorsement acknowledging this waiver, if necessary. Tenant assumes all risk of damage of Tenant’s property within the Property, including any loss or damage caused by water leakage, fire, windstorm, explosion, theft, act of any other tenant, or other cause.
|
|
(d)
|
Tenant shall not be permitted to satisfy any of its insurance obligations set forth in this Lease through any self- insurance or self-insured retention in excess of $25,000.
|
|
(e)
|
Subject to subsection (c) above, and except to the extent caused by the negligence or willful misconduct of Landlord or its Agents, Tenant will indemnify, defend, and hold harmless Landlord and its Agents from and against any and all claims, actions, damages, liability and expense (including fees of attorneys, investigators and experts) which may be asserted against, imposed upon, or incurred by Landlord or its Agents and arising out of or in connection with loss of life, personal injury or damage to property in or about the Premises or arising out of the occupancy or use of the Property by Tenant or its Agents or occasioned wholly or in part by any act or omission of Tenant or its Agents, whether prior to, during
or after the Term. Tenant’s obligations pursuant to this subsection shall survive the expiration or termination of this Lease.
|
|
9.
|
||
(a)
|
Landlord shall Maintain the: (i) Building footings, foundations, structural steel columns and girders at Landlord’s sole expense; (ii) Building roof and exterior walls; (iii) Building Systems (subject to Section 31 of this Lease); and (iv) Common Areas. Costs incurred by Landlord under the foregoing subsections (ii), (iii) and (iv) will be included in Operating Expenses, provided that to the extent any heating, ventilation and air conditioning system, or other Building System, equipment or fixture exclusively serves the Premises, Landlord may elect either to Maintain the same at Tenant’s sole expense and bill Tenant directly or by notice to Tenant require Tenant to Maintain the same at Tenant’s
expense. If Tenant becomes aware of any condition that is Landlord’s responsibility to repair, Tenant shall promptly notify Landlord of the condition.
|
|
(b)
|
Except as provided in subsection (a) above, Tenant at its sole expense shall Maintain the Premises and all fixtures and equipment in the Premises. All repairs and replacements by Tenant shall utilize materials and equipment which are comparable to those originally used in constructing the Building and Premises. Alterations, repairs and replacements to the Property, including the Premises, made necessary because of Tenant’s Alterations or installations, any use or circumstances special or particular to Tenant, or any act or omission of Tenant or its Agents shall be made by Landlord or Tenant as set forth above, but at the sole expense of Tenant to the extent not covered by any applicable insurance proceeds
paid to Landlord.
|
|
10.
|
||
(a)
|
Tenant will, at its expense, promptly comply with all Laws now or subsequently pertaining to the Premises or Tenant’s use or occupancy. Tenant will pay any taxes or other charges by any authority on Tenant’s property or trade fixtures or relating to Tenant’s use of the Premises. Neither Tenant nor its Agents shall use the Premises in any manner that under any Law would require Landlord to make any Alteration to or in the Building or Common Areas (without limiting the foregoing, Tenant shall not use the Premises in any manner that would cause the Premises or the Property to be deemed a “place of public accommodation” under the ADA if such use would require any such Alteration). Tenant
shall be responsible for compliance with the ADA, and any other Laws regarding accessibility, with respect to the Premises.
|
(b)
|
Tenant will comply, and will cause its Agents to comply, with the Building Rules.
|
|
(c)
|
Tenant agrees not to do anything or fail to do anything which will increase the cost of Landlord’s insurance or which will prevent Landlord from procuring policies (including public liability) from companies and in a form satisfactory to Landlord. If any breach of the preceding sentence by Tenant causes the rate of fire or other insurance to be increased, Tenant shall pay the amount of such increase as additional Rent within 30 days after being billed.
|
|
(d)
|
Tenant agrees that (i) no activity will be conducted on the Premises that will use or produce any Hazardous Materials, except for activities which are part of the ordinary course of Tenant’s business and are conducted in accordance with all Environmental Laws (“Permitted Activities”); (ii) the Premises will not be used for storage of any Hazardous Materials, except for materials used in the Permitted Activities which are properly stored in a manner and location complying with all Environmental Laws; (iii) no portion of the Premises or Property will be used by Tenant or Tenant’s Agents for disposal of Hazardous Materials; (iv) Tenant will deliver to Landlord copies of all Material Safety
Data Sheets and other written information prepared by manufacturers, importers or suppliers of any chemical; and (v) Tenant will immediately notify Landlord of any violation by Tenant or Tenant’s Agents of any Environmental Laws or the release or suspected release of Hazardous Materials in, under or about the Premises, and Tenant shall immediately deliver to Landlord a copy of any notice, filing or permit sent or received by Tenant with respect to the foregoing. If at any time during or after the Term, any portion of the Property is found to be contaminated by Tenant or Tenant’s Agents or subject to conditions prohibited in this Lease caused by Tenant or Tenant’s Agents, Tenant will indemnify, defend and hold Landlord harmless from all claims, demands, actions, liabilities, costs, expenses, attorneys’ fees, damages and obligations of any nature arising from or as
a result thereof, and Landlord shall have the right to direct remediation activities, all of which shall be performed at Tenant’s cost. Tenant’s obligations pursuant to this subsection shall survive the expiration or termination of this Lease.
|
(a)
|
Except as provided in Section (b) below, Tenant shall not enter into nor permit any Transfer voluntarily or by operation of law, without the prior consent of Landlord, which consent shall not be unreasonably withheld. Without limitation, Tenant agrees that Landlord’s consent shall not be considered unreasonably withheld if (i) the proposed transferee is an existing tenant of Landlord or an affiliate of Landlord, (ii) the business, business
|
reputation or creditworthiness of the proposed transferee is reasonably unacceptable to Landlord, (iii) Landlord or an affiliate of Landlord has comparable space available for lease in the Building by the proposed transferee unless such transferee has declined such comparable space, or (iv) Tenant is in default under this Lease or any act or omission has occurred which would constitute a default with the giving of notice and/or the passage of time. A consent to one Transfer shall not be deemed to be a consent to any subsequent Transfer. In no event shall any Transfer relieve Tenant from any obligation under this Lease. Landlord’s acceptance of Rent from any person shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any Transfer. Any Transfer not in conformity with this Section 18 shall be void at the option of Landlord.
|
||
(b)
|
Landlord’s consent shall not be required in the event of any Transfer by Tenant to an Affiliate provided that (i) the Affiliate has a tangible net worth at least equal to that of Tenant as of the date of this Lease, (ii) Tenant provides Landlord notice of the Transfer at least 15 days prior to the effective date, together with current financial statements of the Affiliate certified by an executive officer of the Affiliate, and (iii) in the case of an assignment or sublease, Tenant delivers to Landlord an assumption agreement reasonably acceptable to Landlord executed by Tenant and the Affiliate, together with a certificate of insurance evidencing the Affiliate’s compliance with the insurance
requirements of Tenant under this Lease.
|
|
(c)
|
The provisions of subsection (a) above notwithstanding, if Tenant proposes to Transfer all of the Premises (other than to an Affiliate), Landlord may terminate this Lease, either conditioned on execution of a new lease between Landlord and the proposed transferee or without that condition. If Tenant proposes to enter into a Transfer of less than all of the Premises (other than to an Affiliate), Landlord may amend this Lease to remove the portion of the Premises to be transferred, either conditioned on execution of a new lease between Landlord and the proposed transferee or without that condition. If this Lease is not so terminated or amended, Tenant shall pay to Landlord, immediately upon receipt, the excess of
(i) all compensation received by Tenant for the Transfer over (ii) the Rent allocable to the Premises transferred.
|
|
(d)
|
If Tenant requests Landlord’s consent to a Transfer, Tenant shall provide Landlord, at least 15 days prior to the proposed Transfer, current financial statements of the transferee certified by an executive officer of the transferee, a complete copy of the proposed Transfer documents, and any other information Landlord reasonably requests. Immediately following any approved assignment or sublease, Tenant shall deliver to Landlord an assumption agreement reasonably acceptable to Landlord executed by Tenant and the transferee, together with a certificate of insurance evidencing the transferee’s compliance with the insurance requirements of Tenant under this Lease. Tenant agrees to reimburse Landlord for
reasonable administrative and attorneys’ fees in connection with the processing and documentation of any Transfer for which Landlord’s consent is requested.
|
(a)
|
Tenant accepts this Lease subject and subordinate to any Mortgage now or in the future affecting the Premises, provided that Tenant’s right of possession of the Premises shall not be disturbed by the Mortgagee so long as Tenant is not in default under this Lease. This clause shall be self-operative, but within 10 days after request, Tenant shall execute and deliver any further instruments confirming the subordination of this Lease and any further instruments of attornment that the Mortgagee may reasonably request. However, any Mortgagee may at any time subordinate its Mortgage to this Lease, without Tenant’s consent, by giving notice to Tenant, and this Lease shall then be deemed prior to such Mortgage
without regard to their respective dates of execution and delivery; provided that such subordination shall not affect any Mortgagee’s rights with respect to condemnation awards, casualty insurance proceeds, intervening liens or any right which shall arise between the recording of such Mortgage and the execution of this Lease.
|
|
(b)
|
No Mortgagee shall be (i) liable for any act or omission of a prior landlord, (ii) subject to any rental offsets or defenses against a prior landlord, (iii) bound by any amendment of this Lease made without its written consent, or (iv) bound by payment of Monthly Rent more than one month in advance or liable for any other funds paid by Tenant to Landlord unless such funds actually have been transferred to the Mortgagee by Landlord.
|
|
(c)
|
The provisions of Sections 15 and 16 above notwithstanding, Landlord’s obligation to restore the Premises after a casualty or condemnation shall be subject to the consent and prior rights of any Mortgagee.
|
(a)
|
On the date on which this Lease expires or terminates, Tenant shall return possession of the Premises to Landlord in good condition, except for ordinary wear and tear, and except for casualty damage or other conditions that Tenant is not required to remedy under this Lease. Prior to the expiration or termination of this Lease, Tenant shall remove from the Property all furniture, trade fixtures, equipment, wiring and cabling (unless Landlord directs Tenant otherwise), and all other personal property installed by Tenant or its assignees or subtenants. Tenant shall repair any damage resulting from such removal and shall restore the Property to good order and condition. Any of Tenant’s personal property not
removed as required shall be deemed abandoned, and Landlord, at Tenant’s expense, may remove, store, sell or otherwise dispose of such property in such manner as Landlord may see fit and/or Landlord may retain such property or sale proceeds as its property. If Tenant does not return possession of the Premises to Landlord in the condition required under this Lease, Tenant shall pay Landlord all resulting damages Landlord may suffer.
|
|
(b)
|
If Tenant remains in possession of the Premises after the expiration or termination of this Lease, Tenant’s occupancy of the Premises shall be that of a tenancy at will. Tenant’s occupancy during any holdover period shall otherwise be subject to the provisions of this Lease (unless clearly inapplicable), except that the Monthly Rent shall be double the Monthly Rent payable for the last full month immediately preceding the holdover. No holdover or payment by Tenant after the expiration or termination of this Lease shall operate to extend the Term or prevent Landlord from immediate recovery of possession of the Premises by summary proceedings or otherwise. Any provision in this Lease to the contrary
notwithstanding, any holdover by Tenant shall constitute a default on the part of Tenant under this Lease entitling Landlord to exercise, without obligation to provide Tenant any notice or cure period, all of the remedies available to Landlord in the event of a Tenant default, and Tenant shall be liable for all damages, including consequential damages, that Landlord suffers as a result of the holdover.
|
(a)
|
It shall be an Event of Default:
|
(b)
|
If an Event of Default occurs, Landlord shall have the following rights and remedies:
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(c)
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Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Sections 13, 20 or 27 or in an emergency.
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(d)
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No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No
payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
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(e)
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If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
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(f)
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Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
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(a)
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Landlord is duly formed, validly existing and in good standing under the laws of the State under which Landlord is organized.
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(b)
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Liberty Property Trust is the General Partner of Landlord and is duly formed, validly existing and in good standing under the laws of the state under which said General Partner is organized.
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(c)
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The person(s) signing this Lease on behalf of the Landlord and the Landlord’s General Partner is/are duly authorized to execute and deliver this Lease on behalf of the Landlord and said General Partner, and no other consent is required.
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(a)
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The captions in this Lease are for convenience only, are not a part of this Lease and do not in any way define, limit, describe or amplify the terms of this Lease.
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(b)
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This Lease represents the entire agreement between the parties hereto and there are no collateral or oral agreements or understandings between Landlord and Tenant with respect to the Premises or the Property. No rights, easements or licenses are acquired in the Property or any land adjacent to the Property by Tenant by implication or otherwise except as expressly set forth in this Lease. This Lease shall not be modified in any manner except by an instrument in writing executed by the parties. The masculine (or neuter) pronoun and the singular number shall include the masculine, feminine and neuter genders and the singular and plural number. The word “including” followed by any specific item(s) is
deemed to refer to examples rather than to be words of limitation. The word “person” includes a natural person, a partnership, a corporation, a limited liability company, an association and any other form of legal business association or entity. Both parties having participated fully and equally in the negotiation and preparation of this Lease, this Lease shall not be more strictly construed, nor any ambiguities in this Lease resolved, against either Landlord or Tenant.
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(c)
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Each covenant, agreement, obligation, term, condition or other provision contained in this Lease shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or making the same, not dependent on any other provision of this Lease unless otherwise expressly provided. All of the terms and conditions set forth in this Lease shall apply throughout the Term unless otherwise expressly set forth herein.
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(d)
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If any provisions of this Lease shall be declared unenforceable in any respect, such unenforceability shall not affect any other provision of this Lease, and each such provision shall be deemed to be modified, if possible, in such a manner as to render it enforceable and to preserve to the extent possible the intent of the parties as set forth herein. This Lease shall be construed and enforced in accordance with the laws of the state in which the Property is located.
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(e)
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This Lease shall be binding upon and inure to the benefit of Landlord and Tenant and their respective heirs, personal representatives and permitted successors and assigns. All persons liable for the obligations of Tenant under this Lease shall be jointly and severally liable for such obligations.
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(f)
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Any suit, action or other legal proceeding arising out of or relating to this Agreement shall be brought in a court of the State of Florida, Palm Beach County, or in the United States District Court for the Southern District of Florida, having subject matter jurisdiction thereof, and both parties agree to submit to the jurisdiction of such forum.
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(g)
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Tenant shall not record this Lease or any memorandum without Landlord’s prior written consent.
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(a)
|
Provided that Landlord has not given Tenant notice of default more than two (2) times during the Term, and such default was cured within the time periods specified in Section 22(a)(iii), that there then exists no Event of Default by Tenant under this Lease, nor any event that with the giving of notice and/or the passage of time would constitute an Event of Default (on the date of exercise or the date of delivery of possession), and that Tenant is the sole occupant of the Premises, Tenant shall have the right and option (the “Extension Option”) to extend the Term of this Lease for one (1) additional period of two (2) years (the “Extension Term”), exercisable by giving Landlord prior
written notice, not earlier than fifteen (15) months, but not later than twelve (12) months, prior to the then upcoming Expiration Date, of Tenant’s election to extend the Term of this Lease; it being agreed that time is of the essence for Tenant’s exercise of the Extension Option and that the Extension Option is personal to Tenant and is non-transferable to any assignee or sublessee other than to an Affiliate (regardless of whether any such assignment or sublease was made with or without Landlord’s consent). Landlord is not obligated to notify Tenant of any upcoming need to timely exercise the Extension Option.
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(b)
|
The Extension Term shall be under the same terms and conditions as provided in this Lease except as follows:
|
(i)
|
the Extension Term shall begin on the day after the initial Expiration Date and thereafter the Expiration Date shall be deemed to be the date that is two (2) years after the initial Expiration Date;
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|
(ii)
|
there shall be no further options to extend or renew the Term;
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(iii)
|
the Premises shall be accepted by Tenant in “as is” “where is” condition and Landlord shall have no obligations whatsoever to improve or pay to improve the Premises for Tenant’s use or occupancy, including, without limitation any new HVAC or build-out obligations, or grant to Tenant any rent concessions or similar abatements;
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(iv)
|
the Minimum Annual Rent for each year of the Extension Term shall be as follows:
|
Month of
Term
|
Annual
|
Monthly
|
|||||
46-57
|
$73,337.52
|
$6,111.46
|
|||||
58-69
|
$75,537.69
|
$6,294.81
|
Date signed:
|
Landlord:
|
||||
7-9-09
|
LIBERTY PROPERTY LIMITED PARTNERSHIP
|
||||
Witness:
|
By:
|
Liberty Property Trust, Sole General Partner
|
|||
/s/ R. Johnson
|
By: |
/s/
Andy Petry
|
|||
Name (printed):
|
R. Johnson
|
||||
/s/ A. Rinzi
|
Andy Petry
Vice President and City Manager
|
||||
Name (printed):
|
A. Rinzi
|
|
|||
Date signed:
|
Tenant:
|
||||
7-9-09
|
VITAMEDMD, LLC,
a Delaware limited liability company
|
||||
Attest/Witness:
|
By: |
/s/ Robert Finizio
|
|||
/s/ Courtney Feldman
|
|||||
Name (printed):
|
Courtney Feldman
|
Robert Finizio, Manager
|
|||
/s/ Kristiani Passos
|
|||||
Name (printed):
|
Kristiani Passos
|
By: | ||||
Date | ||||
Optionee | Date | |||
OPTIONEE : | ||
OPTIONS GRANTED : | ||
PURCHASE PRICE : | $ per Share | |
DATE OF GRANT : | ||
EXERCISE PERIOD : | ||
VESTING SCHEDULE OF OPTION: |
SHARES | DATE VESTED * | |||
Dated: | ||||
Optionee
|
||||
(Street Address) | ||||
City, State, Zip
|
||||
Telephone
|
||||
Social Security Number
|
Warrant Shares: _____________ | Initial Exercise Date: _______ |
1.
|
DEFINITIONS
|
2.
|
EXERCISE OF WARRANT
|
3.
|
TRANSFER, DIVISION AND COMBINATION
|
4.
|
ADJUSTMENTS
|
5.
|
NOTICES TO HOLDER
|
6.
|
NO IMPAIRMENT
|
7.
|
RESERVATION AND AUTHORIZATION OF COMMON STOCK
|
8.
|
TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS
|
9.
|
RESTRICTIONS ON TRANSFERABILITY
|
10.
|
SUPPLYING INFORMATION
|
11.
|
LOSS OR MUTILATION
|
12.
|
OFFICE OF THE COMPANY
|
13.
|
LIMITATION OF LIABILITY
|
14.
|
MISCELLANEOUS
|
Dated: | ||||||
THERAPEUTICSMD, INC. | ||||||
By: | ||||||
Name: | ||||||
Title: |
Attest: | |||
By: | |||
Name: | |||
Title: |
(Name of Registered Owner)
|
||
(Signature of Registered Owner) | ||
(Street Address) | ||
(City) (State) (Zip Code) |
Dated: | Print Name: | |||||
Signature: | ||||||
Witness: |
FOR IMMEDIATE RELEASE |
SYMBOL: AMHND
|
October 6, 2011 |
TRADED: OTCBB
|