Nevada
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87-0233535
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(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification Number) |
Daniel A. Cartwright
Chief Financial Officer
TherapeuticsMD, Inc.
951 Broken Sound Parkway NW, Suite 320
Boca Raton, FL 33487
(561) 961-1911
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Robert S. Kant, Esq.
Derek J. Mirza, Esq.
Greenberg Traurig, LLP
2375 East Camelback Road, Suite 700
Phoenix, Arizona 85016
(602) 445-8000
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Large accelerated filer
£
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Accelerated filer
S
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Non-accelerated filer
£
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Smaller reporting company
£
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(Do not check if a smaller reporting company)
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Title of each class of
securities to be registered (1)
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Amount to be
registered (1)(2)
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Proposed maximum offering
price per unit (2)(3) |
Proposed maximum
aggregate offering price (2)(3)
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Amount of
registration fee (2)(4)
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Common Stock, par value $0.001 per share
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—
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—
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—
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—
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Preferred Stock, par value $0.001 per share
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—
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—
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—
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—
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Debt Securities
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—
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—
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—
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—
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Depositary Shares
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—
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—
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—
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—
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Warrants
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—
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—
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—
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—
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Purchase Contracts
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—
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—
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—
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—
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Units
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—
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—
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—
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—
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Total:
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$125,000,000
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$125,000,000
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$17,050
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(1)
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There are being registered under this registration statement such indeterminate number of shares of common stock, preferred stock, and depositary shares; number of warrants, purchase contracts, and units; and principal amount of debt securities, as will have an aggregate initial offering price not to exceed $125,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $125,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Pursuant to Rule 457(i) under the Securities Act of 1933, as amended (the “Securities Act”), the securities being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable upon the exercise of warrants or conversion or exchange of any preferred stock, depositary shares, debt securities, warrants, or units issued under this registration statement. Separate consideration may or may not be received for securities that are issuable upon the exercise, conversion, or exchange of other securities. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder.
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(2)
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In United States dollars or the equivalent thereof in any other currency, currency unit, or units, or composite currency or currencies.
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(3)
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Not specified as to each class of securities to be registered pursuant to General Instruction II.D of Form S-3 under the Securities Act. The proposed maximum offering price per unit and proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered under this registration statement.
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(4)
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Calculated pursuant to Rule 457(o) under the Securities Act.
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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities, in any state where the offer or sale is not permitted. |
ABOUT THIS PROSPECTUS
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ii
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PROSPECTUS SUMMARY
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1
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RISK FACTORS
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4
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WHERE YOU CAN FIND MORE INFORMATION
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4
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FORWARD-LOOKING STATEMENTS
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4
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
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5
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PROSPECTUS SUPPLEMENTS
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6
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RATIO OF EARNINGS TO FIXED CHARGES
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6
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DILUTION
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6
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USE OF PROCEEDS
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6
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SECURITIES WE MAY OFFER
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7
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DESCRIPTION OF COMMON STOCK
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7
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DESCRIPTION OF PREFERRED STOCK
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8
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DESCRIPTION OF DEBT SECURITIES
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11
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DESCRIPTION OF DEPOSITARY SHARES
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22
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DESCRIPTION OF WARRANTS
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25
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DESCRIPTION OF PURCHASE CONTRACTS
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28
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DESCRIPTION OF UNITS
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29
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CERTAIN PROVISIONS OF NEVADA LAW AND OUR CHARTER AND BYLAWS
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30
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LEGAL OWNERSHIP OF SECURITIES
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33
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PLAN OF DISTRIBUTION
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36
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LEGAL MATTERS
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38
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EXPERTS
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38
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focusing exclusively on women’s health issues to enable us to build long-term relationships with women as they move through their life cycles of birth control, pregnancy, child birth, and pre- and post-menopause;
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focusing on our development, clinical trials, and commercialization of three hormone therapy products designed to alleviate the systems of and reduce the health effects resulting from menopause-related hormone deficiencies, including hot flashes, osteoporosis, and vaginal dryness, and provide equivalent efficiency at lower doses, enabling an enhanced side effect profile compared with competing products;
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maintaining a marketing emphasis on large group OB/GYN practices that provide opportunities to large patient bases and that are receptive to the data and savings we provide that facilitate them in negotiating contracts with insurance companies;
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pursuing multiple distribution channels, including physicians and pharmacies through our direct sales force and the Internet;
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expanding our geographic market and sales team to cover the entire country by increasing our current 36 sales territories to 60 sales territories by the end of 2013; and
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introducing new products to build upon the introduction of our first three prescription products in the first and second quarters of 2012 and our generic line of prenatal vitamins in the fourth quarter of 2012, as well as our proposed hormone therapy products
consisting of a bioidentical oral combination of progesterone and estradiol product, an oral progesterone product, and a suppository vulvar and vaginal atrophy estradiol product. Early pharmacokinetic, or PK, studies on our HT products indicate achievement of 80-125% comparability of the reference listed drugs approved by the FDA for the combined progestin and estrogen product.
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Annual Report on Form 10-K for the fiscal year ended December 31, 2011.
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Quarterly Report on Form 10-Q for the quarter ended March 31, 2012.
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Quarterly Report on Form 10-Q for the quarter ended June 30, 2012.
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Quarterly Report on Form 10-Q for the quarter ended September 30, 2012.
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Current Report on Form 8-K filed with the SEC on January 25, 2012.
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Current Report on Form 8-K/A filed with the SEC on February 2, 2012.
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Current Report on Form 8-K/A filed with the SEC on February 3, 2012.
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Current Report on Form 8-K filed with the SEC on February 24, 2012.
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Current Report on Form 8-K filed with the SEC on March 2, 2012.
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Current Report on Form 8-K filed with the SEC on May 17, 2012.
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Current Report on Form 8-K filed with the SEC on June 21, 2012.
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Current Report on Form 8-K filed with the SEC on October 2, 2012.
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Current Report on Form 8-K filed with the SEC on January 25, 2013.
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the net tangible book value per share of our equity securities before and after the offering;
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the amount of the increase in such net tangible book value per share attributable to the cash payments made by purchasers in the offering; and
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the amount of the immediate dilution from the public offering price which will be absorbed by such purchasers.
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the title and stated value of the preferred stock;
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the number of shares of preferred stock to be issued and the offering price of the preferred stock;
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any dividend rights;
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any dividend rates, periods, or payment dates, or methods of calculation of dividends applicable to the preferred stock;
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the date from which distributions on the preferred stock will accumulate, if applicable;
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the terms and conditions, if applicable, upon which the preferred stock will be convertible into our common stock, including the conversion price (or manner of calculation thereof);
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any right to convert the preferred stock into a different type of security;
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any voting rights attributable to the preferred stock;
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any rights and preferences upon our liquidation, dissolution, or winding up of our affairs;
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any terms of redemption;
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the procedures for any auction and remarketing, if any, for the preferred stock;
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the provisions for a sinking fund, if any, for the preferred stock;
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any listing of the preferred stock on any securities exchange;
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a discussion of federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to distribution rights (including whether any liquidation preference as to the preferred stock will be treated as a liability for purposes of determining the availability of assets for distributions to holders of stock ranking junior to the shares of preferred stock as to distribution rights);
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any limitations on issuance of any series of preferred stock ranking senior to or on a parity with the series of preferred stock being offered as to distribution rights and rights upon the liquidation, dissolution, or winding up or our affairs; and
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any other specific terms, preferences, rights, limitations, or restrictions of the preferred stock.
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senior to all classes or series of our common stock and to all of our equity securities ranking junior to the preferred stock;
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on a parity with all equity securities issued by us, the terms of which specifically provide that these equity securities rank on a parity with the preferred stock; and
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junior to all equity securities issued by us, the terms of which specifically provide that these equity securities rank senior to the preferred stock.
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all prior dividend periods of other series of preferred stock that pay dividends on a cumulative basis; or
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the immediately preceding dividend period of other series of preferred stock that pay dividends on a noncumulative basis.
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all prior dividend periods if the preferred stock pays dividends on a cumulative basis; or
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the immediately preceding dividend period if the preferred stock pays dividends on a noncumulative basis.
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the title of the debt securities;
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the series designation and whether they are senior securities, senior subordinated securities, or subordinated securities;
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the aggregate principal amount of the debt securities and any limit on the aggregate amount of the series of debt securities;
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the price or prices (expressed as a percentage of the aggregate principal amount) at which we will issue the debt securities and, if other than the principal amount of the debt securities, the portion of the principal amount of the debt securities payable upon the maturity of the debt securities;
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the date or dates on which we will pay the principal on the debt securities;
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the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index, or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable, and any regular record date for the interest payable on any interest payment date;
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the place where principal, interest, and any additional amounts will be payable and where the debt securities can be surrendered for transfer, exchange, or conversion;
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the terms, if any, by which holders of the debt securities may convert or exchange the debt securities for our common stock, preferred stock, or any other security or property;
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if convertible, the initial conversion price, the conversion period, and any other terms governing such conversion;
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any subordination provisions or limitations relating to the debt securities;
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any sinking fund requirements;
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities;
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the dates on which and the price or prices at which we will repurchase the debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
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the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
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whether we will issue the debt securities in certificated or book-entry form;
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whether the debt securities will be in registered or bearer form and, if in registered form, the denominations if other than in even multiples of $1,000 and, if in bearer form, the denominations and terms and conditions relating thereto;
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the currency of denomination of the debt securities;
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the designation of the currency, currencies, or currency units in which payment of principal of, premium, and interest on the debt securities will be made;
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if payments of principal of, and interest and any additional amounts on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined;
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the manner in which the amounts of payment of principal of, and interest and any additional amounts on the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies other than that in which the debt securities are denominated or designated to be payable or by reference to a commodity, commodity index, stock exchange index, or financial index;
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any applicability of the defeasance provisions described in this prospectus or any prospectus supplement;
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whether and under what circumstances, if any, we will pay additional amounts on any debt securities in respect of any tax, assessment, or governmental charge and, if so, whether we will have the option to redeem the debt securities instead of making this payment;
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any addition to or change in the events of default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
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any addition to or change in the covenants described in this prospectus or in the indenture with respect to the debt securities;
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if the debt securities are to be issued upon the exercise of debt warrants, the time, manner, and place for them to be authenticated and delivered;
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any securities exchange on which we will list the debt securities;
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any restrictions on transfer, sale, or other assignment;
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any provisions relating to any security provided for the debt securities;
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any provisions relating to any guarantee of the debt securities;
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any other terms of the debt securities, which may modify or delete any provision of the indenture as it applies to that series; and
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any depositaries, interest rate calculation agents, exchange rate calculation agents, or other agents with respect to the debt securities.
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either (a) the company is the surviving entity or (b) the successor person is a corporation, partnership, trust, or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture;
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immediately after giving effect to the transaction, no event of default, and no event that, after notice or lapse of time, or both, would become an event of default, will have occurred and be continuing under the indenture; and
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certain other conditions that may be set forth in the applicable prospectus supplement are met.
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default in the payment of any interest upon any debt security of that series when it becomes due and payable and continuance of that default for a period of 30 days (unless the entire amount of such payment is deposited by us with the trustee or with a paying agent before the expiration of the 30-day period);
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default in the payment of principal of, and any other amounts due on, any debt security of that series when due and payable either at maturity, redemption, or otherwise;
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default in the deposit of any sinking fund payment, when and as due in respect of any debt security of that series;
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default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series) or in the debt security, which default continues uncured for a period of 60 days after we receive written notice from the trustee or we and the trustee receive written notice from the holders of not less than a majority in principal amount of the outstanding debt securities of that series as provided in the indenture;
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we, pursuant to or within the meaning of any applicable bankruptcy law, commence a voluntary case, consent to the entry of an order for relief against us in an involuntary case, consent to the appointment of a custodian for all or substantially all of our property, make a general assignment for the benefit of our creditors, or admit in writing our inability generally to pay our debts as they become due; or, similarly, a court enters an order or decree under any applicable bankruptcy law that provides for relief against us in an involuntary case, appoints a custodian for all or substantially all of our properties, or orders our liquidation (and the order remains in effect for 60 days); and
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any other event of default provided with respect to debt securities of that series that is included in any supplemental indenture or is described in the applicable prospectus supplement accompanying this prospectus.
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our failure to pay the principal of, and interest and any additional amounts on, any debt security; or
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a covenant or provision contained in the indenture that cannot be modified or amended without the consent of the holders of each outstanding debt security affected by the default.
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that holder has previously given to the trustee written notice of a continuing event of default with respect to debt securities of that series; and
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the holders of at least 25% in principal amount of the outstanding debt securities of that series have made written request, and offered reasonable indemnity, to the trustee to institute such proceeding as trustee, and the trustee will not have received from the holders of a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days.
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reduce the rate of or extend the time for payment of interest, including default interest, on any debt security;
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reduce the principal of or any additional amounts on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
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reduce the principal amount of discount securities payable upon acceleration of maturity;
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waive a default in the payment of the principal, interest, or any additional amounts on any debt security, except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from that acceleration;
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make the principal of, or interest or any additional amounts on, any debt security payable in currency other than that stated in the debt security;
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change the place of payment on a debt security;
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change the currency or currencies of payment of the principal of, and any premium, make-whole payment, interest, or additional amounts on, any debt security;
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impair the right to initiate suit for the enforcement of any payment on or with respect to any debt security;
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reduce the percentage of holders of debt securities whose consent is needed to modify or amend an indenture, to waive compliance with certain provisions of an indenture, or to waive certain defaults;
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reduce the percentage of the holders of outstanding debt securities of any series necessary to modify or amend the indenture, to waive compliance with provisions of the indenture or defaults and their consequences under the indenture, or to reduce the quorum or voting requirements contained in the indenture;
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make any change that adversely affects the right to convert or exchange any debt security other than as permitted by the indenture or decrease the conversion or exchange rate or increase the conversion or exchange price of any such debt security;
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waive a redemption payment with respect to any debt security; or
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make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, and interest and any additional amount on, those debt securities, the right of holders to institute suit for the enforcement of any payment or the right of holders to waive past defaults.
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to evidence the succession of another person to us as obligor under the indenture;
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to add to our existing covenants additional covenants for the benefit of the holders of all or any series of debt securities, or to surrender any right or power conferred upon us in the indenture;
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to add events of default for the benefit of the holders of all or any series of debt securities;
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to add or change any provisions of the indenture to facilitate the issuance of, or to liberalize the terms of, debt securities in bearer form, or to permit or facilitate the issuance of debt securities in uncertificated form, provided that this action will not adversely affect the interests of the holders of the debt securities of any series in any material respect;
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to add, change, or eliminate any provisions of the indenture, provided that any addition, change, or elimination (a) shall neither (i) apply to any debt security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the holder of any debt security with respect to such provision, or (b)shall become effective only when there are no outstanding debt securities;
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to establish additional series of debt securities;
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to secure previously unsecured debt securities;
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to establish the form or terms of debt securities of any series, including the provisions and procedures, if applicable, for the conversion or exchange of the debt securities into our common stock, preferred stock, or other securities or property;
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to evidence and provide for the acceptance or appointment of a successor trustee or facilitate the administration of the trusts under the indenture by more than one trustee;
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to make any provision with respect to the conversion or exchange of rights of holders pursuant to the requirements of the indenture;
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to cure any ambiguity, defect, or inconsistency in the indenture, provided that the action does not adversely affect the interests of holders of debt securities of any series issued under the indenture;
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to close the indenture with respect to the authentication and delivery of additional series of debt securities or to qualify, or maintain qualification of, the indenture under the Trust Indenture Act; or
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to supplement any of the provisions of the indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of debt securities, provided that the action shall not adversely affect the interests of the holders of the debt securities of any series in any material respect.
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depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. dollars, foreign government obligations, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay principal, interest, and any additional amounts on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and
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delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain, or loss for U.S. federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to U.S. federal income tax in the same amount and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred.
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direct obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged, which are not callable or redeemable at the option of the issuer thereof; or
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obligations of a person controlled or supervised by or acting as an agency or instrumentality of that government, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by that government, which are not callable or redeemable at the option of the issuer thereof.
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the indebtedness ranking senior to the debt securities being offered;
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any restrictions on payments to the holders of the debt securities being offered while a default with respect to the senior indebtedness is continuing;
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any restrictions on payments to the holders of the debt securities being offered following an event of default; and
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provisions requiring holders of the debt securities being offered to remit some payments to holders of senior indebtedness.
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the conversion or exchange price, or the manner of calculating the price;
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the exchange or conversion period;
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whether the conversion or exchange is mandatory, or voluntary at the option of the holder, or at our option;
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any restrictions on conversion or exchange in the event of redemption of the debt securities and any restrictions on conversion or exchange; and
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the means of calculating the number of shares of our common stock, preferred stock, or other securities or property of our company to be received by the holders of debt securities.
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the title of the warrants;
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the aggregate number of the warrants;
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the price or prices at which the warrants will be issued;
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the designation, number, and terms of the securities purchasable upon exercise of the warrants;
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the designation and terms of the other securities, if any, with which the warrants are issued and the number of warrants issued with each such security;
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the date, if any, on and after which the warrants and the related underlying securities will be separately transferable;
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the price at which each underlying security purchasable upon exercise of the warrants may be purchased;
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the date on which the right to exercise the warrants will commence and the date on which such right will expire;
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the minimum amount of the warrants that may be exercised at any one time;
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any information with respect to book-entry procedures;
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the effect of any merger, consolidation, sale, or other disposition of our business on the warrant agreement and the warrants;
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any other terms of the warrants, including terms, procedures, and limitations relating to the transferability, exchange, and exercise of such warrants;
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the terms of any rights to redeem or call, or accelerate the expiration of, the warrants;
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the date on which the right to exercise the warrants begins and the date on which that right expires;
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the U.S. federal income tax consequences of holding or exercising the warrants; and
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any other specific terms, preferences, rights, or limitations of, or restrictions on, the warrants.
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issue capital stock or other securities convertible into or exchangeable for common stock or preferred stock, or any rights to subscribe for, purchase, or otherwise acquire any of the foregoing, as a dividend or distribution to holders of our common stock or preferred stock;
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pay any cash to holders of our common stock or preferred stock other than a cash dividend paid out of our current or retained earnings or other than in accordance with the terms of the preferred stock;
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issue any evidence of our indebtedness or rights to subscribe for or purchase our indebtedness to holders of our common stock or preferred stock; or
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issue common stock or preferred stock or additional stock or other securities or property to holders of our common stock or preferred stock by way of spinoff, split-up, reclassification, combination of shares, or similar corporate rearrangement,
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certain reclassifications, capital reorganizations, or changes of the common stock, preferred stock, or depositary shares, as applicable;
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certain share exchanges, mergers, or similar transactions involving us and which result in changes of the common stock, preferred stock, or depositary shares, as applicable; or
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certain sales or dispositions to another entity of all or substantially all of our property and assets.
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whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of determining those amounts;
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whether the purchase contracts are to be prepaid or not;
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whether the purchase contracts will be issued as part of a unit and, if so, the other securities comprising the unit;
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whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance, or level of the securities subject to purchase under the purchase contract;
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any acceleration, cancellation, termination, or other provisions relating to the settlement of the purchase contracts; and
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whether the purchase contracts will be issued in fully registered or global form.
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·
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
|
·
|
any provisions of the governing unit agreement that differ from those described below; and
|
·
|
any provisions for the issuance, payment, settlement, transfer, or exchange of the units or of the securities comprising the units.
|
·
|
an acquisition of us by means of a proxy contest or otherwise; or
|
·
|
the removal of a majority or all of our incumbent officers and directors.
|
·
|
the combination was approved by our board of directors prior to the person becoming an interested stockholder or the transaction by which the person first became an interested stockholder was approved by our board of directors before the person became an interested stockholder or the combination is later approved by a majority of the voting power held by disinterested stockholders, or
|
·
|
if the consideration to be paid by the interested stockholder is at least equal to the highest of: (a) the highest price per share paid by the interested stockholder within the two years immediately preceding the date of the announcement of the combination or in the transaction in which it became an interested stockholder, whichever is higher, (b) the market value per share of common stock on the date of announcement of the combination and the date the interested stockholder acquired the shares, whichever is higher, or (c) for holders of preferred stock, the highest liquidation value of the preferred stock, if it is higher.
|
·
|
how it handles securities payments and notices;
|
·
|
whether it imposes fees or charges;
|
·
|
how it would handle a request for the holders’ consent, if ever required;
|
·
|
whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future;
|
·
|
how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and
|
·
|
if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
|
·
|
an investor cannot cause the securities to be registered in his, her, or its name, and cannot obtain non-global certificates for his, her, or its interest in the securities, except in the special situations we describe below;
|
·
|
an investor will be an indirect holder and must look to his, her, or its own bank or broker for payments on the securities and protection of his, her, or its legal rights relating to the securities, as we describe above;
|
·
|
an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form;
|
·
|
an investor may not be able to pledge his, her, or its interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
|
·
|
the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges, and other matters relating to an investor’s interest in a global security;
|
·
|
we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security, nor do we or any applicable trustee supervise the depositary in any way;
|
·
|
the depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
|
·
|
financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices, and other matters relating to the securities.
|
·
|
if the depositary notifies us that it is unwilling, unable, or no longer qualified under the Exchange Act to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days;
|
·
|
if we notify any applicable trustee that we wish to terminate that global security; or
|
·
|
if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
|
·
|
to or through underwriters or dealers,
|
·
|
directly to one or more purchasers,
|
·
|
through agents, or
|
·
|
through a combination of any of those methods of sale.
|
·
|
the name or names of any underwriters or agents,
|
·
|
any public offering price,
|
·
|
the proceeds from such sale,
|
·
|
any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation,
|
·
|
any over-allotment options under which underwriters may purchase additional securities from us,
|
·
|
any discounts or concessions allowed or reallowed or paid to dealers, and
|
·
|
any securities exchanges on which the securities may be listed.
|
·
|
at a fixed public offering price or prices, which may be changed,
|
·
|
at prices relating to prevailing market prices at the time of sale,
|
·
|
at varying prices determined at the time of sale, or
|
·
|
at negotiated prices.
|
·
|
Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.
|
·
|
Over-allotment involves sales by the underwriters of shares of our common stock in excess of the number of shares the underwriters are obligated to purchase, which creates a syndicate short position. The short position may be either a covered short position or a naked short position. In a covered short position, the number of shares of our common stock over-allotted by the underwriters is not greater than the number of shares that they may purchase in the over-allotment option. In a naked short position, the number of shares of our common stock involved is greater than the number of shares in the over-allotment option. The underwriters may close out any covered short position by either exercising their over-allotment option or purchasing shares of our common stock in the open market.
|
·
|
Syndicate covering transactions involve purchases of our common stock in the open market after the distribution has been completed in order to cover syndicate short positions. In determining the source of shares to close out the short position, the underwriters will consider, among other things, the price of shares of our common stock available for purchase in the open market as compared to the price at which they may purchase shares through the over-allotment option so that if there is a naked short position, the position can only be closed out by buying shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there could be downward pressure on the price of the shares of our common stock in the open market after the pricing of any offering that could adversely affect investors who purchase in that offering.
|
·
|
Penalty bids permit the representatives of the underwriters to reclaim a selling concession from a syndicate member when the common stock originally sold by the syndicate member is purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.
|
Amount
|
||||
to be Paid
|
||||
SEC Registration Fee
|
$ | 17,050 | ||
Accountants’ Fees and Expenses
|
20,000 | |||
Legal Fees and Expenses
|
50,000 | |||
Printing and Engraving Expenses
|
25,000 | |||
Transfer Agent Fees
|
5,000 | |||
Trust Fees and Expenses
|
10,000 | |||
Miscellaneous Fees
|
10,000 | |||
Total
|
$ | 137,050 |
Exhibit
|
Date
|
Description
|
||
1.1
|
n/a
|
Form of Underwriting Agreement**
|
||
2.1
|
July 6, 2009
|
Agreement and Plan of Reorganization among Croff Enterprises, Inc., AMHN Acquisition Corp., America’s Minority Health Network, Inc., and the Major Shareholders
(1)
|
||
2.2
|
June 11, 2010
|
Agreement and Plan of Reorganization among AMHN, Inc., SHN Acquisition Corp., Spectrum Health Network, Inc., and the Sole Shareholder of Spectrum Health Network, Inc.
(2)
|
||
2.3
|
October 25, 2007
|
Croff Enterprises, Inc. Plan of Corporate Division and Reorganization
(3)
|
||
2.4
|
July 18, 2011
|
Agreement and Plan of Merger among VitaMedMD, LLC, AMHN, Inc., and VitaMed Acquisition, LLC
(4)
|
||
3.1
|
September 15, 2009
|
Articles of Amendment to Articles of Incorporation (to change name to AMHN, Inc.)
(5)
|
||
3.2
|
July 27, 2009
|
Certificate of Merger of AMHN Acquisition Corp., with and into America’s Minority Health Network, Inc.
(6)
|
||
3.3
|
December 27, 2007
|
Articles of Amendment to Articles of Incorporation of Croff Enterprises, Inc. (to increase authorized common shares from 20,000,000 to 50,000,000)
(3)
|
||
3.4
|
July 20, 2010
|
Articles of Conversion of AMHN, Inc. filed in the State of Nevada
(7)
|
||
3.5
|
July 20, 2010
|
Articles of Incorporation of AMHN, Inc. filed in the State of Nevada
(7)
|
||
3.6
|
August 29, 2011
|
Certificate of Amendment and Restatement of Articles of Incorporation of AMHN, Inc. (to change name and increase authorized shares)
(8)
|
||
3.7
|
n/a
|
Bylaws of AMHN, Inc.
(9)
|
||
4.1
|
September 26, 2012
|
Form of Securities Purchase Agreement
(10)
|
||
4.2
|
n/a
|
Form of Certificate of Common Stock*
|
||
4.3
|
n/a
|
Specimen Certificate of Preferred Stock**
|
||
4.4
|
n/a
|
Form of Warrant Agreement and Certificate**
|
||
4.5
|
n/a
|
Form of Debt Security**
|
||
4.6
|
n/a
|
Form of Indenture*
|
||
4.7
|
n/a
|
Form of Depositary Receipt for Depository Shares**
|
||
4.8
|
n/a
|
Form of Deposit Agreement for Depositary Shares**
|
||
4.9
|
n/a
|
Form of Purchase Contract**
|
||
4.10
|
n/a
|
Form of Unit Agreement and Unit Certificate**
|
||
5.1
|
n/a
|
Opinion of Greenberg Traurig, LLP*
|
||
10.1
|
November 9, 2010
|
Demand Promissory Note to Philip M. Cohen for $210,000
(11)
|
||
10.2
|
April 18, 2011
|
Convertible Promissory Note to First Conquest Investment Group, L.L.C. for $105,000
(11)
|
Exhibit
|
Date
|
Description
|
10.3
|
April 18, 2011
|
Convertible Promissory Note to Energy Capital, LLC for $105,000
(11)
|
||
10.4
|
May 7, 2011
|
Sales Representative Agreement between AMHN, Inc. and Mann Equity, LLC
(11)
|
||
10.5
|
July 9, 2009
|
Lease Agreement between Liberty Property Limited Partnership and VitaMedMD, LLC
(12)
|
||
10.6
|
September 8, 2011
|
Stock Purchase Agreement between AMHN, Inc. and Pernix Therapeutics, LLC
(13)
|
||
10.7
|
September 8, 2011
|
Lock-Up Agreement between AMHN, Inc. and Pernix Therapeutics, LLC
(13)
|
||
10.8
|
n/a
|
Form of Common Stock Purchase Warrant
(12)
|
||
10.9
|
n/a
|
Form of Non-Qualified Stock Option Agreement
(12)
|
||
10.10
|
September 2011
|
Form of Convertible Promissory Note
(14)
|
||
10.11
|
September 20, 2011
|
Financing Agreement between Lang Naturals, Inc. and VitaMedMD, LLC
(15)
|
||
10.12
|
October 18, 2011
|
Debt Conversion Agreement between the Company and Energy Capital, LLC
(16)
|
||
10.13
|
October 18, 2011
|
Debt Conversion Agreement between the Company and First Conquest Investment Group, LLC
(16)
|
||
10.14
|
October 23, 2011
|
Consulting Agreement among VitaMedMD, LLC, the Company, and Lang Naturals, Inc.
(16)
|
||
10.15
|
October 23, 2011
|
Common Stock Purchase Warrant to Lang Naturals, Inc.
(16)
|
||
10.16
|
October 23, 2011
|
Lock-Up Agreement between the Company and Lang Naturals, Inc.
(16)
|
||
10.17
|
November 3, 2011
|
Software License Agreement between VitaMedMD, LLC and Pernix Therapeutics, LLC
(17)
|
||
10.18
|
November 2011
|
Form of Promissory Note
(18)
|
||
10.19
|
February 24, 2012
|
Note Purchase Agreement among the Company, Plato & Associates, Inc., and Steven G. Johnson
(19)
|
||
10.20
|
February 24, 2012
|
Form of Secured Promissory Note
(19)
|
||
10.21
|
February 24, 2012
|
Security Agreement among the Company, Plato & Associates, Inc., and Steven G. Johnson
(19)
|
||
10.22
|
February 24, 2012
|
Form of Common Stock Purchase Warrant
(19)
|
||
10.23
|
February 29, 2012
|
Audit Committee Charter
(20)
|
||
10.24
|
February 29, 2012
|
Compensation Committee Charter
(20)
|
||
10.25
|
February 29, 2012
|
Corporate Governance Committee Charter
(20)
|
||
10.26
|
April 17, 2012
|
Master Services Agreement between the Company and Sancilio and Company, Inc.
(21)
|
||
10.27
|
May 17, 2012
|
Consulting Agreement between the Company and Sancilio and Company, Inc.
(21)
***
|
||
10.28
|
November 8, 2012
|
Form of Employment Agreement
(22)
|
||
14.00
|
n/a
|
Form of 2010 Code of Business Conduct and Ethics
(6)
|
||
14.01
|
n/a
|
Form of 2010 Code of Ethics for Financial Executives
(6)
|
||
14.02
|
n/a
|
Form of 2010 Insider Trading Policy
(6)
|
||
16.1
|
December 14, 2011
|
Letter to the Company from Parks & Company, LLC
(23)
|
||
16.2
|
February 1, 2012
|
Letter to the SEC from Parks & Company, LLC
(24)
|
||
21.00
|
December 31, 2011
|
Subsidiaries of the Registrant
(25)
|
||
23.1
|
n/a
|
Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1)*
|
||
23.2
|
n/a
|
Consent of Rosenberg Rich Baker Berman & Company*
|
||
23.3
|
n/a
|
Consent of Parks & Company, LLC*
|
||
24.1
|
n/a
|
Power of Attorney of Directors and Executive Officers (included on the signature page of the Registration Statement)
|
||
25.1
|
n/a
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of the Trustee under the Indenture**
|
*
|
Filed herewith.
|
**
|
To be filed by amendment to this registration statement or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference.
|
***
|
Certain information in this exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
|
(1)
|
Filed as an exhibit to Form 8-K filed with the Commission on July 10, 2009 and incorporated herein by reference.
|
(2)
|
Filed as an exhibit to Form 8-K filed with the Commission on June 14, 2010 and incorporated herein by reference.
|
(3)
|
Filed as an exhibit to Form 10-K for the year ended December 31, 2007 filed with the Commission on May 1, 2008 and incorporated herein by reference.
|
(4)
|
Filed as an exhibit to Form 8-K filed with the Commission on July 21, 2011 and incorporated herein by reference.
|
(5)
|
Filed as an exhibit to Form 10-Q for quarter ended September 30, 2009 filed with the Commission on November 16, 2009 and incorporated herein by reference.
|
(6)
|
Filed as an exhibit to Form 10-K for the year ended December 31, 2009 filed with the Commission on March 17, 2010 and incorporated herein by reference.
|
(7)
|
Filed as an exhibit to Form 10-Q for quarter ended June 30, 2010 filed with the Commission on August 3, 2010 and incorporated herein by reference.
|
(8)
|
Filed as an exhibit to Definitive 14C Information Statement filed with the Commission on September 12, 2011 and incorporated herein by reference.
|
(9)
|
Filed as an exhibit to Definitive 14C Information Statement filed with the Commission on June 29, 2010 and incorporated herein by reference.
|
(10)
|
Filed as an exhibit to Form 8-K filed with the Commission on October 2, 2012 and incorporated herein by reference.
|
(11)
|
Filed as an exhibit to Form 10-Q for quarter ended March 31, 2011 filed with the Commission on May 19, 2011 and incorporated herein by reference.
|
(12)
|
Filed as an exhibit to Form 8-K filed with the Commission on October 11, 2011 and incorporated herein by reference.
|
(13)
|
Filed as an exhibit to Form 8-K filed with the Commission on September 14, 2011 and incorporated herein by reference.
|
(14)
|
Filed as an exhibit to Form 8-K/A filed with the Commission on November 22, 2011 and incorporated herein by reference.
|
(15)
|
Filed as an exhibit to Form 8-K/A filed with the Commission on February 2, 2012 and incorporated herein by reference.
|
(16)
|
Filed as an exhibit to Form 8-K filed with the Commission on October 24, 2011 and incorporated herein by reference.
|
(17)
|
Filed as an exhibit to Form 10-Q for quarter ended September 30, 2011 filed with the Commission on November 7, 2011 and incorporated herein by reference.
|
(18)
|
Filed as an exhibit to Form 8-K filed with the Commission on November 23, 2011 and incorporated herein by reference.
|
(19)
|
Filed as an exhibit to Form 8-K filed with the Commission on February 24, 2012 and incorporated herein by reference.
|
(20)
|
Filed as an exhibit to Form 8-K filed with the Commission on March 2, 2012 and incorporated herein by reference.
|
(21)
|
Filed as an exhibit to Form 10-Q for quarter ended June 30, 2012 filed with the Commission on August 9, 2012 and incorporated herein by reference.
|
(22)
|
Filed as an exhibit to Form 10-Q for the quarter ended September 30, 2012 filed with the Commission on November 13, 2012 and incorporated herein by reference.
|
(23)
|
Filed as an exhibit to Form 8-K filed with the Commission on January 25, 2012 and incorporated herein by reference.
|
(24)
|
Filed as an exhibit to Form 8-K/A filed with the Commission on February 3, 2012 and incorporated herein by reference.
|
(25)
|
Filed as an exhibit to Form 10-K for year ended December 31, 2011 filed with the Commission on March 27, 2012 and incorporated herein by reference.
|
THERAPEUTICSMD, INC. | ||
By:
|
/s/ Robert G. Finizio | |
Robert G. Finizio
Chief Executive Officer
|
Signature
|
Capacity
|
Date
|
/s/ Robert G. Finizio
|
Chief Executive Officer, Director
(Principal Executive Officer)
|
January 25, 2013
|
Robert G. Finizio
|
||
/s/ John C.K. Milligan, IV
|
President, Secretary, Director
|
January 25, 2013
|
John C.K. Milligan, IV
|
||
/s/ Daniel A. Cartwright
|
Chief Financial Officer, Treasurer
(Principal Financial and Accounting Officer)
|
January 25, 2013
|
Daniel A. Cartwright
|
||
/s/ Tommy G. Thompson
|
Chairman
|
|
Tommy G. Thompson
|
January 25, 2013
|
|
/s/ Brian Bernick
|
Director
|
January 25, 2013
|
Brian Bernick
|
||
/s/ Samuel A. Greco
|
Director
|
January 25, 2013
|
Samuel A. Greco
|
||
/s/ Cooper C. Collins
|
Director
|
January 25, 2013
|
Cooper C. Collins
|
||
/s/ Robert V. LaPenta, Jr.
|
Director
|
January 25, 2013
|
Robert V. LaPenta, Jr.
|
||
/s/ Nicholas Segal
|
Director
|
January 25, 2013
|
Nicholas Segal
|
Exhibit
|
Date
|
Description
|
||
1.1
|
n/a
|
Form of Underwriting Agreement**
|
||
2.1
|
July 6, 2009
|
Agreement and Plan of Reorganization among Croff Enterprises, Inc., AMHN Acquisition Corp., America’s Minority Health Network, Inc., and the Major Shareholders
(1)
|
||
2.2
|
June 11, 2010
|
Agreement and Plan of Reorganization among AMHN, Inc., SHN Acquisition Corp., Spectrum Health Network, Inc., and the Sole Shareholder of Spectrum Health Network, Inc.
(2)
|
||
2.3
|
October 25, 2007
|
Croff Enterprises, Inc. Plan of Corporate Division and Reorganization
(3)
|
||
2.4
|
July 18, 2011
|
Agreement and Plan of Merger among VitaMedMD, LLC, AMHN, Inc., and VitaMed Acquisition, LLC
(4)
|
||
3.1
|
September 15, 2009
|
Articles of Amendment to Articles of Incorporation (to change name to AMHN, Inc.)
(5)
|
||
3.2
|
July 27, 2009
|
Certificate of Merger of AMHN Acquisition Corp., with and into America’s Minority Health Network, Inc.
(6)
|
||
3.3
|
December 27, 2007
|
Articles of Amendment to Articles of Incorporation of Croff Enterprises, Inc. (to increase authorized common shares from 20,000,000 to 50,000,000)
(3)
|
||
3.4
|
July 20, 2010
|
Articles of Conversion of AMHN, Inc. filed in the State of Nevada
(7)
|
||
3.5
|
July 20, 2010
|
Articles of Incorporation of AMHN, Inc. filed in the State of Nevada
(7)
|
||
3.6
|
August 29, 2011
|
Certificate of Amendment and Restatement of Articles of Incorporation of AMHN, Inc. (to change name and increase authorized shares)
(8)
|
||
3.7
|
n/a
|
Bylaws of AMHN, Inc.
(9)
|
||
4.1
|
September 26, 2012
|
Form of Securities Purchase Agreement
(10)
|
||
4.2
|
n/a
|
Form of Certificate of Common Stock*
|
||
4.3
|
n/a
|
Specimen Certificate of Preferred Stock**
|
||
4.4
|
n/a
|
Form of Warrant Agreement and Certificate**
|
||
4.5
|
n/a
|
Form of Debt Security**
|
||
4.6
|
n/a
|
Form of Indenture*
|
||
4.7
|
n/a
|
Form of Depositary Receipt for Depository Shares**
|
||
4.8
|
n/a
|
Form of Deposit Agreement for Depositary Shares**
|
||
4.9
|
n/a
|
Form of Purchase Contract**
|
||
4.10
|
n/a
|
Form of Unit Agreement and Unit Certificate**
|
||
5.1
|
n/a
|
Opinion of Greenberg Traurig, LLP*
|
||
10.1
|
November 9, 2010
|
Demand Promissory Note to Philip M. Cohen for $210,000
(11)
|
||
10.2
|
April 18, 2011
|
Convertible Promissory Note to First Conquest Investment Group, L.L.C. for $105,000
(11)
|
||
10.3
|
April 18, 2011
|
Convertible Promissory Note to Energy Capital, LLC for $105,000
(11)
|
||
10.4
|
May 7, 2011
|
Sales Representative Agreement between AMHN, Inc. and Mann Equity, LLC
(11)
|
||
10.5
|
July 9, 2009
|
Lease Agreement between Liberty Property Limited Partnership and VitaMedMD, LLC
(12)
|
||
10.6
|
September 8, 2011
|
Stock Purchase Agreement between AMHN, Inc. and Pernix Therapeutics, LLC
(13)
|
||
10.7
|
September 8, 2011
|
Lock-Up Agreement between AMHN, Inc. and Pernix Therapeutics, LLC
(13)
|
||
10.8
|
n/a
|
Form of Common Stock Purchase Warrant
(12)
|
||
10.9
|
n/a
|
Form of Non-Qualified Stock Option Agreement
(12)
|
||
10.10
|
September 2011
|
Form of Convertible Promissory Note
(14)
|
||
10.11
|
September 20, 2011
|
Financing Agreement between Lang Naturals, Inc. and VitaMedMD, LLC
(15)
|
||
10.12
|
October 18, 2011
|
Debt Conversion Agreement between the Company and Energy Capital, LLC
(16)
|
Exhibit
|
Date
|
Description
|
||
10.13
|
October 18, 2011
|
Debt Conversion Agreement between the Company and First Conquest Investment Group, LLC
(16)
|
||
10.14
|
October 23, 2011
|
Consulting Agreement among VitaMedMD, LLC, the Company, and Lang Naturals, Inc.
(16)
|
||
10.15
|
October 23, 2011
|
Common Stock Purchase Warrant to Lang Naturals, Inc.
(16)
|
||
10.16
|
October 23, 2011
|
Lock-Up Agreement between the Company and Lang Naturals, Inc.
(16)
|
||
10.17
|
November 3, 2011
|
Software License Agreement between VitaMedMD, LLC and Pernix Therapeutics, LLC
(17)
|
||
10.18
|
November 2011
|
Form of Promissory Note
(18)
|
||
10.19
|
February 24, 2012
|
Note Purchase Agreement among the Company, Plato & Associates, Inc., and Steven G. Johnson
(19)
|
||
10.20
|
February 24, 2012
|
Form of Secured Promissory Note
(19)
|
||
10.21
|
February 24, 2012
|
Security Agreement among the Company, Plato & Associates, Inc., and Steven G. Johnson
(19)
|
||
10.22
|
February 24, 2012
|
Form of Common Stock Purchase Warrant
(19)
|
||
10.23
|
February 29, 2012
|
Audit Committee Charter
(20)
|
||
10.24
|
February 29, 2012
|
Compensation Committee Charter
(20)
|
||
10.25
|
February 29, 2012
|
Corporate Governance Committee Charter
(20)
|
||
10.26
|
April 17, 2012
|
Master Services Agreement between the Company and Sancilio and Company, Inc.
(21)
|
||
10.27
|
May 17, 2012
|
Consulting Agreement between the Company and Sancilio and Company, Inc.
(21)
***
|
||
10.28
|
November 8, 2012
|
Form of Employment Agreement
(22)
|
||
14.00
|
n/a
|
Form of 2010 Code of Business Conduct and Ethics
(6)
|
||
14.01
|
n/a
|
Form of 2010 Code of Ethics for Financial Executives
(6)
|
||
14.02
|
n/a
|
Form of 2010 Insider Trading Policy
(6)
|
||
16.1
|
December 14, 2011
|
Letter to the Company from Parks & Company, LLC
(23)
|
||
16.2
|
February 1, 2012
|
Letter to the SEC from Parks & Company, LLC
(24)
|
||
21.00
|
December 31, 2011
|
Subsidiaries of the Registrant
(25)
|
||
23.1
|
n/a
|
Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1)*
|
||
23.2
|
n/a
|
Consent of Rosenberg Rich Baker Berman & Company*
|
||
23.3
|
n/a
|
Consent of Parks & Company, LLC*
|
||
24.1
|
n/a
|
Power of Attorney of Directors and Executive Officers (included on the signature page of the Registration Statement)
|
||
25.1
|
n/a
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of the Trustee under the Indenture**
|
*
|
Filed herewith.
|
**
|
To be filed by amendment to this registration statement or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference.
|
***
|
Certain information in this exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
|
(1)
|
Filed as an exhibit to Form 8-K filed with the Commission on July 10, 2009 and incorporated herein by reference.
|
(2)
|
Filed as an exhibit to Form 8-K filed with the Commission on June 14, 2010 and incorporated herein by reference.
|
(3)
|
Filed as an exhibit to Form 10-K for the year ended December 31, 2007 filed with the Commission on May 1, 2008 and incorporated herein by reference.
|
(4)
|
Filed as an exhibit to Form 8-K filed with the Commission on July 21, 2011 and incorporated herein by reference.
|
(5)
|
Filed as an exhibit to Form 10-Q for quarter ended September 30, 2009 filed with the Commission on November 16, 2009 and incorporated herein by reference.
|
(6)
|
Filed as an exhibit to Form 10-K for the year ended December 31, 2009 filed with the Commission on March 17, 2010 and incorporated herein by reference.
|
(7)
|
Filed as an exhibit to Form 10-Q for quarter ended June 30, 2010 filed with the Commission on August 3, 2010 and incorporated herein by reference.
|
(8)
|
Filed as an exhibit to Definitive 14C Information Statement filed with the Commission on September 12, 2011 and incorporated herein by reference.
|
(9)
|
Filed as an exhibit to Definitive 14C Information Statement filed with the Commission on June 29, 2010 and incorporated herein by reference.
|
(10)
|
Filed as an exhibit to Form 8-K filed with the Commission on October 2, 2012 and incorporated herein by reference.
|
(11)
|
Filed as an exhibit to Form 10-Q for quarter ended March 31, 2011 filed with the Commission on May 19, 2011 and incorporated herein by reference.
|
(12)
|
Filed as an exhibit to Form 8-K filed with the Commission on October 11, 2011 and incorporated herein by reference.
|
(13)
|
Filed as an exhibit to Form 8-K filed with the Commission on September 14, 2011 and incorporated herein by reference.
|
(14)
|
Filed as an exhibit to Form 8-K/A filed with the Commission on November 22, 2011 and incorporated herein by reference.
|
(15)
|
Filed as an exhibit to Form 8-K/A filed with the Commission on February 2, 2012 and incorporated herein by reference.
|
(16)
|
Filed as an exhibit to Form 8-K filed with the Commission on October 24, 2011 and incorporated herein by reference.
|
(17)
|
Filed as an exhibit to Form 10-Q for quarter ended September 30, 2011 filed with the Commission on November 7, 2011 and incorporated herein by reference.
|
(18)
|
Filed as an exhibit to Form 8-K filed with the Commission on November 23, 2011 and incorporated herein by reference.
|
(19)
|
Filed as an exhibit to Form 8-K filed with the Commission on February 24, 2012 and incorporated herein by reference.
|
(20)
|
Filed as an exhibit to Form 8-K filed with the Commission on March 2, 2012 and incorporated herein by reference.
|
(21)
|
Filed as an exhibit to Form 10-Q for quarter ended June 30, 2012 filed with the Commission on August 9, 2012 and incorporated herein by reference.
|
(22)
|
Filed as an exhibit to Form 10-Q for the quarter ended September 30, 2012 filed with the Commission on November 13, 2012 and incorporated herein by reference.
|
(23)
|
Filed as an exhibit to Form 8-K filed with the Commission on January 25, 2012 and incorporated herein by reference.
|
(24)
|
Filed as an exhibit to Form 8-K/A filed with the Commission on February 3, 2012 and incorporated herein by reference.
|
(25)
|
Filed as an exhibit to Form 10-K for year ended December 31, 2011 filed with the Commission on March 27, 2012 and incorporated herein by reference.
|
|
Exhibit 4.6
|
Page
|
|||
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
|
1 | ||
Section 1.01
|
Certain Definitions
|
1
|
|
Section 1.02
|
Other Definitions
|
4
|
|
Section 1.03
|
Incorporation by Reference of Trust Indenture Act
|
4
|
|
Section 1.04
|
Rules of Construction
|
4
|
|
ARTICLE 2 THE SECURITIES
|
5
|
||
Section 2.01
|
Unlimited In Amount, Issuable In Series, Form, and Dating
|
5
|
|
Section 2.02
|
Execution and Authentication
|
7
|
|
Section 2.03
|
Registrar and Paying Agent
|
7
|
|
Section 2.04
|
Paying Agent to Hold Money in Trust
|
8
|
|
Section 2.05
|
Securityholder Lists
|
8
|
|
Section 2.06
|
Transfer and Exchange
|
8
|
|
Section 2.07
|
Replacement Securities
|
9
|
|
Section 2.08
|
Outstanding Securities
|
9
|
|
Section 2.09
|
Temporary Securities
|
9
|
|
Section 2.10
|
Cancellation
|
9
|
|
Section 2.11
|
Defaulted Interest
|
10
|
|
Section 2.12
|
Special Record Dates
|
10
|
|
Section 2.13
|
Global Securities
|
10
|
|
Section 2.14
|
CUSIP Numbers
|
11
|
|
ARTICLE 3 REDEMPTION
|
11
|
||
Section 3.01
|
Notices to Trustee
|
11
|
|
Section 3.02
|
Selection of Securities to Be Redeemed
|
12
|
|
Section 3.03
|
Notice of Redemption
|
12
|
|
Section 3.04
|
Effect of Notice of Redemption
|
13
|
|
Section 3.05
|
Deposit of Redemption Price
|
13
|
|
Section 3.06
|
Securities Redeemed or Purchased in Part
|
13
|
|
ARTICLE 4 COVENANTS
|
13
|
||
Section 4.01
|
Payment of Securities
|
13
|
|
Section 4.02
|
Maintenance of Office or Agency
|
14
|
|
Section 4.03
|
Reports
|
14
|
|
Section 4.04
|
Compliance Certificate
|
14
|
|
Section 4.05
|
Taxes
|
15
|
|
Section 4.06
|
Stay, Extension and Usury Laws
|
15
|
|
Section 4.07
|
Calculation of Original Issue Discount
|
15
|
|
ARTICLE 5 SUCCESSORS 15 | |||
Section 5.01
|
When Company May Merge, Etc
|
15
|
|
Section 5.02
|
Successor Person Substituted
|
16
|
|
ARTICLE 6 DEFAULTS AND REMEDIES
|
16 | ||
Section 6.01
|
Events of Default
|
16
|
|
Section 6.02
|
Acceleration
|
17
|
|
Section 6.03
|
Other Remedies
|
17
|
|
Section 6.04
|
Waiver of Past Defaults
|
17
|
|
Section 6.05
|
Control by Majority
|
18
|
|
Section 6.06
|
Limitation on Suits
|
18
|
|
Section 6.07
|
Rights of Holders to Receive Payment
|
18
|
|
Section 6.08
|
Collection Suit by Trustee
|
18
|
|
Section 6.09
|
Trustee May File Proofs of Claim
|
19
|
|
Section 6.10
|
Priorities
|
19
|
|
Section 6.11
|
Undertaking for Costs
|
19
|
ARTICLE 7 TRUSTEE
|
20
|
||
Section 7.01
|
Duties of Trustee
|
20
|
|
Section 7.02
|
Rights of Trustee
|
20
|
|
Section 7.03
|
Individual Rights of Trustee
|
21
|
|
Section 7.04
|
Trustee’s Disclaimer
|
21
|
|
Section 7.05
|
Notice of Defaults
|
21
|
|
Section 7.06
|
Reports by Trustee to Holders
|
22
|
|
Section 7.07
|
Compensation and Indemnity
|
22
|
|
Section 7.08
|
Replacement of Trustee
|
22
|
|
Section 7.09
|
Successor Trustee by Merger, etc
|
23
|
|
Section 7.10
|
Eligibility; Disqualification
|
24
|
|
Section 7.11
|
Preferential Collection of Claims Against Company
|
24
|
|
ARTICLE 8 SATISFACTION AND DISCHARGE; DEFEASANCE
|
24 | ||
Section 8.01
|
Satisfaction and Discharge
|
24
|
|
Section 8.02
|
Option to Effect Legal Defeasance or Covenant Defeasance
|
25
|
|
Section 8.03
|
Legal Defeasance and Discharge
|
25
|
|
Section 8.04
|
Covenant Defeasance
|
25
|
|
Section 8.05
|
Conditions to Legal or Covenant Defeasance
|
26
|
|
Section 8.06
|
Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
|
26
|
|
Section 8.07
|
Repayment to Company
|
27
|
|
Section 8.08
|
Reinstatement
|
27
|
|
ARTICLE 9 SUPPLEMENTS, AMENDMENTS, AND WAIVERS
|
27
|
||
Section 9.01
|
Without Consent of Holders
|
27
|
|
Section 9.02
|
With Consent of Holders
|
28
|
|
Section 9.03
|
Revocation and Effect of Consents
|
29
|
|
Section 9.04
|
Notation on or Exchange of Securities
|
30
|
|
Section 9.05
|
Trustee to Sign Amendments, etc
|
30
|
|
ARTICLE 10 GUARANTEES
|
30 | ||
Section 10.01
|
Guarantee
|
30
|
|
ARTICLE 11 MISCELLANEOUS
|
30 | ||
Section 11.01
|
Indenture Subject to Trust Indenture Act
|
30
|
|
Section 11.02
|
Notices
|
30
|
|
Section 11.03
|
Communication By Holders With Other Holders
|
31
|
|
Section 11.04
|
Certificate and Opinion as to Conditions Precedent
|
31
|
|
Section 11.05
|
Statements Required in Certificate or Opinion
|
32
|
|
Section 11.06
|
Rules by Trustee and Agents
|
32
|
|
Section 11.07
|
Legal Holidays
|
32
|
|
Section 11.08
|
No Recourse Against Others
|
32
|
|
Section 11.09
|
Counterparts
|
32
|
|
Section 11.10
|
Governing Law
|
33
|
|
Section 11.11
|
Submission to Jurisdiction; Service of Process; Waiver of Jury Trial
|
33
|
|
Section 11.12
|
Severability
|
33
|
|
Section 11.13
|
Effect of Headings, Table of Contents, etc
|
33
|
|
Section 11.14
|
Successors and Assigns
|
33
|
|
Section 11.15
|
No Interpretation of Other Agreements
|
33
|
Trust Indenture
Act Section
|
Indenture Section
|
|
310(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
(a)(3)
|
N.A.
|
|
(a)(4)
|
N.A.
|
|
(a)(5)
|
7.10
|
|
(b)
|
7.03, 7.08; 7.10
|
|
(c)
|
N.A.
|
|
311(a)
|
7.11
|
|
(b)
|
7.11
|
|
(c)
|
N.A.
|
|
312(a)
|
2.05
|
|
(b)
|
11.03
|
|
(c)
|
11.03
|
|
313(a)
|
7.06
|
|
(b)(1)
|
N.A.
|
|
(b)(2)
|
7.06
|
|
(c)
|
7.06; 11.02
|
|
(d)
|
7.06
|
|
314(a)
|
4.03; 10.02; 11.05
|
|
(b)
|
N.A.
|
|
(c)(1)
|
11.04
|
|
(c)(2)
|
11.04
|
|
(c)(3)
|
N.A.
|
|
(d)
|
N.A.
|
|
(e)
|
11.05
|
|
(f)
|
N.A.
|
|
315(a)
|
7.01(b)(ii), 7.02
|
|
(b)
|
7.02, 7.05; 10.02
|
|
(c)
|
7.01(a), 7.02
|
|
(d)
|
7.01(d), 7.02
|
|
(e)
|
6.11
|
|
316(a)(last sentence)
|
2.13(f)
|
|
(a)(1)(A)
|
6.05
|
|
(a)(1)(B)
|
6.04
|
|
(a)(2)
|
N.A.
|
|
(b)
|
6.07
|
|
(c)
|
2.12; 9.03
|
|
317(a)(1)
|
6.08
|
|
(a)(2)
|
6.09
|
|
(b)
|
2.04
|
|
318(a)
|
11.01
|
|
(b)
|
N.A.
|
|
(c)
|
11.01
|
Term
|
Defined in Section
|
|
“Bankruptcy Law”
|
6.01
|
|
“Custodian”
|
6.01
|
|
“Event of Default”
|
6.01
|
|
“foreign government obligations”
|
8.01
|
|
“Legal Holiday”
|
11.07
|
|
“Paying Agent”
|
2.03
|
|
“Place of Payment”
|
2.01
|
|
“redemption price”
|
3.03
|
|
“Registrar”
|
2.03
|
ISSUER:
THERAPEUTICSMD, INC. |
||
By: | ||
Name:
|
||
Title:
|
||
TRUSTEE:
[__________________]
|
||
By: | ||
Name:
|
||
Title:
|
||
GUARANTORS:
[__________________]
|
||
By: |
|
|
Name: | ||
Title:
|
|
A.
|
The Amended and Restated Articles of Incorporation of the Company, as amended to date;
|
|
B.
|
The Bylaws of the Company, as amended to date;
|
|
C.
|
The Registration Statement; and
|
|
D.
|
The resolutions of the Board of Directors of the Company relating to the approval of the filing of the Registration Statement and transactions in connection therewith.
|
|
Exhibit 23.2
|
CONSENT OF INDEPENDENT REGISTERED
|
PUBLIC ACCOUNTING FIRM
|
|
Exhibit 23.3
|
Parks & Company, LLC
|
Phone (954) 719-7569 |
Certified Public Accountants & Consultants
|
Fax (954) 719-3704 |
1761 W. Hillsboro Boulevard, Suite 326
|
Deerfield Beach, FL 33442
|
www.parkscpas.com
|
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
|