þ |
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
For the quarterly period ended March 31, 2013 | |
¨ |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
|
For the transition period from________ to ___________ |
Nevada
|
87-0233535 | |
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification No.) |
951 Broken Sound Parkway NW, Suite 320, Boca Raton, FL 33487 | (561) 961-1911 | |
(Address of Principal Executive Offices) | (Issuer’s Telephone Number) |
Large accelerated filer ¨ | Accelerated filer þ | ||
Non-accelerated filer ¨ |
Smaller reporting company
¨
|
||
(Do not check if smaller reporting company) | |||
Page | ||||
PART I - FINANCIAL INFORMATION
|
||||
Item. 1
|
Financial Statements
|
|||
3
|
||||
4
|
||||
5
|
||||
6
|
||||
21
|
||||
27
|
||||
27
|
||||
28
|
||||
29
|
||||
29
|
||||
29
|
||||
29
|
||||
30
|
||||
31
|
March 31, 2013
|
December 31, 2012
|
|||||||
(Unaudited)
|
||||||||
ASSETS
|
||||||||
Current Assets:
|
||||||||
Cash
|
$ | 38,779,563 | $ | 1,553,474 | ||||
Accounts receivable, net of allowance for doubtful accounts
of $63,843 and $42,048, respectively
|
602,824 | 606,641 | ||||||
Inventory
|
1,337,870 | 1,615,210 | ||||||
Other current assets
|
2,175,520 | 751,938 | ||||||
Total current assets
|
42,895,777 | 4,527,263 | ||||||
Fixed assets, net
|
83,875 | 65,673 | ||||||
Other Assets:
|
||||||||
Prepaid consulting expense
|
863,523 | 953,655 | ||||||
Intangible assets
|
317,250 | 239,555 | ||||||
Security deposit
|
31,949 | 31,949 | ||||||
Total other assets
|
1,212,722 | 1,225,159 | ||||||
Total assets
|
$ | 44,192,374 | $ | 5,818,095 | ||||
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
|
||||||||
Current Liabilities:
|
||||||||
Accounts payable
|
$ | 1,840,811 | $ | 1,641,366 | ||||
Deferred revenue
|
1,142,373 | 1,144,752 | ||||||
Other current liabilities
|
1,144,918 | 725,870 | ||||||
Line of credit
|
100,000 | — | ||||||
Accrued interest
|
21,595 | — | ||||||
Total current liabilities
|
4,249,697 | 3,511,988 | ||||||
Long-Term Liabilities:
|
||||||||
Notes payable, net of debt discount of $0 and $1,102,680, respectively
|
— | 3,589,167 | ||||||
Accrued interest
|
— | 150,068 | ||||||
Total long-term liabilities
|
— | 3,739,235 | ||||||
Total liabilities
|
4,249,697 | 7,251,223 | ||||||
Commitments and Contingencies
|
||||||||
Stockholders' Equity (Deficit):
|
||||||||
|
||||||||
Preferred stock - par value $0.001; 10,000,000 shares authorized;
no shares issued and outstanding
|
— | — | ||||||
Common stock - par value $0.001; 250,000,000 shares authorized;
129,196,747 and 99,784,982 issued and outstanding, respectively
|
129,196 | 99,785 | ||||||
Additional paid-in capital
|
98,302,447 | 50,580,400 | ||||||
Accumulated deficit
|
(58,488,966 | ) | (52,113,313 | ) | ||||
Total stockholder' equity (deficit)
|
39,942,677 | (1,433,128 | ) | |||||
Total liabilities and stockholders' equity (deficit)
|
$ | 44,192,374 | $ | 5,818,095 |
Three Months Ended
|
||||||||
March 31,
|
||||||||
2013
|
2012
|
|||||||
(Unaudited)
|
(Unaudited)
|
|||||||
Revenues, net
|
$ | 1,537,195 | $ | 721,692 | ||||
Cost of goods sold
|
380,346 | 336,124 | ||||||
Gross profit
|
1,156,849 | 385,568 | ||||||
Operating expenses:
|
||||||||
Sales, general, and administration
|
4,526,582 | 2,827,050 | ||||||
Research and development
|
1,565,201 | 411,961 | ||||||
Depreciation and amortization
|
7,957 | 14,578 | ||||||
Total operating expense
|
6,099,740 | 3,253,589 | ||||||
Operating loss
|
(4,942,891 | ) | (2,868,021 | ) | ||||
Other income (expense)
|
||||||||
Interest expense
|
(1,165,831 | ) | (101,973 | ) | ||||
Financing costs
|
(263,987 | ) | — | |||||
Loan guaranty costs
|
(2,944 | ) | (11,745 | ) | ||||
Loss on extinguishment of debt
|
— | (10,307,864 | ) | |||||
Total other income (expense)
|
(1,432,762 | ) | (10,421,582 | ) | ||||
Loss before taxes
|
(6,375,653 | ) | (13,289,603 | ) | ||||
Provision for income taxes
|
— | — | ||||||
Net loss
|
$ | (6,375,653 | ) | $ | (13,289,603 | ) | ||
Loss per share, basic and diluted:
|
||||||||
Net loss per share, basic and diluted
|
$ | (0.06 | ) | $ | (0.16 | ) | ||
Weighted average number of common shares outstanding
|
103,052,956 | 84,556,216 |
Three Months Ended
|
||||||||
March 31,
|
||||||||
2013
|
2012
|
|||||||
(Unaudited)
|
(Unaudited)
|
|||||||
CASH FLOWS FROM OPERATING ACTIVITIES
|
||||||||
Net loss
|
$ | (6,375,653 | ) | $ | (13,289,603 | ) | ||
Adjustments to reconcile net loss to net cash flows used in
operating activities:
|
||||||||
Depreciation
|
4,703 | 7,008 | ||||||
Amortization of intangible assets
|
3,254 | 7,570 | ||||||
Provision for doubtful accounts
|
21,795 | — | ||||||
Amortization of debt discount
|
1,102,680 | 53,292 | ||||||
Stock based compensation
|
609,030 | 88,585 | ||||||
Amortization of deferred financing costs
|
263,987 | — | ||||||
Stock based expense for services
|
112,306 | 55,371 | ||||||
Loan guaranty costs
|
2,944 | 11,745 | ||||||
Loss on debt extinguishment
|
— | 10,307,864 | ||||||
Changes in operating assets and liabilities:
|
||||||||
Accounts receivable
|
(17,978 | ) | (85,332 | ) | ||||
Inventory
|
277,340 | 45,410 | ||||||
Other current assets
|
(731 | ) | 51,970 | |||||
Accounts payable
|
199,445 | 301,246 | ||||||
Accrued interest
|
(128,473 | ) | 45,749 | |||||
Accrued expenses and other current liabilities
|
419,048 | (52,860 | ) | |||||
Deferred revenue
|
(2,379 | ) | — | |||||
Net cash flows used in operating activities
|
(3,508,682 | ) | (2,451,985 | ) | ||||
CASH FLOWS FROM INVESTING ACTIVITIES
|
||||||||
Patent costs, net of abandoned costs
|
(80,949 | ) | (12,101 | ) | ||||
Purchase of property and equipment
|
(22,905 | ) | (32,386 | ) | ||||
Net cash flows used in investing activities
|
(103,854 | ) | (44,487 | ) | ||||
CASH FLOWS FROM FINANCING ACTIVITIES
|
||||||||
Proceeds from revolving credit note
|
400,000 | — | ||||||
Repayment of revolving credit note
|
(400,000 | ) | — | |||||
Proceeds from sale of common stock, net
|
45,430,472 | — | ||||||
Proceeds from notes and loans payable
|
100,000 | 2,400,000 | ||||||
Repayment of notes payable
|
(4,691,847 | ) | (779 | ) | ||||
Proceeds from exercise of warrants
|
— | 165,999 | ||||||
Net cash flows provided by financing activities
|
40,838,625 | 2,565,220 | ||||||
Increase in cash
|
37,226,089 | 68,748 | ||||||
Cash, beginning of period
|
1,553,474 | 126,421 | ||||||
Cash, end of period
|
$ | 38,779,563 | $ | 195,169 | ||||
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
|
||||||||
Cash paid for interest
|
$ | 191,258 | $ | 2,112 | ||||
Cash paid for income taxes
|
$ | — | $ | — | ||||
SUPPLEMENTAL SCHEDULE OF NON-CASH FINANCING ACTIVITIES:
|
||||||||
Warrants issued for financing
|
$ | 1,711,956 | $ | — |
Level 1
|
unadjusted quoted prices in active markets for identical assets or liabilities;
|
||
Level 2
|
quoted prices for similar assets or liabilities in active markets or inputs that are observable for the asset or liability, either directly or indirectly through market corroboration, for substantially the full term of the financial instrument; and
|
||
Level 3
|
unobservable inputs for the asset or liability.
|
March 31,
2013
|
December 31, 2012
|
|||||||
Finished product
|
$ | 902,331 | $ | 1,124,739 | ||||
Raw material
|
326,963 | 380,000 | ||||||
Deferred costs
|
108,576 | 110,471 | ||||||
TOTAL INVENTORY
|
$ | 1,337,870 | $ | 1,615,210 |
March 31,
2013
|
December 31, 2012
|
|||||||
Deferred financing costs
|
$ | 1,447,969 | $ | — | ||||
Prepaid consulting
|
410,042 | 432,216 | ||||||
Deposits with vendors
|
232,752 | 189,375 | ||||||
Prepaid insurance
|
81,760 | 127,403 | ||||||
Prepaid guaranty costs
|
— | 2,944 | ||||||
Other prepaid costs
|
2,997 | — | ||||||
TOTAL OTHER CURRENT ASSETS
|
$ | 2,175,520 | $ | 751,938 |
March 31,
2013
|
December 31, 2012
|
|||||||
Equipment
|
$ | 90,573 | $ | 67,668 | ||||
Furniture and fixtures
|
46,625 | 46,625 | ||||||
Leasehold improvements
|
11,980 | 11,980 | ||||||
149,178 | 126,273 | |||||||
Accumulated depreciation
|
(65,303 | ) | (60,600 | ) | ||||
TOTAL FIXED ASSETS
|
$ | 83,875 | $ | 65,673 |
March 31,
2013
|
December 31, 2012
|
|||||||
Patent costs
|
$ | 305,920 | $ | 224,971 | ||||
Website costs, net of amortization of $80,413 and $77,159, respectively
|
11,330 | 14,584 | ||||||
TOTAL INTANGIBLE ASSETS
|
$ | 317,250 | $ | 239,555 |
March 31,
2013
|
December 31, 2012
|
|||||||
Accrued offering costs
|
$ | 576,500 | $ | — | ||||
Accrued payroll and commission costs
|
254,554 | 397,210 | ||||||
Accrued vacation costs
|
184,087 | 114,899 | ||||||
Allowance for coupons and returns
|
81,968 | 53,002 | ||||||
Dividends payable
(1)
|
41,359 | 41,359 | ||||||
Other accrued expenses
|
6,450 | 119,400 | ||||||
TOTAL OTHER CURRENT LIABILITIES
|
$ | 1,144,918 | $ | 725,870 |
______________
(1)
In June 2008, the Company declared and paid a special dividend of $0.40 per share of common stock to all stockholders of record as of June 10, 2008. This amount reflects moneys remaining unclaimed by certain stockholders.
|
Number of Shares Under Company Warrants
|
Weighted Average Exercise Price
|
Weighted
Average
Remaining
Contractual
Life in Years
|
Aggregate
Intrinsic Value
|
|||||||||||||
Balance at December 31, 2012
|
12,193,499 | $ | 1.63 | 4.8 | $ | 17,971,994 | ||||||||||
Granted
|
1,250,000 | $ | 3.20 | 5.8 | $ | – | ||||||||||
Exercised
|
– | |||||||||||||||
Expired
|
– | |||||||||||||||
Cancelled
|
– | |||||||||||||||
Balance at March 31, 2013
|
13,443,499 | $ | 1.77 | 4.7 | $ | 5,541,549 | ||||||||||
Vested and Exercisable at
March 31, 2013
|
13,075,317 | $ | 1.81 | 4.6 | $ | 1,539,539 |
Three Months Ended
March 31, 2013
|
Year Ended
December 31, 2012
|
|||||||
Risk-free interest rate
|
0.77-0.81 | % | 0.61-2.23 | % | ||||
Volatility
|
43.01-44.94 | % | 40.77-46.01 | % | ||||
Term (in years)
|
5.5-6.25 | 5-6.25 | ||||||
Dividend yield
|
0.00 | % | 0.00 | % |
Number of Shares Under Company Option
|
Weighted Average Exercise Price
|
Weighted
Average
Remaining
Contractual
Life in Years
|
Aggregate Intrinsic Value
|
|||||||||||||
Balance at December 31, 2012
|
13,733,488 | $ | 1.16 | 7.7 | $ | 26,804,117 | ||||||||||
Granted
|
180,109 | $ | 2.12 | 9.6 | ||||||||||||
Exercised
|
— | |||||||||||||||
Expired
|
— | |||||||||||||||
Cancelled
|
— | |||||||||||||||
Balance at March 31,2013
|
13,913,597 | $ | 1.16 | 7.9 | $ | 13,955,624 | ||||||||||
Vested and Exercisable at
March 31, 2013
|
9,196,154 | $ | 0.53 | 6.7 | $ | 12,729,500 |
Three Months Ended
March 31,
|
||||||||||||
2013
|
2012
|
Change
|
||||||||||
(000s ) | ||||||||||||
Revenues, net
|
$ | 1,537 | $ | 722 | $ | 815 | ||||||
Cost of goods sold
|
380 | 336 | 44 | |||||||||
Operating expenses
|
6,100 | 3,254 | 2,846 | |||||||||
Operating loss
|
(4,943 | ) | (2,868 | ) | (2,075 | ) | ||||||
Other expense
|
(1,433 | ) | (10,422 | ) | 8,989 | |||||||
Net loss
|
$ | (6,376 | ) | $ | (13,290 | ) | $ | 6,914 |
Three Months Ended
March 31,
|
||||||||
2013
|
2012
|
|||||||
Human resource costs, including salaries, commission, benefits and taxes
|
41.2 | % | 46.7 | % | ||||
Product design and development costs
|
27.5 | % | 10.7 | % | ||||
Sales and marketing, excluding human resource costs
|
19.0 | % | 28.5 | % | ||||
Professional fees for legal, accounting and consulting
|
7.1 | % | 11.2 | % | ||||
Other operating expenses
|
5.2 | % | 2.9 | % |
(000s) | ||||
Increase in human resource costs, including salaries, commission, benefits and taxes
|
$ | 994 | ||
Increase in product design and development costs
|
1,328 | |||
Increase in sales and marketing, excluding human resource costs
|
346 | |||
Increase in legal, accounting and consulting fees
|
70 | |||
Increase in other operating expenses
|
108 | |||
$ | 2,846 |
·
|
significantly delay, scale back, or discontinue our product development and commercialization efforts;
|
·
|
seek collaborators for our proposed hormone therapy products at an earlier stage than otherwise would be desirable or on terms that are less favorable than might otherwise be the case; and
|
·
|
license, potentially on unfavorable terms, our rights to our proposed hormone therapy products that we otherwise would seek to develop or commercialize ourselves.
|
Exhibit
|
Date
|
Description
|
||
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
(11)
|
||
10.1
|
November 9, 2010
|
Demand Promissory Note to Philip M. Cohen for $210,000
(12)
|
||
10.2
|
April 18, 2011
|
Convertible Promissory Note to First Conquest Investment Group, L.L.C. for $105,000
(12)
|
||
10.3
|
April 18, 2011
|
Convertible Promissory Note to Energy Capital, LLC for $105,000
(12)
|
||
10.4
|
May 7, 2011
|
Sales Representative Agreement between AMHN, Inc. and Mann Equity, LLC
(12)
|
||
10.5
|
July 9, 2009
|
Lease Agreement between Liberty Property Limited Partnership and VitaMedMD, LLC
(13)
|
||
10.6
|
September 8, 2011
|
Stock Purchase Agreement between AMHN, Inc. and Pernix Therapeutics, LLC
(14)
|
||
10.7
|
September 8, 2011
|
Lock-Up Agreement between AMHN, Inc. and Pernix Therapeutics, LLC
(14)
|
||
10.8
|
n/a
|
Form of Common Stock Purchase Warrant
(13)
|
||
10.9
|
n/a
|
Form of Non-Qualified Stock Option Agreement
(13)
|
||
10.10
|
September 2011
|
Form of Convertible Promissory Note
(15)
|
||
10.11
|
September 20, 2011
|
Financing Agreement between Lang Naturals, Inc. and VitaMedMD, LLC
(16)
|
||
10.12
|
October 18, 2011
|
Debt Conversion Agreement between the Company and Energy Capital, LLC
(17)
|
||
10.13
|
October 18, 2011
|
Debt Conversion Agreement between the Company and First Conquest Investment Group, LLC
(17)
|
||
10.14
|
October 23, 2011
|
Consulting Agreement among VitaMedMD, LLC, the Company, and Lang Naturals, Inc.
(17)
|
||
10.15
|
October 23, 2011
|
Common Stock Purchase Warrant to Lang Naturals, Inc.
(17)
|
||
10.16
|
October 23, 2011
|
Lock-Up Agreement between the Company and Lang Naturals, Inc.
(17)
|
||
10.17
|
November 3, 2011
|
Software License Agreement between VitaMedMD, LLC and Pernix Therapeutics, LLC
(18)
|
||
10.18
|
November 2011
|
Form of Promissory Note
(19)
|
||
10.19
|
February 24, 2012
|
Note Purchase Agreement among the Company, Plato & Associates, Inc., and Steven G. Johnson
(20)
|
||
10.20
|
February 24, 2012
|
Form of Secured Promissory Note
(20)
|
||
10.21
|
February 24, 2012
|
Security Agreement among the Company, Plato & Associates, Inc., and Steven G. Johnson
(20)
|
||
10.22
|
February 24, 2012
|
Form of Common Stock Purchase Warrant
(20)
|
||
10.23
|
n/a
|
Audit Committee Charter
(21)
|
Exhibit | Date | Description | ||
10.24
|
n/a
|
Compensation Committee Charter
(21)
|
||
10.25
|
n/a
|
Nominating and Corporate Governance Committee Charter
(21)
|
||
10.26
|
April 17, 2012
|
Master Services Agreement between the Company and Sancilio and Company, Inc.
(22)
|
||
10.27
|
May 17, 2012
|
Consulting Agreement between the Company and Sancilio and Company, Inc.
(22)*
|
||
10.28
|
November 8, 2012
|
Form of Employment Agreement
(23)
|
||
10.29
|
January 31, 2013
|
Multiple Advance Revolving Credit Note, issued to Plato & Associates, LLC
(24)
|
||
10.30
|
January 31, 2013
|
Common Stock Purchase Warrant, issued to Plato & Associates, LLC
(24)
|
||
10.31 | May 8, 2013 | Agreement to Forfeit Non-Qualified Stock Options between the Company and Robert G. Finizio** | ||
10.32 | May 7, 2013 | Consulting Agreement between the Company and Sancilio and Company, Inc.** | ||
14.00
|
n/a
|
Code of Conduct and Ethics
(21)
|
||
14.01
|
n/a
|
Code of Ethics for CEO and Senior Financial Officers
(21)
|
||
14.02
|
n/a
|
Insider Trading Policy
(21)
|
||
16.1
|
December 14, 2011
|
Letter to the Company from Parks & Company, LLC
(25)
|
||
16.2
|
February 1, 2012
|
Letter to the SEC from Parks & Company, LLC
(26)
|
||
21.00
|
December 31, 2012
|
Subsidiaries of the Company
(21)
|
||
23.1
|
March 12, 2013
|
Consent of Rosenberg Rich Baker Berman & Company
(21)
|
||
23.2
|
March 12, 2013
|
Consent of Parks & Company, LLC
(21)
|
||
31.1
|
May 10, 2013
|
Certification of Chief Executive Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended
|
||
31.2
|
May 10, 2013
|
Certification of Chief Financial Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended
|
||
32.1
|
May 10, 2013
|
Certification pursuant to U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
||
32.2
|
May 10, 2013
|
Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
||
101.INS
|
n/a
|
XBRL Instance Document
**
†
|
||
101.SCH
|
n/a
|
XBRL Taxonomy Extension Schema Document
**
†
|
||
101.CAL
|
n/a
|
XBRL Taxonomy Extension Calculation Linkbase Document
**
†
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101.DEF
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n/a
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XBRL Taxonomy Extension Definition Linkbase Document
**
†
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101.LAB
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n/a
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XBRL Taxonomy Extension Label Linkbase Document
**
†
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101.PRE
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n/a
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XBRL Taxonomy Extension Presentation Linkbase Document
**
†
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*
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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.
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**
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Filed herewith.
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†
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Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.
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(1)
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Filed as an exhibit to Form 8-K filed with the Commission on July 10, 2009 and incorporated herein by reference.
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(2)
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Filed as an exhibit to Form 8-K filed with the Commission on June 14, 2010 and incorporated herein by reference.
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(3)
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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.
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(4)
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Filed as an exhibit to Form 8-K filed with the Commission on July 21, 2011 and incorporated herein by reference.
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(5)
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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.
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(6)
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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.
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(7)
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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.
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(8)
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Filed as an exhibit to Definitive 14C Information Statement filed with the Commission on September 12, 2011 and incorporated herein by reference.
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(9)
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Filed as an exhibit to Definitive 14C Information Statement filed with the Commission on June 29, 2010 and incorporated herein by reference.
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(10)
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Filed as an exhibit to Form 8-K filed with the Commission on October 2, 2012 and incorporated herein by reference.
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(11)
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Filed as an exhibit to Form S-3 filed with the Commission on January 25, 2013 and incorporated hereby by reference.
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(12)
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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.
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(13)
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Filed as an exhibit to Form 8-K filed with the Commission on October 11, 2011 and incorporated herein by reference.
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(14)
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Filed as an exhibit to Form 8-K filed with the Commission on September 14, 2011 and incorporated herein by reference.
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(15)
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Filed as an exhibit to Form 8-K/A filed with the Commission on November 22, 2011 and incorporated herein by reference.
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(16)
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Filed as an exhibit to Form 8-K/A filed with the Commission on February 2, 2012 and incorporated herein by reference.
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(17)
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Filed as an exhibit to Form 8-K filed with the Commission on October 24, 2011 and incorporated herein by reference.
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(18)
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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.
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(19)
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Filed as an exhibit to Form 8-K filed with the Commission on November 23, 2011 and incorporated herein by reference.
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(20)
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Filed as an exhibit to Form 8-K filed with the Commission on February 24, 2012 and incorporated herein by reference.
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(21)
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Filed as an exhibit to Form 10-K for the year ended December 31, 2012 filed with the Commission on March 12, 2013 and incorporated herein by reference.
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(22)
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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.
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(23)
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Filed as an exhibit to Form 10-Q for quarter ended September 30, 2012 filed with the Commission on November 13, 2012 and incorporated herein by reference.
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(24)
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Filed as an exhibit to Form 8-K filed with the Commission on February 6, 2013 and incorporated herein by reference.
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(25)
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Filed as an exhibit to Form 8-K filed with the Commission on January 25, 2012 and incorporated herein by reference.
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(26)
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Filed as an exhibit to Form 8-K/A filed with the Commission on February 3, 2012 and incorporated herein by reference.
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THERAPEUTICSMD, INC.
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By:
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/s/ Robert G. Finizio
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Robert G. Finizio
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Chief Executive Officer
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(Principal Executive Officer)
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By:
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/s/ Daniel A. Cartwright
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Daniel A. Cartwright
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||
Chief Financial Officer
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||
(Principal Financial and Accounting Officer)
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EXECUTIVE | ||
/s/ Robert G. Finizio | ||
Robert G. Finizio | ||
COMPANY | ||
TherapeuticsMD, Inc. | ||
By: |
/s/ Daniel A. Cartwright
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Name: |
Daniel A. Cartwright
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Title: |
Chief Financial Officer
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(i)
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information of Therapeutics that is now in the public domain or which subsequently enters the public domain without fault on the part of SCI; or
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(ii)
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information of Therapeutics that is presently known by SCI from its own sources, where said present knowledge can be demonstrated by written records; or
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(iii)
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information of Therapeutics that SCI receives in good faith from a third party, where said third party is independent of Therapeutics and is under no obligation of confidentiality with respect to such information; or
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(iv)
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information developed by or for SCI independent of the Consulting Services, or any other agreements with Therapeutics, and without the use of any Confidential Information of Therapeutics, as evidenced by SCI’s written records
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6.
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Indemnification
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Sancilio and Company, Inc. | |||
By: | /s/ Fred Sancilio | ||
Fred Sancilio | |||
President & CEO | |||
TherapeuticsMD, Inc. | |||
By: | /s/ Robert Finizio | ||
Robert Finizio | |||
Chief Executive Officer |
(1)
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I have reviewed this quarterly report on Form 10-Q of TherapeuticsMD, Inc.;
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(2)
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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(3)
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
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(4)
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The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
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(a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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(b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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(c)
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Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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(d)
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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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(5)
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The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):
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(a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
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(b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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May 10, 2013
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/s/ Robert G. Finizio
|
|
Robert G. Finizio
|
||
Chief Executive Officer
(Principal Executive Officer)
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(1)
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I have reviewed this quarterly report on Form 10-Q of TherapeuticsMD, Inc.;
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(2)
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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(3)
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
(4)
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The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
|
(b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
(c)
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Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
(d)
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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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(5)
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The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):
|
(a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
|
(b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
May 10, 2013
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/s/ Daniel A. Cartwright
|
|
Daniel A. Cartwright
|
||
Chief Financial Officer
(Principal Financial and Accounting Officer)
|
|
(1)
|
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a) or 78o(d)); and
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|
(2)
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The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
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/s/ Robert G. Finizio
|
|
Robert G. Finizio
|
|
Chief Executive Officer
|
|
May 10, 2013
|
|
(1)
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The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a) or 78o(d)); and
|
|
(2)
|
The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
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/s/ Daniel A. Cartwright
|
|
Daniel A. Cartwright
|
|
Chief Financial Officer
|
|
May 10, 2013
|