(Mark
One)
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x
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QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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o
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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Commission
File No. 333-36379
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PACIFICHEALTH
LABORATORIES, INC.
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(Exact
name of registrant as specified in its
charter)
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DELAWARE
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22-3367588
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
Number)
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100
Matawan Road, Suite 420
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Matawan,
NJ
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07747
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(Address
of principal executive offices)
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(Zip
Code)
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Large accelerated
filer o
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Accelerated filer
o
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Non-accelerated
filer o (Do
not check if a smaller reporting
company)
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Smaller reporting
company x
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CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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3
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PART
I. FINANCIAL INFORMATION
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ITEM
1.
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FINANCIAL
STATEMENTS
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Balance
Sheets as of March 31, 2009 (Unaudited) and December 31,
2008
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4
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Statements
of Operations (Unaudited) for the three months ended March
31, 2009 and 2008
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5
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Statements
of Cash Flows (Unaudited) for the three months ended March
31, 2009 and 2008
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6
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Notes
to Financial Statements
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7
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ITEM
2.
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MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION
AND RESULTS OF OPERATIONS
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11
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ITEM
3.
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QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
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13
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ITEM
4T.
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CONTROLS
AND PROCEDURES
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13
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PART
II. OTHER INFORMATION
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ITEM
1.
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LEGAL
PROCEEDINGS
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14
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ITEM
2.
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UNREGISTERED
SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
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14
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ITEM
3.
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DEFAULTS
UPON SENIOR SECURITIES
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14
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ITEM
4.
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SUBMISSION
OF MATTERS TO A VOTE OF SECURITY HOLDERS
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14
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ITEM
5.
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OTHER
INFORMATION
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14
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ITEM
6.
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EXHIBITS
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14
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SIGNATURES
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16
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●
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The
development, testing, and commercialization of new products and the
expansion of markets for our current products;
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●
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The
receipt of royalty payments from our agreements with business
partners;
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●
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Implementing
aspects of our business plan;
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●
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Financing
goals and plans;
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●
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Our
existing cash and whether and how long these funds will be sufficient to
fund our operations; and
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●
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Our
raising of additional capital through future equity
financings.
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ITEM
1.
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FINANCIAL
STATEMENTS
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March
31,
2009
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December
31,
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|||||||
(Unaudited)
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2008
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|||||||
ASSETS
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Current
assets:
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||||||||
Cash
and cash equivalents
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$ | 535,606 | $ | 888,993 | ||||
Other
short-term investments
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275,000 | 300,000 | ||||||
Accounts
receivable, net
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860,123 | 455,851 | ||||||
Inventories,
net
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1,313,850 | 1,308,316 | ||||||
Prepaid
expenses
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149,664 | 159,200 | ||||||
Total
current assets
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3,134,243 | 3,112,360 | ||||||
Property
and equipment, net
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202,171 | 236,721 | ||||||
Deposits
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22,895 | 22,895 | ||||||
Total
assets
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$ | 3,359,309 | $ | 3,371,976 | ||||
LIABILITIES
AND STOCKHOLDERS’ EQUITY
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Current
liabilities:
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||||||||
Notes
payable
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$ | 30,031 | $ | 58,810 | ||||
Accounts
payable and accrued expenses
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880,513 | 555,354 | ||||||
Deferred
revenue
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374,865 | 347,945 | ||||||
Total
current liabilities
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1,285,409 | 962,109 | ||||||
Stockholders’
equity:
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Common
stock, $.0025 par value; authorized
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50,000,000
shares; issued and outstanding:
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14,462,468
shares at March 31, 2009 and
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14,194,613
shares at December 31, 2008
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36,156 | 35,486 | ||||||
Additional
paid-in capital
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19,654,125 | 19,585,297 | ||||||
Accumulated
deficit
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(17,616,381 | ) | (17,210,916 | ) | ||||
2,073,900 | 2,409,867 | |||||||
Total
liabilities and stockholders’ equity
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$ | 3,359,309 | $ | 3,371,976 |
Three
Months
Ended
March 31,
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2009
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2008
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|||||||
Revenue:
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Net
product sales
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$ | 1,695,618 | $ | 1,719,375 | ||||
Cost
of goods sold
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953,997 | 932,795 | ||||||
Gross
profit
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741,621 | 786,580 | ||||||
Operating
expenses:
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||||||||
Sales
and marketing
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316,108 | 144,234 | ||||||
General
and administrative
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832,482 | 900,306 | ||||||
Research
and development
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— | 31,911 | ||||||
1,148,590 | 1,076,451 | |||||||
Loss
before other income (expense) and provision for income
taxes
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(406,969 | ) | (289,871 | ) | ||||
Other
income (expense):
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||||||||
Interest
income
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2,291 | 17,464 | ||||||
Interest
expense
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(787 | ) | (131 | ) | ||||
Other
income
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— | 1,133 | ||||||
1,504 | 18,466 | |||||||
Loss
before income taxes
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(405,465 | ) | (271,405 | ) | ||||
Provision
for income taxes
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— | — | ||||||
Net
loss
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$ | (405,465 | ) | $ | (271,405 | ) | ||
Net
loss per common share - basic and diluted
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$ | (0.03 | ) | $ | (0.02 | ) | ||
Weighted
average shares outstanding - basic and diluted
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14,459,492 | 13,501,426 |
2009
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2008
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|||||||
Cash
flows from operating activities:
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Net
loss
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$ | (405,465 | ) | $ | (271,405 | ) | ||
Adjustments
to reconcile net loss to net cash used in operating
activities:
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Depreciation
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46,755 | 34,096 | ||||||
Allowance
for doubtful accounts
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3,000 | 3,000 | ||||||
Equity
instrument based expense
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69,498 | 109,262 | ||||||
Changes
in assets and liabilities:
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||||||||
Accounts
receivable
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(407,272 | ) | (396,667 | ) | ||||
Inventories
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(5,534 | ) | 234,717 | |||||
Prepaid
expenses
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9,536 | 35,680 | ||||||
Accounts
payable and accrued expenses
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325,159 | 191,113 | ||||||
Deferred
revenue
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26,920 | (76,886 | ) | |||||
Net
cash used in operating activities
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(337,403 | ) | (137,090 | ) | ||||
Cash
flows from investing activities:
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Proceeds
from sales of other short-term investments
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25,000 | — | ||||||
Purchase
of property and equipment
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(12,205 | ) | (26,817 | ) | ||||
Net
cash provided by (used in) investing activities
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12,795 | (26,817 | ) | |||||
Cash
flows from financing activity:
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||||||||
Repayments
of notes payable
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(28,779 | ) | (16,205 | ) | ||||
Net
cash used in financing activity
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(28,779 | ) | (16,205 | ) | ||||
Net
decrease in cash and cash equivalents
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(353,387 | ) | (180,112 | ) | ||||
Cash
and cash equivalents, beginning balance
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888,993 | 362,713 | ||||||
Cash
and cash equivalents, ending balance
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$ | 535,606 | $ | 182,601 | ||||
Supplemental
disclosures of cash flow information:
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Cash
paid for interest
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$ | 787 | $ | 131 |
The
accompanying unaudited financial statements have been prepared in
accordance with accounting principles generally accepted in the United
States of America for interim financial information and with the
instructions for Form 10-Q. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of
management, all adjustments (consisting of normal recurring accruals)
considered necessary for a fair presentation have been included. Operating
results for the three months ended March 31, 2009 are not necessarily
indicative of the results that may be expected for the year ending
December 31, 2009. The unaudited financial statements should be read in
conjunction with the financial statements and footnotes thereto included
in the Company’s annual report on Form 10-K/A for the year ended December
31, 2008.
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The
preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America requires
management to make certain estimates and assumptions that affect the
reported amounts of assets and liabilities and disclosure of contingent
assets and liabilities at the date of the financial statements and the
reported amount of revenue and expenses during the reporting period.
Actual results may differ from these estimates. The significant estimates
and assumptions made by the Company are in the area of revenue recognition
as it relates to customer returns, inventory obsolescence, allowance for
doubtful accounts, valuation allowances for deferred tax assets,
restructuring charges, and valuation of share-based payments issued under
Statement of Financial Accounting Standards (“SFAS”) No. 123R,
“Share-Based Payment” (“SFAS 123R”).
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During
the first quarter, the Company commenced the marketing and distribution of
its new Forze product line. In connection with this activity, the Company
has increased its marketing expenditures resulting in a reduction of cash
resources. Management believes it is currently on plan in connection with
its working capital needs at this point in the product launch cycle.
Management expects its cash balances to show further reductions into the
second quarter before it begins to see significant sales from this new
product line. There can be no assurance that sales from this new product
line will materialize as planned. Should such planned sales not
materialize, the Company may have to cut discretionary marketing spending
or may be required to raise additional capital to sustain operations in
the future.
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Sales
are recognized when all of the following criteria are met: (1) persuasive
evidence that an arrangement exists; (2) delivery has occurred or services
have been rendered; (3) the seller’s price to the buyer is fixed and
determinable; and, (4) collectability is reasonably assured. Sales are
recorded net of incentives paid to customers.
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The
Company has a sales agreement with a significant customer for certain
products sold to this customer whereby all unsold product is subject to
return provisions. The Company recognizes revenue when this major customer
sells through its products to its consumers. At March 31, 2009, the
Company has deferred $374,865 in revenues related to this customer. At
December 31, 2008, the Company had deferred $347,945 in revenues related
to this customer.
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Excess
cash is invested in auction rate securities with long-term maturities, the
interest rates of which are reset periodically (typically between 7 and 35
days) through a competitive bidding process often referred to as a “Dutch
auction”.
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Accordingly,
the Company has classified such investments as other short-term
investments. During the three months ended March 31, 2009, the Company
redeemed $25,000 of these
investments.
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As
of March 31, 2009 and December 31, 2008, inventories consisted of the
following:
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March
31,
2009
(Unaudited)
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December
31,
2008
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Raw
materials
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$ | 106,986 | $ | 207,286 | ||||
Work-in-process
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60,476 | — | ||||||
Packaging
supplies
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44,722 | 42,861 | ||||||
Finished
goods
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925,297 | 902,132 | ||||||
Finished
goods on consignment
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176,369 | 156,037 | ||||||
$ | 1,313,850 | $ | 1,308,316 |
Included
above are reserves against finished goods of $42,339 at March 31, 2009 and
December 31, 2008.
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The
Company accounts for equity instrument issuances in accordance with SFAS
123R, “Share-Based Payment”. Such equity issuances encompass transactions
in which an entity exchanges its equity instruments for goods or services
including such transactions in which an entity obtains employee services
in share-based payment transactions and issuances of stock options to
employees. The Company recorded charges of $39,823 and $109,262,
respectively, in the three-month periods ended March 31, 2009 and 2008,
representing the effect on loss from continuing operations, loss before
income taxes and net loss.
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The
Company granted no stock options to employees and directors during the
three months ended March 31, 2009. The Company granted 207,500 stock
options to employees and directors during the three months ended March 31,
2008 with exercise prices ranging from $0.45 to $0.55 per share. There
were 70,417 options that vest ratably in the first quarter of 2009, 70,417
of these options vest ratably in the first quarter of 2010 and 66,666 of
these options vest ratably in the first quarter of 2011. These options
were determined to have a total fair value of $87,988. Compensation
expense recognized during the three months ended March 31, 2008 for these
options amounted to $7,225. These amounts were charged to operations and
added to paid-in capital in accordance with SFAS 123R. The total intrinsic
value of options exercised during the three months ended March 31, 2009
and 2008 was $0 and $0, respectively.
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The
Company granted no stock options to consultants during the three months
ended March 31, 2009 and 2008.
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The
Company granted 402,500 warrants to non-employee athlete endorsers during
the three months ended March 31, 2009 with an exercise price of $0.14 per
share. Of these warrants, 109,167 options vest ratably in the fourth
quarter of 2009; 4,167 options vest ratably in the first quarter of 2010;
109,167 of these options vest ratably in the fourth quarter of 2010; 4,167
options vest ratably in the first quarter of 2011; 109,166 of these
options vest ratably in the fourth quarter of 2011; 4,166 options vest
ratably in the first quarter of 2012; and 62,500 of these options vest
ratably in the fourth quarter of 2012. These options were determined to
have a total fair value of $38,713. Compensation expense recognized during
the three months ended March 31, 2009 for these options amounted to
$2,675. These amounts were charged to operations and added to paid-in
capital in accordance with SFAS 123R. The Company did not grant any
warrants during the three months ended March 31, 2008. No warrants were
exercised during the three months ended March 31, 2009 and 2008,
respectively.
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The
Company recognized $27,000 as a component of employee compensation for
common shares issuable as payment of directors’ fees. No such directors’
fees were paid or accrued in the first quarter of 2008.
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In
summary, compensation charges to operations for the periods presented are
as follows:
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Three
Months
Ended
March 31,
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2009
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2008
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Employee
compensation
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$ | 66,823 | $ | 109,262 | ||||
Consultant/endorser
compensation
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2,675 | — | ||||||
$ | 69,498 | $ | 109,262 |
A
summary of employee options activity under our plans as of March 31, 2009
and changes during the three-month period then ended is presented
below:
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Options
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Shares
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Weighted-
Average
Exercise
Price
|
Weighted-
Average
Remaining
Contractual
Term
(Years)
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Aggregate
Intrinsic
Value
|
||||||||||||
Balance,
January 1, 2009
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2,877,000
|
$
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0.67
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|||||||||||||
Granted
during the period
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—
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—
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||||||||||||||
Exercised
during the period
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—
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—
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||||||||||||||
Expired
during the period
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(20,000
|
)
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0.20
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|||||||||||||
Outstanding,
March 31, 2009
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2,857,000
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$
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0.67
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2.69
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$
|
—
|
||||||||||
Exercisable,
March 31, 2009
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1,790,251
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$
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0.78
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1.91
|
$
|
—
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Non-vested
Shares
|
Shares
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Weighted-
Average
Grant-Date
Fair
Value
|
||||||
Non-vested,
January 1, 2009
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1,320,499 | $ | 0.41 | |||||
Granted
during the period
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— | — | ||||||
Vested
during the period
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(253,750 | ) | 0.49 | |||||
Forfeited
during the period
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— | — | ||||||
Non-vested,
March 31, 2009
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1,066,749 | $ | 0.39 |
Warrants
|
Shares
|
Weighted-
Average
Exercise
Price
|
Aggregate
Intrinsic
Value
|
|||||||||
Balance,
January 1, 2009
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27,500 | $ | 0.88 | |||||||||
Granted
during the period
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402,500 | 0.14 | ||||||||||
Expired
during the period
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(27,500 | ) | 0.88 | |||||||||
Outstanding,
March 31, 2009
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402,500 | $ | 0.14 |
$
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4,025 |
The
Company has
approximately $15,081,000 in federal and $5,641,000 in state net operating
loss carryovers generated through December 31, 2008 that can be used to
offset future taxable income in calendar years 2009 through 2028. The net
operating loss carryovers begin to expire in the year 2016 through the
year 2028. As of March 31, 2009, the Company has fully reserved for these
net operating loss
carryovers.
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The
Company’s largest customer accounted for approximately 19% of net sales
for the three months ended March 31, 2009 and the Company’s two largest
customers accounted for approximately 16% and 14%, respectively, of net
sales for the three months ended March 31, 2008. At March 31, 2009,
amounts due from this customer represented approximately 34% of net
accounts receivable. At December 31, 2008, amounts due from this customer
represented approximately 36% of net accounts receivable. No other
customers exceeded 10% of the respective captions noted
above.
|
Three
suppliers accounted for approximately 60%, 12% and 10%, respectively, of
total inventory purchases for the three months ended March 31, 2009 and
two suppliers accounted for approximately 70% and 13%, respectively, of
total inventory purchases for the three months ended March 31, 2008. At
March 31, 2009, amounts due to these three vendors represented
approximately 34%, 8% and 7%, respectively, of accounts payable and
accrued expenses. At December 31, 2008, amounts due to these three vendors
represented approximately 24%, 5% and 0%, respectively, of accounts
payable and accrued expenses. No other vendors exceeded 10% of the
respective captions noted
above.
|
In
April 2008, the Company obtained a one-year revolving line of credit with
a financial institution in the amount of $675,000 with an interest rate
equal to the Wall Street Journal Prime Rate (3.25% as of March 31, 2009)
with a floor of 5.00%. This line is collateralized by the short-term
investments that are deemed auction rate securities. The maximum amount
that the Company may borrow is limited to 50% of the value of these
auction rate securities as adjusted downward for sales or redemptions. The
Company has renewed this one-year revolving line of credit in the amount
of $137,500 which now matures in May 2010. As of May 5, 2009, the Company
has not drawn down on this line of
credit.
|
The
Company entered into a Separation Agreement with the former CEO effective
August 1, 2008. The terms of the agreement consist of twelve equal monthly
payments that aggregate $295,000 and include a non-compete clause. In the
three months ended March 31, 2009, the Company recognized $73,749 of
expense under this Agreement.
|
The
Company reclassified $144,234 of sales and marketing expenses from general
and administrative expenses as well as reclassified $34,096 of
depreciation expense to general and administrative expenses in the quarter
ended March 31, 2008 to conform to current year
presentation.
|
On
April 3, 2009, the Company issued 180,000 shares of its common stock
valued at $27,000 to the five outside directors of the Company as part of
the Director’s Compensation package. This amount is recorded as a
component of equity instrument-based expense.
|
|
On
April 3, 2009, the Board of Directors of the Company approved the
Company’s 2010 Incentive Stock Option Plan consisting of 1,500,000
underlying shares. Such plan will be voted on at the next Annual Meeting
currently scheduled to take place on June 10,
2009.
|
Item
2.
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
|
(a)
|
Introduction
|
(d)
|
Off-Balance
Sheet Arrangements
|
ITEM
3.
|
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK
|
ITEM
4T.
|
CONTROLS
AND PROCEDURES
|
Exhibit
Number
|
Description of
Exhibit(1)
|
|
|
3(i)(a)
|
Certificate
of Incorporation of PacificHealth Laboratories, Inc. and all amendments
thereto (incorporated by reference to Exhibit 3.1 to PacificHealth
Laboratories, Inc.’s Registration Statement on Form SB-2 (Registration No.
333-36379) filed on September 25, 1997)
|
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3(i)(b)
|
Certificate
of Amendment of Certificate of Incorporation of PacificHealth
Laboratories, Inc. (incorporated by reference to Exhibit 3.3 to
PacificHealth Laboratories, Inc.’s Annual Report on Form 10-KSB filed on
March 31, 2003)
|
||
3(i)(c)
|
Certificate
of Designations for Series A Preferred Stock (incorporated by reference to
Exhibit 3.1 to PacificHealth Laboratories, Inc.’s Current Report on Form
8-K filed on January 28, 2005)
|
||
3(i)(d)
|
Certificate
of Designations for Series B Preferred Stock, filed with the Secretary of
State of the State of Delaware on April 28, 2005 (incorporated by
reference to Exhibit 3(i) to PacificHealth Laboratories, Inc.’s Current
Report on Form 8-K filed May 4, 2005)
|
||
3(ii)
|
Amended
and Restated Bylaws of PacificHealth Laboratories, Inc. (incorporated by
reference to Exhibit 3.2.1 to PacificHealth Laboratories, Inc.’s Amendment
No. 3 to Registration Statement on Form SB-2/A filed on December 17,
1997)
|
||
4.1
|
Specimen
Common Stock Certificate (incorporated by reference to Exhibit 4.1 to
PacificHealth Laboratories, Inc.’s Amendment No. 3 to Registration
Statement on Form SB-2/A filed on December 17, 1997)
|
||
4.2.1
|
Form
of Securities Purchase Agreement entered into among PacificHealth
Laboratories, Inc. and Certain of the Selling Stockholders dated August
26, 2003 (incorporated by reference to Exhibit 4.4 to PacificHealth
Laboratories, Inc.’s Registration Statement on Form SB-2
filed
|
Exhibit
Number
|
Description of
Exhibit(1)
|
|
|
on
September 29, 2003)
|
|||
4.2.2
|
Form
of Registration Rights Agreement entered into among PacificHealth
Laboratories, Inc. and Certain of the Selling Stockholders dated August
26, 2003 (incorporated by reference to Exhibit 4.5 to PacificHealth
Laboratories, Inc.’s Registration Statement on Form SB-2 filed on
September 29, 2003)
|
||
4.2.3
|
Form
of Warrant issued to Certain of the Selling Stockholders in connection
with Exhibit 4.2.1 on August 26, 2003 (incorporated by reference to
Exhibit 4.6 to PacificHealth Laboratories, Inc.’s Registration Statement
on Form SB-2 filed on September 29, 2003)
|
||
4.3
|
Stock
Purchase Agreement dated June 1, 2001, by and between PacificHealth
Laboratories, Inc. and Glaxo Wellcome International B.V. (incorporated by
reference to Exhibit 4.1 to PacificHealth Laboratories, Inc.’s Current
Report on Form 8-K filed on June 14, 2001)
|
||
4.4.1
|
Series
A Preferred Stock Purchase Agreement dated January 28, 2005, by and
between PacificHealth Laboratories, Inc. and Hormel HealthLabs, LLC
(incorporated by reference to Exhibit 4.3 to PacificHealth Laboratories,
Inc.’s Annual Report on Form 10-KSB filed on April 15,
2005)
|
||
4.4.2
|
Investors’
Rights Agreement dated January 28, 2005, by and between PacificHealth
Laboratories, Inc. and Hormel HealthLabs, LLC (incorporated by reference
to Exhibit 4.4 to PacificHealth Laboratories, Inc.’s Annual Report on Form
10-KSB filed on April 15, 2005)
|
||
4.4.3
|
Right
of First Refusal and Co-Sale Agreement dated January 28, 2005, by and
between PacificHealth Laboratories, Inc., Robert Portman and Hormel
HealthLabs, LLC (incorporated by reference to Exhibit 4.5 to PacificHealth
Laboratories, Inc.’s Annual Report on Form 10-KSB filed on April 15,
2005)
|
||
4.4.4
|
Certificate
of Designations for Series A Preferred Stock (incorporated by reference to
Exhibit 3.1 to PacificHealth Laboratories, Inc.’s Current Report on Form
8-K filed on January 28, 2005)
|
||
4.5
|
Certificate
of Designations for Series B Preferred Stock, filed with the Secretary of
State of the State of Delaware on April 28, 2005 (incorporated by
reference to Exhibit 3(i) to PacificHealth Laboratories, Inc.’s Current
Report on Form 8-K filed on May 4, 2005)
|
||
4.6.1
|
Securities
Purchase Agreement, dated August 24, 2005 by and between PacificHealth
Laboratories, Inc. and Hormel HealthLabs, LLC (incorporated by reference
to Exhibit 10.1 to PacificHealth Laboratories, Inc.’s Current Report on
Form 8-K filed on August 30, 2005)
|
||
4.6.2
|
Amended
and Restated Investors’ Rights Agreement dated August 24, 2005 between
PacificHealth Laboratories, Inc. and Hormel HealthLabs, LLC and any
additional investor that becomes a party thereto (incorporated by
reference to Exhibit 4.1 to PacificHealth Laboratories, Inc.’s Current
Report on Form 8-K filed on August 30, 2005)
|
||
4.6.3
|
Form
of Secured Convertible Promissory Note issued in connection with Exhibit
4.6.1 (incorporated by reference to Exhibit 10.2 to PacificHealth
Laboratories, Inc.’s Current Report on Form 8-K filed on August 30,
2005)
|
||
4.6.4
|
Security
Agreement dated August 24, 2005 by and between PacificHealth Laboratories,
Inc. and Hormel HealthLabs, LLC (incorporated by reference to Exhibit 10.3
to PacificHealth Laboratories, Inc.’s Current Report on Form 8-K filed on
August 30,
2005)
|
Exhibit
Number
|
Description of
Exhibit(1)
|
|
|
10.1
|
Employment
Extension Agreement between PacificHealth Laboratories, Inc. and Robert
Portman effective January 1, 2004, executed February 28, 2006
(incorporated by reference to Exhibit 10.6 to PacificHealth Laboratories,
Inc.’s Post-Effective Amendment to Registration Statement on Form SB-2/A
(File No. 333-109197) filed on May 2, 2006)
|
||
10.2.1
|
Asset
Purchase Agreement dated February 22, 2006, by and between PacificHealth
Laboratories, Inc. and Mott’s LLP (redacted, subject to request for
confidential treatment) (incorporated by reference to Exhibit 10.8 to
PacificHealth Laboratories, Inc.’s Annual report on Form 10-KSB filed on
March 31, 2006)
|
||
10.2.2
|
License
Agreement dated February 22, 2006, by and between PacificHealth
Laboratories, Inc. and Mott’s LLP (redacted, subject to request for
confidential treatment) (incorporated by reference to Exhibit 10.9 to
PacificHealth Laboratories, Inc.’s Annual report on Form 10-KSB filed on
March 31, 2006)
|
||
10.2.3
|
Consulting,
License and Noncompetition Agreement dated February 22, 2006, by and
between PacificHealth Laboratories, Inc., Mott’s LLP and Robert Portman
(redacted, subject to request for confidential treatment) (incorporated by
reference to Exhibit 10.10 to PacificHealth Laboratories, Inc.’s Annual
report on Form 10-KSB filed on March 31, 2006)
|
||
31.1
|
Rule
13a-14(a) Certification of Chief Executive Officer (filed
herewith)
|
||
31.2
|
Rule
13a-14(a) Certification of Chief Financial Officer (filed
herewith)
|
||
32
|
Certifications
of Chief Executive Officer and Chief Financial Officer pursuant to Section
906 of the Sarbanes-Oxley Act of 2002 (filed
herewith)
|
(1)
|
In
the case of incorporation by reference to documents filed by the
Registrant under the Exchange Act, the Registrant’s file number under the
Exchange Act is
000-23495.
|
PACIFICHEALTH
LABORATORIES, INC.
|
||
By: /S/ STEPHEN P. KUCHEN | ||
STEPHEN
P. KUCHEN
|
||
Chief
Financial Officer (Principal Financial Officer and Principal Accounting
Officer)
|
||
Date:
May 6,
2009
|
Exhibit
Number
|
Description of
Exhibit(1)
|
|
|
3(i)(a)
|
Certificate
of Incorporation of PacificHealth Laboratories, Inc. and all amendments
thereto (incorporated by reference to Exhibit 3.1 to PacificHealth
Laboratories, Inc.’s Registration Statement on Form SB-2 (Registration No.
333-36379) filed on September 25, 1997)
|
||
3(i)(b)
|
Certificate
of Amendment of Certificate of Incorporation of PacificHealth
Laboratories, Inc. (incorporated by reference to Exhibit 3.3 to
PacificHealth Laboratories, Inc.’s Annual Report on Form 10-KSB filed on
March 31, 2003)
|
||
3(i)(c)
|
Certificate
of Designations for Series A Preferred Stock (incorporated by reference to
Exhibit 3.1 to PacificHealth Laboratories, Inc.’s Current Report on Form
8-K filed on January 28, 2005)
|
||
3(i)(d)
|
Certificate
of Designations for Series B Preferred Stock, filed with the Secretary of
State of the State of Delaware on April 28, 2005 (incorporated by
reference to Exhibit 3(i) to PacificHealth Laboratories, Inc.’s Current
Report on Form 8-K filed May 4, 2005)
|
||
3(ii)
|
Amended
and Restated Bylaws of PacificHealth Laboratories, Inc. (incorporated by
reference to Exhibit 3.2.1 to PacificHealth Laboratories, Inc.’s Amendment
No. 3 to Registration Statement on Form SB-2/A filed on December 17,
1997)
|
||
4.1
|
Specimen
Common Stock Certificate (incorporated by reference to Exhibit 4.1 to
PacificHealth Laboratories, Inc.’s Amendment No. 3 to Registration
Statement on Form SB-2/A filed on December 17, 1997)
|
||
4.2.1
|
Form
of Securities Purchase Agreement entered into among PacificHealth
Laboratories, Inc. and Certain of the Selling Stockholders dated August
26, 2003 (incorporated by reference to Exhibit 4.4 to PacificHealth
Laboratories, Inc.’s Registration Statement on Form SB-2 filed on
September 29, 2003)
|
||
4.2.2
|
Form
of Registration Rights Agreement entered into among PacificHealth
Laboratories, Inc. and Certain of the Selling Stockholders dated August
26, 2003 (incorporated by reference to Exhibit 4.5 to PacificHealth
Laboratories, Inc.’s Registration Statement on Form SB-2 filed on
September 29, 2003)
|
||
4.2.3
|
Form
of Warrant issued to Certain of the Selling Stockholders in connection
with Exhibit 4.2.1 on August 26, 2003 (incorporated by reference to
Exhibit 4.6 to PacificHealth Laboratories, Inc.’s Registration Statement
on Form SB-2 filed on September 29, 2003)
|
||
4.3
|
Stock
Purchase Agreement dated June 1, 2001, by and between PacificHealth
Laboratories, Inc. and Glaxo Wellcome International B.V. (incorporated by
reference to Exhibit 4.1 to PacificHealth Laboratories, Inc.’s Current
Report on Form 8-K filed on June 14, 2001)
|
||
4.4.1
|
Series
A Preferred Stock Purchase Agreement dated January 28, 2005, by and
between PacificHealth Laboratories, Inc. and Hormel HealthLabs, LLC
(incorporated by reference to Exhibit 4.3 to PacificHealth Laboratories,
Inc.’s Annual Report on Form 10-KSB filed on April 15,
2005)
|
||
4.4.2
|
Investors’
Rights Agreement dated January 28, 2005, by and between PacificHealth
Laboratories, Inc. and Hormel HealthLabs, LLC (incorporated by reference
to Exhibit 4.4 to PacificHealth Laboratories, Inc.’s Annual Report on Form
10-KSB filed on April 15,
2005)
|
Exhibit
Number
|
Description of
Exhibit(1)
|
|
|
4.4.3
|
Right
of First Refusal and Co-Sale Agreement dated January 28, 2005, by and
between PacificHealth Laboratories, Inc., Robert Portman and Hormel
HealthLabs, LLC (incorporated by reference to Exhibit 4.5 to PacificHealth
Laboratories, Inc.’s Annual Report on Form 10-KSB filed on April 15,
2005)
|
||
4.4.4
|
Certificate
of Designations for Series A Preferred Stock (incorporated by reference to
Exhibit 3.1 to PacificHealth Laboratories, Inc.’s Current Report on Form
8-K filed on January 28, 2005)
|
||
4.5
|
Certificate
of Designations for Series B Preferred Stock, filed with the Secretary of
State of the State of Delaware on April 28, 2005 (incorporated by
reference to Exhibit 3(i) to PacificHealth Laboratories, Inc.’s Current
Report on Form 8-K filed on May 4, 2005)
|
||
4.6.1
|
Securities
Purchase Agreement, dated August 24, 2005 by and between PacificHealth
Laboratories, Inc. and Hormel HealthLabs, LLC (incorporated by reference
to Exhibit 10.1 to PacificHealth Laboratories, Inc.’s Current Report on
Form 8-K filed on August 30, 2005)
|
||
4.6.2
|
Amended
and Restated Investors’ Rights Agreement dated August 24, 2005 between
PacificHealth Laboratories, Inc. and Hormel HealthLabs, LLC and any
additional investor that becomes a party thereto (incorporated by
reference to Exhibit 4.1 to PacificHealth Laboratories, Inc.’s Current
Report on Form 8-K filed on August 30, 2005)
|
||
4.6.3
|
Form
of Secured Convertible Promissory Note issued in connection with Exhibit
4.6.1 (incorporated by reference to Exhibit 10.2 to PacificHealth
Laboratories, Inc.’s Current Report on Form 8-K filed on August 30,
2005)
|
||
4.6.4
|
Security
Agreement dated August 24, 2005 by and between PacificHealth Laboratories,
Inc. and Hormel HealthLabs, LLC (incorporated by reference to Exhibit 10.3
to PacificHealth Laboratories, Inc.’s Current Report on Form 8-K filed on
August 30, 2005)
|
||
10.1
|
Employment
Extension Agreement between PacificHealth Laboratories, Inc. and Robert
Portman effective January 1, 2004, executed February 28, 2006
(incorporated by reference to Exhibit 10.6 to PacificHealth Laboratories,
Inc.’s Post-Effective Amendment to Registration Statement on Form SB-2
(File No. 333-109197) filed on May 2, 2006)
|
||
10.2.1
|
Asset
Purchase Agreement dated February 22, 2006, by and between PacificHealth
Laboratories, Inc. and Mott’s LLP (redacted, subject to request for
confidential treatment) (incorporated by reference to Exhibit 10.8 to
PacificHealth Laboratories, Inc.’s Annual report on Form 10-KSB filed on
March 31, 2006)
|
||
10.2.2
|
License
Agreement dated February 22, 2006, by and between PacificHealth
Laboratories, Inc. and Mott’s LLP (redacted, subject to request for
confidential treatment) (incorporated by reference to Exhibit 10.9 to
PacificHealth Laboratories, Inc.’s Annual report on Form 10-KSB filed on
March 31, 2006)
|
||
10.2.3
|
Consulting,
License and Noncompetition Agreement dated February 22, 2006, by and
between PacificHealth Laboratories, Inc., Mott’s LLP and Robert Portman
(redacted, subject to request for confidential treatment) (incorporated by
reference to Exhibit 10.10 to PacificHealth Laboratories, Inc.’s Annual
report on Form 10-KSB filed on March 31, 2006)
|
||
31.1
|
Rule
13a-14(a) Certification of Chief Executive Officer (filed
herewith)
|
||
31.2
|
Rule
13a-14(a) Certification of Chief Financial Officer (filed
herewith)
|
Exhibit
Number
|
Description of
Exhibit(1)
|
|
|
32
|
Certifications
of Chief Executive Officer and Chief Financial Officer pursuant to Section
906 of the Sarbanes-Oxley Act of 2002 (filed
herewith)
|
(1)
|
In
the case of incorporation by reference to documents filed by the
Registrant under the Exchange Act, the Registrant’s file number under the
Exchange Act is 000-23495.
|