Attached files
| file | filename |
|---|---|
| EX-99.1 - Nuo Therapeutics, Inc. | v207258_ex99-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): January 3,
2011
Cytomedix,
Inc.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
01-32518
|
23-3011702
|
|
(State
or Other Jurisdiction
|
(Commission
|
(I.R.S.
Employer
|
|
of
Incorporation)
|
File
Number)
|
Identification
No.)
|
209
Perry Parkway, Suite 7, Gaithersburg, MD 20877
(Address
of Principal Executive Office) (Zip Code)
240-499-2680
(Registrant’s
telephone number, including area code)
N/A
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Section
4 – Matters Related to Accountants and Financial Statements
Item
4.02 Non-reliance on Previously Issued Financial Statements or a Related Audit
Report or Completed Interim Review.
On
January 3, 2011, the Audit Committee of the Board of Directors of Cytomedix,
Inc., (the “Company”) determined that the financial statements for the fiscal
year ended December 31, 2009, and for each of the quarters in 2009 and the first
three quarters of 2010, should no longer be relied upon because of errors in
such financial statements identified below.
The
Company plans to amend and restate the financial statements for the fiscal
periods listed above. It will file the amended and restated annual financial
statements in an amended and restated 2009 Annual Report for the fiscal year
ended December 31, 2009. It will file the amended and restated
quarterly financial statements for the affected interim periods by amending and
restating the Company’s respective Quarterly Reports for the quarters ended
March 31, June 30, and September 30, 2009, and March 31, June 30 and September
30, 2010.
The
Company expects all amendments and restatements to the financial statements
affected to be non-cash in nature.
The facts
surrounding the foregoing determination are as follows:
|
(a)
|
The
Company adopted the FASB Emerging Issues Task Force’s Issue No 07-5, “Determining Whether an
Instrument (or Embedded Feature) is Indexed to an Entity’s own
Stock” (“EITF 07-5”), now codified in ASC 815-40, as of January 1,
2009. EITF 07-5 provides guidance as to assessing equity versus
liability treatment and classification for equity-linked financial
instruments, including stock purchase warrants. Upon the
adoption of EITF 07-5, the Company did not properly assess the impact of
certain non-standard anti-dilution provisions that existed in certain
then-outstanding stock purchase warrants, resulting in equity (versus
liability) treatment and
classification.
|
|
(b)
|
In
2009, the Company did not properly assess the impact of certain
non-standard anti-dilution provisions that existed in stock purchase
warrants issued in the August 2009 offering, resulting in equity (versus
liability) treatment and
classification.
|
|
(c)
|
As
a result of the improper accounting treatment of the above-mentioned
warrants, certain offering expenses were also misclassified and accounted
for incorrectly.
|
2
The
errors were discovered as the Company assessed the accounting treatment of the
warrants issued in the offering in October 2010. Below is a summary
of the errors and their respective impact on reported derivative liabilities,
stockholders’ equity, net loss to common shareholders, and net loss per common
share:
|
2009
Quarter to Date
|
||||||||||||||||
|
March
31
|
June
30
|
September
30
|
December
31
|
|||||||||||||
|
Net
Loss to Common Shareholders
|
||||||||||||||||
|
As
reported
|
$
|
(894,630
|
)
|
$
|
(890,666
|
)
|
$
|
(570,425
|
)
|
$
|
(1,097,814
|
)
|
||||
|
Error
|
$
|
(52,241
|
)
|
$
|
(276,751
|
)
|
$
|
(105,144
|
)
|
$
|
613,503
|
|||||
|
As
restated
|
$
|
(946,871
|
)
|
$
|
(1,167,417
|
)
|
$
|
(675,569
|
)
|
$
|
(484,311
|
)
|
||||
|
|
||||||||||||||||
|
Net
Loss per Common Share
|
||||||||||||||||
|
As
reported
|
$
|
(0.03
|
)
|
$
|
(0.03
|
)
|
$
|
(0.02
|
)
|
$
|
(0.03
|
)
|
||||
|
Error
|
$
|
-
|
$
|
(0.01
|
) |
$
|
-
|
$
|
0.02
|
|||||||
|
As
restated
|
$
|
(0.03
|
)
|
$
|
(0.03
|
)
|
$
|
(0.02
|
)
|
$
|
(0.01
|
)
|
||||
|
2009
Year to Date
|
||||||||||||||||
|
March
31
|
June
30
|
September
30
|
December
31
|
|||||||||||||
|
Net
Loss to Common Shareholders
|
||||||||||||||||
|
As
reported
|
$
|
(894,630
|
)
|
$
|
(1,785,296
|
)
|
$
|
(2,355,721
|
)
|
$
|
(3,453,535
|
)
|
||||
|
Error
|
$
|
(52,241
|
)
|
$
|
(328,992
|
)
|
$
|
(434,136
|
)
|
$
|
179,367
|
|||||
|
As
restated
|
$
|
(946,871
|
)
|
$
|
(2,114,288
|
)
|
$
|
(2,789,857
|
)
|
$
|
(3,274,168
|
)
|
||||
|
|
||||||||||||||||
|
Net
Loss per Common Share
|
||||||||||||||||
|
As
reported
|
$
|
(0.03
|
)
|
$
|
(0.05
|
)
|
$
|
(0.07
|
)
|
$
|
(0.10
|
)
|
||||
|
Error
|
$
|
-
|
$
|
(0.01
|
)
|
$
|
(0.01
|
)
|
$
|
0.01
|
||||||
|
As
restated
|
$
|
(0.03
|
)
|
$
|
(0.06
|
)
|
$
|
(0.08
|
)
|
$
|
(0.09
|
)
|
||||
|
|
||||||||||||||||
|
As
of
|
||||||||||||||||
|
March
31, 2009
|
June
30, 2009
|
September
30, 2009
|
December
31, 2009
|
|||||||||||||
| Derivative Liabilities | ||||||||||||||||
|
As
reported
|
$ | - | $ | - | $ | - | $ | - | ||||||||
|
Error
|
$ | 178,393 | $ | 453,176 | $ | 1,242,058 | $ | 623,853 | ||||||||
|
As
restated
|
$ | 178,393 | $ | 453,176 | $ | 1,242,058 | $ | 623,853 | ||||||||
|
|
As
of
|
|||||||||||||||
|
|
March
31, 2009
|
June
30, 2009
|
September
30, 2009
|
December
31, 2009
|
||||||||||||
|
Stockholders'
Equity
|
||||||||||||||||
|
As
reported
|
$
|
2,336,706
|
$
|
1,571,804
|
$
|
2,556,900
|
$
|
1,546,906
|
||||||||
|
Error
|
$
|
(170,517
|
)
|
$
|
(447,269
|
)
|
$
|
(1,184,358
|
)
|
$
|
(570,855
|
)
|
||||
|
As
restated
|
$
|
2,166,189
|
$
|
1,124,535
|
$
|
1,372,542
|
$
|
976,051
|
||||||||
|
|
||||||||||||||||
|
|
||||||||||||||||
|
|
Quarter
to Date
|
|||||||||||||||
|
|
March
31, 2010
|
June
30, 2010
|
September
30, 2010
|
|||||||||||||
|
Net
Loss to Common Shareholders
|
||||||||||||||||
|
As
reported
|
$
|
(1,064,623
|
)
|
$
|
(3,869,775
|
)
|
$
|
(1,690,186
|
)
|
|||||||
|
Error
|
$
|
(6,759
|
)
|
$
|
(422,472
|
)
|
$
|
180,485
|
||||||||
|
As
restated
|
$
|
(1,071,382
|
)
|
$
|
(4,292,247
|
)
|
$
|
(1,509,701
|
)
|
|||||||
|
|
||||||||||||||||
|
Net
Loss per Common Share
|
||||||||||||||||
|
As
reported
|
$
|
(0.03
|
)
|
$
|
(0.10
|
)
|
$
|
(0.04
|
)
|
|||||||
|
Error
|
$
|
-
|
$
|
(0.01
|
)
|
$
|
-
|
|||||||||
|
As
restated
|
$
|
(0.03
|
)
|
$
|
(0.11
|
)
|
$
|
(0.04
|
)
|
|||||||
|
|
||||||||||||||||
|
|
Year
to Date
|
|||||||||||||||
|
|
March
31, 2010
|
June
30, 2010
|
September
30, 2010
|
|||||||||||||
|
Net
Loss to Common Shareholders
|
||||||||||||||||
|
As
reported
|
$
|
(1,064,623
|
)
|
$
|
(4,934,398
|
)
|
$
|
(6,624,584
|
)
|
|||||||
|
Error
|
$
|
(6,759
|
)
|
$
|
(429,231
|
)
|
$
|
(248,746
|
)
|
|||||||
|
As
restated
|
$
|
(1,071,382
|
)
|
$
|
(5,363,629
|
)
|
$
|
(6,873,330
|
)
|
|||||||
|
|
||||||||||||||||
|
Net
Loss per Common Share
|
||||||||||||||||
|
As
reported
|
$
|
(0.03
|
)
|
$
|
(0.13
|
)
|
$
|
(0.18
|
)
|
|||||||
|
Error
|
$
|
-
|
$
|
(0.01
|
)
|
$
|
-
|
|||||||||
|
As
restated
|
$
|
(0.03
|
)
|
$
|
(0.14
|
)
|
$
|
(0.18
|
)
|
|||||||
3
|
As
of
|
||||||||||||||||
|
March
31, 2010
|
June
30, 2010
|
September
30, 2010
|
||||||||||||||
|
Derivative
Liabilities
|
||||||||||||||||
|
As
reported
|
$ | - | $ | - | $ | - | ||||||||||
|
Error
|
$ | 625,909 | $ | 880,075 | $ | 696,856 | ||||||||||
|
As
restated
|
$ | 625,909 | $ | 880,075 | $ | 696,856 | ||||||||||
|
As
of
|
||||||||||||||||
|
March
31, 2010
|
June
30, 2010
|
September
30, 2010
|
||||||||||||||
|
Stockholders'
Equity
|
||||||||||||||||
|
As
reported
|
$ | 574,444 | $ | 2,789,522 | $ | 1,308,233 | ||||||||||
|
Error
|
$ | (577,614 | ) | $ | (834,513 | ) | $ | (654,028 | ) | |||||||
|
As
restated
|
$ | (3,170 | ) | $ | 1,955,009 | $ | 654,205 | |||||||||
In
addition to the above changes, our restated financial statements will reflect
changes to various line items on our balance sheets, statements of operations,
statements of stockholders' equity, and statements of cash flows.
The
Company has determined that the above-mentioned restatements of its
financial statements resulted from a material weakness in its internal control
over financial reporting, specifically related to its process and
procedures related to the accounting for stock purchase warrants. The
Company has been actively engaged in developing a remediation plan to address
the material weakness. Implementation of the remediation plan is in
process and consists of, among other things, redesigning the
procedures to enhance its identification, capture, review, approval and
recording of contractual terms included in equity arrangements.
The
Company’s management and the Audit Committee discussed the matters disclosed in
this Form 8-K with the Company’s independent registered public accounting
firm. The Company intends to file its amended and restated financial
statements for the affected fiscal periods with the SEC as soon as possible, but
no later than January 7, 2010.
The
Company also, under the supervision of its Audit Committee, inquired into the
circumstances relating to the above-referenced accounting treatments to assure
that there are no other financial reporting or disclosure control items that may
be of concern. The results of this inquiry indicate that, apart from the
adjustments discussed in this Current Report, no other adjustments to the
Company’s financial statements appear necessary.
Until
the Company has restated and reissued its results for the applicable periods,
investors and other users of the Company’s SEC filings are cautioned not to rely
on the Company’s financial statements for (i) the quarterly periods ended March
31, June 30, and September 30, 2009, (ii) the annual period ended December 31,
2009, and (iii) the quarterly periods ended March 31, June 30, and September 30,
2010.
Item
8.01 Other
Events.
On January 6, 2011, the
Company issued a press release announcing the foregoing events. The reader is
advised to read this press release in its entirety. A copy of the press release
is attached hereto as Exhibit 99.1 and incorporated by reference
herein.
Item
9.01 Financial
Statements and Exhibits.
|
(d)
|
Exhibits.
|
|
99.1
|
Press
Release.
|
4
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned, hereunto
duly authorized.
|
|
Cytomedix,
Inc.
|
|
|
|
||
|
By:
|
/s/ Martin P. Rosendale
|
|
|
Martin
P. Rosendale
Chief
Executive Officer
|
||
Date: January
6, 2011
5