TherapeuticsMD, Inc. — Capital/Financing Update 2021

Feb 16, 2021

Field: Rule-Page

Field: /Rule-Page

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): February 11, 2021

TherapeuticsMD, Inc.

(Exact Name of Registrant as Specified in Its Charter)

Nevada	001-00100	87-0233535
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

951 Yamato Road , Suite 220

Boca Raton , FL 33431

(Address of principal executive office) (zip code)

Registrant’s telephone number,including area code: (561) 961-1900

Not Applicable

(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))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol	Name of each exchange on which registered
Common Stock, par value $0.001 per share	TXMD	The Nasdaq Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Field: Page; Sequence: 1

Field: /Page

Item 1.01. Entry Into a Material Definitive Agreement.

On February 11, 2021, TherapeuticsMD, Inc., a Nevada corporation, entered into an underwriting agreement (the “Underwriting Agreement”) with Cantor Fitzgerald & Co., as underwriter (the “Underwriter”), relating to an underwritten public offering of 59,459,460 shares (the “Offering”) of the Company’s common stock, par value $0.001 per share (“Common Stock”). Pursuant to the Underwriting Agreement, the Company granted to the Underwriter an option, exercisable for a period of 30 days, to purchase up to 8,918,919 additional shares of Common Stock. The net proceeds to the Company from the offering, excluding any proceeds that may be received from the exercise of the underwriter’s option to purchase additional shares, is expected to be approximately $97.1 million, after deducting the underwriting discounts and commissions and estimated offering expenses payable by the Company. The offering is expected to close on February 16, 2021.

The offering is being made pursuant to the Company’s effective shelf registration statement on Form S-3 (Registration No. 333-226452) previously filed with the Securities and Exchange Commission (the “SEC”), and an accompanying prospectus, previously filed by the Company with the SEC, and declared effective by the SEC on May 5, 2020, as supplemented by a preliminary prospectus supplement filed with the SEC on February 10, 2021 and a final prospectus supplement filed with the SEC on February 16, 2021.

The Underwriting Agreement contains representations, warranties and covenants of the Company that are customary for transactions of this type and customary conditions to closing. Additionally, the Company has agreed to provide the Underwriter with customary indemnification rights under the Underwriting Agreement. The foregoing description of the Underwriting Agreement is qualified in its entirety by reference to the complete text of the Underwriting Agreement, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. A copy of the opinion of Greenberg Traurig, LLP regarding the validity of the shares of Common Stock issued in the Offering is filed as Exhibit 5.1 to this Current Report on Form 8-K.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit Index

| Exhibit Number | Description
of Exhibit |
| --- | --- |
| 1.1 | Underwriting Agreement, dated February 11, 2021, by and between the Company and Cantor Fitzgerald & Co., as representative of the several underwriters named therein. |
| 5.1 | Opinion of Greenberg Traurig, LLP |
| 23.1 | Consent of Greenberg Traurig, LLP (set forth in Exhibit 5.1). |
| 104 | Cover
Page Interactive Data File (the cover page tags are embedded within the Inline XBRL document). |

Field: Page; Sequence: 2

Field: /Page

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.

Date: February 16, 2021
By:	/s/ James C. D’Arecca
	James C. D’Arecca Chief Financial Officer

Field: Page; Sequence: 3; Options: Last

Field: /Page