| Item 1.01 | Entry into a Material Definitive Agreement. |
Subscription Agreement with Rubric Capital Management LP
On October 28, 2022, TherapeuticsMD, Inc., a Nevada corporation (the “Company”), entered into a Subscription Agreement (the “Subscription Agreement”) with Rubric Capital Management LP (the “Investor”), pursuant to which the Company issued and sold, in a private placement offering (the “Offering”), 7,000 shares of the Company’s Series A Preferred Stock, par value $0.001 per share (the “Series A Preferred Stock”), for an aggregate offering price of $7 million. In addition, in lieu of issuing, selling and delivering 263,666 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”) to the Investor, the Company agreed to pay the Investor, on the later of (i) the Maturity Date (as defined in the Certificate of Designation, Preferences and Rights of Series A Preferred Stock (the “Certificate of Designation”)) or (ii) the date the Company’s obligations under that certain Financing Agreement, dated as of April 24, 2019, as amended, with Sixth Street Specialty Lending, Inc., as administrative agent, the various lenders from time to time party thereto (the “Lenders”), and certain of the Company’s subsidiaries party thereto from time to time as guarantors (the “Financing Agreement”) are paid in full, a make-whole payment equal to 263,666 multiplied by the closing price of the Company’s Common Stock on the principal securities exchange or securities market on which the Common Stock is then traded, on the day prior to the date of payment of the make-whole payment. The Subscription Agreement contains customary representations, warranties and agreements by the Company and the Investor. The Offering closed on October 28, 2022.
The Company received gross proceeds of $7 million from the Offering, before expenses. The Company intends to use the net proceeds from the Offering for working capital and general corporate purposes.
The Series A Preferred Stock issued pursuant to the Subscription Agreement was sold and issued without registration under the Securities Act of 1933, as amended (the “Securities Act”), in reliance on the exemptions provided by Section 4(a)(2) of the Securities Act as transactions not involving a public offering and Rule 506 of Regulation D promulgated under the Securities Act as sales to accredited investors, and in reliance on similar exemptions under applicable state laws. The powers, designations, preferences and privileges and the qualifications, limitations or restrictions of the Series A Preferred Stock issued pursuant to the Subscription Agreement are set forth in the Certificate of Designation previously filed with the Secretary of State of the State of Nevada. Pursuant to the Subscription Agreement, the Company granted the Investor certain rights of first refusal on subsequent equity offerings while the Series A Preferred Stock is outstanding.
Financing Agreement Extension
In connection with the Offering, and in accordance with Amendment No. 16 to the Financing Agreement, on October 28, 2022 the Company issued warrants (the “Lender Warrants”), to the Lenders to purchase an aggregate of 125,000 shares of Common Stock, pursuant to a subscription agreement by and among the Company and the Lenders (the “Lender Subscription Agreement”), and the maturity date of the Financing Agreement was extended to November 30, 2022. The Lender Warrants have an exercise price of $0.01 per share of Common Stock, subject to certain adjustment as provided therein, and an expiration date of October 28, 2032. The Lender Warrants may also be exercised via cashless exercise pursuant to the terms thereof. No registration rights were issued pursuant to the Lender Warrants or the Lender Subscription Agreement.
The Lender Warrants issued pursuant to the Lender Subscription Agreement were sold and issued without registration under the Securities Act in reliance on the exemptions provided by Section 4(a)(2) of the Securities Act as transactions not involving a public offering and Rule 506 of Regulation D promulgated under the Securities Act as sales to accredited investors, and in reliance on similar exemptions under applicable state laws.
The foregoing summaries of the Subscription Agreement and the Lender Subscription Agreement and Lender Warrants do not purport to be complete and are subject to, and qualified in their entirety by, the Subscription Agreement and the Lender Subscription Agreement and Lender Warrants, each of which are attached as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K, and are incorporated herein by reference.
