Material Agreement

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): May 27, 2022   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) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2). 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. ☐       Item 1 .01 Entry into a Material Definitive Agreement. Effective May 27, 2022, the Board of Directors of TherapeuticsMD, Inc., a Nevada corporation (the “Company”), adopted and approved an amendment to the Bylaws of the Company, as previously amended (the “Bylaw Amendment”), to render the provisions of Nevada’s acquisition of controlling interest statutes (NRS 78.378 through 78.3793, inclusive) not applicable to the Agreement and Plan of Merger, dated as of May 27, 2022 (the “Merger Agreement”), among the Company, Athene Parent, Inc. and Athene Merger Sub, Inc. (“Merger Sub”), the acquisition of any shares of the Company’s capital stock thereunder or the consummation of any transactions contemplated thereby, including, without limitation, the cash tender offer to be commenced by Merger Sub to acquire all of the issued and outstanding shares of the common stock, par value $0.001 per share, of the Company and the merger of Merger Sub with and into the Company, with the Company as the surviving entity. The foregoing description of the Bylaw Amendment is only a summary and is qualified in its entirety by reference to the complete text of the Bylaw Amendment, which is filed as Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein by reference. Item 9.01 Financial Statements and Exhibits. (d) Exhibits Exhibit Index   Exhibit No.   Description             3.1   Second Amendment to Bylaws of the Company, adopted May 27, 2022.       104   Cover Page Interactive Data File (the cover page tags are embedded within the Inline XBRL document).       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:  June 3, 2022   THERAPEUTICSMD, INC.             /s/ Michael C. Donegan     Michael C. Donegan     Interim Chief Financial Officer, Chief Accounting Officer and Vice President Finance