TherapeuticsMD 8-K


 


Exhibit 10.1


 


 










THERAPEUTICSMD, INC.


NOTE PURCHASE AGREEMENT


This Note Purchase Agreement
(this “Agreement”) is made by and among TherapeuticsMD, Inc., a Nevada corporation (the “Company”),
and each of Plato & Associates, Inc., a Missouri limited liability company and Steven Johnson, a resident of Texas (collectively
known as the “Purchasers” or individually as each "Purchaser").


		1.	The Notes and Warrants. 



1.1  
Authorization of the Notes and Warrants. The Company has authorized the sale and issuance
of secured promissory notes (the “Notes”) in the aggregate amount of $4,691,847.32 and cashless common stock
purchase warrants (the “Warrants”) to purchase an aggregate of 7,000,000 shares of the Company's Common Stock
(the “Shares”). The Notes shall be substantially in the form attached hereto as Exhibit A and the
Warrants shall be substantially in the form attached hereto as Exhibit B. 


1.2  
Purchase and Sale of the Notes and Warrants. 


(a)   
Purchase and Sales of Notes and Warrants. 


                                                                                    
(i)         
Purchase of Notes. Each Purchaser agrees to purchase, and the Company agrees
to, severally and not jointly, sell and issue to each Purchaser, a Note in the principal amount set forth opposite each Purchaser's
name on the signature page attached hereto. The Notes shall be due on February 24, 2014 (the "Maturity Date"). 


                                                                                  
(ii)         
Purchase Price. The purchase price for the Notes and Warrants to be purchased
by the Purchasers hereunder shall be set forth on Schedule I attached hereto (the "Purchase Price"). 


 


                                                                                
(iii)         
Purchase of Warrants. As an inducement for the Purchasers to lend additional
funds to the Company as outlined herein on Schedule I, the Purchasers, and/or assigns, will receive Warrants to purchase an aggregate
of 7,000,000 Shares. Each Purchaser will receive one Warrant for the purchase of 3,000,000 shares with an exercise price of $2.00
per share and one Warrant for the purchase of 500,000 shares with an exercise price of $3.00 per share. The Warrants shall terminate
on the date that is five (5) years from the date of the issuance of the Notes; however, the Warrants may not be exercised until
ninety (90) days after issuance.


 


                                                                                 
(iv)         
Security. In order to induce each Purchaser to extend the credit evidenced by
the Notes, the Company has agreed to enter into a Security Agreement of even date herewith and to grant Collateral Agent, for the
benefit of itself and the Purchasers, the security interest in the Collateral described in the Security Agreement in the form attached
hereto as Exhibit C.


                                                                                  
(v)         
Closing. The purchase and sale of the Notes and Warrants shall take place at
the offices of the Company at such time and place as the Company and the Purchasers shall mutually agree upon, orally or in writing.



(b)  
Form of Payment. At Closing, each Purchaser shall pay the respective Purchase
Price to the Company by check payable to the Company or by wire transfer of immediately available funds (or any combination thereof),
and the Company shall deliver to each Purchaser a Note in a principal amount equal to the respective Purchase Price, together with
such Warrants issued per the Purchaser's instructions.






     

     

    



This Agreement,
the Notes, the Warrants, Security Agreement and the other documents delivered in connection with this Agreement, are referred to
hereinafter as the “Transaction Documents”).


2.               
Representations and Warranties of the Company. The
Company hereby represents and warrants to the Purchasers as follows:


2.1  
Organization and Standing.  The Company is a Nevada corporation duly organized
and validly existing under, and by virtue of, the laws of the State of Nevada and is in good standing under such laws. 


2.2  
Power.  The Company has all requisite legal power and authority (i) to own and
operate its properties and assets and to carry on its business, (ii) to execute and deliver the Transaction Documents, (iii) to
sell and issue the Notes and Warrants and (iv) to carry out and perform the provisions of the Transaction Documents.


2.3  
Authorization.  All necessary action on the part of the Company, its officers,
and directors necessary for the authorization, execution, and delivery of the Transaction Documents, the performance of all obligations
of the Company hereunder and thereunder, and the authorization, issuance, sale and delivery of the Notes and Warrants have been
taken or will be taken at or prior to the Closing. This Agreement constitutes, and each Note and Warrant, when executed and delivered
by the Company, will constitute valid and binding obligations of the Company, enforceable in accordance with their respective terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.


3.               
Representations and Warranties of the PURCHASERs.  Each
Purchaser hereby represents and warrants to the Company, severally and not jointly, as of the applicable closing date, as follows:


3.1  
Binding Obligation.  All action on the part of the Purchaser for the authorization,
execution, delivery and performance by the Purchaser of this Agreement has been taken, and this Agreement constitutes a valid and
binding obligation of the Purchaser, enforceable in accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally
and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.


3.2  
Accredited Investor.  The Purchaser is an accredited investor within the meaning
of Rule 501 of Regulation D prescribed by the Securities and Exchange Commission pursuant to the Securities Act. If other
than an individual, the Purchaser also represents the Purchaser has not been organized for the specific purpose of acquiring the
Note(s).


3.3  
Investment Experience.  The Purchaser acknowledges that he is able to fend for
himself, can bear the economic risk of its investment and has such knowledge and experience in financial or business matters that
he is capable of evaluating the merits and risks of the investment in the Underlying Securities.


3.4  
Investment Intent.  The Purchaser is acquiring the Note for investment for the
Purchaser’s own account and not with a view to, or for resale in connection with, any distribution thereof. The Purchaser
understands that the neither the Note or the Shares have been registered under the Securities Act by reason of a specific exemption
from the registration provisions of the Securities Act that depends upon, among other things, the bona fide nature of the investment
intent as expressed herein.






     

     

    
3.5  
Rule 144.  The Purchaser acknowledges that the Note and Warrant(s), and upon
exercise of the Warrant(s), the Shares, must be held until subsequently registered under the Securities Act or unless an exemption
from such registration is available. The Purchaser is aware of the provisions of Rule 144 promulgated under the Securities
Act which permits limited resale of securities purchased in a private placement subject to the satisfaction of certain conditions.


3.6  
Information.  The Purchaser believes he has received all the information he considers
necessary or appropriate for deciding whether to purchase the Note and Warrant(s). The Purchaser further represents that such Purchaser
has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the Note and
Warrant(s) and the business, properties, prospects and financial condition of the Company.


4.               
Miscellaneous. 


4.1  
Waivers and Amendments.  This Agreement and the obligations of the Company and
the rights of the Purchasers under this Agreement, the Notes and Warrants may be amended, waived, discharged or terminated (either
generally or in a particular instance, either retroactively or prospectively and either for a specified period of time or indefinitely)
with the written consent of the Company and the Purchasers.


4.2  
Governing Law; Venue.  This agreement shall be governed in all respects by the
laws of the State of Nevada. Each of the parties hereto hereby consents to the exclusive jurisdiction of: (i) any state courts
of the state of Florida and (ii) any federal court located in the state of Florida, as well as to the jurisdiction of all courts
to which an appeal may be taken from such courts, for the purpose of any suit, action or other proceeding arising out of, or in
connection with, this agreement or any of the transactions contemplated hereby. Each party hereby expressly waives any and all
rights to bring any suit, action or other proceeding in or before any court or tribunal other than those located in the state of
Florida. In addition, each of the parties consent to the service of process by personal service or any manner in which notices
may be delivered hereunder in accordance with this agreement. 


4.3  
Notices.  All notices and other communications required or permitted under this
Agreement shall be in writing and shall be delivered personally by hand or by courier, mailed by United States first-class mail,
postage prepaid, sent by facsimile or sent by electronic mail directed (a) if to a Purchaser, at such Purchaser’s address,
facsimile number or electronic mail address set forth on Schedule A hereto, or at such other address, facsimile number or
electronic mail address as such Purchaser may designate by ten (10) days’ advance written notice to the Company or (b) if
to the Company, to its address, facsimile number or electronic mail set forth on its signature page to this Agreement and directed
to the attention of the Chief Executive Officer, or at such other address, facsimile number or electronic mail as the Company may
designate by ten (10) days’ advance written notice to the Purchasers. All such notices and other communications shall be
effective or deemed given upon personal delivery, on the date of mailing, upon confirmation of facsimile transfer or upon delivery
to electronic mail address set forth on Schedule A hereto opposite the recipient’s name. 


4.4  
Purchasers Acting Independently. Each Purchaser enters into this Agreement independently
of the other Purchaser and has negotiated separately with the Company. The Purchasers should not be treated as a single group. 







     

     

    
4.5  
 Entire Agreement.  This Agreement (including the schedules and exhibits attached
hereto) and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof.


4.6  
Severability.  If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision(s) shall be excluded from this Agreement and the balance of this Agreement shall be interpreted
as if such provision(s) were so excluded and shall be enforceable in accordance with its terms.


4.7  
Successors and Assigns.  Except as otherwise expressly provided in this Agreement
or the Notes, the provisions of this Agreement and the Notes shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto.


4.8  
Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing
to the Investor, upon any breach or default of the Company under this Agreement shall impair any such right, power, or remedy of
the Investor nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default therefore or thereafter occurring. All remedies, either under this Agreement or by law or otherwise afforded
to the Investors, shall be cumulative and not alternative.


4.9  
Titles and Subtitles.  The titles of the paragraphs and subparagraphs of this
Agreement are for convenience of reference only and are not to be considered in construing this Agreement.


4.10         
Telecopy Execution and Delivery.  A facsimile, telecopy or other reproduction
of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one
or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of
such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the
request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile, telecopy
or other reproduction hereof.


4.11         
Counterparts.  This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall be deemed to constitute one instrument.


4.12         
Construction.  The language used in this Agreement and the Notes will be deemed
to be the language chosen by the parties to express their mutual intent and no rules of strict construction will be applied against
any party.


4.13         
Other Interpretive Provisions. References in this Agreement and each of the other Transaction
Documents to any document, instrument or agreement (a) includes all exhibits, schedules and other attachments thereto, (b) includes
all documents, instruments or agreements issued or executed in replacement thereof, and (c) means such document, instrument
or agreement, or replacement or predecessor thereto, as amended, modified and supplemented from time to time and in effect at any
given time. The words “hereof,” “herein” and “hereunder” and words of similar import when used
in this Agreement or any other Transaction Document refer to this Agreement or such other Transaction Document, as the case may
be, as a whole and not to any particular provision of this Agreement or such other Transaction Document, as the case may be. The
words “include” and “including” and words of similar import when used in this Agreement or any other Transaction
Document shall not be construed to be limiting or exclusive.



     

     

    



4.14         
Termination of Notes Upon Payment. Upon payment in full of any Note outstanding issued
pursuant to this Agreement, such Note shall automatically be terminated and the Company shall be forever released from any and
all of its obligations and liabilities under each such Note. 


 


IN WITNESS WHEREOF, the
parties have executed this Agreement on the day, month and year below.


 


	
         

        Dated:
        June 19, 2012
	
        THERAPEUTICSMD,
        INC.

         

        By: /s/ Robert
        Finizio________________________

        Robert Finizio

        Chief Executive Officer

        Address:

        TherapeuticsMD,
        Inc.

        951 Broken Sound
        Parkway NW, #320

        Boca Raton, FL 33487



 


 



     

     

    

Purchasers:


 


	
        Principal Amount
        of Note: $2,347,128.06

         

         

        Dated:
        June 19, 2012

         
	
        STEVEN
        JOHNSON

         

         

        By: /s/ Steven
        Johnson_________________

        Steven Johnson, an individual

        Address:

        804
        Tree Haven Court

        Highland
        Village, TX 75077

        E-Mail:
        worksteve@aol.com



 





 


	
        Principal Amount
        of Note: $2,344,719.26

         

        Dated:
        June 19, 2012

         
	
        PLATO
        & ASSOCIATES, LLC

         

         

        By:
        /s/ Robert J, Smuth___________________

        Robert J. Smith, Sole Member

        Address:

        13652
        Fiddlesticks Blvd.

        Suite
        202-324

        ft.
        myers, fl 33912

        E-Mail:
        rjsmith@usa.com 



 


 


 



     

     

    

SCHEDULE I


 


PURCHASE PRICE FOR NOTES AND WARRANTS


 


 


Steven Johnson


 


Purchase Price is $2,347,128.06 paid as follows:


 


(a)     
Cash in the amount of $1,000,000


		(b)	Exchange of principle of $1,347,128.06 under a note dated February 24, 2012 



 


 


Plato & Associates, LLC


 


Purchase Price is $2,344,719.26 paid as follows:


 


(a)     
Cash in the amount of $1,000,000


		(b)	Exchange of principle of $1,344,719.26 under a note dated February 24, 2012