TherapeuticsMD, Inc. 10-Q


Exhibit 4.1


 


[FORM OF WARRANT]


 


NEITHER THE ISSUANCE AND SALE OF THE
SECURITIES REPRESENTED BY THIS WARRANT NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL SELECTED BY THE HOLDER, IN A FORM REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.


 


THIS WARRANT IS ONE OF THE WARRANTS
TO PURCHASE COMMON STOCK ISSUED PURSUANT TO THAT CERTAIN SUBSCRIPTION AGREEMENT, DATED AS OF AUGUST 5, 2020, BY AND AMONG THE COMPANY
AND THE INVESTORS REFERRED TO THEREIN. ANY HOLDER OF THIS WARRANT TAKES SUCH WARRANT SUBJECT TO THE TERMS AND CONDITIONS OF SUCH
SUBSCRIPTION AGREEMENT AND, BY ITS ACCEPTANCE HEREOF, AGREES TO ABIDE BY THE TERMS AND CONDITIONS THEREOF NOTWITHSTANDING ANYTHING
TO THE CONTRARY SET FORTH HEREIN.


 


TherapeuticsMD,
Inc.


 


Warrant
To Purchase Common Stock


 


Warrant No.: _____________





Number of Shares of Common Stock:_____________





Date of Issuance: August 5, 2020 (“Issuance Date”)


 


TherapeuticsMD, Inc.,
a Nevada corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, [LENDER DESIGNEE], the registered
holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase
from the Company, at the Exercise Price (as defined below) then in effect, at any time or times on or after the Issuance Date,
but not after 11:59 p.m., New York time, on the Expiration Date, (as defined below), ______________ (_____________)
fully paid nonassessable shares of Common Stock, subject to adjustment as provided herein (the “Warrant Shares”).
Except as otherwise defined herein, capitalized terms in this Warrant to Purchase Common Stock (including any Warrants to Purchase
Common Stock issued in exchange, transfer or replacement hereof, this “Warrant”), shall have the meanings set
forth in Section 17. This Warrant is one of the Warrants to purchase Common


 







 






     


     


    

 


Stock (the “Lender Warrants”) issued
pursuant to Section 2 of that certain Subscription Agreement, dated as of August 5, 2020 (the “Subscription Date”),
by and among the Company and the investors (the “Subscribers”) referred to therein (the “Subscription
Agreement”). Capitalized terms used herein and not otherwise defined shall have the definitions ascribed to such terms
in the Subscription Agreement.


 


1.             EXERCISE OF WARRANT.


 


(a)   
Mechanics of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations
set forth in Section 1(f)), this Warrant may be exercised by the Holder at any time or times on or after the Issuance Date, in
whole or in part, by (i) delivery of a written notice, in the form attached hereto as Exhibit A (the “Exercise
Notice”), of the Holder’s election to exercise this Warrant and (ii) (A) payment to the Company of an amount
equal to the applicable Exercise Price multiplied by the number of Warrant Shares as to which this Warrant is being exercised
(the “Aggregate Exercise Price”) in cash by wire transfer of immediately available funds to an account designated
in writing by the Company or (B) by notifying the Company in writing that this Warrant is being exercised pursuant to a Cashless
Exercise (as defined in Section 1(d)). No ink-original Exercise Notice shall be required, nor shall any medallion guarantee (or
other type of guarantee or notarization) of any Exercise Notice be required, provided that the Company shall have no liability
to the Holder for honoring a non-medallion guaranteed Exercise Notice that the Company reasonably believes to be genuine. The
registered Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and
delivery of the Exercise Notice with respect to less than all of the Warrant Shares shall have the same effect as cancellation
of the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares.
On or before the first (1st) Trading Day following the Trading Day on which the Holder has delivered an Exercise Notice
and the Aggregate Exercise Price (or notice of a Cashless Exercise) to the Company (for purposes of this Warrant, if an Exercise
Notice is delivered to the Company on a day that is not a Trading Day, such Exercise Notice shall be deemed to have been delivered
on the first Trading Day following the day of actual delivery), the Company shall transmit by electronic mail an acknowledgment
of confirmation of receipt of the Exercise Notice to the Holder. On or before the earlier of (i) the second (2nd) Trading
Day and (ii) the number of Trading Days comprising the Standard Settlement Period, in each case, following the date on which the
Holder has delivered the Exercise Notice and the Aggregate Exercise Price (or notice of a Cashless Exercise) to the Company (a
“Share Delivery Date”), the Company shall (X) provided that the Company’s transfer agent (the “Transfer
Agent”) is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer
Program and (A) the Warrant Shares are subject to an effective resale registration statement
in favor of the Holder and the Holder has delivered to the Company a representation that such Warrant Shares have been sold pursuant
to such registration statement or (B) if exercised via Cashless Exercise, at a time when Rule 144 would be available for immediate
resale of the Warrant Shares by the Holder, and the Holder has delivered to the Company a representation that such Warrant Shares
have been sold pursuant to Rule 144, credit such aggregate number of Warrant Shares to which the Holder is entitled pursuant
to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit / Withdrawal At Custodian
system, or (Y) if (A) the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or
(B) the Warrant Shares are not subject to an effective resale registration statement in favor of the Holder or the Holder has
not delivered to the Company a representation that such Warrant Shares have been sold pursuant to such registration statement
and, if exercised via Cashless Exercise, at a time when Rule 144 would not be available for immediate resale of the Warrant Shares
by the Holder or the Holder has not delivered to the Company a representation that such Warrant Shares have been sold pursuant
to such registration statement, (i) issue and dispatch by overnight courier to the address as specified in the Exercise
Notice, a certificate, registered in the Company’s share register in the name of the Holder or its designee and bearing
such restrictive legends as the Company deems necessary, for the number of Warrant Shares to which the Holder is entitled pursuant
to such exercise, or (ii) issue and dispatch by electronic mail to the address as specified in the Exercise Notice, evidence of
book entry, registered in the Company’s share register in the name of the Holder or its designee and bearing such restrictive
legends as the Company deems necessary, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise.
The Company shall be responsible for all fees and expenses of the Transfer Agent and all fees and expenses with respect to the
issuance of Warrant Shares via DTC, if any, including without limitation for same day processing. Upon delivery of the Exercise
Notice and the Aggregate Exercise Price (or notice of a Cashless Exercise), the Holder shall be deemed for all corporate purposes
to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective
of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates or
book entry evidence evidencing such Warrant Shares, as the case may be. If this Warrant is submitted in connection with any exercise
pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise is greater than
the number of Warrant Shares being acquired upon an exercise, then the Company shall as soon as practicable and in no event later
than five (5) Trading Days after any exercise and at its own expense, issue a new Warrant (in accordance with Section 7(d)) representing
the right to purchase the number of Warrant Shares issuable immediately prior to such exercise under this Warrant, less the number
of Warrant Shares with respect to which this Warrant is exercised. No fractional Warrant Shares are to be issued upon the exercise
of this Warrant, but rather the number of Warrant Shares to be issued shall be rounded to the nearest whole number. The Company
shall pay any and all taxes which may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of
this Warrant. 





 


(b)  
Exercise Price. For purposes of this Warrant, “Exercise Price” means $1.58, subject to adjustment
as provided herein.


 


(c)   
[Reserved].


 


(d)  
Cashless Exercise. Notwithstanding anything contained herein to the contrary, the Holder may, in its sole discretion,
exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company
upon such exercise in payment of the Aggregate Exercise Price, elect instead to receive upon such exercise the “Net Number”
of shares of Common Stock determined according to the following formula (a “Cashless Exercise”):


 






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Net Number
= (A x B) - (A x C)





B


 


For purposes
of the foregoing formula:


 


A=
 the total number of shares with respect to which this Warrant is then being exercised.


 


B=
 as applicable: (i) the Weighted Average Price of the Common Stock on the Trading Day immediately preceding the date of the applicable
Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not
a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular
trading hours” (as defined in Rule 600(b)(68) of Regulation NMS promulgated under the federal securities laws) on such Trading
Day, (ii) at the option of the Holder indicated in the Exercise Notice, either (x) the Weighted Average Price of the Common Stock
on the Trading Day immediately preceding the date of the applicable Exercise Notice, or (y) the Weighted Average Price of the Common
Stock on the Trading Day of the applicable Exercise Notice if such Exercise Notice is executed and delivered during “regular
trading hours” on a Trading Day pursuant to Section 1(a) hereof, or (iii) the Weighted Average Price of the Common Stock on
the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both
executed and delivered pursuant to Section 1(a) hereof after the close of “regular trading hours” on such Trading Day.


 


C=
 the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.


 


For purposes of Rule
144(d) promulgated under the 1933 Act, as in effect on the date hereof, the Company hereby acknowledges and agrees that the Warrant
Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Holder, and the holding period for the Warrant
Shares shall be deemed to have commenced, on the date this Warrant was last acquired by such Holder prior to such Cashless Exercise.
The Company agrees not to take any position contrary to this Section 1(d).


 


(e)   
 Disputes. In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation
of the Warrant Shares, the Company shall promptly issue to the Holder the number of Warrant Shares that are not disputed and resolve
such dispute in accordance with Section 12.


 






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(f)    
 Beneficial Ownership Limitations on Exercises. Notwithstanding anything to the contrary contained herein, the
Company shall not effect the exercise of any portion of this Warrant, and the Holder shall not have the right to exercise any portion
of this Warrant, and any such exercise shall be null and void and treated as if never made, to the extent that after giving effect
to such exercise, the Holder together with the other Attribution Parties collectively would beneficially own in excess of 4.99%
(the “Maximum Percentage”) of the number of shares of Common Stock outstanding immediately after giving effect
to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by
the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other
Attribution Parties plus the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which the
determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable upon
(A) exercise of the remaining, unexercised portion of this Warrant beneficially owned by the Holder or any of the other Attribution
Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including,
without limitation, any convertible notes or convertible preferred stock or warrants, including the other Lender Warrants) beneficially
owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation
contained in this Section 1(f). For purposes of this Section 1(f), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”). For purposes of determining
the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of this Warrant without exceeding the
Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most
recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Securities
and Exchange Commission (the “SEC”), as the case may be, (y) a more recent public announcement by the Company
or (z) any other written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding
(the “Reported Outstanding Share Number”). If the Company receives an Exercise Notice from the Holder at a time
when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall
(i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise
Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(f), to exceed the Maximum
Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to such Exercise
Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably
practicable, the Company shall return to the Holder any Exercise Price paid by the Holder for the Reduction Shares. For any reason
at any time, upon the written or oral request of the Holder, the Company shall within one (1) Trading Day confirm orally and in
writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. The number of outstanding shares
of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this
Warrant, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported.
In the event that the issuance of shares of Common Stock to the Holder upon exercise of this Warrant results in the Holder and
the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number
of outstanding shares of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which
the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess
Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote
or to transfer the Excess Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null
and void, the Company shall return to the Holder the Exercise Price paid by the Holder for the Excess Shares. Upon delivery of
a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage
not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective
until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease
will apply only to the Holder and the other Attribution Parties and not to any other holder of Lender Warrants that is not an Attribution
Party of the Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Warrant in excess
of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of
Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior inability to exercise this Warrant pursuant to this paragraph shall
have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability.
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms
of this Section 1(f) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective
or inconsistent with the intended beneficial ownership limitation contained in this Section 1(f) or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived
and shall apply to a successor holder of this Warrant.


 






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2.             ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. Adjustment Upon Subdivision or Combination of Shares
of Common Stock. If the Company at any time on or after the Subscription Date subdivides (by any stock split, stock dividend,
recapitalization or otherwise) its outstanding shares of Common Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision will be proportionately reduced and the number of Warrant Shares will be proportionately
increased. If the Company at any time on or after the Subscription Date combines (by combination, reverse stock split or otherwise)
its outstanding shares of Common Stock into a smaller number of shares, the Exercise Price in effect immediately prior to such
combination will be proportionately increased and the number of Warrant Shares will be proportionately decreased. Any adjustment
under this Section 2 shall become effective at the close of business on the date the subdivision or combination becomes effective.


 


3.             [Reserved].


 


4.             FUNDAMENTAL TRANSACTIONS. In the event of a Fundamental Transaction, the Company shall make appropriate provision
to ensure that (a) the purchaser (or its parent) shall assume this Warrant (with appropriate changes to the Exercise Price to take
into account the value of the securities substituted for the Common Stock so as to preserve the intrinsic spread between the fair
market value of any substituted securities and the Exercise Price), or (b) Holder will thereafter have the right to receive upon
an exercise of this Warrant, in lieu of the shares of the Common Stock (or other securities, cash, assets or other property) issuable
upon the exercise of this Warrant prior to such Fundamental Transaction, such securities, cash or other assets (including warrants
or other purchase or subscription rights) which the Holder would have been entitled to receive on a per share basis upon the happening
of such Fundamental Transaction had this Warrant been exercised immediately prior to such Fundamental Transaction (without regard
to any limitations on the exercise of this Warrant); provided, however, that following any Fundamental Transaction,
this Warrant shall only be exercisable via Cashless Exercise. The provisions of this Section 4 shall apply similarly and equally
to successive Fundamental Transactions.


 






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5.           
 NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its Articles
of Incorporation or Bylaws, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution,
issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, and will at all times in good faith carry out all of the provisions of this Warrant and take all action
as may be required to protect the rights of the Holder. Without limiting the generality of the foregoing, the Company (a) shall
not increase the par value of any shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price
then in effect, (b) shall take all such actions as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant, and (c) shall, so long as
any of the Lender Warrants are outstanding, take all action necessary to reserve and keep available out of its authorized and unissued
shares of Common Stock, solely for the purpose of effecting the exercise of the Lender Warrants, 100% of the number of shares of
Common Stock as shall from time to time be necessary to effect the exercise of the Lender Warrants then outstanding (without regard
to any limitations on exercise).


 


6.           
 WARRANT HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, the Holder, solely
in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder
of capital stock of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder,
solely in such Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right
to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock,
consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise,
prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due exercise of
this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase
any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted
by the Company or by creditors of the Company.


 


7.           
 REISSUANCE OF WARRANTS.


 


(a)   
Transfer of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company,
whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)),
registered as the Holder may request, representing the right to purchase the number of Warrant Shares being transferred by the
Holder and, if less than the total number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in
accordance with Section 7(d)) to the Holder representing the right to purchase the number of Warrant Shares not being transferred.


 


(b)  
Lost, Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant, and, in the case of loss, theft or destruction, of any indemnification
undertaking by the Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of this
Warrant, the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 7(d)) representing the right
to purchase the Warrant Shares then underlying this Warrant.


 






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(c)   
Exchangeable for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate
the right to purchase the number of Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right
to purchase such portion of such Warrant Shares as is designated by the Holder at the time of such surrender; provided,
however, that no Lender Warrants for fractional Warrant Shares shall be given.


 


(d)  
Issuance of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant,
such new Warrant (i) shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant,
the right to purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to
Section 7(a) or Section 7(c), the Warrant Shares designated by the Holder which, when added to the number of shares of Common Stock
underlying the other new Warrants issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying
this Warrant), (iii) shall have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance
Date, and (iv) shall have the same rights and conditions as this Warrant.


 


8.           
 NOTICES. Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice
shall be given in accordance with Section 6.3 of the Subscription Agreement. The Company will give written notice to the Holder
(a) promptly following any adjustment of the Exercise Price, setting forth in reasonable detail, and certifying, the calculation
of such adjustment and (b) at least ten (10) days prior to the date on which the Company closes its books or takes a record (i)
with respect to any dividend or distribution upon the shares of Common Stock, (ii) with respect to any grants, issuances or sales
of any options, convertible securities or rights to purchase stock, warrants, securities or other property, in each case pro rata
to all record holders of Common Stock, or (iii) for determining rights to vote with respect to any Fundamental Transaction, dissolution
or liquidation; provided in each case that such information shall be made known to the public prior to or in conjunction
with such notice being provided to the Holder.


 


9.             AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant may be amended or waived
and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if
the Company has obtained the written consent of the Required Holders. Any amendment or waiver by the Company and the Required Holders
shall be binding on the Holder of this Warrant and all holders of the Lender Warrants.


 






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10.         
 GOVERNING LAW; JURISDICTION; JURY TRIAL. This Warrant shall be governed by and construed and enforced in accordance
with, and all questions concerning the construction, validity, interpretation and performance of this Warrant shall be governed
by, the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained
herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in
any other jurisdiction to collect on the Company’s obligations to the Holder, to realize on any collateral or any other security
for such obligations, or to enforce a judgment or other court ruling in favor of the Holder. THE COMPANY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


11. 
         CONSTRUCTION; HEADINGS. This Warrant shall be deemed to be jointly drafted by the Company and all of the Subscribers
and shall not be construed against any Person as the drafter hereof. The headings of this Warrant are for convenience of reference
and shall not form part of, or affect the interpretation of, this Warrant.


 


12.        
 DISPUTE RESOLUTION. In the case of a dispute as to the determination of the Exercise Price or the arithmetic
calculation of the Warrant Shares, the Company shall submit the disputed determinations or arithmetic calculations via electronic
mail within three (3) Business Days of receipt of the Exercise Notice giving rise to such dispute, as the case may be, to the Holder.
If the Holder and the Company are unable to agree upon such determination or calculation of the Exercise Price or the Warrant Shares
within three (3) Business Days of such disputed determination or arithmetic calculation being submitted to the Holder, then the
Company shall, within three (3) Business Days submit via electronic mail (a) the disputed determination of the Exercise Price,
together with the Company’s and Holder’s respective calculations, to an independent, reputable investment bank or financial services
firm selected by the Holder and approved by the Company, such approval not to be unreasonably withheld, conditioned, or delayed,
or (b) the disputed arithmetic calculation of the Warrant Shares, together with the Company’s and Holder’s respective calculations,
to an independent, outside accountant, selected by the Holder and approved by the Company, such approval not to be unreasonably
withheld, conditioned, or delayed. The Company shall cause the investment bank, financial services firm or accountant, as the case
may be, to perform the determinations or calculations and notify the Company and the Holder of the results no later than five (5)
Business Days from the time it receives the disputed determinations or calculations. Such investment bank’s, financial services
firm’s or accountant’s determination or calculation, as the case may be, shall be binding upon all parties absent demonstrable
error. The costs of such investment bank, financial services firm or accountant shall be allocated by such firm between the Company
and the Holder proportionally based on such firm’s determination or calculation and the Company’s and Holder’s respective calculations
submitted to such firm.


 






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13.         
 REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative
and in addition to all other remedies available under this Warrant and the other Transaction Documents, at law or in equity (including
a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the right of the Holder to pursue
actual damages for any failure by the Company to comply with the terms of this Warrant. The Company acknowledges that a breach
by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may
be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the holder of this Warrant
shall be entitled, in addition to all other available remedies, to seek an injunction restraining any breach, without the necessity
of showing economic loss and without any bond or other security being required.


 


14. 
         TRANSFER. This Warrant and the Warrant Shares may be offered for sale, sold, transferred, pledged or assigned
without the consent of the Company, except as may otherwise be required by Section 6.5 of the Subscription Agreement.


 


15. 
         SEVERABILITY. If any provision of this Warrant is prohibited by law or otherwise determined to be invalid
or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable
shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability
of such provision shall not affect the validity of the remaining provisions of this Warrant so long as this Warrant as so modified
continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations
or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the
parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).


 


16.         
 DISCLOSURE. Upon delivery by the Company to the Holder of any notice required to be given in accordance with
the terms of this Warrant, unless the Company has in good faith determined that the matters relating to such notice do not constitute
material, nonpublic information relating to the Company or its Subsidiaries, the Company shall contemporaneously with any such
delivery publicly disclose such material, nonpublic information on a Current Report on Form 8-K or otherwise. In the event that
the Company believes that any notice required to be delivered by the Company in accordance with the terms of this Warrant contains
material, nonpublic information relating to the Company or its Subsidiaries, the Company so shall indicate to the Holder contemporaneously
with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed to presume that all matters
relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries.


 






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17.         
 CERTAIN DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:


 


(a)   
“1933 Act” means the Securities Act of 1933, as amended.


 


(b)  
“Affiliate” shall have the meaning ascribed to such term in Rule 405 of the 1933 Act.


 


(c)   
“Attribution Parties” means, collectively, the following Persons and entities: (i) any investment vehicle,
including, any funds, feeder funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly
managed or advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates
of the Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the
Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Common Stock would or could be aggregated
with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of
the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.


 


(d)  
“Bloomberg” means Bloomberg Financial Markets.


 


(e)   
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The
City of New York, New York are authorized or required by law to remain closed; provided, however, for clarification,
commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations
at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers)
of commercial banks in The City of New York, New York generally are open for use by customers on such day.


 


(f)    
“Common Stock” means (i) the Company’s shares of common stock, par value $0.001 per share, and (ii) any
capital stock into which such Common Stock shall have been changed or any capital stock resulting from a reclassification, reorganization
or recapitalization of such Common Stock.


 


(g)   
“Designee” means Sixth Street Specialty Lending, Inc.


 


(h)   
“Eligible Market” means the Principal Market, the NYSE American, The Nasdaq Global Select Market, The Nasdaq
Global Market, The Nasdaq Capital Market or The New York Stock Exchange, Inc.


 


(i)     
“Expiration Date” means the date that is one hundred twenty (120) months after the Issuance Date or, if
such date falls on a day other than a Business Day or on which trading does not take place on the Principal Market (a “Holiday”),
the next day that is not a Holiday.


 






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(j)    
“Fundamental Transaction” means (A) that the Company shall, directly or indirectly, including through Subsidiaries,
Affiliates or otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company
is the surviving corporation) another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially
all of the properties or assets of the Company, or (iii) make, or allow one or more Subject Entities to make, or allow the Company
to be subject to or have its Common Stock be subject to or party to one or more Subject Entities making, a purchase, tender or
exchange offer that is accepted by the holders of at least either (x) 50% of the outstanding shares of Common Stock, (y) 50% of
the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all Subject Entities making or party
to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were not outstanding; or
(z) such number of shares of Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity
making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3
under the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (iv) consummate a stock purchase agreement or
other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement)
with one or more Subject Entities whereby such Subject Entities, individually or in the aggregate, acquire, either (x) at least
50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding shares of Common Stock calculated as if any
shares of Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party
to, such stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock
such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least
50% of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that the Company
shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, allow
any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined
in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender,
tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization,
recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner
whatsoever, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock,
(y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such
Subject Entities as of the Subscription Date calculated as if any shares of Common Stock held by all such Subject Entities were
not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common
Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger
or other transaction requiring other stockholders of the Company to surrender their shares of Common Stock without approval of
the stockholders of the Company or (C) directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one
or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to
circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition
or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction.


 


(k)  
“Group” means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined
in Rule 13d-5 thereunder.


 






    - 11 - 


     


    

 


(l)    “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization, any other entity and a government or any department or agency thereof.


 


(m) 
“Principal Market” means The Nasdaq Stock Market LLC.


 


(n)   “Required Holders” means the holders of the Lender Warrants representing at least a majority of the shares
of Common Stock underlying the Lender Warrants then outstanding and shall include the Designee as long as the Designee or any of
its Affiliates holds any Lender Warrants.


 


(o)  
“Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days,
on the principal securities exchange or securities market on which the Common Stock is then traded as in effect on the date of
delivery of the applicable Exercise Notice.


 


(p)  
“Subject Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons
or Group.


 


(q)  
“Subsidiary” has the meaning as set forth in the Subscription Agreement.


 


(r)    “Trading Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal
Market is not the principal trading market for the Common Stock on such day, then on the principal securities exchange or securities
market on which the Common Stock is then traded.


 


(s)   “Weighted Average Price” means, for any security as of any date, the dollar volume-weighted average price
for such security on the Principal Market during the period beginning at 9:30:01 a.m., New York time (or such other time as the
Principal Market publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York time (or such other
time as the Principal Market publicly announces is the official close of trading), as reported by Bloomberg through its “Volume
at Price” function or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter
market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time (or such other
time as such market publicly announces is the official open of trading), and ending at 4:00:00 p.m., New York time (or such other
time as such market publicly announces is the official close of trading), as reported by Bloomberg, or, if no dollar volume-weighted
average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest
closing ask price of any of the market makers for such security as reported in the OTC Link or “pink sheets” by OTC Markets
Group Inc. (formerly Pink OTC Markets Inc.). If the Weighted Average Price cannot be calculated for a security on a particular
date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the fair market value as
mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value
of such security, then such dispute shall be resolved pursuant to Section 12 with the term “Weighted Average Price” being
substituted for the term “Exercise Price.” All such determinations shall be appropriately adjusted for any stock dividend,
stock split, stock combination, reclassification or other similar transaction during the applicable calculation period.


 


[Signature Page Follows]


 




    - 12 - 


     


    


 


IN WITNESS WHEREOF,
the Company has caused this Warrant to Purchase Common Stock to be duly executed as of the Issuance Date set out above in accordance
with the terms of the Warrant.


 





	 	THERAPEUTICSMD, INC.	 
	 	 	 	 
	 	By: 	               	 
	 	Name:	 
	 	Title:	 



 




    - 13 - 


     


    


 


 EXHIBIT A


 


EXERCISE NOTICE


 


TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THIS





WARRANT TO PURCHASE COMMON STOCK


 


TherapeuticsMD,
Inc.


 


The undersigned holder
hereby exercises the right to purchase _________________ of the shares of Common Stock (“Warrant Shares”) of TherapeuticsMD,
Inc., a Nevada corporation (the “Company”), evidenced by the attached Warrant to Purchase Common Stock (the “Warrant”).
Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.


 


1. Form of Exercise
Price. The Holder intends that payment of the Exercise Price shall be made as:


 


		____________	a “Cash Exercise” with respect to _________________
Warrant Shares; and/or



 


		____________	a “Cashless Exercise”
with respect to _______________ Warrant Shares, resulting in a delivery obligation
of the Company to the Holder of __________ shares of Common Stock representing the applicable Net Number.



 


2. Payment of Exercise
Price. In the event that the holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be issued
pursuant hereto, the holder shall pay the Aggregate Exercise Price in the sum of $___________________ to the Company in accordance
with the terms of the Warrant.


 


3. Delivery of Warrant
Shares. The Company shall deliver to the holder __________ Warrant Shares in accordance with the terms of the Warrant as follows,
subject to Section 1(a) of the Warrant.


 


		____________	Warrant Shares have been sold pursuant to an effective
resale registration statement and should be credited to the Holder’s or its designee’s balance account with DTC through its Deposit
/ Withdrawal At Custodian system pursuant to the information that accompanies this notice; and/or






		____________	Warrant Shares acquired via Cashless Exercise have been
sold pursuant to Rule 144 and the Holder has delivered to the Company representations from the Holder and the Holder’s broker
indicating such and such Warrant Shares should be credited to the Holder’s or its designee’s balance account with DTC through
its Deposit / Withdrawal At Custodian system pursuant to the information that accompanies this notice; and/or






		____________	Warrant Shares represented by a certificate or evidence
of book entry should be sent to the Holder or its designee at the address below.



 


Date: _______________ __, ______


 






     


     


    







	 	 	 
	Name of Registered Holder	 
	 	 
	By: 	   	 
	 	Name:	 
	 	Title:	 



 


Address for certificate or evidence of
book entry delivery (if applicable):


 








	 	 
	 	 
	 	 



 


DTC Information (if applicable):


 





	 	 
	 	 
	 	 


 




     


     


    


 


ACKNOWLEDGMENT


 


The Company hereby
acknowledges this Exercise Notice and hereby directs Computershare Trust Company, N.A. to issue the above indicated number of shares
of Common Stock.


 





	 	THERAPEUTICSMD, INC.	 
	 	 	 	 
	 	By: 	               	 
	 	Name:	 
	 	Title: