TherapeuticsMD 8-K

Exhibit 10.1


 


Amended
and restated EMPLOYMENT AGREEMENT


 


THIS AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), by and between TherapeuticsMD, Inc., a Nevada corporation
(the “Company”), and Robert Finizio (“Executive”) is entered into and effective as of the
24th day of November, 2020 (the “Effective Date”).


 


WHEREAS, the
Company and Executive previously entered into an employment agreement effective as of November 9, 2012 (the “Prior Agreement”);
and


 


WHEREAS, the
Company and Executive now wish to amend and restate the Prior Agreement in its entirety to provide for amended terms and conditions
of Executive’s continued employment with the Company, pursuant to the terms and conditions set forth in this Agreement.


 


NOW, THEREFORE, in consideration
of the premises and of the mutual covenants set forth in this Agreement, the parties hereto agree as follows:


 


1.             Employment and Duties.


 


(a)               
Employment and Term. The Company hereby agrees to continue to employ Executive, and Executive hereby agrees
to continue to serve the Company, in accordance with the terms and conditions set forth herein, for a period of two (2) years,
commencing as of the Effective Date (such two (2) year period, as it may be extended pursuant to this Section 1(a),
the “Term”), unless sooner terminated pursuant to Section 3 hereof. Commencing on the second anniversary
of the Effective Date, and each anniversary thereafter, the Term shall automatically be extended for one (1) additional year,
unless at least ninety (90) days prior to such anniversary, the Company or Executive shall have given notice in accordance with
Section 8 that it or Executive does not wish to extend the Term.


 


(b)              
Duties of Executive. Executive shall serve as the Chief Executive Officer of the
Company, shall diligently perform all services as may be reasonably assigned to Executive by the Company’s Board of Directors
(the “Board”), or the Board’s respective designees, and shall exercise such power and authority as may
from time to time be delegated to Executive by the Board. During Executive’s employment, Executive shall devote Executive’s
full business time, energy, and ability exclusively to the business and interests of the Company, shall be physically present at
the Company’s offices in Boca Raton, Florida during normal business hours each week (other than permitted periods of working
remotely, paid time off (“PTO”) and on appropriate business travel for the benefit of the Company and shall
not, without the Company’s prior written consent, be engaged in any other business activity pursued for gain, profit, or
other pecuniary advantage if such activity interferes in any material respect with Executive’s duties and responsibilities
hereunder. In Executive’s capacity as the Chief Executive Officer of the Company, Executive shall do and perform all services,
acts, or things necessary or advisable to manage and conduct the business of the Company, subject to the policies and procedures
set by the Company. Except as otherwise agreed in writing by the Company, it shall not be a violation of this Agreement for Executive,
and Executive shall be permitted, to (i) serve on any civic or charitable boards; (ii) deliver lectures, fulfill speaking engagements,
or teach at educational institutions and other institutions; (iii) subject to any applicable Company policies, make personal investments
in such form or manner as will neither require Executive’s services in the operation or affairs of the companies or enterprises
in which such investments are made nor subject Executive to any conflict of interest with respect to Executive’s duties to
the Company; and (iv) serve, with the written approval of the Board, as a director of one public or one or more private companies,
in each case so long as any such activities do not significantly interfere with the performance of Executive’s responsibilities
under this Agreement, create a conflict of interest, or create an adverse interest or position detrimental to Company.


 






     


     


    

 


(c)               
Policies. Executive shall faithfully adhere to, execute, and fulfill all lawful policies established by the
Company as are communicated to Executive by the Company.


 


(d)              
Place of Performance. In connection with Executive’s employment by the Company, Executive shall be based
at the Company’s principal executive offices in Boca Raton, Florida.


 


2.             Compensation.
For all services rendered by Executive, the Company shall compensate Executive as follows:


 


(a)               
Base Salary. Effective on the Effective Date, the base salary (“Base Salary”) payable to
Executive shall be six hundred thousand dollars ($600,000) per year, payable on a regular basis in accordance with the Company’s
standard payroll procedures, but not less than monthly. The Board or a committee of the Board shall review Executive’s performance
on at least an annual basis and may make increases to such Base Salary if, in its sole discretion, any such increase is warranted.
The Board may reduce the Base Salary without Executive’s consent only if such reduction applies in the same or greater percentage
to all other executive officers of the Company. Notwithstanding the foregoing, for purposes of the severance provisions set forth
in Sections 3(b) and 4(b), any reference to “Base Salary” shall mean the amount of such base salary
prior to giving effect to any such reduction.


 


(b)              
Annual Short-Term Incentive. Executive shall be entitled to participate in the Company’s annual short-term
incentive compensation program, as such program may exist from time to time. For calendar years beginning on or after January
1, 2021, the percentage of Base Salary targeted as annual cash short-term incentive compensation for each calendar year during
the Term shall be one hundred percent (100%) of Base Salary (the “Targeted Annual Bonus Award”). Executive
acknowledges that the amount of annual short-term incentive compensation, if any, to be awarded shall be at the sole, good faith
discretion of the Board or a committee of the Board, may be less or more than the Targeted Annual Bonus Award, and will be based
on a number of factors determined by the Board or a committee of the Board for each calendar year, including the Company’s
performance and Executive’s individual performance. Any annual short-term incentive compensation earned for any calendar
year shall be paid in the immediately following calendar year, as soon as practicable. Except as set forth in Sections 3(b)(ii),
3(b)(iii), and 3(b)(iv), Executive must be employed by the Company on the date on which short-term incentive compensation
is paid in order to receive such short-term incentive compensation.





 






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(c)               
Long-Term Incentive. Executive shall be entitled to participate in the Company’s
long-term incentive compensation program, as such program may exist from time to time. Executive acknowledges that the amount
of long-term incentive compensation, if any, to be awarded shall be at the sole, good faith discretion of the Board or a committee
of the Board, and will be based on a number of factors determined by the Board or a committee of the Board for the applicable
performance period, including the Company’s performance and Executive’s individual performance. Any long-term incentive
compensation earned for the applicable performance period shall be paid within the first 2 1⁄2 months of the calendar year
immediately following the calendar year in which the applicable performance period ends. Except as otherwise set forth herein,
Executive must be employed by the Company on the date on which long-term incentive compensation is paid to receive such long-term
incentive compensation.


 


(d)              
Stock Options. The Company previously granted to Executive, pursuant to the Company’s
2009 Amended and Restated Stock Incentive Plan, as the same may be amended from time to time (the “2009 Plan”),
the Company’s 2012 Amended and Restated Stock Incentive Plan, as the same may be amended from time to time (the “2012
Plan”), and the Company’s 2019 Stock Incentive Plan, as the same may be amended from time to time (the “2019
Plan” and, together with the 2009 Plan and the 2012 Plan, collectively, the “Plans”), stock options
to purchase shares of the Company’s common stock (the “Previously Granted Stock Options”). The Previously
Granted Stock Options are subject to the terms and conditions set forth in the applicable Plans and in the stock option agreement(s)
previously executed by the Company and Executive. Additional options or other equity compensation may be granted at the Board’s
discretion. 


 


(e)               
Restricted Stock Units. The Company previously granted to Executive, pursuant to
the 2019 Plan, restricted stock units (“RSUs”) or performance share unites (“PSUs”) for shares
of the Company’s common stock (the “Previously Granted Units”). The Previously Granted Units are subject
to the terms and conditions set forth in the 2019 Plan and in the agreements previously executed by the Company and Executive.



 


As soon as practicable
following the Effective Date, the Company will grant to Executive one (1) RSU under the 2019 Plan as consideration for Executive
entering into this Agreement, which RSU will not vest in whole or in part until the second anniversary of the Effective Date, at
which time the RSU will fully and completely vest, subject to Executive’s continued employment with the Company and the terms
and conditions in the 2019 Plan and an award agreement to be entered into between the Company and Executive.


 


(f)               
Executive Perquisites, Benefits, and Other Compensation. Executive shall be entitled to receive additional benefits
and compensation from the Company in such form and to such extent as specified below:


 


(i)                
Insurance Coverage. During the Term, and as otherwise provided within the provisions of each of the respective
plans, the Company shall make available to Executive all employee benefits to which other executives of the Company are entitled
to receive, subject to the eligibility requirements and other provisions of such arrangements as applicable to executives of the
Company generally. Such benefits shall include, but shall not be limited to, comprehensive health and major medical insurance,
dental and life insurance, and short-term and long-term disability. During the Term, the Company will maintain customary director
and officer insurance.


 






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(ii)              
Reimbursement for Expenses. Reimbursement for business travel and other out-of-pocket expenses reasonably incurred
by Executive in the performance of Executive’s services under this Agreement. All reimbursable expenses shall be appropriately
documented in reasonable detail by Executive upon submission of any request for reimbursement and shall be in a format and manner
consistent with the Company’s expense reporting policy for the Chief Executive Officer.


 


(iii)            
Paid Time Off. Executive shall be eligible to accrue PTO and utilize and carryover from year to year such PTO,
consistent with the Company’s policies and procedures in effect from time to time for officers of Executive’s level.


 


(iv)            
Other Executive Perquisites. The Company shall provide Executive with other executive perquisites as may be
made available to or deemed appropriate for Executive by the Board or a committee of the Board and participation in all other
Company-wide employee benefits as are available to the Company’s executives from time to time, including any plans, programs,
or arrangements relating to retirement, deferred compensation, profit sharing, 401(k), and employee stock ownership.


 


(v)              
Working Facilities. During the Term, the Company shall furnish Executive with an office, staffing and administrative
support and such other facilities and services suitable to Executive’s position with the Company and adequate for the performance
of Executive’s duties hereunder, which will be reviewed and provided based on the Company’s needs.


 


(vi)             
Indemnification Agreement. In connection with Executive’s entrance into this Agreement, Executive and
the Company will enter into the Company’s standard form of indemnification agreement for directors and executive officers
of the Company (the “Indemnification Agreement”).


 


3.             Term of Employment.


 


(a)               
Termination Under Certain Circumstances.


 


(i)                
Death. Executive’s employment and the Term shall be automatically terminated,
without notice, effective upon the date of Executive’s death.


 


(ii)              
Disability. If, as a result of incapacity due to physical or mental illness or
injury, Executive shall have been absent from Executive’s full-time duties hereunder for six (6) consecutive months, then
Executive’s employment and the Term shall be automatically terminated, without notice, at the end of such six (6) consecutive
month period unless the Company provides Executive with written notice that Executive’s employment and the Term will nonetheless
continue.





 






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(iii)            
Termination by the Company for Cause. The Company may terminate Executive’s
employment and the Term upon ten (10) days prior written notice to Executive for “Cause,” which shall mean any
one or more of the following: (A) Executive’s material breach of this Agreement (continuing for thirty (30) days after receipt
of written notice of need to cure, if, in the Board’s determination, such breach is curable); (B) Executive’s intentional
nonperformance of lawful instructions of the Board (continuing for thirty (30) days after receipt of written notice of need to
cure, if, in the Board’s determination, such breach is curable); (C) Executive’s willful dishonesty, fraud, or material
personal and individual misconduct with respect to the business or affairs of the Company, including, but not limited to, the Company’s
sexual harassment, other unlawful harassment, workplace discrimination, or substance abuse policies, in each case that would reasonably
be expected to bring material harm to the reputation of the Company; (D) Executive’s indictment for, conviction of, or guilty
or nolo contendre plea to a felony crime involving dishonesty or moral turpitude, whether or not relating to the Company,
that would reasonably be expected to bring material harm to the reputation of the Company; or (E) a confirmed positive drug test
result for an illegal drug.


 


(iv)            
Termination by the Company Without Cause. The Company may terminate Executive’s
employment and the Term at any time without Cause.


 


(v)              
Termination by Executive Without Good Reason. Executive, at Executive’s option
and upon written notice to the Company, may terminate Executive’s employment and the Term without Good Reason (as defined
below) at any time, effective on the date of that notice.


 


(vi)            
Termination by Executive With Good Reason. At any time during the Term, Executive
may terminate Executive’s employment and the Term for Good Reason. For purposes of this Agreement, “Good Reason”
shall mean (A) the assignment to Executive of material duties inconsistent with Executive’s position as the Chief Executive
Officer (including status, office, titles and reporting requirements), or any other action by the Company that results in a material
diminution in such position, excluding for this purpose (i) any action not taken in bad faith and that is remedied by the Company
promptly after receipt of a Notice of Termination for Good Reason (as defined below) thereof given by Executive and (ii) any change
in status, office, titles and reporting requirements following a Change in Control (as defined in the 2019 Plan) of the Company
in which the Company ceases to be a standalone public reporting company, provided that the material duties of Executive following
such Change in Control are not inconsistent with those of Executive immediately prior to such Change in Control; (B) the Company
requiring Executive to be based at any office or location other than in Palm Beach County, Florida, or within thirty-five (35)
miles of such location, or such other location as mutually agreed to by the Company and Executive; or (C) any material failure
by the Company to comply with any of the provisions of this Agreement, other than a failure not occurring in bad faith and that
is remedied by the Company promptly after receipt of a Notice of Termination for Good Reason given thereof by Executive. A termination
of employment by Executive for Good Reason shall be effected by Executive’s giving the Board written notice (“Notice
of Termination for Good Reason”) of the termination, setting forth in reasonable detail the specific conduct of the Company
that constitutes Good Reason and the specific provision(s) of this Agreement on which Executive relies, within ninety (90) days
of the initial existence of one of the conditions constituting Good Reason. A termination of employment by Executive for Good Reason
shall be effective on the thirty-first (31st) day following the date when the Notice of Termination for Good Reason is given to
the Company; provided that such a termination of employment shall not become effective if the Company shall have substantially
corrected the circumstance giving rise to the Notice of Termination for Good Reason within thirty (30) days after the Company’s
receipt of such Notice of Termination for Good Reason.


 






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(b)              
Result of Termination.


 


(i)                
Except as otherwise set forth in this Agreement, in the event of the termination of Executive’s employment and the
Term pursuant to Sections 3(a)(iii) (“Termination by the Company for Cause”) or 3(a)(v) (“Termination
by Executive Without Good Reason”) above, Executive shall receive no further compensation under this Agreement other
than the payment of Base Salary as shall have accrued and remained unpaid as of the date of termination and accrued but unused
PTO consistent with the Company’s policies and procedures therefor in effect at the time of such termination for officers
of Executive’s level.


 


(ii)              
In the event of the termination of Executive’s employment and the Term pursuant to Sections 3(a)(iv) (“Termination
by the Company Without Cause”) or 3(a)(vi) (“Termination by Executive With Good Reason”)
above, (a) Executive shall, for a period of twenty-four (24) months following the effective date of such termination, continue
to receive Executive’s then current annual Base Salary, as provided in Section 2(a), (b) Executive shall receive
an amount equal to Executive’s Targeted Annual Bonus Award for the calendar year in which the termination of Executive’s
employment occurs, which amount shall be paid to Executive in a single lump sum, which is unpaid on the effective date of Executive’s
termination, and which shall be paid to Executive when paid to other executive officers of the Company in accordance with Section
2(b) hereof, (c) Executive shall receive, beginning on the first payroll date occurring on or after the thirtieth (30th)
day following the effective date of the termination of Executive’s employment under this Agreement and for a period of twenty-four
(24) months thereafter for a total of twenty-four (24) monthly payments, a monthly cash payment equal to the one (1) month cost
of COBRA continuation of the health insurance benefits for Executive and Executive’s immediate family as applicable, as the
effective date of such termination, less, the one (1) month cost for the same health insurance benefits for Executive and Executive’s
immediate family as applicable that would have been incurred by Executive immediately prior to the effective date of such termination
if Executive remained employed with the Company, (d) all unvested equity compensation of any kind (including, without limitation,
stock options, warrants, restricted stock, or restricted stock units) held by Executive in Executive’s capacity as an employee
of the Company on the effective date of the termination shall vest as of the effective date of such termination and Executive shall
have three (3) years from the date of termination to exercise any such unvested equity compensation, but in no event longer than
the term of such equity compensation, (e) Executive shall receive payment for accrued but unused PTO consistent with the Company’s
policies and procedures therefor in effect at the time of such termination for executive officers of the Company, and (f) Executive
shall receive payment for any annual short-term incentive compensation earned pursuant to Section 2(b) hereof for the calendar
year immediately preceding the calendar year in which the termination of Executive’s employment occurs which is unpaid on
the effective date of Executive’s termination, which shall be paid to Executive when paid to other executive officers of
the Company in accordance with Section 2(b) hereof.


 






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(iii)            
In the event of the termination of Executive’s employment and the Term pursuant to Sections 3(a)(i) (“Death”)
or 3(a)(ii) (“Disability”) above, (a) Executive shall receive an amount equal to Executive’s
Targeted Annual Bonus Award for the calendar year in which the termination of Executive’s employment occurs, multiplied by
a fraction, the numerator of which is the number of full months of such calendar year during which Executive was employed with
the Company, and the denominator of which is twelve (12), which amount shall be paid to Executive in a single lump sum on the first
payroll date occurring on or after the thirtieth (30th) day following the effective date of the termination of Executive’s
employment under this Agreement, (b) all unvested equity compensation of any kind (including, without limitation, stock options,
warrants, restricted stock, or restricted stock units) held by Executive in Executive’s capacity as an employee of the Company
on the effective date of the termination shall vest as of the effective date of such termination, (c) Executive shall receive payment
for accrued but unused PTO consistent with the Company’s policies and procedures therefor in effect at the time of such termination
for officers of Executive’s level, and (d) Executive shall receive payment for any annual short-term incentive compensation
earned pursuant to Section 2(b) hereof for the calendar year immediately preceding the calendar year in which the termination
of Executive’s employment occurs which is unpaid on the effective date of Executive’s termination, which shall be paid
to Executive when paid to other executive officers of the Company in accordance with Section 2(b) hereof.


 


(iv)            
In the event of the termination of Executive’s employment and the Term pursuant to Sections 3(a)(iv) (“Termination
by the Company Without Cause”) or 3(a)(vi) (“Termination by Executive With Good Reason”)
during the twelve (12) month period immediately following a Change in Control, then in lieu of any benefits or amounts otherwise
payable under Section 3(b)(ii) hereof, (a) Executive shall, for a period of twenty-four (24) months following the effective
date of such termination, continue to receive Executive’s then current annual Base Salary, as provided in Section 2(a),
(b) Executive shall receive an amount equal to one and one half times (1.5x) Executive’s Targeted Annual Bonus Award for
the calendar year in which the termination of Executive’s employment occurs, which amount shall be paid to Executive in a
single lump sum on the first payroll date occurring on or after the thirtieth (30th) day following the effective date
of the termination of Executive’s employment under this Agreement, (c) Executive shall receive, beginning on the first payroll
date occurring on or after the thirtieth (30th) day following the effective date of the termination of Executive’s
employment under this Agreement and for a period of twenty-four (24) months thereafter for a total of twenty-four (24) monthly
payments, a monthly cash payment equal to the one (1) month cost of COBRA continuation of the health insurance benefits for Executive
and Executive’s immediate family as applicable, as the effective date of such termination, less, the one (1) month cost for
the same health insurance benefits for Executive and Executive’s immediate family as applicable that would have been incurred
by Executive immediately prior to the effective date of such termination if Executive remained employed with the Company, (d) all
unvested equity compensation of any kind (including, without limitation, stock options, warrants, restricted stock, or restricted
stock units) held by Executive in Executive’s capacity as an employee of the Company on the effective date of the termination
shall vest as of the effective date of such termination and Executive shall have three (3) years from the date of termination to
exercise any such unvested equity compensation, but in no event longer than the term of such equity compensation, (e) Executive
shall receive payment for accrued but unused PTO consistent with the Company’s policies and procedures therefor in effect
at the time of such termination for officers of Executive’s level, and (f) Executive shall receive payment for any annual
short-term incentive compensation earned pursuant to Section 2(b) hereof for the calendar year immediately preceding the
calendar year in which the termination of Executive’s employment occurs which is unpaid on the effective date of Executive’s
termination, which shall be paid to Executive when paid to other executive officers of the Company in accordance with Section
2(b) hereof.


 






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(v)              
Executive shall receive no additional compensation following any termination except as provided in this Agreement. In the
event of any termination, Executive shall resign all positions with the Company and its subsidiaries.


 


(c)               
Release. Notwithstanding any other provision in this Agreement to the contrary,
as a condition precedent to receiving any post-termination payments or benefits identified in Sections 3(b)(ii), 3(b)(iii)
and 3(b)(iv) of this Agreement, Executive agrees to execute (and not revoke) a full and complete release of all claims against
the Company and its affiliates, in the form attached hereto as Exhibit A (subject to such modifications as the Company or Executive
reasonably may request) (the “Release”). If Executive fails to execute and deliver to the Company the Release
within twenty-one (21) days following the date of termination, or revokes the Release, within seven (7) days following the date
Executive executes and delivers the Release, or materially breaches any term of this Agreement or any other agreement between Executive
and the Company while receiving such post-termination payments or benefits, Executive agrees that Executive shall not be entitled
to receive any such post-termination payments. For purposes of this Agreement, the Release shall be deemed to have been executed
by Executive if it is signed by Executive’s legal representative in the case of legal incompetence or on behalf of Executive’s
estate in the case of Executive’s death. Payment of any post-termination payments or benefits identified in Sections 3(b)(ii),
3(b)(iii) and 3(b)(iv) of this Agreement shall be delayed until the first payroll date occurring on or after the
thirtieth (30th) day following the effective date of the termination of Executive’s employment under this Agreement,
and any payments that are so delayed shall be paid on the first payroll date occurring on or after the thirtieth (30th)
day following the effective date of the termination of Executive’s employment under this Agreement.


 


(d)              
Section 409A. This Agreement is intended to satisfy the requirements of Section
409A with respect to amounts subject thereto, and will be interpreted and construed consistent with such intent. Notwithstanding
the foregoing, the Company does not make any representation to Executive that the payments or benefits provided under this Agreement
are exempt from, or satisfy, the requirements of Section 409A, and the Company shall have no liability or other obligation to indemnify
or hold harmless Executive or any beneficiary for any tax, additional tax, interest, or penalties that Executive or any beneficiary
may incur in the event that any provision of this Agreement, or any amendment or modification thereof, or any other action taken
with respect thereto, is deemed to violate any of the requirements of Section 409A.


 


Any
payments made by the Company pursuant to Sections 3(b)(ii), 3(b)(iii) and 3(b)(iv) of this Agreement
(except for unpaid annual short-term incentive compensation earned in the calendar year immediately preceding the calendar year
in which the termination of Executive’s employment occurs, which shall be paid to Executive when paid to other executive
officers of the Company) shall be paid or commence on the first payroll date occurring on or after the thirtieth (30th)
day following the effective date of Executive’s “separation from service” within the meaning of Section 409A
(“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”). For purposes
of applying the provisions of Section 409A to this Agreement, each separately identified amount to which Executive is entitled
under this Agreement shall be treated as a separate payment. In addition, to the extent permissible under Section 409A with respect
to additional payments amounts only under Section 3 on or after the Effective Date (i.e., payments that Executive would not have
received had Executive terminated employment prior to the Effective Date under such triggering event), any series of installment
payments under this Agreement shall be treated as a right to a series of separate payments. 


 






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Notwithstanding
any other provision in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A, then
payments identified in Section 3(b) of this Agreement that are “deferred compensation” (as defined under Section
409A) that are scheduled to be paid within six (6) months after such “separation from service” within the meaning of
Section 409A shall not commence until the later of six (6) months following “separation from service” or eighteen (18)
months following the Effective Date (the “Delayed Payment Period”) to the extent necessary to avoid the imposition
of the additional twenty percent (20%) tax under Section 409A and consistent with applicable (including proposed) regulations and
IRS correction guidance (and in the case of installment payments, the first payment shall include all installment payments required
by this subsection that otherwise would have been made during such Delayed Payment Period). If the payments described in Section 3(b)
must be delayed for the Delayed Payment Period pursuant to the preceding sentence, Executive shall not be entitled to additional
compensation to compensate for such delay. Upon the date such payment would otherwise commence, the Company shall reimburse Executive
for such payments, to the extent that such payments otherwise would have been paid by the Company had such payments commenced upon
Executive’s “separation from service” within the meaning of Section 409A. Any remaining payments shall be provided
by the Company in accordance with the schedule and procedures specified herein. 


 


(e)               
Any reimbursements by the Company to Executive of any eligible expenses under this Agreement that are not excludable from
Executive’s income for Federal income tax purposes (the “Taxable Reimbursements”) shall be made by no
later than the last day of the taxable year of Executive following the year in which the expense was incurred. The amount of any
Taxable Reimbursements, and the value of any in-kind benefits to be provided to Executive, during any taxable year of Executive
shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year of Executive.
The right to Taxable Reimbursement, or in-kind benefits, shall not be subject to liquidation or exchange for another benefit. 


 


(f)               
Section 280G. 


 


(i)                
Certain Reductions in Agreement Payments. Anything in this Agreement to the contrary
notwithstanding, in the event a nationally recognized independent accounting firm designated by the Company and reasonably acceptable
to Executive (the “Accounting Firm”) shall determine that receipt of all payments or distributions by the Company
and its affiliates in the nature of compensation to or for Executive’s benefit, whether paid or payable pursuant to this
Agreement or otherwise (a “Payment”), would subject Executive to the excise tax under Section 4999 of the Code,
the Accounting Firm shall determine as required below in this Section 3(f) whether to reduce any of the Payments paid or
payable pursuant to this Agreement (the “Agreement Payments”) to the Reduced Amount (as defined below). The
Agreement Payments shall be reduced to the Reduced Amount only if the Accounting Firm determines that Executive would have a greater
Net After-Tax Receipt (as defined below) of aggregate Payments if Executive’s Agreement Payments were so reduced. If the
Accounting Firm determines that Executive would not have a greater Net After-Tax Receipt of aggregate Payments if Executive’s
Agreement Payments were so reduced, then Executive shall receive all Agreement Payments to which Executive is entitled. 


 






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(ii)              
Accounting Firm Determinations. If the Accounting Firm determines that aggregate Agreement Payments should be reduced
to the Reduced Amount, then the Company shall promptly give Executive notice to that effect and a copy of the detailed calculation
thereof. All determinations made by the Accounting Firm under this Section 3(f) shall be binding upon the Company and Executive
and shall be made as soon as reasonably practicable and in no event later than twenty (20) days following the effective date of
the termination of Executive’s employment with the Company. For purposes of reducing the Agreement Payments to the Reduced
Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. The reduction of the amounts payable
hereunder, if applicable, shall be made (A) only from Payments that the Accounting Firm determines reasonably may be characterized
as “parachute payments” under Section 280G of the Code; (B) only from Payments that are required to be made in cash,
(C) only with respect to any amounts that are not payable pursuant to a “nonqualified deferred compensation plan” subject
to Section 409A of the Code, until those payments have been reduced to zero, and (D) in reverse chronological order, to the extent
that any Payments subject to reduction are made over time (e.g., in installments). In no event, however, shall any Payments be
reduced if and to the extent such reduction would cause a violation of Section 409A of the Code or other applicable law. All fees
and expenses of the Accounting Firm shall be borne solely by the Company.


 


(iii)            
Overpayments; Underpayments. As a result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed
by the Company to or for the benefit of Executive pursuant to this Agreement which should not have been so paid or distributed
(an “Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to
or for the benefit of Executive pursuant to this Agreement which should have been so paid or distributed (an “Underpayment”),
in each case consistent with the calculation of the Reduced Amount hereunder. In the event that the Accounting Firm, based upon
the assertion of a deficiency by the Internal Revenue Service against either the Company or Executive which the Accounting Firm
believes has a high probability of success determines that an Overpayment has been made, Executive shall pay any such Overpayment
to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided,
however, that no amount shall be payable by Executive to the Company if and to the extent such payment would not either
reduce the amount on which Executive is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of
such taxes. In the event that the Accounting Firm, based upon controlling precedent or other substantial authority, determines
that an Underpayment has occurred, any such Underpayment shall be paid promptly (and in no event later than 60 days following the
date on which the Underpayment is determined) by the Company to or for the benefit of Executive together with interest at the applicable
federal rate provided for in Section 7872(f)(2) of the Code.


 






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(iv)         Definitions. The following terms shall have the following meanings for purposes of this Section 3:


 


(A)            
“Net After-Tax Receipt” shall mean the present value (as determined in accordance with Sections 280G(b)(2)(A)(ii)
and 280G(d)(4) of the Code) of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of
the Code and under applicable state and local laws, determined by applying the highest marginal rate under Section 1 of the Code
and under state and local laws which applied to Executive’s taxable income for the immediately preceding taxable year, or
such other rate(s) as the Accounting Firm determined to be likely to apply to Executive in the relevant taxable year(s).


 


(B)             
“Reduced Amount” shall mean the greatest amount of Agreement Payments that can be paid that would not
result in the imposition of the excise tax under Section 4999 of the Code if the Accounting Firm determines to reduce Agreement
Payments pursuant to Section 3(f)(i).


 


4.             Competition and Non-Solicitation.


 


(a)               
Interests to be Protected. The parties acknowledge that Executive will perform essential services for the Company,
its employees, and its stockholders during the term of Executive’s employment with the Company. Executive will be exposed
to, have access to, and work with, a considerable amount of confidential information. The parties also expressly recognize and
acknowledge that the personnel of the Company have been trained by, and are valuable to, the Company and that the Company will
incur substantial recruiting and training expenses if the Company must hire new personnel or retrain existing personnel to fill
vacancies. The parties expressly recognize that it could seriously impair the goodwill and diminish the value of the Company’s
business should Executive compete with the Company in any manner whatsoever. The parties acknowledge that this covenant has an
extended duration; however, they agree that this covenant is reasonable and it is necessary for the protection of the Company,
its stockholders, and employees. For these and other reasons, and the fact that there are many other employment opportunities
available to Executive if Executive’s employment is terminated, the parties are in full and complete agreement that the
following restrictive covenants are fair and reasonable and are entered into freely, voluntarily, and knowingly. Furthermore,
each party was given the opportunity to consult with independent legal counsel before entering into this Agreement.


 


(b)              
Non-Competition. During the term of Executive’s employment with the Company and for twenty-four (24) months
after the termination of Executive’s employment with the Company, which may be extended an additional twelve (12) months
in the sole and absolute discretion of the Company for a total of thirty-six (36) months after termination of Executive’s
employment with the Company, regardless of the reason therefor, Executive shall not (whether directly or indirectly, as owner,
principal, agent, stockholder, director, officer, manager, employee, partner, participant, or in any other capacity) engage or
become substantially and directly financially interested in any Competitive Business Activities conducted within the Restricted
Territory (as defined below). In the event of the termination of Executive’s employment and the Term pursuant to Sections
3(a)(iv) (“Termination by the Company Without Cause”) or 3(a)(vi) (“Termination by
Executive With Good Reason”), if the Company exercises its right to extend this non-competition clause by the additional
twelve (12) months, then Executive will, (a) for a period of twelve (12) additional months, continue to receive Executive’s
then current annual Base Salary, as provided in Section 2(a), and (b) Executive will receive for a period of an additional
twelve (12) months, a monthly cash payment equal to the one (1) month cost of COBRA continuation of the health insurance benefits
for Executive and Executive’s immediate family as applicable. As used herein, the term “Competitive Business Activities”
shall mean business activities that are competitive with the business of the Company, including but not limited to, business activities
in the pharmaceutical industry related to then-existing products marketed for menopause, contraception or pre-natal use which
are FDA approved or under clinical development that compete with the Company’s products, and the term “Restricted
Territory” shall mean any state or other geographical area in which the Company has demonstrated an intent to develop,
commercialize, and/or distribute products during Executive’s employment with the Company. Executive hereby agrees that,
as of the date hereof, during Executive’s employment with the Company, the Company has demonstrated an intent to develop,
commercialize, and/or distribute products throughout the United States of America, Canada, Mexico, Brazil, Argentina, Europe,
Australia, South Africa, Russia, Israel, Japan, and South Korea.


 






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(c)               
Non-Solicitation of Employees. During the term of Executive’s employment and for a period of twenty-four
(24) months after the termination of Executive’s employment with the Company, regardless of the reason therefor, Executive
shall not directly or indirectly, for the Company, or on behalf of or in conjunction with any other person, company, partnership,
corporation, or governmental or other entity, solicit for employment, seek to hire, or hire any person who is employed by the
Company, is a consultant of the Company, or is an independent contractor of the Company, within twenty-four (24) months of the
termination of Executive’s employment, and, as related solely to consultants, for the purpose of having any such consultant
engage in services that are the same as, similar to, or related to the services that such consultant provided for the Company
and that are competitive with the services provided by the consultant for the Company.


 


(d)              
Non-Solicitation of Customers. During the term of Executive’s employment and for a period of twenty-four
(24) months after the termination of Executive’s employment with the Company, regardless of the reason therefor, Executive
shall not directly or indirectly, for the Company, or on behalf of, or in conjunction with, any other person, company, partnership,
corporation, or governmental entity, call on, solicit, or engage in business with, any of the actual or targeted prospective customers
or clients of the Company on behalf of any person or entity in connection with any Competitive Business, nor shall Executive make
known the names and addresses of such actual or targeted prospective customers or clients, or any information relating in any
manner to the trade or business relationships of the Company with such customers or clients, other than in connection with the
performance of Executive’s duties under this Agreement, and/or persuade or encourage or attempt to persuade or encourage
any persons or entities with whom the Company does business or has some business relationship to cease doing business or to terminate
its business relationship with the Company or to engage in any Competitive Business Activities on its own or with any competitor
of the Company. As used herein, the term “Competitive Business” shall mean business that is directly competitive
with the business of the Company, including but not limited to, business in the pharmaceutical industry related to products that
directly compete with the Company’s then-existing products marketed for menopause, contraception or pre-natal use which
are FDA approved or under clinical development.


 






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(e)               
Employee Assignment, Invention and Confidentiality Agreement. Executive hereby
reaffirms, acknowledges, and agrees that Executive is subject to the terms and conditions set forth in that certain Employee Assignment,
Invention, and Confidentiality Agreement (the “EAICA”) previously entered into by and between the Company and
Executive and that this Agreement does not modify or amend the EAICA.


 


(f)               
Equitable Relief. In the event a violation of any of the restrictions contained in this Section 4
occurs, the Company, upon proper pleading and proof, shall be entitled to preliminary and permanent injunctive relief, reasonable
attorneys’ fees, and damages and an equitable accounting of all earnings, profits, and other benefits arising from such
violation, which right shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.
In the event of a violation of any provision of Section 4(b), Section 4(c), or Section 4(d), the
period for which those provisions would remain in effect shall be extended for a period of time equal to that period beginning
when such violation commenced and ending when the activities constituting such violation shall have been finally terminated in
good faith. In the event Executive is the prevailing party in any such proceeding(s), Executive will be entitled to the recovery
of all reasonable attorneys’ fees, costs and forms of recoverable damages arising from such proceeding(s).


 


(g)              
Restrictions Separable. If the scope of any provision of this Agreement (whether in this Section 4
or otherwise) is found by a court to be too broad to permit enforcement to its full extent, then such provision shall be enforced
to the maximum extent permitted by law. The parties agree that the scope of any provision of this Agreement may be modified by
a judge in any proceeding to enforce this Agreement, so that such provision can be enforced to the maximum extent permitted by
law. Each and every restriction set forth in this Section 4 is independent and severable from the others, and no such
restriction shall be rendered unenforceable by virtue of the fact that, for any reason, any other or others of them may be unenforceable
in whole or in part.


 


5.            Return
of Company Property. At any time as requested by the Company, or upon the termination of Executive’s employment with
the Company for any reason, Executive shall deliver promptly to the Company all files, lists, books, records, manuals, memoranda,
drawings, and specifications; all other written or printed materials and computers, cell phones, and other equipment that are
the property of the Company (and any copies of them); and all other materials that may contain confidential information relating
to the business of the Company, which Executive may then have in Executive’s possession or control, whether prepared by
Executive or not.


 


6.            Cooperation.
Following the Term, Executive shall give assistance and cooperation willingly, upon reasonable advance notice with due consideration
for Executive’s other business or personal commitments, in any matter relating to Executive’s position with the Company,
or Executive’s expertise or experience as the Company may reasonably request, including Executive’s attendance and
truthful testimony where deemed appropriate by the Company, with respect to any investigation or the Company’s defense or
prosecution of any existing or future claims or litigations or other proceedings relating to matters in which Executive was involved
or potentially had knowledge by virtue of Executive’s employment with the Company. The Company agrees that (a) it shall
promptly reimburse Executive for Executive’s reasonable and documented expenses in connection with rendering assistance
and/or cooperation under this Section 6 upon Executive’s presentation of documentation for such expenses and (b)
Executive shall be reasonably compensated for any continued material services as required under this Section 6.


 






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7.             No
Prior Agreements. Executive hereby represents and warrants to the Company that the execution of this Agreement by Executive
and Executive’s employment by the Company and the performance of Executive’s duties hereunder will not violate or
be a breach of any agreement with a former employer, client, or any other person or entity. Further, Executive agrees to indemnify
the Company for any claim, including, but not limited to, attorneys’ fees and expenses of investigation, by any such third
party that such third party may now have or may hereafter come to have against the Company based upon or arising out of any non-competition,
invention, or secrecy agreement between Executive and such third party that was in existence as of the date of this Agreement.


 


8.             Miscellaneous.


 


(a)               
Notice. All notices, requests, demands, and other communications required or permitted under this Agreement
shall be in writing and shall be deemed to have been duly given, made, and received (i) if personally delivered, on the date of
delivery, (ii) if by e-mail transmission, upon non-automated confirmation of delivery, (iii) if mailed United States mail, registered
or certified, return receipt requested, postage prepaid, and addressed as provided below, upon receipt or refusal of delivery,
or (iv) if by a courier delivery service providing overnight or “next-day” delivery, upon receipt or refusal of delivery,
in each case addressed as follows:


 


    To the Company:            


TherapeuticsMD,
Inc.


951 Yamato Road, Suite 220


Boca Raton, Florida 33431


Attention: Chief Financial Officer


Phone: (561) 961-1900


 


    With a copy, which shall not constitute
notice, to:


 


TherapeuticsMD, Inc.


951 Yamato Road, Suite 220


Boca Raton, Florida 33431


Attention: General Counsel


Phone: (561) 961-1900


 


   To Executive:                   Robert Finizio


 


Either party may alter
the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the
provisions of this Section 8 for the giving of notice.


 


(b)              
Indulgences; Waivers. Neither any failure nor any delay on the part of either party to exercise any right, remedy,
power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right,
remedy, power, or privilege preclude any other or further exercise of the same or of any other right, remedy, power, or privilege,
nor shall any waiver of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of such
right, remedy, power, or privilege with respect to any other occurrence. No waiver shall be binding unless executed in writing
by the party making the waiver.


 






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(c)               
Controlling Law. This Agreement and all questions relating to its validity, interpretation, performance and
enforcement, shall be governed by and construed in accordance with the laws of the State of Florida, notwithstanding any Florida
or other conflict-of-interest provisions to the contrary. Venue for any action arising out of this Agreement or the employment
relationship shall be brought only in courts of competent jurisdiction in or for Palm Beach County, Florida and each party hereby
irrevocably waives, to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of
venue in such courts and submits to the jurisdiction of such courts. THE PARTIES (BY THEIR ACCEPTANCE HEREOF) HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTES BASED
UPON OR ARISING OUT OF THIS AGREEMENT.


 


(d)              
Execution in Counterpart. This Agreement may be executed in any number of counterparts, each of which shall
be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one
and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.


 


(e)               
Entire Agreement. Except as herein contained, this Agreement and the Indemnification
Agreement contain the entire understanding between the parties hereto with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements and understandings, inducements, and conditions, express or implied, oral or
written, which shall no longer have any force or effect, expressly including the Prior Agreement. The express terms hereof control
and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may
not be modified or amended other than by an agreement in writing signed by Executive and a duly authorized representative of the
Company.


 


(f)               
Paragraph Headings. The paragraph headings in this Agreement are for convenience
only; they form no part of this Agreement and shall not affect its interpretation.


 


(g)              
Number of Days. In computing the number of days for purposes of this Agreement,
all days shall be counted, including Saturdays, Sundays, and holidays; provided, however, that if the final day of any time period
falls on a Saturday, Sunday, or holiday, then the final day shall be deemed to be the next day that is not a Saturday, Sunday,
or holiday.


 


(h)              
Successors and Assigns. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the parties hereto; provided that because the obligations of Executive hereunder involve the
performance of personal services, such obligations shall not be delegated by Executive. For purposes of this Agreement, successors
and assigns shall include, but not be limited to, any individual, corporation, trust, partnership, or other entity that acquires
a majority of the stock or assets of the Company by sale, merger, consolidation, liquidation, or other form of transfer. The Company
will require (and is obligated to disclose the existence of this Agreement to) any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume
and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.


 






    15 


     


    

 


(i)                
Tax Withholding. The Company may withhold from any benefits payable under this
Agreement all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.


 


(j)                
Survival. The respective rights and obligations of the parties hereunder shall
survive any termination of Executive’s employment hereunder, including without limitation, the Company’s obligations
under Section 3 and Executive’s obligations under Section 4 above, and the expiration of the Term, to the extent necessary
to the intended preservation of such rights and obligations.


 


(k)              
Right to Consult with Counsel; No Drafting Party. Executive acknowledges having
read and considered all of the provisions of this Agreement carefully, and having had the opportunity to consult with counsel of
Executive’s own choosing, and, given this, Executive agrees that the obligations created hereby are not unreasonable. Executive
acknowledges that Executive has had an opportunity to negotiate any and all of these provisions and no rule of construction shall
be used that would interpret any provision in favor of or against a party on the basis of who drafted the Agreement.


 


[Signature Page
Follows]


 




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IN WITNESS WHEREOF,
the parties hereto have executed this Agreement as of the Effective Date.


 





	 	THERAPEUTICSMD, INC.	 
	 	 	 
	 	/s/ Tommy Thompson	 
	 	Tommy Thompson	 
	 	Chairman of the Board	 
	 	 	 
	 	EXECUTIVE:	 
	 	 	 
	 	/s/ Robert Finizio	 
	 	Robert Finizio	 



 


[Signature Page to
Employment Agreement]


 




    	 



    	 



    

 


EXHIBIT A

FORM OF RELEASE


 


This Separation Agreement
(“Agreement”) is made between TherapeuticsMD, Inc. (“Company”) and Robert Finizio (“Employee”),
intending to be legally bound, and in consideration of the mutual covenants contained herein, and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:


 


1.             Separation and Severance. Employee’s final day of employment with Company was [●]. Although the parties
agree that Company does not owe Employee any further consideration, as severance, Company agrees to pay Employee as set forth in
Employee’s Employment Agreement dated [●] (the “Employment Agreement”), provided Employee executes
this Agreement, complies with its terms and the terms of Employee’s Employment Agreement, and does not revoke this Agreement
during the Revocation Period as defined in Section 7 below. Employee acknowledges that no other compensation of any kind remains
outstanding, that the consideration provided herein is more than Employee would otherwise be entitled to receive, that Employee
shall not be entitled to any other payments or benefits from Company, and that no other amounts are due or owing or shall become
due or owing relating to any obligation, agreement, or otherwise. Should employee wish to accept this Agreement, it must be signed
and returned to [●] by [●].


 


2.             EAICA. Employee acknowledges and agrees that Employee’s obligations contained in the paragraphs 2, 3, 4, 6,
8, 9, 10 and 11 of the Employee Assignment, Invention, and Confidentiality Agreement (“EAICA”) that Employee signed
on [●], a copy of which is attached as Exhibit A, remain in full force and effect. The terms of this Agreement are in additional
to and do not supersede the surviving terms of the EAICA.


 


3.             Confidentiality of Agreement. Employee understands and agrees that the existence of this Agreement and the terms
and conditions thereof, shall be considered confidential, and shall not be disclosed by Employee to any third party or entity except
with the prior written approval of Company, to Employee’s attorney, or upon the order of a court of competent jurisdiction.
Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement or any other agreement between the Company
and Employee shall prevent Employee from sharing information and communicating in good faith, without prior notice to the Company,
with any federal government agency having jurisdiction over the Company or its operations, and cooperating in any investigation
by any such federal government agency; provided that Employee receives no monies for compensatory or other damages as a result
of participating in any such communication or cooperation with the EEOC.


 


4.             Non-Disparagement. At all time Employee will refrain from and will not directly or indirectly engage in any conversation
that would tend to negatively impact Company or any of the Releasees as defined in Section 7 below.


 


5.             Return of Company Property. Employee agrees to immediately return to Company any and all property of Company in Employee’s
possession, custody, or control. No severance shall be paid pursuant to this Agreement until all Company property is returned.


 






     


     


    

 


6.             Confidential Information. Employee acknowledges that Employee has had access to Company confidential and proprietary
information and agrees that all such Confidential Information is and shall remain the exclusive property of Company. Employee further
agrees that Employee shall not publish, disclose, or otherwise make available to any third party any such Confidential Information.
Employee acknowledges and agrees that Employee has continuing confidentiality obligations under the EAICA. Employee warrants that
Employee has no materials containing Confidential Information, but if Employee does, Employee shall return immediately to Company
any and all materials containing any Confidential Information in Employee’s possession, custody, or control. The terms of
this Separation Agreement comprise confidential information of the Company.


 


7.             Release. That the undersigned, Robert Finizio, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, intending to be legally bound, and Employee’s past, present and future agents, representatives,
attorneys, affiliates, heirs, executors, assigns and successors, and all other persons connected therewith, and on behalf of all
successors and assigns, hereby releases and forever discharges TherapeuticsMD, Inc., vitaMedMD, LLC, BocaGreenMD, Inc., vitaCare
Prescription Services and all of their past, present and future agents, representatives, principals, attorneys, affiliates, owners,
parent corporations, subsidiaries, officers, directors, employees, assigns and successors, and all other persons, firms or corporations
connected or affiliated therewith (collectively “Releasees”), of and from any and all legal, equitable or other
claims, demands, setoffs, defenses, contracts, accounts, suits, debts, agreements, actions, causes of action, sums of money, judgments,
findings, controversies, disputes, or past, present and future duties, responsibilities, obligations, or suits at law and/or equity
of whatsoever kind, from the beginning of the world to the date hereof, in addition, without limitation, any and all actions, causes
of action, claims, counterclaims, third party claims, and any and all other federal, state, local and/or municipality statutes,
laws and/or regulations and any ordinance and/or common law pertaining to employment or otherwise and any and all other claims
which have been or which could have been asserted against any party in any forum.


 


By signing this Agreement,
Employee knowingly and voluntarily fully releases and forever discharges Releasees of and from all claims, demands and liability
of any kind arising under any statute, law or ordinance, including, without limitation, Title VII of the Civil Rights Act of 1964,
the Fair Labor Standards Act, the National Labor Relations Act, the Americans with Disabilities Act, any state Human Rights Act,
Fla. Stat. 448, or any facts or claims arising under the Age Discrimination in Employment Act (“ADEA”). This
release is intended to cover all actions, causes of action, claims and demands for damages, loss or injury arising from the beginning
of time until the date of this Agreement, whether presently known or unknown to Employee. However, Employee does not waive Employee’s
rights to claims which may arise after this Agreement becomes effective.


 


In addition, Employee
is hereby advised to consult with an attorney prior to executing this Agreement. Employee agrees that Employee has been given a
reasonable time in which to consider the Agreement and seek such consultation. Employee further warrants that Employee has consulted
with knowledgeable persons concerning the effect of this Agreement and all rights which Employee might have under any and all state
and federal laws relating to employment and employment discrimination and otherwise. Employee fully understands these rights and
that by signing this Agreement Employee forfeits all rights to sue Releasees for matters relating to or arising out of employment,
separation, or otherwise.


 






     A-2


     


    

 


In accordance with
provisions of the ADEA, as amended, 29 U.S.C. §601-634, Employee is hereby provided a period of twenty-one (21) days from
the date Employee receives this Agreement to review the waiver of rights under the ADEA and sign this Agreement. Furthermore, Employee
has seven (7) days after the date Employee signs the Agreement (“Revocation Period”) to revoke Employee’s
consent. This Agreement shall not become effective or enforceable until the Revocation Period has expired. If Employee does not
deliver a written revocation to [●] before the Revocation Period expires, this Agreement will become effective.


 


Notwithstanding anything
in this Section 7 to the contrary, releases contained in this Agreement shall not apply to (i) any rights to receive any payments
or benefits pursuant to Sections 3(b)(ii), 3(b)(iii) or 3(b)(iv) of the Employment Agreement, (ii) any rights or claims that may
arise as a result of events occurring after the date this Agreement is executed, (iii) any indemnification rights Employee may
have as a former officer or director of the Company or its subsidiaries or affiliated companies, (iv) any claims for benefits under
any directors’ and officers’ liability policy maintained by the Company or its subsidiaries or affiliated companies
in accordance with the terms of such policy, and (v) any rights as a holder of equity securities of the Company.


 


8.            Opportunity to Seek Counsel. The parties represent that they have had an opportunity to retain legal counsel to represent
them in connection with this matter, that they have been advised of the legal effect and consequences of this Agreement, that they
have entered into this Agreement knowingly, freely and voluntarily of their own volition, and that they have not been coerced,
forced, harassed, threatened or otherwise unduly pressured to enter into this Agreement.


 


9.            Reporting of Known Issues. As a further condition to your receipt of the benefits described in this Agreement, you
hereby represent and warrant that you have reported in writing to [●] any unethical conduct or violations of laws, regulations,
Company policies and procedures by the Company, a Company employee, or a Company officer of which you are aware.


 


10.          No Admissions. This Agreement is not and shall not in any way be construed as an admission by either party of any
wrongful act or omission, or any liability due and owing, or any violation of any federal, state or local law or regulation.


 


11.          Miscellaneous. This Agreement may not be amended or modified except in writing signed by Employee and an authorized
representative with actual authority to bind Company, specifically stating that it is an amendment to this Agreement. This Agreement
shall be governed by and construed in accordance with Sections 4(g) (Restrictions Separable), 8(a) (Notice), 8(b)
(Indulgences; Waivers), 8(c) (Controlling Law), 8(d) (Execution in Counterpart), 8(f) (Paragraph Headings),
and 8(k) (Right to Consult with Counsel; No Drafting Party) of the Employment Agreement. This Agreement and the Employment
Agreement constitute the entire Agreement between the parties hereto with respect to the subject matter hereof; provided, however,
that Employee’s continuing obligations to the Company under the terms of the EAICA are incorporated herein and shall remain
in full force and effect as set forth herein.


 


[Remainder of page intentionally left blank;
signatures follow on next page]


 




     A-3


     


    

 


IN WITNESS THEREOF,
the parties hereto acknowledge, understand and agree to this Agreement and intend to be bound by all of the clauses contained in
this document.


 


 


	EMPLOYEE	 	THERAPEUTICSMD, INC.
	 	 	 	 	 
	 	 	By:	 
	Robert Finizio	 	 	 
	 	 	 	Its:	 
	 	 	 	 	 
	Date:		 	Date:	 






 


[Signature Page to Release]