PRELIMINARY – SUBJECT TO AMENDMENT AND COMPLETION

THERAPEUTICSMD, INC.

NOTICE OF ANNUAL MEETING OF STOCKHOLDERS

TO BE HELD ON JUNE 18, 2020

MAY 27, 2021

An Annual Meeting of Stockholders of TherapeuticsMD, Inc., a Nevada corporation, will be held at 8:00 a.m., local time,Eastern Time, on Thursday, June 18, 2020, atMay 27, 2021. Due to continuing concerns regarding the Renaissance Boca Raton Hotel, 2000 NW 19th Street, Boca Raton, Florida 33431 (if notCOVID-19 pandemic and to protect the health and safety of our employees, directors, and stockholders, the annual meeting will be a virtual meeting conducted solely online via live webcast and can be attended by visiting www.virtualshareholdermeeting.com/TXMD2021.

The Annual Meeting of Stockholders will be held virtually, as discussed below), for the following purposes:

1.    To elect directors to serve until our next annual meeting of stockholders or until their successors are duly elected and qualified;

22.    To approve, on a non-binding advisory basis, the compensation of our named executive officers for the fiscal year ended December 31, 2019 2020 (“say-on-pay”);

3.    To approve a stock option exchange program for those employees of the company who are not named executive officers;

4.    To approve an amendment to our Amended and Restated Articles of Incorporation, as amended,the TherapeuticsMD, Inc. 2019 Stock Incentive Plan (the “2019 Plan”) to increase the number of authorized shares of common stock, $0.001 par value per share, from 350,000,000 shares to 600,000,000 shares;

4.       To approve the TherapeuticsMD, Inc. 2020 Employee Stock Purchase Plan;

thereunder;

5.     To ratify the appointment of Grant Thornton LLP, or Grant Thornton, an independent registered public accounting firm, as the independent auditor of our company for the fiscal year ending December 31, 2020;2021; and

6.    To transact such other business as may properly come before the meeting or any adjournment thereof.

The foregoing items of business are more fully described in the proxy statement accompanying this notice.

Only stockholders of record at the close of business on April 20, 20205, 2021 are entitled to notice of and to vote at the meeting. All stockholders are cordially invited to attend the meeting and vote in personvirtually

The safety of our employees, customers, communities and stockholders is our first priority. As of the date of this notice, the Governor of the State of Florida has restricted public access to non-essential businesses in Miami-Dade, Broward and Palm Beach Counties due to the COVID-19 pandemic. As part of our precautions regarding the COVID-19 pandemic, we are planning for the possibility that the meeting may be held only through remote communication. At this time, we expect the meeting to occur as planned in person and will take necessary precautions to protect the health and safety of those who attend. If a decision is made to forego the physical meeting, a news release will be issued and the information with respect to the logistical details of the meeting, including how stockholders can remotely access, participate in and vote at the meeting, will be posted on our website, www.therapeuticsmd.com, and such information will be filed with the U.S. Securities and Exchange Commission as proxy material, no later than June 8, 2020.

To assure your representation at the meeting, whether the meeting is held at a physical location or virtually, we urge you to vote by proxy as promptly as possible over the Internet or by telephone as instructed in the Notice of Internet Availability of Proxy Materials or, if you receive paper copies of the proxy materials by mail, you can also vote by mail by following the instructions on the proxy card. You may revoke your proxy and vote in person at the meeting even if you have previously returned a proxy.

Boca Raton, Florida
May 4, 2020

TABLE OF CONTENTS

Page

PROXY SUMMARY

This summary highlights information contained elsewhere in the Proxy Statement. This summary does not contain all of the information you should consider. Please read the entire Proxy Statement carefully before voting.

2020 Annual Meeting of Stockholders

THERAPEUTICSMD, INC.
951 Yamato Road, Suite 220
Boca Raton, Florida 33431

PROXY STATEMENT

VOTING AND OTHER MATTERS

General

The accompanying proxy is solicited on behalf of TherapeuticsMD, Inc., a Nevada corporation, by our Board of Directors for use at our Annual Meeting of Stockholders to be held at 8:00 a.m., local time, on Thursday, June 18, 2020, or at any adjournment thereof, for the purposes set forth in this proxy statement and in the accompanying notice. We intend to hold the meeting at the Renaissance Boca Raton Hotel located at 2000 NW 19^th Street, Boca Raton, Florida 33431. However, the safety of our employees, customers, communities and stockholders is our first priority. As of the date of this notice, the Governor of the State of Florida has restricted public access to non-essential businesses in Miami-Dade, Broward and Palm Beach Counties due to the COVID-19 pandemic. As part of our precautions regarding the COVID-19 pandemic, we are planning for the possibility that the meeting may be held only through remote communication. At this time, we expect the meeting to occur as planned in person and will take necessary precautions to protect the health and safety of those who attend. If a decision is made to forego the physical meeting, a news release will be issued and the information with respect to the logistical details of the meeting, including how stockholders can remotely access, participate in and vote at the meeting, will be posted on our website www.therapeuticsmd.com, and such information will be filed with the U.S. Securities and Exchange Commission, or SEC, as proxy material, no later than June 8, 2020. In accordance with rules adopted by the SECSecurities and Exchange Commission (the “SEC”) that allow companies to furnish their proxy materials over the Internet, we are mailing a Notice of Internet Availability of Proxy Materials instead of a paper copy of our proxy statement and our 20192020 Annual Report to most of our stockholders. The Notice of Internet Availability of Proxy Materials contains instructions on how to access those documents and vote over the Internet. The Notice of Internet Availability of Proxy Materials also contains instructions on how to request a paper copy of our proxy materials, including our proxy statement, our 20192020 Annual Report, and a proxy card. We believe this process will allow us to provide our stockholders the information they need in a more timely manner, while reducing the environmental impact and lowering our costs of printing and delivering the proxy materials.

Whether or not you plan to virtually attend, it is important that your shares be represented and voted at the annual meeting. You may vote your shares over the Internet as described in the Notice of Internet Availability of Proxy Materials. As an alternative, if you received a paper copy of the proxy materials by mail, you can also vote by mail by following the instructions on the proxy card. You may also vote by telephone as described in your proxy card. Even if you have submitted a proxy before the meeting, you may still attend the meeting, revoke your proxy and vote virtually. We appreciate your continued support of our company.

Boca Raton, Florida

April [●], 2021

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TABLE OF CONTENTS

PROXY SUMMARY

This summary highlights information contained elsewhere in the Proxy Statement. This summary does not contain all of the information you should consider. Please read the entire Proxy Statement carefully before voting.

2021 Annual Meeting of Stockholders

Date and Time: May 27, 2021 8:00 am Eastern Time

Place: Online via live webcast at:

Record Date: April 5, 2021

www.virtualshareholdermeeting.com/TXMD2021

Items of Business:

The foregoing items of business are more fully described in the proxy statement accompanying this notice.

THERAPEUTICSMD, INC.

951 Yamato Road, Suite 220

Boca Raton, Florida 33431

PROXY STATEMENT

VOTING AND OTHER MATTERS

General

The accompanying proxy is solicited on behalf of TherapeuticsMD, Inc., a Nevada corporation, by our Board of Directors for use at our Annual Meeting of Stockholders to be held at 8:00 a.m., Eastern Time, on Thursday, May 27, 2021, or at any adjournment thereof, for the purposes set forth in this proxy statement and in the accompanying notice. Due to continuing concerns regarding the COVID-19 pandemic and to protect the health and safety of our employees, directors, and stockholders, the annual meeting will be a virtual meeting conducted solely online via live webcast and can be attended by visiting www.virtualshareholdermeeting.com/TXMD2021. In accordance with rules adopted by the SEC that allow companies to furnish their proxy materials over the Internet, we are mailing a Notice of Internet Availability of Proxy Materials instead of a paper copy of our proxy statement and our 2020 Annual Report to most of our stockholders. The Notice of Internet Availability of Proxy Materials contains instructions on how to access those documents and vote over the Internet. The Notice of Internet Availability of Proxy Materials also contains instructions on how to request a paper copy of our proxy materials, including our proxy statement, our 2020 Annual Report, and a proxy card. We believe this process will allow us to provide our stockholders the information they need in a more timely manner, while reducing the environmental impact and lowering our costs of printing and delivering the proxy materials.

These proxy solicitation materials are anticipated to first be distributed on or about May 6, 2020April [●], 2021 to all stockholders entitled to vote at the meeting.

Important Notice Regarding the Availability of Proxy Materials for the Stockholder Meeting To Beto be Held on June 18, 2020May 27, 2021. These proxy materials, which include the notice of annual meeting, this proxy statement and our 20192020 Annual Report for the fiscal year ended December 31, 2019,2020, are available atwww.proxyvote.com.

We encourage you to access the meeting 15 minutes prior to the start time leaving ample time for the check in and to ensure that you can hear audio prior to the meeting. If you encounter any difficulties accessing the meeting during the check-in or meeting time, please call the technical support number that will be posted on the virtual annual meeting page for assistance. Technical support will be available 15 minutes prior to the start of the meeting.

Record Date and Outstanding Shares

Stockholders of record at the close of business on April 20, 20205, 2021 are entitled to notice of and to vote at the meeting. On the record date, there were issued and outstanding 271,683,266[●] shares of our common stock. Each holder of common stock voting at the meeting, either in personvirtually or by proxy, may cast one vote per share of common stock held on all matters to be voted on at the meeting.

If, at the close of business on April 20, 2020,5, 2021, your shares were registered directly in your name with our transfer agent, Computershare Trust Company, N.A., then you are a stockholder of record. As a stockholder of record, you may vote in personvirtually at the meeting. However, whether or not you plan to attend the meeting, we urge you to vote by proxy over the Internet or by telephone as instructed on the Notice of Internet Availability of Proxy Materials, or to fill out and return the proxy card to ensure your vote is counted. Even if you have submitted a proxy before the meeting, you may still attend the meeting, revoke your proxy and vote in person.

virtually.

If, at the close of business on April 20, 2020,5, 2021, your shares were held in an account at a brokerage firm, bank, or similar organization, then you are the beneficial owner of shares held in “street name” and

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these proxy materials are being forwarded to you by that organization. The organization holding your account is considered the stockholder of record for purposes of voting at the meeting. As a beneficial owner, you have the right to direct your broker, bank, or other nominee on how to vote the shares in your account. You should have received voting instructions with these proxy materials from that organization rather than from us. You should follow the instructions provided by that organization to submit your vote. You are also invited to attend the meeting in person.virtually. However, since you

are not the stockholder of record, you may not vote your shares in personvirtually at the meeting unless you obtain a “legal proxy”16-digit control number from the broker, bank, or other nominee that holds your shares giving you the right to vote the shares at the meeting.

Quorum

The presence, in personvirtually or by proxy, of the holders of a majority of the total number of shares entitled to vote constitutes a quorum for the transaction of business at the meeting.

Required Votes

Assuming that a quorum is present, the nine persons receiving the largest number of “for” votes of our common stock present in personvirtually or by proxy at the meeting and entitled to vote (a plurality) will be elected directors. Stockholders do not have the right to cumulate their votes in the election of directors. We have adopted a majority voting policy as part of our Corporate Governance Guidelines. The majority voting policy is applicable solely to uncontested elections, which are those elections in which the number of nominees for election is less than or equal to the number of directors to be elected. Under the majority voting policy, any nominee for director who receives more “withheld” votes than “for” votes in an uncontested election must submit a written offer to resign as director. Any such resignation will be reviewed by the Nominating and Corporate Governance Committee and, within 90 days after the election, the independent members of our Board of Directors will determine whether to accept, reject or take other appropriate action with respect to, the resignation, in furtherance of the best interests of TherapeuticsMD and our stockholders.

Assuming that a quorum is present, the affirmative vote of a majority of shares of common stock outstanding on the record date will be required to approve anthe non-executive stock option exchange program and the amendment to our Amended and Restated Articles of Incorporation, as amended, to increase the number of authorized shares of common stock, $0.001 par value per share, from 350,000,000 shares to 600,000,000 shares, or the Charter Amendment, and the affirmative vote of a majority of the shares of common stock entitled to vote on the matter and represented either in person or by proxy will be required to approve the TherapeuticsMD, Inc. 2020 Employee2019 Stock PurchaseIncentive Plan or the Purchase Plan,(the “2019 Plan”), and ratify the appointment of Grant Thornton as the independent auditor of our company for the fiscal year ending December 31, 2020.2021. The advisory vote on the compensation of our named executive officers for the fiscal year ended December 31, 2019 2020 (“say-on-pay”) is non-binding, but our Board of Directors and the Compensation Committee of our Board of Directors or the Compensation Committee,(the “Compensation Committee”), will consider the input of stockholders based on whether a majority of shares entitled to vote on the matter and represented either in personvirtually or by proxy vote for the say-on-pay proposal.

Votes cast by proxy or in personvirtually at the meeting will be tabulated by the election inspector appointed for the meeting who will determine whether a quorum is present. The election inspector will treat abstentions as shares that are present and entitled to vote for purposes of determining the presence of a quorum, but as unvoted for purposes of determining the approval of any matter submitted to the stockholders for a vote. If a brokerage firm, bank, or similar organization indicates on the proxy that it does not have discretionary authority as to certain shares to vote on a particular matter, those shares will not be considered as present and entitled to vote with respect to that matter.

Voting of Proxies

When a proxy is properly executed and returned, the shares it represents will be voted at the meeting as directed. If no specification is indicated, the shares will be voted (1) “for” the election of each of the nine nominees for director set forth in this proxy statement, (2) “for” the approval of the compensation of our named executive officers for the fiscal year ended December 31, 2019,2020, (3) “for” the approval of the Charter Amendment,non-executive stock option exchange program, (4) “for” the approval of the Purchaseamendment to the 2019 Plan, (5) “for” the ratification of the appointment of Grant Thornton, an independent registered public accounting firm, as the independent auditor of our company for the fiscal year ending December 31, 20202021, and (6) as the persons specified in the proxy deem advisable on such other matters as may come before the meeting.

Broker Non-Votes and Abstentions

Brokers, banks, or other nominees that hold shares of common stock in “street name” for a beneficial owner of those shares typically have the authority to vote in their discretion if permitted by the stock exchange or other organization of which they are members. Brokers, banks, and other nominees are permitted to vote the beneficial owner’s proxy in their own discretion as to certain “routine” proposals when they have not received instructions from the beneficial owner, such as the approval of the Charter Amendment and the ratification of the appointment of Grant Thornton as the independent auditor of our company for the fiscal year ending December 31, 2020.2021. If a broker, bank, or other nominee votes such “uninstructed” shares for or against a “routine” proposal, those shares will be counted towards determining whether or not a quorum is present and are considered entitled to vote on the “routine” proposals. However, where a proposal is “non-routine,“non-routine,” a broker, bank, or other nominee is not permitted to exercise its voting discretion on that proposal without specific instructions from the beneficial owner. These non-voted shares are referred to as “broker non-votes” when the nominee has voted on other non-routine matters with authorization or voted on routine matters. These shares will be counted towards determining whether or not a quorum is present, but will not be considered entitled to vote on the “non-routine”“non-routine” proposals.

Please note that brokers, banks, and other nominees may not use discretionary authority to vote shares on the election of directors or the approval of the compensation of our named executive officers, the approval of the non-executive stock option exchange program or the approval of the Purchaseamendment to the 2019 Plan if they have not received specific instructions from their clients. For your vote to be counted in the above, you now will need to communicate your voting decisions to your broker, bank, or other nominee before the date of the meeting.

As provided in our bylaws, as amended, except as otherwise provided by law, or our Amended and Restated Articles of Incorporation, as amended, or the bylaws, as amended, a majority of the shares entitled to vote on the matter and represented either in person (virtually for this year’s annual meeting) or by proxy at the meeting in which a quorum is present shall be act of the stockholders. Therefore, for matters other than the (i) the election of our directors, which requires a plurality vote subject to the majority voting policy in our Corporate Governance Guidelines, and (ii) the approval of the Charter Amendment, which requiresnon-executive stock option exchange program and (iii) the affirmative voteapproval of a majority of shares of common stock outstanding on the record date,amendment to the 2019 Plan, the number of votes cast “for” a proposal must exceed the number of votes cast “against” that proposal. For all matters other than the election of our directors, if a stockholder votes to “abstain”, it will have the same effect as a vote “against” that proposal. Because broker non-votes do not represent votes cast “for” or “against” a proposal, broker non-votes will have no effect on the proposal to elect directors, the say-on-pay proposal, or the Purchase Plan proposal, as each such proposal is determined by reference to the votes actually cast by the shares present or represented by proxy and entitled to vote. Because the Charter Amendment proposal and the proposal to ratify the appointment of Grant Thornton as the independent auditor of our company for the fiscal year ending December 31, 2020 are2021 is a “routine” proposals,proposal, broker non-votes will not occur with respect to these proposals. Therefore, if no vote is specified on the proxy and in the absence of directions to the contrary, the shares will be voted “FOR” the Charter Amendment and “FOR” the proposal to ratify the appointment of Grant Thornton as the independent auditor of our company for the fiscal year ending December 31, 2020.2021.

Revocability of Proxies

Any stockholder giving a proxy may revoke the proxy at any time before its use by furnishing to us either a written notice of revocation or a duly executed proxy bearing a later date, or by attending the meeting and voting in person.virtually. Attendance at the meeting will not cause your previously granted proxy to be revoked unless you specifically so request.

Election Inspector

Votes cast by proxy or in personvirtually at the meeting will be tabulated by the election inspector appointed for the meeting, who will determine whether a quorum is present. The election inspector will treat broker non-votes and abstentions as shares that are present and entitled to vote for purposes of determining the presence of a quorum, and as described in the “Broker Non-Votes and Abstentions” section of this proxy statement for purposes of determining the approval of any matter submitted to the stockholders for a vote.

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Solicitation

Solicitation

We will bear the cost of this solicitation. In addition, we may reimburse brokerage firms and other persons representing beneficial owners of shares for expenses incurred in forwarding solicitation materials to such beneficial owners. Proxies also may be solicited by certain of our directors and officers, personally or by telephone or e-mail, without additional compensation.

Submitting a Question or Making a Comment During the Meeting

Annual ReportIf you want to submit a question or make a comment during the meeting, log into the virtual meeting platform at www.virtualshareholdermeeting.com/TXMD2021, type your question into the “Ask a Question” field, and Other Mattersclick “Submit”. Questions and comments submitted via the virtual meeting platform that are pertinent to meeting matters will be addressed during the meeting. Questions and comments that are not pertinent to meeting matters or that are not addressed during the meeting due to time constraints will be addressed after the meeting by our investor relations department. Consistent with our approach when meetings are held in person, questions or comments that are not related to the proposals under discussion, are about personal concerns not shared by stockholders generally, or use blatantly offensive language may be ruled out of order.

Why is the Meeting Being Held Virtually?

We have been closely monitoring the COVID-19 pandemic and the related recommendations and protocols issued by public health authorities and federal, state, and local governments, including current recommendations regarding travel restrictions and large gatherings. In light of these continuing concerns and in order to protect the health and safety of our employees, directors, and stockholders, we will be conducting the annual meeting solely online. We are excited to embrace the latest technology to provide expanded access, improved communication and cost savings for our stockholders and our company. We believe that hosting a virtual meeting will enable more of our stockholders to attend and participate in the meeting since our stockholders can participate from any location around the world with Internet access.

PROPOSAL ONE

ELECTIONOF DIRECTORS

Nominees

Our 2019 Annual Report on Form 10-K, which was made available to stockholders with or preceding this proxy statement, contains financialAmended and other information about our company, but, except as indicated therein, is not incorporated into this proxy statement and is not to be considered a partRestated Articles of these proxy materials or subject to Regulations 14A or 14C or to the liabilities of Section 18 of the Securities Exchange Act of 1934, as amended, or the Exchange Act. The information contained in the “Compensation Committee Report” and the “Report of the Audit Committee” shall not be deemed “filed” with the SEC or subject to Regulations 14A or 14C or to the liabilities of Section 18 of the Exchange Act.

Through our website,www.therapeuticsmd.com, we make available free of charge all of our SEC filings, including our proxy statements, our annual reports on Form 10-K, our quarterly reports on Form 10-Q, and our current reports on Form 8-K, as well as Form 3, Form 4, and Form 5 reports of our directors, officers, and principal stockholders, together with amendments to these reports filed or furnished pursuant to Sections 13(a), 15(d), or 16 of the Exchange Act.

We will provide, without charge, a printed copy of our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 as filed with the SEC to each stockholder that requests a copy in writing. Any exhibits listed in the Form 10-K report also will be furnished upon request at the actual expense incurred by us in furnishing such exhibits. Any such requests should be directed to our company’s secretary at our executive offices set forth in this proxy statement.

PROPOSAL ONE

ELECTION OF DIRECTORS

Nominees

Our amended and restated articles of incorporationIncorporation and bylaws, each as amended, provide that the number of directors shall be fixed from time to time by resolution of our Board of Directors. Presently, the number of directors is fixed at nine. Our bylaws, as amended, provide that all directors are elected at each annual meeting of our stockholders for a term of one year and hold office until their successors are elected and qualified.

A board of nine directors is to be elected at this meeting. Unless otherwise instructed, the proxy holders will vote the proxies received by them “for” each of the nominees named below. All of the nominees currently are directors of our company. In the event that any nominee is unable or declines to serve as a director at the time of the meeting, the proxies will be voted for any nominee designated by our current Board of Directors to fill the vacancy. It is not expected that any nominee will be unable or will decline to serve as a director.

Vote Required

Assuming that a quorum is present, the nine persons receiving the largest number of “for” votes of our common stock present in personvirtually or by proxy at the meeting and entitled to vote (a plurality) will be elected directors, subject to the majority voting policy in our Corporate Governance Guidelines.

THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “FOR” THE NOMINEES LISTED BELOW.

The following table sets forth certain information regarding the nominees for directors of our company.

THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “FOR” THE NOMINEES LISTED BELOW.

Name	Age	Position
Tommy							9

Tommy G. Thompson has served as the Chairman of the Board of Directors and a director of our company since May 2012. Mr. Thompson currently serves as the Chief Executive Officer of Thompson Holdings, a consulting firm. As the Governor of Wisconsin from January 1987 to February 2001, Secretary Thompson was perhaps best known for his efforts to revitalize the Wisconsin economy, for his national leadership on welfare reform, and for his work toward expanding health care access across all segments of society. As the former Secretary of the U.S. Department of Health & Human Services, or HHS, from February 2001 to January 2005, Secretary Thompson served as the nation’s leading advocate for the health and welfare of all Americans. Secretary Thompson was a partner in the law firm of Akin Gump Strauss Hauer & Feld LLP, or Akin Gump, from March 2005 to January 2012, when he resigned to run for the United States Senate. Secretary Thompson served as an Independent Chairman of the Deloitte Center for Health Solutions, a health care consulting company, from March 2005 to May 2009. At the Deloitte Center for Health Solutions and at Akin Gump, Secretary Thompson built on his efforts at HHS to work toward developing solutions to the health care challenges facing American families, businesses, communities, states, and the nation as a whole. Secretary Thompson has also served as the President of Logistics Health, Inc., a provider of medical readiness and homeland security solutions, from February 2005 to January 2011. Secretary Thompson has served as a Senior Fellow for the Bipartisan Policy Center, a non-profit organization focused on bipartisan advocacy and policymaking, since July 2013. Secretary Thompson also serves as a member of the board of directors for the following public companies: Centene Corporation [NYSE:

14		2021 PROXY STATEMENT

Robert G. Finizio has served as Chief Executive Officer and a director of our company since October 2011. As co-founder of VitaMedMD, LLC, or VitaMed, our wholly owned subsidiary, Mr. Finizio served as its Chief Executive Officer and a director from April 2008 to October 2011. Mr. Finizio has 19 years of successful early stage company development experience in the health care industry. Mr. Finizio co-founded and served from August 2001 to February 2008 as President of Care Fusion, LLC and then as Chief Executive Officer of CareFusion, Inc., a clinical technology vendor, which was acquired by Cardinal Health, Inc. Mr. Finizio’s early business experience was with Omnicell, Inc. (formerly known as Omnicell Technologies, Inc.), a provider of pharmaceutical supply chain management systems and services, and Endoscopy Specialists, Inc. in the health care IT and surgical space. We believe Mr. Finizio’s intimate knowledge and experience with all aspects of the business, operations, opportunities, and challenges of our company and experience with early stage company development in the health care industry provide the requisite qualifications, skills, perspectives, and experience that make him well qualified to serve on our Board of Directors. Mr. Finizio earned a B.A. from the University of Miami.

Paul M. Bisaro has served as a director of our company since March 2020. He is an accomplished global business leader with more than 25 years of generic and branded pharmaceutical experience. From May 2018 until August 2019, Mr. Bisaro served as the Executive Chairman of Amneal Pharmaceuticals, Inc. [NYSE: AMRX]. Prior to that appointment, from May 2017 to May 2018, Mr. Bisaro was President and Chief Executive Officer, and member of the Board of Directors, of the Impax Laboratories, Inc. [NASDAQ: IPXL], until its acquisition by Amneal Pharmaceuticals. Prior to joining Impax Laboratories, Mr. Bisaro served as Executive Chairman of Allergan, plc [NYSE: AGN] from July 2014 to November 2016, and as President and CEO of Actavis, plc (and its predecessor firm Watson Pharmaceuticals Inc.) from September 2007 to July 2014. Mr. Bisaro served on the Board of Directors of Allergan (and its predecessor firms) from September 2007 until August 2018. Previously, he served as President, Chief Operating Officer, and a member of the Board of Directors of Barr Pharmaceuticals, Inc., from 1999 to 2007. Between 1992 and 1999, Mr. Bisaro served as General Counsel of Barr, and from 1997 to 1999, served in various additional executive leadership capacities. Prior to joining Barr, he was associated with the law firm Winston & Strawn and a predecessor firm, Bishop, Cook, Purcell and Reynolds, from 1989 to 1992. He also served as a Senior Consultant with Arthur Andersen & Co. Throughout his career, Mr. Bisaro has also been named to various boards of public companies, trade associations, and educational institutions. Since 2015 he has served as a member of the Board of Directors of Zoetis, Inc. [NYSE: ZTS], a producer of medicine and vaccinations for pets and livestock. From December 2013 to May 2017, he served on the Board of Directors of Zimmer Biomet Holdings, Inc. [NYSE: ZBH], a musculoskeletal healthcare company. Mr. Bisaro has also been a member of the Board of Visitors of the Catholic University of America’s Columbus School of Law since 2014. We believe Mr. Bisaro’s business, management and leadership experience, his understanding of the pharmaceutical industry, and his public company board experience make him a valuable member of our Board of Directors. Mr. Bisaro holds an undergraduate degree in General Studies from the University of Michigan and a Juris Doctor from The Catholic University of America in Washington, D.C.

J. Martin Carroll has served as a director of our company since March 2015. Mr. Carroll previously served as President and Chief Executive Officer of Boehringer Ingelheim Corp. (U.S.) from 2003 until 2011. He also served as global head of strategy and development for Boehringer Ingelheim (Germany) from 2009 through 2012 and served as Chairman of the Board for a number of

Boehringer Ingelheim companies. Previously, Mr. Carroll held positions of increasing responsibility with Merck & Co. Inc. from 1976 to 2001, including manufacturing, international (Japan) and marketing and sales. He left Merck serving as its Executive Vice President for Customer Marketing and Sales of the U.S. Human Health Division. From 1972 to 1976, Mr. Carroll served in the United States Air Force. Mr. Carroll has previously served on the board of directors for a number of organizations, including Accredo Health Group Inc., Vivus Inc. [NASDAQ: VVUS], Durata Therapeutics Inc. [NASDAQ: DRTX], and Gwynedd Mercy College, as well as PhRMA. He currently serves as a director of Mallinckrodt PLC [NYSE: MNK] and Catalent, Inc. [NYSE: CTLT] and previously served as a director of Inotek Pharmaceuticals Corporation [NASDAQ: ITEK] from 2016 until its merger with Rocket Pharmaceuticals, Ltd. in 2018. We believe Mr. Carroll’s extensive experience as a pharmaceutical industry executive and his experience as a director of other publicly traded pharmaceutical companies provides the requisite qualifications, skills, perspectives, and experience that make him well qualified to serve on our Board of Directors. Mr. Carroll received a B.A. in accounting and economics from the College of Holy Cross and a M.B.A. from Babson College.

Cooper C. Collins has served as a director of our company since February 2012. Mr. Collins has served as Chief Executive Officer of Fortis BioPharma LLC since June 2015. Mr. Collins served as Chief Strategy Officer of Pernix Therapeutics Holdings, Inc. [NASDAQ: PTX], or Pernix, from May 2013 until April 2014, as its President and Chief Executive Officer from March 2010 until May 2013, and as a director from March 2010 until February 2014. Mr. Collins joined Pernix Therapeutics, Inc., a predecessor of Pernix, in 2002, where he was appointed as a director in January 2007, its President in December 2007 and its Chief Executive Officer in June 2008, serving in those three capacities until March 2010. From December 2005 to December 2007, Mr. Collins served as Vice President of Business and Product Development of Pernix Therapeutics, Inc. and as its Territory Manager from December 2003 to December 2005. Mr. Collins was employed for three years by the National Football League franchise, the New Orleans Saints, in its media relations department. We believe Mr. Collins’ specialty pharmaceutical company knowledge and executive experience provide the requisite qualifications, skills, perspectives, and experience that make him well qualified to serve on our Board of Directors. While on a football scholarship, Mr. Collins received a B.A. from Nicholls State University, where he later received an M.B.A.

Karen L. Ling has served as a director of our company since April 2020. Ms. Ling has served as Executive Vice President and Chief Human Resources Officer at American International Group, Inc. [NYSE: AIG] since July 2019. From March 2015 until July 2019, she served as Executive Vice President and Chief Human Resources Officer at Allergan plc [NYSE: AGN], a global pharmaceutical company. From July 2014 until March 2015, Ms. Ling served as Senior Vice President, Human Resources and Chief Human Resources Officer at Actavis plc, a global pharmaceutical company, prior to its acquisition of Allergan and name change to Allergan. From January 2014 until July 2014, Ms. Ling was Senior Vice President and Chief Human Resources Officer at Forest Laboratories, a company which was focused on licensing European pharmaceuticals for sale in the United States, prior to its acquisition by Actavis. Prior to this, from 2011 until January 2014, Ms. Ling was Senior Vice President, Human Resources of the Global Human Health and Consumer Care businesses worldwide for Merck & Co., Inc. [NYSE: MRK]. She also served as Vice President, Global Compensation and Benefits, at Merck from November 2009 until 2011. From May 2008 until November 2009, she served as Group Vice President, Global Compensation & Benefits at Schering-Plough prior to its acquisition by Merck. Prior to joining Schering-Plough, Ms. Ling held various positions at Wyeth, LLC. Ms. Ling is a member of the board of directors of the JED Foundation and ExpandED Schools, both of which are non-profit organizations. We believe Ms. Ling’s specialty pharmaceutical company knowledge and executive experience provide the requisite qualifications, skills, perspectives, and experience that make her well qualified to serve on our Board of Directors. Ms. Ling received a B.A. in Economics from Yale University and a J.D. from Boston University, and is admitted to practice law in New York and Massachusetts.

Jules A. Musinghas served as a director of our company since May 2013. In the course of Mr. Musing’s 37-year career in the pharmaceutical and biotechnology industry, specifically at Johnson & Johnson and its affiliates, he has been responsible for the worldwide licensing and acquisition of pharmaceutical and biotechnology products and technologies and the establishment of strategic alliances. This included the establishment of new scientific, technology and product collaborations in various therapeutic areas, the negotiation of licensing and alliance agreements with biotechnology and pharmaceutical companies worldwide, and the partnering, spin-out and out-licensing of company pharmaceutical and biotechnology assets. Prior to moving into those roles, Mr. Musing was Vice President Marketing International for the Janssen Pharmaceutical Group of Companies Worldwide from March 1982 to December 1984; President of Pitman-Moore, Inc., a U.S.-based Johnson & Johnson company from January 1985 to June 1987; Managing Director of Janssen Pharmaceutical in Portugal from July 1987 to March 1990; President of Serono, Inc. in the United States and Executive Vice President with responsibilities for North and South America from April 1990 to January 1993; Member of the board of directors of Ortho Biotech, Inc. from January 1993 to October 1999; and Managing Director of Ortho Biotech in France (a Johnson & Johnson affiliate) from October 1999 to January 2003. From January 2003 until his retirement in September 2010, Mr. Musing served as Vice President, Licensing and Acquisitions for the Pharmaceutical Group at Johnson & Johnson, where he was responsible for the worldwide licensing and acquisition of pharmaceutical and biotechnology products in all therapeutic areas. He has served as a director of Delphi Digital, Inc. since March 2012 and Chairman of the Scientific Board of Advisors for Noble Capital Financial Markets since February 2012. We believe Mr. Musing’s extensive experience in the pharmaceutical and biotechnology industry, including the establishment of numerous strategic and global partnerships and various new product collaborations provide the requisite qualifications, skills, perspectives, and experience that make him well qualified to serve on our Board of Directors. Mr. Musing received his Master’s Degree

in Biological Sciences from the University of Brussels (Belgium) and his Graduate Degree in Economics and Financial Sciences from the University of Antwerp (Belgium).

Gail K. Naughton, Ph.D. has served as a director of our company since March 2020. Dr. Naughton has served as the Chief Scientific Officer and Chief Business Development Officer of Histogen, a company she founded which is focused on the development of novel solutions based on the products of cells grown under simulated embryonic conditions, since April 2017. Dr. Naughton served as the Chairman and Chief Executive Officer of Histogen from June 2007 until April 2017. Prior to Histogen, Dr. Naughton was the Vice Chairman of Advanced Tissue Sciences, Inc., a human-based tissue engineering company, from March 2002 to October 2002, President from August 2000 to March 2002, President and Chief Operating Officer from 1995 to 2000 and Executive Vice President, Chief Operating Officer from 1991 to 1995. Dr. Naughton also served as Dean of the College of Business Administration at San Diego State University from August 2002 to June 2011. She has spent over 30 years extensively researching the tissue engineering process, holds over 105 U.S. and foreign patents, and has founded two regenerative medicine companies. Dr. Naughton has brought several tissue engineered products to market including a product for severe burns (TransCyte), a dermal replacement for diabetic ulcers (Dermagraft), an aesthetic dermal filler (Cosmederm/Cosmeplast), and SkinMedica’s TNS product for skin care. Dr. Naughton has been extensively published and a frequent speaker in the field of tissue engineering. In 2000, Dr. Naughton received the 27th Annual National Inventor of the Year award by the Intellectual Property Owners Association in honor of her pioneering work in the field of tissue engineering. Dr. Naughton has been a member of several public company boards of directors since 1988, including Cytori Therapeutics, Inc. [NASDAQ: CYTX] from July 2014 until January 2018 and C.R. Bard, Inc. [NYSE: BCR] from 2004 until December 2017. We believe Dr. Naughton’s extensive executive experience, her in-depth knowledge of the healthcare industry and regenerative medicine technology, her experience developing FDA-approved products, and her service on other public company boards and committees, provide the requisite qualifications, skills, perspectives, and experience that make her well qualified to serve on our Board of Directors. Dr. Naughton received her B.S. in Biology from St. Francis College, her M.S. in Histology and her Ph.D. in Hematology from the New York University Medical Center and her E.M.B.A. from UCLA.

Angus C. Russellhas served as a director of our company since March 2015. Mr. Russell previously served as Chief Executive Officer of Shire PLC from June 2008 until April 2013. Mr. Russell served as the Chief Financial Officer of Shire from 1999 to 2008 and also served as Executive Vice President of global finance. Prior to joining Shire, Mr. Russell served at ICI, Zeneca and AstraZeneca PLC for 19 years, most recently in the role of Vice President, Corporate Finance at AstraZeneca. Mr. Russell also serves as a director of Mallinckrodt PLC [NYSE: MNK], having served as the chairman of the board of Mallinckrodt since May 2018, Lineage Cell Therapeutics, Inc. [NYSE: LCTX] and Revance Therapeutics Inc. [NASDAQ: RVNC], where he serves as the chairman of the board. Mr. Russell previously served as a director of Shire PLC [NASDAQ: SHPG], Questcor Pharmaceuticals Inc. [NASDAQ: QCOR] and InterMune Inc. [NASDAQ: ITMN]. We believe Mr. Russell’s extensive experience as a pharmaceutical industry executive and his experience as a director of other publicly traded pharmaceutical companies provides the requisite qualifications, skills, perspectives, and experience that make him well qualified to serve on our Board of Directors. Mr. Russell holds an honorary Doctor of Business Administration from Coventry University, U.K.

Executive Officers

The following table sets forth certain information regarding our current executive officers:

Listed below are biographical descriptions of our executive officers. For Mr. Finizio’s information, see the description under “Election of Directors” above.

James C. D’Arecca has served as Chief Financial Officer of our company since June 2020. Prior to joining TherapeuticsMD, Mr. D’Arecca served as the Senior Vice President and Chief Accounting Officer of Allergan plc (formerly known as Actavis plc) from August 2013 until its merger with AbbVie Inc. in May 2020. Mr. D’Arecca was a key member of the finance team through Allergan’s journey from a generics manufacturer (Watson/Actavis) to a leading global pharmaceutical company. Mr. D’Arecca joined Actavis from Bausch & Lomb, where he served as its Chief Accounting Officer. Prior to Bausch & Lomb, he served in various roles of increasing responsibility at Merck & Co. Inc. and Schering-Plough in finance and business development. He also spent 13 years with PricewaterhouseCoopers, with an industry focus on pharmaceuticals, medical devices, and consumer products. Mr. D’Arecca earned his MBA from Columbia University, his B.S. in accounting from Rutgers University, and is a Certified Public Accountant.

John C.K. Milligan, IV has served as President and Secretary of our company since October 2011 and served as a director of our company from October 2011 to March 2020. From December 2008 to October 2011, Mr. Milligan served as President and director of VitaMed. Prior to VitaMed, Mr. Milligan co-founded CareFusion, LLC, serving as President and General Manager from August 2001 to February 2008, and then as President and Chief Operating Officer of CareFusion, Inc. From 1997 to 2001, Mr. Milligan was Vice President, Sales and Operations for Omnicell, Inc. Prior to Omnicell, Mr. Milligan also held executive management positions at Serving Software Inc. and HBO & Co., a health carehealthcare information systems company, both of which were subsequently acquired by McKesson Corporation. Mr. Milligan is a graduate of the U.S. Naval Academy.

Daniel A. CartwrightEdward Borkowski has served as Chief Financial Officer and TreasurerExecutive Vice President of our company since October 2011 and2020. Prior to joining TherapeuticsMD, Mr. Borkowski served as Executive Vice President and interim Chief Financial Officer of FinanceMiMedx Group, Inc. [Nasdaq: MDGX] from October 2011April 2018 to April 2013. From July 2011 to October 2011, Mr. Cartwright servedDecember 2019, as Chief Financial Officer of VitaMed.Aceto Corporation [Nasdaq: ACET] from February 2018 to April 2018, and was a director and held several executive positions with Concordia International, an international specialty pharmaceutical company, from May 2015 to February 2018. From May 1996March 2013 to July 2011, Mr. CartwrightMarch 2016, he served as Chief Financial Officer and Executive Vice President of Circle F Ventures, LLC, an Arizona venture capital firm that made investments in more than 50 companies. During the same period, Mr. Cartwright served as Chief Financial Officer and Treasurer of Fleming Securities, formerly a registered broker dealer involved with raising capital for public and private companies. From 1993 to 1996, Mr. Cartwright served asActing Chief Financial Officer of American Wireless Systems,Amerigen Pharmaceuticals, a generic pharmaceutical company with a focus on oral, controlled release products. He is currently a director of AzurRx BioPharma Inc. [Nasdaq: AZRX] and Acacia Pharma Group Plc [Euronext Brussels: ACPH], and a providerTrustee of entertainment video services.Allegheny College. Mr. Cartwright currently servesBorkowski previously served as a memberdirector of the board of directors of Primetrica,Co-Diagnostics, Inc., a private information research company for the telecommunications industry, [Nasdaq: CODX] from May 2017 to June 2019. Mr. Bork owski previously served in executive roles at ConvaTec, CareFusion Corporation and formerly served on the board of directors of Antenna Technologies Company, Inc.Mylan N.V. and WEB Corp.began his career with Arthur Andersen & Co. Mr. CartwrightBorkowski earned his B.S.degree in AccountingEconomics and Political Science from Arizona StateAllegheny College and received an MBA in accounting from Rutgers University.

Mitchell L. KrassanMarlan Walker has served as Chief Strategy & Performance OfficerGeneral Counsel of our company since October 2011. From April 2010 to October 2011,March 2016. Mr. KrassanWalker previously also served as Chief StrategyDevelopment Officer from April 2018 to December 2019 and Performance Officeras our Corporate and Intellectual Property Counsel from June 2013 until he became our General Counsel. Mr. Walker’s

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experience is focused in management of VitaMed. From September 2010legal issues and risk in the life science industries across a variety of disciplines. His legal practice prior to his time at TherapeuticsMD included long-term portfolio strategy and management, patent preparation and prosecution, contract negotiation and drafting, life-cycle management, and Hatch-Waxman. After law school, he took a position at Greenberg Traurig, LLP in August 2005. In March of 2009, he moved to Luce Forward Hamilton & Scripps. Mr. Walker accepted an in-house position as Intellectual Property Counsel for Medicis Pharmaceutical Corp. in June 2011, which was acquired by Valeant Pharmaceutical International, Inc. in December 2012. In February 2013, Mr. Krassan serves asWalker accepted a position at Kilpatrick Townsend & Stockton, but chose to move in-house again in June 2013, when he accepted a position at our Chief Financial Officer.company. Mr. Krassan wasWalker graduated from Arizona State University Sandra Day O’Conner College of Law with his J.D. in 2004, and an LL.M. in Intellectual Property Law at The George Washington University Law School in 2005. He holds a partner with EquiMark Limited, a private investment partnership, from 1997 to 2010. From November 1994 to July 1997, Mr. Krassan served as Chief Financial OfficerMaster’s Degree in Molecular Biology and Chief Operating Officer of The Reich Group/Telespectrum Worldwide, a fully integrated direct marketing firm that provided clients expertise in market research and analysis, strategic planning, marketing, creative, and production services, telemarketing and database development. Mr. Krassan earned a B.S. in Accountingdegree, both earned from theBrigham Young University of Maryland, received his certification as a CPA in the state of Maryland, and earned his M.B.A. in Management from New York University..

Michael DoneganMarlan Walker has served as Vice President – FinanceGeneral Counsel of our company since April 2013.March 2016. Mr. Donegan has a 29-year background in accounting and finance. From August 2012 to April 2013, Mr. DoneganWalker previously also served as an independent consultant exclusively for our company, where he conceptualized, designed and executed our Sarbanes-Oxley 404 compliance program. From August 2007 to August 2012, Mr. Donegan served as an independent consultant designing and implementing Sarbanes-Oxley 404 compliance programs for various non-accelerated filers and executed on pre-designed Sarbanes-Oxley 404 compliance programs for certain large accelerated filers. From January 2005 to August 2007, Mr. Donegan served as an independent consultant exclusively for Tyco International, where he enhanced and executed the Sarbanes-Oxley 404 compliance model with their corporate headquarters group. From November 2001Chief Development Officer from April 2018 to December 2004,2019 and as our Corporate and Intellectual Property Counsel from June 2013 until he became our General Counsel. Mr. Donegan was Manager of Financial Systems at Tyco International at its global headquarters. From 1994 to 2001, Mr. Donegan held various positions in the global consolidation/SEC reporting group at Sensormatic Electronics Corporation culminating with the acquisition of Sensormatic Electronics Corporation by Tyco International in the fall of 2001 when he was the Manager of Financial Systems. Mr. Donegan began his career at Ernst & Young, LLP where he worked in both the audit and tax departments. Mr. Donegan earned his B.S. in Accounting and his Master of Accounting from the University of Florida.

Non-Executive Officers

The following table sets forth certain information regarding our current significant employees who are not executive officers:Walker’s

Name
		Age		Position
Brian Bernick, M.D.		51	15		Co-Founder
Dawn Halkuff		49		Chief Commercial Officer
John Knighton		42		Chief Compliance Officer
Adam Miller		38		Chief Information Officer
Dr. Sebastian Mirkin		48		Chief Medical Officer
Marlan Walker		45		General Counsel
Bharat Warrier		42		Chief Manufacturing Officer

experience is focused in management of such non-executive officers.

Dr. Brian Bernick has servedlegal issues and risk in the life science industries across a variety of disciplines. His legal practice prior to his time at TherapeuticsMD included long-term portfolio strategy and management, patent preparation and prosecution, contract negotiation and drafting, life-cycle management, and Hatch-Waxman. After law school, he took a position at Greenberg Traurig, LLP in August 2005. In March of 2009, he moved to Luce Forward Hamilton & Scripps. Mr. Walker accepted an in-house position as co-founder ofIntellectual Property Counsel for Medicis Pharmaceutical Corp. in June 2011, which was acquired by Valeant Pharmaceutical International, Inc. in December 2012. In February 2013, Mr. Walker accepted a position at Kilpatrick Townsend & Stockton, but chose to move in-house again in June 2013, when he accepted a position at our company since October 2011 and co-founder and director of vitaMedMD,company. Mr. Walker graduated from April 2008 to October 2011. Dr. Bernick served as a director of our company from October 2011 until March 2020. Dr. Bernick previously served as our Chief Clinical Officer from November 2013 to May 2018 and as our Chief Medical Officer from February 2012 until November 2013. Dr. Bernick is a board-certified obstetrician/gynecologist with over 25 years of clinical medical experience. Dr. Bernick was the Department Chair of Obstetrics and Gynecology at Boca Raton Regional Hospital and served on that hospital’s Medical Executive Board as well as the Board of Directors of the Palm Beach Medical Society and VitalMD Group Holding, LLC, one of the largest physician-owned and physician-managed medical groups in Florida. Dr. Bernick has served on the American College of

Obstetricians and Gynecologists’ (ACOG) national committee on Professional Liability. Dr. Bernick is the recipient of several national and regional awards, including recognition by his peers as one of the top doctor’s in his specialty by Castle Connolly as well as the recipient of the American Medical Association Foundation’s Leadership Award. Dr. Bernick has over 100 peer-reviewed publications and presentations of original research at medical conferences. Dr. Bernick is responsible for numerous U.S. and foreign patents focusing on drug therapies and analysis. Dr. Bernick is an affiliate associate professor of obstetrics and gynecology at Florida AtlanticArizona State University Sandra Day O’Conner College of Medicine. Dr. BernickLaw with his J.D. in 2004, and an LL.M. in Intellectual Property Law at The George Washington University Law School in 2005. He holds a B.A.Master’s Degree in Economics from Northwestern University, received his Doctorate in Medicine from the Chicago Medical School, and completed his residency at the University of Pennsylvania.

Dawn Halkuff has served as the Chief Commercial Officer of our company since October 2016. Prior to that, Ms. Halkuff held numerous senior level positions over 20 years of commercial and marketing experience. Ms. Halkuff was previously at Pfizer, Inc. [NYSE: PFE], where she held various leadership roles in women’s health from 2010 to 2016. Most recently, Ms. Halkuff was Senior Vice President of the Pfizer Consumer Healthcare Wellness OrganizationMolecular Biology and a member of the Consumer Global Leadership Team. Prior to that, Ms. Halkuff was the commercial lead for sales and marketing of the Pfizer Women’s Health Division, focusing on the company’s reinvestment in hormone therapy treatment, including Premarin Vaginal Cream® and oral hot flash treatments. From 2005 to 2010, Ms. Halkuff was Head of Global Innovation at Weight Watchers International [NYSE: WTW], where she created new weight-loss products, services, and solutions for women worldwide. Ms. Halkuff currently serves as a member of the board of directors of Society of Women’s Health Research and Xeris Pharmaceuticals, Inc. [NASDAQ: XERS]. Ms. Halkuff holds a B.A. in PsychologyB.S. degree, both earned from Brigham Young University of Connecticut and an M.B.A. from Pennsylvania State University..

John Knighton joined TherapeuticsMD as Chief Compliance Officer in March 2018. Mr. Knighton directly reports to the General Counsel and also reports in specific instances to the Chief Executive Officer and the Chair of the Audit Committee of our Board of Directors. Mr. Knighton previously served as Head of Global Compliance at Orexigen Therapeutics from 2016 to 2018 and as Chief Compliance Officer at MicroPort Orthopedics from 2014 to 2016. From 2010 to 2013, Mr. Knighton served in senior compliance roles of increasing responsibility at Wright Medical Technology, holding the titles of Director of Compliance; Sr. Director of Compliance Operations and Interim Chief Compliance Officer. From 2007 to 2010, Mr. Knighton served as Director at King Pharmaceuticals (2007-2010). Earlier in his career, Mr. Knighton served in Life Science Legal and Compliance positions at Solvay Pharmaceuticals and as a Consultant on the Life Science Compliance team at Ernst and Young, LLP. Mr. Knighton has designed and implemented multiple compliance programs in complex situations and has also conducted a number of business development diligence, audit and investigation projects related to complex matters facing global life science companies. Mr. Knighton received his BS in Accountancy from Villanova University and his Doctor of Law from Emory University School of Law. He is a member of the State Bar of Georgia.

Adam Miller has served as our Chief Information Officer since March 2018. Mr. Miller has more than 16 years of experience in the information technology field, including more than 13 years specifically in healthcare IT. Prior to becoming CIO, Mr. Miller served as Vice President of Information Technology at TherapeuticsMD and has led our information technology department since May 2011. Mr. Miller has been responsible for all aspects of IT including governance and planning, IT solutions management and development, infrastructure, security, and operations. Before joining TherapeuticsMD, Mr. Miller was a consultant for Quilogy, a healthcare-focused Microsoft Gold Partner consulting firm. While at Quilogy, Mr. Miller spent time on projects for Kindred Healthcare, the University of Kentucky, and Microsoft filling various roles in project management, development, business analysis, administration, and training. Mr. Miller has also held various IT-related roles with Healthcare Recoveries, Louisville Gas & Electric, and Brown-Forman. Mr. Miller holds a B.S.B.A. in Computer Information Systems with a Concentration in Information Security from the University of Louisville’s College of Business. He is also an active member in the South Florida information technology community.

Dr. Sebastian Mirkin has served as the Chief Medical Officer of our company since November 2013. Dr. Mirkin has more than 20 years of experience and leadership in clinical development and medical affairs in women’s health in global pharmaceutical companies. From October 2009 to November 2013, Dr. Sebastian was Clinical Lead and Global Clinical Lead of Women’s Health, Clinical Research at Pfizer. From October 2005 to October 2009, he was Director and Senior Director, Clinical Research, Women’s Health at Wyeth, and from October 2004 to October 2005 he was Global Lead Medical Services, Women’s Health at Organon. Dr. Mirkin oversaw the development and successful marketing authorization of several novel medicines in the United States, Europe, and Japan. Dr. Mirkin holds a Doctor in Medicine degree from National University, Argentina. Trained in Obstetrics/Gynecology, Dr. Mirkin completed his fellowship in Reproductive Medicine at The Jones Institute of Reproductive Medicine in Norfolk, Virginia.

Marlan Walker has served as our General Counsel of our company since March 2016. Mr. Walker previously also served as Chief Development Officer from April 2018 to December 2019 and as our Corporate and Intellectual Property Counsel from June 2013 until he became our General Counsel. Mr. Walker’s

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experience is focused in management of legal issues and risk in the life science industries across a variety of disciplines. His legal practice prior to his time at TherapeuticsMD included long-term portfolio strategy and management, patent preparation and prosecution, contract negotiation and drafting, life-cycle management, and Hatch-Waxman. After law school, he took a position at Greenberg Traurig, LLP in August 2005. In March of 2009, he moved to Luce Forward Hamilton & Scripps. Mr. Walker accepted an in-house position as Intellectual Property Counsel for Medicis Pharmaceutical Corp. in June 2011, which was acquired by Valeant Pharmaceutical International, Inc. in December 2012. In February 2013, Mr. Walker accepted a position at

Kilpatrick Townsend & Stockton, but chose to move in-house again in June 2013, when he accepted a position at our company. Mr. Walker graduated from Arizona State University’sUniversity Sandra Day O’Conner College of Law with his J.D. in 2004, and an LL.M. in Intellectual Property Law at The George Washington University Law School in 2005. He holds a Master’s Degree in Molecular Biology and a B.S. degree, both earned from Brigham Young University.

Michael Donegan has served as Chief Accounting Officer and Vice President – Finance of our company since November 2020 and Vice President – Finance of our company since April 2013. Mr. Donegan has a 30-year background in accounting and finance. From August 2012 to April 2013, Mr. Donegan served as an independent consultant exclusively for our company, where he conceptualized, designed and executed our Sarbanes-Oxley 404 compliance program. From August 2007 to August 2012, Mr. Donegan served as an independent consultant designing and implementing Sarbanes-Oxley 404 compliance programs for various non-accelerated filers and executed on pre-designed Sarbanes-Oxley 404 compliance programs for certain large accelerated filers. From January 2005 to August 2007, Mr. Donegan served as an independent consultant exclusively for Tyco International, where he enhanced and executed the Sarbanes-Oxley 404 compliance model with their corporate headquarters group. From November 2001 to December 2004, Mr. Donegan was Manager of Financial Systems at Tyco International at its global headquarters. From 1994 to 2001, Mr. Donegan held various positions in the global consolidation/SEC reporting group at Sensormatic Electronics Corporation culminating with the acquisition of Sensormatic Electronics Corporation by Tyco International in the fall of 2001 when he was the Manager of Financial Systems. Mr. Donegan began his career at Ernst & Young, LLP where he worked in both the audit and tax departments. Mr. Donegan earned his B.S. in Accounting and his Master of Accounting from the University of Florida.

Non-Executive Officers

The following table sets forth certain information regarding our current significant employees who are not executive officers:

Listed below are biographical descriptions of such non-executive officers.

Dr. Brian Bernick has served as co-founder and Chief Scientific Officer of our company since October 2011 and co-founder and director of vitaMedMD, from April 2008 to October 2011. Dr. Bernick served as a director of our company from October 2011 until March 2020. Dr. Bernick previously served as our Chief Clinical Officer from November 2013 to May 2018 and as our Chief Medical Officer from February 2012 until November 2013. Dr. Bernick is a board-certified obstetrician/gynecologist with over 25 years of clinical medical experience. Dr. Bernick was the Department Chair of Obstetrics and Gynecology at Boca Raton Regional Hospital and served on that hospital’s Medical Executive Board

as well as the Board of Directors of the Palm Beach Medical Society and VitalMD Group Holding, LLC, one of the largest physician-owned and physician-managed medical groups in Florida. Dr. Bernick has served on the American College of Obstetricians and Gynecologists’ (ACOG) national committee on Professional Liability. Dr. Bernick is the recipient of several national and regional awards, including recognition by his peers as one of the top doctor’s in his specialty by Castle Connolly as well as the recipient of the American Medical Association Foundation’s Leadership Award. Dr. Bernick has over 100 peer-reviewed publications and presentations of original research at medical conferences. Dr. Bernick is responsible for numerous U.S. and foreign patents focusing on drug therapies and analysis. Dr. Bernick is an affiliate associate professor of obstetrics and gynecology at Florida Atlantic University College of Medicine. Dr. Bernick holds a B.A. in Economics from Northwestern University, received his Doctorate in Medicine from the Chicago Medical School, and completed his residency at the University of Pennsylvania.

Dawn Halkuff has served as Chief Commercial Officer of our company since October 2016. Prior to that, Ms. Halkuff held numerous senior level positions over 20 years of commercial and marketing experience. Ms. Halkuff was previously at Pfizer, Inc. [NYSE: PFE], where she held various leadership roles in women’s health from 2010 to 2016. Most recently, Ms. Halkuff was Senior Vice President of the Pfizer Consumer Healthcare Wellness Organization and a member of the Consumer Global Leadership Team. Prior to that, Ms. Halkuff was the commercial lead for sales and marketing of the Pfizer Women’s Health Division, focusing on the company’s reinvestment in hormone therapy treatment, including Premarin Vaginal Cream® and oral hot flash treatments. From 2005 to 2010, Ms. Halkuff was Head of Global Innovation at Weight Watchers International [NYSE: WTW], where she created new weight-loss products, services, and solutions for women worldwide. Ms. Halkuff currently serves as a member of the board of directors of Society of Women’s Health Research and Xeris Pharmaceuticals, Inc. [NASDAQ: XERS]. Ms. Halkuff holds a B.A. in Psychology from University of Connecticut and an M.B.A. from Pennsylvania State University.

John Knighton has served as Chief Compliance Officer of our company since March 2018. Mr. Knighton directly reports to the General Counsel and also reports in specific instances to the Chief Executive Officer and the Chair of the Audit Committee of our Board of Directors. Mr. Knighton previously served as Head of Global Compliance at Orexigen Therapeutics from 2016 to 2018 and as Chief Compliance Officer at MicroPort Orthopedics from 2014 to 2016. From 2010 to 2013, Mr. Knighton served in senior compliance roles of increasing responsibility at Wright Medical Technology, holding the titles of Director of Compliance, Sr. Director of Compliance Operations and Interim Chief Compliance Officer. From 2007 to 2010, Mr. Knighton served as Director at King Pharmaceuticals (2007-2010). Earlier in his career, Mr. Knighton served in Life Science Legal and Compliance positions at Solvay Pharmaceuticals and as a Consultant on the Life Science Compliance team at Ernst and Young, LLP. Mr. Knighton has designed and implemented multiple compliance programs in complex situations and has also conducted a number of business development diligence, audit and investigation projects related to complex matters facing global life science companies. Mr. Knighton received his BS in Accountancy from Villanova University and his Doctor of Law from Emory University School of Law. He is a member of the State Bar of Georgia.

Mitchell L. Krassan has served as Chief Strategy & Performance Officer of our company since October 2011. From April 2010 to October 2011, Mr. Krassan served as Chief Strategy and Performance Officer of VitaMed. From September 2010 to June 2011, Mr. Krassan serves as our Chief Financial Officer. Mr. Krassan was a partner with EquiMark Limited, a private investment partnership, from 1997 to 2010. From November 1994 to July 1997, Mr. Krassan served as Chief Financial Officer and Chief Operating Officer of The Reich Group/Telespectrum Worldwide, a fully integrated direct marketing firm that provided clients expertise in market research and analysis, strategic planning, marketing, creative, and production services, telemarketing and database development. Mr. Krassan earned a B.S. in Accounting from the University of Maryland, received his certification as a CPA in the state of Maryland, and earned his M.B.A. in Management from New York University.

Adam Miller has served as Chief Information Officer of our company since March 2018. Mr. Miller has more than 16 years of experience in the information technology field, including more than 13 years

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specifically in healthcare IT. Prior to becoming CIO, Mr. Miller served as Vice President of Information Technology at TherapeuticsMD and has led our information technology department since May 2011. Mr. Miller has been responsible for all aspects of IT including governance and planning, IT solutions management and development, infrastructure, security, and operations. Before joining TherapeuticsMD, Mr. Miller was a consultant for Quilogy, a healthcare-focused Microsoft Gold Partner consulting firm. While at Quilogy, Mr. Miller spent time on projects for Kindred Healthcare, the University of Kentucky, and Microsoft filling various roles in project management, development, business analysis, administration, and training. Mr. Miller has also held various IT-related roles with Healthcare Recoveries, Louisville Gas & Electric, and Brown-Forman. Mr. Miller holds a B.S.B.A. in Computer Information Systems with a Concentration in Information Security from the University of Louisville’s College of Business. He is also an active member in the South Florida information technology community.

Dr. Sebastian Mirkin has served as Chief Medical Officer of our company since November 2013. Dr. Mirkin has more than 20 years of experience and leadership in clinical development and medical affairs in women’s health in global pharmaceutical companies. From October 2009 to November 2013, Dr. Sebastian was Clinical Lead and Global Clinical Lead of Women’s Health, Clinical Research at Pfizer. From October 2005 to October 2009, he was Director and Senior Director, Clinical Research, Women’s Health at Wyeth, and from October 2004 to October 2005 he was Global Lead Medical Services, Women’s Health at Organon. Dr. Mirkin oversaw the development and successful marketing authorization of several novel medicines in the United States, Europe, and Japan. Dr. Mirkin holds a Doctor in Medicine degree from National University, Argentina. Trained in Obstetrics/Gynecology, Dr. Mirkin completed his fellowship in Reproductive Medicine at The Jones Institute of Reproductive Medicine in Norfolk, Virginia.

Bharat Warrier has served as our Chief Manufacturing Officer of our company since December 2018. Mr. Warrier previously served as our Vice President of Manufacturing and Product Development from January 2017 to December 2018, our Senior Director of Manufacturing and Product Development from January 2016 to January 2017 and our Director of Technical Operations from December 2014 to January 2016. He has been the functional lead on several FDA submissions while also spearheading the scale-up and commercial manufacturing of products--both products—both in-house and at contract manufacturing facilities. Prior to joining TherapeuticsMD, Mr. Warrier held positions at Valeant Pharmaceuticals, Medicis Pharmaceuticals, Novartis Consumer Health, and Morton Grove Pharmaceuticals. He has more than 15 years of pharmaceutical experience in the areas of manufacturing, technical services, formulation, and process development. Mr. Warrier earned a Bachelor of Pharmacy degree from Sri Ramachandra University, India, an M.S. degree in Pharmaceutical Sciences from the University of Missouri - Missouri—Kansas City, and a Master’s Certificate in Regulatory Affairs and Quality Assurance from Purdue University.

CORPORATE GOVERNANCE

Director Independence

Since October 9, 2017, our common stock has been listed on the Nasdaq Global Select Market of the Nasdaq Stock Market LLC, or Nasdaq, under the symbol “TXMD.” From April 23, 2013 to October 6, 2017, our common stock was listed on the NYSE American under the symbol “TXMD.” Under the rules of Nasdaq, independent directors must comprise a majority of a listed company’s board of directors.

Our Board of Directors has affirmatively determined, after considering all the relevant facts and circumstances, that each of Dr. Naughton, Ms. Ling and Messrs. Thompson, Bisaro, Carroll, Collins, Musing and Russell, is an independent director, that Mr. Nicholas Segal was an independent director prior to his resignation in March 2020, and that Jane F. Barlow, M.D., M.B.A, M.P.H. and Robert V. LaPenta, Jr. were independent directors prior to their resignations in April 2020, as “independence” is defined under the applicable rules and regulations of the SEC and the listing standards of Nasdaq, and does not have a relationship with us (either directly or as a partner, stockholder, or officer of an organization that has a relationship with us) that would interfere with their exercise of independent judgment in carrying out their responsibilities as directors. Accordingly, a majority of our directors are independent, as required under the applicable Nasdaq rules. Mr. Finizio, our Chief Executive Officer, is not considered an independent director because of his executive position with our company. Likewise, Messrs.Mr. Milligan and Dr. Bernick were not considered independent directors prior to their resignations in March 2020 because of their executive position and other employment relationship, respectively, with our company. There are no family relationships among any of our directors or officers.

Committee Charters, Corporate Governance, and Code of Ethics

Our Board of Directors has adopted charters for the Audit, Compensation, and Nominating and Corporate Governance Committees describing the authority and responsibilities delegated to each committee by our Board of Directors. Our Board of Directors has also adopted Corporate Governance Guidelines, a Code of Conduct and Ethics, and a Code of Ethics for the Chief Executive Officer and senior financial officers of our company, including our Chief Financial Officer and principal accounting officer. We post on our website, atwww.therapeuticsmd.com, the charters of our Audit, Compensation, and Nominating and Corporate Governance Committees; our Corporate Governance Guidelines, Code of Conduct and Ethics, and Code of Ethics for the Chief Executive Officer and senior financial officers, and any amendments or waivers thereto; and any other corporate governance materials contemplated by the SEC or Nasdaq. These documents are also available in print to any stockholder requesting a copy in writing from our corporate secretary at our executive offices set forth in this proxy statement.

Executive Sessions

We regularly schedule executive sessions in which non-employee directors will meet without the presence or participation of management, with at least one of such sessions including only independent directors. Mr. Thompson, as the Chairman of our Board of Directors, chairs the executive sessions.

Board Committees

Our Board of Directors has an Audit Committee, a Compensation Committee, and a Nominating and Corporate Governance Committee, each consisting entirely of independent directors.

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Audit Committee

Board’s Role in Risk Oversight

Risk is inherent in every business. As is the case in virtually all businesses, we face a number of risks, including operational, economic, financial, legal, regulatory, and competitive risks. Our management is responsible for the day-to-day management of the risks we face. Our Board of Directors, as a whole and through its committees, has responsibility for the oversight of risk management.

Our Board of Directors’ involvement in our business strategy and strategic plans plays a key role in its oversight of risk management, its assessment of management’s risk appetite, and its determination of the appropriate level of enterprise risk. Our Board of Directors receives updates at least quarterly from senior management and periodically from outside advisors regarding the various risks we face, including operational, economic, financial, legal, regulatory, and competitive risks. Our Board of Directors also reviews the various risks we identify in our filings with the SEC as well as risks relating to various specific developments, such as debt and equity issuances and product introductions.

The committees of our Board of Directors assist our Board of Directors in fulfilling its oversight role in certain areas of risks. Pursuant to its charter, the Audit Committee oversees the financial and reporting processes of our company and the audit of the financial statements of our company and provides assistance to our Board of Directors with respect to the oversight and integrity of the financial statements of our company, our company’s compliance with legal and regulatory matters, the independent auditor’s qualification and independence, and the performance of our independent auditor. The Audit Committee also receives reports from our Chief Compliance Officer regarding our compliance program and our Chief Information Officer regarding our cybersecurity and information technology programs. The Compensation Committee considers the risks that our compensation policies and practices may have in attracting, retaining, and motivating valued employees and endeavors to assure that it is not reasonably likely that our compensation plans and policies would have a material adverse effect on our company. Our Nominating and Corporate Governance Committee oversees governance-related risks, such as director independence, conflicts of interests, and management succession planning. In addition, our Chief Compliance Officer reports in specific instances to the Chair of the Audit Committee. This division of responsibilities is the most effective approach for addressing the risks facing the company, and the company’s Board leadership structure supports this approach.

BOARD OF DIRECTORS   Our Board of Directors’ involvement in our business strategy and strategic plans plays a key role in its oversight of risk management, its assessment of management’s risk appetite, and its determination of the appropriate level of enterprise risk. Our Board of Directors receives updates at least quarterly from senior management and periodically from outside advisors regarding the various risks we face, including operational, cybersecurity and information technology, economic, financial, legal, regulatory, and competitive risks. Our Board of Directors also reviews the various risks we identify in our filings with the SEC as well as risks relating to various specific developments, such as debt and equity issuances and product introductions. The committees of our Board of Directors assist our Board of Directors in fulfilling its oversight role in certain areas of risks.

Audit Committee

Compensation Committee

Nominating and Corporate Governance Committee

The Audit Committee oversees the financial and reporting processes of our company and the audit of the financial statements of our company and provides assistance to our Board of Directors with respect to the oversight and integrity of the financial statements of our company, our company’s compliance with legal and regulatory matters, the independent auditor’s qualification and independence, and the performance of our independent auditor. The Audit Committee also receives reports from our Chief Compliance Officer regarding our compliance program and our Chief Information Officer regarding our cybersecurity and information technology programs.

The Compensation Committee considers the risks that our compensation policies and practices may have in attracting, retaining, and motivating valued employees and endeavors to assure that it is not reasonably likely that our compensation plans and policies would create undue risk or have a material adverse effect on our company.

Our Nominating and Corporate Governance Committee oversees governance-related risks, such as director independence, conflicts of interests, and management succession planning. In addition, our Chief Compliance Officer reports in specific instances to the Chair of the Audit Committee. This division of responsibilities is the most effective approach for addressing the risks facing the company, and the company’s Board leadership structure supports this approach.

Board Diversity

We seek diversity in experience, viewpoint, education, skill, and other individual qualities and attributes to be represented on our Board of Directors. We believe directors should have various qualifications, including individual character and integrity; business experience and leadership ability; strategic planning skills, ability, and experience; requisite knowledge of our industry and finance, accounting, and legal matters; communications and interpersonal skills; and the ability and willingness to devote time to our company. We also believe the skill sets, backgrounds, and qualifications of our

directors, taken as a whole, should provide a significant mix of diversity in personal and professional experience, background, viewpoints, perspectives, knowledge, and abilities. Nominees are not to be discriminated against on the basis of race, religion, national origin, sex, sexual orientation, disability, or any other basis prohibited by law. The assessment of directors is made in the context of the perceived needs of our Board of Directors from time to time.

All of our directors have held high-level positions in business or professional service firms and have experience in dealing with complex issues. We believe that all of our directors are individuals of high

character and integrity, are able to work well with others, and have committed to devote sufficient time to the business and affairs of our company. In addition to these attributes, the description of each director’s background sets forth above indicates the specific experience, qualifications, and skills necessary to conclude that each individual should continue to serve as a director of our company.

Board Leadership Structure

We believe that effective board leadership structure depends on the experience, skills, and personal interaction among persons in leadership roles as well as the needs of our company at any point in time. We currently maintain separate roles between the Chief Executive Officer and Chairman of the Board of Directors in recognition of the differences between the two responsibilities. Our Chief Executive Officer is responsible for setting our strategic direction and day-to-day leadership and performance of our company. The Chairman of the Board of Directors provides input to the Chief Executive Officer, sets the agenda for board meetings, and presides over meetings of the full Board of Directors as well as executive sessions of our Board of Directors. Our Board of Directors believes that our current leadership structure provides the most effective leadership model for our company, as it promotes balance between the Board of Directors’ independent authority to oversee our business and the Chief Executive Officer and his management team, which manage the business on a day-to-day basis.

Compensation Committee Interlocks and Insider Participation

During our fiscal year ended December 31, 2019, Dr. Barlow2020, Ms. Ling and Messrs. Collins, Thompson,Musing, and Carroll served as members of the Compensation Committee.

Dr. Barlow served as a member of the Compensation Committee until her resignation as a member of the Board of Directors in April 2020 and Mr. Thompson served as a member of the Compensation Committee in 2020 through June 2020.

None of Ms. Ling, Dr. Barlow or Messrs. Collins, Thompson,Musing, Carroll or CarrollThompson have been at any time one of our officers or employees or had any relationship with us that requires disclosure under Item 404 of Regulation S-K under the Securities Exchange Act.

Act of 1934, as amended (the “Exchange Act”).

During the fiscal year ended December 31, 2019,2020, none of our executive officers served on the compensation committee or board of directors of any entity whose executive officers serve as a member of our Board of Directors or Compensation Committee.

Compensation Recovery Policy

Currently, we have not implemented a policy regarding retroactive adjustments to any cash or stock-based incentive compensation paid to our executive officers and other employees where the payments were predicated upon the achievement of financial results that were subsequently the subject of a financial restatement. We intend to adopt a general compensation recovery, or clawback, policy covering our annual and long-term incentive award plans and arrangements after the SEC adopts final rules implementing the requirement of Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or the Dodd-Frank Act. Our 2019 Stock Incentive Plan, or the 2019 Plan, provides that awards granted under the 2019 Plan are subject to clawback if we are required to prepare an accounting restatement due to material noncompliance as a result of misconduct with any financial reporting requirement under the federal securities laws and the forfeiture provisions of the Sarbanes-Oxley Act of 2002.(the “Dodd-Frank Act”).

Anti-Hedging and Anti-Pledging Policy

In April 2020, the Board of Directors amended the company’s Code of Conduct and Ethics to include a policy regarding hedging and pledging transactions. Pursuant to the policy, directors, officers, and employees are prohibited from: (1) directly or indirectly engaging in any hedging transactions with respect to any directly or indirectly owned securities of the company, which includes the purchase of any financial instrument (including puts, calls, equity swaps, forward contracts, collars , exchange funds or other derivative securities) on an exchange or in any other market in order to hedge or offset any decrease in the market value of such securities; (2) engaging in short sale transactions or forward sale transactions or any short-term or speculative transactions in the company’s securities or in other transactions in the company’s securities that may lead to inadvertent violations of insider trading

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laws; and (3) pledging securities of the company as collateral for a loan or otherwise using securities of the company to secure a debt, including through the use of traditional margin accounts with a broker.

Board and Committee Meetings

Our Board of Directors held a total of fivesix meetings during the fiscal year ended December 31, 2019.2020. No director attended fewer than 75% of the aggregate of (i) the total number of meetings of our Board of Directors and (ii) the total number of meetings held by all committees of our Board of Directors on which such director was a member.

During the fiscal year ended December 31, 2019,2020, the Audit Committee held six formal meetings;five meetings, the Compensation Committee held four meetings;eight meetings and the Nominating and Corporate Governance Committee held twofour meetings.

Annual Meeting Attendance

We encourage our directors to attend each annual meeting of stockholders. To that end, we have scheduled a meeting of our Board of Directors on the same day as our annual meeting of stockholders. All of our directors virtually attended the annual meeting of stockholders last year.

Communications with Directors

Stockholders may communicate with our Board of Directors or specific members of our Board of Directors, including our independent directors and the members of our various board committees, by submitting a letter addressed to our Board of Directors of TherapeuticsMD, Inc. at the address set forth in this proxy statement c/o any specified individual director or directors. Any such letters are forwarded to the indicated directors. In addition, at the request of the Board of Directors, communications that do not directly relate to our Board of Directors’ duties and responsibilities as directors will be excluded from distribution. Such excluded items include, among others, “spam,” advertisements, mass mailings, form letters, and email campaigns that involve unduly large numbers of similar communications; solicitations for goods, services, employment or contributions; and surveys. Additionally, communications that appear to be unduly hostile, intimidating, threatening, illegal or similarly inappropriate will also be screened for omission. Any excluded communication will be made available to any director upon his or her request.

ESG Overview

Our mission is to advance women’s health and to raise awareness of women’s unique healthcare needs and challenges. We are committed to ensuring access to care and to serving patients in underserved and underrepresented communities. We strive to operate in an ethical manner and to uphold high standards of sustainability.

During board meetings in 2020, TherapeuticsMD’s Chairman and Board of Directors have made ESG a more prominent issue and instructed the company to expand efforts in these areas, in addition to the advances already made through the end of 2020. The following is a summary of our ESG efforts through the end of 2020:

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COMPENSATION DISCUSSION AND ANALYSIS

Background

Our Board of Directors has appointed a Compensation Committee, consisting of independent members of our Board of Directors, to review and approve corporate goals and objectives relevant to the compensation of our Chief Executive Officer, or CEO, evaluate the performance of our CEO on achieving those goals and objectives, and determine or recommend to our Board of Directors the compensation of our CEO based inon this evaluation. The Compensation Committee also recommends to our Board of Directors, or as directed by our Board of Directors, determines and approves, the compensation of our other executive officers. The Compensation Committee makes every effort to ensure our executive compensation program is consistent with our values and is aligned with our business strategy and corporate goals.

For 2019,2020, our named executive officers, or NEOs, were:

	●	John C.K. Milligan, IV – President and Secretary		Edward Borkowski Executive Vice President

As a smaller reporting company, the rules of the U.S. Securities and Exchange Commission permit us to report only three NEOs and to omit the Compensation Discussion and Analysis section. However, we have chosen to provide this Compensation Discussion and Analysis to provide more information about our compensation program to our stockholders. Each of the NEOs’ pay outcomes are discussed below in the context of our executive pay philosophy and the achievement of key goals and objectives.

Executive Pay Philosophy

We maintain a pay for performance philosophy driven by a pay mix emphasizing variable and performance-based pay tied to corporate performance results and our stock price. We believe this philosophy supports our company’s business strategy of developing and commercializing innovative new products targeted exclusively for women to the benefit of our company’s current stockholders and future customers.

The three core elements of our executive compensation program each serve a different purpose:

We discuss below our performance outcomes and related compensation decisions for 2019.2020.

Executive Summary

Executive Summary

20192020 Performance

After the U.S. Food and Drug Administration, or FDA, approval in 2018 of our products IMVEXXY®IMVEXXY^®, BIJUVA®BIJUVA^®, and ANNOVERA®ANNOVERA^® and the expansion of our commercial operations, 20192020 marked the firstsecond full year in which we transitioned the primary focus of our corporate performance goals and objectives to a balance of growth- and earnings-related financial metrics with strategic milestones. 2020 was an important milestone for the company. With the launch of ANNOVERA in the midst of the COVID-19 pandemic, the company now had three major products on the market. The Compensation Committee establishedCOVID-19 pandemic, however, greatly affected the following major goals and objectives for 2019:company’s performance throughout most of 2020, including causing us to pause the launch of ANNOVERA from March to July, as we further discuss below.

Based on our company’s achievements in relation to our corporate goals set at the beginning of 2019, our Compensation Committee and our Board of Directors determined that we achieved 100% of our goals and objectives for 2019.

20192020 Pay Decisions

During 2019,2020, we continued to maintainmaintained a disciplined executive compensation program whichdesigned with the intent of providing incentives necessary to retaining key employees to avoid further disruption to the company’s objectives and programs in 2020. The executive compensation program included the following:

		●	No Salary Increases:Maintained NEO salaries at 2018 levels (which were kept constant with 2017 levels).				27

The Compensation Committee will continue to monitor our executive compensation program and consider further changes as our business continues to evolve in the future, including the continued focus on more financial metrics in our annual incentive plan as we expand our commercial operations. The Compensation Committee anticipates the annual incentive plan transition will take place over the next several years as we move through a process of fully commercializing each of our approved pharmaceutical products.

Results of Say-on-Pay Vote

Since we conducted our first stockholder advisory vote on the compensation of our NEOs (commonly referred to as a “say-on-pay”“say-on-pay” vote) in August 2013, we have had overwhelming support from our stockholders, achieving more than 90% support in each of the six annual votes from 2013 through 2019.

2019 and over 86% support in 2020.

Consequently, the Compensation Committee and our Board of Directors hashave not made significant changes to our executive compensation program, or their decision-making process, in recent years as a result of the stockholder say-on-pay vote. However, as noted, the Compensation Committee has taken steps to refocus our executive compensation incentive programs to be more financially oriented as we complete the transition from a drug development company to a company undertaking the commercialization of its FDA-approved pharmaceutical products. The Compensation Committee will consider the results of future say-on-pay votes as our compensation philosophy continues to evolve and compensation decisions are made each year.

Role of the Compensation Committee and Chief Executive Officer

The Compensation Committee determines, or recommends to our Board of Directors for determination, the compensation of our CEO and our other executive officers. At least annually, the Compensation Committee evaluates the performance of our CEO and determines, or recommends to our Board of Directors for determination, the compensation for our CEO in the context of the accomplishment of the goals and objectives of our executive compensation program for the year. The Compensation Committee and our Board of Directors, together with our CEO, annually assess the performance of our other NEOs. Based on the determinations of the Compensation Committee and our Board of Directors after receiving recommendations from our CEO, when applicable, the Compensation Committee and our Board of Directors determine the compensation for our other NEOs. The Compensation Committee may also receive input from independent compensation consultants that it may engage from time to time.

At the request of the Compensation Committee, our CEO generally attends a portion of some of our Compensation Committee meetings. This enables the Compensation Committee to review the corporate and individual goals the CEO regards as important to achieve our overall success. The Compensation Committee also requests the CEO to assess the performance against the goals and objectives for our other NEOs. The Compensation Committee makes all decisions regarding individual and corporate goals and objectives. Our CEO does not attend any portion of meetings at which his own compensation is determined.

Compensation Surveys and Compensation Consultants

The Compensation Committee periodically reviews compensation data representative of similar companies to determine appropriate compensation levels the Compensation Committee believes will enable us to attract executives from other companies and to retain and motivate our executives. The Compensation Committee uses peer group information and broader life sciences industry survey data as frames of reference but does not specifically benchmark or target our compensation levels against any desired targeted level of competitiveness.

From time to time, we retain the services of independent compensation consultants to review a wide variety of factors relevant to executive compensation, trends in executive compensation, and the

identification of relevant peer companies. When engaged by the Compensation Committee, our compensation consultants report directly to the Compensation Committee and the Compensation Committee makes all determinations regarding the engagement, fees, and services of our compensation consultants.

During 2019, the Compensation Committee retained PayGovernance LLC, or PayGovernance, as its independent compensation consultant to provide executive compensation services to the Compensation Committee, primarily for compensation decisions related to 2019.2020. PayGovernance analyzed and proposed changes to our company’s peer group, provided information with respect to market competitive pay levels for executives and outside directors, and assisted the Compensation Committee with the refocus of our executive compensation program discussed above in the Executive Summary.

In September 2020, the Compensation Committee retained Meridian Compensation Partners, LLC, or Meridian, as its new independent compensation consultant, primarily for compensation decisions related to 2020 and to assist the Compensation Committee in the development of the stock option exchange program and amendment to the 2019 Stock Incentive Plan included as Proposals Three and Four in this proxy statement.

In accordance with the requirements of applicable SEC rules and the listing standards of Nasdaq, the Compensation Committee has reviewed the independence of both PayGovernance and Meridian and has determined that both PayGovernance meetsand Meridian meet the independence criteria established under such rules and listing standards.

Compensation Elements

Salary

We set salaries at a level sufficient to attract and retain our NEOs in the context of our executives’ opportunity to receive significant incentive compensation if they can achieve pre-determined performance goals and objectives. Salaries for NEOs are established based on an executive’s position, responsibilities, skills, and experience. In determining salaries, we account for individual performance and contributions, future potential, competitive salary levels for comparable positions at other companies, salary levels relative to other positions within our company, and corporate needs. The evaluation of the Compensation Committee and our Board of Directors of the foregoing factors is subjective, and the Compensation Committee and our Board of Directors do not assign a particular weight to any factor. Salaries represent a minority of our NEOs’ total compensation opportunity in furtherance of our pay-for-performance philosophy, which places greater emphasis on the combined value of our annual incentives and stock-based awards.

Annual Incentive Compensation

Annual incentive compensation reflects our pay-for-performance philosophy. We generally adhere to the following process in determining annual incentive compensation:

●

Our Board of Directors approves our annual operating plan, which forms the basis for the corporate performance measures and individual performance goals and objectives for our annual performance-based incentive compensation. The Compensation Committee reviews and sets the framework for the annual performance-based incentive compensation for the year, including: Confirming the plan participants; Establishing a target annual incentive opportunity for each participating NEO; and Reviewing the corporate performance measures for the fiscal year. In 2020, it was determined that, given the COVID-19 pandemic, focus on the corporate performance measures were paramount and the application of individual performance objectives was suspended in 2020. 29   ● The Compensation Committee reviews and sets the framework for the annual performance-based incentive compensation for the year, including: o Confirming the plan participants; o Establishing a target annual incentive opportunity for each participating NEO; and o Reviewing the corporate performance measures and individual performance objectives for the fiscal year. We may establish objective performance criteria when setting performance goals for the incentive compensation program for a particular year or may use subjective factors, or a combination of these factors. These performance criteria may include a wide range of factors, including:   ● Reaching sales goals for our FDA-approved products; Reaching sales goals for our FDA-approved products;   ● Increasing cash flows, earnings from operations or other financial metrics; Increasing cash flows, earnings from operations, or other financial metrics;   ● Product launches; Product launches;   ● Licensing agreements; and Licensing agreements; and   ● Pre-natal vitamins sales. Pre-natal vitamins sales. The performance criteria may vary on a year-to-year and executive-by-executive basis depending on the goals then deemed important for our company and the executive officer and may be established for all or a portion of a year or for multiple years. We attempt to set each of our performance goals at a level that can be realistically achieved but is challenging and consistent with achieving the desired corporate goal. In establishing performance goals, the Compensation Committee and our Board of Directors also may take into consideration prevailing as well as expected future economic conditions affecting our company’s business and industry. As noted above, we anticipate the annual incentive plan performance goals and objectives will continue to transition toward sales goals and increasing cash flow and earnings as we continue the process of commercializing our FDA-approved pharmaceutical products. Stock-Based Awards We strongly believe in using our common stock to tie executive rewards directly to our long-term success and increases in stockholder value. Grants of stock-based awards to our NEOs enable them to benefit from aensures strong and significant position inalignment with our common stock.stockholders. We have no ongoing policy for allocating among different types of stock-based awards and maintain the flexibility to grant each type of stock-based award. Among other factors, the amount and type of stock-based awards granted to our NEOs account for awards previously granted and the equity held by each individual NEO. While we have the flexibility to grant each type of stock award, we traditionally used stock options during the development stage of our products, but have transitioned to predominantly using a combination of time-based and performance-based restricted stock units beginning with the grants for our 2020 fiscal year. grants. Stock based compensation typically vests over multiple years to encourage executive retention and emphasize long-term performance and may also include specific performance metrics to be earned. Our Board of Directors typically ratifies Compensation Committee grants of stock-based awards at regularly scheduled Board of Directors meetings after reviewing allocations recommended and approved by the Compensation Committee following advice from the Compensation Committee’s compensation consultants,consultant, an analysis of peer companies, specific goals to be achieved, and a wide range of other factors. Other Benefits NEOs are eligible to participate in benefit programs available to all full-time employees. These programs include medical insurance, a qualified retirement program allowed under Section 401(k) of the Internal Revenue Code, as amended or the Code,(the “Code”), and life insurance coverage. Policies for the Pricing and Timing of Stock-Based Grants   Our Board of Directors sets the price of all stock-based awards at the closing price of our stock on the date of grant on Nasdaq. Our Board of Directors typically ratifies Compensation Committee grants of stock-based compensation at regularly scheduled meetings each year. Employment Agreements   Each of our NEOs is a party to an employment agreement with us, which provides for salaries, annual short-term cash-based incentive compensation, and stock option grants. The employment agreements for each of Messrs. Finizio, Milligan, and CartwrightBorkowski provide for benefits in the event of certain termination situations, including changes in control of our company. These arrangements have 30 2021 PROXY STATEMENT no effect on our ongoing compensation arrangements absent asuch executive termination event or change in control or other executive termination event.control. See “Executive Compensation — Employment Agreements.” Fiscal 20192020 Compensation   Use of Market Data In determining the compensation of our NEOs, we consider compensation levels of executives at similar companies and other competitive factors to enable us to attract executives from other companies and retain and motivate our executives. We periodically review compensation levels of a peer group of companies and consider broader life sciences industry pay survey data. We use peer group and other information as a point of reference, but do not benchmark or target our compensation levels to specific competitive positioning against our peer group or other competitive datapoints. In 2018, the Compensation Committee engaged PayGovernance to prepare a study of the executive officer compensation practices of a group of peer companies. For 20192020 pay change considerations, in late 2018 PayGovernance developed a group of 2119 similarly situated life science companies with, at that time, a median market capitalization of $1.6 billion and median number of employees of 241.companies. This 20192020 peer group was used by the Compensation Committee and our Board of Directors when establishing our 20192020 executive compensation program for our NEOs, along with information from the Radford Global Life Sciences Survey. The 20192020 Peer Group consisted of the following companies:   ●           Acorda Therapeutics, Inc. ●• Aerie Pharmaceuticals, Inc. ● • AMAG Pharmaceuticals, Inc. ●          Amarin Corporation plc ●          Arena Pharmaceuticals, Inc. ●          Array BioPharma, Inc. ●          Blueprint Medicines Corporation ●• Corcept Therapeutics Inc. ●          Deciphera Pharmaceuticals, • Cytokinetics, Incorporated • Demira, Inc. ●          Dynavax Technologies Corporation ●• Epizyme, Inc. ● • Halozyme Therapeutics, Inc. ●          ImmunoGen, Inc. ●• Insmed Incorporated • Ironwood Pharmaceuticals, Inc.Inc ● • Karyopharm Therapeutics, Inc. ● • Lexicon Pharmaceuticals, Inc. ●          MacroGenics, Inc. ●• Omeros Corporation ●          Spark • Potorola Pharmaceuticals, Inc. • PTC Therapeutics, Inc. ● • Radius Health, Inc. • Retrophin, Inc. • Stemline Pharmaceuticals, Inc. • Supernus Pharmaceuticals, Inc. ● • Theravance Biopharma, Inc. The 20192020 peer group was based on the following criteria: Industry: Companies competing in the biotech and pharmaceutical industries. industries with further focus on women’s health companies. Phase of Development: Mix of commercial and late-stage clinical (product candidates in either phase 2 or phase 3) pre-commercial companies with multiple products near commercialization stage, reflecting our increasing progress toward commercializing our FDA-approved pharmaceutical products. Market Capitalization: Companies with a market capitalization between $650$329 million and $4.7$2.5 billion with a median market capitalization of $1.6 billion, compared to our then-current market capitalization of $1.5 billion (market capitalization was evaluated as of August 31, 2018). $1.0 billion. Number of Employees: Companies with between 13196 and 762515 employees, with a median number of employees of 241, compared to our then-current 173 employees. 332. The 20192020 peer group development process started by eliminatingremoving six companies from the 20182019 peer group primarily due to theirthe fact that they were pre-commercial companies and no longer reflected our increasing progress towards commercialization (Arena Pharmaceuticals, Blueprint Medicines, Deciphera Pharmaceuticals, Dynavax Technologies, ImmunoGen, and MacroGenics, Inc.), removing two companies no longer as relevant for our executive pay benchmarking purposes following merger and acquisition activity (Array BioPharma and Spark Therapeutics, Inc.), and removing two companies that had market capitalization being outside ourcaps below and above the desired range:range (Acorda Therapeutics, Inc. and Amarin Corporation plc, respectively).   ● Four had market capitalizations below the low end of our range (Achillion Pharmaceuticals, Inc., Agenus, Inc., Assertio Therapeutics (fka Depomed), Inc. and Cytokinetics, Inc.) 31   ● Two had market capitalizations above the high end of our range (Nektar Therapeutics and Sarepta Therapeutics, Inc.) We added the following seveneight companies, all of which met the majority of our criteria as set forth above:   ●          Aerie• Cytokinetics, Incorporated • Demira, Inc. • Insmed Incorporated • Portola Pharmaceuticals, Inc. ●          Arena • PTC Therapeutics, Inc. • Radius Health, Inc. • Retrophin, Inc. • Stemline Pharmaceuticals, Inc. ●          Blueprint Medicines Corporation  ●          Deciphera Pharmaceuticals, Inc.  ●          Epizyme, Inc.  ●          ImmunoGen, Inc.  ●          Karyopharm Therapeutics, Inc.  Salary Our NEOs received salaries for 20192020 in accordance with their respective 20192020 compensation plans as recommended by the Compensation Committee and approved by our Board of Directors. As is our practice, we set salaries for our NEOs at the beginning of the year as follows:   Executive Officer   Annualized Fiscal 2018 Salary   Annualized Fiscal 2019 Salary   % Increase Robert G. Finizio   $ 600,000     $ 600,000       0 % John C.K. Milligan, IV   $ 450,000     $ 450,000       0 % Daniel A. Cartwright   $ 375,000     $ 375,000       0 % Mitchell L. Krassan   $ 360,000     $ 360,000       0 % Michael Donegan   $ 290,000     $ 290,000       0 % Executive Officer    Annualized Fiscal 2019 Salary      Annualized Fiscal 2020 Salary      % Increase         Robert G. Finizio    $ 600,000      $ 600,000        0%     John C.K. Milligan, IV    $ 450,000      $ 450,000        0%     Edward Borkowski      N/A      $ 430,000        N/A           During 2019,2020, the salaries of all NEOsMessrs. Finizio and Milligan remained the same as their respective 2019, 2018 and 2017 salaries. Mr. Borkowski became Executive Vice President, Operations, effective January 1, 2020. Annual Performance-Based Incentive Plan We use annual performance-based incentive compensation to motivate our NEOs to achieve our annual objectives as set forth in our Board-approved annual operating plan, while making progress towards and supporting our longer-term strategic goals. In addition,Historically, the Compensation Committee and our Board of Directors establishalso established individual performance objectives for each of our NEOs. However, given the unprecedented challenges resulting from the COVID-19 pandemic, the Compensation Committee and Board of Directors determined that the full and complete alignment of the executive team was needed to achieve the 2020 corporate performance measures; thus, we suspended the application of the individual performance goals for 2020. The payment of 2020 annual incentives is based upon the achievement of one or more corporate and individual performance objectives. TargetOur annual cash incentive plan is tied to important short-term business goals as an incentive to attract and retain high quality personnel, as well as motivate our employee base to achieve annual goals. Annual Incentive Opportunities The Compensation Committee and our Board of Directors determined the target annual incentive opportunitiescash bonuses for each of our NEOs for fiscal 2019 should beare targeted at a percentage of each NEO’s salary. The target annual incentive opportunity established for each NEO for fiscal 2019 was as follows and all were identical to the target annual incentive opportunities for 2018: Executive Officer   Annualized Fiscal 2019 Salary   Target Annual Incentive Opportunity (as a percentage of salary)   Annualized Target Annual Incentive Opportunity (as a dollar amount) Robert G. Finizio   $ 600,000       100 %   $ 600,000   John C.K. Milligan, IV   $ 450,000       70 %   $ 315,000   Daniel A. Cartwright   $ 375,000       70 %   $ 262,500   Mitchell L. Krassan   $ 360,000       50 %   $ 180,000   Michael Donegan   $ 290,000       25 %   $ 72,500   In setting the target annual incentive opportunities for our NEOs,their base salaries, with actual payouts determined by the Compensation Committee, with consultation with the Chief Executive Officer for our other NEOs, based on their collective evaluation of 2020 company performance. In 2020, our annual cash incentive also served a secondary objective, which was to incentivize and our Boardretain the company’s management in the face of Directors exercised their judgment and considered several factors, including:significant COVID-19 headwinds. ● Our overall financial and operational results for the prior fiscal year; ● The prior performance of each NEO; ● Each NEO’s roles and responsibilities; ● Each NEO’s individual experience and skills; ● Competitive market practices for annual incentives; and ● For our NEOs other than our CEO, the recommendations of our CEO. Corporate Performance Measures   For fiscal 2019,2020, the Compensation Committee and our Board of Directors selected several components to measure performance that they believed best supported our annual operating plan and enhanced long-term value creation. As determined by the Compensation Committee and our Board of Directors, our NEOs were eligible to receive annual incentive compensation based on specific corporate performance measures for fiscal 2019.2020. The Compensation Committee and our Board of Directors set these target levels to be aggressive, yet achievable, with diligent effort during 2019.2020.   32 2021 PROXY STATEMENT The 2020 annual operating plan approved by our Board of Directors at the end of 2019 anticipated significant sales growth of our FDA-approved products during the year, with a launch of ANNOVERA early in the year and continued sales momentum generated from our menopause products, IMVEXXY and BIJUVA. However, beginning in March 2020 the COVID-19 pandemic and related shutdowns significantly affected our business and the sales projections included in our 2020 annual operating plan, primarily due to our sales force having limited access to healthcare professionals and our patients deferring visits to healthcare professionals in certain areas due to stay at home, quarantine and social distancing orders, and closures and restrictions on travel. The COVID-19 pandemic continued to affect sales of all of our products through the fourth quarter of 2020. We developed a comprehensive COVID-19 contingency plan designed to preserve the value of our investments in our sales and marketing infrastructure, protect our balance sheet during this period of market disruption, and meet the needs of our patients and prescribers. This contingency plan was designed to monitor the COVID-19 pandemic and adapt to the length of time that COVID-19 may impact our business. It was developed with the intention to conserve our financial resources during the COVID-19 pandemic. As part of this plan, among other things, we paused the planned full commercial launch of ANNOVERA in March 2020 and suspended marketing spend for IMVEXXY and BIJUVA. We reinitiated the full commercial launch of ANNOVERA in July 2020, when we observed that access to healthcare professionals had started to improve. While we currently believe that our COVID-19 contingency plan has the ability to mitigate the effect of the COVID-19 pandemic on our business, the severity of the impact of the COVID-19 pandemic on our business will depend on a number of factors, including, but not limited to, the duration and severity of the pandemic, the effectiveness of, and ability to widely distribute, the COVID-19 vaccine, the duration of stay-at-home, quarantine, and social distancing orders, the ability of our sales force to access healthcare professionals to promote our products, increases in unemployment (which could reduce access to commercial health insurance for our patients, thus limiting payer coverage for our products) and the impact of the pandemic on our global supply chain, all of which are uncertain and cannot be predicted. Notwithstanding the significant, unpredictable, and unprecedented effect that the COVID-19 pandemic had on the economy and our company, as part of our COVID-19 contingency plan we identified a variety of factors that we needed to address to successfully weather the COVID-19 pandemic, including: 1. Retaining our employee base, particularly our key employees. Our ability to compete in the highly competitive pharmaceutical industry depends in large part on our ability to attract and retain highly qualified managerial, scientific, and medical personnel. Many employees in our company are experienced pharmaceutical industry specialists and the only individual performing their respective specific roles, which increases the importance of continuing to incentivize those employees. The loss of the services of any of our executive officers or other key employees could potentially harm our business, operating results, and financial condition. 2. Reducing our operating expenses and cash burn. We reduced our operating expenses at the beginning of COVID-19 pandemic and continue to identify areas in which we can further reduce operating expenses in the future. These cost cuts and reductions included permanent cost savings, as well as the interim cessation of certain spending that may be restarted in future quarters. Total operating expenses for the second half of 2020, excluding non-cash items and performance-based retention incentives, met our target of $80 million. These operating expense reductions included the difficult decision to reduce our headcount by approximately 17%, and redirect our marketing spend to ANNOVERA and IMVEXXY, and deemphasize detailing of BIJUVA by our sales force. Additionally, we delayed incurring the full cost of the ANNOVERA launch in the early stages of pandemic, opting instead to incur those costs in the third quarter, when our sales representatives had better access to healthcare professionals. 3. Leveraging platforms designed to increase access to our products for women.COVID-19 accelerated the use of telehealth, online pharmacies, and retail pharmacies utilizing home delivery options. These are areas where we rapidly developed or deepened relationships with industry leaders and emerging technology companies, well positioning ourselves to capitalize on these 33 trends. For example, contraception is an important category within telehealth and since 2019 we have been working with leading online telehealth platforms that focus on directly prescribing and filling birth control to patients to expand access of ANNOVERA to patients. In addition, our vitaCare patient model assists patients in obtaining easy and convenient access to their prescriptions for products at a retail pharmacy of their choice, including via home delivery retail pharmacy options. We anticipate that home delivery pharmacy options will continue to be attractive to patients during and after the COVID-19 pandemic. In June 2020, the Compensation Committee and our Board of Directors adopted new corporate performance measures for fiscal 2019the 2020 annual cash incentive targets for management that were based on the ongoing market conditions of the COVID-19 pandemic and their corresponding weightsthe effects of our COVID-19 contingency plan, as opposed to our original corporate performance measures, which had been rendered obsolete in the early days of the pandemic. The new corporate performance measures were as follows:designed to incentivize our NEOs to continue to execute on our COVID-19 contingency plan and work diligently to preserve the trajectory of our product launches, which the Compensation Committee and our Board of Directors believed would drive long term value for our stockholders, whereas strictly adhering to unattainable corporate performance measures would not have had an incentivizing effect on our NEOs.   ● 2020 Corporate Performance Measures Weighting 2020 Performance Achieve product net revenue target rangefor 2020 of $27at least $62 million 40% The company achieved 2020 product net revenue for of $62.8 million Renegotiate quarterly minimum total product net revenue covenants in the company’s financing agreement 15% The quarterly minimum total product net revenue covenants in our financing agreement began in the fourth quarter of 2020. These quarterly covenants had been agreed to $33at the commencement of the financing agreement and did not reflect the effects of the COVID-19 pandemic on our business. During the third quarter of 2020, our NEOs, under the direction of our Board of Directors, renegotiated the first five quarters of the covenant to account for the then-anticipated effects of the pandemic on our business. The company complied with the renegotiated $20 million (25% weighting) (ifcovenant for the revenue is above or belowfourth quarter of 2020 and subsequently further negotiated the target range,covenants through maturity of the Compensation Committee will apply judgementfinancing agreement. Comply with the minimum cash covenant in the company’s financing agreement 15% Throughout fiscal 2020, the company maintained compliance with the minimum cash covenant in its financing agreement, which required a strong focus on financial discipline and operational agility by our NEOs and other senior management as the COVID-19 pandemic continued to setprogress and worsen at times. The company also opportunistically raised capital when necessary to support the continued launch of its FDA-approved products and negotiated a higher or lower bonus payouttemporary reduction of the minimum cash covenant for part of the fourth quarter of 2020, before returning to management, respectively);its prior level at fiscal year end.   ● Achieve EBITDA target 34 2021 PROXY STATEMENT Implement a new profit & loss tracking system for financial transparency and visibility across the company 15% In 2020, the company completed its evolution from a research and development organization to a commercial organization. As part of $(188)this process, the company developed and implemented a new profit & loss tracking system across the organization to track performance and spending with the goal of achieving an appropriate return on investment of capital spending, including our initiatives in sales and marketing for our FDA approved products. Meet or exceed our budgeted 2020 annual sales goal for ANNOVERA 15% Our corporate plans for 2020 originally called for prioritizing ANNOVERA as our lead FDA-approved product and commencing the full commercial launch of the product in the first quarter of the year. Given the importance of the launch to our overall 2020 goals, the Compensation Committee decided that 15% of our executives’ bonus opportunity should be based on meeting or exceeding our budgeted 2020 annual sales goal for ANNOVERA. At the outset of the COVID-19 pandemic, we paused the planned full commercial launch of ANNOVERA. Although our sales force continued to support ANNOVERA utilizing digital engagement tools and tactics and virtual detailing to remain engaged with prescribers, the lack of access to many healthcare professionals adversely affected our initial budgeted sales for ANNOVERA. As the pandemic continued and as we reinitiated the full commercial launch of ANNOVERA in July 2020 when access to healthcare professionals began to improve, the Audit Committee of our Board of Directors continued to refine our budgeted 2020 annual sales goal for ANNOVERA to reflect developments of the pandemic and changing access to healthcare professionals across the U.S. Given the extraordinary circumstances of the pandemic and the constantly changing marketplace in which the company’s executives were being asked to perform, the Compensation Committee believed that it was appropriate to use the budgeted 2020 annual sales goal for ANNOVERA, as refined by the Audit Committee, as the performance metric for our NEOs. Our 2020 ANNOVERA revenue of $19.6 million or more (25% weighting);exceeded the budgeted sales goal established by the Audit Committee.   ● Launch BIJUVA in the second quarter of 2019 (10% weighting); 35   ● Achieve the soft launch of ANNOVERA in the second half of 2019 (10% weighting); Target Annual Incentive Opportunities ● Out-license international rights for IMVEXXY and BIJUVA by the end of 2019 (10% weighting); ● Maintain vitamin sales of at least $8 million (10% weighting); and ● Improvement of the company’s exclusivity position during 2019 (10% weighting);   The Compensation Committee and our Board of Directors determined the target annual incentive opportunities for each of our NEOs for fiscal 2020 should be a percentage of each NEO’s salary. The target annual incentive opportunities established for each NEO for fiscal 2020 were as follows and were identical to the target annual incentive opportunities for 2020, except for Mr. Borkowski who joined our company effective January 1, 2020: Executive Officer    Annualized Fiscal 2020 Salary      Target Annual Incentive Opportunity (as a percentage of salary)     Annualized Target Annual Incentive Opportunity (as a dollar amount)   Robert G. Finizio    $ 600,000        100 %    $ 600,000   John C.K. Milligan, IV    $ 450,000        70 %    $ 315,000   Edward Borkowski    $ 430,000        85 %    $ 365,500   In setting the target annual incentive opportunities for our NEOs, the Compensation Committee and our Board of Directors considered several factors, including: Our overall financial and operational results for the prior fiscal year; The prior performance of each NEO; Each NEO’s roles and responsibilities; Each NEO’s individual experience and skills; Competitive market practices for annual incentives; and For our NEOs other than our CEO, the recommendations of our CEO. Individual Performance Objectives   In prior years, our CEO also developed and recommended to the Compensation Committee and our Board of Directors a series of individual performance objectives for our NEOs, which he deemed to be integral to the achievement of our annual operating plan. However, for purposes of the fiscal 20192020 annual performance-based incentive compensation, our CEO and the Compensation Committee determined that achieving our 20192020 corporate performance measures required the aligned performance of our entire executive team and that individual performance goals were not necessary for each of our NEOs for 2019.2020. Fiscal 20192020 Annual Incentive Decisions   The annual incentive compensation for each of our NEOs was determined based on an assessment by the Compensation Committee and our Board of Directors of success in achieving the corporate performance measures, after considering the recommendations of our CEO for NEOs other than himself. BasedFollowing fiscal 2020, the Compensation Committee determined that, based on boththe performance of our corporate performance forcompany and our NEOs during fiscal 2019, in which we2020 as described above, our NEOs met 100% of our corporate goals,performance measures, which were revised after our original corporate performance measures were rendered obsolete in the followingearly days of the pandemic, including successfully implementing our COVID-19 contingency plan that identified, among other things, the need to retain our employee base, particularly our key employees; reduce our operating expenses and cash burn; and leverage platforms designed to increase access to our products for women, especially in light of the launch of ANNOVERA and approved the below annual incentive payments were made to our NEOs for fiscal 2019. In making these decisions, the Compensation Committee also considered our CEO’s request to only receive one stock option for his 2019 equity award, as well as our CEO’s continued investment of after-tax dollars in our common stock.2020.   Executive Officer   Annualized Fiscal 2019 Salary   Target Annual Incentive Opportunity  (as a percentage of salary)   Total Cash Incentive Payments for Fiscal 2019   Percentage of Target Annual Incentive Opportunity       Annualized Fiscal 2020 Salary      Target Annual Incentive Opportunity (as a percentage of salary)   Total Cash Incentive Payments for Fiscal 2020      Percentage of Target Annual Incentive Opportunity   Robert G. Finizio   $ 600,000   100 %   $ 600,000   100 %    $ 600,000        100 %    $ 600,000        100 %  John C.K. Milligan, IV   $ 450,000   70 %   $ 315,000   100 %    $ 450,000        70 %    $ 315,000        100 %  Daniel A. Cartwright   $ 375,000   70 %   $ 262,500   100 % Mitchell L. Krassan   $ 360,000   50 %   $ 180,000   100 % Michael Donegan   $ 290,000   25 %   $ 72,500   100 % Edward Borkowski    $ 430,000        85 %    $ 365,000        100 %  36 2021 PROXY STATEMENT Our original corporate performance measures were either no longer relevant or were not achievable within the context of the pandemic environment. Had we not revised our corporate performance measures, our NEOs would have not met the original, obsolete performance measures or been able to earn annual incentive payments, which would have jeopardized our ability to motivate achievement relative to our new performance priorities and align compensation with execution against these priorities. Stock-Based Awards In early 2017, with the initialAs we transitioned from a research and development organization to a commercialization of several of our drug candidates anticipated to begin in the near future,organization, the Compensation Committee and our Board of Directors decided to move toward an approach to grant restricted stock option grants more consistentunits and performance stock units to better align our equity compensation practices with similarly situated companies, specifically providing for stock option grants to be made on an annual basis.those of our peer companies. The Compensation Committee and our Board of Directors believed that moving to such a practice would better support our company’s recruiting and retention needs for both NEOs and other executives, andas well as other employees, in the context of the upcomingour commercialization efforts. The following stock option grants were made on August 28, 2019in 2020 to our NEOs, each of which vests in equal annual installments over a period of three years from the date of grant:NEOs: Executive Officer    Date of Grant      Number of Restricted Stock Units Granted      Number of Performance Stock Units Granted      Number of Stock Options Granted   Robert G. Finizio      03/30/2020        475,000        475,000        —   Robert G. Finizio      11/24/2020 (1)       1        —        —   John C.K. Milligan, IV      03/30/2020        310,500        310,500        —   John C.K. Milligan, IV      11/24/2020 (1)       360,000        —        —   Edward Borkowski      01/28/2020 (1)       1,000,000        —        —   Edward Borkowski      03/30/2020        310,500        310,500        125,000     Executive Officer(1) Number Equity award issued in connection with the entrance into amended and restated employment agreements by Messrs. Finizio and Milligan and initial employment agreement by Mr. Borkowski. The amount and mix of Stock Options Granted Robert G. Finizio 1 John C.K. Milligan, IV 400,000 Daniel A. Cartwright 220,000 Mitchell L. Krassan 300,000 Michael Donegan 120,000 these awards considered factors including benchmarking information provided by our compensation consultant, internal equity, alignment with company performance priorities, a desire to foster long-term retention, and, for Mr. Borkowski, an assessment of compensation opportunities forfeited at his prior employer in order to join us. The Compensation Committee chose to make these grants based on market data from the 20192020 peer group for similar positions at similar companies. Our Chief Executive Officer requested that the Compensation Committee limit his 2019November 2020 equity award to one share in order to make more equity available to the rest of our management team with less dilution to our stockholders. The restricted stock units (RSUs) vest equally in three annual instalments beginning on the one year anniversary of the date of grant. The performance stock units (PSUs) vest upon our achievement of break-even of quarterly earnings before interest, taxes, depreciation and amortization (EBITDA) for a fiscal quarter no later than the quarter ending December 31, 2022, otherwise the PSUs will be forfeited. The number of PSUs listed is the base number of PSUs that may vest. The actual number of PSUs that will vest will be between zero and two times the base number of PSUs depending on when we achieve break-even of quarterly EBITDA. In accordance with the terms of our 2019 Plan, no PSUs will vest prior to the one-year anniversary of the grant date. Each officer forfeits the unvested portion, if any, of the stock optionsRSUs and PSUs if the officer’s service to our company is terminated for any reason, except as may otherwise be determined by our Board of Directors or as provided in an applicable employment agreement. For Messrs. Finizio, Milligan, and Cartwright,Borkowski, stock-based awards vest upon termination due to death or “disability,” termination by our company without “cause,” or resignation by the officerexecutive for “good reason,” and a “change in control” of our company (as such terms are defined in the employment agreements). For Messrs. Krassan and Donegan, stock-based awards vest upon a “change in control” of our companyreason” (as such terms are defined in the employment agreements). See “Executive Compensation — Fiscal Year 2019 Grants of Plan-Based Awards” and “Executive Compensation — Outstanding Equity Awards at Fiscal Year-End 2019” 2020” tables for further information on equity awards granted to and held by each of our NEOs.   37 Severance and Change in Control Benefits   We have severance and change in control benefits for our NEOs documented in their respective employment agreements. We believe these benefits were necessary to attract our NEOs and the change in control benefits are in the best interests of our company and our stockholders because they help assure we will have the continued dedication and objectivity of our executive officers, notwithstanding the possibility or occurrence of a change in control. For further details, see “Executive Compensation — Potential Payments Upon Termination or Change in Control” below. Tax and Accounting Considerations   Deductibility of Executive Compensation The tax treatment of the elements of our compensation program is one factor considered in the design of the compensation program. Under Section 162(m) of the Code, the federal income tax deduction for certain types of compensation paid to certain executive officers of publicly-held companies is limited to $1.0 million per officer per fiscal year unless such compensation meets certain requirements. This limitation does not apply to certain compensation awards granted prior to November 3, 2017 that meet the transition requirements under Section 162(m) of the Code for “qualifying performance based” compensation (i.e., compensation paid only if performance meets pre-established objective goals based on performance criteria approved by stockholders). Although the Compensation Committee considers the impact of Section 162(m) of the Code as well as other tax and accounting consequences when developing and implementing our executive compensation programs, the Compensation Committee retains the flexibility to design and administer compensation programs in the best interests of our company and stockholders. In addition, due to the ambiguities and uncertainties as to the application and interpretation of Section 162(m) of the Code and the transition rule thereunder, no assurances can be given that compensation intended by the Compensation Committee to satisfy the requirements for deductibility under Section 162(m) of the Code would, in fact, do so. Further, the Compensation Committee reserves the right to modify compensation that was initially intended to be exempt from Section 162(m) if it determines that such modifications are consistent with our business needs. In addition, the Compensation Committee may, in its judgment, authorize compensation payments that do not comply with the exemptions in Section 162(m) when it believes that such payments are appropriate to attract and retain executive talent. Taxation of “Parachute” Payments and Deferred Compensation Sections 280G and 4999 of the Code provide that executive officers and directors who hold significant equity interests and certain other service providers may be subject to significant additional taxes if they receive payments or benefits from a change in control of a company that exceed certain prescribed limits, and the company (or a successor) may forfeit a deduction on the amounts subject to this additional tax. We did not provide any executive officer, including any NEO, with a “gross-up”“gross-up” or other reimbursement payment for any tax liability they might owe as a result of the application of Sections 280G and 4999 during fiscal 2019,2020, and we have not agreed and are not otherwise obligated to provide any executive officer with such a “gross-up”“gross-up” or other reimbursement. Accounting for Stock-Based Compensation We account for stock-based awards in accordance with the provisions of Financial Accounting Standards Board Accounting Standards Codification Topic 718 “Compensation - “Compensation—Stock Compensation,” or ASC 718. In determining stock-based awards, the Compensation Committee considers the potential expense of these awards under ASC 718 and the impact on our earnings per share.   38 2021 PROXY STATEMENT   EXECUTIVE COMPENSATION Fiscal Year 20192020 Summary Compensation Table   The following table lists the compensation of our company’s principal executive officer, principal financial officer, and each of our threetwo other most highly compensated executive officers who were serving as executive officers (collectively, our NEOs) on December 31, 2019,2020, the end of our last completed fiscal year. The following information includes the dollar value of salaries, bonus awards, the number of non-qualified optionsawards granted, non-equity incentive plan compensation, and certain other compensation, if any, whether paid or deferred.   Name and Principal Position   Year   Salary   Bonus   Option Awards(1)   Non-Equity Incentive Plan Compensation(2)   All Other Compensation   Total Robert G. Finizio     2019     $ 600,000     $ —       $ 2     $ 600,000     $ 22,218 (5)   $ 1,222,220   Chief Executive Officer     2018     $ 600,000     $ 150,000 (3)   $ 1,356,218     $ 600,000     $ 18,359 (5)   $ 2,724,577         2017     $ 600,000     $ 40,000 (3)   $ 1,756,609     $ 570,000     $ 17,346 (5)   $ 2,983,955   John C.K. Milligan, IV     2019     $ 450,000     $ —       $ 645,956     $ 315,000     $ 29,683 (4)   $ 1,440,639   President and Secretary     2018     $ 450,000     $ 78,750 (3)   $ 832,225     $ 315,000     $ 25,459 (4)   $ 1,701,434         2017     $ 450,000     $ 40,000 (3)   $ 1,026,333     $ 299,250     $ 24,446 (4)   $ 1,840,029   Daniel A. Cartwright     2019     $ 375,000     $ —       $ 355,275     $ 262,500     $ 21,803 (5)   $ 1,014,578   Chief Financial Officer     2018     $ 375,000     $ 65,625 (3)   $ 523,993     $ 262,500     $ 18,359 (5)   $ 1,245,477   and Treasurer     2017     $ 375,000     $ 40,000 (3)   $ 671,064     $ 249,375     $ 17,346 (5)   $ 1,352,785   Mitchell L. Krassan     2019     $ 360,000     $ —       $ 484,467     $ 180,000     $ 20,527 (6)   $ 1,044,994   Chief Strategy &     2018     $ 360,000     $ 45,000 (3)   $ 523,993     $ 180,000     $ 20,359 (6)   $ 1,129,352   Performance Officer     2017     $ 360,000     $ —       $ 671,064     $ 171,000     $ 19,346 (6)   $ 1,221,410   Michael Donegan     2019     $ 290,000     $ —       $ 193,787     $ 72,500     $ 15,797 (6)   $ 572,084   Vice President - Finance     2018     $ 290,000     $ 18,125 (3)   $ 308,232     $ 72,500     $ 14,623 (6)   $ 703,480         2017     $ 290,000     $ —       $ 157,898     $ 68,875     $ 14,718 (6)   $ 531,491   Name and Principal Position   Year     Salary     Stock Awards(1)     Option Awards(2)     Non-Equity Incentive Plan Compensation(3)     All Other Compensation     Total   Robert G. Finizio Chief Executive Officer     2020     $ 600,000     $ 1,524,751     $ —     $ 600,000     $ 21,785 (4)    $ 2,746,536       2019     $ 600,000     $ —     $ 2     $ 600,000     $ 22,218 (4)    $ 1,222,220   John C.K. Milligan, IV President and Secretary     2020     $ 450,000     $ 1,479,105     $ —     $ 315,000     $ 31,285 (5)    $ 2,275,390       2019     $ 450,000     $ —     $ 645,956     $ 315,000     $ 29,683 (5)    $ 1,440,639   Edward Borkowski Executive Vice President     2020     $ 430,000     $ —     $ 3,599,967     $ 365,500     $ 81,687 (6)    $ 4,477,154                                                             (1) Represents the fair market value on the day of grant of restricted stock units and performance restricted stock units (PSUs) granted. The number of PSUs represents the maximum number of PSUs that may vest. The actual number of PSUs that will vest will be between zero and two times the base number of PSUs depending on our achievement of break-even quarterly EBITDA. For further information, see “Note 9 — Stockholders’ Equity” included in the financial statements included in our Annual Report on Form 10-K filed with the SEC for the fiscal year ended December 31, 2020. (2) The valuation methodology used to determine the fair value of the options granted during the year was the Black-Scholes-Merton option-pricing model, an acceptable model in accordance with ASC 718-10. The Black-Scholes-Merton model requires the use of several assumptions, including volatility of the stock price, the weighted average risk-free interest rate, and the weighted average expected life of the options. For further information, see “Note 9 — Stockholders’ Equity” included in the financial statements included in our Annual Report on Form 10-K filed with the SEC for the fiscal year ended December 31, 2019.2020.   (3) (2) Amounts in this column for fiscal 2019, 2018 and 2017 represent the amounts earned and payable under our 2019, 2018 and 2017 annual performance-based incentive plan, which were earned and payable induring the indicated fiscal 2019, 2018 and 2017year but were not paid until after the end of indicated fiscal 2019, 2018 and 2017, respectively.year. For a description of our 20192020 performance-based incentive plan and amounts earned thereunder, see “Compensation Discussion and Analysis —Fiscal 20192020 Compensation— Annual Performance-Based Incentive Plan.”   (4) (3) Includes a discretionary bonus of $40,000 for 2017 Other compensation paid to Mr. Finizio was related to employer match to 401(k) plan of $2,000 and medical benefit premiums paid by the outstanding work in the achievement of the Company’s objectives for Messrs. Finizio, Milligan, and Cartwright and additional discretionary bonuses for all executives for 2018 related to the outstanding work in the achievement of the Company’s objectives.company.   (5) (4) Consists of benefit premiums Other compensation paid onto Mr. Milligan’s behalf, a $7,500 car allowance and companyMilligan was related to employer match to 401(k) plan for 2019,of $2,000, a $7,500 of car allowance, and medical benefit premiums paid onby the company. (6) Other compensation paid to Mr. Milligan’s behalf, a $5,100 car allowance and companyBorkowski was related to employer match to 401(k) plan for 2018,of $2,000, reimbursed taxable travel expenses of $57,631, and medical benefit premiums paid on Mr. Milligan’s behalf and a $5,100 car allowance for 2017.by the company.   (5) Consists of benefit premiums paid on the NEO’s behalf and company match to 401(k) plan for 2019 and benefit premiums paid on the NEO’s behalf for 2018 and 2017. 39   (6) Consists of benefit premiums paid on the NEO’s behalf and company match to 401(k) plan. Fiscal Year 2019 Grants of Plan-Based Awards The following table sets forth certain information with respect to grants of plan-based awards to the NEOs for the fiscal year ended December 31, 2019. All Other Option Estimated Future Payouts Awards: Exercise or Grant Date Under Non-Equity Number of Base Price Fair Value Incentive Plan Awards(1) Securities of Option of Stock Name   Grant Date   Threshold ($)   Target ($)   Maximum ($)   Underlying Options (#)   Awards ($/Sh)   and Option Awards(2) Robert G. Finizio   08/28/2019       $ 600,000               1     $ 2.73     $ 2   John C.K. Milligan, IV   08/28/2019     $ 315,000             400,000     $ 2.73     $ 645,956   Daniel A. Cartwright   08/28/2019       $ 262,500               220,000     $ 2.73     $ 355,275   Mitchell L. Krassan   08/28/2019       $ 180,000               300,000     $ 2.73     $ 484,467   Michael Donegan   08/28/2019       $ 72,500               120,000     $ 2.73     $ 193,787   (1) Our fiscal 2019 annual performance-based cash bonus plan had no threshold or maximums. The amounts reflect the applicable target incentive cash compensation opportunity for our NEOs under our fiscal 2019 annual performance-based cash bonus plan. All such awards have been paid, and the actual amounts paid are set forth under the “Non-Equity Incentive Plan Compensation” in the Fiscal Year 2019 Summary Compensation Table above. Our fiscal 2019 annual performance-based cash bonus plan is discussed under “Compensation Discussion and Analysis — Fiscal 2019 Compensation — Annual Performance-Based Incentive Plan.” (2) The amounts shown in this column represent the grant date fair value for stock option awards granted to our NEOs during the covered year calculated in accordance with ASC 718, excluding the effects of forfeitures. The assumptions used in determining the grant date fair value of these awards are set forth in the notes to our consolidated financial statements, which are included in our Annual Report on Form 10-K filed with the SEC for the fiscal year ended December 31, 2019. We calculated the estimated value of the award based on the closing stock price of our common stock on the date of grant. Outstanding Equity Awards at Fiscal Year-End 2019 2020   The following table sets forth information with respect to outstanding equity-based awards held by our NEOs at December 31, 2019.2020.           Option Awards         Number of Securities Underlying Unexercised Options   Option   Option Name   Grant Date   Exercisable   Unexercisable   exercise price   expiration date Robert G. Finizio     02 /27/2012(1)     300,000       —       $ 2.20     02/27/2022       04 /16/2012(2)     50,000       —       $ 2.55     04/16/2022       11 /30/2012(3)     268,474 (4)     —       $ 3.00     11/30/2022       12 /17/2015(5)     950,000       —       $ 8.92     12/17/2025       03 /15/2017(6)     296,666       148,334     $ 6.83     03/15/2027       03 /15/2018(7)     146,667       293,333     $ 5.16     03/15/2028       08 /28/2019(8)     —         1     $ 2.73     08/28/2029 John C.K. Milligan, IV     02 /27/2012(1)     300,000       —       $ 2.20     02/27/2022       04 /16/2012(2)     75,000       —       $ 2.55     04/16/2022       11 /30/2012(3)     800,000       —       $ 3.00     11/30/2022       05 /02/2013(9)     50,000       —       $ 2.80     05/02/2023       01 /06/2014(10)     45,000       —       $ 5.05     01/06/2024       12 /17/2015(5)     500,000       —       $ 8.92     12/17/2025       3 /15/2017(6)     173,334       86,666     $ 6.83     03/15/2027       3 /15/2018(7)     90,000       180,000     $ 5.16     03/15/2028       08 /28/2019(8)     —         400,000     $ 2.73     08/28/2029 Daniel A. Cartwright     10 /21/2011(11)     180,000       —       $ 0.38     10/21/2021       11 /30/2012(3)     700,000       —       $ 3.00     11/30/2022       12 /17/2015(5)     325,000       —       $ 8.92     12/17/2025       3 /15/2017(6)     113,334       56,666     $ 6.83     03/15/2027       3 /15/2018(7)     56,667       113,333     $ 5.16     03/15/2028       08 /28/2019(8)     —         220,000     $ 2.73     08/28/2029 Mitchell L. Krassan     5 /01/2010(12)     105,703       —       $ 0.19     05/01/2020       9 /01/2010(13)     683,955       —       $ 0.20     09/01/2020       11 /21/2014(14)     75,000       —       $ 4.01     11/21/2024       12 /17/2015(5)     150,000       —       $ 8.92     12/17/2025       3 /15/2017(6)     113,334       56,666     $ 6.83     03/15/2027       3 /15/2018(7)     56,667       113,333     $ 5.16     03/15/2028       08 /28/2019(8)     —         300,000     $ 2.73     08/28/2029 Michael Donegan     6 /21/2013(15)     75,000       —       $ 2.98     06/21/2023       7 /09/2014(16)     50,000       —       $ 5.01     07/09/2024       12 /17/2015(5)     100,000       —       $ 8.92     12/17/2025       3 /15/2017(6)     26,666       13,334     $ 6.83     03/15/2027       3 /15/2018(7)     33,333       66,667     $ 5.16     03/15/2028       08 /28/2019(8)     —         120,000     $ 2.73     08/28/2029         Warrants         Number of Securities Underlying Unexercised Warrants   Warrant   Warrant Name   Grant Date   Exercisable   Unexercisable   Exercise Price   Expiration Date Robert G. Finizio     03 /06/2011(17)     179,000       —       $ 0.24     03/06/2021 John C.K. Milligan, IV     03 /06/2011(17)     179,000       —       $ 0.24     03/06/2021 Daniel A. Cartwright     10 /21/2011(18)     600,000       —       $ 0.38     10/20/2021           Option Awards                   Number of Securities Underlying Unexercised Options     Option Exercise Price     Option Expiration Date         Name   Grant Date     Exercisable     Unexercisable   Robert G. Finizio     02/27/2012       300,000       —     $ 2.20       02/27/2022         04/16/2012       50,000       —     $ 2.55       04/16/2022         11/30/2012       268,474       —     $ 3.00       11/30/2022         12/17/2015       950,000       —     $ 8.92       12/17/2025         03/15/2017       445,000       —     $ 6.83       03/15/2027         03/15/2018       293,334       146,666 (1)    $ 5.16       03/15/2028         08/28/2019       —       1 (2)    $ 2.73       08/28/2029     John C.K. Milligan, IV     02/27/2012       300,000       —     $ 2.20       02/27/2022         04/16/2012       75,000       —     $ 2.55       04/16/2022         11/30/2012       800,000       —     $ 3.00       11/30/2022         05/02/2013       50,000       —     $ 2.80       05/02/2023         01/06/2014       45,000       —     $ 5.05       01/06/2024         12/17/2015       500,000       —     $ 8.92       12/17/2025         03/15/2017       260,000       —     $ 6.83       03/15/2027         03/15/2018       180,000       90,000 (1)    $ 5.16       03/15/2028         08/28/2019       133,334       266,666 (3)    $ 2.73       08/28/2029     Edward Borkowski     03/30/2020               125,000 (4)    $ 1.07       03/30/2032                                 Warrants                   Number of Securities Underlying Unexercised Warrants     Warrant Exercise Price     Warrant Expiration Date         Name   Grant Date     Exercisable     Unexercisable   Robert G. Finizio     03/06/2011       179,000       —     $ 0.24       03/06/2021     John C.K. Milligan, IV     03/06/2011       179,000       —     $ 0.24       03/06/2021                                 Restricted Stock Units and Performance Stock Units                   Number of Securities Underlying Restricted Stock Units                     Name   Grant Date     Number of Shares or Units of Stock That Have Not Vested     Market Value of Shares or Units of Stock That Have Not Vested(5)     Restricted Stock Units Grant Date Price   Robert G. Finizio     03/30/2020       475,000 (6)    $ 574,750     $ 1.07           03/30/2020       475,000 (7)    $ 574,750     $ 1.07           11/24/2020       1 (8)    $ 1     $ 1.34       John C.K. Milligan, IV     03/30/2020       310,500 (6)    $ 375,705     $ 1.07           03/30/2020       310,500 (7)    $ 375,705     $ 1.07           11/24/2020       360,000 (9)    $ 435,600     $ 1.34       Edward Borkowski     01/28/2020       1,000,000 (10)    $ 1,210,000     $ 2.52           03/30/2020       310,500 (7)    $ 375,705     $ 1.07             03/30/2020       310,500 (9)    $ 375,705     $ 1.07                     (1) The This amount reflects stock options granted on February 27, 2012 vestedthat vest in full on February 27, 2013.March 2021.   40 2021 PROXY STATEMENT (2) The This amount reflects stock options granted on April 16, 2012 vestedthat vest in full on December 31, 2012.August 2022.   (3) The This amount reflects stock options granted on November 30, 2012 vestedthat vest one-half annually on November 30 of each year over three years.beginning in August 2021.   (4) This amount reflects stock options that vest one-third annually beginning in March 2021.   (5) (4) Mr. Finizio was initially granted stock options to purchase 900,000 of our common stock; however, The amounts in this column are based on May 8, 2013, Mr. Finizio agreed to relinquish his right to receive 600,000 sharesthe closing price of our common stock underlying these stock options.on December 31, 2020 of $1.21.   (6) (5) The amount reflects restricted stock options granted on December 17, 2015 vested monthly over 12 monthsunits that vest one-third annually beginning on January 21, 2016.in March 2021.   (7) (6) The amount reflects the maximum number of performance stock options granted on March 15, 2017units (“PSU”) that may vest. The actual number of PSUs that will vest annually over three yearswill be between zero and two times the base number of PSUs depending on the anniversarycompany’s achievement of the grant date.break-even quarterly EBITDA.   (8) (7) The amount reflects restricted stock options granted on March 15, 2018 willunits that vest annually over three years on the anniversary of the grant date.in November 2022.   (9) (8) The This amount reflects restricted stock options granted on August 28, 2019 willunits that vest one-halfannually over three years on the anniversary of the grant date.beginning in November2022.   (10) (9) The This amount reflects restricted stock options granted on May 2, 2013 vestedunits that vest in full on December 31, 2013.January 2023. (10) The stock options granted on January 6, 2014 vested in full on December 31, 2014. (11) The stock options granted on October 21, 2011 vested annually over four years on the anniversary of the grant date. (12) The stock options granted on May 1, 2010 vested in full on May 1, 2011. (13) The stock options granted on September 1, 2010 vested monthly over three years on the first day of each month following the first month after the date of grant. (14) The stock options granted on November 21, 2014 vested annually over four years on the anniversary of the grant date. (15) The stock options granted on June 21, 2013 vested annually over three years on the anniversary of the grant date. (16) The stock options granted on July 9, 2014 vested annually over four years on the anniversary of the grant date. (17) The warrants granted on March 6, 2011 vested quarterly starting on June 30, 2011 over eight quarters. (18) The warrant granted on October 21, 2011 vested monthly over 44 months beginning on November 21, 2011. Option Exercises and Stock Vested in Fiscal Year 20192020   During fiscal year 2019,2020, none of our NEOs acquired shares upon the exercise of stock options or the vesting of stock awards. Post-Employment Compensation   Pension Benefits We do not offer any defined benefit pension plans for any of our employees. We have a 401(k) plan in which employees may participate. Other Compensation All of our executive officers are eligible to participate in our employee benefit plans, including medical, dental, life insurance, and tax-qualified Section 401(k) retirement savings plans. These plans are available to all employees and do not discriminate in favor of executive officers. It is generally our policy to not extend significant perquisites to executives that are not broadly available to our other employees. In designing these elements, we seek to provide an overall level of benefits that is competitive with that offered by similarly situated companies in the markets in which we operate based upon our general understanding of industry practice. These benefits are not considered in determining the compensation of our executive officers. Employment Agreements   Robert G. Finizio has an amended and restated employment agreement that commenced on November 24, 2020 and replaced his employment agreement dated November 8, 2012; the2012. The amended and restated agreement initially providedprovides for a three-yeartwo-year term and nowwill automatically renewsrenew for additional one-year terms each year on the anniversary of execution unless notice of non-renewal is given by either our company or Mr. Finizio at least 90 days prior to such anniversary. The agreement originally provided for: (i) a time-based ten-year stock option, (ii) the right to receive a performance-based ten-year stock option in an amount to be determined, (iii) a salary of not less than $355,100$600,000 per year, and (iv)(ii) an annual short-term incentive compensation of up to 35%100% of salary, at the discretion of our Board of Directors.Directors, (iii) one restricted stock unit vesting on November 24, 2022, and (iv) coverage under directors and officers insurance. Mr. Finizio will receive employee benefits, vacation, and other perquisites as may be determined from time to time. Conditions of termination call for (i) termination immediately upon death, (ii) termination upon a disability in which Mr. Finizio is unable to perform his duties for more than 180 total calendar dayssix months during any 12-month period, (iii) voluntary termination by Mr. Finizio upon a 14 calendar daywith prior notice, (iv) involuntary termination by our company without cause with 60-day30-day notice (or 90-day notice when termination is due to the non-extension of the employment term by our company), (v) termination for cause, and (vi) termination for good reason wherein Mr. Finizio will have 90 days from the date of occurrence of a criteria giving rise to good notice to terminateprovide notice of termination his employment. employment with the company, which will be effective 31 days after we receive notice and the criteria remains uncorrected. John C.K. Milligan, IV has an amended and restated employment agreement that commenced on November 24, 2020 and replaced his employment agreement dated November 8, 2012; the2012. The amended 41 and restated agreement initially providedprovides for a three-yeartwo-year term and nowwill automatically renewsrenew for additional one-year terms each year on the anniversary of execution unless notice of non-renewal is given by either our company or Mr. Milligan at least 90 days prior to such anniversary. The agreement originally provided for: (i) a time-based ten-year stock option, (ii) the right to receive a performance-based ten-year stock option in an amount to be determined, (iii) a salary of not less than $288,100$450,000 per year, and (iv)(ii) an annual short-term incentive compensation of up to 30%70% of salary, at the discretion of our Board of Directors.Directors, (iii) 360,000 restricted stock units vesting on November 24, 2022, and (iv) coverage under directors and officers insurance. Mr. Milligan will receive employee benefits, vacation, and other perquisites as may be determined from time to time. Conditions of termination call for (i) termination immediately upon death, (ii) termination upon a disability in which Mr. Milligan is unable to perform his duties for more than 180 total calendar dayssix months during any 12-month period, (iii) voluntary termination by Mr. Milligan upon a 14 calendar daywith prior notice, (iv) involuntary termination by our company without cause with 60-day30-day notice or (90-day(or 90-day notice when termination is due to the non-extension of the employment term by our company), (v) termination for cause, and (vi) termination for good reason wherein Mr. Milligan shallwill have 90 days from the date of occurrence of a criteria giving rise to good notice to terminateprovide notice of termination his employment. The employment agreement contains standard provisions for confidentialitywith the company, which will be effective 31 days after we receive notice and noncompetition.the criteria remains uncorrected. Daniel A. CartwrightEdward Borkowski has an employment agreement that commenced November 8, 2012; theon January 1, 2020. The agreement initially providedprovides for a three-year term and nowwill automatically renewsrenew for additional one-year terms each year on the anniversary of execution unless notice of non-renewal is given by either our company or Mr. CartwrightBorkowski at least 90 days prior to such anniversary. The agreement originally provided for: (i) a time-based ten-year stock option, (ii) the right to receive a performance-based ten-year stock option in an amount to be determined, (iii) a salary of not less than $257,100$430,000 per year, and (iv)(ii) an annual short-term incentive compensation of up to 30%85% of salary, at the discretion of our Board of Directors.Directors, (iii) 1,000,000 restricted stock units vesting on January 1, 2023, (iv) an option to purchase 125,000 shares of the company’s common stock, and (v) coverage under directors and officers insurance. Mr. CartwrightBorkowski will receive employee benefits, vacation, and other perquisites as may be determined from time to time. Conditions of termination call for (i) termination immediately upon death, (ii) termination upon a disability in which Mr. CartwrightBorkowski is unable to perform his duties for more than 180 total calendar dayssix months during any 12-month period, (iii) voluntary termination by Mr. Cartwright upon a 14 calendar dayBorkowski with prior notice, (iv) involuntary termination by our company without cause with 60-day30-day notice or (90-day(or 90-day notice when termination is due to the non-extension of the employment term by our company), (v) termination for cause, and (vi) termination for good reason wherein Mr. CartwrightBorkowski will have 90 days from the date of occurrence of a criteria giving rise to good notice to terminate his employment. The employment agreement contains standard provisions for confidentiality and noncompetition. Mitchell Krassan has a one year employment agreement that commenced on December 17, 2015, subject to automatic renewals of one year terms, which calls for (i) a time-based one-year stock option, (ii) a salary of not less than $300,000 per year, and (iii) an annual short-term incentive compensation target of 50% of salary, at the discretion of our Board of Directors. Mr. Krassan will receive employee benefits, vacation, and other perquisites as may be determined from time to time. Conditionsprovide notice of termination call for (i) termination immediately upon death, (ii) termination upon a disability inhis employment with the company, which Mr. Krassan is unable to perform his duties for six consecutive months, (iii) termination immediately by Mr. Krassan upon written notice, (iv) termination immediately by ourwill be effective 31 days after the company without cause, (v) termination for cause upon ten days’ writtenreceives notice and (vi) termination by Mr. Krassan for good reason upon 30 days’ written notice within 90 days of the event constituting good reason. The employment agreement contains standard provisions for confidentiality and noncompetition.criteria remains uncorrected. Michael Donegan has a one year employment agreement that commenced on December 17, 2015, subject to automatic renewals of one year terms, which calls for (i) a time-based one-year stock option, (ii) salary of not less than $290,000 per year, and (iii) an annual short-term incentive compensation target of 25% of salary, at the discretion of our Board of Directors. Mr. Donegan will receive employee benefits, vacation, and other perquisites as may be determined from time to time. Conditions of termination call for (i) termination immediately upon death, (ii) termination upon a disability in which Mr. Donegan is unable to perform his duties for six consecutive months, (iii) termination immediately by Mr. Donegan upon written notice, (iv) termination immediately by our company without cause, (v) termination for cause upon ten days’ written notice, and (vi) termination by Mr. Donegan for good reason upon 30 days’ written notice within 90 days of the event constituting good reason. The employment agreement contains standard provisions for confidentiality and noncompetition. Potential Payments Upon Termination or Change in Control   We have employment agreements with certain of our executive officers as described above. The arrangements reflected in these employment agreements are designed to encourage the officers’ full attention and dedication to our company currently and, in the event of any proposed change in control, provide these officers with individual financial security. The employment agreements provide for specified payments and benefits by us to our executive officers only upon a qualifying termination of employment as described below. Termination by Us Without Good Cause or by Executive with Good Reason -— No Change in Control Pursuant toUnder the employment agreements for each of Messrs. Finizio, Milligan, and Cartwright,Borkowski, in the event of termination of the executive’s employment without “cause” (referred to as “good cause” in certain employment agreements) or resignation by the executive for “good reason” (as each term is defined in the employment agreements), the executive would be entitled to, (i) the sum of his salary, payable on a biweekly basis ratably over 52 weeks and target annual incentive compensation for the fiscal year in which such termination of employment occurs, subject to the executive’s signing and not revoking a full and complete release of all claims against the company and its affiliates, (i) the sum of his salary, payable on a biweekly basis ratably over 12 months, and target annual incentive compensation for the fiscal year in which such termination of employment occurs, (ii) a continuation of welfare benefits for a period of one yeartwo years after such termination, subject to the executive’s signing and not revoking a full and complete release of all claims against the company and its affiliates, (iii) unpaid accrued base salary and unused vacation pay through the termination date, and (iv) amounts accrued but unpaid at the time of termination. 42 2021 PROXY STATEMENT Additionally, all outstanding equity awards that vest solely on the passage of time held by such executives would immediately vest in full for each of Messrs. Finizio, Milligan, and Cartwright. If a change in control is consummated on or prior to the first anniversary of the effective date of termination, then, prior to such consummation, the company will be required to deliver to the executive the number of shares of company common stock the executive forfeited upon termination pursuant to unvested performance-based restricted stock awards and all other equity awards held by the executive will accelerate in full.Borkowski. Furthermore, the above obligations of the company are subject to the executive complying with a five-year confidentiality24-month non-solicitation agreement post-termination, a 12-month non-solicitation agreementof employees and customers, and a 12-month18-month non-competition agreement (18 months for Mr. Finizio) that is subject to extensioncan be extended by our company for an additional 12-month period by the company upon compensation for a like number of12 months, on the terms of their respective employment agreements; provided, that upon a change in control, the executive will be released from the non-solicitation and non-competition covenants if such executive is terminated without cause or resigns for good reason. Pursuant to the employment agreements for each of Messrs. Donegan and Krassan, in the event of termination of the executive’s employment without “good cause” or resignation by the executive for “good reason” (as each term is defined in the employment agreements), the executive would be entitled to (i) the sum of his salary payable over a 12-month period, (ii) any target annual incentive compensation for the fiscal year in which such terminationwe will pay executive another 12 months of employment occurs, (iii) a continuationbase salary and six months of welfareCOBRA health insurance benefits (12 months of insurance benefits for a period of one year after such termination, and (iv) payment of accrued but unused paid time off, in each case subject to the executive signing and not revoking a full and complete release of all claims against the company and its affiliates, adhering to an 18-month post-termination non-competition covenant and a 24-month post-termination non-solicitation covenant and adhering to the terms of the Employee Assignment, Invention and Confidentiality Agreement between the executive and the company which survive post-termination. Additionally, all unvested equity compensation granted after the date of the employment agreement and held by the executive in his capacity as an employee would immediately vest as of the effective date of termination.Mr. Finizio). Termination or Resignation in Connection with a Change in Control In the event of termination of the executive’s employment without “cause” or resignation by the executive for “good reason” (as each term is defined in the employment agreements), followingin the date of the announcement of a transaction that leads to12 months following a change in control, and up to 12 months following the date of the change in control, in addition to those payments and benefits provided to salaried employees generally, including amounts accrued but unpaid at the time of termination: ● Messrs. Finizio and Milligan would be entitled to (i) the sum of their respective salary and target annual incentive compensation for the fiscal year in which such termination of employment occurs, payable in a lump sum, subject to the executive signing a release and not revoking a full and complete release of all claims against the company and its affiliates, (ii) a continuation of welfare benefits for a period of one year after such termination, subject to the executive signing a release and not revoking a full and complete release of all claims against the company and its affiliates, (iii) unpaid accrued base salary and unused vacation pay through the termination date and (iv) all other rights and benefits the executive is vested in, pursuant to other plans and programs of our company, and ● Mr. Cartwright would be entitled to (i) an amount equal to 150% of his salary and target annual incentive compensation for the fiscal year in which such termination of employment occurs, payable in a lump sum, subject to the executive signing a release and not revoking a full and complete release of all claims against the company and its affiliates, (ii) a continuation of welfare benefits for a period of 18 months after such termination, subject to the executive signing a release and not revoking a full and complete release of all claims against the company and its affiliates, (iii) unpaid accrued base salary and unused vacation pay through the termination date and (iv) all other rights and benefits the executive is vested in, pursuant to other plans and programs of our company. Additionally, all outstanding long-term incentive awards and warrants would immediately vest in full for each of Messrs. Finizio, Milligan, and Cartwright.Borkowski would have all the benefits and obligations for termination without a change in control, except that the executives would receive the sum their respective salaries and continuation of welfare benefits for 18 months (24 months for Mr. Finizio) and each would receive 150% of their targeted annual bonus award. Termination by Reason of Death or Disability For Messrs. Finizio, Milligan, and Cartwright,Borkowski, in the event of termination of the executive’s employment by reason of his death or “disability” (as such term is defined in the employment agreements), in addition to those payments and benefits provided to salaried employees generally, including amounts accrued but unpaid at the time of termination, each of the executives would be entitled to (i) pro-rated target annual incentive compensation for the fiscal year in which such termination of employment occurs, payable in a lump sum, subject to the executive’s signing and not revoking a full and complete release of all claims against the company and its affiliates in the event of a disability, (ii) immediate vesting of all outstanding equity awards that vest solely on the passage of time, (iii) accrued but unused vacation pay through the termination date, payable in a lump sum, and (iv) all other rights and benefits the executive is vested in, pursuant to other plans and programs of our company. The tables below reflect the amount of compensation to certain of our NEOs, assuming termination of such executive’s employment without cause or for good reason or following a change in control of our company on December 31, 2019.2020. Other than as set forth below, no amounts will be paid to our NEOs in the event of termination. Robert G. Finizio   Executive Benefits and Payments   Termination Without Good Cause or with Good Reason (Not in Connection with a Change in Control)   Termination Without Good Cause or with Good Reason Following a Change in Control   Termination by Reason of Death or Disability    Termination Without Cause or with Good Reason (Not in Connection with a Change in Control)      Termination Without Cause or with Good Reason Following a Change in Control      Termination by Reason of Death or Disability   Cash severance   $ 1,222,218 (1)   $ 1,222,218 (1)   $ 600,000 (2)    $ 1,839,571 (1)     $ 2,139,571 (2)     $ 600,000 (3)  Equity awards(3)     —         —         —     Equity awards(4)      1,149,501        1,149,501        1,149,501   Other     —         —         —          —        —        —     43 John C.K. Milligan, IV   Executive Benefits and Payments   Termination Without Good Cause or with Good Reason (Not in Connection with a Change in Control)   Termination Without Good Cause or with Good Reason Following a Change in Control   Termination by Reason of Death or Disability    Termination Without Good Cause or with Good Reason (Not in Connection with a Change in Control)      Termination Without Good Cause or with Good Reason Following a Change in Control      Termination by Reason of Death or Disability   Cash severance   $ 787,183 (1)   $ 787,183 (1)   $ 315,000 (2)    $ 804,571 (1)     $ 1,177,178 (2)     $ 315,000 (3)  Equity awards(3)     —         —         —     Other(4)   $ 7,500     $ 7,500     $ 7,500   Equity awards(4)      1,187,010        1,187,010        1,187,010   Other      —        —        —   Daniel A. CartwrightEdward Borkowski   Executive Benefits and Payments   Termination Without Good Cause or with Good Reason (Not in Connection with a Change in Control)       Termination Without Good Cause or with Good Reason Following a Change in Control       Termination by Reason of Death or Disability   Cash severance   $ 659,303 (1)     $ 978,053 (1)     $ 262,500 (2) Equity awards(3)     —         —         —   Other     —         —         —   Mitchell Krassan Executive Benefits and Payments   Termination Without Good Cause or with Good Reason (Not in Connection with a Change in Control)   Termination Without Good Cause or with Good Reason Following a Change in Control   Termination by Reason of Death or Disability Cash severance   $ 560,527 (1)   $ 560,527 (1)   $ 180,000 (2) Equity awards(3)     —         —         —     Other     —         —         —     31  Michael Donegan Executive Benefits and Payments   Termination Without Good Cause or with Good Reason (Not in Connection with a Change in Control)   Termination Without Good Cause or with Good Reason Following a Change in Control   Termination by Reason of Death or Disability Cash severance   $ 378,297 (1)   $ 378,297 (1)   $ 72,500 (2) Equity awards(3)     —         —         —     Other     —         —         —     Executive Benefits and Payments    Termination Without Good Cause or with Good Reason (Not in Connection with a Change in Control)      Termination Without Good Cause or with Good Reason Following a Change in Control      Termination by Reason of Death or Disability   Cash severance    $ 839,613 (1)     $ 1,226,335 (2)     $ 365,500 (3)  Equity awards(4)      1,978,910        1,978,910        1,978,910   Other      —        —        —     (1) Consists of payments due to executive for (i) 100% of salary, (ii) target annual incentive compensation, and (iii) health and welfare benefits.benefits for 24 months. In the case of Mr. Cartwright following a change in control,Finizio consists of (i) 200% of salary, (ii) 100% of target annual incentive compensation, and (iii) health and welfare benefits for 24 months. (2) Consists of payments due to executive for (i) 150% salary, (ii) 150% target annual incentive compensation, and (iii) health and welfare benefits for 18 months. In the case of Mr. Finizio consists of (i) 200% of salary, (ii) 150% of target annual incentive compensation, and (iii) health and welfare benefits.benefits for 24 months.   (2)(3) Represents full annual incentive compensation that would be prorated based on termination date.   (3)(4) Represents the value of unvested equity awards that would become fully vested upon a termination without cause, resignation for good reason, or in connection with a change in control.vested. The value is calculated by multiplying the number of shares underlying each accelerated award by the difference between $2.42,$1.21, the per share closing price of the Common Stockcommon stock on December 31, 2019,2020, and the per share exercise price. In each case,If the exercise price was below $2.42, and thus$1.21, no value was attributable to the accelerated vesting of the awards. (4) Represents the amount payable for a car allowance. Nonqualified Defined Contribution and Nonqualified Deferred Compensation   We do not offer any nonqualified defined contribution plans or nonqualified deferred compensation plans for any of our NEOs. Limitation of Directors’ Liability; Indemnification of Directors, Officers, Employees, and Agents   Our amendedAmended and restated articlesRestated Articles of incorporationIncorporation and bylaws, each as amended, provide that we may indemnify to the full extent of our power to do so, all directors, officers, employees, and/or agents. The effect of this provision in the amendedAmended and restated articlesRestated Articles of incorporation,Incorporation, as amended, is to eliminate the rights of our company and our stockholders, either directly or through stockholders’ derivative suits brought on behalf of our company, to recover monetary damages from a director for breach of the fiduciary duty of care as a director except in those instances described under Nevada law. Insofar as indemnification by our company for liabilities arising under the Securities Act of 1933, as amended or the Securities Act,(the “Securities Act”), may be permitted to officers and directors of our company pursuant to the foregoing provisions or otherwise, we are aware that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.   CHIEF EXECUTIVE OFFICER PAY RATIO 44 2021 PROXY STATEMENT   For 2019, the total compensationof our Chief Executive Officer of $1,222,220, as presented in the Summary Compensation Table, was approximately 10.7 times the total compensation of our median employee of approximately $114,000. To identify the median of the annual compensation of all of our employees (other than the CEO), we used wages from our payroll records as reported to the Internal Revenue Service on Form W-2 for fiscal year 2019 and added the fair value of options granted in 2019. The median employee was identified by reviewing the total compensation for all employees (other than the CEO) who were employed by us on December 31, 2019. All of our employees were included, whether employed on a full-time, part-time or seasonal basis. Adjustments were made to annualize the compensation of employees who were not employed by us for the entire year. No full-time equivalent adjustments were made for part time employees. The SEC’s pay ratio disclosure rules provide reporting companies with a great deal of flexibility in determining the methodology used to identify the median employee and the pay ratio. As such, our methodology may differ materially from the methodology used by other companies to prepare their pay ratio disclosures, which may contribute to a lack of comparability between our pay ratio and the pay ratio reported by other companies, including those within our industry. EQUITY COMPENSATION PLAN INFORMATION As of December 31, 2019,2020, the following table shows the number of securities to be issued upon exercise of outstanding options under equity compensation plans approved by our stockholders, which plans do not provide for the issuance of warrants or other rights.   Plan Category   Number of Securities to Be Issued Upon Exercise of Outstanding Options, Warrants and Rights (a)   Weighted- Average Exercise Price of Outstanding Options, Warrants and Rights (b)   Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in Column (a)) (c) Equity Compensation Plans Approved by Stockholders     26,270,234 (1)   $ 4.65       13,599,382 (2) Equity Compensation Plans Not Approved by Stockholders     ─       ─       —     Plan Category    Number of Securities to Be Issued Upon Exercise of Outstanding Options, Warrants and Rights (a)      Weighted- Average Exercise Price of Outstanding Options, Warrants and Rights (b)      Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in Column (a)) (c)   Equity Compensation Plans Approved by Stockholders      23,781,930 (1)     $ 4.80        2,583,565 (2)  Equity Compensation Plans Not Approved by Stockholders      —        —        —     (1) Represents non-qualified stock options to purchase an aggregate of 15,017,75913,285,205 shares issuable under the 2009 Long Term Incentive Compensation Plan, as amended or the 2009 Plan, (the “2009 Plan”), non-qualified stock options to purchase an aggregate of 6,316,4746,305,974 shares issuable and an aggregate of 1,040,000890,000 restricted stock awards under the Amended and Restated 2012 Stock Incentive Plan or the 2012 Plan, and (the “2012 Plan”), non-qualified stock options to purchase 4,190,751 shares of common stock outstanding under 2019 Stock Incentive Plan (the “2019 Plan”), and an aggregate of 3,696,001 shares and 200,0006,171,024 restricted stock awards usableunits and 2,403,951 performance stock units outstanding under the 2019 Plan.   (2) On June 20, 2019, we adopted As of December 31, 2020, there were 2,583,565 shares of common stock available for issuance under the 2019 Plan, consisting of (i) new shares, (ii) unallocated shares previously available for issuance under the 2012 Plan that were not then subject to outstanding “Awards” (as defined in the 2012 Plan), and effective upon our adoption no future awards may be made(iii) unallocated shares previously available for issuance under the 2009 Plan or underthat were not then subject to outstanding “Awards” (as defined in the 2012 Plan.2009 Plan). Any shares subject to outstanding options or other equity “Awards” under the 2019 Plan, the 2012 Plan and the 2009 Plan that are forfeited, expire or otherwise terminate without issuance of the underlying shares, or if any such Award is settled for cash or otherwise does not result in the issuance of all or a portion of the shares subject to such Award (other than shares tendered or withheld in connection with the exercise of an Award or the satisfaction of withholding tax liabilities), the shares to which those Awards were subject, shall, to the extent of such forfeiture, expiration, termination, cash settlement or non-issuance, again be available for delivery with respect to Awards under the 2019 Plan. AsThe number of December 31, 2019, there were 13,599,382 sharesperformance stock units (PSUs) represents the base number of Common Stock available for issuance underPSUs that may vest. The actual number of PSUs that will vest will be between zero and two times the 2019 Plan, consistingbase number of (i) 11,103,999 new shares, (ii) 2,395,333 unallocated shares previously available for issuance under the 2012 Plan that were not then subject to outstanding “Awards” (as defined in the 2012 Plan), and (iii) 100,050 unallocated shares previously available for issuance under the 2009 Plan that were not then subject to outstanding “Awards” (as defined in the 2009 Plan).PSUs depending on our achievement of break-even quarterly EBITDA.   45 CERTAIN TRANSACTIONS AND RELATIONSHIPS Policy Relating to Related Party Transactions We have a policy that we will not enter into any material transaction in which a director or officer has a direct or indirect financial interest unless the transaction is determined by our Board of Directors to be fair to us or is approved by a majority of our disinterested directors or by our stockholders, as provided for under Nevada law. Generally, our Board of Directors as a whole, other than an affected director, if applicable, determines whether a director or officer has a direct or indirect (i.e., any) financial interest in a transaction deemed material based upon our Code of Conduct and Ethics and Nevada law. From time to time, our Audit Committee, in accordance with its charter, will also review potential conflict of interest transactions involving members of our Board of Directors and our executive officers. The policy with respect to such transactions is provided in our company’s Code of Conduct and Ethics. Related Party Transactions Other than compensation arrangements, we describe below transactions and series of similar transactions, since January 1, 2019,2020, to which we were a party or will be a party, in which:   ● the amounts involved exceeded or will exceed $120,000; and the amounts involved exceeded or will exceed $120,000; and   ● any of our directors, executive officers, or holders of more than 5% of our voting securities, or any member of the immediate family of the foregoing persons, had or will have a direct or indirect material interest. any of our directors, executive officers, or holders of more than 5% of our voting securities, or any member of the immediate family of the foregoing persons, had or will have a direct or indirect material interest. Compensation arrangements for our directors and NEOs are described elsewhere in this proxy statement. Agreements with Catalent, Inc. In July 2015, J. Martin Carroll, a director of ours, has served as a directorour company, was appointed to the board of directors of Catalent, Inc. since July 2015. From time to time, we have entered into agreements with Catalent, Inc. and its affiliates, or Catalent, in the normal course of business. All such agreementsAgreements with Catalent have been reviewed and approved by disinterestedindependent directors of our company, or a committee consisting of disinterestedindependent directors of our company, since July 2015. During the years ended December 31, 2020, 2019 2018 and 2017,2018, we were billed by Catalent approximately $3,036,000, $6,101,000 $4,111,000 and $3,646,000,$4,111,000, respectively, for manufacturing activities related to our clinical trials, scale-up, registration batches, stability and validation testing. As of December 31, 20192020 and 2018,2019, there were amounts due to Catalent of approximately $35,000$0 and $88,000,$35,000, respectively. In addition, we have minimum purchase requirements in place with Catalent. Agreements with American International Group, Inc. 2019 OfferingIn April 2020, Karen L. Ling, Executive Vice President and Chief Human Resources Officer of American International Group, Inc., or AIG, was appointed to our board of directors. From time to time, we have entered into agreements with AIG in the normal course of business. Agreements with AIG have been reviewed by independent directors of our company, or a committee consisting of independent directors of our company, since April 2020. During the year ended December 31, 2020, we were billed by AIG approximately $209,000 for various insurance coverage for our company.   In connection with our October 2019 public offering of common stock, on October 25, 2019: (i) Robert G. Finizio, our Chief Executive Officer and a director, purchased 72,000 shares of our common stock directly from the company, (ii) John C.K. Milligan, IV, our President and Secretary and then-director, purchased 72,000 shares of our common stock directly from the company, and (iii) Brian Bernick, our co-founder and then-director, purchased 36,000 shares of our common stock directly from the company, all at the public offering price of $2.75 from the underwriters in our offering. 46 2021 PROXY STATEMENT   COMPENSATION COMMITTEE REPORT The Compensation Committee has reviewed and discussed with management the Compensation Discussion and Analysis section included in this proxy statement and, based on such review and discussions, the Compensation Committee recommended to our Board of Directors that the Compensation Discussion and Analysis section be included in this proxy statement.   May 4, 2020 April [●], 2021 Respectfully submitted, Respectfully submitted, Jules Musing, Chairman Cooper C. Collins Chairman J. Martin Carroll Tommy G. ThompsonKaren L. Ling   47   DIRECTOR COMPENSATION We compensate our non-employee directors with a combination of cash and equity. Our Board of Directors receives the followfollowing cash compensation for their service: each director receives an annual cash retainer of $57,500; the chairperson of the Board receives an additional $22,500 annual cash retainer; the chairperson of our Audit Committee receives an annual cash retainer of $30,000 and the other members of the Audit Committee receive an annual cash retainer of $15,000; the chairperson of the Compensation Committee receives an annual cash retainer of $20,000 and the other members of the Compensation Committee receive an annual cash retainer of $12,000; and the chairperson of each of our other committees receives an annual cash retainer of $12,500 and the other members receive an annual cash retainer of $7,500. We also reimburse our directors for reasonable expenses related to attendance at Board of Directors and committee meetings. In addition, in 2019, each director who served on our Board of Directors after April 1, 2020 received an annual grantaward of 96,864 restricted stock options to purchase 75,000 sharesunits, with the exception of our common stock and the Chairman of the Board who received an additional grantannual award of 145,296 restricted stock optionsunits. All restricted stock units granted to purchase 37,500 sharesour directors in 2020 represent a contingent right to receive one share of our common stock.stock and will vest on the one year anniversary of the date of grant. We do not pay our directors per meeting fees. The following table and accompanying footnotes detail compensation paid to our directors for services rendered for the year ended December 31, 2019.2020. Messrs. Finizio’s and Milligan’s compensation is described above under “Executive Compensation.”   Name   Fees Earned or Paid in Cash   Option Awards(1)(2)(3)   All Other Compensation   Total Brian A. Bernick, M.D.   $ —       $ —   (4)   $ —   (5)   $ —     Dr. Jane Barlow   $ 77,000     $ 110,008       —       $ 187,008   Name(1)    Fees Earned or Paid in Cash      Stock Awards(2)(3)      All Other Compensation      Total   Brian A. Bernick, M.D.(4)    $ —      $ —      $ 96,610      $ 96,610   Jane Barlow, M.D., M.B.A., M.P.H.(5)    $ 38,500      $ 116,237      $ 77,000      $ 231,737   Paul Bisaro(6)    $ 58,125      $ 116,237      $ —      $ 174,362   J. Martin Carroll   $ 84,500     $ 110,008       —       $ 194,508      $ 83,250      $ 116,237      $ —      $ 199,487   Cooper C. Collins   $ 92,500     $ 110,008       —       $ 202,508      $ 92,250      $ 116,237      $ —      $ 208,487   Robert V. LaPenta, Jr.   $ 95,000     $ 110,008       —       $ 205,008   Robert V. LaPenta, Jr.(5)    $ 47,500      $ 116,237      $ 95,000      $ 258,737   Karen L. Ling(7)    $ 46,125      $ 116,237      $ —      $ 162,362   Jules A. Musing   $ 72,500     $ 110,008       —       $ 182,508      $ 75,000      $ 116,237      $ —      $ 191,237   Nicholas Segal   $ 72,500     $ 110,008       —       $ 182,500   Gail Naughton, Ph.D.(6)    $ 50,635      $ 116,237      $ —      $ 166,872   Nicholas Segal(5)(8)    $ 18,125      $ —      $ 54,375      $ 72,500   Angus C. Russell   $ 80,000     $ 110,008       —       $ 190,008      $ 87,500      $ 116,237      $ —      $ 203,737   Tommy G. Thompson   $ 112,000     $ 165,012       —       $ 277,012      $ 106,000      $ 174,355      $ —      $ 280,355     (1) As of December 31, 2020, each of the directors listed in the “Director Compensation” table had the following awards outstanding: 48 2021 PROXY STATEMENT Name    Option Awards      Stock Awards   Dr. Bernick      1,260,000        533,000   Dr. Barlow      175,000        96,864   Mr. Bisaro      —        96,864   Mr. Carroll      350,000        96,864   Mr. Collins      570,000        96,864   Mr. LaPenta, Jr.      570,000        96,864   Ms. Ling      —        96,864   Mr. Musing      695,000        96,864   Dr. Naughton      —        96,864   Mr. Russell      350,000        96,864   Mr. Segal      495,000        —   Mr. Thompson      1,095,000        145,296   There were no forfeitures of option or restricted stock awards by any directors in fiscal year 2020.   (2) (1) The valuation methodology used We grant restricted stock units and performance-based stock units for shares of common stock to determineemployees. We value our restricted stock units and our performance-based stock units by reference to our stock price on the fair valuedate of grant. We recognize compensation expense for restricted stock units based on a straight-line basis over the requisite service period of the options granted during the year was the Black-Scholes-Merton option-pricing model, an acceptable model in accordance with ASC 718. The Black-Scholes-Merton model requires the use of several assumptions including volatility of the stock price, the weighted average risk-free interest rate, and the weighted average expected life of the options.entire award. For further information, see “Note 9 – Stockholders’ Equity” included in the financial statements included in our Annual Report on Form 10-K filed with the SEC for the fiscal year ended December 31, 2019.2020.   (3) (2) Stock options Restricted stock units depicted in the table above were granted to our current directors (other than Dr. Bernick) for serving on our Board of Directors on June 20, 201918, 2020 and will vest on June 20, 202018, 2021 for our current directors. Restricted stock units were granted to Dr. Barlow and Mr. LaPenta, Jr. on June 26, 2020 and will vest on June 26, 2021.   (4) (3) On December 31, 2019, each of the directors listed in the “Director Compensation” table had option awards outstanding to purchase the following number of shares of common stock: Dr. Bernick (1,260,000), Mr. Collins (570,000), Mr. LaPenta (570,000), Mr. Thompson (1,095,000), Mr. Segal (587,057), Mr. Musing (695,000), Mr. Russell (350,000), Mr. Carroll (350,000), Dr. Barlow (175,000) and there were no forfeituresresigned as a director of stock options by anyour company as of such directors in fiscal 2019. (4) March 20, 2020. Dr. Bernick receivesreceived no additional compensation for his duties as a director of our company. For the year ended December 31, 2019, Dr. Bernick received a grant of stock options forThrough his services as an officer of our company valued at $484,467. (5) Dr. Bernick receives no additional compensation for his dutiesresignation as a director of our company. For the year ended December 31, 2019,on March 20, 2020, Dr. Bernick received cash compensation for his services as an officer of our company in the amount of $637,500.$91,072 and other compensation totaling $5,538, consisting of employer match to 401(k) plan of $1,308 and medical benefit premiums paid by the company.   (5) On April 16, 2020, Dr. Barlow and Mr. LaPenta, Jr. resigned from our Board of Directors. All Other Compensation for Dr. Barlow and Mr. LaPenta, Jr. include consulting fees paid for post-resignation consulting services.   (6) On April 16, 2020, our Board of Directors appointed Mr. Bisaro and Dr. Naughton as directors.   (7) On April 16, 2020, our Board of Directors appointed Ms. Ling as a director. (8) On March 20, 2020, Mr. Segal resigned from our Board of Directors. All Other Compensation for Mr. Segal includes consulting fees paid for post-resignation consulting services. 49 REPORT OF THE AUDIT COMMITTEE The Board of Directors has appointed an Audit Committee consisting of independent directors. All of the members of the committee must be “independent” of our company and management, as independence is defined in applicable rules of the SEC and the Nasdaq listing standards. The purpose of the Audit Committee is to assist the oversight of our Board of Directors in the integrity of the financial statements of our company, our company’s compliance with legal and regulatory matters, the independent auditor’s qualifications and independence, and the performance of our company’s independent auditor and any internal audit function. The primary responsibilities of the committee include overseeing our company’s accounting and financial reporting process and audits of the financial statements of our company. Management has the primary responsibility for the financial statements and the reporting process, including the systems of internal controls. The independent auditor is responsible for auditing the financial statements and expressing an opinion on the conformity of those audited financial statements with generally accepted accounting principles. In this context, the Audit Committee met and held discussions with management and the independent registered public accounting firm. Management represented to the Audit Committee the audited financial statements were prepared in accordance with generally accepted accounting principles. The Audit Committee reviewed and discussed the audited financial statements with management and the independent registered public accounting firm. The Audit Committee discussed with the independent registered public accounting firm the matters required to be discussed by the applicable requirements of the Public Company Accounting Oversight Board (“PCAOB”) and the SEC. The independent registered public accounting firm also provided to the Audit Committee the written disclosures and the letter required by the applicable requirements of the PCAOB regarding the independent accountant’s communications with the Audit Committee concerning independence. The Audit Committee discussed with the independent registered public accounting firm that firm’s independence. The Audit Committee discussed with our independent auditor the overall scope and plans for its audit. The Audit Committee meets with the independent auditor, with and without management present, to discuss the results of the independent auditor’s examinations, its evaluations of our company, the internal controls, and the overall quality of the financial reporting. The Audit Committee held sixfive meetings in 2019. 2020. Based on the reviews and discussions referred to above, the Audit Committee recommended to the Board of Directors, and the Board of Directors approved, that the audited financial statements be included in the Annual Report on Form 10-K for the fiscal year ended December 31, 20192020 for filing with the SEC. The report has been furnished by the Audit Committee of our Board of Directors.   May 4, 2020 April [●], 2021 Angus C. Russell, Chairman Paul M. Bisaro Cooper Collins   37  50 2021 PROXY STATEMENT DELINQUENT SECTION 16(A) REPORTS Section 16(a) of the Exchange Act requires our directors, officers, and persons who own more than 10% of a registered class of our equity securities to file reports of ownership and changes in ownership with the SEC. These regulations require the directors, officers, and persons who own more than 10% of a registered class of our equity securities to furnish us with copies of all Section 16(a) forms they file. Based solely upon our review of the copies of such forms received by us during the fiscal year ended December 31, 2020, and written representations that no other reports were required, we believe that each person who, at any time during such fiscal year was a director, officer, or persons who own more than 10% of a registered class of our equity securities, complied with all Section 16(a) filing requirements during such fiscal year, except that Mr. Finizio filed a late Form 4 on March 8, 2021 in connection with a gift of 300,000 shares of common stock made on February 28, 2020. 51     SECURITY OWNERSHIP OF PRINCIPAL STOCKHOLDERS, DIRECTORS, AND OFFICERS The following table sets forth information regarding the beneficial ownership of our common stock as of April 20, 2020,March 24, 2021, by the following:   ● each of our directors and executive officers; each of our directors and named executive officers;   ● all of our directors and executive officers as a group; and all of our directors and executive officers as a group; and   ● each person, or group of affiliated persons, who is known by us to beneficially own more than 5% of our common stock. each person, or group of affiliated persons, who is known by us to beneficially own more than 5% of our common stock. Beneficial ownership is determined according to the rules of the SEC and generally means that a person has beneficial ownership of a security if he, she, or it possesses sole or shared voting or investment power of that security, including options and warrants that are currently exercisable or exercisable within 60 days of April 20, 2020.March 24, 2021. Shares issuable pursuant to stock options, warrants, and convertible securities are deemed outstanding for computing the percentage of the person holding such options, warrants, or convertible securities but are not deemed outstanding for computing the percentage of any other person. Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the persons named in the table below have sole voting and investment power with respect to all shares of common stock shown that they beneficially own, subject to community property laws where applicable. The information does not necessarily indicate beneficial ownership for any other purpose. Unless otherwise indicated, the address of each beneficial owner listed in the table below is c/o TherapeuticsMD, Inc., 951 Yamato Road, Suite 220, Boca Raton, Florida 33431.       Shares Beneficially Owned Name of Beneficial Owners   Number   Percent(1)  Executive Officers and Directors:         Robert G. Finizio(2)     22,811,772       8.32 % John C.K. Milligan, IV(3)     7,950,606       2.90 % Daniel A. Cartwright(4)     2,088,334       *   Mitchell L. Krassan(5)     997,992       *   Michael Donegan(6)     331,666       *   Tommy G. Thompson(7)     1,677,956       *   Paul M. Bisaro(8)     —         —     J. Martin Carroll(9)     285,000       *   Cooper C. Collins(10)     561,000       *   Karen L. Ling(11)     —         —     Jules A. Musing(12)     625,000       *   Gail K. Naughton, Ph.D.(8)     —         —     Angus C. Russell(13)     368,500       *   All executive officers and directors as a group (13 persons)(14)     37,697,826       13.76 %                   5% Stockholders:                 JPMorgan Chase & Co.(15)     19,718,046       7.26 % T. Rowe Price Associates, Inc.(16)     19,239,545       7.08 % BlackRock, Inc.(17)     18,259,143       6.72 % FMR LLC(18)     17,677,475       6.51 % Vanguard Group Inc.(19)     16,595,225       6.11 %      Shares Beneficially Owned         Name of Beneficial Owners    Number      Percent(1)         Executive Officers and Directors:         Robert G. Finizio(2)      22,512,808        5.56 %    John C.K. Milligan, IV(3)      8,079,228        2.00 %    Edward Borkowski      145,167        *     Tommy G. Thompson(4)      1,799,156        *     Paul M. Bisaro      50,000        *     J. Martin Carroll(5)      360,000        *     Cooper C. Collins(6)      710,000        *     Karen L. Ling      —        *     Jules A. Musing(7)      700,000        *     Gail K. Naughton, Ph.D.      —        *     Angus C. Russell(8)      443,500        *     All executive officers and directors as a group (14 persons)(9)      34,799,859        8.60 %    5% Stockholders:         BlackRock, Inc.(10)      21,419,273        5.33 %            * Represents less than 1% of the outstanding shares of our common stock.   (1) Applicable percentage of ownership is based on 271,683,266402,057,607 shares of common stock outstanding as of April 20, 2020,March 24, 2021, as adjusted for each stockholder. (2) Includes (i) 18,325,96417,901,00 shares held by Mr. Finizio directly, (ii) 1,004,941 shares held indirectly by Mr. Finizio through a grantor-retained annuity trust, (iii) 995,0592,000,000 shares held by Robert Finizio Revocable Trust, (iv) 2,306,808(iii) 2,453,475 shares issuable to Mr. Finizio upon the exercise of vested stock options, and (v) 179,000(iv) 158,333 shares issuable to Mr. Finizio upon the exercise of ain connection with vested warrant.restricted stock units.   (3) Represents Includes (i) 3,582,373 shares held by John C.K. Milligan Revocable Trust U/A 08/10/2009, as amended 11/22/2011 or the Trust,(the Trust), (ii) 1,472,419 shares held by Goldman Sachs & Co f/b/o John Milligan IRA, (iii) 434,814 shares held indirectly by the Milligan Irrevocable Nonexempt Trust – 2014, (iv) 72,0001,693,455 shares held by Mr. Milligan directly, (v) 2,210,000(iii) 2,700,000 shares issuable to Mr. Milligan upon the exercise of vested stock options, and (vi) 179,000(iv) 158,333 shares issuable to Mr. Milligan upon the exercise of ain connection with vested warrant.restricted stock units awards. Mr. Milligan serves as the trustee and is the beneficiary of the Trust. 52   (4) Represents (i) 1,488,334 shares issuable to Mr. Cartwright upon the exercise of vested stock options and (ii) 600,000 shares issuable to Mr. Cartwright upon the exercise of a vested warrant. 2021 PROXY STATEMENT    (5) Represents 997,992 shares issuable to Mr. Krassan upon the exercise of vested stock options.    (4) (6) Represents 331,666 shares issuable to Mr. Donegan upon the exercise of vested stock options. (7) Represents Includes (i) 690,900699,600 shares held by Thompson Family Investments, LLC, an entity solely owned by Thompson Family Holdings, LLC, an entity solely owned by Mr. Thompson, (ii) 3,555 shares held by Mr. Thompson directly, (iii) 1,001 shares held indirectly by Thompson Family Holdings, LLC and (iv) 982,5001,095,000 shares issuable to Mr. Thompson upon the exercise of vested stock options. (5) (8) Appointed to the Board of Directors on March 20, 2020. (9) Includes (i) 10,000 shares held by Mr. Carroll directly and (ii) 275,000350,000 shares issuable to Mr. Carroll upon the exercise of vested stock options. (6) (10) Includes (i) 66,000140,000 shares held by Mr. Collins directly and (ii) 495,000570,000 shares issuable to Mr. Collins upon the exercise of vested stock options. (7) (11) Appointed to the Board of Directors on April 16, 2020. (12) Includes (i) 5,000 shares held directly by Mr. Musing directly and (ii) 620,000695,000 shares issuable to Mr. Musing upon the exercise of vested stock options. (8) (13) Includes (i) 93,500 shares held by Mr. Russell directly and (ii) 275,000350,000 shares issuable to Mr. Russell upon the exercise of vested stock options. (9) (14) This amount includes all shares directly and indirectly owned by all executive officers and directors and all shares issuable directly and indirectly upon the exercise of vested stock options and warrants held by our executive officers and directors. (10) (15) JPMorgan Chase & Co. has sole voting power over 17,413,431 shares and sole dispositive power over 19,718,046 shares. JPMorgan Chase & Co.’s address is 383 Madison Avenue, New York, NY 10179. This information is based on Amendment No. 3 to Schedule 13G filed with the SEC on January 21, 2020. Reported ownership includes shares held by subsidiaries listed in the filing. (16) T. Rowe Price Associates, Inc. has sole voting power over 3,708,195 shares and sole dispositive power over 19,239,545 shares. T. Rowe Price Associates, Inc.’s address is 100 E. Pratt Street, Baltimore, MD 21202. This information is based on Amendment No. 7 to Schedule 13G filed with the SEC on February 14, 2020. (17) BlackRock, Inc. has sole voting power over 17,866,17821,160,936 shares and sole dispositive power over 18,259,14321,419,273 shares. BlackRock, Inc.’s address is 55 East 52nd Street, New York, NY 10055. This information is based on Amendment No. 34 to Schedule 13G filed with the SEC on February 6, 2020.1, 2021. Reported ownership includes shares held by subsidiaries listed in the filing.      (18) FMR LLC and Abigail P. Johnson have sole voting power over 1,495,370 shares and sole dispositive power over 17,677,475 shares. The address of FMR LLC is 245 Summer Street, Boston, MA 02210. This information is based on Amendment No. 9 to Schedule 13G filed with the SEC on February 7, 2020. Reported ownership includes shares held by subsidiaries listed in the filing. 53   (19) Vanguard Group Inc. has sole voting power over 443,655 shares, shared voting power over 13,425 shares, sole dispositive power over 16,175,105 shares and shared dispositive power over 420,120 shares. The Vanguard Group’s address is 100 Vanguard Blvd., Malvern, PA 19355. This information is based on Amendment No. 2 to Schedule 13G filed with the SEC on February 12, 2020. Reported ownership includes shares held by subsidiaries listed in the filing.   PROPOSAL TWO ADVISORY VOTE PROPOSAL TWO ADVISORY VOTEON EXECUTIVE COMPENSATION EXECUTIVE COMPENSATION (“SAY-ON-PAY”SAY-ON-PAY”) Background The Dodd-Frank Act enables our stockholders to vote to approve, on an advisory (non-binding) basis, the compensation of our NEOs as disclosed in this proxy statement in accordance with the SEC’s rules. Summary Pursuant to Section 14A of the Exchange Act, we are asking our stockholders to provide advisory approval of the compensation of our NEOs, (which consist of our Chief Executive Officer, our Chief Financial Officer, and our three other most highly compensated executive officers during our last completed fiscal year), as such compensation is described in the Compensation Discussion and Analysis section, the tabular disclosure regarding such compensation, and the accompanying narrative disclosure set forth in this proxy statement, beginning on page 16.statement. Our executive compensation program is designed to enable us to attract, motivate, and retain highly qualified executives. This program provides long-term stock-based incentive compensation that focuses our executives’ efforts on building stockholder value by aligning their interests with those of our stockholders. We urge our stockholders to review the Compensation Discussion and Analysis section included in this proxy statement and the executive-related compensation tables for more information. It is expected that the next say-on-pay vote will occur at the 20212022 annual meeting of stockholders. Board Recommendation Our Board of Directors believes that the information provided within the “Executive Compensation” section of this proxy statement demonstrates our executive compensation program is designed appropriately and is working to ensure our NEOs receive the majority of their compensation based on performance-driven considerations and that management’s interests are aligned with our stockholders’ interests to support long-term value creation. The following resolution is submitted for a stockholder vote at the annual meeting: RESOLVED, that the stockholders of the Company approve, on an advisory basis, the compensation of the Company’s named executive officers for the fiscal year ended December 31, 2019,2020, as disclosed in the Compensation Discussion and Analysis section, compensation tables, and narrative discussion set forth in this proxy statement. Vote Required The say-on-pay vote is advisory, and therefore not binding on our company, the Compensation Committee, or our Board of Directors. Although non-binding, the vote will provide information to the Compensation Committee and our Board of Directors regarding investor sentiment about our executive compensation philosophy, policies, and practices, which the Compensation Committee and our Board of Directors will be able to consider when determining executive compensation for the years to come.   OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” ADOPTION OF THE RESOLUTION APPROVING THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS FOR THE FISCAL YEAR ENDED DECEMBER 31, 2019, OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” ADOPTION OF THE RESOLUTION APPROVING THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS FOR THE FISCAL YEAR ENDED DECEMBER 31, 2020, AS DESCRIBED IN THE COMPENSATION DISCUSSION AND ANALYSIS SECTION AND THE RELATED TABULAR AND NARRATIVE DISCLOSURE SET FORTH IN THIS PROXY STATEMENT.   54 2021 PROXY STATEMENT   PROPOSAL THREEPROPOSAL THREE APPROVALOF NON-EXECUTIVE STOCK OPTION EXCHANGE PROGRAM AMENDMENT TO AMENDED AND RESTATED ARTICLES OF INCORPORATION, AS AMENDEDIntroduction Overview Our Board of Directors has approved the amendment to our Amended and Restated Articles of Incorporation, as amended, subject toWe are seeking stockholder approval of an option exchange program, or the Non-Executive Option Exchange Program, that would allow current employees, not including advisers, consultants, contractors, named executive officers, or present or past non-employee directors, referred to increaseas Eligible Employees, to exchange significantly out-of-the-money or “underwater” options to purchase shares of our common stock for the issuance of new restricted stock units, or New RSUs, that may be settled for a lesser number of shares (as determined in accordance with the “Exchange Ratio” as defined below) that will be granted under the 2019 Plan. We anticipate that the New RSUs will be granted on or around July 1, 2021, or the Exchange Date, immediately following the close of the program. We would like to offer this program to Eligible Employees because we believe that it will provide a more cost-effective retention and incentive tool than issuing additional equity or paying cash compensation to Eligible Employees. We believe that, if approved by our stockholders, the Non-Executive Option Exchange Program could permit us to enhance long-term stockholder value by restoring competitive incentives to the participants so they are further motivated to complete and deliver the important strategic and operational initiatives of our company, as exercise prices significantly in excess of market price undermine the effectiveness of equity-denominated awards as employee performance and retention incentives. In addition, the Non-Executive Option Exchange Program will allow us to reduce our equity award “overhang” (that is, the number of authorized shares of common stock from 350,000,000 sharessubject to 600,000,000 shares,outstanding equity awards relative to the Share Increase, and recommends unanimously that our stockholders approve the Share Increase. The proposed amendment is reflected in the Charter Amendment attached to this proxy statement as Appendix A. For avoidance of doubt, this Proposal Three will only amend Article IV of our Amended and Restated Articles of Incorporation, as amended, to increase the number of authorized shares of common stock by 250,000,000. You are encouraged to read the Charter Amendment in its entirety. The additional 250,000,000 shares of common stock will be part of the existing class of common stock, and, if and when issued, would have the same rights and privileges as the shares of common stock presently issued and outstanding. The Company’s Amended and Restated Articles of Incorporation, as amended, has not been previously amended to increase the number of authorized shares of common stock since June 2015. Purpose Our Board of Directors believes that the authorizedtotal number of shares of common stock shouldoutstanding) through the cancellation of outstanding stock options that currently provide no meaningful retention or incentive value to our employees. Overview At the end of 2020, the Compensation Committee began considering, with input from Meridian, whether an option exchange program would assist with retaining and incentivizing our employees. After a series of discussions and after consideration of various design alternatives, in February 2021 our Compensation Committee recommended to our Board, and our Board subsequently authorized, that we pursue a stock option exchange program for Eligible Employees. Under the proposed Non-Executive Option Exchange Program, if approved by our stockholders, each New RSU will be increasedgranted under the 2019 Plan and will have a new vesting schedule of three years, with vesting in equal annual installments, to promote retention. The New RSUs will cover a lesser number of shares of our common stock than the Eligible Options in accordance with the Exchange Ratio as a matterdescribed below. Any Eligible Options exchanged for New RSUs will be cancelled and the net shares underlying the Eligible Options granted in excess of good corporate governancethe shares underlying the New RSUs will not be returned to provide sufficient sharesthe pool available for such corporate purposes as may reasonably be determined byissuance under the 2019 Plan. Under the listing rules of NASDAQ and our 2019 Plan, stockholder approval is required to implement the Non-Executive Option Exchange Program. If our stockholders approve this proposal, our Board of Directors intends to commence the exchange offer as soon as practicable following the annual meeting, but in no event later than 12 months thereafter. If we do not obtain stockholder approval of this proposal, we will not be necessaryable to implement the Non-Executive Option Exchange Program and the current terms of the Eligible Options as described below will remain in effect. Reasons for the best interestNon-Executive Option Exchange Program We believe that an effective and competitive employee incentive program is imperative for the future growth and success of our companycompany. We rely on our employees to implement our strategic initiatives, expand and stockholders. These purposes may include, but are not limited to:develop our business, and satisfy customer needs. Competition for many of these   ● expanding our business through the acquisition of other businesses, products or assets; 55   ● establishing partnerships, collaborations and/or other strategic relationships with other companies; ● raising capital through the future sale of our common stock when necessary or appropriate; and ● attracting and retaining valuable employees by providing shares available for equity incentives. Our employees, particularly in the pharmaceutical industry, is intense and many companies use stock options as a means of attracting, motivating, and retaining their best employees. Stock options historically constituted a key part of our hiring, incentive, and retention programs because our Board of Directors believes that these additional shares would provide us with needed flexibilityequity compensation encourages employees to issue sharesact like owners of the business, motivating them to work toward our success and rewarding their contributions by allowing them to benefit from increases in the future without potential expense or delay incidentvalue of our common stock. When the Compensation Committee approves the grant of a stock option, it establishes the exercise price that the employee must pay to obtaining stockholder approval for a particular issuance. Currently, we do not have any specific plans, arrangements, undertakings or agreements for the proposed increase of authorized shares in connection with any of the foregoing prospective activities. Once authorized, the additionalpurchase shares of our common stock may be issued with approval of our Board of Directors but without further approval from our stockholders, unless applicable law, rule or regulation requires stockholder approval for such issuance. Stockholder approval ofwhen the Share Increaseoption is required under Nevada law. Proposed Changes to the Amended and Restated Articles of Incorporation, as Amended exercised. The proposed Share Increase will increase the number of shares of common stock authorized for issuance from 350,000,000 shares to 600,000,000 shares. The Company is currently authorized to issue 360,000,000 shares of capital stock, of which 350,000,000 shares are designated as common stock and 10,000,000 shares are designated as preferred stock, $0.001 par value per share (“preferred stock”) (noneexercise price is set at the closing price of which are currently issued and outstanding). The Share Increase will not change any substantive terms of the common stock or preferred stock or any powers or rights of their respective holders. The common stock will continue to be listed and traded on the Nasdaq Global Select Market under the symbol “TXMD.” If Proposal Three is approved, we intend to amend our Amended and Restated Articles of Incorporation, as amended, in connection with implementing the proposal. A copy of the Charter Amendment is attached to this proxy statement as Appendix A. Certain Risks Associated with the Charter Amendment There can be no assurance that the market price pera share of our common stock afteras reported by NASDAQ on the Charter Amendment will remain constantdate the option is granted. Thus, an employee receives value only if the employee exercises an option and sells the purchased shares at a price that exceeds the stock option’s exercise price. In recent years, the market price of our common stock has been subject to material fluctuations, many of which were outside the control of our company and our employees. For example, our common stock has been subject to large short sale positions, as well as to FDA regulatory hurdles that were eventually overcome. As a result, as of March 24, 2021, 146 Eligible Employees held options to purchase 5,456,500 shares of our common stock with exercise prices ranging from $5.01 per share to $8.92 per share, which is above our common stock’s March 24, 2021 closing price of $1.35. The “out-of-the-money” options are no longer effective as performance and retention incentives. We believe that to enhance long-term stockholder value we need to maintain competitive employee incentive and retention programs. An equity stake in proportionthe success of our company is a critical component of these programs. Although we continue to believe that stock options are an important component of our employees’ total compensation, many of our employees view their existing stock options as having little or no value due to the difference between the exercise prices and the current market price of our common stock. As a result, for many employees, these options are ineffective at providing the incentives and retention value that our Board of Directors believes is necessary to motivate our employees to increase long-term stockholder value. We believe the Non-Executive Option Exchange Program will provide us with an opportunity to restore for Eligible Employees an incentive to remain with us and contribute to the future growth and success of our company. When considering how best to continue to incentivize and reward our employees who have out-of-the-money stock options, the Compensation Committee engaged Meridian to review and evaluate strategies to address this issue. After analyzing all relevant factors, we determined that a program under which Eligible Employees could exchange stock options with an exercise price greater than or equal to a number determined using the Threshold Exercise Price calculation for New RSUs, was the most attractive for a number of reasons, including the following: • Reasonable, Balanced Incentives. We believe that the opportunity to exchange Eligible Options for New RSUs to be granted with fewer shares, together with a new minimum vesting requirement, represents a reasonable and balanced exchange program with the potential for a significant positive impact on employee retention, motivation, and performance. • Reduction of the Number of Shares Subject to Outstanding Options. As of March 24, 2021, there were 5,456,500 Eligible Options with a weighted average exercise price of $6.40. If approved by our stockholders, the Non-Executive Option Exchange Program is expected to result in a net reduction in the overhang of our equity awards by approximately 4,099,272 shares, or approximately 0.93% of the number of shares of our common stock outstanding plus potentially dilutive shares of our common stock related to outstanding options, warrants, restricted stock units and performance stock units as of March 24, 2021. The actual reduction in our overhang that may result from the Non-Executive Option Exchange Program could vary significantly and is dependent upon a number of factors, including the actual level of participation in the Non-Executive Option Exchange Program and the actual Exchange Ratio. All Eligible Options that are not exchanged will remain outstanding and in effect in accordance with their existing terms. • Reduced Pressure for Additional Grants. If we are unable to implement the Non-Executive Option Exchange Program, we may find it necessary to issue additional new equity awards to our 56 2021 PROXY STATEMENT employees, increasing our overhang. These grants would deplete the current pool of shares available for future grants under our Plan and would also result in increased stock compensation expense, which could negatively impact our stock price. • Impact on accounting expense. Under applicable accounting rules, we are required to continue to recognize compensation expense related to these underwater stock options as they vest, even if they are never exercised because they remain underwater. We believe the Non-Executive Option Exchange Program will allow us to recapture retentive and incentive value from the compensation expense that we have recorded in our financial statements with respect to our Eligible Options. The New RSUs are not expected to result in additional compensation expense and may reduce compensation expense. The New RSUs will therefore not have a material adverse impact on our reported earnings. Description of the Material Terms of the Non-Executive Option Exchange Program Implementing the Non-Executive Option Exchange Program. If our stockholders approve this proposal, and our Board of Directors determines to implement the Non-Executive Option Exchange Program, we expect the Non-Executive Option Exchange Program to commence within twelve months following the date of the annual meeting. The Non-Executive Option Exchange Program is currently anticipated to occur in July 2021. If the Non-Executive Option Exchange Program does not commence within this time frame, we would only proceed with an option exchange program after first seeking stockholder approval. Even if the Non-Executive Option Exchange Program is approved by our stockholders, our Board of Directors will retain the authority, in its sole discretion, to terminate or postpone the Non-Executive Option Exchange Program at any time prior to the closing of the tender offer or to exclude certain Eligible Options or Eligible Employees from participating in the Non-Executive Option Exchange Program. Upon the commencement of the offer, or the Offer Date, Eligible Employees will receive a written offer setting forth the terms and timing of the Non-Executive Option Exchange Program and may voluntarily elect to participate. The written offer will be governed by the tender offer rules of the SEC. At or before the Offer Date, we will file the offer to exchange and other related documents with the SEC as part of a tender offer statement on Schedule TO. Eligible Employees, as well as stockholders and members of the public, will be able to obtain the Offer to Exchange and other documents filed by us with the SEC free of charge from the SEC’s website at www.sec.gov. Pursuant to the SEC tender offer rules, we will give Eligible Employees at least 20 business days to elect to surrender Eligible Options in exchange for a lesser amount of New RSUs in accordance with the Exchange Ratio. Eligible Options for the Non-Executive Option Exchange Program. To be eligible for exchange under the Non-Executive Option Exchange Program, an option (1) must be outstanding as of the closing of the Non-Executive Option Exchange Program, (2) must be granted on or prior to the date that is 12 months preceding the Offer Date, and (3) must have an exercise price per share greater or equal to the Threshold Exercise Price. As of March 24, 2021, options to purchase 23,714,180 shares of our common stock were outstanding, of which options to purchase 5,456,500 shares would be eligible for exchange under the Non-Executive Option Exchange Program (assuming the Non-Executive Option Exchange Program closes on July 1, 2021 and using a Threshold Exercise Price of $5.01 for the calculation). Eligibility. The Non-Executive Option Exchange Program will be open to all Eligible Employees. Our named executive officers, past or present advisers, consultants, contractors, former employees, or present or past members of our Board will not be eligible to participate in the Non-Executive Option Exchange Program. To be eligible, an employee must be employed by us at the time the tender offer commences. Additionally, to receive the New RSUs, an Eligible Employee who exchanges Eligible Options must be an employee on the Grant Date of such New RSUs. As of March 24, 2021, there were approximately 146 Eligible Employees in the company who held Eligible Options. Calculation of Exchange Ratio. The Non-Executive Option Exchange Program is not a one-for-one exchange. The total number of shares of our common stock underlying a New RSU that an Eligible Employee will receive with respect to exchanged Eligible Options will be determined by dividing the number of shares of our common stock outstandingunderlying the exchanged Eligible Options by the Exchange Ratio and rounding to the nearest whole number. 57 Shortly before the Charter Amendment.commencement of the Non-Executive Option Exchange Program, our Compensation Committee will determine the Exchange Ratio by assigning an average exchange ratio to each of the pools of outstanding stock options TheAlthough the Exchange Ratio cannot be determined prospectively because the fair market pricevalue of our common stock will also bechange prior to commencement of the Non-Executive Option Exchange Program, the table below provides an example of the Exchange Ratio that our Compensation Committee would use if the fair market value of our common stock is $1.33 per share shortly before the commencement of the Non-Executive Option Exchange Program. As illustrated in the table below, the applicable Exchange Ratio will vary based on our performance and other factors, somethe exercise price of which are unrelatedthe Eligible Option. If the Exercise Price of an Eligible Option is: The Exchange Ratio would be (Eligible options to New RSUs): $5.01 to $5.50 3.65 for 1 $5.51 to $6.00 2.90 for 1 $6.01 to $6.50 3.55 for 1 $6.51 to $7.00 4.20 for 1 $7.01 to $8.00 7.20 for 1 $8.01 to $9.00 4.65 for 1 In this example, if an Eligible Employee elected to exchange an Eligible Option to purchase 1,000 shares with an exercise price of $5.10 per share, that Eligible Employee would receive 274 New RSUs (that is, 1,000 divided by 3.65, with the result rounded to the nearest whole number, equals 274). For illustrative purposes only, the following table shows the number of shares outstanding. These factors include the status of the market for our common stock our reported resultsunderlying outstanding Eligible Options as of operationsMarch 24, 2021, excluding for this purpose, any Eligible Options that expire by their terms on or prior to an assumed closing date of the Non-Executive Option Exchange Program of July 1, 2021, categorized by the exchange ratios in future periods, and general economic, market and industry conditions.the example above.   Exercise Price Range of Eligible Options    Maximum Number of Shares Underlying Eligible Options      Weighted Average Exercise Price      Weighted Average Remaining Life (in Years)      Exchange Ratio     Maximum New RSUs Granted   $5.01 to $5.50      1,812,000      $ 5.14        5.7        3.65 for 1       496,441   $5.51 to $6.00      1,174,000      $ 5.66        7.3        2.90 for 1       404,810   $6.01 to $6.50      437,000      $ 6.33        6.5        3.55 for 1       123,101   $6.51 to $7.00      727,500      $ 6.83        6.0        4.20 for 1       173,212   $7.01 to $8.00      283,500      $ 7.66        4.5        7.20 for 1       39,369   $8.01 to $9.00      1,022,500      $ 8.86        4.8        8.50 for 1       120,295   Total      5,456,500      $ 6.40        6.0        4.65 for 1       1,357,228   Election to Participate. Participation in the Non-Executive Option Exchange Program will be voluntary. The Non-Executive Option Exchange Program will not be conditioned on a minimum level of participation. Eligible Employees will be permitted to exchange all or none of their Eligible Options for New RSUs on a grant-by-grant basis. Principal EffectsVesting of New RSUs. The New RSUs will not be exercisable on Outstanding Common Stock Holders of common stockthe date they are entitled to one vote per share on all matters submitted to a vote of stockholders. Upon a liquidation, dissolution or windup of our company, holders of common stock would be entitled to share ratablygranted, even if the corresponding exchanged Eligible Options had previously become exercisable. The New RSUs will vest and become exercisable in any assets for distribution to stockholders after payment of all ofthree equal annual installments following the company’s obligations,Grant Date, subject to the rightscontinuous service of the Eligible Employee and other relevant terms and conditions of our 2019 Plan. Other Terms and Conditions of the New RSUs. The other terms and conditions of the New RSUs will be set forth in an award agreement to receive preferential distributionsbe entered into as of the Grant Date. The shares of our common stock underlying the New RSUs are currently registered on a registration statement filed with the SEC. 58 2021 PROXY STATEMENT Treatment of Net Shares and Impact of 2019 Plan. The Eligible Options exchanged for New RSUs will be cancelled. The net shares underlying the Eligible Options in excess of the shares underlying the New RSUs will not be returned to the 2019 Plan. Accounting Impact and Treatment. The Exchange Ratio will be applied on a grant-by-grant basis and will generally be designed to result in a fair value, for accounting purposes, of the New RSUs that will be approximately 95% of the fair value of the Eligible Options (based on valuation assumptions made shortly before the Non-Executive Option Exchange Program commences). The Exchange Ratio will be established by grouping together Eligible Options with certain exercise prices and assigning an appropriate Exchange Ratio to each grouping, based on the fair value of the Eligible Options (calculated using the Black-Scholes model in compliance with ASC Topic 718) within the relevant grouping. The incremental compensation expense associated with the Non-Executive Option Exchange Program will be measured as the excess, if any, of the fair value of each New RSU granted to participants in the Non-Executive Option Exchange Program, measured as of the date the New RSUs are granted, over the fair value of the Eligible Options surrendered in exchange for the new RSUs, measured immediately prior to the cancellation. We do not expect the incremental compensation expense, if any, to be material. We will recognize any such incremental compensation expense ratably over the vesting period of the New RSUs. United States Federal Income Tax Consequences. The following is a summary of the anticipated material United States federal income tax consequences of participating in the Non-Executive Option Exchange Program. A more detailed summary of the applicable tax considerations to participants will be provided in the tender offer. We believe the exchange of Eligible Options for New RSUs pursuant to the Non-Executive Option Exchange Program should be treated as a nontaxable exchange, and no income should be recognized for United States federal income tax purposes by us or our employees upon the grant of the New RSUs. However, the Internal Revenue Service is not precluded from adopting a contrary position, and the laws and regulations themselves are subject to change. A more detailed summary of the applicable tax considerations to Eligible Employees will be provided in the tender offer. Potential Modifications to Terms to Comply with Governmental Requirements. The terms of the Non-Executive Option Exchange Program will be described in a tender offer that we will file with the SEC. Although we do not anticipate that the SEC will require us to modify the terms significantly, it is possible we will need to alter the terms of the Non-Executive Option Exchange Program to comply with comments from the SEC. Changes in the terms of the Non-Executive Option Exchange Program may also be required for tax purposes as the laws and regulations are subject to change. Effect on Stockholders We are not able to predict the impact the Non-Executive Option Exchange Program will have on your interests as a stockholder, as we are unable to predict how many participants will exchange their Eligible Options or what the fair market value of our common stock will be on the Grant Date. If the Non-Executive Option Exchange Program is approved, the exchange ratios will result in the issuance of fewer shares subject to the New RSUs than were subject to the exchanged Eligible Options and may result in an incremental compensation expense for financial reporting purposes. In addition, the Non-Executive Option Exchange Program is intended to reduce both our existing stock option overhang and our need to issue supplemental equity awards in the future to remain competitive with our competitors. 59 Vote Required The affirmative vote of the holders of any preferreda majority of the shares of our common stock then outstanding.present or represented and voting at the Annual Meeting is required to approve the Non-Executive Option Exchange Program. If you are both a stockholder and an employee holding Eligible Options, please note that voting to approve the Non-Executive Option ExchangeProgram does not constitute an election to participate in the Non-Executive Option ExchangeProgram.   OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” ADOPTION OF THE RESOLUTION APPROVING THE NON-EXECUTIVE OPTION EXCHANGE PROGRAM. 60 2021 PROXY STATEMENT PROPOSAL FOUR APPROVALOF AMENDMENTTO THERAPEUTICSMD, INC. 2019 STOCK INCENTIVE PLAN Background and Purpose On June 20, 2019, our stockholders approved the 2019 Plan. On April [●], 2021, our Board of Directors adopted an amendment to the 2019 Plan to increase the maximum number of shares available under the 2019 Plan which requires stockholder approval. The additionalBoard approved subject to stockholder approval an increase of the maximum number of shares that we may issue under the 2019 Plan by 22,475,000shares, which will enable us to continue to grant awards to deserving individuals and remain competitive with our industry peers. As of March 24, 2021, 2,499,815 shares remain available for issuance under the 2019 Plan. The approval of the proposed amended and restated 2019 Plan will allow us to continue to provide such incentives under the 2019 Plan. If the proposal is not approved, we believe we would be at a significant disadvantage against our competitors for recruiting, retaining and motivating those individuals who are critical to our success. If stockholders approve the amendment to the 2019 Plan, subject to adjustment in the event of stock splits and other similar events, the aggregate number of awards that may be made under the 2019 Plan shall be equal to the sum of (i) 37,475,000 shares of common stock would have rights identical to our common stock currently outstanding. Approvaleffective as of approval of this amendment (which includes the Share Increase and any issuance of common stock would not affect the rights of the holders of our common stock currently outstanding, except to the extent that future issuances of common stock would reduce each existing stockholder’s proportionate ownership. If the proposed Share Increase is approved and the Board of Directors decides to issueshare increase set forth in this proposal) plus (ii) such shares of common stock, such issuance of common stock would increase the outstandingadditional number of shares of common stock thereby causing dilution in earnings per share and voting interestsas is equal to (x) the number of the outstanding common stock. As of the record date, 271,683,266 shares of our common stock were issued and outstanding, 33,840,758 shares of our common stock were subject to outstanding stock options, warrants, restricted stock awards, or other convertible securities, and 4,970,994 shares of our common stock were reserved for issuance under the 2009 Plan and 2012 Plan, collectively referred to as the Prior Plans, that remained available for grant under such plans immediately prior to the date the 2019 Plan thereby leaving 39,504,982 shares of common stock unassignedwas previously approved by the company’s stockholders and authorized for potential issuance of the current 350,000,000 shares of common stock authorized. We are also asking our stockholders to approve the Purchase Plan, which would have 5,400,000 shares reserved for issuance thereunder. If the Share Increase is approved, there will be 289,504,982 shares of common stock unassigned and authorized for potential issuance. If approved, the Share Increase will not change(y) the number of shares of preferredcommon stock authorized for issuance. Additionally,subject to awards granted under the Prior Plans and the 2019 Plan, as amended, which awards expire, terminate or are otherwise surrendered, cancelled, or forfeited without the issuance of shares. (except as noted and described below). In addition, the amendment will increase the maximum number of shares that may be delivered under the 2019 Plan as a result of the exercise of incentive stock options to 37,475,000 shares in the aggregate, subject to certain adjustments. As noted in Proposal 3 of this Proxy Statement, if the Non-Executive Option Exchange Program is approved by the company’s stockholders, the net shares underlying the Eligible Options in excess of the shares underlying the New RSUs will not be returned to the 2019 Plan. Why We Are Seeking Approval of the Amendment to the 2019 Plan to Increase our Share Reserve Equity Based Long-term Incentives are a Critical Part of Our Compensation Strategy. Equity awards have been a key component of annual compensation delivery to a significant portion of our employee population. Delivering a portion of annual compensation in equity aligns employee rewards with the interests of stockholders and with the objective of long-term value creation in a cash-efficient manner. We Have Limited Capacity to Make Awards under our Existing Share Reserve. We intend to use the additional shares to recruit, retain, and motivate our key personnel. We currently have no meaningful way to provide tailored equity-based compensation grants to attract, retain and reward qualified employees because of the few shares remaining to be granted under the 2019 Plan. Stockholder approval of the share increase to the 2019 Plan is required (i) for purposes of complying with the stockholder approval requirements for listing our shares on the Nasdaq, and (ii) to comply with the incentive stock options rules under Section 422 of the Code. 61 Governance Highlights of the 2019 Plan Minimum Vesting Requirements. Minimum vesting period of one year from the date of grant for all awards granted under the 2019 Plan, except under certain circumstances and an additional exception for up to 5% of the share reserve. Double Trigger for Vesting of Time-Based Awards Upon a Change in Control. Subject to the terms of an applicable award agreement and certain exceptions, the 2019 Plan provides for vesting of time-based equity awards based on the occurrence of a change in control and accompanying involuntary termination of service, so long as the acquiring corporation following a change in control assumes the awards granted under the 2019 Plan.      Annual Limits on Grants to Employees. The maximum number of shares of stock that may be granted to an employee shall not exceed (i) 3,000,000 shares for stock options and stock appreciation rights in any single fiscal year and (ii) 3,000,000 shares for restricted stock, restricted stock units, performance shares and/or other stock-based awards in any single fiscal year. Share Counting. Any shares withheld to cover taxes or to satisfy the exercise price of stock options will not be available for future grant. Dividends on Unvested Awards Not Paid Until Vesting. Dividends on unvested awards will be withheld and paid to participants only after and to the extent the underlying awards have vested. No Cash-Out or Repricing of Underwater Options. Under no circumstances will any underwater stock options be bought back by the company. In addition, neither the Compensation Committee nor the Board of Directors has the authority to reduce the exercise price of a previously granted stock option under the 2019 Plan through amendment, replacement or exchange for a cash payment in excess of the stock options in-the-money value, unless specifically approved by stockholders, as we are seeking in Proposal 3 of this Proxy Statement. No excise tax gross-ups in the event of a Change in Control. Information Regarding Overhang and Dilution We considered both our total equity “overhang” and our historical and projected annual “burn rate” in developing our share increase to the 2019 Plan and analyzing the impact of using equity as a means of compensation on our stockholders. Overhang is a measure of potential dilution which we define as the sum of (i) the total number of shares underlying all equity awards outstanding and (ii) the total number of shares available for future award grants, divided by the sum of (a) the total number of shares underlying all equity awards outstanding, (b) the total number of shares available for future awards and (c) the number of shares outstanding. As of March 24, 2021, there were 39,302,771 shares of common stock could have the effect of making it more difficult for a third party to acquire, or discouraging a third party from attempting to acquire, control of our company. While the issuance of additionalunderlying all equity awards outstanding, 2,499,815 shares of common stock may be deemed to have potential anti-takeover effects, including by delaying or preventing a change in control of the company through subsequent issuances of these sharesavailable for future awards, and the other reasons set forth above, which among other things, could include issuances in one or more transactions that would make a change in controlnumber of the company more difficult, and therefore, less likely, this proposal to increase the authorized common stock is not prompted by any specific effort of which we are aware to accumulate shares of our common stock or obtain control of the company. A takeover may be beneficial to independent stockholders because, among other reasons, a potential suitor may offer such stockholders a premium for their shares of common stock as compared to the then-existing market price. Although the issuance of additional shares of common stock could, under certain circumstances, have an anti-takeover effect, this proposal to adopt the Charter Amendment is not in response to any attempt to accumulate common stock or obtain control of the company that we are aware of, nor is it part of a plan by management to recommend a series of similar amendments to the Board of Directors or stockholders. Vote Required Approval of Proposal Three requires the affirmative vote of a majority of the company’s outstanding stock entitled to vote thereon, meaning that the votes cast by the stockholders “FOR” the approval of the Charter Amendment must represent a majority of the shares of common stock outstanding as of March 24, 2021 was 402,057,607 shares, or 441,360,378 shares when equity awards outstanding and shares available for grant are included. Accordingly, our overhang as of March 24, 2021 was 9.42%. If the record date.22,475,000 additional shares of common stock proposed to be authorized for grant under the 2019 Plan are included in the calculation, our overhang on the date of approval of the amendment to the 2019 Plan, May 27, 2021, would be 13.78%. Our review of competitive practices, including the advice of Meridian, our independent compensation consultant, suggests that this level of overhang is competitive with and slightly below the median of similarly situated companies.   62 2021 PROXY STATEMENT Board Recommendation Burn rate provides a measure of the potential dilutive impact of our equity award program which we calculate by dividing the number of shares subject to equity awards granted during the year by the basic weighted average number of shares outstanding. Set forth below is a table that reflects our burn rate for the 2020, 2019 and 2018 calendar years as well as an average over those years.   Calendar Year   (A) Options Granted     (B) Full-Value Shares Granted     (C) Full-Value Shares Adjusted to Option Equivalents     (D) Weighted Average Number of Shares of Common Stock Outstanding     (E) Burn Rate     (F) Burn Rate Adjusted for Option Equivalents                   (B) X 1.5           ((A) + (B)) / (D)       ((A) + (C)) / D   2020     736,500       8,738,563       13,107,845       275,648,552       3.44 %      5.02 %  2019     4,620,501       1,240,000       1,860,000       246,353,318       2.38 %      2.63 %  2018     3,264,500       1,040,000       4,824,500       225,026,300       1.91 %      2.14 %  Adjusted Three Year Average Burn Rate Adjusted for Option Equivalents       3.27 %  OUR BOARD OF DIRECTORS HAS UNANIMOUSLY DETERMINED THAT APPROVAL OF THE CHARTER AMENDMENT IS IN THE BEST INTERESTS OF THE COMPANY AND ITS STOCKHOLDERS. ON THE BASIS OF THE FOREGOING, OUR BOARD OF DIRECTORS HAS UNANIMOUSLY APPROVED THE CHARTER AMENDMENT AND UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE APPROVAL OF THE CHARTER AMENDMENT. Summary of the 2019 Plan The following is a summary of certain principal features of the 2019 Plan. This summary is qualified in its entirety by reference to the complete text of the 2019 Plan and the amendment attached as Appendix A. Stockholders are urged to read the actual text of the 2019 Plan in its entirety, a copy of which is available as exhibit to our Annual Report on Form 10-K for the year ended December 31, 2020 and is available to any stockholder upon request, and Appendix A. PROPOSAL FOURPurpose The purpose of the 2019 Plan is to provide a means for us and our subsidiaries and other designated affiliates (the “Related Entities”) to attract key personnel to provide services to us and the Related Entities, as well as to provide a means by which those key persons can acquire and maintain stock ownership, resulting in a strengthening of their commitment to our welfare and the welfare of the Related Entities and promoting the mutuality of interests between participants and our stockholders. A further purpose of the 2019 Plan is to provide participants with additional incentive and reward opportunities designed to enhance our profitable growth and the profitable growth of the Related Entities, and provide participants with annual and long term performance incentives to expend their maximum efforts in the creation of stockholder value. ADOPTION OF THERAPEUTICSMD, INC. EMPLOYEE STOCK PURCHASE PLANShares Available for Awards; Annual Per-Person Limitations Under the 2019 Plan, the total number of shares of our common stock (the “Shares”) reserved and available for delivery under the plan at any time during the term of the plan will be equal to shall be equal to the sum of (i) 37,475,000 shares of common stock effective as of approval of this amendment (which includes the share increase set forth in this proposal) plus (ii) such additional number of shares of common stock as is equal to (x) the number of shares of common stock reserved for issuance under the Prior Plans that remained available for grant under such plans immediately prior to the date the 2019 Plan was approved by the company’s stockholders and (y) the number of shares of common stock subject to awards granted under the Prior Plans and the 2019 Plan, as amended, which awards expire, terminate or are otherwise surrendered, cancelled, or forfeited without the issuance of shares. On April 20, 2020,If any Shares subject to an Award under the Board of Directors adopted the TherapeuticsMD, Inc. 2020 Employee Stock Purchase2019 Plan or the PurchasePrior Plans are forfeited, expire, or otherwise terminate without issuance of such Shares is settled for cash or otherwise does not result in the issuance of all or a portion of the Shares subject to such Award, the Shares to which those Awards were subject, will, to the extent of such forfeiture, expiration, termination, non-issuance, or cash settlement, again be available for delivery with respect to Awards under the 2019 Plan except as noted below. In the event that any option or other Award granted under the 2019 Plan is exercised through the tendering of Shares (either actually or by attestation) or by the withholding of Shares by us are satisfied by the tendering of Shares (either actually or by attestation), then the total number of Shares covered by the Award, the shares so tendered or withheld will not again be available for awards under the 2019 Plan. IfIn the event that any withholding tax liabilities arising from an Award other than an option or a stock appreciation right 63 are satisfied by the tendering of Shares (either actually or by attestation) or by the withholding of Shares by us, the Shares so tendered or withheld will not again be available for Awards under the 2019 Plan. As noted in Proposal 3 of this Proxy Statement, if the Non-Executive Option Exchange Program is approved by the company’s stockholders, the Purchasenet shares underlying the Eligible Options in excess of the shares underlying the New RSUs will not be returned to the 2019 Plan authorizes the issuance of up to 5,400,000 shares of our common stock (subject to adjustment for certain changesas addressed in the capital structure ofproposed amendment to the company). A copy of2019 Plan. Substitute Awards (as defined in the proposed Purchase2019 Plan) will not reduce the Shares authorized for delivery under the 2019 Plan is attached hereto as Appendix B. The Board of Directors believesor authorized for delivery to a participant in any period. Additionally, in the event that the Purchase Plan advances the interests of thea company andacquired by us or any subsidiary or with which we or any subsidiary combines has shares available under a pre-existing plan approved by its stockholders by providing its employees with an opportunity through payroll deductionsand not adopted in contemplation of such acquisition or combination, the shares available for delivery pursuant to purchase sharesthe terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under the 2019 Plan and is helpfulwill not reduce the Shares authorized for delivery under the 2019 Plan; provided, that Awards using such available shares will not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and will only be made to individuals who were not employees or directors of us or our subsidiaries prior to such acquisition or combination. The 2019 Plan imposes individual limitations on the amount of certain Awards. Under these limitations, no participant may be granted (i) stock options or stock appreciation rights with respect to more than 3,000,000 Shares in attracting, retainingany single fiscal year, or (ii) performance shares (including shares of restricted stock, restricted stock units, and rewarding valued employees. To provide an adequate reserve of shares to permit the company to continue offering employees aother stock purchase opportunity, the Board of Directors has adopted the Purchase Plan,based-awards that are subject to satisfaction of performance goals), with respect to more than 3,000,000 Shares, in any single fiscal year, in each case, subject to adjustment in certain circumstances. The maximum amount that may be paid out to any one participant as performance units, with respect to any single 12-month performance period is $1,000,000, and effective uponwith respect to any performance period that is more than 12 months, $2,000,000. The aggregate fair market value of Shares on the date of stockholder approval. Summarygrant underlying incentive stock options that can be exercisable by any individual for the first time during any year cannot exceed $100,000 (or such other amount as specified in Section 422 of the Purchase Plan Code). Any excess will be treated as a non-qualified stock option. The following summarymaximum number of Shares that may be delivered under the 2019 Plan as a result of the Purchase Planexercise of incentive stock options is qualified in its entirety by the specific language of the Purchase Plan, which is attached hereto as Appendix B. General. The Purchase Plan is intended to qualify as an “employee stock purchase plan” under Section 423 of the Code but also permits us to include our non-U.S. employees in offerings not intended to qualify under Section 423. Each participant37,475,000 Shares in the Purchase Planaggregate, subject to certain adjustments. The Compensation Committee is granted atauthorized to adjust the beginning of each offering underlimitations on the Purchase Plan, or an Offering, the right to purchase, or a Purchase Right, through accumulated post-tax payroll deductions up to a number of shares of the common stock determined on the first day of the Offering. The Purchase Right is automatically exercised on each purchase date during the Offering, unless the participant has withdrawn from participation in the Purchase Plan prior to such date. Shares Subject to the Purchase Plan. The Purchase Plan authorizes the sale of an aggregate of 5,400,000 shares of common stock. If any Purchase Right expires, terminates, or is canceled, the shares allocable to the unexercised portion of such Purchase Right will again be available for issuance under the Purchase Plan. To prevent dilution2019 Plan and the individual limitations on the amount of certain Awards (other than the $100,000 limitation described above with respect to incentive stock option awards) and is authorized to adjust outstanding Awards (including adjustments to exercise prices of options and other affected terms of Awards) to the extent it deems equitable in the event that a dividend or enlargementother distribution (whether in cash, Shares or other property), recapitalization, forward or reverse split, reorganization, merger, consolidation, spin-off, combination, repurchase, share exchange or other similar corporate transaction or event affects the Shares so that an adjustment is appropriate. See the sections called “Acceleration of Vesting; Change in Control” and “Other Adjustments” below for a summary of certain additional adjustment provisions of the rights of participants2019 Plan. Eligibility The persons eligible to receive Awards under the Purchase2019 Plan appropriateare our officers, directors, employees, and proportionate adjustmentsconsultants who provide services to the number of shares subject to the Purchase Plan will be made if any change is made to the outstanding common stock by reason of merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares,us or any similar changesubsidiary. The foregoing notwithstanding, only employees of us, or any parent or subsidiary of us (as those terms are defined in Sections 424(e) and (f) of the Code, respectively), are eligible for purposes of receiving any incentive stock options that are intended to comply with the requirements of Section 422 of the Code (“ISOs”). An employee on leave of absence may be considered as still in the capital structureemploy of us or a subsidiary for purposes of eligibility for participation in the company not involving2019 Plan. As of March 24, 2021, all eight non-employee directors and approximately 428 employees are eligible to participate in the receipt of consideration by the company.2019 Plan.   64 2021 PROXY STATEMENT Administration. The Purchase2019 Plan is to be administered by the Compensation Committee or other committee or subcommittee duly appointed by ourof the Board of Directors, provided, however, that except as otherwise expressly provided in the 2019 Plan, the independent members of the Board of Directors may elect to administerexercise any power or authority granted to the PurchaseCompensation Committee under the 2019 Plan. Subject to the provisionsterms of the Purchase2019 Plan, the Compensation Committee determinesis authorized to select eligible persons to receive Awards, grant Awards, determine the type, number, and other terms and conditions of, Purchase Rights granted underand all other matters relating to, Awards, prescribe Award agreements (which need not be identical for each participant) and the Purchase Plan. Therules and regulations for the administration of the 2019 Plan, construe and interpret the 2019 Plan and Award agreements, correct defects, supply omissions, or reconcile inconsistencies therein, and make all other decisions and determinations as the Compensation Committee will interpretmay deem necessary or advisable for the Purchase Plan andadministration of the Purchase Rights granted, and all determinations2019 Plan. Decisions of the Compensation Committee willshall be final, conclusive and binding on all persons having an interest inor entities, including us, any subsidiary or any participant or beneficiary, or any transferee under the Purchase2019 Plan or any Purchase Right. Eligibility. Generally,other person claiming rights from or through any employee of the companyforegoing persons or any present or future parent or subsidiary corporationentities. Stock Options and Stock Appreciation Rights The Compensation Committee is authorized to grant (i) stock options, including both ISOs, which can result in potentially favorable tax treatment to the participant, and non-qualified stock options, and (ii) stock appreciation rights, entitling the participant to receive the amount by which the fair market value of a Share on the date of exercise exceeds the grant price of the company designatedstock appreciation right. The exercise price per share subject to an option and the grant price of a stock appreciation right are determined by the Compensation Committee for inclusion inCommittee. The exercise price per share of an option and the Purchase Plan is eligible to participate in an Offering under the Purchase Plan, so long as the employee is customarily employed for moregrant price of a stock appreciation right may not be less than 20 hours per week and more than five months in any year. If any local laws applicable to any of our non-U.S. employees require that participation in the Purchase Plan be extended to additional classes of employees or otherwise impose different terms or restrictions on their participation, those requirements may be satisfied through separate Offerings under the Purchase Plan not intended to qualify under Section 423100% of the Code, and such separate Offerings will be treated partfair market value of a “Non-423 Plan” component ofShare on the Purchase Plan. Employees in certain jurisdictions having unfavorable laws regardingdate the option or stock purchase plans may be excluded from participating in the Purchase Plan. In any event, no employeeappreciation right is granted. An option granted to a person who owns or holds optionsis deemed to purchase, or who, as a result of participation in the Purchase Plan, would own or hold options to purchase, five percentstock representing 10% or more of the total combined voting power or value of all classes of stock of the companyus or of any parent or subsidiary corporationcompany (sometimes referred to as a “10% owner”) will not qualify as an ISO unless the exercise price for the option is not less than 110% of the companyfair market value of a Share on the date the ISO is eligible to participate in the Purchase Plan. Asgranted. For purposes of the record date, 338 employees (which includes our named executive officers2019 Plan, the term “fair market value” means the fair market value of Shares, Awards or other than Mr. Finizio who,property as a holder of more than 5% our common stock, is not eligible to participate in the Purchase Plan) would be eligible to participate in the Purchase Plan were it then in effect. Non-employee directors and consultants are also not eligible to participate in the Purchase Plan. Offerings. Generally, each Offering under the Purchase Plan will be for a period of six months, or an Offering Period, with new Offering Periods commencing on or about the fifteenth (15th) days of May and November of each year and ending on or about the fourteenth (14th) days of the next May and November of each year. The Board of Directors may establish a different term for one or more Offerings, not to exceed 27 months, or different beginning or ending dates for any Offering Period. Participation and Purchase of Shares. Participation in an Offering under the Purchase Plan is limited to eligible employees who deliver a properly completed subscription agreement and, with the exception of non-U.S. employees for whom local law will not permit such deductions, who authorize payroll deduction contributions under the Purchase Plan prior to the first day of the Offering Period, or the Offering Date. Payroll deductions may not exceed 15% (or such other rate as the Compensation Committee determines) of an employee’s compensation on any payday during the Offering Period. The Compensation Committee will specify alternative means for funding share purchases under the Purchase Plan by non-U.S. employees in jurisdictions where local law will not permit payroll deductions. An employee who becomes a participant in the Purchase Plan will automatically participate in each subsequent Offering Period beginning immediately after the last day of the Offering Period in which he or she is a participant until the employee withdraws from the Purchase Plan, becomes ineligible to participate, or if the employee’s employment is terminated. Subject to any uniform limitations or notice requirements imposed by the company, a participant may increase or decrease his or her rate of payroll deductions or withdraw from the Purchase Plan at any time during an Offering. Upon withdrawal, the company will refund without interest the participant’s accumulated payroll deductions not previously applied to the purchase of shares. Once a participant withdraws from an Offering, that participant may not again participate in the same Offering. Subject to certain limitations and unless different terms are specifieddetermined by the Compensation Committee each participant in an Offering is granted a Purchase Right for a number of whole sharesor under procedures established by the Compensation Committee. Unless otherwise determined by dividing the productCompensation Committee, the fair market value of $2,083.33 anda Share as of any given date is the numberclosing sales price per Share as reported on the principal stock exchange or market on which Shares are traded on the date as of months in the Offering Periodwhich such value is being determined (or as of such later measurement date as determined by the Compensation Committee on the date the Award is authorized by the Compensation Committee), or, if there is no sale on that date, then on the last previous day on which a sale was reported. The maximum term of each option or stock appreciation right, the times at which each option or stock appreciation right will be exercisable, and provisions requiring forfeiture of unexercised options or stock appreciation rights at or following termination of employment or service generally are fixed by the Compensation Committee, except that no option or stock appreciation right may have a term exceeding ten years, and no ISO granted to a 10% owner (as described above) may have a term exceeding five years (to the extent required by the Code at the time of grant). Methods of exercise and settlement and other terms of options and stock appreciation rights are determined by the Compensation Committee. Accordingly, the Compensation Committee may permit the exercise price of options awarded under the 2019 Plan to be paid in cash, Shares, other Awards or other property (including loans to participants). As of March 24, 2021, fair market value of a share of our common stock, on the Offering Date, provided that no participant’s Purchase Right may exceed 400 shares multiplieddetermined by the number of months in the Offering Period. In any event, no participant may be granted a Purchase Right that would allow the participant to purchase shares under the Purchase Plan or any other employee stock purchase plan of the company or any of our subsidiaries having a fair market value (measured on the first day of the Offering Period in which the shares are purchased) exceeding $25,000 for each calendar year in which the Purchase Right is outstanding at any time. Purchase Rights are nontransferable and may only be exercised by the participant. On each purchase date, the company issues to each participant in the Offering the number of shares of common stock determined by dividing the amount of payroll deductions (or other funds that may have been contributed by certain non-U.S. participants) accumulated for the participant during the Offering Period by the purchaselast reported sale price limited in any case by the number of shares subject to the participant’s Purchase Right for that Offering. The price at which shares are sold under the Purchase Plan is established by the Compensation Committee but may not be less than 85% of the fair market value per share of common stock on that date was $1.35. The Compensation Committee may grant stock appreciation rights in tandem with options (“Tandem stock appreciation rights”) under the Offering Date2019 Plan. A Tandem stock appreciation right may be granted at the same time as the related option is granted or, for options that are not ISOs, at any time thereafter before exercise or expiration of such option. A Tandem stock appreciation right may only be exercised when the purchase date, whichever is less. Therelated option would be exercisable and the fair market value of the common stock on any relevant date generally will beShares 65 subject to the closing price per share as reported onrelated option exceeds the Nasdaq. On the record date, the closing price per share of common stock was $0.9454.option’s exercise price. Any amounts creditedoption related to a participant’s plan account not appliedTandem stock appreciation right will no longer be exercisable to the purchase of sharesextent the Tandem stock appreciation right has been exercised and any Tandem stock appreciation right will no longer be returnedexercisable to the participant without interest, unlessextent the amount remainingrelated option has been exercised. Restricted Stock and Restricted Stock Units The Compensation Committee is less than the amount necessaryauthorized to purchase a whole share of commongrant restricted stock in which case the remaining amount may be applied to the next Offering Period, or will be refunded in the event the employee chooses not to participate in the Purchase Plan during such Offering Period. Change in Control of the Company. The Purchase Plan provides that a “Change in Control” occurs upon (a) a person or entity (with certain exceptions described in the Purchase Plan) becoming the direct or indirect beneficial owner of more than 50% of the company’s voting stock; (b) stockholder approval of a liquidation or dissolution of the company; or (c) the occurrence of any of the following events upon which the stockholders of the company immediately before the event do not retain immediately after the event direct or indirect beneficial ownership of more than 50% of the voting securities of the company, its successor or the entity to which the assets of the company were transferred: (i) a sale or exchange by the stockholders in a single transaction or series of related transactions of more than 50% of the company’s voting stock; (ii) a merger or consolidation in which the companyand restricted stock units. Restricted stock is a party;grant of Shares that are subject to such risks of forfeiture and other restrictions as the Compensation Committee may impose, including time or (iii) the sale, exchangeperformance restrictions or transfer of all or substantiallyboth. A participant granted restricted stock generally has all of the assetsrights of a stockholder of us (including voting and dividend rights), unless otherwise determined by the Compensation Committee. An Award of restricted stock units confers upon a participant the right to receive Shares or cash equal to the fair market value of the company (other thanspecified number of Shares covered by the restricted stock units at the end of a sale, exchangespecified deferral period, subject to such risks of forfeiture and other restrictions as the Compensation Committee may impose. Prior to settlement, an Award of restricted stock units carries no voting or transferdividend rights until any applicable vesting or performance conditions are met or other rights associated with Share ownership, although dividend equivalents may be granted, as discussed below. Dividend Equivalents The Compensation Committee is authorized to onegrant dividend equivalents conferring on participants the right to receive, currently or more subsidiaries of the company). If a Change in Control occurs, then, unless the surviving or acquiring corporation assumes or continues the outstanding Purchase Rights or substitutes equivalent rights for such corporation’s shares, the Purchase Plan participants’ accumulated payroll deductions will be applied to purchase shares of the common stock in the current Offerings on a date before the Changedeferred basis, cash, Shares, other Awards, or other property equal in Controlvalue to dividends paid on a specific number of Shares or other periodic payments. Dividend equivalents may be granted alone or in connection with another Award, may be paid currently or on a deferred basis and, if deferred, may be deemed to have been reinvested in additional Shares, Awards or otherwise as specified by the Compensation Committee. Notwithstanding the foregoing, dividend equivalents credited in connection with an unvested award will be subject to restrictions and risk of forfeiture to the same extent as the award with respect to which such dividend equivalents have been credited. Bonus Stock and Awards in Lieu of Cash Obligations TerminationThe Compensation Committee is authorized to grant Shares as a bonus free of restrictions, or Amendment.to grant Shares or other Awards in lieu of company obligations to pay cash under the 2019 Plan or other plans or compensatory arrangements, subject to such terms as the Compensation Committee may specify. Other Stock-Based Awards The PurchaseCompensation Committee is authorized to grant Awards that are denominated or payable in, valued by reference to, or otherwise based on or related to Shares. The Compensation Committee determines the terms and conditions of such Awards. Performance Awards The Compensation Committee is authorized to grant performance Awards to participants on terms and conditions established by the Compensation Committee. The performance criteria to be achieved during any performance period and the length of the performance period will be determined by the Compensation Committee upon the grant of the performance Award. However, a performance period may not be shorter than 12 months nor longer than five years. Performance Awards may be valued by reference to a designated number of Shares (in which case they are referred to as performance shares) or by reference to a designated amount of property including cash (in which case they are referred to as performance units). Performance Awards may be settled by delivery of cash, Shares or other property, or any combination thereof, as determined by the Compensation Committee. If and to the extent that the Compensation Committee determines that the foregoing provisions of the 2019 Plan are to be applicable to any Award, one or more of the following business criteria for us, 66 2021 PROXY STATEMENT on a consolidated basis, and/or for our subsidiaries, or for business or geographical units of us and/or a subsidiary (except with respect to the total stockholder return and earnings per share criteria), are to be used by the Compensation Committee in establishing performance goals for Awards under the 2019 Plan: (1) earnings per share; (2) revenues or margins; (3) cash flow (including operating cash flow, free cash flow, discounted return on investment and cash flow in excess of cost of capital); (4) operating margin; (5) return on assets, sales, investment, capital, or equity; (6) economic value added; (7) direct contribution; (8) net income; pretax earnings; earnings before interest and taxes; earnings before interest, taxes, depreciation and amortization; earnings after interest expense and before extraordinary or special items; operating income or income from operations; income before interest income or expense, unusual items and income taxes, local, state or federal and excluding budgeted and actual bonuses which might be paid under any ongoing bonus plans; (9) working capital; (10) management of fixed costs or variable costs; (11) identification or consummation of investment opportunities or completion of specified projects in accordance with corporate business plans, including strategic mergers, acquisitions or divestitures; (12) total stockholder return; (13) debt reduction; (14) market share; (15) entry into new markets, either geographically or by business unit; (16) customer retention and satisfaction; (17) strategic plan development and implementation, including turnaround plans; (18) the fair market value of a Share; and/or (19) such other goals as determined by the Compensation Committee. Any of the above goals may be determined on an absolute or relative basis (e.g., growth in earnings per share) or as compared to the performance of a published or special index deemed applicable by the Compensation Committee including, but not limited to, the Standard & Poor’s 500 Stock Index or a group of companies that are comparable to us. After the end of each performance period, the Compensation Committee will continue until terminateddetermine and certify whether the performance goals have been achieved. In determining the achievement of such performance goals, the Compensation Committee may, at the time the performance goals are set, require that those goals be determined by excluding the impact of (i) restructurings, discontinued operations, extraordinary items (as defined pursuant to generally accepted accounting principles), and other unusual or non-recurring charges, (ii) change in accounting standards required by generally accepted accounting principles; or (iii) such other exclusions or adjustments as the Compensation Committee specifies at the time the Award is granted. The Compensation Committee may, in its discretion, determine that the amount payable as a performance Award will be changed from the amount of any potential Award. Other Terms of Awards Awards may be settled in the form of cash, Shares, other Awards, or other property, in the discretion of the Compensation Committee. The Compensation Committee may require or permit participants to defer the settlement of all or part of an Award in accordance with such terms and conditions as the Compensation Committee may establish, including payment or crediting of interest or dividend equivalents on deferred amounts, and the crediting of earnings, gains and losses based on deemed investment of deferred amounts in specified investment vehicles. The Compensation Committee is authorized to place cash, Shares, or other property in trusts or make other arrangements to provide for payment of our obligations under the 2019 Plan. The Compensation Committee may condition any payment relating to an Award on the withholding of taxes and may provide that a portion of any Shares or other property to be distributed will be withheld (or that previously acquired Shares or other property be surrendered by the participant) to satisfy withholding and other tax obligations. Awards granted under the 2019 Plan generally may not be pledged or otherwise encumbered and are not transferable except by will or by the laws of descent and distribution, or to a designated beneficiary upon the participant’s death, except that the Compensation Committee may, in its discretion, permit transfers, subject to any terms and conditions the Compensation Committee may impose pursuant to the express terms of an Award agreement. A beneficiary, transferee, or other person claiming any rights under the 2019 Plan from or through any participant will be subject to all terms and conditions of the 2019 Plan and any Award agreement applicable to such participant, except as otherwise determined by the Compensation Committee, and to any additional terms and conditions deemed necessary or appropriate by the Compensation Committee. 67 Awards under the 2019 Plan generally are granted without a requirement that the participant pay consideration in the form of cash or property for the grant (as distinguished from the exercise), except to the extent required by law. The Compensation Committee may, however, grant Awards in exchange for other Awards under the 2019 Plan, awards under other plans, or other rights to payment from us, and may grant Awards in addition to and in tandem with such other Awards, rights or other awards. Acceleration of Vesting; Change in Control In the event of a “change in control,” as defined in the 2019 Plan, and subject to the terms of an applicable award agreement, or to the extent otherwise determined by the Compensation Committee in each particular case, (i) any option or stock appreciation right that was not previously vested and exercisable at the time of the “change in control” will be subject to double trigger vesting such that such awards will become vested and exercisable upon or after a Change of Control on a participant’s involuntary termination of employment; (ii) any restrictions, deferral of settlement and forfeiture conditions applicable to a restricted stock award, restricted stock unit award or any other stock-based award subject only to future service requirements will be deemed fully vested upon or after a Change of Control on a participant’s involuntary termination of employment; and (iii) with respect to any outstanding Award subject to achievement of performance goals and conditions under the 2019 Plan, the Compensation Committee may, in its discretion, consider such Awards to have been earned and payable based on achievement of performance goals or based upon target performance. Subject to any limitations contained in the 2019 Plan relating to the vesting of Awards in the event of any merger, consolidation or other reorganization in which we do not survive, or in the event of any “change in control,” the agreement relating to such transaction and/or the Compensation Committee may provide for (i) the continuation of the outstanding Awards by us, if we are the surviving entity, (ii) the assumption or substitution for outstanding Awards by the surviving entity or its parent or subsidiary pursuant to the provisions contained in the 2019 Plan, (iii) full exercisability or vesting and accelerated expiration of the outstanding Awards, or (iv) settlement of the value of the outstanding Awards in cash or cash equivalents or other property followed by cancellation of such. The foregoing actions may be taken without the consent or agreement of a participant in the 2019 Plan and without any requirement that all such participants be treated consistently. Other Adjustments The Compensation Committee is authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards (i) in recognition of unusual or nonrecurring events (including, without limitation, acquisitions and dispositions of businesses and assets) affecting us, any subsidiary or any business unit, or our financial statements, (ii) in response to changes in applicable laws, regulations, accounting principles, tax rates and regulations or business conditions or (iii) in view of the Compensation Committee’s assessment of our business strategy, any subsidiary or business unit thereof, performance of comparable organizations, economic and business conditions, personal performance of a participant, and any other circumstances deemed relevant. However, the Compensation Committee may not make any adjustment described in this paragraph if doing so would cause any Award granted under the 2019 Plan to participants designated by the Compensation Committee as “covered employees” and intended to qualify as “performance-based compensation” under Section 162(m) of the Code to otherwise fail to qualify as “performance-based compensation.” Clawback of Benefits The Compensation Committee may (i) cause the cancellation of any Award, (ii) require reimbursement of any Award by a participant or beneficiary, and (iii) effect any other right of recoupment of equity or other compensation provided under the 2019 Plan or otherwise in accordance with any of our policies that currently exist or that may from time to time be adopted or modified in the future by us and/or applicable law (each a “Clawback Policy”). In addition, a participant may be required to repay to us certain previously paid compensation, whether provided under the 2019 Plan or an Award agreement or otherwise, in accordance with any Clawback Policy. 68 2021 PROXY STATEMENT By accepting an Award, a participant is also agreeing to be bound by any existing or future Clawback Policy adopted by us, or any amendments that may from time to time be made to the Clawback Policy in the future by us in our discretion (including without limitation any Clawback Policy adopted or amended to comply with applicable laws or stock exchange requirements) and is further agreeing that all of the participant’s Award agreements (and/or awards issued under any prior Company plan) may be unilaterally amended by us, without the participant’s consent, to the extent that we in our discretion determine to be necessary or appropriate to comply with any Clawback Policy. Amendment and Termination The Board may amend, alter, suspend, discontinue, or terminate the Purchase2019 Plan or the Compensation Committee’s authority to grant Awards without the consent of stockholders or participants or beneficiaries, except that thestockholder approval of the company’s stockholdersmust be obtained for any amendment or alteration if such approval is required within twelve months ofby law or regulation or under the adoptionrules of any amendmentstock exchange or quotation system on which Shares may then be listed or quoted; provided that, either increasesexcept as otherwise permitted by the number2019 Plan or an Award agreement, without the consent of shares authorizedan affected participant, no such Board action may materially and adversely affect the rights of such participant under the terms of any previously granted and outstanding Award. The Compensation Committee may waive any conditions or rights under, or amend, alter, suspend, discontinue or terminate any Award theretofore granted and any Award agreement relating thereto, except as otherwise provided in the 2019 Plan; provided that, except as otherwise permitted by the 2019 Plan or Award agreement, without the consent of an affected participant, no such Compensation Committee or the Board action may materially and adversely affect the rights of such participant under terms of such Award. The 2019 Plan will terminate at the earliest of (i) such time as no Shares remain available for issuance under the Purchase2019 Plan, or changes the definition(ii) termination of the corporations whose employees may participate2019 Plan by the Board, or (iii) June 20, 2029. Awards outstanding upon expiration of the 2019 Plan will remain in the Purchase Plan.effect until they have been exercised or terminated, or have expired. Summary of U.S. Federal Income Tax Consequences of Awards The following summary2019 Plan is intended only as a general guide to the U.S. federal income tax consequences of participation in the Purchase Plan and does not attempt to describe all possible federal or other tax consequences of such participation or tax consequences based on particular circumstances. Generally, there are no tax consequences to an employee of either becoming a participant in the Purchase Plan or purchasing sharesqualified under the Purchase Plan. The tax consequencesprovisions of section 401(a) of the Code and is not subject to any of the provisions of the Employee Retirement Income Security Act of 1974. Nonqualified Stock Options An optionee generally is not taxable upon the grant of a dispositionnonqualified stock option granted under the 2019 Plan. On exercise of shares vary depending ona nonqualified stock option granted under the period such stock is held before its disposition. If a participant disposes of shares within two years after the Offering Date or within one year after the purchase date on which the shares are acquired (a “disqualifying disposition”), the participant recognizes2019 Plan, an optionee will recognize ordinary income in the year of disposition in an amount equal to the difference betweenexcess, if any, of the fair market value on the date of exercise of the sharesShares acquired on exercise of the purchase date andoption over the purchaseexercise price. SuchIf the optionee is an employee of us or any subsidiary, that income maywill be subject to the withholding of Federal income tax. Any additionalThe optionee’s tax basis in those Shares will be equal to their fair market value on the date of exercise of the option, and his or her holding period for those Shares will begin on that date. If an optionee pays for Shares on exercise of an option by delivering Shares, the optionee will not recognize gain or resulting loss recognized byon the participantShares delivered, even if their fair market value at the time of exercise differs from the dispositionoptionee’s tax basis in them. The optionee, however, otherwise will be taxed on the exercise of the sharesoption in the manner described above as if he or she had paid the exercise price in cash. If a separate identifiable stock certificate or other indicia of ownership is issued for that number of Shares equal to the number of Shares delivered on exercise of the option, the optionee’s tax basis in the Shares represented by that certificate or other indicia of ownership will be equal to his or her tax basis in the Shares delivered, and his or her holding period for those Shares will include his or her holding period for the Shares delivered. The optionee’s tax basis and holding period for the additional Shares received on exercise of the option will be the same as if the optionee had exercised the option solely in exchange for cash.     We generally will be entitled to a capital gain or loss.deduction for Federal income tax purposes equal to the amount of ordinary income taxable to the optionee, provided that amount constitutes an ordinary and necessary   69 If business expense for us and is reasonable in amount, and either the participant disposesemployee includes that amount in income or we timely satisfies its reporting requirements with respect to that amount. Incentive Stock Options Under the Code, an optionee generally is not subject to tax upon the grant or exercise of sharesan ISO. In addition, if the optionee holds a Share received on exercise of an ISO for at least two years afterfrom the Offering Datedate the option was granted and at least one year afterfrom the purchase date on which the shares are acquired, the participant recognizes ordinary income in the year of disposition in an amount equal to the lesser of (i)option was exercised (the “Required Holding Period”), the difference, if any, between the fair market valueamount realized on a sale or other taxable disposition of that Share and the holder’s tax basis in that Share will be long-term capital gain or loss. If an optionee disposes of a Share acquired on exercise of an ISO before the end of the shares onRequired Holding Period, which we refer to as a Disqualifying Disposition, the date of disposition and the purchase price or (ii) the difference between the fair market value of the shares on the Offering Date and purchase price (determined as if the Purchase Right were exercised on the Offering Date). Any additional gain recognized by the participant on the disposition of the shares is a capital gain. If the fair market value of the shares on the date of disposition is less than the purchase price, there is no ordinary income, and the loss recognized is a capital loss. If the participant owns the shares at the time of the participant’s death, the lesser of (i) the difference between the fair market value of the shares on the date of death and the purchase price or (ii) the difference between the fair market value of the shares on the Offering Date and the purchase price (determined as if the Purchase Right were exercised on the Offering Date) is recognized asoptionee generally will recognize ordinary income in the year of the participant’s death. IfDisqualifying Disposition equal to the participant disposesexcess, if any, of the shares infair market value of the Share on the date the ISO was exercised over the exercise price. If, however, the Disqualifying Disposition is a disqualifying disposition,sale or exchange on which a loss, if realized, would be recognized for Federal income tax purposes, and if the company should be entitled to a deduction equal tosales proceeds are less than the fair market value of the Share on the date of exercise of the option, the amount of ordinary income recognized by the participant asoptionee will not exceed the gain, if any, realized on the sale. If the amount realized on a resultDisqualifying Disposition exceeds the fair market value of the disposition, except toShare on the extent such deduction is limited by applicable provisionsdate of exercise of the Codeoption, that excess will be short-term or long-term capital gain, depending on whether the regulations thereunder. In all other cases, no deduction is allowedholding period for the company.Share exceeds one year. IfAn optionee who exercises an ISO by delivering Shares acquired previously pursuant to the exercise of a Purchase Right does not constitute an exercise pursuant to an “employee stock purchase plan” under section 423ISO before the expiration of the Code,Required Holding Period for those Shares is treated as making a Disqualifying Disposition of those Shares. This rule prevents “pyramiding” or the exercise of an ISO (that is, exercising an ISO for one Share and using that Share, and others so acquired, to exercise successive ISOs) without the Purchase Rightimposition of current income tax. For purposes of the alternative minimum tax, the amount by which the fair market value of a Share acquired on exercise of an ISO exceeds the exercise price of that option generally will be an adjustment included in the optionee’s alternative minimum taxable income for the year in which the option is exercised. If, however, there is a Disqualifying Disposition of the Share in the year in which the option is exercised, there will be no adjustment with respect to that Share. If there is a Disqualifying Disposition in a later year, no income with respect to the Disqualifying Disposition is included in the optionee’s alternative minimum taxable income for that year. In computing alternative minimum taxable income, the tax basis of a Share acquired on exercise of an ISO is increased by the amount of the adjustment taken into account with respect to that Share for alternative minimum tax purposes in the year the option is exercised. We are not allowed an income tax deduction with respect to the grant or exercise of an ISO or the disposition of a Share acquired on exercise of an ISO after the Required Holding Period. However, if there is a Disqualifying Disposition of a Share, we generally are allowed a deduction in an amount equal to the ordinary income includible in income by the optionee, provided that amount constitutes an ordinary and necessary business expense for us and is reasonable in amount, and either the employee includes that amount in income or we timely satisfies its reporting requirements with respect to that amount. Stock Awards Generally, the recipient of a stock award will recognize ordinary compensation income at the time the Shares are received equal to the excess, if any, of the fair market value of the Shares received over any amount paid by the recipient in exchange for the Shares. If, however, the Shares are not vested when they are received under the 2019 Plan (for example, if the recipient is required to work for a period of time in order to have the right to sell the Shares), the recipient generally will not recognize income until the Shares become vested, at which time the recipient will recognize ordinary 70 2021 PROXY STATEMENT compensation income equal to the excess, if any, of the fair market value of the Shares on the date they become vested over any amount paid by the recipient in exchange for the Shares. A recipient may, however, file an election with the Internal Revenue Service, within 30 days of his or her receipt of the Award, to recognize ordinary compensation income, as of the date the recipient receives the Award, equal to the excess, if any, of the fair market value of the Shares on the date the Award is granted over any amount paid by the recipient in exchange for the Shares. The recipient’s basis for the determination of gain or loss upon the subsequent disposition of Shares acquired as Awards will be the amount paid for the Shares plus any ordinary income recognized either when the Shares are received or when the Shares become vested. Upon the disposition of any Shares received as a Share Award under the 2019 Plan, the difference between the sales price and the recipient’s basis in the Shares will be treated as a capital gain or loss and generally will be characterized as long-term capital gain or loss if the exerciseShares have been held for more the one year from the date as of which he or she would be required to recognize any compensation income. We generally will be entitled to a deduction for Federal income tax purposes equal to the amount of ordinary income taxable to the recipient, provided that amount constitutes an ordinary and necessary business expense for us, is reasonable in amount, and is not precluded by the deduction limitations imposed by Section 162(m) of the Code, and either the recipient includes that amount in income or we timely satisfies its reporting requirements with respect to that amount. Stock Appreciation Rights We may grant stock appreciation rights, separate from any other Award (“Stand-Alone”) stock appreciation rights, or Tandem stock appreciation rights, under the 2019 Plan. Generally, the recipient of a nonstatutoryStand-Alone stock option. The participant would thereforeappreciation right will not recognize any taxable income at the time the Stand-Alone stock appreciation right is granted. With respect to Stand-Alone stock appreciation rights, if the recipient receives the appreciation inherent in the stock appreciation rights in cash, the cash will be taxable as ordinary compensation income to the recipient at the time that the cash is received. If the recipient receives the appreciation inherent in the stock appreciation rights in Shares, the recipient will recognize ordinary compensation income on the purchase date equal to the excess of the fair market value of the shares acquiredShares on the day they are received over any amounts paid by the purchase price. Suchrecipient for the Shares. With respect to Tandem stock appreciation rights, if the recipient elects to surrender the underlying option in exchange for cash or Shares equal to the appreciation inherent in the underlying option, the tax consequences to the recipient will be the same as discussed above relating to the Stand-Alone stock appreciation rights. If the recipient elects to exercise the underlying option, the holder will be taxed at the time of exercise as if he or she had exercised a nonqualified stock option (discussed above), i.e., the recipient will recognize ordinary income is subject to withholding of income and employment taxes. Any gain or loss recognized on a subsequent sale of the shares, asfor Federal tax purposes measured by the difference betweenexcess of the sale proceeds andthen fair market value of the sumShares over the exercise price. In general, there will be no Federal income tax deduction allowed to us upon the grant or termination of (i)Stand-Alone stock appreciation rights or Tandem stock appreciation rights. Upon the purchase priceexercise of either a Stand-Alone stock appreciation right or a Tandem stock appreciation right, however, we generally will be entitled to a deduction for such shares and (ii)Federal income tax purposes equal to the amount of ordinary income recognized onthat the employee is required to recognize as a result of the exercise, ofprovided that the Purchase Right, will be treated as a capital gain or loss, as the case may be. New Plan Benefits and Additional Information Because benefitsdeduction is not otherwise disallowed under the Purchase PlanCode. Dividend Equivalents Generally, the recipient of a dividend equivalent award will depend on employees’ electionsrecognize ordinary compensation income at the time the dividend equivalent award is received equal to participate and the fair market value of the common stock at variousamount received. We generally will be entitled to a deduction for Federal income tax purposes equal to the amount of ordinary income that the recipient is required to recognize as a result of the dividend equivalent award, provided that the deduction is not otherwise disallowed under the Code. 71 Section 162 Limitations Section 162(m) of the Code generally limits our ability to deduct for tax purposes compensation in excess of $1.0 million per year for each of our principal executive officer, our principal financial officer and additional highest compensated officers during any taxable year beginning after December 31, 2016. Compensation resulting from awards under the 2019 Plan will be counted toward the $1.0 million limit. The 2017 tax reform legislation removed the “performance-based compensation” exception from Code Section 162(m). Accordingly, awards made after November 2, 2017, generally are not eligible for the “performance-based compensation” exception and will not be deductible to the extent that they cause the compensation of the affected executive officers to exceed $1 million in any year. Awards that were made and subject to binding written contracts in effect on November 2, 2017, are “grandfathered” under prior law and can still qualify as deductible “performance-based compensation,” even if paid in future dates,years. While the Compensation Committee considers the deductibility of compensation as one factor in determining executive compensation, the Compensation Committee believes that it is in the best interests of our stockholders to maintain flexibility in our approach to executive compensation and to structure a program that we consider to be the most effective in attracting, motivating and retaining key employees. Section 409A of the Code The 2019 Plan is intended to comply with Section 409A of the Code to the extent that such section would apply to any Award under the 2019 Plan. Section 409A of the Code governs the taxation of deferred compensation. Any participant that is granted an Award that is deemed to be deferred compensation, such as a grant of restricted stock units that does not possiblequalify for an exemption from Section 409A of the Code, and does not comply with Section 409A of the Code, could be subject to determinetaxation on the benefits that will be received by employeesAward as soon as the Award is no longer subject to a substantial risk of forfeiture (even if the PurchaseAward is not exercisable) and an additional 20% tax (and a further additional tax based upon an amount of interest determined under Section 409A of the Code) on the value of the Award. Importance of Consulting Tax Adviser The information set forth above is a summary only and does not purport to be complete. In addition, the information is based upon current Federal income tax rules and therefore is subject to change when those rules change. Moreover, because the tax consequences to any recipient may depend on his or her particular situation, each recipient should consult his or her tax adviser as to the Federal, state, local, foreign and other tax consequences of the grant or exercise of an Award or the or the disposition of Shares acquired as a result of an Award. Equity Compensation Plan Information Information regarding outstanding equity awards and shares reserved for future issuance under our equity compensation plans as of December 31, 2020 is described above under “Equity Compensation Plan Information”. New Plan Benefits under 2019 Plan Our non-employee directors are eligible to receive certain compensation each year, a portion of which is payable in the form of equity awards, as described above under “Director Compensation”. If the amendment to the 2019 Plan is approved, by our stockholders. Non-employee directors and consultants are not eligible to participatethe non-employee director compensation payable in the Purchase Plan.form of equity awards will be issued under the 2019 Plan, as amended. All other future grants under the 2019 Plan are within the discretion of the Compensation Committee of the Board of Directors and the benefits of such grants are therefore not determinable. No shares of common stock have been issued with respect to the share increase for which stockholder approval is sought under this Proposal 4.   Vote Required OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” APPROVAL OF THE AMENDMENT TO OUR 2019 PLAN   Approval of the Purchase Plan proposal will require the affirmative vote of a majority of the votes cast, assuming that a quorum is present at the meeting. 72 2021 PROXY STATEMENT   Board Recommendation PROPOSAL FIVE OUR BOARD RATIFICATIONOF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE APPROVAL APPOINTMENTOF THE THERAPEUTICSMD, INC. 2020 EMPLOYEE STOCK PURCHASE PLAN. 44  PROPOSAL FIVE RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITOR INDEPENDENT AUDITOR The Audit Committee of our Board of Directors has selected and appointed Grant Thornton as our independent registered public accounting firm for the 20202021 fiscal year. Grant Thornton has served as our independent registered public accounting firm since March 30, 2015. Our Audit Committee recommends that stockholders vote in favor of the ratification of the appointment of Grant Thornton to audit the consolidated financial statements of our company for the fiscal year ending December 31, 2020.2021. Although ratification is not required by our bylaws or otherwise, our Board of Directors is submitting the appointment of Grant Thornton to our stockholders for ratification as a matter of good corporate practice. In the event of a negative vote on such ratification, our Audit Committee will reconsider its selection. We expect that representatives of Grant Thornton will be present at the 20202021 Annual Meeting of Stockholders, will have the opportunity to make a statement if they desire to do so, and will be available to respond to appropriate questions. Aggregate fees billed to our company for the fiscal year ended December 31, 20192020 and 20182019 by Grant Thornton, our independent registered public accounting firm, were as follows:       2019   2018 Audit Fees   $ 413,695     $ 362,135   Audit-Related Fees   $ —       $ —     Tax Fees   $ 143,753     $ 85,383   All Other Fees   $ —       $ —             2020      2019   Audit Fees    $ 440,670      $ 413,695   Audit-Related Fees    $ —      $ —   Tax Fees    $ 122,867      $ 143,753   All Other Fees    $ —      $ —   Audit fees consist of fees associated with the annual audit, including the audit of the effectiveness of internal control over financial reporting for the 2019 fiscal year, the reviews of our annual and quarterly reports, and other filings with the SEC as well as comfort letters and consents. Tax fees included the preparation of our tax returns. Audit Committee Pre-Approval Policies and Procedures The charter of our Audit Committee provides that the duties and responsibilities of our Audit Committee include the pre-approval, or adopting procedures for pre-approval, of all audit, audit-related, tax, and other services permitted by law or applicable SEC regulations (including fee and cost ranges) to be performed by our independent auditor. Any pre-approved services that will involve fees or costs exceeding pre-approved levels will also require specific pre-approval by the Audit Committee. Unless otherwise specified by the Audit Committee in pre-approving a service, the pre-approval will be effective for the 12-month period following pre-approval. The Audit Committee will not approve any non-audit services prohibited by applicable SEC regulations or any services in connection with a transaction initially recommended by the independent auditor, the purpose of which may be tax avoidance and the tax treatment of which may not be supported by the Code and related regulations. To the extent deemed appropriate, the Audit Committee may delegate pre-approval authority to the Chairperson of the Audit Committee or any one or more other members of the Audit Committee provided that any member of the Audit Committee who has exercised any such delegation must report any such pre-approval decision to the Audit Committee at its next scheduled meeting. The Audit Committee will not delegate to management the pre-approval of services to be performed by the independent auditor.   73 Our Audit Committee requires that our independent auditor, in conjunction with our Chief Financial Officer, be responsible for seeking pre-approval for providing services to us and that any request for pre-approval must inform the Audit Committee about each service to be provided and must provide detail as to the particular service to be provided. All of the services provided by Grant Thornton described above were approved by our Audit Committee pursuant to our Audit Committee’s pre-approval policies. All of the hours spent by Grant Thornton in auditing our financial statements for the fiscal year ended 2019 and 2018 were attributed to work performed by Grant Thornton’s full-time, permanent employees. Ratification by Stockholders of the Appointment of Independent Auditor Ratification of the appointment of Grant Thornton to audit the consolidated financial statements of our company for the fiscal year ending December 31, 20202021 will require the affirmative vote of a majority of the votes cast, assuming that a quorum is present at the meeting. Board Recommendation   OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE RATIFICATION OF GRANT THORNTON, LLP TO AUDIT THE CONSOLIDATED FINANCIAL STATEMENTS OF OUR COMPANY FOR THE FISCAL YEAR ENDING DECEMBER 31, 2020.  OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE RATIFICATION OF GRANT THORNTON, LLP TO AUDIT THE CONSOLIDATED FINANCIAL STATEMENTS OF OUR COMPANY FOR THE FISCAL YEAR ENDING DECEMBER 31, 2021.   74 2021 PROXY STATEMENT   DEADLINE FOR RECEIPT OF STOCKHOLDER PROPOSALS As more specifically provided in our bylaws, as amended, no business may be brought before an annual meeting of stockholders unless it is specified in the notice of the meeting or is otherwise properly brought before the meeting by or at the direction of our Board of Directors or by a stockholder entitled to vote who has delivered proper notice to us, together with the information required by our bylaws, as amended. Director nominations and stockholder proposals that are intended to be presented by stockholders at the annual meeting of stockholders for the fiscal year ending December 31, 20202021 must be received by us not less than 90 days (by March 19, 2021)February 26, 2022) and not more than 120 days (by February 18, 2021)January 27, 2022) before the anniversary of the prior year’s annual meeting of stockholders, unless we change the date of our 20212022 annual meeting by more than 30 days before or 60 days after such anniversary date, in which case, stockholder proposals must be received not earlier than 120 days prior to the annual meeting and not later than the later to occur of 90 days prior to the annual meeting and ten days following the date on which a public announcement of the date of the annual meeting is first made by us. Stockholders interested in submitting a proposal for inclusion in our proxy materials for the 20212022 annual meeting may do so by following the procedures set forth in Rule 14a-8 under the Exchange Act and our bylaws, as amended. To be eligible for inclusion in such proxy materials, stockholder proposals must be received not later than January 4,December [●], 2021. Stockholder proposals should be addressed and delivered to our corporate secretary at the address of our executive offices set forth in this proxy statement. HOUSEHOLDING OF PROXY MATERIALS The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for annual reports, proxy statements, and Notices of Internet Availability of Proxy Materials with respect to two or more stockholders sharing the same address by delivering a single proxy statement addressed to those stockholders. This process, which is commonly referred to as “householding,” potentially means extra convenience for stockholders and cost savings for companies. If you and other stockholders of record with whom you share an address currently receive multiple copies of our annual report, proxy statement, or Notice of Internet Availability of Proxy Materials and would like to participate in our householding program, please contact Broadridge by calling toll-free at 800-542-1061, or by writing to Broadridge Financial Solutions, Inc., Householding Department, 51 Mercedes Way, Edgewood, New York 11717. Alternatively, if you participate in householding and wish to revoke your consent and receive separate copies of our annual report, proxy statement, or Notice of Internet Availability of Proxy Materials, please contact Broadridge as described above. In addition, we will promptly deliver, upon the written or oral request to Broadridge at the address or telephone number above, a separate copy of our annual report, proxy statement, or Notice of Internet Availability of Proxy Materials to a stockholder at a shared address to which a single copy of the documents was delivered. A number of brokerage firms have instituted householding. If you hold your shares in street name, please contact your bank, broker or other holder of record to request information about householding. OTHER MATTERS We know of no other matters to be submitted at the meeting. If any other matters properly come before the meeting, it is the intention of the persons named in the enclosed proxy card to vote the shares they represent as our Board of Directors may recommend.   75   WHERE YOU CAN FIND ADDITIONAL INFORMATION AND INCORPORATION BY REFERENCE We are subject to the informational requirements of the Exchange Act, and are required to file reports, any proxy statements and other information with the SEC. Copies of any reports, statements or other information that we file with the SEC, including this proxy statement, can also be obtained upon written request from the SEC’s website on the Internet at www.sec.gov, free of charge. We also maintain a website at www.therapeuticsmd.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. We have not authorized anyone to provide you with information that differs from that contained in this proxy statement. You should not assume that the information contained in this proxy statement is accurate as on any date other than the date of the proxy statement, and the mailing of this proxy statement to our stockholders shall not create any implication to the contrary. This proxy statement does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction to or from any person to whom it is not lawful to make any such offer or solicitation in such jurisdiction. This proxy statement incorporates by reference our Annual Report on Form 10-K for the year ended December 31, 2020 that we previously filed with the SEC; provided, however, that we are not incorporating by reference Part III thereof and any documents, portions of documents or information deemed to have been furnished and not filed in accordance with SEC rules. In addition, we are incorporating by reference herein any future filings we make with the SEC under Section 11, 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this proxy statement and prior to the date of the annual meeting. Such documents are considered to be a part of this proxy statement, effective as of the date such documents are filed. In the event of conflicting information in these documents, the information in the latest filed document should be considered correct. You can obtain any of the documents listed above from the SEC, through the website of the SEC at the address described above or from us by requesting them in writing or by telephone at the following address: TherapeuticsMD, Inc. Attention: Corporate Secretary 951 Yamato Road, Suite 220 Boca Raton, Florida 33431 (561) 961-1900 76 2021 PROXY STATEMENT Appendix A First Amendment to Amended and Restated Articles of Incorporation, as amended (See attached)     A-3  Appendix B the TherapeuticsMD, Inc. 2020 Employee2019 Stock PurchaseIncentive Plan WITNESSETH: (See attached) THERAPEUTICSMD, INC. 2020 EMPLOYEE STOCK PURCHASE PLAN TABLE OF CONTENTS       Page         1. Establishment, Purpose and Term of Plan 1         1.1 Establishment 1           1.2 Purpose 1           1.3 Term of Plan 1         2. Definitions and Construction 1         2.1 Definitions 1           2.2 Construction 6         3. Administration 6         3.1 Administration by the Committee 6           3.2 Authority of Officers 6           3.3 Power to Adopt Sub-Plans or Varying Terms with Respect to Non-U.S.Employees 6           3.4 Power to Establish Separate Offerings with Varying Terms 7           3.5 Policies and Procedures Established by the Company 7           3.6 Indemnification 7         4. Shares Subject to Plan 8         4.1 Maximum Number of Shares Issuable 8           4.2 Adjustments for Changes in Capital Structure 8         5. Eligibility 8         5.1 Employees Eligible to Participate 8           5.2 Exclusion of Certain Stockholders 9           5.3 Determination by Company 9         6. Offerings 9       7.   Participation in the Plan 9   7.1 Initial Participation 9           7.2 Continued Participation 10         8. Right to Purchase Shares 10         8.1 Grant of Purchase Right 10           8.2 Calendar Year Purchase Limitation 10         9. Purchase Price 11 -i-         10. Accumulation of Purchase Price through Payroll Deduction 11         10.1 Amount of Payroll Deductions 11           10.2 Commencement of Payroll Deductions 11           10.3 Election to Decrease or Stop Payroll Deductions 11           10.4 Administrative Suspension of Payroll Deductions 12           10.5 Participant Accounts 12           10.6 No Interest Paid 12         11. Purchase of Shares 12         11.1 Exercise of Purchase Right 12           11.2 Pro Rata Allocation of Shares 13           11.3 Delivery of Title to Shares 13           11.4 Return of Plan Account Balance 13           11.5 Tax Withholding 13           11.6 Expiration of Purchase Right 14           11.7 Provision of Reports and Stockholder Information to Participants 14         12. Withdrawal from Plan 14         12.1 Voluntary Withdrawal from the Plan 14           12.2 Return of Plan Account Balance 14         13. Termination of Employment or Eligibility 15       14. Effect of Change in Control on Purchase Rights 15       15. Nontransferability of Purchase Rights 15       16. Compliance with Securities Law 15       17. Rights as a Stockholder and Employee 16       18. Notification of Disposition of Shares 16       19. Legends 16       20. Designation of Beneficiary 17         20.1 Designation Procedure 17           20.2 Absence of Beneficiary Designation 17         21. Notices 17       22. Amendment or Termination of the Plan 17       -ii- WHEREAS, TherapeuticsMD, Inc. 2020 Employee Stock Purchase Plan 1.            Establishment, Purpose and Term of Plan. 1.1             Establishment. The TherapeuticsMD, Inc. 2020 Employee Stock Purchase Plan, a Nevada corporation (the“Plan”) is hereby established effective as of June 18, 2020, the date of its approval by the stockholders of the Company (the“Effective Date”). 1.2             Purpose. The purpose of the Plan is to advance the interests of the Company and its stockholders by providing an incentive to attract, retain, and reward Eligible Employees of the Participating Company Group and by motivating such persons to contribute to the growth and profitability of the Participating Company Group. The Plan provides such Eligible Employees with an opportunity to acquire a proprietary interest in the Company through the purchase of Stock. The Company intends that the Plan qualify as an “employee stock purchase plan” under Section 423 of the Code (including any amendments or replacements of such section), and the Plan shall be so construed. 1.3             Term of Plan. The Plan shall continue in effect until its termination by the Committee. 2.            Definitions and Construction. 2.1           Definitions.Any term not expressly defined in the Plan but defined for purposes of Section 423 of the Code shall have the same definition herein. Whenever used herein, the following terms shall have their respective meanings set forth below: (a) “Beneficial OwnerCompany”), adopted on April 29, 2019, and continues to sponsor and maintain the plan known as the “TherapeuticsMD, Inc. 2019 Stock Incentive Plan” (the “Beneficial OwnershipPlan” shall have the meaning ascribed to such term in Rule 13d-3 under the Exchange Act); and any successor to such Rule. (b)          “BoardWHEREAS”means, the Board of Directors of the Company. (c)          “Change in Control” means the occurrence of any one or a combination of the following: (i) The acquisition by any Person of Beneficial Ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of either (A) the value of then outstanding equity securities of the Company (the “Outstanding Company StockBoard”) or (B)retained the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”) (the foregoing Beneficial Ownership hereinafter being referred to as a “Controlling Interest”); provided, however, that for purposes of this Plan, the following acquisitions shall not constitute or result in a Change in Control: (v) any acquisition directly from the Company; (w) any acquisition by the Company; (x) any acquisition by any Person that as of the Effective Date owns Beneficial Ownership of a Controlling Interest; (y) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Related Entity; or (z) any acquisition by any entity pursuant to a transaction which complies with clauses (1), (2), and (3) of subsection (ii) below; or (ii) Consummation of (A) a reorganization, merger, statutory share exchange or consolidation or similar transaction involving (x) the Company or (y) any of its Subsidiary Corporations, but in the case of this clause (y) only if equity securities of the Company are issued or issuable in connection with the transaction (each of the events referred to in this clause (A) being hereinafter referred to as a “Business Reorganization”), or (B) a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or equity of another entity by the Company or any of its Subsidiary Corporations (each an “Asset Sale”), in each case, unless, following such Business Reorganization or Asset Sale, (1) all or substantially all of the individuals and entities who were the Beneficial Owners, respectively, of the Outstanding Company Stock and Outstanding Company Voting Securities immediately prior to such Business Reorganization or Asset Sale beneficially own, directly or indirectly, more than fifty percent (50%) of the value of the then outstanding equity securities and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of members of the board of directors (or comparable governing body of an entity that does not have such a board), as the case may be, of the entity resulting from such Business Reorganization or Asset Sale (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) (the “Continuing Entity”) in substantially the same proportions as their ownership, immediately prior to such Business Reorganization or Asset Sale, of the Outstanding Company Stock and Outstanding Company Voting Securities, as the case may be (excluding any outstanding equity or voting securities of the Continuing Entity that such Beneficial Owners hold immediately following the consummation of the Business Reorganization or Asset Sale as a result of their ownership, prior to such consummation, of equity or voting securities of any company or other entity involved in or forming part of such Business Reorganization or Asset Sale other than the Company), (2) no Person (excluding any employee benefit plan (or related trust) of the Company or any Continuing Entity or any entity controlled by the Continuing Entity or any Person that as of the Effective Date owns Beneficial Ownership of a Controlling Interest) beneficially owns, directly or indirectly, fifty percent (50%) or more of the value of the then outstanding equity securities of the Continuing Entity or the combined voting power of the then outstanding voting securities of the Continuing Entity except to the extent that such ownership existed prior to the Business Reorganization or Asset Sale, and (3) at least a majority of the members of the Board of Directors or other governing body of the Continuing Entity were Incumbent Directors at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Reorganization or Asset Sale; or (iii) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (d)          “Code” means the Internal Revenue Code of 1986, as amended, and any applicable regulations promulgated thereunder. (e)         “Committee”means the Compensation Committee and such other committee or subcommittee of the Board, if any, duly appointed to administer the Plan and having such powers in each instance as shall be specified by the Board. If, at any time, there is no committee of the Board then authorized or properly constituted to administer the Plan, the Board shall exercise all of the powers of the Committee granted herein, and, in any event, the Board may in its discretion exercise any or all of such powers. (f)          “Company”means TherapeuticsMD, Inc., a Nevada corporation, or any successor corporation thereto. (g)         “Compensation”means, with respect to any Offering Period, regular base wages or salary, overtime payments, shift premiums, and payments for paid time off, calculated before deduction of (i) any income or employment tax withholdings or (ii) any amounts deferred pursuant to Section 401(k) or Section 125 of the Code. Compensation shall be limited to such amounts actually payable in cash or deferred during the Offering Period. Compensation shall not include (i) sign-on bonuses, annual or other incentive bonuses, commissions, profit-sharing distributions, or other incentive-type payments, (ii) any contributions made by a Participating Company on the Participant’s behalf to any employee benefit or welfare plan now or hereafter established (other than amounts deferred pursuant to Section 401(k) or Section 125 of the Code), (iii) payments in lieu of notice, payments pursuant to a severance agreement, termination pay, moving allowances, relocation payments, or (iv) any amounts directly or indirectly paid pursuant to the Plan or any other stock purchase, stock option, or other stock-based compensation plan, or any other compensation not expressly included by this Section. (h)         “Eligible Employee” means an Employee who meets the requirements set forthright in Section 5 for eligibility to participate in the Plan. (i)           “Employee”means a person treated as an employee of a Participating Company for purposes of Section 423 of the Code. A Participant shall be deemed to have ceased to be an Employee either upon an actual termination of employment or upon the corporation employing the Participant ceasing to be a Participating Company. For purposes of the Plan, an individual shall not be deemed to have ceased to be an Employee while on any military leave, sick leave, or other bona fide leave of absence approved by the Company of ninety (90) days or less. If an individual’s leave of absence exceeds ninety (90) days, the individual shall be deemed to have ceased to be an Employee on the ninety-first (91st) day of such leave unless the individual’s right to reemployment with the Participating Company Group is guaranteed either by statute or by contract. (j)            “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, including rules thereunder and successor provisions and rules thereto. (k)         “Fair Market Value” means, as of any date: (i)             If, on such date, the Stock is listed or quoted on a national or regional securities exchange or quotation system, the closing price of a share of Stock as quoted on the national or regional securities exchange or quotation system constituting the primary market for the Stock, as reported inThe Wall Street Journal or such other source as the Company deems reliable. If the relevant date does not fall on a day on which the Stock has traded on such securities exchange or quotation system, the date on which the Fair Market Value is established shall be the last day on which the Stock was so traded or quoted prior to the relevant date, or such other appropriate day as determined by the Committee, in its discretion. (ii)            If, on the relevant date, the Stock is not then listed on a national or regional securities exchange or quotation system, the Fair Market Value of a share of Stock shall be as determined in good faith by the Committee. (l)          “Incumbent Director” means a director who either (i) is a member of the Board as of the Effective Date or (ii) is elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but excluding a director who was elected or nominated in connection with an actual or threatened proxy contest relating to the election of directors of the Company). (m)        “Non-United States Offering” means a separate Offering covering Eligible Employees of one or more Participating Companies whose Eligible Employees are subject to a prohibition under applicable law on payroll deductions, as described in Section 11.1(b). (n)         “Offering”means an offering of Stock pursuant to the Plan, as provided in Section 6. (o)         “Offering Date” means, for any Offering Period, the first day of such Offering Period. (p)         “Offering Period” means a period, established by the Committee in accordance with Section 6, during which an Offering is outstanding. (q)         “Officer”means any person designated by the Board as an officer of the Company. (r)          “Parent Corporation” means any present or future “parent corporation” of the Company, as defined in Section 424(e) of the Code. (s)         “Participant”means an Eligible Employee who has become a participant in an Offering Period in accordance with Section 7 and remains a participant in accordance with the Plan. (t)          “Participating Company” means the Company and any Parent Corporation or Subsidiary Corporation designated by the Committee as a corporation the Employees of which may, if Eligible Employees, participate in the Plan. The Committee shall have the discretion to determine from time to time which Parent Corporations or Subsidiary Corporations shall be Participating Companies. The Committee shall designate from time to time and set forth in Appendix A to this Plan those Participating Companies whose Eligible Employees may participate in the Plan. (u)         “Participating Company Group” means, at any point in time, the Company and all other corporations collectively which are then Participating Companies. (v)          “Person” shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, and shall include a “group” as defined in Section 13(d) thereof. (w)         “Purchase Date” means, for any Offering Period, the last day of such Offering Period, or, if so determined by the Committee, the last day of each Purchase Period occurring within such Offering Period. (x)          “Purchase Period” means a period, established by the Committee in accordance with Section 6, included within an Offering Period and on the final date of which outstanding Purchase Rights are exercised. (y)         “Purchase Price” means the price at which a share of Stock may be purchased under the Plan, as determined in accordance with Section 9. (z)          “Purchase Right” means an option granted to a Participant pursuant to the Plan to purchase such shares of Stock as provided in Section 8, which the Participant may or may not exercise during the Offering Period in which such option is outstanding. Such option arises from the right of a Participant to withdraw any payroll deductions or other funds accumulated on behalf of the Participant and not previously applied to the purchase of Stock under the Plan, and to terminate participation in the Plan at any time during an Offering Period. (aa)         “Related Entity” means any Subsidiary Corporation, and any business, corporation, partnership, limited liability company or other entity designated by the Board, in which the Company or a Subsidiary Corporation holds a substantial ownership interest, directly or indirectly. (bb)       “Securities Act” means the Securities Act of 1933, as amended. (cc)       “Stock”means the common stock of the Company, as adjusted from time to time in accordance with Section 4.3. (dd)        “Subscription Agreement” means a written or electronic agreement, in such form as specified by the Company, stating an Employee’s election to participate in the Plan and authorizing payroll deductions under the Plan from the Employee’s Compensation or other method of payment authorized by the Committee pursuant to Section 11.1(b). (ee)        “Subscription Date” means the last business day prior to the Offering Date of an Offering Period or such earlier date as the Company shall establish. (ff)         “Subsidiary Corporation” means any present or future “subsidiary corporation” of the Company, as defined in Section 424(f) of the Code. 2.2           Construction.Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of the Plan. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise. 3.            Administration. 3.1           Administration by the Committee. The Plan shall be administered by the Committee. All questions of interpretation of the Plan, of any form of agreement or other document employed by the Company in the administration of the Plan, or of any Purchase Right shall be determined by the Committee, and such determinations shall be final, binding, and conclusive upon all persons having an interest in the Plan or the Purchase Right, unless fraudulent or made in bad faith. Subject to the provisions of the Plan, the Committee shall determine all of the relevant terms and conditions of Purchase Rights; provided, however, that all Participants granted Purchase Rights pursuant to an Offering shall have the same rights and privileges within the meaning of Section 423(b)(5) of the Code. Any and all actions, decisions, and determinations taken or made by the Committee in the exercise of its discretion pursuant to the Plan or any agreement thereunder (other than determining questions of interpretation pursuant to the second sentence of this Section 3.1) shall be final, binding, and conclusive upon all persons having an interest therein. All expenses incurred in connection with the administration of the Plan shall be paid by the Company. 3.2           Authority of Officers. Any Officer shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, determination, or election that is the responsibility of or that is allocated to the Company herein, provided that the Officer has apparent authority with respect to such matter, right, obligation, determination, or election. 3.3           Power to Adopt Sub-Plans or Varying Terms with Respect to Non-U.S. Employees. The Committee shall have the power, in its discretion, to adopt one or more sub-plans of the Plan as the Committee deems necessary or desirable to comply with the laws or regulations, tax policy, accounting principles, or custom of foreign jurisdictions applicable to employees of a subsidiary business entity of the Company, provided that any such sub-plan shall not be within the scope of an “employee stock purchase plan” within the meaning of Section 423 of the Code. Any of the provisions of any such sub-plan may supersede the provisions of this Plan, other than Section 4. Except as superseded by the provisions of a sub-plan, the provisions of this Plan shall govern such sub-plan. Alternatively and to comply with the laws of a foreign jurisdiction, the Committee shall have the power, in its discretion, to grant Purchase Rights in an Offering to citizens or residents of a non-U.S. jurisdiction (without regard to whether they are also citizens of the United States or resident aliens) that provide terms that are less favorable than the terms of Purchase Rights granted under the same Offering to Employees resident in the United States. 3.4           Power to Establish Separate Offerings with Varying Terms. The Committee shall have the power, in its discretion, to establish separate, simultaneous, or overlapping Offerings having different terms and conditions and to designate the Participating Company or Companies that may participate in a particular Offering, provided that each Offering shall individually comply with the terms of the Plan and the requirements of Section 423(b)(5) of the Code that all Participants granted Purchase Rights pursuant to such Offering shall have the same rights and privileges within the meaning of such section. 3.5           Policies and Procedures Established by the Company. Without regard to whether any Participant’s Purchase Right may be considered adversely affected, the Company may, from time to time, consistent with the Plan and the requirements of Section 423 of the Code, establish, change, or terminate such rules, guidelines, policies, procedures, limitations, or adjustments as deemed advisable by the Company, in its discretion, for the proper administration of the Plan, including, without limitation, (a) a minimum payroll deduction amount required for participation in an Offering, (b) a limitation on the frequency or number of changes permitted in the rate of payroll deduction during an Offering, (c) an exchange ratio applicable to amounts withheld or paid in a currency other than United States dollars, (d) a payroll deduction greater than or less than the amount designated by a Participant to adjust for the Company’s delay or mistake in processing a Subscription Agreement or in otherwise effecting a Participant’s election under the Plan or as advisable to comply with the requirements of Section 423 of the Code, and (e) determination of the date and manner by which the Fair Market Value of a share of Stock is determined for purposes of administration of the Plan. All such actions by the Company shall be taken consistent with the requirements under Section 423(b)(5) of the Code that all Participants granted Purchase Rights pursuant to an Offering shall have the same rights and privileges within the meaning of such section, except as otherwise permitted by Section 3.3 and the regulations under Section 423 of the Code. 3.6           Indemnification.In addition to such other rights of indemnification as they may have as members of the Board or the Committee or as officers or employees of the Participating Company Group, to the extent permitted by applicable law, members of the Board or the Committee and any officers or employees of the Participating Company Group to whom authority to act for the Board, the Committee or the Company is delegated shall be indemnified by the Company against all reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection with the defense of any action, suit, or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan, or any right granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit, or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such person is liable for gross negligence, bad faith, or intentional misconduct in duties; provided, however, that within sixty (60) days after the institution of such action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at its own expense to handle and defend the same. 4.            Shares Subject to Plan. 4.1           Maximum Number of Shares Issuable. Subject to adjustment as provided in Section 4.2, the maximum aggregate number of shares of Stock that may be issued under the Plan shall be 5,400,000 and shall consist of authorized but unissued or reacquired shares of Stock, or any combination thereof. If an outstanding Purchase Right for any reason expires or is terminated or canceled, the shares of Stock allocable to the unexercised portion of that Purchase Right shall again be available for issuance under the Plan. 4.2           Adjustments for Changes in Capital Structure. Subject to any required action by the stockholders of the Company and the requirements of Section 424 of the Code to the extent applicable, in the event of any change in the Stock effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders of the Company in a form other than Stock (excepting regular, periodic cash dividends) that has a material effect on the Fair Market Value of shares of Stock, appropriate and proportionate adjustments shall be made in the number and kind of shares subject to the Plan, the Annual Increase, the limit on the shares which may be purchased by any Participant during an Offering (as described in Sections 8.1 and 8.2) and each Purchase Right, and in the Purchase Price to prevent dilution or enlargement of Participants’ rights under the Plan. For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as “effected without receipt of consideration by the Company.” If a majority of the shares which are of the same class as the shares that are subject to outstanding Purchase Rights are exchanged for, converted into, or otherwise become (whether or not pursuant to an Ownership Change Event) shares of another corporation (the“New Shares”), the Committee may unilaterally amend the outstanding Purchase Rights to provide that such Purchase Rights are for New Shares. In the event of any such amendment, the number of shares subject to, and the exercise price per share of, the outstanding Purchase Rights shall be adjusted in a fair and equitable manner as determined by the Committee, in its discretion. Any fractional share resulting from an adjustment pursuant to this Section shall be rounded down to the nearest whole number, and in no event may the Purchase Price be decreased to an amount less than the par value, if any, of the stock subject to the Purchase Right. The adjustments determined by the Committee pursuant to this Section 4.2 shall be final, binding and conclusive. 5.            Eligibility. 5.1           Employees Eligible to Participate.Each Employee of a Participating Company is eligible to participate in the Plan and shall be deemed an Eligible Employee, except the following: (a)            Any Employee who is customarily employed by the Participating Company Group for twenty (20) hours or less per week; or (b)            Any Employee who is customarily employed by the Participating Company Group for not more than five (5) months in any calendar year. 5.2           Exclusion of Certain Stockholders. Notwithstanding any provision10(e) of the Plan to the contrary, no Employee shall be treated as an Eligible Employee and granted a Purchase Right under the Plan if, immediately after such grant, the Employee would own, or hold options to purchase, stock of the Company or of any Parent Corporation or Subsidiary Corporation possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of such corporation, as determined in accordance with Section 423(b)(3) of the Code. For purposes of this Section 5.2, the attribution rules of Section 424(d) of the Code shall apply in determining the stock ownership of such Employee. 5.3           Determination by Company. The Company shall determine in good faith and in the exercise of its discretion whether an individual has become or has ceased to be an Employee or an Eligible Employee and the effective date of such individual’s attainment or termination of such status, as the case may be. For purposes of an individual’s participation in or other rights, if any, under the Plan as of the time of the Company’s determination of whether or not the individual is an Employee, all such determinations by the Company shall be final, binding and conclusive as to such rights, if any, notwithstanding that the Company or any court of law or governmental agency subsequently makes a contrary determination as to such individual’s status as an Employee. 6.            Offerings. The Plan shall be implemented by sequential Offerings of approximately six (6) months’ duration or such other duration as the Committee shall determine. Offering Periods shall commence on or about the fifteenth (15th) days of May and November of each year and end on or about the fourteenth (14th) days of the next May and November, respectively, occurring thereafter. Notwithstanding the foregoing, the Committee may establish additional or alternative concurrent, sequential or overlapping Offering Periods, a different duration for one or more Offering Periods or different commencing or ending dates for such Offering Periods; provided, however, that no Offering Period may have a duration exceeding twenty-seven (27) months. If the Committee shall so determine in its discretion, each Offering Period may consist of two (2) or more consecutive Purchase Periods having such duration as the Committee shall specify, and the last day of each such Purchase Period shall be a Purchase Date. If the first or last day of an Offering Period or a Purchase Period is not a day on which the principal stock exchange or quotation system on which the Stock is then listed is open for trading, the Company shall specify the trading day that will be deemed the first or last day, as the case may be, of the Offering Period or Purchase Period. 7.            Participation in the Plan. 7.1           Initial Participation. An Eligible Employee may become a Participant in an Offering Period by delivering a properly completed written or electronic Subscription Agreement to the Company office or representative designated by the Company (including a third-party administrator designated by the Company) not later than the close of business on the Subscription Date established by the Company for that Offering Period. An Eligible Employee who does not deliver a properly completed Subscription Agreement in the manner permitted or required on or before the Subscription Date for an Offering Period shall not participate in the Plan for that Offering Period or for any subsequent Offering Period unless the Eligible Employee subsequently delivers a properly completed Subscription Agreement to the appropriate Company office or representative on or before the Subscription Date for such subsequent Offering Period. An Employee who becomes an Eligible Employee after the Offering Date of an Offering Period shall not be eligible to participate in that Offering Period but may participate in any subsequent Offering Period provided the Employee is still an Eligible Employee as of the Offering Date of such subsequent Offering Period. 7.2           Continued Participation. A Participant shall automatically participate in the next Offering Period commencing immediately after the final Purchase Date of each Offering Period in which the Participant participates provided that the Participant remains an Eligible Employee on the Offering Date of the new Offering Period and has not either (a) withdrawn from the Plan pursuant to Section 12.1, or (b) terminated employment or otherwise ceased to be an Eligible Employee as provided in Section 13. A Participant who may automatically participate in a subsequent Offering Period, as provided in this Section, is not required to deliver any additional Subscription Agreement for the subsequent Offering Period to continue participation in the Plan. However, a Participant may deliver a new Subscription Agreement for a subsequent Offering Period in accordance with the procedures set forth in Section 7.1 if the Participant desires to change any of the elections contained in the Participant’s then effective Subscription Agreement. 8.            Right to Purchase Shares. 8.1           Grant of Purchase Right. Except as otherwise provided below, on the Offering Date of each Offering Period, each Participant in such Offering Period shall be granted automatically a Purchase Right consisting of an option to purchase the lesser of (a) that number of whole shares of Stock determined by dividing the Dollar Limit (determined as provided below) by the Fair Market Value of a share of Stock on such Offering Date or (b) the Share Limit (determined as provided below). The Committee may, in its discretion and prior to the Offering Date of any Offering Period, (i) change the method of, or any of the foregoing factors in, determining the number of shares of Stock subject to Purchase Rights to be granted on such Offering Date, or (ii) specify a maximum aggregate number of shares that may be purchased by all Participants in an Offering or on any Purchase Date within an Offering Period. No Purchase Right shall be granted on an Offering Date to any person who is not, on such Offering Date, an Eligible Employee. For the purposes of this Section, the“Dollar Limit” shall be determined by multiplying $2,083.33 by the number of months (rounded to the nearest whole month) in the Offering Period and rounding to the nearest whole dollar, and the“Share Limit” shall be determined by multiplying 400 shares by the number of months (rounded to the nearest whole month) in the Offering Period and rounding to the nearest whole share. 8.2           Calendar Year Purchase Limitation. Notwithstanding any provision of the Plan to the contrary, no Participant shall be granted a Purchase Right which permits his or her right to purchase shares of Stock under the Plan to accrue at a rate which, when aggregated with such Participant’s rights to purchase shares under all other employee stock purchase plans of a Participating Company intended to meet the requirements of Section 423 of the Code, exceeds Twenty-Five Thousand Dollars ($25,000) in Fair Market Value (or such other limit, if any, as may be imposed by the Code) for each calendar year in which such Purchase Right is outstanding at any time. For purposes of the preceding sentence, the Fair Market Value of shares purchased during a given Offering Period shall be determined as of the Offering Date for such Offering Period. The limitation described in this Section shall be applied in conformance with Section 423(b)(8) of the Code and the regulations thereunder. 9.            Purchase Price. The Purchase Price at which each share of Stock may be acquired in an Offering Period upon the exercise of all or any portion of a Purchase Right shall be established by the Committee; provided, however, that the Purchase Price on each Purchase Date shall not be less than eighty-five percent (85%) of the lesser of (a) the Fair Market Value of a share of Stock on the Offering Date of the Offering Period or (b) the Fair Market Value of a share of Stock on the Purchase Date. Subject to adjustment as provided by the Plan and unless otherwise provided by the Committee, the Purchase Price for each Offering Period shall be eighty-five percent (85%) of the lesser of (a) the Fair Market Value of a share of Stock on the Offering Date of the Offering Period or (b) the Fair Market Value of a share of Stock on the Purchase Date. 10.          Accumulation of Purchase Price through Payroll Deduction. Except as provided in Section 11.1(b) with respect to a Non-United States Offering, shares of Stock acquired pursuant to the exercise of all or any portion of a Purchase Right may be paid for only by means of payroll deductions from the Participant’s Compensation accumulated during the Offering Period for which such Purchase Right was granted, subject to the following: 10.1         Amount of Payroll Deductions. Except as otherwise provided herein, the amount to be deducted underamend the Plan from a Participant’s Compensation on each pay day during an Offering Period shall be determined by the Participant’s Subscription Agreement. The Subscription Agreement shall set forth the percentage of the Participant’s Compensation to be deducted on each pay day during an Offering Period in whole percentages of not less than one percent (1%) (except as a result of an election pursuant to Section 10.3 to stop payroll deductions effective following the first pay day during an Offering) or more than fifteen percent (15%). The Committee may change the foregoing limits on payroll deductions effective as of any Offering Date. 10.2         Commencement of Payroll Deductions. Payroll deductions shall commence on the first pay day following the Offering Date and shall continue to the end of the Offering Period unless sooner altered or terminated as provided herein. 10.3         Election to Decrease or Stop Payroll Deductions. During an Offering Period, a Participant may elect to decrease the rate of or to stop deductions from his or her Compensation by delivering to the Company office or representative designated by the Company (including a third-party administrator designated by the Company) an amended Subscription Agreement authorizing such change on or before the “Change Notice Date.” The“Change Notice Date” shall be a date prior to the beginning of the first pay period for which such election is to be effective as established by the Company from time to time and announced to the Participants. A Participant who elects, effective following the first pay day of an Offering Period, to decrease the rate of his or her payroll deductions to zero percent (0%) shall nevertheless remain a Participant in such Offering Period unless the Participant withdraws from the Plan astime; provided in Section 12.1. 10.4         Administrative Suspension of Payroll Deductions. The Company may, in its discretion, suspend a Participant’s payroll deductions under the Plan as the Company deems advisable to avoid accumulating payroll deductions in excess of the amount that could reasonably be anticipated to purchase the maximum number of shares of Stock permitted (a) under the Participant’s Purchase Right or (b) during a calendar year under the limit set forth in Section 8.2. Unless the Participant has either withdrawn from the Plan as provided in Section 12.1 or has ceased to be an Eligible Employee, suspended payroll deductions shall be resumed at the rate specified in the Participant’s then effective Subscription Agreement either (i) at the beginning of the next Offering Period if the reason for suspension was clause (a) in the preceding sentence, or (ii) at the beginning of the next Offering Period having a first Purchase Date that falls within the subsequent calendar year if the reason for suspension was clause (b) in the preceding sentence. 10.5         Participant Accounts. Individual bookkeeping accounts shall be maintained for each Participant. All payroll deductions from a Participant’s Compensation (and other amounts received from a non-United States Participant pursuant to Section 11.1(b)) shall be credited to such Participant’s Plan account and shall be deposited with the general funds of the Company. All such amounts received or held by the Company may be used by the Company for any corporate purpose. 10.6         No Interest Paid. Interest shall not be paid on sums deducted from a Participant’s Compensation pursuant to the Plan or otherwise credited to the Participant’s Plan account. 11.         Purchase of Shares. 11.1         Exercise of Purchase Right. (a)            Generally.Except as provided in Section 11.1(b), on each Purchase Date of an Offering Period, each Participant who has not withdrawn from the Plan and whose participation in the Offering has not otherwise terminated before such Purchase Date shall automatically acquire pursuant to the exercise of the Participant’s Purchase Right the number of whole shares of Stock determined by dividing (a) the total amount of the Participant’s payroll deductions accumulated in the Participant’s Plan account during the Offering Period and not previously applied toward the purchase of Stock by (b) the Purchase Price. However, in no event shall the number of shares purchased by the Participant during an Offering Period exceed the number of shares subject to the Participant’s Purchase Right. No shares of Stock shall be purchased on a Purchase Date on behalf of a Participant whose participation in the Offering or the Plan has terminated before such Purchase Date. (b)           Purchase by Non-United States Participants for Whom Payroll Deductions Are Prohibited by Applicable Law. Notwithstanding Section 11.1(a), where payroll deductions on behalf of Participants who are citizens or residents of countries other than the United States (without regard to whether they are also citizens of the United States or resident aliens) are prohibited by applicable law, the Committee may establish a separate Offering (a“Non-United States Offering”) covering all Eligible Employees of one or more Participating Companies subject to such prohibition on payroll deductions. The Non-United States Offering shall provide another method for payment of the Purchase Price with such terms and conditions as shall be administratively convenient and comply with applicable law. On each Purchase Date of the Offering Period applicable to a Non-United States Offering, each Participant who has not withdrawn from the Plan and whose participation in such Offering Period has not otherwise terminated before such Purchase Date shall automatically acquire pursuant to the exercise of the Participant’s Purchase Right a number of whole shares of Stock determined in accordance with Section 11.1(a) to the extent of the total amount of the Participant’s Plan account balance accumulated during the Offering Period in accordance with the method established by the Committee and not previously applied toward the purchase of Stock. However, in no event shall the number of shares purchased by a Participant during such Offering Period exceed the number of shares subject to the Participant’s Purchase Right. The Company shall refund to a Participant in a Non-United States Offering in accordance with Section 11.4 any excess Purchase Price payment received from such Participant. 11.2         Pro Rata Allocation of Shares. If the number of shares of Stock which might be purchased by all Participants on a Purchase Date exceeds the number of shares of Stock remaining available for issuance under the Plan or the maximum aggregate number of shares of Stock that may be purchased on such Purchase Date pursuant to a limit established by the Committee pursuant to Section 8.1, the Company shall make a pro rata allocation of the shares available in as uniform a manner as practicable and as the Company determines to be equitable. Any fractional share resulting from such pro rata allocation to any Participant shall be disregarded. 11.3         Delivery of Title to Shares. Subject to any governing rules or regulations, as soon as practicable after each Purchase Date, the Company shall issue or cause to be issued to or for the benefit of each Participant the shares of Stock acquired by the Participant on such Purchase Date by means of one or more of the following: (a) by delivering to the Participant evidence of book entry shares of Stock credited to the account of the Participant, (b) by depositing such shares of Stock for the benefit of the Participant with any broker with which the Participant has an account relationship, or (c) by delivering such shares of Stock to the Participant in certificate form. 11.4         Return of Plan Account Balance. Any cash balance remaining in a Participant’s Plan account following any Purchase Date shall be refunded to the Participant as soon as practicable after such Purchase Date. However, if the cash balance to be returned to a Participant pursuant to the preceding sentence is less than the amount that would have been necessary to purchase an additional whole share of Stock on such Purchase Date, the Company may retain the cash balance in the Participant’s Plan account to be applied toward the purchase of shares of Stock in the subsequent Purchase Period or Offering Period. 11.5         Tax Withholding. At the time a Participant’s Purchase Right is exercised, in whole or in part, or at the time a Participant disposes of some or all of the shares of Stock he or she acquires under the Plan, the Participant shall make adequate provision for the federal, state, local and foreign taxes (including social insurance), if any, required to be withheld by any Participating Company upon exercise of the Purchase Right or upon such disposition of shares, respectively. A Participating Company may, but shall not be obligated to, withhold from the Participant’s compensation the amount necessary to meet such withholding obligations. 11.6         Expiration of Purchase Right. Any portion of a Participant’s Purchase Right remaining unexercised after the end of the Offering Period to which the Purchase Right relates shall expire immediately upon the end of the Offering Period. 11.7         Provision of Reports and Stockholder Information to Participants. Each Participant who has exercised all or part of his or her Purchase Right shall receive, as soon as practicable after the Purchase Date, a report of such Participant’s Plan account setting forth the total amount credited to his or her Plan account prior to such exercise, the number of shares of Stock purchased, the Purchase Price for such shares, the date of purchase, and the cash balance, if any, remaining immediately after such purchase that is to be refunded or retained in the Participant’s Plan account pursuant to Section 11.4. The report required by this Section may be delivered in such form and by such means, including by electronic transmission, as the Company may determine. In addition, each Participant shall be provided information concerning the Company equivalent to that information provided generally to the Company’s common stockholders. 12.          Withdrawal from Plan. 12.1         Voluntary Withdrawal from the Plan. A Participant may withdraw from the Plan by signing and delivering to the Company office or representative designated by the Company (including a third-party administrator designated by the Company) a written or electronic notice of withdrawal on a form provided by the Company for this purpose. Such withdrawal may be elected at any time prior to the end of an Offering Period; provided, however, that if a Participant withdraws from the Plan after a Purchase Date, the withdrawal shall not affect shares of Stock acquired by the Participant on such Purchase Date. A Participant who voluntarily withdraws from the Plan is prohibited from resuming participation in the Plan in the same Offering from which he or she withdrew, but may participate in any subsequent Offering by again satisfying the requirements of Sections 5 and 7.1. The Company may impose, from time to time, a requirement that the notice of withdrawal from the Plan be on file with the Company office or representative designated by the Company for a reasonable period prior to the effectiveness of the Participant’s withdrawal. 12.2         Return of Plan Account Balance. Upon a Participant’s voluntary withdrawal from the Plan pursuant to Section 12.1, the Participant’s accumulated Plan account balance which has not been applied toward the purchase of shares of Stock shall be refunded to the Participant as soon as practicable after the withdrawal, without the payment of any interest, and the Participant’s interest in the Plan and the Offering shall terminate. Such amounts to be refunded in accordance with this Section may not be applied to any other Offering under the Plan. 13.          Termination of Employment or Eligibility. Upon a Participant’s ceasing, prior to a Purchase Date, to be an Employee of the Participating Company Group for any reason, including retirement, disability or death, or upon the failure of a Participant to remain an Eligible Employee, the Participant’s participation in the Plan shall terminate immediately. In such event, the Participant’s Plan account balance which has not been applied toward the purchase of shares of Stock shall, as soon as practicable, be returned to the Participant or, in the case of the Participant’s death, to the Participant’s beneficiary designated in accordance with Section 20, if any, or legal representative, and all of the Participant’s rights under the Plan shall terminate. Interest shall not be paid on sums returned pursuant to this Section 13. A Participant whose participation has been so terminated may again become eligible to participate in the Plan by satisfying the requirements of Sections 5 and 7.1. 14.          Effect of Change in Control on Purchase Rights. In the event of a Change in Control, the surviving, continuing, successor, or purchasing corporation or parent thereof, as the case may be (the“Acquiring Corporation”), may, without the consent of any Participant, assume or continue the Company’s rights and obligations under outstanding Purchase Rights or substitute substantially equivalent purchase rights for the Acquiring Corporation’s stock. If the Acquiring Corporation elects not to assume, continue, or substitute for the outstanding Purchase Rights, the Purchase Date of the then current Offering Period shall be accelerated to a date before the date of the Change in Control specified by the Committee, but the number of shares of Stock subject to outstanding Purchase Rights shall not be adjusted. All Purchase Rights which are neither assumed or continued by the Acquiring Corporation in connection with the Change in Control nor exercised as of the date of the Change in Control shall terminate and cease to be outstanding effective as of the date of the Change in Control. 15.          Nontransferability of Purchase Rights. Neither payroll deductions or other amounts credited to a Participant’s Plan account nor a Participant’s Purchase Right may be assigned, transferred, pledged, or otherwise disposed of in any manner other than as provided by the Plan or by will or the laws of descent and distribution. (A beneficiary designation pursuant to Section 20 shall not be treated as a disposition for this purpose.) Any such attempted assignment, transfer, pledge, or other disposition shall be without effect, except that the Company may treat such act as an election to withdraw from the Plan as provided in Section 12.1. A Purchase Right shall be exercisable during the lifetime of the Participant only by the Participant. 16.          Compliance with Securities Law. The issuance of shares under the Plan shall be subject to compliance with all applicable requirements of federal, state, and foreign law with respect to such securities. A Purchase Right may not be exercised if the issuance of shares upon such exercise would constitute a violation of any applicable federal, state, or foreign securities laws or other law or regulations or the requirements of any securities exchange or market system upon which the Stock may then be listed. In addition, no Purchase Right may be exercised unless (a) a registration statement under the Securities Act shall at the time of exercise of the Purchase Right be in effect with respect to the shares issuable upon exercise of the Purchase Right, or (b) in the opinion of legal counsel to the Company, the shares issuable upon exercise of the Purchase Right may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance and sale of any shares under the Plan shall relieve the Company of any liability in respect of the failure to issue or sell such shares as to which such requisite authority shall not have been obtained. As a condition to the exercise of a Purchase Right, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation, and to make any representation or warranty with respect thereto as may be requested by the Company. 17.          Rights as a Stockholder and Employee. A Participant shall have no rights as a stockholder by virtue of the Participant’s participation in the Plan until the date of the issuance of the shares of Stock purchased pursuant to the exercise of the Participant’s Purchase Right (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions, or other rights for which the record date is prior to the date such shares are issued, except as provided in Section 4.2. Nothing herein shall confer upon a Participant any right to continue in the employ of the Participating Company Group or interfere in any way with any right of the Participating Company Group to terminate the Participant’s employment at any time. 18.         Notification of Disposition of Shares. The Company may require the Participant to give the Company prompt notice of any disposition of shares of Stock acquired by exercise of a Purchase Right. The Company may require that until such time as a Participant disposes of shares of Stock acquired upon exercise of a Purchase Right, the Participant shall hold all such shares in the Participant’s name until the later of two years after the date of grant of such Purchase Right or one year after the date of exercise of such Purchase Right. The Company may direct that the certificates evidencing shares of Stock acquired by exercise of a Purchase Right refer to such requirement to give prompt notice of disposition. 19.         Legends. The Company may at any time place legends or other identifying symbols referencing any applicable federal, state, or foreign securities law restrictions or any provision convenient in the administration of the Plan on some or all of the certificates representing shares of Stock issued under the Plan. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to a Purchase Right in the possession of the Participant to carry out the provisions of this Section. Unless otherwise specified by the Company, legends placed on such certificates may include but shall not be limited to the following: “THE SHARES EVIDENCED BY THIS CERTIFICATE WERE ISSUED BY THE CORPORATION TO THE REGISTERED HOLDER UPON THE PURCHASE OF SHARES UNDER AN EMPLOYEE STOCK PURCHASE PLAN AS DEFINED IN SECTION 423 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE TRANSFER AGENT FOR THE SHARES EVIDENCED HEREBY SHALL NOTIFY THE CORPORATION IMMEDIATELY OF ANY TRANSFER OF THE SHARES BY THE REGISTERED HOLDER HEREOF. THE REGISTERED HOLDER SHALL HOLD ALL SHARES PURCHASED UNDER THE PLAN IN THE REGISTERED HOLDER’S NAME (AND NOT IN THE NAME OF ANY NOMINEE).” 20.         Designation of Beneficiary. 20.1         Designation Procedure. Subject to local laws and procedures, a Participant may file a written designation of a beneficiary who is to receive (a) shares and cash, if any, from the Participant’s Plan account if the Participant dies subsequent to a Purchase Date but prior to delivery to the Participant of such shares and cash, or (b) cash, if any, from the Participant’s Plan account if the Participant dies prior to the exercise of the Participant’s Purchase Right. If a married Participant designates a beneficiary other than the Participant’s spouse, the effectiveness of such designation may be subject to the consent of the Participant’s spouse. A Participant may change his or her beneficiary designation at any time by written notice to the Company. 20.2         Absence of Beneficiary Designation. If a Participant dies without an effective designation pursuant to Section 20.1 of a beneficiary who is living at the time of the Participant’s death, the Company shall deliver any shares or cash credited to the Participant’s Plan account to the Participant’s legal representative or as otherwise required by applicable law. 21.         Notices. All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof. 22.         Amendment or Termination of the Plan. The Committee may at any time amend, suspend, or terminate the Plan, except that (a) no such amendment, suspension, or termination shall affect Purchase Rights previously granted under the Plan unless expressly provided by the Committee, and (b) no such amendment, suspension, or termination may adversely affect a Purchase Right previously granted under the Plan without the consent of the Participant, except to the extent permitted by the Plan or as may be necessary to qualify the Plan as an employee stock purchase plan pursuant to Section 423 of the Code or to comply with any applicable law, regulation, or rule. In addition, an amendmentamendments to the Plan must be approved by the Company’s stockholders if and to the extent required by applicable laws or stock exchange requirements (“Stockholder Approval”); and WHEREAS, the Board, in consultation with legal and financial advisors, has determined that it is advisable and in the best interests of the Company within twelve (12) monthsand its stockholders to increase the number of the adoption of such amendment if such amendment would authorize the sale of more shares than are then authorizedShares reserved for issuance under the Plan or would changeand corresponding Incentive Stock Option limit (the “Share Increase”); and WHEREAS, the definitionBoard has approved the Share Increase under the Plan as set forth below, subject to Stockholder Approval (the “Amendment”) and WHEREAS, capitalized terms used in this Amendment but not defined herein shall have the meaning given to them in the Plan. NOW, THEREFORE, the Company agrees that, effective upon receipt of the corporations that may be designated byStockholder Approval as set forth below, the CommitteePlan is amended as Participating Companies. Notwithstandingset forth below: 1.Amendment to Section 4.1(a) of the foregoing, in the event that the Committee determines that continuationPlan. Section 4.1(a) of the Plan is hereby amended and restated in its entirety to read as follows: (a) Limitation on Overall Number of Shares Available for Delivery Under Plan. Subject to adjustment as provided in Section 10(c) hereof, the total number of Shares reserved and available for delivery under the Plan shall be (i) 37,475,000 Shares (which includes 15,000,000 Shares as of the Effective Date) plus (ii) the number of unallocated Shares available for issuance as of the Effective Date under the Amended & Restated 2012 Equity Incentive Plan (the “2012 Stock Plan”) that are not then subject to outstanding Awards plus (iii) the number of unallocated Shares available for issuance as of the Effective Date under the 2009 Long Term Incentive Compensation Plan (the “2009 Incentive Plan”) that are not then subject to outstanding Awards. Any Shares delivered under the Plan may consist, in whole or an Offering wouldin part, of authorized and unissued shares or treasury shares. 2.Amendment to Section 4.1(c)(i) of the Plan. Section 4.1(c)(i) of the Plan is hereby amended by deleting the first sentence of such section and replacing with the following: (i) If any Awards under this Plan, the 2012 Stock Plan or the 2009 Incentive Plan are forfeited, expire or otherwise terminate without issuance of such Shares, or any Award is settled for cash or otherwise does not result in unfavorable financial accounting consequencesthe issuance of all or a portion of the Shares subject to such Award, the Shares to which those Awards were subject, shall, to the Company, the Committee may, in its discretion and without the consentextent of any Participant, includingsuch forfeiture, expiration, termination, cash settlement or non-issuance, again be available for delivery with respect to an Offering Period then in progress: (i) terminateAwards under the Plan, or any Offering Period, (ii) acceleratesubject to Section 4(c)(iii) below and except as otherwise determined by the Purchase Date of any Offering Period, (iii) reduce the discount or the method of determining the Purchase Price in any Offering Period (e.g., by determining the Purchase Price solely on the basis of the Fair Market Value on the Purchase Date), (iv) reduce the maximum number of shares of Stock that may be purchased in any Offering Period, or (v) take any combination of the foregoing actions.Committee.   APPENDIX A Participating Companies TherapeuticsMD, Inc. vitaMedMD, LLC BocaGreenMD, Inc. VitaCare Prescription Services, Inc. A-1   THERAPEUTICSMD, INC. 951 YAMATO ROAD, SUITE 220 BOCA RATON, FL 33431 VOTE BY INTERNET -www.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 p.m. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years. VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting instructions up until 11:59 p.m. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.         A-1 3.    Amendment to Section 4.1(c)(iv) of the Plan. Section 4.1(c)(iv) of the Plan is hereby deleted in its entirety and the following Section 4.1(d) is added to the Plan to read as follows: (d) Notwithstanding anything in Section 4(c) to the contrary but subject to adjustment as provided in Section 10(c) hereof, the maximum aggregate number of Shares that may be delivered under the Plan as a result of the exercise of the Incentive Stock Options shall be 37,475,000,000 Shares. 4.Effectiveness. In accordance with Section 10(e) of the Plan, the effectiveness of this Amendment is subject to Stockholder Approval. For the avoidance of doubt, if Stockholder Approval is not obtained, this Amendment shall be void and of no force and effect. 5.Effect on the Plan. This Amendment shall not constitute a waiver, amendment, or modification of any provision of the Plan not expressly referred to herein. Except as expressly amended or modified herein, the provisions of the Plan are and shall remain in full force and effect and are hereby ratified and confirmed. References to the Plan shall be deemed to refer to the Plan as modified by this Amendment, effective upon receipt of the Stockholder Approval. A-2   2021 PROXY STATEMENT    THERAPEUTICSMD, INC. 951 YAMATO ROAD, SUITE 220 BOCA RATON, FL 33431 VOTE BY INTERNET Before The Meeting - Go to www.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 p.m. Eastern Time on May 26, 2021. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. During The Meeting - Go to www.virtualshareholdermeeting.com/TXMD2021 You may attend the meeting via the Internet and vote during the meeting. Have the information that is printed in the box marked by the arrow available and follow the instructions. VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting instructions up until 11:59 p.m. Eastern Time on May 26, 2021. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: D45421-P55549                                 KEEP THIS PORTION FOR YOUR RECORDS DETACH AND RETURN THIS PORTION ONLY TOVOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: D08134-P38133 KEEP THIS PORTION FOR YOUR RECORDS THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. DETACH AND RETURN THIS PORTION ONLY THERAPEUTICSMD, INC. For All Withhold All For All Except The Board of Directors recommends you vote FOR the following: 1. To elect directors to serve until the next annual meeting of stockholders or until their successors are duly elected and qualified. ☐ ☐ ☐ Nominees: 01)  Tommy G. Thompson     06)  Karen L. Ling 02)  Robert G. Finizio 07)  Jules A. Musing 03)  Paul M. Bisarol 08)  Gail K. Naughton, Ph.D. 04)  J. Martin Carroll 09)  Angus C. Russell 05)  Cooper C. Collins Withhold All For All ExceptThe Board of Directors recommends you vote FOR the following proposal:   For Against Abstain 2. To approve, on a non-binding advisory basis, the compensation of our named executive officers for the fiscal year ended December 31, 2020. ☐ ☐ ☐ The Board of Directors recommends you vote FOR the following proposal: For Against Abstain 3. To approve a stock option exchange program for those employees of the company who are not named executive officers. ☐ ☐ ☐ To withhold authority to vote for any individual nominee(s), mark “For All Except” and write the number(s) of the nominee(s) on the line below.                                      The Board of Directors recommends you vote FOR the following: 1. Election of Directors ☐ ☐ ☐                 Nominees: 01)     Paul M. Bisaro 06)     Jules A. Musing 02)     J. Martin Carroll 07)     Gail K. Naughton, Ph.D.   03)     Cooper C. Collins 08)     Angus C. Russell 04)     Robert G. Finizio 09)     Tommy G. Thompson 05)     Karen L. Ling The Board of Directors recommends you vote FOR the following proposal: For Against AbstainFor   Against Abstain 4. To approve an amendment to the TherapeuticsMD, Inc. 2019 Stock Incentive Plan to increase the number of authorized shares thereunder ☐ ☐ ☐ The Board of Directors recommends you vote FOR the following proposal:  For Against Abstain For   2.  To approve, on a non-binding advisory basis, the compensation of our named executive officers for the fiscal year ended December 31, 2019 (say-on-pay); ☐  ☐  ☐ Against   4.    To approve the TherapeuticsMD, Inc. 2020 Employee Stock Purchase Plan; ☐  ☐  ☐  Abstain   5.   The Board of Directors recommends you vote FOR the following proposal:  For Against Abstain The Board of Directors recommends you vote FOR the following proposal: For Against Abstain 3. To approve an amendment to the Amended and Restated Articles of Incorporation, as amended, to increase the number of authorized shares of common stock, $0.001 par value per share, from 350,000,000 shares to 600,000,000 shares;  ☐  ☐  ☐ 5.    To ratify the appointment of Grant Thornton LLP, an independent registered public accounting firm, as the independent auditor of ourthe company for the fiscal year ending December 31, 2020; ☐  ☐  ☐  2021.   For address changes and/or comments, please check this box and write them on the back where indicated. ☐   and upon☐ ☐ 6. To transact such other business as may properly come before the meeting or any adjournment thereof.     Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. Signature [PLEASE SIGN WITHIN BOX]   Date   Please indicate if you plan to attend this meeting.  ☐ ☐             Yes No  Signature (Joint Owners)   Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. Signature [PLEASE SIGN WITHIN BOX] Date   Signature (Joint Owners) Date Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Notice and Proxy Statement and Annual Report are available at www.proxyvote.com. D45422-P55549     THERAPEUTICSMD, INC. 2021 Annual Meeting of Stockholders May 27, 2021, 8:00 a.m. Eastern Time This proxy is solicited by the Board of Directors The undersigned stockholder of THERAPEUTICSMD, INC., a Nevada corporation, hereby acknowledges receipt of the notice of Annual Meeting of Stockholders and proxy statement and hereby appoints Robert G. Finizio and James C. D’Arecca and each of them, proxies and attorneys-in-fact, with full power to each of substitution, on behalf and in the name of the undersigned, to represent the undersigned at the 2021 Annual Meeting of Stockholders of THERAPEUTICSMD, INC., to be held on Thursday, May 27, 2021, at 8:00 a.m. Eastern Time, virtually at www.virtualshareholdermeeting.com/TXMD2021 and at any adjournment or adjournments thereof, and to vote all shares of common stock which the undersigned would be entitled to vote if then and there virtually present on the matters set forth on the reverse side of this proxy card. This proxy, when properly executed, will be voted in the manner directed herein. If no such direction is made, this proxy will be voted in accordance with the Board of Directors’ recommendations. PLEASE MARK, SIGN, DATE, AND RETURN THIS PROXY CARD PROMPTLY IN THE ENCLOSED ENVELOPE. Continued and to be signed on reverse side Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Notice and Proxy Statement and Form 10-K are available at www.proxyvote.com. D08135-P38133 THERAPEUTICSMD, INC. 2020 Annual Meeting of Stockholders June 18, 2020, 8:00 a.m. This proxy is solicited by the Board of Directors The undersigned stockholder of THERAPEUTICSMD, INC., a Nevada corporation, hereby acknowledges receipt of the notice of Annual Meeting of Stockholders and proxy statement and hereby appoints Robert G. Finizio and Daniel A. Cartwright and each of them, proxies and attorneys-in-fact, with full power to each of substitution, on behalf and in the name of the undersigned, to represent the undersigned at the 2020 Annual Meeting of Stockholders of THERAPEUTICSMD, INC., to be held on Thursday, June 18, 2020, at 8:00 a.m., local time, at the Renaissance Boca Raton Hotel, 2000 NW 19th Street, Boca Raton, Florida 33431* and at any adjournment or adjournments thereof, and to vote all shares of common stock which the undersigned would be entitled to vote if then and there personally present on the matters set forth on the reverse side of this proxy card. *As part of our precautions regarding the COVID-19 pandemic, we are planning for the possibility that the meeting may be held only through remote communication. If a decision is made to forego the physical meeting, a news release will be issued and the information with respect to the logistical details of the meeting, including how stockholders can remotely access, participate in and vote at the meeting, will be posted on our website, www.therapeuticsmd.com, and such information will be filed with the U.S. Securities and Exchange Commission as proxy material, no later than June 8, 2020. This proxy, when properly executed, will be voted in the manner directed herein. If no such direction is made, this proxy will be voted in accordance with the Board of Directors' recommendations. PLEASE MARK, SIGN, DATE, AND RETURN THIS PROXY CARD PROMPTLY IN THE ENCLOSED ENVELOPE. Address Changes/Comments: (If you noted any Address Changes/Comments above, please mark corresponding box on the reverse side.) Continued and to be signed on reverse side