Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Walker Employment Agreement Amendment
On February 21, 2023, TherapeuticsMD, Inc., a Nevada corporation (the
"Company"), entered into an Amendment (the "Amendment") to that certain
Employment Agreement, dated December 18, 2018, as extended effective October 15,
2021 (the "Employment Agreement"), with Mr. Marlan Walker, the Company's Chief
Executive Officer. Pursuant to the terms of the Amendment, as of December 30,
2022 (the "Effective Date"), Mr. Walker will receive a base salary of $428,000
per year until April 15, 2023; thereafter, Mr. Walker will receive (i) a base
salary of $500,000 per year and (ii) a lump-sum bonus of $20,909. Mr. Walker
also received a grant of 70,000 restricted stock units that will vest on the
six-month anniversary of the Effective Date.
Pursuant to the Amendment, in the event that Mr. Walker's employment is
terminated by the Company without Good Cause or by Mr. Walker with Good Reason
(in each case as defined in the Employment Agreement), (i) Mr. Walker will
continue to receive his then current base salary for 18 months following the
effective date of such termination, (ii) Mr. Walker will receive an amount equal
to one half times his Targeted Annual Bonus Award (as that term is defined in
the Employment Agreement) for the year in which the termination occurs,
(iii) Mr. Walker will receive a monthly payment equal to the monthly cost of
COBRA continuation health insurance benefits for a period of twenty-four months,
(iv) all unvested equity compensation of any kind held by Mr. Walker will vest
as of the termination date, (v) Mr. Walker will receive a payment for accrued
but unused PTO, and (vi) Mr. Walker will receive any earned but unpaid annual
short-term incentive compensation for the calendar year immediately preceding
the calendar year in which termination occurs.
Donegan Consulting Agreement
As previously disclosed, on January 11, 2023, TherapeuticsMD, Inc., a Nevada
corporation (the "Company"), terminated that certain amended and restated
employment agreement, dated November 24, 2020, by and between the Company and
Mr. Michael Donegan, the Company's former Interim Chief Financial Officer, Chief
Accounting Officer and Vice President Finance.
Effective February 21, 2023, the Company entered into a General Consulting and
Services Agreement (the "Consulting Agreement") with MCD Consulting and
Management Services, LLC ("MCD"), the manager of which is Mr. Donegan, the
Company's Principal Financial Officer ("PFO") and Principal Accounting Officer
("PAO") and former Interim Chief Financial Officer, Chief Accounting Officer and
Vice President Finance. Pursuant to the Consulting Agreement, Mr. Donegan will
provide consulting services deemed to be the functional equivalent of services
normally and customarily provided by an employed chief financial officer and
will continue to serve as the Company's PFO and PAO. The Consulting Agreement
will be in effect until the completion of Mr. Donegan's services, which is
anticipated to be the close of business on March 31, 2023 (the "Termination
Date").
Pursuant to the Consulting Agreement, MCD received a signing fee of $100,000 and
will receive an additional fee of $50,000 per month. If the term of the
Consulting Agreement is extended past the Termination Date, MCD will receive an
hourly fee of $205.28 per hour of services performed by Mr. Donegan. If the
Consulting Agreement is not terminated by MCD prior to the Termination Date, or
by the Company due to MCD's material breach prior to the Termination Date, MCD
will receive an additional one-time fee of $100,000 on the Termination Date. In
addition, Mr. Donegan received a grant of 50,000 restricted stock units that
will completely vest on the Termination Date, provided that the Consulting
Agreement is not terminated by MCD prior to the Termination Date, or by the
Company due to MCD's material breach prior to the Termination Date.
The foregoing summary of the Amendment and the Consulting Agreement does not
purport to be complete and is subject to, and qualified in its entirety by, the
full text of the Amendment and the Consulting Agreement, copies of which are
filed as Exhibit 10.1 and Exhibit 10.2, respectively, to this Current Report on
Form 8-K and are incorporated herein by reference.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit Index
Exhibit
Number Description
10.1 Amendment, dated February 21, 2023, to the Employment Agreement,
dated as of December 18, 2018, as extended effective October 15, 2021,
by and between TherapeuticsMD, Inc. and Marlan Walker.
10.2 General Consulting and Services Agreement by and between
TherapeuticsMD, Inc. and MCD Consulting Management Services, LLC,
dated February 21, 2023.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
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