This Amendment No. 3 (this Amendment) to
Schedule 14D-9 amends and supplements the Solicitation / Recommendation Statement on Schedule 14D-9 previously filed by TherapeuticsMD, Inc., a
Nevada corporation (the Company, TherapeuticsMD, we, our or us), with the Securities and Exchange Commission on June 13, 2022 (as amended on
June 29, 2022 and July 6, 2022, the Schedule 14D-9), relating to the cash tender offer by Athene Merger Sub, Inc. (Merger Sub), a Nevada corporation and
wholly-owned subsidiary of Athene Parent, Inc., a Nevada Corporation (Parent), to purchase all of the issued and outstanding shares of the Companys common stock, par value $0.001 per share (the Shares), at
a purchase price of $10.00 per Share, net to the seller in cash, without interest, and subject to withholding taxes, upon the terms and subject to the conditions set forth in the Agreement and Plan of Merger, dated as of May 27, 2022, by and
among the Company, Parent and Merger Sub, the Offer to Purchase, dated as of June 6, 2022 and the related Letter of Transmittal, each of which may be amended or supplemented from time to time.
Except as otherwise set forth in this Amendment, the information set forth in the Schedule 14D-9 remains
unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. Capitalized terms used but not defined herein have the meanings ascribed to them in the
Schedule 14D-9.
Item 8. Additional Information.
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding the following paragraphs as a new
subsection following the heading entitled Item 8. Additional Information Extension of the Offer on page 46:
Expiration of the
Offer
The Offer and withdrawal rights expired as scheduled at one minute after 11:59 p.m., New York City time, on July 12, 2022 and was not
extended. The Depositary and Paying Agent of Parent has indicated that, as of the Expiration Date, approximately 2,705,915 Shares have been validly tendered and not properly withdrawn pursuant to the Offer, representing approximately 30.6% of the
outstanding Shares. As a result, the Minimum Condition was not satisfied and no Shares were accepted for payment or paid for pursuant to the Offer.
The
press release of the Company announcing the expiration and results of the Offer is attached as Exhibit (a)(5)(E) to this Schedule 14D-9 and is incorporated herein by reference.
Item 9. Exhibits.
Item 9 of the Schedule 14D-9 is hereby amended by inserting the following Exhibit below (a)(5)(D) as Exhibit
(a)(5)(E).