Exhibit 3.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 17, 2023
EVOFEM BIOSCIENCES, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-36754 | 20-8527075 | ||
| (State or other jurisdiction | (Commission | (I.R.S. Employer | ||
| of incorporation) | File Number) | Identification No.) |
7770 Regents Road, Suite 113-618
San Diego, California 92122
(Address of principal executive offices)
(858) 550-1900
(Registrant’s telephone number, including area code)
12400 High Bluff Drive, Suite 600
San Diego, California 92130
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a -12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d -2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e -4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of exchange on which registered | ||
| Common stock, par value $0.0001 per share | EVFM | OTCQB |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging Growth Company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
At the Special Meeting of Evofem Biosciences, Inc. (the “Company”) held on March 15, 2023 (the “Special Meeting”), the Company’s shareholders approved an amendment to the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Amendment”), as amended, to effect a one-time reverse stock split of the Company’s Common Stock, to effectuate a reverse stock split of the outstanding shares of the Company’s common stock by a ratio of not less than 1-for-20 and not more than 1-for-125 at any time on or prior to March 15, 2024, with the exact ratio to be set at a whole number within such range by the Company’s board of directors (the “Board”), at the sole discretion of the Company (the “Reverse Stock Split”). The Company determined it was in the best interest of the Company to effect a reverse split at a ratio of 1-for-125. The Company’s total authorized Common Stock remains unchanged.
On May 2, 2023, the Company filed with the Secretary of State of the State of Delaware the Certificate of Amendment to effectuate the Reverse Stock Split at a ratio of 1-for-125, in accordance with the General Corporation Law of the State of Delaware, effective May 3, 2023. On May 17, 2023, the Company filed with the Secretary of State of the State of Delaware a Certificate of Correction (the “Certificate of Correction”) to change the effective time of the Reverse Stock Split from May 3, 2023 to May 18, 2023. As a result, the Reverse Stock Split will become effective upon the open of trading on the OTC Venture Market on May 18, 2023 (the “Effective Time”). The Company’s Common Stock will trade on the OTC Venture Market under the symbol “EVFMD”, and after twenty (20) business days, the Company’s Common Stock will continue to trade on the OTC Venture Market under the symbol “EVFM.” The new CUSIP number for the common stock following the Reverse Stock Split will be 30048L302.
At the Effective Time, every 125 shares of the Company’s issued and outstanding Common Stock (and such shares held in treasury) will automatically be converted into one share of Common Stock, without any change in the par value per share. In addition, proportionate adjustments will be made to the per share exercise price and the number of shares issuable upon the exercise of all outstanding stock options, stock appreciation rights, convertible notes and warrants to purchase shares of Common Stock, the number of shares issuable upon the vesting of all restricted stock awards, and the number of shares of Common Stock reserved for issuance pursuant to the Company’s equity incentive compensation plans. Any stockholder who would otherwise be entitled to a fractional share of Common Stock created as a result of the Reverse Stock Split shall be entitled to receive a cash payment equal to the product of such resulting fractional interest in one share of Common Stock multiplied by the closing trading price of the Common Stock on the trading day immediately preceding the Effective Time.
The above descriptions of the Certificate of Amendment, the Certificate of Correction, and the Reverse Stock Split is qualified in its entirety by reference to the Certificate of Amendment and Certificate of Correction, copies of which are attached hereto as Exhibits 3.1 and 3.2, respectively, and incorporated herein by reference.
| Item 7.01. | Regulation FD Disclosure |
On May 17, 2023, Evofem Biosciences, Inc. issued a press release announcing the above referenced Reverse Stock Split A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
The information set forth under Item 5.03 and Item 7.01 of this Current Report on Form 8-K (this “Current Report”), including Exhibit 99.1 attached hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of such section. The information in Item 7.01 of this Current Report, including Exhibit 99.1, shall not be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, regardless of any incorporation by reference language in any such filing, except as expressly set forth by specific reference in such a filing. This Current Report will not be deemed an admission as to the materiality of any information in this Current Report that is required to be disclosed solely by Regulation FD.
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Forward-Looking Statements
This Current Report, including Exhibit 99.1 attached hereto, contains certain forward-looking statements that involve substantial risks and uncertainties. When used herein, the terms “anticipates,” “expects,” “estimates,” “believes,” “will” and similar expressions, as they relate to us or our management, are intended to identify such forward-looking statements.
Forward-looking statements in this Current Report, including Exhibit 99.1 attached hereto, or hereafter, including in other publicly available documents filed with the Securities and Exchange Commission (“Commission”), reports to the stockholders of the Company and other publicly available statements issued or released by us involve known and unknown risks, uncertainties and other factors which could cause our actual results, performance (financial or operating), or achievements to differ from the future results, performance (financial or operating), or achievements expressed or implied by such forward-looking statements. Such future results are based upon the Company’s best estimates based upon current conditions and the most recent results of operations. These risks include, but are not limited to, the risks associated with the Reverse Stock Split and the risks set forth in such other documents filed with the Commission, each of which could adversely affect our business and the accuracy of the forward-looking statements contained herein. Our actual results, performance or achievements may differ materially from those expressed or implied by such forward-looking statements.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. | Description | |
| 3.1 | Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Evofem Biosciences, Inc., filed May 2, 2023. | |
| 3.2 | Certificate of Correction, filed May 17, 2023. | |
| 99.1 | Press Release dated May 17, 2023. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| EVOFEM BIOSCIENCES, INC. | ||
| Dated: May 17, 2023 | By: | /s/ Saundra Pelletier |
| Sandra Pelletier | ||
| Chief Executive Officer | ||
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Exhibit 3.1
Exhibit 3.2
STATE OF DELAWARE
CERTIFICATE OF CORRECTION
Evofem Biosciences, Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware, hereby certifies that:
FIRST: The name of this Corporation is Evofem Biosciences, Inc.
SECOND: That a Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate”) was filed with the Secretary of State of Delaware on May 2, 2023 and that said Certificate requires correction as permitted by Section 103 of the General Corporation Law of the State of Delaware.
THIRD: The inaccuracy or defect of said Certificate is due to a clerical error in which the Effective Time represented in Article IV is inaccurate.
FOURTH: The first paragraph of Article IV of the Certificate is corrected to read as follows:
“The total number of shares of all classes of stock which the Corporation shall have authority to issue is 505,000,000 shares, consisting of (a) 500,000,000 shares of Common Stock, $0.0001 par value per share (the “Common Stock”) and (b) 5,000,000 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”).
Upon the effectiveness of this Certificate of Amendment on May 18, 2023 (the “Effective Time”), the shares of Common Stock issued and outstanding immediately prior to the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time are reclassified into a smaller number of shares such that each one-hundred twenty five (125) shares of issued Common Stock immediately prior to the Effective Time is reclassified into one (1) share of Common Stock. Notwithstanding the immediately preceding sentence, no fractional shares shall be issued as a result of the reverse stock split. Instead, any stockholder who would otherwise be entitled to a fractional share of Common Stock as a result of the reclassification shall be entitled to receive a cash payment equal to the product of such resulting fractional interest in one share of Common Stock multiplied by the closing trading price of Common Stock on the trading day immediately preceding the effective date of the reverse stock split. Notwithstanding the foregoing, the Corporation shall not be obliged to issue certificates evidencing the shares of Common Stock outstanding as a result of the reverse stock split or cash in lieu of fractional shares, if any, unless and until the certificates evidencing the shares held by a holder prior to the reverse stock split are either delivered to the Corporation or its transfer agent, or the holder notifies the Corporation or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Corporation to indemnify the Corporation from any loss incurred by it in connection with such certificates.
Each stock certificate that, immediately prior to the Effective Time, represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent the number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been reclassified (as well as the right to receive a cash payment in lieu of a fractional share of Common Stock), provided, however, that each person of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate, a new certificate evidencing and representing the number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been reclassified.”
FIFTH: The foregoing amendment shall be effective upon the Effective Time and filing of this Certificate of Correction with the Secretary of State of the State of Delaware.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Correction to be signed by a duly authorized officer this 17th day of May, 2023.
| Evofem Biosciences, Inc. | ||
| By: | /s/ Saundra Pelletier | |
| Name: | Saundra Pelletier | |
| Title: | Chief Executive Officer | |
| 2 |
Exhibit 99.1
Evofem Biosciences Announces 1-for-125 Reverse Stock Split
— CUSIP number for Evofem will change to 30048L302 on May 18, 2023 –
— Ticker symbol will change to “EVFMD” for 20 business days, then revert to “EVFM” –
SAN DIEGO, May 17, 2023 – Evofem Biosciences, Inc., (OTCQB: EVFM) (the “Company”) today announced a 1-for-125 reverse stock split of the Company’s common stock, which was approved by the stockholders of the Company at the special meeting of stockholders held on March 15, 2023.
| ● | On Thursday May 18, 2023, the Company’s common stock will open for trading under a new CUSIP (30048L302) on the OTC Venture Market, on a split-adjusted basis, under the ticker symbol “EVFMD.” | |
| ● | After 20 business days, the ticker symbol will change back to “EVFM.” |
The reverse stock split is intended to ensure the Company has a sufficient number of authorized shares of common stock to cover the number of common shares underlying the Company’s financial instruments on a fully-diluted basis.
The 1-for-125 reverse stock split will automatically convert 125 current shares of the Company’s common stock into one share of common stock. No fractional shares will be issued in connection with the reverse stock split. Stockholders who would otherwise hold a fractional share of the Company’s common stock will receive a cash payment in lieu thereof at a price equal to that fraction to which the stockholder would otherwise be entitled multiplied by the closing trading price of the common stock on the OTC Venture Market on Wednesday, May 17, 2023, and rounded down to the nearest whole cent.
The reverse split will reduce the number of shares of outstanding common stock from approximately 249,004,008 shares, the number of shares outstanding as of May 17, 2023, which was the Record Date for this transaction, to approximately 1,992,032 shares. Additionally, proportional adjustments will be made to the exercise and conversion prices of the Company’s outstanding stock options, warrants, purchase rights, and convertible notes, and to the number of shares issued and issuable under the Company’s stock incentive plans.
Stockholders holding their shares electronically in book-entry form are not required to take any action to receive post-split shares. Stockholders owning shares through a bank, broker or other nominee will have their positions automatically adjusted to reflect the reverse stock split, subject to brokers’ particular processes, and will not be required to take any action in connection with the reverse stock split. For those stockholders holding physical stock certificates, the Company’s transfer agent, Pacific Stock Transfer, will send instructions for exchanging those certificates for shares held electronically in book-entry form or for new certificates, in either case representing the post-split number of shares, and any payments in cash in lieu of fractional shares, if applicable.
About Evofem Biosciences, Inc.
Evofem Biosciences, Inc., is developing and commercializing innovative products to address unmet needs in women’s sexual and reproductive health. The Company’s first FDA-approved product, Phexxi® (lactic acid, citric acid and potassium bitartrate), is a hormone-free, on-demand prescription contraceptive vaginal gel. It comes in a box of 12 pre-filled applicators and is applied 0-60 minutes before each act of sex. Learn more at phexxi.com and evofem.com.
Phexxi® is a registered trademark of Evofem Biosciences, Inc.
Investor Contact
Amy Raskopf
Evofem Biosciences, Inc.
araskopf@evofem.com
(917) 673-5775