Evofem Biosciences, Inc. (Form: 8-K, Received: 02/11/2019 16:14:49)

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): February 5, 2019

EVOFEM BIOSCIENCES, INC.

(Exact name of registrant as specified in its charter)



Delaware	001-36754	20-8527075
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer Identification Number)

12400 High Bluff Drive, Suite 600, San Diego, CA 92130

(Address of principal executive offices) (zip code)

(858) 550-1900

(Registrant’s telephone number, including area code)

Not applicable.

(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))

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 ý

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. ý



Item 1.01.	Entry into a Material Definitive Agreement.

On February 5, 2019, Evofem Biosciences, Inc. (the “Company”) entered into letter agreements (the “Repricing Letter Agreements”) with certain holders (the “Holders”) of issued and outstanding warrants (the “Warrants”) to purchase common stock of the Company (the “Common Stock”) offering the Holders the opportunity to exercise their Warrants for cash at reduced exercise prices equal to 80% of the closing price of the Company’s stock reported by the Nasdaq Capital Market on the respective dates of the Repricing Letter Agreements (the “Reduced Exercise Price”) provided the Warrants were exercised for cash on or before 5:00 P.M. Eastern Daylight Time on the third trading day following the date of the respective Repricing Letter Agreements (the “End Date”). In addition, the Holders will receive “reload” warrants (the “Reload Warrants”) to purchase that number of shares of Common Stock equal to fifty percent of the shares of Common Stock issued upon exercise of the Warrants prior to the End Date. The terms of the Reload Warrants and Repricing Letter Agreements provide for customary resale registration rights and exercise prices equal to 160% multiplied by the closing price as reported by the Nasdaq Capital Market on the respective issue dates of the Reload Warrants. The Reload Warrants may be exercised at all times beginning on the earlier of the six month anniversary of their issuance date or the date of approval of the issuance of the Reload Warrants by the Company’s stockholders.

The Company will issue Reload Warrants to purchase up to 1,188,029 shares of Common Stock, and expects to receive gross proceeds of approximately $6.3 million from the exercise of the Warrants pursuant to the terms of the Repricing Letter Agreements. Certain Holders will receive Reload Warrants issued as a unit consisting of the Reload Warrant and one share of the Company’s Common Stock (the “Voting Share”). The Company expects to issue an aggregate of three Voting Shares in connection with the issuance of the Reload Warrants. The Repricing Letter Agreements and Reload Warrants were entered into pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended, and Regulation D as promulgated thereunder.

The foregoing summaries of the Reload Warrants and the Repricing Letter Agreements are subject to, and qualified in their entirety by reference to, the Form of Reload Warrants and the Form of Repricing Letter Agreements, which are incorporated herein by reference to Exhibits 4.1, 4.2 and 10.1 and 10.2, respectively.



Item 3.02.	Unregistered Sales of Equity Securities.

To the extent required by Form 8-K, the disclosures in Item 1.01 above are incorporated herein by reference.



Item 3.03.	Material Modifications to Rights of Security Holders.

To the extent required by Form 8-K, the disclosures in Item 1.01 above are incorporated herein by reference.



Item 9.01.	Financial Statements and Exhibits.

(d) Exhibits.



Exhibit No.	Description
4.1	Form of Reload Warrant
4.2	Form of Reload Warrant
10.1	Form of Repricing Letter Agreement
10.2	Form of Repricing Letter Agreement

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.

Date: February 11, 2019	By:	/s/ Justin J. File
		Justin J. File Chief Financial Officer

Exhibit 4.1

THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ ACT ”) AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.

EVOFEM BIOSCIENCES, INC.

FORM OF WARRANT TO PURCHASE COMMON STOCK

Number of Shares: [ ]

(subject to adjustment)



Warrant No.		Original Issue Date: [ ], 2019

Evofem Biosciences, Inc., a Delaware corporation (the “ Company ”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, [ ] or its registered assigns (the “ Holder ”), is entitled, subject to the terms set forth below and commencing on the earlier of (i) a date that is six (6) months following the Original Issue Date or (ii) following the date that the issuance of this Warrant (as defined below) and/or the issuance of the Warrant Shares upon exercise of this Warrant) is approved by the stockholders of the Company, to purchase from the Company up to a total of [ ] shares of common stock, $0.0001 par value per share (the “ Common Stock ”), of the Company (each such share, a “ Warrant Share ” and all such shares, the “ Warrant Shares ”) at an exercise price per share equal to $[___] per share (as adjusted from time to time as provided in Section 9 herein, the “ Exercise Price ”) ¹ , upon surrender of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “ Warrant ”) at any time and from time to time on or after the date hereof (the “ Original Issue Date ”) until the Termination Date, subject to the following terms and conditions:

1. Definitions . For purposes of this Warrant, the following terms shall have the following meanings:

(a) “ Affiliate ” means any Person directly or indirectly controlled by, controlling or under common control with, a Holder, but only for so long as such control shall continue. For purposes of this definition, “control” (including, with correlative meanings, “controlled by”, “controlling” and “under common control with”) means, with respect to a Person, possession, direct or indirect, of (a) the power to direct or cause direction of the management and policies of such Person (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise), or (b) at least 50% of the voting securities (whether directly or pursuant to any option, warrant or other similar arrangement) or other comparable equity interests.

(b) “ Commission ” means the United States Securities and Exchange Commission.

(c) “ Closing Sale Price ” means, for any security as of any date, the last trade price for such security on the Principal Trading Market for such security, as reported by Bloomberg Financial Markets, or, if such Principal Trading Market begins to operate on an extended hours basis and does not designate the last trade price, then the last trade price of such security prior to 4:00 P.M., New York City time, as reported by Bloomberg Financial Markets, or if the foregoing do not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg Financial Markets. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then the Board of Directors of the Company shall use its good faith judgment to determine the fair market value. The Board of Directors’ determination shall be binding upon all parties absent demonstrable error. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period.

(d) “ Principal Trading Market ” means the national securities exchange or other trading market on which the Common Stock is primarily listed on and quoted for trading, which, as of the Original Issue Date, shall be the Nasdaq Capital Market.

(e) “ Securities Act ” means the Securities Act of 1933, as amended.

(f) “ Trading Day ” means any weekday on which the Principal Trading Market is open for trading.

(g) “ Transfer Agent ” means Philadelphia Stock Transfer, Inc., the Company’s transfer agent and registrar for the Common Stock, and any successor appointed in such capacity.



¹ Exercise Price to be equal to 160% multiplied by the closing price as reported by the Principal Trading Market on the Original Issue Date.

2. Issuance of Securities . The Warrant, as initially issued by the Company, is offered and sold pursuant to the Letter Agreement, dated [___], 2019, by and between the Company and Holder. The Company shall register ownership of this Warrant, upon records to be maintained by the Company for that purpose (the “ Warrant Register ”), in the name of the record Holder (which shall include the initial Holder or, as the case may be, any assignee to which this Warrant is assigned hereunder) from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.

3. Registration of Transfers . Subject to compliance with all applicable securities laws, the Company shall, or will cause its Transfer Agent to, register the transfer of all or any portion of this Warrant in the Warrant Register, upon surrender of this Warrant, and payment for all applicable transfer taxes (if any). Upon any such registration or transfer, a new warrant to purchase Common Stock in substantially the form of this Warrant (any such new warrant, a “ New Warrant ”) evidencing the portion of this Warrant so transferred shall be issued to the transferee, and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the transferring Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations in respect of the New Warrant that the Holder has in respect of this Warrant. The Company shall, or will cause its Transfer Agent to, prepare, issue and deliver at the Company’s own expense any New Warrant under this Section 3 . Until due presentment for registration of transfer, the Company may treat the registered Holder hereof as the owner and holder for all purposes, and the Company shall not be affected by any notice to the contrary.

4. Exercise and Duration of Warrants .

(a) All or any part of this Warrant shall be exercisable by the registered Holder in any manner permitted by this Warrant at any time and from time to time until the date that is seven (7) years after the Original Issue Date (the “ Termination Date ”).

(b) The Holder may exercise this Warrant by delivering (as determined in accordance with the notice provisions hereof) to the Company an exercise notice, in the form attached as Schedule 1 hereto (the “ Exercise Notice ”), completed and duly signed. Within one (1) Trading Day following the date of delivery of the Exercise Notice, the Holder shall make payment of the Exercise Price for the number of Warrant Shares as to which this Warrant is being exercised (which may take the form of a “cashless exercise” if so indicated in the Exercise Notice pursuant to Section 10 below). The date on which the Notice of Exercise is delivered to the Company (as determined in accordance with the notice provisions hereof) is an “ Exercise Date, ” provided, that if the Exercise Price is not delivered on or before one (1) Trading Day following the date of delivery of the Exercise Notice, the Exercise Date shall be deemed to be one (1) Trading Day following the date of that the Exercise Price is delivered to the Company. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a New Warrant evidencing the right to purchase the remaining number of Warrant Shares, if any.

5. Delivery of Warrant Shares .

(a) Upon exercise of this Warrant, the Company shall promptly (but in no event later than two (2) Trading Days after the Exercise Date), upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with The Depository Trust Company (“ DTC ”) through its Deposit / Withdrawal At Custodian system, or if the Transfer Agent is not participating in the Fast Automated Securities Transfer Program (the “ FAST Program ”) or if the certificates are required to bear a legend regarding restriction on transferability, issue and dispatch by overnight courier to the address as specified in the Exercise Notice, a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise. The Holder, or any natural person or legal entity (each, a “Person”) so designated by the Holder to receive Warrant Shares, shall be deemed to have become the holder of record of such Warrant Shares as of the time of delivery of the Exercise Notice on the Exercise Date, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares, as the case may be. While this Warrant remains outstanding, the Company shall maintain a transfer agent that participates in the FAST Program.

(b) If by the close of the second (2nd) Trading Day after the Exercise Date, the Company fails to deliver to the Holder a certificate representing the required number of Warrant Shares in the manner required pursuant to Section 5(a) or, provided such Warrant Shares are not required to bear a restrictive legend, fails to credit the Holder’s balance account with DTC for such number of Warrant Shares to which the Holder is entitled, and if after such second (2nd) Trading Day and prior to the receipt of such Warrant Shares, the Holder purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “ Buy-In ”), then the Company shall, within two (2) Trading Days after the Holder’s request and in the Holder’s sole discretion, either (1) pay in cash to the Holder an amount equal to the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased, at which point the Company’s obligation to deliver such certificate (and to issue such Warrant

Shares) shall terminate or (2) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Warrant Shares and pay cash to the Holder in an amount equal to the excess (if any) of Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased in the Buy-In over the product of (A) the number of shares of Common Stock purchased in the Buy-In, times (B) the Closing Sale Price of a share of Common Stock on the Exercise Date.

(c) To the extent permitted by law and subject to Section 5(b), the Company’s obligations to issue and deliver Warrant Shares in accordance with and subject to the terms hereof (including the limitations set forth in Section 11 below) are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance that might otherwise limit such obligation of the Company to the Holder in connection with the issuance of Warrant Shares. Subject to Section 5(b), nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.

6. Charges, Taxes and Expenses . Issuance and delivery of certificates for shares of Common Stock upon exercise of this Warrant shall be made without charge to the Holder for any issue or transfer tax, transfer agent fee or other incidental tax or expense (excluding any applicable stamp duties) in respect of the issuance of such certificates, all of which taxes and expenses shall be paid by the Company; provided, however , that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the registration of any certificates for Warrant Shares or the Warrants in a name other than that of the Holder or an Affiliate thereof. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.

7. Replacement of Warrant . If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction (in such case) and, in each case, a customary and reasonable indemnity (but not the posting of any surety or other bond), if requested by the Company. Applicants for a New Warrant under such circumstances shall also comply with such other reasonable regulations and procedures. If a New Warrant is requested as a result of a mutilation of this Warrant, then the Holder shall deliver such mutilated Warrant to the Company as a condition precedent to the Company’s obligation to issue the New Warrant.

8. Reservation of Warrant Shares . The Company covenants that it will, at all times while this Warrant is outstanding, reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as herein provided, the number of Warrant Shares that are initially issuable and deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other contingent purchase rights of persons other than the Holder (taking into account the adjustments and restrictions of Section 9 ). The Company covenants that all Warrant Shares so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and non-assessable. The Company will take all such action as may be reasonably necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any securities exchange or automated quotation system upon which the Common Stock may be listed. The Company further covenants that it will not, without the prior written consent of the Holder, take any actions to increase the par value of the Common Stock at any time while this Warrant is outstanding.

9. Certain Adjustments . The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 9 .

(a) Stock Dividends and Splits . If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on its Common Stock or otherwise makes a distribution on any class of capital stock issued and outstanding on the Original Issue Date and in accordance with the terms of such stock on the Original Issue Date, that is payable in shares of Common Stock, (ii) subdivides its outstanding shares of Common Stock into a larger number of shares of Common Stock, (iii) combines its outstanding shares of Common Stock into a smaller number of shares of Common Stock or (iv) issues by reclassification of shares of capital stock any additional shares of Common Stock of the Company, then in each such case the Exercise Price shall be multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately before such event and the denominator of which shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, provided, however, that if such record date shall have been fixed

and such dividend is not fully paid on the date fixed therefor, the Exercise Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Exercise Price shall be adjusted pursuant to this paragraph as of the time of actual payment of such dividends. Any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.

(b) Pro Rata Distributions . If the Company, at any time while this Warrant is outstanding, distributes to all holders of Common Stock for no consideration (i) evidences of its indebtedness, (ii) any security (other than a distribution of Common Stock covered by the preceding paragraph) or (iii) rights or warrants to subscribe for or purchase any security, or (iv) cash or any other asset (in each case, “ Distributed Property ”), then, upon any exercise of this Warrant that occurs after the record date fixed for determination of stockholders entitled to receive such distribution, the Holder shall be entitled to receive, in addition to the Warrant Shares otherwise issuable upon such exercise (if applicable), the Distributed Property that such Holder would have been entitled to receive in respect of such number of Warrant Shares had the Holder been the record holder of such Warrant Shares immediately prior to such record date without regard to any limitation on exercise contained therein.

(c) Fundamental Transactions . If, at any time while this Warrant is outstanding (i) the Company effects any merger or consolidation of the Company with or into another Person, in which the Company is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) pursuant to any tender offer or exchange offer (whether by the Company or another Person), holders of capital stock tender shares representing more than 50% of the voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the voting power of the capital stock of the Company (except for any such transaction in which the stockholders of the Company immediately prior to such transaction maintain, in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above) (in any such case, a “ Fundamental Transaction ”), then following such Fundamental Transaction the Holder shall have the right to receive, upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitations on exercise contained herein (the “ Alternate Consideration ”). The Company shall not effect any Fundamental Transaction in which the Company is not the surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarly apply to subsequent transactions analogous of a Fundamental Transaction type.

(d) Number of Warrant Shares . Simultaneously with any adjustment to the Exercise Price pursuant to Section 9 , the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for the increased or decreased number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.

(e) Calculations . All calculations under this Section 9 shall be made to the nearest one-tenth of one cent or the nearest share, as applicable.

(f) Notice of Adjustments . Upon the occurrence of each adjustment pursuant to this Section 9 , the Company at its expense will, at the written request of the Holder, promptly compute such adjustment, in good faith, in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer agent.

(g) Notice of Corporate Events . If, while this Warrant is outstanding, the Company (i) declares a dividend or any other distribution of cash, securities or other property in respect of its Common Stock, including, without limitation, any granting of rights or warrants to subscribe for or purchase any capital stock of the Company or any subsidiary, (ii) authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then, except if such notice and the contents thereof shall be deemed to constitute material non-public information, the Company shall deliver to the Holder a notice of such transaction at least

ten (10) days prior to the applicable record or effective date on which a Person would need to hold Common Stock in order to participate in or vote with respect to such transaction; provided, however , that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described in such notice. In addition, if while this Warrant is outstanding, the Company authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction contemplated by Section 9(c) , other than a Fundamental Transaction under clause (iii) of Section 9(c), the Company shall deliver to the Holder a notice of such Fundamental Transaction at least thirty (30) days prior to the date such Fundamental Transaction is consummated. Holder agrees to maintain any information disclosed pursuant to this Section 9(g) in confidence until such information is publicly available, and shall comply with applicable law with respect to trading in the Company’s securities following receipt any such information.

10. Payment of Exercise Price . This Warrant shall be exercised for cash; provided, however, that if at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained therein is not available for, the issuance of the Warrant Shares, then the Holder may, in its sole discretion, satisfy its obligation to pay the Exercise Price through a “cashless exercise”, in which event the Company shall issue to the Holder the number of Warrant Shares in an exchange of securities effected pursuant to Section 3(a)(9) of the Securities Act, as determined as follows:

X = Y [(A-B)/A]

where:

“X” equals the number of Warrant Shares to be issued to the Holder;

“Y” equals the total number of Warrant Shares with respect to which this Warrant is then being exercised;

“A” equals (i) the last Closing Sale Price of the shares of Common Stock (as reported by Bloomberg Financial Markets) on the Trading Day immediately preceding the Exercise Date if the Exercise Notice is delivered prior to market close on the Exercise Date, or (ii) the last Closing Sale Price of the shares of Common Stock (as reported by Bloomberg Financial Markets) on the Exercise Date if the Exercise Notice is delivered following market close on the Exercise Date; and

“B” equals the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.

For purposes of Rule 144 promulgated under the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a “cashless exercise” transaction shall be deemed to have been acquired by the Holder, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued (provided that the Commission continues to take the position that such treatment is proper at the time of such exercise). Except as set forth in Section 5(b) (Buy-In remedy) and Section 12 (payment of cash in lieu of fractional shares), under such circumstances in no event will the exercise of this Warrant be settled in cash.

11. Limitations on Exercise .

(a) Notwithstanding anything to the contrary contained herein, the Company shall not effect any exercise of this Warrant, and the Holder shall not be entitled to exercise this Warrant for a number of Warrant Shares in excess of that number of Warrant Shares which, upon giving effect or immediately prior to such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act, to exceed 4.99% (the “ Maximum Percentage” ) of the total number of issued and outstanding shares of Common Stock of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act to exceed 4.99% of the combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Warrant, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, filed with the Commission prior to the date hereof, (y) a more recent public announcement by the Company or (z) any other notice by the Company or its transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written request of the Holder, the Company shall within three (3) Trading Days confirm in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage specified in such notice; provided that any such increase will not be effective until the sixty-first (61st) day after such notice is delivered to the Company. For purposes of this Section 11(a), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act shall include the shares of Common Stock issuable upon the

exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (x) exercise of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and is beneficially owned by the Holder or any of its Affiliates and other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act.

(b) This Section 11 shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder may receive in the event of a Fundamental Transaction as contemplated in Section 9(c) of this Warrant.

12. No Fractional Shares . No fractional Warrant Shares will be issued in connection with any exercise of this Warrant. In lieu of any fractional shares that would otherwise be issuable, the number of Warrant Shares to be issued shall be rounded down to the next whole number and the Company shall pay the Holder in cash the fair market value (based on the Closing Sale Price) for any such fractional shares.

13. Notices . Any and all notices or other communications or deliveries hereunder (including, without limitation, any Exercise Notice) shall be in writing and shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via facsimile or e-mail at the facsimile number or e-mail address specified in the books and records of the Transfer Agent prior to 5:30 P.M., New York City time, on a Trading Day so long as the sender of an e-mail has not received an automated notice of delivery failure from the proposed recipient's computer server, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile or e-mail at the facsimile number or e-mail address specified in the books and records of the Transfer Agent on a day that is not a Trading Day or later than 5:30 P.M., New York City time, on any Trading Day so long as the sender of an e-mail has not received an automated notice of delivery failure from the proposed recipient's computer server, (iii) the Trading Day following the date of mailing, if sent by nationally recognized overnight courier service specifying next business day delivery, or (iv) upon actual receipt by the Person to whom such notice is required to be given, if by hand delivery. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.

14. Warrant Agent . The Company shall initially serve as warrant agent under this Warrant. Upon thirty (30) days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or shareholders services business shall be a successor warrant agent under this Warrant without any further act. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register. Notwithstanding anything to the contrary contained herein or in any warrant agency agreement that the Company be enter into in the future, the Holder shall be entitled to elect to receive, or continue to hold, this Warrant in certificated form, in which case the terms set forth in any such warrant agency agreement shall not apply to this Warrant.

15. Miscellaneous .

(a) No Rights as a Stockholder . The Holder, solely in such Person’s capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, amalgamation, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which such Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company.

against impairment. Without limiting the generality of the foregoing, the Company will (a) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (b) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable Warrant Shares upon the exercise of this Warrant, and (c) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations under this Warrant.

(ii) Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.

(c) Successors and Assigns . Subject to compliance with applicable securities laws, this Warrant may be assigned by the Holder. This Warrant may not be assigned by the Company without the written consent of the Holder, except to a successor in the event of a Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the Company and the Holder and their respective successors and assigns. Subject to the preceding sentence, nothing in this Warrant shall be construed to give to any Person other than the Company and the Holder any legal or equitable right, remedy or cause of action under this Warrant. This Warrant may be amended only in writing signed by the Company and the Holder, or their successors and assigns.

(d) Amendment and Waiver . Except as otherwise provided herein, the provisions of the Warrants may be amended and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the Holder.

(e) Acceptance . Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.

(f) Governing Law; Jurisdiction . ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT. EACH OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PERSON AT THE ADDRESS IN EFFECT FOR NOTICES TO IT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. EACH OF THE COMPANY AND THE HOLDER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.

(g) Headings . The headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.

(h) Severability . In case any one or more of the provisions of this Warrant shall be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby, and the Company and the Holder will attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Warrant.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the undersigned has caused this Warrant to be duly executed by its authorized officer as of the date first indicated above.



COMPANY: EVOFEM BIOSCIENCES, INC.
By:
Name:	Justin J. File
Title:	Chief Financial Officer

SCHEDULE 1

FORM OF EXERCISE NOTICE

[To be executed by the Holder to purchase shares of Common Stock under the Warrant]

Ladies and Gentlemen:

(1) The undersigned is the Holder of Warrant No. (the “ Warrant ”) issued by Evofem Biosciences, Inc., a Delaware corporation (the “ Company ”). Capitalized terms used herein and not otherwise defined herein have the respective meanings set forth in the Warrant.

(2) The undersigned hereby exercises its right to purchase Warrant Shares pursuant to the Warrant.

(3) The Holder intends that payment of the Exercise Price shall be made as (check one):



	☐	Cash Exercise



	☐	“Cashless Exercise” under Section 10 of the Warrant

(4) If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $ in immediately available funds to the Company in accordance with the terms of the Warrant.

(5) Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares determined in accordance with the terms of the Warrant.

(6) By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that in giving effect to the exercise evidenced hereby the Holder will not beneficially own in excess of the number of shares of Common Stock (as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended) permitted to be owned under Section 11(a) of the Warrant to which this notice relates.



Dated:

Name of Holder:

By:
Name:
Title:

(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)

Exhibit 4.2

EVOFEM BIOSCIENCES, INC.

FORM OF WARRANT TO PURCHASE COMMON STOCK

Number of Shares: [ ]

(subject to adjustment)



Warrant No.		Original Issue Date: [ ], 2019

1. Definitions . For purposes of this Warrant, the following terms shall have the following meanings:

(b) “ Commission ” means the United States Securities and Exchange Commission.

(e) “ Securities Act ” means the Securities Act of 1933, as amended.

(f) “ Trading Day ” means any weekday on which the Principal Trading Market is open for trading.

(g) “ Transfer Agent ” means Philadelphia Stock Transfer, Inc., the Company’s transfer agent and registrar for the Common Stock, and any successor appointed in such capacity.



¹ Exercise Price to be equal to 160% multiplied by the closing price as reported by the Principal Trading Market on the Original Issue Date.

4. Exercise and Duration of Warrants .

5. Delivery of Warrant Shares .

brokerage commissions, if any) for the shares of Common Stock so purchased in the Buy-In over the product of (A) the number of shares of Common Stock purchased in the Buy-In, times (B) the Closing Sale Price of a share of Common Stock on the Exercise Date.

9. Certain Adjustments . The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 9 .

actual payment of such dividends. Any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.

(e) Calculations . All calculations under this Section 9 shall be made to the nearest one-tenth of one cent or the nearest share, as applicable.

shall not affect the validity of the corporate action required to be described in such notice. In addition, if while this Warrant is outstanding, the Company authorizes or approves, enters into any agreement contemplating or solicits stockholder approval for any Fundamental Transaction contemplated by Section 9(c) , other than a Fundamental Transaction under clause (iii) of Section 9(c), the Company shall deliver to the Holder a notice of such Fundamental Transaction at least thirty (30) days prior to the date such Fundamental Transaction is consummated. Holder agrees to maintain any information disclosed pursuant to this Section 9(g) in confidence until such information is publicly available, and shall comply with applicable law with respect to trading in the Company’s securities following receipt any such information.

X = Y [(A-B)/A]

where:

“X” equals the number of Warrant Shares to be issued to the Holder;

“Y” equals the total number of Warrant Shares with respect to which this Warrant is then being exercised;

“B” equals the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.

11. Unit Characteristics; Voting Share .

The Company hereby confirms that this Warrant has been issued as a unit consisting of this Warrant and one share of Common Stock (such share, the “ Voting Share ”). The Voting Share shall entitle the Holder to one (1) vote on all matters presented to the stockholders of the Company. To the extent a valid transfer of the entire Warrant is proposed pursuant to Section 16(c) below, then the Voting Share must also be validly transferred or assigned to such transferee or assignee in order for the transfer of the entire Warrant to be valid, it being understood that this Warrant and the Voting Share constitute a unit. In the alternative, if the Holder desires to transfer a portion of the Warrant independent of the Voting Share, the Holder may, in its sole discretion, transfer such portion of the Warrant. Holder agrees to execute and deliver to the Company an assignment separate from certificate to effect any such transfer of the Voting Share and no transfer of the Warrant will be valid unless and until the Voting Share is transferred to the same transferee.

to be given, if by hand delivery. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.

15. Registration Rights . Within thirty (30) days of the Original Issue Date, the Company shall prepare and file with the Commission a registration statement covering the resale of all of the Warrant Shares and the Voting Share for an offering to be made on a continuous basis pursuant to Rule 415. The registration statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Warrant Shares and Voting Share on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith. The Holder shall promptly provide such information as the Company may reasonably request in connection with the filing of the registration statement. The Company shall use its commercially reasonable efforts to cause the registration statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof, and shall use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Warrant Shares and the Voting Share covered by such registration statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders. The Company shall, on the Trading Day after the effective date of such registration statement, file a final prospectus with the Commission as required by Rule 424.

16. Miscellaneous .

(b) Authorized Shares . (i) Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate or articles of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (a) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (b) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable Warrant Shares upon the exercise of this Warrant, and (c) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations under this Warrant.

(c) Successors and Assigns . Subject to compliance with applicable securities laws and Section 11 of this Warrant, this Warrant and the Voting Share may be assigned and transferred in whole by the Holder. This Warrant may not be assigned by the Company without the written consent of the Holder, except to a successor in the event of a Fundamental Transaction. This Warrant shall be binding on and inure to the benefit of the Company and the Holder and their respective successors and assigns. Subject to the

preceding sentence, nothing in this Warrant shall be construed to give to any Person other than the Company and the Holder any legal or equitable right, remedy or cause of action under this Warrant. This Warrant may be amended only in writing signed by the Company and the Holder, or their successors and assigns.

(e) Acceptance . Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.

(g) Headings . The headings herein are for convenience only, do not constitute a part of this Warrant and shall not be deemed to limit or affect any of the provisions hereof.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the undersigned has caused this Warrant to be duly executed by its authorized officer as of the date first indicated above.



COMPANY: EVOFEM BIOSCIENCES, INC.
By:
Name:	Justin J. File
Title:	Chief Financial Officer

SCHEDULE 1

FORM OF EXERCISE NOTICE

[To be executed by the Holder to purchase shares of Common Stock under the Warrant]

Ladies and Gentlemen:

(2) The undersigned hereby exercises its right to purchase Warrant Shares pursuant to the Warrant.

(3) The Holder intends that payment of the Exercise Price shall be made as (check one):



	☐	Cash Exercise



	☐	“Cashless Exercise” under Section 10 of the Warrant

(4) If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $ in immediately available funds to the Company in accordance with the terms of the Warrant.

(5) Pursuant to this Exercise Notice, the Company shall deliver to the Holder Warrant Shares determined in accordance with the terms of the Warrant.



Dated:

Name of Holder:

By:
Name:
Title:

(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)

Exhibit 10.1

EVOFEM BIOSCIENCES, INC.

LETTER AGREEMENT

, 2019

Dear Warrant Holders,

Evofem Biosciences, Inc. (“ Evofem ”) understands that you own one or more Warrants to purchase Common Stock identified on Schedule A hereto (the “ Warrants ”; and each such Warrant holder, a “ Warrant Holder ”). The Warrants were issued pursuant to that certain Underwriting Agreement, dated as of May 22, 2018 (the “ Underwriting Agreement ”). Capitalized terms used herein and not otherwise defined shall have the definitions ascribed to such terms in the Underwriting Agreement and the Warrants. Evofem desires that you exercise your Warrants in order to generate cash funds for Evofem. To accomplish that Evofem is willing to reduce the Exercise Price of the Warrants and issue additional warrants to the Warrant Holders to purchase Common Stock, as an inducement to you to presently exercise your Warrant(s) according to the terms set forth below.

Terms of this Letter Agreement

(1) This Letter Agreement constitutes an amendment to your outstanding Warrants as follows: Evofem hereby temporarily allows the Warrants to be exercised in full for an Exercise Price equal to $[____] ¹ . The reduction of the Exercise Price shall be effective only from the date hereof (the “ Effective Date ”) through 5:00 P.M. Eastern Standard Time on [____], 2019, three (3) Trading Days hereafter (the “ End Date ”). During that time the Warrants will be able to be exercised in full on the preferential terms described in this Letter Agreement on a cash only basis pursuant to Section 10 of your Warrant.

(2) In addition to the reduction of the Exercise Price, the Warrant Holders of the Warrants identified on Schedule A will receive, upon exercise of your Warrants, a warrant to purchase shares of Common Stock in substantially the form attached hereto as Exhibit A (the “ Reload Warrant ”) equal to fifty percent (50%) of the Warrant Shares listed next to such Warrant Holder’s name on Schedule A upon exercise of the Warrant prior to the End Date. The Warrants, Reload Warrant and the shares of Common Stock issuable upon the exercise of the Reload Warrants (the “ Reload Warrant Shares ”) shall collectively be referred to herein as the “ Securities ”. The Reload Warrant will be delivered in connection with the exercise of a Warrant. The Reload Warrant will be deemed issued pursuant to this Letter Agreement.

(3) If the Warrants are not exercised in full per the terms of this Agreement prior to the End Date, then this Agreement shall no longer apply, no Reload Warrants will be issued to the Warrant Holders, and the Warrants will continue to be exercisable in accordance with their current terms.

(4) Within thirty (30) days of the Original Issue Date, Evofem shall prepare and file with the Commission a registration statement covering the resale of all of the Reload Warrant Shares for an offering to be made on a continuous basis pursuant to Rule 415, including any pre- and post-effective amendments thereto (collectively, the “ Registration Statement ”). The Registration Statement filed hereunder shall be on Form S-3 (except if Evofem is not then eligible to register for resale the Reload Warrant Shares on Form S-3, in which case such registration shall be on another appropriate form in accordance herewith). The Warrant Holder shall promptly provide such information as Evofem may reasonably request in connection with the filing of the Registration Statement. Evofem shall use its commercially reasonable efforts to cause the



¹ Note: Price to equal a 20% discount to the closing price as reported by the Nasdaq Capital Market on the date of this Letter Agreement.

Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after the filing thereof, and shall use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Reload Warrant Shares covered by the Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for Evofem to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to Evofem pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Warrant Holders. Evofem shall, on the Trading Day after the effective date of the Registration Statement, file a final prospectus with the Commission as required by Rule 424.

(5) The Warrant Shares issuable upon exercise of the Warrants are presently registered pursuant to the Registration Statement as defined in the Warrant. To the extent not already disclosed or contemplated by the disclosures in a Form 8-K filed by Evofem, Evofem will file a Form 8-K with the Commission disclosing the effectuation of the reduction of the Exercise Price and the other terms of this Letter Agreement within four (4) Business Days after the Effective Date.

Warrant Holder Representations

Each Warrant Holder, severally for itself and for no other Warrant Holder, hereby represents and warrants as of the Effective Date and as of the End Date to Evofem as follows:

(a) Organization; Authority . Such Warrant Holder is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by this Letter Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Letter Agreement and performance by such Warrant Holder of the transactions contemplated by this Letter Agreement have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Warrant Holder. This Letter Agreement and any corresponding documents to which the Warrant Holder is a party has been duly executed by such Warrant Holder, and when delivered by such Warrant Holder in accordance with the terms hereof and thereof, will constitute the valid and legally binding obligation of such Warrant Holder, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, (iii) insofar as indemnification and contribution provisions may be limited by applicable law and (iv) the implied covenant of good faith and fair dealing.

(b) Own Account . Such Warrant Holder (1) understands that the Reload Warrant and the shares of Common Stock issuable upon the exercise thereof (collectively, the “ Reload Securities ”) are “restricted securities” (within the meaning of the Securities Act) and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Reload Securities as principal for its own account and not with a view to or for distributing or reselling such Reload Securities or any part thereof in violation of the Securities Act or any applicable state securities law, and (2) has no present intention of distributing any of such Reload Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Reload Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting such Warrant Holder’s right to sell the Reload Securities in compliance with applicable federal and state securities laws). Such Warrant Holder is acquiring the Reload Securities hereunder in the ordinary course of its business. Notwithstanding the above, nothing in this Letter Agreement shall limit the Warrant Holder’s right to resell the Reload Securities in compliance with applicable law.

(c) Warrant Holder Status . At the time such Warrant Holder was offered the Securities, it was, and as of the date hereof it is, and on each date on which it exercises any Warrants or Reload Warrants, it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.

(d) Experience of Such Warrant Holder . Such Warrant Holder, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Warrant Holder is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment. Such Warrant Holder and its advisors, if any, have been furnished with all materials relating to the business, financial condition and results of operations of Evofem, and materials relating to the offer and sale of the Securities, that have been requested by such Warrant Holder or its advisors, if any. Such Warrant Holder acknowledges and understands that its investment in the Securities involves a significant degree of risk.

(e) General Solicitation . Such Warrant Holder is not purchasing or acquiring the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to such Warrant Holder’s knowledge, any other general solicitation or general advertisement.

(f) Access to Information . Such Warrant Holder acknowledges that it has had the opportunity to review this Letter Agreement, the Reload Warrant and Evofem’s reports filed pursuant to the Securities Exchange Act of 1934, as amended, with the Commission and has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Evofem concerning the terms and conditions herein and the merits and risks of investing in the Securities; (ii) access to information about Evofem and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that Evofem possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.

Evofem Representations

Evofem hereby represents and warrants as of the Effective Date and as of the End Date to each Warrant Holder as follows:

(a) The representations and warranties of Evofem set forth in the Underwriting Agreement in Section 1(i), (l), (m), (p), (q), (r) and (ww), are hereby incorporated by reference as if stated directly in this Letter Agreement as of the date of this Letter Agreement, with the understanding that references to (1) “Registration Statement,” “Time of Sale Prospectus” and “Prospectus” in the Underwriting Agreement mean the “Registration Statement” as defined in the Warrant, (2) “this Agreement” in the Underwriting Agreement means this Letter Agreement, (3) references to the “Offered Securities” in the Underwriting Agreement mean the “Warrant Shares”, “Reload Warrants” and “Reload Warrant Shares” in this Letter Agreement, (4) references to “Firm Warrants” in the Underwriting Agreement mean the “Warrants” and “Reload Warrants” in this Letter Agreement and (5) references to “Warrant Shares” in the Underwriting Agreement mean the “Reload Warrant Shares” in this Letter Agreement.

(b) Evofem is not, and after giving effect to the issuance of the Warrant Shares will not be, an “investment company” as such term is defined in, and required to register under, the Investment Company Act of 1940, as amended.

Miscellaneous

(a) Evofem will pay the Warrant Holder’s reasonable out-of-pocket expenses (including reasonable expenses of counsel) in connection with the entry into this Letter Agreement and the consummation of the transactions contemplated by this Letter Agreement.

(b) This Letter Agreement constitutes the entire agreement of the parties hereto and may only be amended in writing by Evofem and the Warrant Holder.

[Signature Page to Follow]

If this proposal is acceptable to you, please indicate your consent below and return this Letter Agreement to Evofem electronically.

Very truly yours,

Evofem Biosciences, Inc.



By:
	Justin J. File, Chief Financial Officer

Consented and Agreed by Warrant Holders:



By:



By:

SCHEDULE A



HOLDER	LEGAL WARRANT HOLDER (NOMINEE/DESIGNEE)	NUMBER OF WARRANT SHARES ISSUABLE UPON CASH EXERCISE OF WARRANT

EXHIBIT A

FORM OF RELOAD WARRANT

Exhibit 10.2

EVOFEM BIOSCIENCES, INC.

LETTER AGREEMENT

, 2019

Dear Warrant Holders,

Evofem Biosciences, Inc. (“ Evofem ”) understands that you are the beneficial owner of, and your designated nominee (holding assets on trust for your benefit) is the legal owner of, one or more Warrants to purchase Common Stock as identified on Schedule A hereto (the “ Merger Warrants ”) and Schedule B hereto (the “ Public Offering Warrants ”; collectively, the “ Warrants ”; and each such Warrant holder, a “ Warrant Holder ”). The Merger Warrants were issued pursuant to that certain Agreement and Plan of Merger and Reorganization, dated October 17, 2017 and the Public Offering Warrants were issued pursuant to that certain Underwriting Agreement, dated as of May 22, 2018 (the “ Underwriting Agreement ”). Capitalized terms used herein and not otherwise defined shall have the definitions ascribed to such terms in the Underwriting Agreement and the Warrants. Evofem desires that you exercise your Warrants in order to generate cash funds for Evofem. To accomplish that, Evofem is willing to reduce the Exercise Price of the Warrants and issue additional warrants to purchase Common Stock to the Warrant Holders as an inducement to presently exercise their Warrant(s).

Evofem hereby temporarily allows the Warrants to be exercised in full for an Exercise Price equal to $[____] ¹ . The reduction of the Exercise Price shall be effective only from the date hereof (the “ Effective Date ”) through 5:00 P.M. Eastern Standard Time on [____], 2019, three (3) Trading Days hereafter (the “ End Date ”). During that time the Warrants will be able to be exercised in full on the preferential terms described in this Letter Agreement on a cash only basis pursuant to the terms and conditions set forth in the Warrants. If the Warrants are not exercised in full pursuant to the terms of this Letter Agreement prior to the End Date, then this Letter Agreement shall no longer apply, no Reload Warrants (as defined below) will be issued to the Warrant Holders, and the Warrants will continue to be exercisable in accordance with their current terms.

In addition to the potential reduction of the Exercise Price, the Warrant Holders of the Warrants identified on Schedules A and B will receive (i) a warrant to purchase shares of Common Stock in substantially the form attached hereto as Exhibit A (the “ Reload Warrant ”) equal to fifty percent (50%) of the Warrant Shares listed next to such Warrant Holder’s name on Schedules A and B upon exercise of the Warrant prior to the End Date and (ii) one share of Common Stock to be issued as a unit with each such warrant described in item (i) above (the “ Voting Share ”). The Warrants, Voting Share, Reload Warrant and the shares of Common Stock issuable upon the exercise thereof shall collectively be referred to herein as the “ Securities ”.

The Warrant Shares issuable upon exercise of the Warrants or the resale of the shares of Common Stock issuable upon exercise of such Warrants are presently registered or registerable pursuant to registration statements filed by the Company.

The Reload Warrant will be delivered after the exercise of a Warrant. Unless otherwise directed by the Warrant Holder, the Reload Warrants will be issed to and registered in the name of the respective Warrant Holders’ nominees as identified on Schedules A and B . The Reload Warrant will be deemed issued pursuant to this Letter Agreement, and each Warrant Holder, severally for itself and for no other Warrant Holder, hereby warrants as of the Effective Date and as of the End Date to Evofem as follows:



¹ Note: Price to equal a 20% discount to the closing price as reported by the Nasdaq Capital Market on the date of this Letter Agreement.

(a) Organization; Authority . Such Warrant Holder is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by this Letter Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Letter Agreement and performance by such Warrant Holder of the transactions contemplated by this Letter Agreement have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Warrant Holder. This Letter Agreement and any corresponding documents to which the Warrant Holder is a party has been duly executed by such Warrant Holder, and when delivered by such Warrant Holder in accordance with the terms hereof and thereof, will constitute the valid and legally binding obligation of such Warrant Holder, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(b) Own Account . Such Warrant Holder understands that the Reload Warrant and the shares of Common Stock issuable upon the exercise thereof (collectively, the “ Reload Securities ”) are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Reload Securities as principal for its own account and not with a view to or for distributing or reselling such Reload Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Reload Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Reload Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting such Warrant Holder’s right to sell the Reload Securities in compliance with applicable federal and state securities laws). Such Warrant Holder is acquiring the Reload Securities hereunder in the ordinary course of its business.

(f) Access to Information . Such Warrant Holder acknowledges that it has had the opportunity to review this Letter Agreement, the Reload Warrant and Evofem’s reports filed pursuant to the Exchange Act of 1934, as amended, with the Commission and has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Evofem concerning the terms and conditions herein and the merits and risks of investing in the Securities; (ii) access to information about Evofem and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that Evofem possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.

[Signature Page to Follow]

If this proposal is acceptable to you, please indicate your consent below and return this Letter Agreement to Evofem electronically.

Very truly yours,

Evofem Biosciences, Inc.



By:
	Justin J. File, Chief Financial Officer

Consented and Agreed by Warrant Holders:



By:

SCHEDULE A



Beneficial WARRANT HOLDER	LEGAL WARRANT HOLDER (NOMINEE/DESIGNEE)	NUMBER OF WARRANT SHARES ISSUABLE UPON CASH EXERCISE OF WARRANT

SCHEDULE B



Beneficial WARRANT HOLDER	LEGAL WARRANT HOLDER (NOMINEE/DESIGNEE)	NUMBER OF WARRANT SHARES ISSUABLE UPON CASH EXERCISE OF WARRANT

EXHIBIT A

FORM OF RELOAD WARRANT