Delaware
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20-8527075
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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Adam C. Lenain, Esq.
Melanie Ruthrauff Levy, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
3580 Carmel Mountain Road, Suite 300
San Diego, CA 92130
Tel: (858) 314-1500
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Alexander A. Fitzpatrick, Esq.
General Counsel
Evofem Biosciences, Inc.
12400 High Bluff Drive, Suite 600
San Diego, CA 92130
Tel: (858) 550-1900
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Large accelerated filer
☐
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Accelerated filer
☐
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Non-accelerated filer
ý
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Smaller reporting company
ý
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Emerging growth company
ý
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Title of securities
to be registered
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Amount To be
registered
(1)(2)
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Proposed maximum
offering
price per share
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Proposed maximum
aggregate
offering price
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Amount of
registration fee
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Common Stock, $0.0001 par value per share
(2019 Employee Stock Purchase Plan)
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500,000
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$5.99
(3)
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$2,995,000.00
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$362.99
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Common Stock, $0.0001 par value per share
(2012 Amended and Restated Equity Incentive Plan)
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152,165
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$57.27
(3)
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$8,714,489.55
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$1,056.20
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TOTAL
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652,165
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$17.95
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$11,709,489.55
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$1,419.19
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (“Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock, par value $.0001 per share (“Common Stock”) that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of the outstanding shares of the Registrant’s Common Stock.
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(2)
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The number of shares of Common Stock, stated above consists of the aggregate number of shares which may be sold (i) upon the exercise of options or issuance of stock-based awards which have been granted and/or may hereafter be granted under the Registrant’s Amended and Restated 2012 Equity Incentive Plan (the “2012 Plan”) and the Registrant’s 2019 Employee Stock Purchase Plan (the “2019 ESPP”; and collectively with the 2012 Plan, the “Plans”). The shares of Common Stock registered hereunder consist of 500,000 shares reserved for issuance pursuant to the 2019 ESPP as well as up to 152,165 additional shares of Common Stock reserved for issuance pursuant to the 2012 Plan.
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(3)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act as follows: (a) shares of Common Stock issuable upon the exercise of outstanding options granted under the 2012 Plan are based upon the weighted-average exercise price of such outstanding options; and (b) shares of Common Stock reserved for future grant or issuance under the 2019 ESPP are based on the average of the high and the low price of the Registrant’s Common Stock as reported on the Nasdaq Capital Market on June 5, 2019.
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(a)
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the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018, as filed on March 1, 2019;
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(b)
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the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2019 filed with the Commission on May 7, 2019;
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(c)
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the Registrant’s Reports on Form 8-K filed with the SEC on January 3, 2019, January 7, 2019, February 11, 2019, March 1, 2019, April 11, 2019, May 7, 2019 and June 5, 2019 (except for the information furnished under Items 2.02 or 7.01 and the exhibits thereto);
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(d)
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all other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in (a) above (in each case, except for the information furnished under Items 2.02 or 7.01 in any current report on Form 8-K); and
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(e)
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the description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A (Registration No. 001-36754) filed with the Commission on November 18, 2014 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.
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•
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from any breach of the director’s duty of loyalty to us or our stockholders;
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•
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from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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•
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under Section 174 of the DGCL; and
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•
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from any transaction from which the director derived an improper personal benefit.
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Incorporated by Reference
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||||
Exhibit No.
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Exhibit Title
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Herewith
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Form
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File No.
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Date Filed
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4.1
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10-K
(Exhibit 3.1)
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001-36754
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02/26/2018
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4.2
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8-K
(Exhibit 3.2)
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001-36754
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01/17/2018
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4.4
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10-K
(Exhibit 4.1)
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001-36754
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02/26/2018
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5.1
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X
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23.1
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X
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23.2
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Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1).
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X
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24.1
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Power of Attorney (included on signature page).
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X
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99.1
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S-4
(Exhibit 10.47)
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333-221592
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11/15/2017
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99.2
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8-K
(Exhibit 10.2)
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001-36754
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06/05/2019
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By:
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/s/ Saundra Pelletier
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Name:
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Saundra Pelletier
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Title:
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President and Chief Executive Officer
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Signature
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Title
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Date
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/s/ Saundra Pelletier
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President and Chief Executive Officer and Director
(
Principal Executive Officer
)
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Saundra Pelletier
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June 6, 2019
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/s/ Justin J. File
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Chief Financial Officer
(
Principal Financial Officer and Principal Accounting Officer
)
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Justin J. File
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June 6, 2019
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/s/ Thomas Lynch
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Chairman of the Board
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Thomas Lynch
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June 6, 2019
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/s/ Gillian Greer, Ph.D.
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Director
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Gillian Greer, Ph.D.
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June 6, 2019
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/s/ William Hall, Ph.D.
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Director
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William Hall, Ph.D., M.D.
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June 6, 2019
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/s/ Kim P. Kamdar, Ph.D.
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Director
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Kim P. Kamdar, Ph.D.
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June 6, 2019
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/s/Tony O’Brien
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Director
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Tony O’Brien
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June 6, 2019
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/s/ Colin Rutherford
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Director
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Colin Rutherford
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June 6, 2019
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Re:
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Registration Statement on Form S-8; 652,165 shares of Common Stock of Evofem Biosciences, Inc., par value $0.0001 per share
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Very truly yours,
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/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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