As filed with the Securities and Exchange Commission on March 12, 2020
Registration Statement No. 333-

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_______________________________
EVOFEM BIOSCIENCES, INC.
(Exact name of registrant as specified in its charter)
_______________________________
Delaware
 
20-8527075
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)
12400 High Bluff Drive, Suite 600
San Diego, CA 92130
(858) 550-1900
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
_______________________________

Amended and Restated 2014 Equity Incentive Plan
2019 Employee Stock Purchase Plan
(Full title of the plan)

Saundra Pelletier
President and Chief Executive Officer
Evofem Biosciences, Inc.
12400 High Bluff Drive, Suite 600
San Diego, CA 92130
(858) 550-1900
(Name, address, including zip code, and telephone number, including area code, of agent for service)
_______________________________
Copies to:
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
Alexander A. Fitzpatrick, Esq.
General Counsel
Evofem Biosciences, Inc.
12400 High Bluff Drive, Suite 600
San Diego, CA 92130
Tel: (858) 550-1900
___________________________________________________________









Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
 
 
 
Large accelerated filer ☐
 
 
Accelerated filer ☐
 
Non-accelerated filer ý 
 
 
Smaller reporting company ý 
 
 
 
Emerging growth company ☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
    
CALCULATION OF REGISTRATION FEE
 

Title of securities
to be registered
Amount To be
registered (1)
Proposed maximum 
offering
price per share
Proposed maximum 
aggregate
offering price
Amount of
registration fee
Common Stock, $0.0001 par value per share
1,925,515 (2)
$5.17 (4)
$9,954,912.55
$1,292.15
Common Stock, $0.0001 par value per share
962,757 (3)
$5.17 (4)
$4,977,453.69
$646.07
 
(1)
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 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.

(2)
Represents additional shares of Registrant’s Common Stock reserved for issuance under the Amended and Restated 2014 Equity Incentive Plan as of the date of this Registration Statement by operation of the plan’s “evergreen” provision.
(3)
Represents additional shares of Registrant’s Common Stock reserved for issuance under the 2019 Employee Stock Purchase Plan as of the date of this Registration Statement by operation of the plan’s “evergreen” provision.
(4)
Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee based on the average of the high and low prices of the Registrant’s Common Stock as reported on The Nasdaq Capital Market on March 10, 2020.
 

REGISTRATION OF ADDITIONAL SHARES
PURSUANT TO GENERAL INSTRUCTION E
 
This Registration Statement registers an aggregate of (i) 1,925,515 additional shares of common stock, par value $0.0001 per share (“Common Stock”) reserved for issuance under the Evofem Bioscience, Inc.’s Amended and Restated 2014 Equity Incentive Plan (the “2014 Plan”) and (ii) 962,757 additional shares of Common Stock reserved for issuance under the Evofem Bioscience, Inc.’s 2019 Employee Stock Purchase Plan (the “ESPP”), by operation of each plan’s “evergreen” provision. This Registration Statement registers additional securities of the same class as other securities for which Registration Statements filed on Form S-8 with the Securities and Exchange Commission (a) on November 20, 2014 (Registration No. 333-200409), March 27, 2015 (Registration No. 333-203059), June 1, 2018 (Registration No. 333-2225366) and June 6, 2019 (Registration No. 231-993) with respect to the 2014 Plan and (b) on June 6, 2019 (Registration No. 333-231-991) with respect to the ESPP, are effective. Pursuant to Instruction E of Form S-8, the information contained in the Registration Statements on Form S-8 filed with the Securities and Exchange Commission (a) on November 20, 2014 (Registration No. 333-200409), March 27, 2015 (Registration No. 333-203059), June 1, 2018 (Registration No. 333-2225366) and June 6, 2019 (Registration No. 231-993) with respect to the 2014 Plan and (b) on June 6, 2019 (Registration No. 333-231-991) with respect to the ESPP, is incorporated by reference herein.







PART II
Information Required in the Registration Statement
Item 8. Exhibits. 
EXHIBIT INDEX
 
 
 
 
 
Incorporated by Reference
Exhibit No.
Exhibit Title
 
Herewith
 
Form
 
File No.
    
Date Filed
4.1
 
 
 
10-K
(Exhibit 3.1)
 
001-36754
 
02/26/2018
4.2
 
 
 
8-K
(Exhibit 3.2)
 
001-36754
 
01/17/2018
4.4
 
 
 
10-K
(Exhibit 4.1)
 
001-36754
 
02/26/2018
5.1
 
X
 
 
 
 
 
 
23.1
 
X
 
 
 
 
 
 
23.2
Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1).
 
X
 
 
 
 
 
 
24.1
Power of Attorney (included on signature page).
 
X
 
 
 
 
 
 
99.1 #
 
 
 
8-K
(Exhibit 10.1)
 
001-36754
 
06/05/2019
99.2 #
 
 
 
8-K
(Exhibit 10.2)
 
001-36754
 
06/05/2019
 
# Indicates a management contract or compensatory plan.  







SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of San Diego, California, on this 12th day of March 12, 2020.

EVOFEM BIOSCIENCES, INC.
By:
/s/ Saundra Pelletier
Name:
Saundra Pelletier
Title:
President and Chief Executive Officer

POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Saundra Pelletier and Justin J. File, and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of Evofem Biosciences, Inc., and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to the attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the attorneys-in-fact and agents or any of each of them or their substitute may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature
 
Title
 
Date
/s/ Saundra Pelletier
 
President and Chief Executive Officer and Director
(Principal Executive Officer)
 
March 12, 2020
Saundra Pelletier
 
 
 
 
 
 
 
 
/s/ Justin J. File
 
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
 
March 12, 2020
Justin J. File
 
 
 
 
 
 
 
 
/s/ Thomas Lynch
 
Chairman of the Board
 
March 12, 2020
Thomas Lynch
 
 
 
 
 
 
 
 
 
/s/ Gillian Greer, Ph.D.
 
Director
 
March 12, 2020
Gillian Greer, Ph.D.
 
 
 
 
 
 
 
 
 
/s/ William Hall, Ph.D.
 
Director
 
March 12, 2020
William Hall, Ph.D., M.D.
 
 
 
 
 
 
 
 
 
/s/ Kim P. Kamdar, Ph.D.
 
Director
 
March 12, 2020
Kim P. Kamdar, Ph.D.
 
 
 
 
 
 
 
 
 
/s/Tony O’Brien
 
Director
 
March 12, 2020
Tony O’Brien
 
 
 
 
 
 
 
 
 
/s/ Colin Rutherford
 
Director
 
March 12, 2020
Colin Rutherford
 
 
 
 
 
 
 
 
 
/s/ Lisa Rarick
 
Director
 
March 12, 2020
Lisa Rarick
 
 
 
 




Exhibit 5.1

MINTZA22.JPG

March 12, 2020
 
Evofem Biosciences, Inc.
12400 High Bluff Drive, Suite 600
San Diego, California 92130

Ladies and Gentlemen:
We have acted as counsel to Evofem Biosciences, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-8 (the “Registration Statement”), pursuant to which the Company is registering the issuance under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of (i) 1,925,515 additional shares of Company’s common stock, par value $0.0001 per share (“Common Stock”), reserved for issuance under the Evofem Bioscience, Inc.’s Amended and Restated 2014 Equity Incentive Plan (the “2014 Plan”) and (ii) 926,757 additional shares of Common Stock reserved for issuance under the Evofem Bioscience, Inc.’s 2019 Employee Stock Purchase Plan (the “ESPP”). All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement.
In connection with this opinion, we have examined the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company’s officers as we have deemed relevant; and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such copies, and the truth and correctness of any representations and warranties contained therein. In addition, we have assumed that the Company will receive any required consideration in accordance with the terms of the Plan.
Our opinion expressed herein is limited to the General Corporation Law of the State of Delaware (the “DGCL”), and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or of any foreign jurisdiction.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
Based upon the foregoing, we are of the opinion that the Shares, when issued and delivered in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable.
We understand that you wish to file this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act, and we hereby consent thereto. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
 
Very truly yours,
 
 
 
/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.   

 
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.





Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 12, 2020 relating to the financial statements of Evofem Biosciences, Inc., appearing in the Annual Report on Form 10-K of Evofem Biosciences, Inc., for the year ended December 31, 2019.

/s/ DELOITTE & TOUCHE LLP

San Diego, CA
March 12, 2020