false0001618835☐00016188352021-11-202021-11-200001618835us-gaap:CommonStockMember2021-11-202021-11-200001618835us-gaap:PreferredStockMember2021-11-202021-11-20
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): November 20, 2021
EVOFEM BIOSCIENCES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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001-36754
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20-8527075
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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12400 High Bluff Drive, Suite 600, San Diego, CA 92130
(Address of principal executive offices and 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 (see General Instruction A.2. below):
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, par value $0.0001 per share
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EVFM
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The Nasdaq Stock Market LLC
(Nasdaq Capital Market)
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Series A Preferred Stock Purchase Rights, par value $0.0001 per share
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N/A
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The Nasdaq Stock Market LLC
(Nasdaq Capital Market)
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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Item 1.01.
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Entry Into a Material Definitive Agreement.
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On November 20, 2021 Evofem Biosciences, Inc. (the “Company”), certain institutional investors (the “Purchasers”) and Baker Bros. Advisors LP as their designated agent (the “Designated Agent”) entered into a first amendment (the “Amendment”) to the Securities Purchase and Security Agreement by and among the Company, the Purchasers and the Designated Agent, dated as of April 23, 2020 (the “Agreement”). The Amendment amends, effective as of the next date the Company completes one or more financings resulting in aggregate gross proceeds to the Company of at least $50 million (the “Qualified Financing Threshold”), the covenant in the Agreement currently requiring Evofem to achieve $100 million of cumulative net sales of Phexxi® (lactic acid, citric acid, and potassium bitartrate) on or prior to June 30, 2022 to require the Company to achieve $100 million in net sales on or prior to June 30, 2023.
The Amendment also provides for an adjustment to the conversion price of the convertible senior secured promissory notes sold to the Purchasers pursuant to the Agreement such that the conversion price for these promissory notes will now be the lesser of (i) $2.44 (the current conversion price of the promissory notes) and (ii) 115% of the lowest price per share of common stock (or with respect to securities convertible in common stock, 115% of the applicable conversion price) sold in any equity financing until the Company has met the Qualified Financing Threshold. Pursuant to the Amendment, if in any financing closing on or prior to the date the Company has met the Qualified Financing Threshold, the Company issues warrants to purchase capital stock of the Company (or other similar consideration), each Purchaser will receive equivalent coverage of warrants (or other similar consideration) on the same terms as if the Purchaser had participated in the financing in an amount equal to the then outstanding principal of promissory notes held by the Purchaser. Except as noted, the material terms of the Agreement remain substantially unchanged.
The foregoing description of the Amendment is qualified in its entirety by reference to the Amendment attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
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Item 2.03.
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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The information set forth under Items 1.01 of this Current Report on Form 8-K regarding the issuance of the Notes is incorporated into this Item 2.03 by reference.
On November 22, 2021, the Company issued a press release announcing the entry into the Amendment. The press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated into this Item 8.01 by reference.
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Item 9.01.
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Financial Statements and Exhibits.
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(d) Exhibits
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Exhibit Number
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Description
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10.1
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99.1
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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EVOFEM BIOSCIENCES, INC.
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Date: November 22, 2021
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By:
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/s/ Justin J. File
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Justin J. File
Chief Financial Officer
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FIRST AMENDMENT TO SECURITIES PURCHASE AND SECURITY AGREEMENT
This First Amendment to Securities Purchase and Security Agreement (this “Amendment”) is entered into as of November 20, 2021 (the “Amendment Effective Date”) by and among Evofem Biosciences, Inc., a Delaware corporation (the “Company”), 667, L.P., Baker Bros. Life Sciences, L.P. (each, a “Purchaser”, and collectively, the “Purchasers”), and Baker Bros. Advisors LP, as agent and collateral agent for the Purchasers (in such capacity, the “Designated Agent”).
RECITALS
WHEREAS, the Company, the Purchasers and the Designated Agent are party to that certain Securities Purchase Agreement, dated as of April 23, 2020 (the “Purchase Agreement”), pursuant to which the Purchasers purchased certain convertible promissory notes (the “Notes”) and common stock warrants (the “Warrants”, and together with the Purchase Agreement and the Notes, the “Transaction Documents”) of the Company;
WHEREAS, pursuant to Section 12.8 of the Purchase Agreement, any term of the Purchase Agreement, the Notes or the Warrants may be amended only with the written consent of the Company, the Designated Agent and the Purchasers holding a majority of the outstanding balance, in the aggregate, of all Notes issued pursuant to the Purchase Agreement (the “Requisite Purchasers”);
WHEREAS, the undersigned Purchasers constitute the Requisite Purchasers; and
WHEREAS, the Company, the Purchasers and the Designated Agent wish to amend the Purchase Agreement to address the provisions set forth herein effective as of the Amendment Effective Date.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1.Definitions; References; Continuation of Purchase Agreement. Unless otherwise specified herein, each capitalized term used herein that is defined in the Purchase Agreement shall have the meaning assigned to such term in the Purchase Agreement and each capitalized term used herein that is defined in the Warrants shall have the meaning assigned to such term in the Warrants. Each reference to “hereof,” “hereto,” “hereunder,” “herein” and “hereby” and each other similar reference, and each reference to “this Agreement”, the “Securities Purchase Agreement” and each other similar reference, contained in the Purchase Agreement and any other Transaction Document shall from and after the date hereof refer to the Purchase Agreement as amended hereby. Except as amended or waived hereby, all terms and provisions of the Purchase Agreement, the Notes and the Warrants shall continue unmodified and remain in full force and effect.
2.Amendment to the Purchase Agreement.
2.1Amendment to Section 1.1 of the Purchase Agreement. Effective as of the Amendment Effective Date, Section 1.1 of the Purchase Agreement is hereby amended to add a new defined terms for “Financing” and “Qualified Financing” as set forth below:
“Financing” means any offering and sale by the Company of Equity Securities after the Amendment Effective Date (but excluding any exercise of the Warrants) for the principal purpose of raising capital.”
“Qualified Financing Threshold” means one or more Financings resulting in aggregate gross proceeds to the Company of at least $50,000,000.00.”
2.2Amendment to Section 5.1 of the Purchase Agreement. Effective as of the Amendment Effective Date, the first paragraph of Section 5.1 of the Purchase Agreement is hereby deleted in its entirety and replaced with the following:
“Optional Conversion. Subject to the limitations set forth in Sections 5.3 and 5.4, at the option of the Purchasers, each Purchaser shall have the right to convert all or any portion of the Notes held by such Purchaser at any time into Common Stock at a conversion price equal to the lesser of (a) $2.44 (the “Conversion Price”) and (b) 115% of the lowest price per share of Common Stock (or, as applicable with respect to any Equity Securities convertible into Common Stock, 115% of the applicable conversion price) which the Company sells securities in any Financing until the Company has met the Qualified Financing Threshold (including such Financing that achieves the threshold) (the “Floor Price”).”
2.3Amendment to Section 8.1(l) of the Purchase Agreement. Effective as of achievement of the Qualified Financing Threshold, Section 8.1(l) of the Purchase Agreement is hereby deleted in its entirety and replaced with the following:
“by no later than June 30, 2023, the Company shall have achieved cumulative net sales (determined in accordance with GAAP) of at least $100,000,000; and”
2.4Amendment to Section 12.1 of the Purchase Agreement. Effective as of the Amendment Effective Date, Section 12.1 of the Purchase Agreement is hereby amended to add a new clause (g) as set forth below:
“(g) If in any Financing closing on or prior to the date the Company has met the Qualified Financing Threshold, the Company issues warrants to purchase capital stock of the Company (or other similar consideration), each Purchaser shall receive equivalent coverage of warrants (or other similar consideration) on the same terms as if such Purchaser participated in the Financing in an amount equal to the then outstanding principal of Notes held by such Purchaser.”
3.Miscellaneous.
3.1Governing Law. This Amendment shall be governed in all respects by and construed in accordance with the laws of the State of New York without regard to provisions regarding choice of laws.
3.2Entire Agreement. This Amendment, together with the Purchase Agreement, the Notes, the Warrants, the other Note Documents and the Exhibits and Schedules to the Purchase Agreement and thereto (all of which are hereby expressly incorporated herein by this reference) constitute the entire understanding and agreement between the parties with regard to the subjects hereof and thereof.
3.3Titles and Subtitles. The titles of the sections and clauses of this Amendment are for convenience of reference only and are not to be considered in construing this Amendment.
3.4Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Delivery by facsimile or e-mail of an executed counterpart of a signature page shall be effective as delivery of an original executed counterpart.
3.5Severability. Should any provision of this Amendment be determined to be illegal or unenforceable, such determination shall not affect the remaining provisions of this Amendment.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have executed this First Amendment to Securities Purchase and Security Agreement and Warrants to be effective as of the date first above written.
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EVOFEM BIOSCIENCES, INC., as Company
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By:
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/s/ Saundra Pelletier
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Name: Saundra Pelletier
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Title: President and Chief Executive Officer
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Address:
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12400 High Bluff Drive, Suite 600
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San Diego, CA
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Email:
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Signature Page to First Amendment to Securities Purchase and Security Agreement
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BAKER BROS. ADVISORS LP,
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as the Designated Agent
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By:
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/s/ Scott Lessing
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Scott Lessing
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President
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Address:
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860 Washington St., 10th Floor
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New York, NY 10014
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Attn: Scott Lessing
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Email:
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Signature Page to First Amendment to Securities Purchase and Security Agreement
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667, L.P.,
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as a Purchaser
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By: BAKER BROS. ADVISORS LP, management
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company and investment adviser to 667, L.P.,
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pursuant to authority granted to it by Baker Biotech
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Capital, L.P., general partner to 667, L.P., and not as
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the general partner.
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By:
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/s/ Scott Lessing
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Scott Lessing
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President
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Address:
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c/o Baker Bros. Advisors LP
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860 Washington St., 10th Floor
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New York, NY 10014
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Attn: Scott Lessing
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Email:
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Signature Page to First Amendment to Securities Purchase and Security Agreement
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BAKER BROTHERS LIFE SCIENCES, L.P.,
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as a Purchaser
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By: BAKER BROS. ADVISORS LP,
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management company and investment adviser to
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Baker Brothers Life Sciences, L.P., pursuant to
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authority granted to it by Baker Brothers Life
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Sciences Capital, L.P., general partner to Baker
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Brothers Life Sciences, L.P., and not as the general
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partner.
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By:
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/s/ Scott Lessing
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Scott Lessing
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President
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Address:
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c/o Baker Bros. Advisors LP
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860 Washington St., 10th Floor
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New York, NY 10014
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Attn: Scott Lessing
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Email:
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Signature Page to First Amendment to Securities Purchase and Security Agreement
Evofem Biosciences Successfully Extends Cumulative Net Sales Covenant Timing to June 30, 2023
SAN DIEGO, CA, November 22, 2021 —Evofem Biosciences, Inc., (NASDAQ: EVFM) today announced that it has successfully extended the cumulative net sales covenant timing of its April 2020 Securities Purchase and Security Agreement to June 30, 2023.
“We appreciate that these healthcare investors see the potential for long term growth. As a result, we agreed to extend the cumulative net sales covenant timing to June 30, 2023,” said Saundra Pelletier, CEO of Evofem Biosciences.
•Over 19,000 Phexxi® (lactic acid, citric acid and potassium bitartrate) prescriptions were filled in the third quarter of 2021, a 48% increase from the prior quarter.
•With more than 10,000 Phexxi prescriptions in October 2021, up 30% over September 2021, Evofem is on track for another strong quarter of Phexxi prescription growth.
•Ex-factory sales of Phexxi (shipments to wholesalers, on which gross revenues are based) increased 19% in October over September 2021.
“With the strong demand for Phexxi and forthcoming adjustments in our patient support program that will result in improvements in our gross-to-net and net revenue beginning in December 2021, this is an achievable timeframe,” Pelletier concluded.
About Evofem Biosciences
Evofem Biosciences, Inc., (NASDAQ: EVFM) is developing and commercializing innovative products to address unmet needs in women's sexual and reproductive health, including hormone-free, woman-controlled contraception and protection from certain sexually transmitted infections (chlamydia and gonorrhea). The Company‘s first FDA-approved product, Phexxi® (lactic acid, citric acid and potassium bitartrate), is a hormone-free, on-demand prescription contraceptive vaginal gel. It comes in a box of 12 pre-filled applicators and is applied 0-60 minutes before each act of sex. Learn more at phexxi.com and evofem.com.
Phexxi® is a registered trademark of Evofem Biosciences, Inc.
Forward-Looking Statements
This press release includes "forward-looking statements," within the meaning of the safe harbor for forward-looking statements provided by Section 21E of the Securities Exchange Act of 1934, as amended, and the Private Securities Litigation Reform Act of 1995 including, without limitation,statements and judgements about the long-term value of Phexxi and demand for Phexxi, Evofem’s gross-to-net improvement efforts, Evofem’s ability to achieve the cummulative net sales threshold on or prior to June 30, 2023, and the extension of the cumulative net sales covenant, which is subject to Evofem’s completion of a financing. Various factors could cause actual results to differ materially from those discussed or implied in the
forward-looking statements, and you are cautioned not to place undue reliance on these forward-looking statements, which are current only as of the date of this press release. Each of these forward-looking statements involves risks and uncertainties. Important factors that could cause actual results to differ materially from those discussed or implied in the forward-looking statements, or that could impair the value of Evofem Biosciences' assets and business, are disclosed in the Company's SEC filings, including its Annual Report on Form 10-K for the year ended December 31, 2020 filed with the SEC on March 4, 2021. All forward-looking statements are expressly qualified in their entirety by such factors. For more complete information regarding the amendment of the April 2020 Securities Purchase and Security Agreement, please refer to the Company’s Current Report on Form 8-K filed with the SEC on November 22, 2021. The Company does not undertake any duty to update any forward-looking statement except as required by law.
Investor Relations Contact
Amy Raskopf
Evofem Biosciences, Inc.
araskopf@evofem.com
Mobile: (917) 673-5775
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