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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): March 21, 2022
 
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)		 (IRS Employer
Identification No.)
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):
 
☐Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
☐Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
☐Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
☐Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:
Title of each classTrading Symbol(s)Name of each exchange on which registered
Common Stock, par value $0.0001 per shareEVFM
The Nasdaq Stock Market LLC
(Nasdaq Capital Market)
Series A Preferred Stock Purchase Rights, par value $0.0001 per shareN/A
The Nasdaq Stock Market LLC (Nasdaq Capital Market)



Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

Item 1.01.
Entry Into a Material Definitive Agreement.


On March 21, 2022 (the “Amendment Effective Date”), Evofem Biosciences, Inc. (the “Company”), certain institutional investors (the “Purchasers”) and Baker Bros. Advisors LP as the designated agent of the Purchasers (the “Designated Agent”) entered into a second amendment (the “Second 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”), as amended by that First Amendment to the Agreement, dated as of November 20, 2021. The Second Amendment amends the Agreement as follows: (i) effective as of the next date the Company completes a marketed and underwritten public offering by the Company of equity securities after the Amendment Effective Date resulting in aggregate gross proceeds to the Company of at least $20 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) (“Phexxi”) on or prior to June 30, 2022 be amended to require the Company to achieve $100 million in net sales of Phexxi on or prior to October 31, 2022, and (ii) notwithstanding (i) above, effective as of the next date the Company meets the Qualified Financing Threshold and the publication by the Company of top-line results from its EVOGUARD clinical trial (the “Clinical Trial Milestone”), the covenant in the Agreement currently requiring Evofem to achieve $100 million of cumulative net sales of Phexxi on or prior to June 30, 2022 be amended to require the Company to achieve $100 million in cumulative net sales of Phexxi on or prior to June 30, 2023.

The Second 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) $0.3871 and (ii) 100% of the lowest price per share of common stock (or with respect to securities convertible into common stock, 100% of the applicable conversion price) sold in any equity financing until the Company has met the Qualified Financing Threshold and the Clinical Trial Milestone. The Second Amendment also provides that the exercise price of the warrants issued pursuant to the Agreement will equal the conversion price of the promissory notes and that the number of shares of common stock issuable upon exercise of those warrants will be equal to one half of the original principal amount of the promissory notes divided by $2.44.

The foregoing description of the Second Amendment is qualified in its entirety by reference to the Second Amendment attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 2.03.
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

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.

Item 9.01.
Financial Statements and Exhibits.

(d) Exhibits



Exhibit
Description
10.1


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: March 21, 2022By:/s/ Justin J. File
Justin J. File
Chief Financial Officer

Exhibit 10.1
SECOND AMENDMENT TO SECURITIES PURCHASE AND SECURITY AGREEMENT

This Second Amendment to Securities Purchase and Security Agreement (this “Second Amendment”) is entered into as of March 21, 2022 (the “Second Amendment Effective Date”) by and among Evofem Biosciences, Inc., a Delaware corporation (the “Company”), 667, L.P., Baker Brothers 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 and as amended effective November 20, 2021 (the “Amendment Effective Date”) by that First Amendment to Securities Purchase and Security Agreement (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 Second 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.




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2.    Amendment to the Purchase Agreement.

2.1    Amendment 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 revise the defined terms “Qualified Financing Threshold,” and to add new defined terms “Clinical Trial Milestone” and “Underwritten Financing” as set forth below:

“Clinical Trial Milestone” means the publication by the Company of top-line results from the EVOGUARD clinical trial.

“Qualified Financing Threshold” means a single Underwritten Financing resulting in aggregate gross proceeds to the Company of at least $20,000,000.00.

“Underwritten Financing” means any marketed and underwritten public offering and sale by the Company of Equity Securities after the Amendment Effective Date for the principal purpose of raising capital.

2.2    Amendment to Section 5.1 of the Purchase Agreement. Effective as of the Second 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 (the “Conversion Price”) equal to the lesser of (a) $0.3871 and (b) 100% of the lowest price per share of Common Stock (or, as applicable with respect to any Equity Securities convertible into Common Stock, 100% of the applicable conversion price) which the Company sells securities in any Financing until both of the following are met: (x) the Qualified Financing Threshold (including such Underwritten Financing that achieves the threshold) and (y) the Clinical Trial Milestone (the “Floor Price”).”

2.3    Amendment to Section 8.1(l) of the Purchase Agreement. Effective as of achievement of the Qualified Financing Threshold, Section 8.1(1) of the Purchase Agreement is hereby deleted in its entirety and replaced with the following:

“by no later than October 31, 2022, the Company shall have achieved cumulative net sales (determined in accordance with GAAP) of at least $100,000,000; and”

Additionally, effective as of the achievement of both the Qualified Financing Threshold and the Clinical Trial Milestone, notwithstanding the above, or any other amendment to Section 8.1(l) existing as of the date hereof, Section 8.1(l) of the Purchase Agreement shall upon the achievement of the foregoing, and without any further action required by any party, be 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”

3.    Calculation of Aggregate Shares Issuable Pursuant to Warrants: Notwithstanding the foregoing, the Aggregate Shares issuable pursuant to the Warrants shall equal one-half of the Loan Amount divided by $2.44. For the avoidance of doubt, the Exercise Price of the Warrants shall continue to be the Conversion Price for the Notes, as calculated pursuant to Section 5.1 of the Purchase Agreement, as amended by this Second Amendment and subject to the further adjustments set forth in the Warrants.



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4.    Miscellaneous.

4.1    Governing Law. This Second 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.

4.2    Entire Agreement. This Second 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.

4.3    Titles and Subtitles. The titles of the sections and clauses of this Second Amendment are for convenience of reference only and are not to be considered in construing this Second Amendment.

4.4    Counterparts. This Second 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.

4.5    Severability. Should any provision of this Second Amendment be determined to be illegal or unenforceable, such determination shall not affect the remaining provisions of this Second Amendment.

[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Second Amendment to Securities Purchase and Security Agreement and Warrants to be effective as of the date first above written.


EVOFEM BIOSCIENCES, INC., as Company
By:/s/ Saundra Pelletier
Name: Saundra Pelletier
Title: President and Chief Executive Officer
Address:
12400 High Bluff Drive, Suite 600
San Diego, CA
Email:

Signature Page to Second Amendment to Securities Purchase and Security Agreement
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BAKER BROS. ADVISORS LP,
as the Designated Agent
By:/s/ Scott Lessing
Scott Lessing
President
Address:
860 Washington St., 10th Floor
New York, NY 10014
Attn: Scott Lessing
Email:

Signature Page to Second Amendment to Securities Purchase and Security Agreement
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667, L.P.,
as a Purchaser
By: BAKER BROS. ADVISORS LP, management
company and investment adviser to 667, L.P.,
pursuant to authority granted to it by Baker Biotech
Capital, L.P., general partner to 667, L.P., and not as
the general partner
By:/s/ Scott Lessing
Scott Lessing
President
Address:
c/o Baker Bros. Advisors LP
860 Washington St., 10th Floor
New York, NY 10014
Attn: Scott Lessing
Email:
Signature Page to Second Amendment to Securities Purchase and Security Agreement
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BAKER BROTHERS LIFE SCIENCES, L.P.,
as a Purchaser
By: BAKER BROS. ADVISORS LP,
management company and investment adviser to
Baker Brothers Life Sciences, L.P., pursuant to
authority granted to it by Baker Brothers Life
Sciences Capital, L.P., general partner to Baker
Brothers Life Sciences, L.P., and not as the general
partner.
By:/s/ Scott Lessing
Scott Lessing
President
Address:
c/o Baker Bros. Advisors LP
860 Washington St., 10th Floor
New York, NY 10014
Attn: Scott Lessing
Email:
Signature Page to Second Amendment to Securities Purchase and Security Agreement