Evofem Biosciences, Inc. (Form: 8-K, Received: 09/16/2022 06:02:51)

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): September 12, 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 class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, par value $0.0001 per share	EVFM	The Nasdaq Stock Market LLC (Nasdaq Capital Market)
Series A Preferred Stock Purchase Rights, par value $0.0001 per share	N/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.

Forbearance Agreements and Subordination Agreement

On September 15, 2022, Evofem Biosciences, Inc. (the “Company”) entered into agreements as described below, pursuant to which it exchanged approximately $24.7 million of its outstanding debt obligations into rights to acquire approximately 117,760,093 shares of its common stock, par value $0.0001 per share (the “Common Stock”), and entered into forbearance arrangements with all its remaining lenders for existing defaults.

On September 15, 2022, the Company entered into a (i) Forbearance Agreement (the “Secured Creditor Forbearance Agreement”) with certain institutional investors (the “Secured Note Purchasers”) and their designated agent (the “Designated Agent”), and (ii) a Forbearance Agreement (the “Adjuvant Forbearance Agreement,” and together with the Secured Creditor Forbearance Agreement, the “Forbearance Agreements”) with Adjuvant Global Health Technology Fund, L.P. and Adjuvant Global Health Technology Fund DE, L.P. (together, the “Adjuvant Purchasers”). Pursuant to the Forbearance Agreements, the Secured Note Purchasers and Adjuvant Purchasers, among other things, agreed to forbear from exercising any of their rights and remedies during the Forbearance Period (as defined below), but solely with respect to the specified events of default provided under the Forbearance Agreements. In exchange for the forbearances and the amendments to the Secured Creditor Purchase Agreement described below, the Company agreed to adjust the aggregate balance of the Secured Notes (as defined below) to $44.1 million, which principal amount includes delinquent interest payments that the Secured Note Purchasers agreed to forego in cash, as well as certain expenses incurred by the Designated Agent. Prior to entering into the Forbearance Agreement, the aggregate balance of the Secured Notes, after giving effect to the Default Notice (defined below), was approximately $97.1 million (or $29.4 million prior to the events of default).

The “Forbearance Period” means the period from September 15, 2022 to the date on which a Forbearance Termination Event first occurs, and the term “Forbearance Termination Event” shall mean the earliest of:

1.the first date after December 31, 2022 on which the Company’s total cash balance falls below $1.0 million,

2.the occurrence of any event of default other than the specified defaults which is not timely cured in accordance with the governing provisions, if any, of the Secured Creditor Purchase Agreement or Adjuvant Purchase Agreement (in each case, as defined below), as applicable,

3.the failure of the Company to timely comply with any term or agreement set forth in the Forbearance Agreements in any material respect,

4.an acceleration by the requisite purchasers or investors, as applicable, under and in accordance with (x) the Adjuvant Purchase Agreement or Secured Creditor Purchase Agreement, (y) the Securities Purchase Agreement, dated as of March 1, 2022, by and among the Company and each investor listed therein, or (z) any other indebtedness for borrowed money incurred or guaranteed by any loan party (collectively, the “Other Note Agreements”), as applicable,

5.the date that the Company enters into any forbearance or similar agreement with the purchasers or investors, as applicable, under any Other Note Agreement solely to the extent such forbearance or similar agreement requires the Company to make any payment to such purchasers or investors in cash (excluding, for the avoidance of doubt, (i) permitted payment of regularly scheduled principal and interest and reimbursement of fees and expenses in the ordinary course of business, (ii) the Secured Creditor Forbearance Agreement or Adjuvant Forbearance Agreement, as applicable, and the Exchange Agreements (as defined below)),

6.the date that the Company first challenges the validity or enforceability of the actions contemplated under the Forbearance Agreements or the validity or enforceability of the rights of the Secured Note Purchasers, Adjuvant Purchasers, or Designated Agent under the Secured Creditor Purchase Agreement or Adjuvant Purchase Agreement, as applicable (and the ancillary agreements thereunder), or in the case of the Secured Creditor Forbearance Agreement,

the warrants issued in connection with that certain Underwriting Agreement, dated as of May 20, 2022, by and between the Company and Piper Sandler & Co.

In addition, on September 15, 2022, the Secured Note Purchasers and Adjuvant Purchasers entered into a Subordination Agreement (the “Subordination Agreement”), which was accepted and agreed to by the Company, for the purposes of subordinating the Adjuvant Purchasers’ right of payment under the Adjuvant Notes to the security interest and right of payment of the Secured Note Purchasers.

Each of the Secured Creditor Forbearance Agreement, Adjuvant Forbearance Agreement and Subordination Agreement contain customary representations, warranties, covenants, releases, and other agreements by the parties thereto. The representations, warranties, covenants, and other agreements made in the Secured Creditor Forbearance Agreement, Adjuvant Forbearance Agreement and Subordination Agreement were made only for purposes of such agreements and as of specific dates, were solely for the benefit of the parties to such agreements and may be subject to limitations agreed upon by the contracting parties.

The foregoing summaries of the Secured Creditor Forbearance Agreement, Adjuvant Forbearance Agreement, and Subordination Agreement do not purport to be complete and are subject to, and qualified in their entirety by, the forms of such documents attached as Exhibits 10.1, 10.2, and 10.3, respectively, to this Report, which are incorporated herein by reference.

Note Exchange Agreements and Common Stock Rights

The Company previously entered into Amendment and Exchange Agreements with certain institutional Investors (the “Investors”), pursuant to which the Investors were issued 5.0% senior subordinated notes with an aggregate principal amount of $22.2 million (the “Existing Investor Notes”) in exchange for certain securities and senior subordinated notes previously held by the Investors. In addition, the Company previously entered into a Securities Purchase Agreement (the “Adjuvant Purchase Agreement”) with the Adjuvant Purchasers, pursuant to which the Company sold unsecured convertible promissory notes in aggregate principal amount of $25 million of (the “Existing Adjuvant Notes”) in a private placement.

On September 15, 2022, the Company entered into Amendment and Exchange Agreements (the “Exchange Agreements”) with (i) each of the Investors (the “Investor Exchange Agreements”), pursuant to which the Investors agreed to exchange the Existing Investor Notes for prepaid rights to receive 104,029,723 shares of Common Stock (such prepaid right, the “Rights” and such underlying shares of Common Stock, the “Right Shares”, collectively with the Rights, the “Securities”) (the “Investor Exchange”) and (ii) the Adjuvant Purchasers (the “Adjuvant Exchange Agreement”), pursuant to which the Adjuvant Purchasers agreed to exchange approximately 10% of the outstanding amount of the Existing Adjuvant Notes for a Right to receive 13,730,370 shares of Common Stock (the “Adjuvant Exchange”, and together with the Investor Exchange, the “Exchanges”). The Investors also waived certain anti-dilution share adjustment provisions with respect to shares underlying warrants held by the Investors.

The Rights obligate the Company to issue to the Investors or Adjuvant Purchasers, as applicable, upon request (without the payment of additional consideration) an aggregate of 117,760,093 shares of Common Stock. The number of Right Shares for each Right is initially fixed, but is subject to certain customary adjustments, and, until the second anniversary of issuance, adjustments for certain dilutive Company equity issuances. The Rights expire on June 28, 2027.

The Investors and Adjuvant Purchasers will not be able to exercise the Rights and receive Right Shares to the extent that after giving effect to such issuance after exercise, the Investors or Adjuvant Purchasers (together with the Investors’ or Adjuvant Purchasers’ affiliates, as applicable), would beneficially own in excess of 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of the Right. The Investors and Adjuvant Purchasers may increase the 4.99% ownership limitation, upon not less than 61 days’ prior notice to the Company, provided that the beneficial ownership limitation may in no event exceed 9.99% of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of the Right.

As provided under the Investor Exchange Agreements, following the initial delivery of the Rights to the Investors, the Existing Investor Notes will be exchanged, with the Company owing no further obligations thereunder. The Company will not receive any cash proceeds from the issuance of the Securities.

The Exchanges are exempt from registration under Section 3(a)(9) of the Securities Act of 1933, as amended. The Exchange Agreements contain customary representations, warranties, covenants, and other agreements by the Company, Investors, and Adjuvant Purchasers. The representations, warranties, covenants, and other agreements made in the Exchange Agreements were made only for purposes of such agreements and as of specific dates, were solely for the benefit of the parties to such agreements and may be subject to limitations agreed upon by the contracting parties.

This Report does not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of any securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

The foregoing summaries of the Investor Exchange Agreements, Adjuvant Exchange Agreements, and the Rights do not purport to be complete and are subject to, and qualified in their entirety by, the forms of such documents attached as Exhibits 10.4, 10.5 and 10.6, respectively, to this Report, which are incorporated herein by reference.

Amendments to Purchase Agreements

On September 15, 2022, the Company entered into a third amendment (the “Secured Creditor Amendment”) to the Securities Purchase and Security Agreement (the “Secured Creditor Purchase Agreement”), by and among the Company, the Secured Note Purchasers and their designated agent (the “Designated Agent”), pursuant to which the Secured Note Purchasers purchased certain convertible promissory notes (the “Secured Notes”). Pursuant to the Secured Creditor Amendment, among other things, the conversion price of the Secured Notes was amended to equal $0.21, subject to adjustment for certain dilutive Company equity issuance adjustments for a two-year period, removal of an interest make-whole payment due in certain circumstances, and certain change of control and liquidation payment amounts were reduced from three times the outstanding amounts of the Secured Notes to two times the outstanding amounts of the Secured Notes. In addition, the Secured Creditor Agreement provides that the Company may make future interest payments to the Secured Note Purchasers in kind or in cash, at the Company’s option.

On September 15, 2022, the Company also entered into a second amendment (the “Adjuvant Amendment”) to the Adjuvant Purchase Agreement. Pursuant to the Adjuvant Amendment, among other things, the conversion price of the Adjuvant Notes was amended to equal $0.21, subject to adjustment for certain dilutive Company equity issuance adjustments for a two-year period.

As set forth in the Secured Creditor Amendment and Adjuvant Amendment, the Company’s obligation to reserve shares of its Common Stock for issuance pursuant to the Secured Notes and Adjuvant Notes was waived until January 31, 2023 and the holders of warrants to purchase shares of Common Stock waived certain anti-dilution share adjustment provisions.

Following the completion of the above transactions on September 15, 2022, approximately $44.1 million remained outstanding pursuant to the Secured Creditor Notes, approximately $26.0 million remained outstanding pursuant to the Adjuvant Notes and no amounts remained outstanding pursuant to the Investor Notes. The first tranche of the Senior Creditor Notes is due on April 24, 2025, and the second tranche is due on June 9, 2025. The Adjuvant Notes are due on October 14, 2025. The Company currently expects its existing cash resources to support its planned operations through mid October 2022.

The foregoing summaries of the Secured Creditor Amendment and Adjuvant Amendment do not purport to be complete and are subject to, and qualified in their entirety by, the forms of such documents attached as Exhibits 10.7 and 10.8, respectively, to this Report, which are 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 disclosure required by this Item and included in Item 1.01 of this Report is incorporated herein by reference.


Item 2.04.			Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.

On September 12, 2022, the Company received a notice of default (the “Default Notice”) from the Secured Note Purchasers alleging events of default with respect to the Secured Creditor Purchase Agreement. In the Default Notice, the Secured Note Purchasers state that the Company failed to maintain the listing of its Common Stock on the Nasdaq Stock Market, which failure persisted for 15 business days, constituting a violation of the Secured Creditor Purchase Agreement. Additionally, the Secured Note Purchasers alleged that the Company was required to make interest payments in the aggregate amount of $1.4 million on March 31, 2022 and June 30, 2022, that the Company’s failure to make such payments constituted an event of default under the Secured Creditor Purchase Agreement and that the Secured Note Purchasers, in its capacity as Designated Agent, had accelerated payment of all amounts due under the Secured Creditor Purchase Agreement (assuming such an acceleration, approximately $97.1 million as of September 15, 2022). In the Default Notice, the Secured Note Purchasers reserved all rights and remedies resulting from the event of default or otherwise.

These alleged defaults and acceleration of the debt under the Secured Note Purchase Agreement would have constituted an event of default under the cross-default provisions of the Existing Investor Notes. As of the date of this report, the Investors had not accelerated the outstanding amount due under the Existing Investor Notes. This acceleration would have resulted in

approximately $21.8 million (as of September 15, 2022) being immediately due and payable pursuant to the terms of the Existing Investor Notes.

This default and acceleration of the debt under the Secured Note Purchase Agreement may also have given rise to an event of default under the cross-default provisions of the Adjuvant Purchase Agreement, if it remained uncured for a period of at least 60 days. Such an acceleration would have resulted in approximately $28.8 million (as of September 15, 2022) being immediately due and payable pursuant to the terms of the Adjuvant Purchase Agreement.


Item 3.02.			Unregistered Sales of Equity Securities.

The disclosure required by this Item and included in Item 1.01 of this Report is incorporated herein by reference.


Item 8.01.			Other Information.

On September 16, 2022, the Company issued a press release announcing certain of the transactions reported herein. The press release is furnished as Exhibit 99.1 and incorporated herein by reference.


Item 9.01.			Financial Statements and Exhibits.

(d) Exhibits


Exhibit No.			Description
10.1*			Forbearance Agreement, dated as of September 15 , 2022, by and among Evofem Biosciences, Inc. and certain institutional investors.
10.2*			Forbearance Agreement, dated as of September 15 , 2022, by and among Evofem Biosciences, Inc., Adjuvant Global Health Technology Fund, LP, and Adjuvant Global Health Technology Fund, DE, LP.
10.3			Subordination Agreement, dated as of September 15, 2022, by and among Global Health Technology Fund, LP, Adjuvant Global Health Technology Fund, DE, LP, and certain institutional investors and their designated agent.
10.4*			Form of Investor Exchange Agreement.
10.5*			Form of Adjuvant Exchange Agreement.
10.6			Form of Right.
10.7			Third Amendment to Securities Purchase and Security Agreement, dated as of September 15, 2022, by and among Evofem Biosciences, Inc., certain institutional investor and their designated agent.
10.8			Second Amendment to Securities Purchase Agreement, dated as of September 15, 2022, by and among Evofem Biosciences, Inc., Adjuvant Global Health Technology Fund, LP, and Adjuvant Global Health Technology Fund, DE, LP.
99.1			Press Release, dated September 16, 2022.
104			Cover Page Interactive Data File (embedded within the Inline XBRL document).

*Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request.

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: September 16, 2022	By:	/s/ Justin J. File
		Justin J. File Chief Financial Officer

Exhibit 10.1

FORBEARANCE AGREEMENT

This FORBEARANCE AGREEMENT, dated as of September 15, 2022 (this “Agreement”), is entered into by and among Evofem Biosciences, Inc., a Delaware corporation (the “Company”), the Guarantors identified on the signature pages hereto (the “Guarantors” and, together with the Company being collectively referred to as the “Loan Parties”), the Purchasers party hereto (the “Consenting Purchasers”) and Baker Bros. Advisors LP, as agent and collateral agent for the Purchasers (in such capacity the “Designated Agent”), and is made with reference to the Securities Purchase and Security Agreement dated as of April 23, 2020 (the “Securities Purchase Agreement”) by and among the Company, the Guarantors , the purchasers from time to time party thereto (each, a “Purchaser”, and collectively, the “Purchasers”), and the Designated Agent.

W I T N E S S E T H:

WHEREAS, (1) the Company has failed to make the interest payment in the amount of $683,069 due on March 31, 2022 and the interest payment in the amount of $707,926 due June 30, 2022 (including interest accruing on the March 31, 2022 installment, in each case, which shall be deemed to be paid in kind, as set forth in Section 6(b) below), pursuant to Section 3.2 of the Securities Purchase Agreement (the “Interest Payments”), which failures constitute immediate Events of Default pursuant to Section 9.1(a) of the Securities Purchase Agreement, (2) the Company has been delisted from the Nasdaq Stock Market as of August 11, 2022, which delisting constitutes an Event of Default pursuant to Section 8.1(d) of the Securities Purchase Agreement and (3) cross-default provisions of Other Note Agreements (as defined below) were potentially trigged by the Events of Default described above, thereby constituting an Event of Default pursuant to Section 9.1(c) of the Securities Purchase Agreement (collectively as set forth in Schedule I hereto the “Specified Defaults”);

WHEREAS, by virtue of the Specified Defaults, the Designated Agent has the right to accelerate payment of the Outstanding Balance per Section 9.2 of the Securities Purchase Agreement, absent the forbearance set forth in this Agreement;

WHEREAS, the Company has requested that the Designated Agent and the Purchasers agree to forbear during the Forbearance Period (as defined below) from exercising their rights and remedies as specified herein against the Company and the other Loan Parties with respect to the Specified Defaults;

WHEREAS, the Company has requested that the Designated Agent and the Purchasers enter into the Ancillary Agreements (as defined below) for the benefit of the Loan Parties;

WHEREAS, the Company has requested that the Purchasers consent to the incurrence of any additional indebtedness senior to that of the Purchasers by the Company following the Forbearance Effective Date (defined below) in an aggregate principal amount not to exceed $5,000,000 (the “Interim Financing”), subject to a right of first offer granted by the Company to the Purchasers, to provide the Interim Financing;

WHEREAS, the Company has requested that the Purchasers agree to negotiate a financial restructuring of the Company’s indebtedness and other obligations on a go-forward basis (a “Consensual Restructuring”), to be documented under a Restructuring Support Agreement (the “RSA”) by and among the Loan Parties, the Purchasers, the Designated Agent and other stakeholders;

WHEREAS, on the terms and subject to the conditions set forth herein, the undersigned Purchasers agree to enter into the Ancillary Agreements and to forbear from exercising their rights and remedies (and from directing the Designated Agent to exercise

rights and remedies or otherwise take any enforcement action) against the Company and the other Loan Parties with respect to the Specified Defaults as specified herein.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

SECTION 1.Definitions. Each capitalized term used and not otherwise defined in this Agreement shall have the meaning assigned to such term in the Securities Purchase Agreement. As used in this Agreement, the following terms shall have the following meaning:

“2022 Purchase Agreements” shall mean (a) that certain Securities Purchase Agreement, dated January 13, 2022, by and among the Company and each of the investors listed on the schedule of buyers attached thereto and (b) that certain Securities Purchase Agreement, dated March 1, 2022, by and among the Company and each of the investors listed on the schedule of buyers attached thereto, in each case, as amended by the May Exchange Agreements (as defined below).

“Adjuvant Securities Purchase Agreement” shall mean that certain Securities Purchase Agreement, dated as of October 14, 2020, by and among the Company, Adjuvant Global Health Technology Fund, L.P. and Adjuvant Global Health Technology Fund DE, L.P., as purchasers (the “Adjuvant Purchasers”), as amended by the First Amendment to Securities Purchase Agreement, entered into as of April 4, 2022, by and among the Company and each of the investors listed therein.

“Adjuvant Notes” shall mean the Notes (as defined in the Adjuvant Securities Purchase Agreement).

“May Exchange Agreements” shall mean the collective reference to each Amendment and May Exchange Agreement, dated as of May 4, 2022, by and between the Company and the investor signatories thereto and “May Exchange Agreement” means each such Amendment and Exchange Agreement, individually.

“Exchange Notes” shall mean the collective reference to each senior subordinated note issued by the Company pursuant to the applicable May Exchange Agreement.

“Other Note Agreements” shall mean (a) the Adjuvant Securities Purchase Agreement, (b) the Adjuvant Notes, (c) the 2022 Purchase Agreements, (d) the May Exchange Agreements and (e) the May Exchange Notes.

SECTION 2.Ancillary Agreements. As of the date of this Agreement (the “Forbearance Effective Date”), the parties hereto shall execute and deliver: (i) that certain amendment to the Securities Purchase Agreement, in the form set forth on Exhibit A attached hereto (the “SPA Amendment”) and (ii) those certain Exchange Agreements in substantially the form attached hereto as Exhibit B and Exhibit C (the “September Exchange Agreements”, and together with the May Exchange Agreement and the SPA Amendment, the “Ancillary Agreements”).

SECTION 3.Confirmation by Company of Obligations and Specified Defaults.

(a)The Company acknowledges and agrees that, as of the Forbearance Effective Date, the aggregate principal amount of the Outstanding Balance under the Securities Purchase Agreement (determined after giving effect to the capitalization of the Interest Payment and the Accrued Expenses (as defined below)) is $44,081,910.43, which amount includes the Additional Consideration and the PIK Coupon Payments (each, as defined below).

(b) The foregoing amount does not include interest payable in cash, fees, penalties, expenses and other amounts which are chargeable or otherwise reimbursable under the Securities Purchase Agreement and the other Transaction Documents, other than the Interest Payments and the Accrued Expenses as indicated above, and including costs and expenses that shall be added to the Outstanding Balance pursuant to Section 6(c) of this Agreement. Neither the Company nor the other Loan Parties have any rights of offset, defenses, claims or counterclaims with respect to any of the outstanding Secured Obligations.

(c) The Company acknowledges and agrees that each Specified Default constitutes an Event of Default. The Company represents and warrants that, except for the Specified Defaults, no other Event of Default has occurred and is continuing as of the Forbearance Effective Date.

SECTION 4.Consent. Notwithstanding anything to the contrary set forth in the Securities Purchase Agreement or the other Transaction Documents, including, without limitation, Section 7.2(a) of the Securities Purchase Agreement, the Purchasers hereby consent to the incurrence by the Company and its subsidiaries of Interim Financing following the Forbearance Effective Date in an aggregate principal amount not to exceed $5,000,000. The Company will use reasonable best efforts to obtain Interim Financing through the offering and sale of equity securities and/or on an unsecured or junior secured basis. In the event Interim Financing on commercially reasonable terms is available only on a senior secured basis, the Purchasers will agree to subordinate to such Interim Financing and waive any covenants or contractual prohibitions under the Securities Purchase Agreement and Transaction Documents proscribing the incurrence of such senior Indebtedness. Prior to entering into any Interim Financing, the Company shall provide the Purchasers with three (3) business days written notice of the terms of such Interim Financing, during which time the Purchasers shall have the right to extend Interim Financing on the same terms and condition of any other proposed third-party Interim Financing.

SECTION 5.Agreement to Forbear.

(a)Effective as of the Forbearance Effective Date, each Consenting Purchaser (constituting all Purchasers under the Securities Purchase Agreement) agrees that until the expiration of the Forbearance Period, it will forbear from exercising its rights and remedies, and hereby instructs the Designated Agent to forbear from exercising rights and remedies and from otherwise taking any enforcement action, against the Company or any other Loan Party solely with respect to the Specified Defaults, including, but not limited to, the commencement of a lawsuit, exercising rights under any Account Control Agreements, and/or enforcement proceedings or other action against the Company and/or the other Loan Parties, in each case solely with respect to the Specified Defaults; provided, however, that (i) the Company and each other Loan Party shall comply with all limitations, restrictions or prohibitions that would otherwise be effective or applicable under the Securities Purchase Agreement or any of the other Transaction Documents upon the occurrence or during the continuance of any Event of Default, and (ii) nothing herein shall restrict, impair or otherwise affect any Purchaser’s rights and remedies (other than any such rights and remedies against the Loan Parties as and to the extent expressly set forth in this Agreement) under any agreements, including, without limitation, any agreement containing subordination provisions in favor of any or all of the Purchasers (including, without limitation, any rights or remedies available to the Purchasers as a result of the occurrence or continuation of any Specified Default) or amend or modify any provision thereof.

As used herein, the term “Forbearance Period” shall mean the period from the Forbearance Effective Date to the date on which a Forbearance Termination Event first occurs, and the term “Forbearance Termination Event” shall mean the earliest of:

(1) the first date after December 31, 2022 on which the Company’s total cash falls below $1,000,000,

(2) the occurrence of any Event of Default, other than the Specified Defaults,

(3) the failure of any Loan Party to timely comply with any term or agreement set forth in this Agreement in any material respect,

(4) an acceleration by the requisite purchasers or investors, as applicable, under and in accordance with Other Note Agreements, as applicable,

(5) the date that the Company enters into any forbearance or similar agreement with the purchasers or investors, as applicable, under any Other Note Agreement solely to the extent such forbearance or similar agreement requires the Company to make any payment to such purchasers or investors in cash (excluding, for the avoidance of doubt, (i) permitted payment of regularly scheduled principal and interest and reimbursement of fees and expenses in the ordinary course of business, (ii) the forbearance agreement entered into with Adjuvant on the date hereof and the Exchange Agreements), or

(6) the date that the Company first challenges the validity or enforceability of the actions contemplated under this Agreement or the validity or enforceability of the rights of the Purchasers or the Designated Agent under the Securities Purchase Agreement (and the ancillary agreements thereunder) or the Warrants (defined below). For the avoidance of doubt, the Secured Obligations are not impaired, reduced or affected by this Agreement and continue in full force and effect.

(b)Upon the expiration of the Forbearance Period, the agreement of the Purchasers hereunder to forbear from exercising their respective rights and remedies (and to cause the Designated Agent to forbear from exercising rights and remedies on behalf of the Purchasers) in respect of the Specified Defaults shall immediately terminate without the requirement of any demand, presentment, protest, or notice of any kind, all of which the Company and the other Loan Parties each waives. The Company agrees that any or all of the Purchasers may at any time after the expiration of the Forbearance Period proceed to exercise any and all of their respective rights and remedies under any or all of the Securities Purchase Agreement, any other Transaction Document and/or applicable law, including, without limitation, their respective rights and remedies with respect to the Specified Defaults (including as set forth in Section 5.7(b) of the Securities Purchase Agreement). Without limiting the generality of the foregoing, upon the expiration of the Forbearance Period, the Purchasers may, in their sole discretion and without the requirement of any demand, presentment, protest, or notice of any kind, (i) commence any legal or other action to collect any or all of the Secured Obligations from the Company, any other Loan Party or any Collateral, (ii) foreclose or otherwise realize on any or all of the Collateral and/or appropriate, setoff or apply to the payment of any or all of the Secured Obligations, any or all of the Collateral, and (iii) take any other enforcement action or otherwise exercise any or all rights and remedies provided for by any or all of the Securities Purchase Agreement, any other Transaction Documents and/or applicable law, all of which rights and remedies are fully reserved by the Purchasers.

(c)The Company acknowledges that the Purchasers have not made any assurances concerning (i) any possibility of an extension of the Forbearance Period, (ii) the manner in which or whether the Specified Defaults may be resolved or (iii) any additional forbearance, waiver, restructuring or other accommodation.

(d)In consideration of the agreements of the Designated Agent and the Consenting Purchasers to forbear as further set forth herein, (i) the Interest Payments shall be deemed to have been paid in kind and added to the Outstanding Balance as of each applicable payment date and (ii) $60,000 of out-of-pocket expenses of the Purchasers (the “Accrued Expenses”) shall be deemed to have been paid by adding the amount of such Accrued Expenses to the Outstanding Balance on the Forbearance Effective Date.

SECTION 6.Conditions to Agreement. The agreement to forbear and the amendments set forth herein (including the effectiveness of the Ancillary Agreements) are subject to the satisfaction of each of the following conditions on or prior to the Forbearance Effective Date:

(a)the Designated Agent shall have received a counterpart signature page of this Agreement and the SPA Amendment, duly executed and delivered by the Company and each other Loan Party and Purchasers constituting all Purchasers under the Securities Purchase Agreement;

(b) the Company and the requisite parties thereto shall have entered into the Exchange Agreements; and

(c)the Forbearance Agreement, dated September 15, 2022, by and among the Company, the guarantors thereto, the Adjuvant Purchasers, and the Designated Agent, shall be duly executed by all parties.

SECTION 7.Adjustments to the Outstanding Balance.

(a)In consideration for: (i) the agreement by the Purchasers to forbear during the Forbearance Period, and (ii) the entry into the Ancillary Agreements by the Purchasers and the resulting forfeiture of certain rights currently existing under the Securities Purchase Agreement and the Warrants, the principal amount of the Outstanding Balance for each Purchaser shall be increased by the corresponding amount set forth on Schedule II (the “Additional Consideration”). The Company acknowledges and agrees that the Additional Consideration that is being added to the Outstanding Balance represents reasonably equivalent value to the Company, as defined by 11 U.S.C. § 548 and applicable state law. The Company hereby agrees to waive any claims against the Purchasers or the Designated Agent relating to or arising out of the transactions contemplated hereby (including any claims to avoid any part of the transactions as a fraudulent transfer under state or federal law).

(b) In lieu of the payment of the Interest Payments in cash, the Interest Payments shall be deemed paid in kind as of each applicable payment date (i.e., March 31, 2022 and June 30, 2022, respectively) and shall be added to the Outstanding Balance as of such payment due dates (the “PIK Coupon Payments”). For the avoidance of doubt, the parties acknowledge and agree that interest payments under the Notes shall be paid in arrears on the last day of each calendar quarter ending on March 31, June 30, September 30 and December 31.

(c)Without duplication with the Accrued Expenses, the Company hereby acknowledges and agrees that the costs and expenses incurred by the Designated Agent and/or the Purchasers (including reasonable attorneys’ fees) relating to the Securities Purchase Agreement and their rights thereunder since the earliest occurrence of the Specified Defaults constitute “costs and expenses” for which the Designated Agent is entitled to repayment under Section 12.12 of the Securities Purchase Agreement. Notwithstanding the Company’s obligations to reimburse such costs and expenses in cash, the parties hereto agree that such costs and expenses shall be deemed paid in kind and added to the Outstanding Balance upon presentation by the Designated Agent of invoices documenting such costs and expenses. During the Forbearance Period, expenses incurred by the Designated Agent in accordance with Section 12.12 of the Securities Purchase Agreement or in connection with this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby, shall similarly be paid in kind and added to the Outstanding Balance upon presentation of invoices documenting such expenses.

SECTION 8.General Release; Indemnity. In addition to, and not in lieu of or in any way limiting, the provisions of the Securities Purchase Agreement, in consideration of, among other things, the Designated Agent’s and Requisite Purchasers’ execution and delivery of this Agreement, each of the Company, on behalf of itself and its agents, representatives, officers, directors, advisors, employees, subsidiaries, affiliates, successors and assigns

(collectively, “Releasors”), hereby forever agrees and covenants not to sue or prosecute against any Releasee (as hereinafter defined) and hereby forever waives, releases and discharges, to the fullest extent permitted by law, each Releasee (as hereinafter defined) from any and all claims (including, without limitation, crossclaims, counterclaims, rights of set-off and recoupment or claims of fraudulent transfer under state or federal law), actions, causes of action, suits, debts, accounts, interests, liens, promises, warranties, damages and consequential damages, demands, agreements, bonds, bills, specialties, covenants, controversies, variances, trespasses, judgments, executions, costs, expenses or claims whatsoever (collectively, the “Claims”), that such Releasor now has, of whatsoever nature and kind, whether known or unknown, whether arising at law or in equity, against any or all of the Purchasers (in their capacities as such) and their respective affiliates, subsidiaries, shareholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys and other representatives of each of the foregoing (collectively, the “Releasees”), solely to the extent based on facts, whether or not now known, existing on or before the Forbearance Effective Date, that relate to, arise out of or otherwise are in connection with: (i) any or all of the Transaction Documents or transactions contemplated thereby or any actions or omissions in connection therewith or (ii) any aspect of the dealings or relationships between or among the Company and the other Loan Parties, on the one hand, and any or all of the Purchasers, on the other hand, relating to any or all of the documents, transactions, actions or omissions referenced in clause (i) hereof. In entering into this Agreement, the Company consulted with, and has been represented by, legal counsel and expressly disclaims any reliance on any representations, acts or omissions by any of the Releasees and hereby agrees and acknowledges that the validity and effectiveness of the releases set forth above do not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity hereof. Notwithstanding the foregoing, the directors and officers of the Company do not waive and may assert any defenses they may have as of the date hereof in connection with any claims made against them related to the foregoing. The provisions of this Section 5 shall survive the termination of this Agreement, the Securities Purchase Agreement, the other Transaction Documents and payment in full of the Secured Obligations. Notwithstanding anything to the contrary herein, the rights of the Company’s officers and directors to receive indemnification from the Company pursuant to applicable law and agreements by and between the Company and such persons shall not be altered or otherwise affected pursuant to the terms of this Agreement.

(a)The Company hereby agrees that it shall be obligated to indemnify and hold the Releasees harmless with respect to any and all liabilities, obligations, losses, penalties, actions, judgments, suits, costs, expenses or disbursements which are direct, indirect or consequential in nature which are incurred by the Releasees, or any of them as a result of or arising from or relating to any proceeding by, or on behalf of any Person, including, without limitation, the respective officers, directors, agents, trustees, creditors, partners or shareholders of the Company, any other Loan Party, or any of their respective Subsidiaries, whether threatened or initiated, in respect of any claim for legal or equitable remedy under any statue, regulation or common law principle arising from or in connection with the negotiation, preparation, execution, delivery, performance, administration and enforcement of the Securities Purchase Agreement, the other Transaction Documents, this Agreement or any other document executed and/or delivered in connection herewith; provided, that neither the Company nor any other Loan Party shall have any obligation to indemnify or hold harmless any Releasee hereunder with respect to liabilities to the extent they result from the gross negligence or willful misconduct of that Releasee as finally determined by a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Company agrees to make the maximum contribution to the payment and satisfaction thereof which is permissible under applicable law. The foregoing indemnity shall survive the termination of this Agreement, the Securities Purchase Agreement, the other Transaction Documents and the payment in full of the Secured Obligations.

(b)The Company, on behalf of itself and its successors and assigns, hereby absolutely, unconditionally and irrevocably, covenants and agrees with and in favor of each Releasee that it will not sue (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of any Claim released, remised and discharged by the Company or any other Loan Party pursuant to this Section 5. If the Company or any of its successors or assigns violates the foregoing covenant, the Company, for itself and its successors and assigns, agrees to pay, in addition to such other damages as any Releasee may sustain as a result of such violation, all attorneys’ fees and costs incurred by any Releasee as a result of such violation.

SECTION 9.Representations and Warranties. Each Loan Party hereby represents and warrants to the Designated Agent and each Purchaser (in each case solely with respect to itself), in each case as of the Forbearance Effective Date, that:

(a)Such Loan Party has the requisite power and authority, and the legal right, to enter into this Agreement. Such Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Agreement. This Agreement constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

(b)The representations and warranties made by such Loan Party pursuant to Section 5 of the Securities Purchase Agreement are true and correct in all material respects on and as of the Forbearance Effective Date, after giving effect to this Agreement and with the exception, where applicable, of the Specified Defaults, as if made on and as of such date except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date.

(c)Immediately after giving effect to this Agreement and the Ancillary Agreements, except for the Specified Defaults, no Event of Default shall be continuing on and as of the Forbearance Effective Date or will result from the consummation of the transactions contemplated by this Agreement.

SECTION 10.Entire Agreement. This Agreement (including the exhibits attached hereto), the Securities Purchase Agreement and the other Transaction Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof. No amendment of any of the foregoing documents shall be valid unless memorialized in a writing by the Purchasers and the Designated Agent.

SECTION 11.GOVERNING LAW. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT, AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SECURITIES PURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

SECTION 12.Consent to Jurisdiction; Waiver of Jury Trial. The jurisdiction and waiver of jury trial provisions set forth in Sections 12.3 of the Securities Purchase Agreement are hereby incorporated by reference, mutatis mutandis.

SECTION 13.Consent to Service of Process. Each party to this Agreement irrevocably consents to the service of process in the manner provided for notices in Section 12.7 of the Securities Purchase Agreement. Nothing in any Transaction Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 14.Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.

SECTION 15.Transaction Document. This Agreement constitutes a “Transaction Document” for all purposes of the Securities Purchase Agreement and the other Transaction Documents.

SECTION 16.Reaffirmation. Each of the undersigned Loan Parties (a) acknowledges all of its obligations, undertakings and liabilities under the Securities Purchase Agreement and the other Transaction Documents to which it is a party in each case as amended in connection herewith and such obligations, undertakings and liabilities, where applicable, are hereby reaffirmed and remain in full force and effect on a continuous basis and (b) agrees that its grant of security interests pursuant to the Security Agreement is reaffirmed and remains in full force and effect after giving effect to this Agreement and secures all Secured Obligations (as in effect after giving effect hereto).

SECTION 17.Counterparts. This Agreement may be executed by the parties hereto in any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by fax, email or other electronic transmission (including in .pdf or .tif format) shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 18.Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

SECTION 19.Effect of this Agreement. Except as expressly set forth in this Agreement, this Agreement (a) shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Purchasers or the Designated Agent, in each case under the Securities Purchase Agreement or any other Transaction Document, and (b) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Securities Purchase Agreement or any other Transaction Document. Except as expressly set forth in this Agreement, each and every term, condition, obligation, covenant and agreement contained in the Transaction Documents is hereby ratified and reaffirmed in all respects and shall continue in full force and effect. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided in this Agreement, operate as a waiver of any right, power or remedy of any Purchaser or the Designated Agent under any of the Transaction Documents, or constitute a waiver of any provision of any of the Transaction Documents. This Agreement shall not extinguish the obligations for the payment of money outstanding under the Securities Purchase Agreement. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Securities Purchase Agreement, which shall remain in full force and effect, except to any extent amended or modified by this Agreement. Nothing implied in this Agreement shall be construed as a release or other discharge any of the Loan Parties from the Transaction Documents. From and after the Forbearance Effective Date, all references to the Securities Purchase Agreement in any Transaction Document and all references in the Securities Purchase Agreement to “this

Agreement,” “hereunder,” “hereof” or words of like import referring to the Securities Purchase Agreement shall, unless expressly provided otherwise, be deemed to refer to the Securities Purchase Agreement, as modified by this Agreement. Each of the Loan Parties hereby consents to this Agreement and confirms that all obligations such Loan Party under the Transaction Documents to which the Company is a party shall continue to apply to the Securities Purchase Agreement, as modified by this Agreement.

SECTION 20.Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon each of the parties hereto, each Purchaser and the successors and permitted assigns of each of the parties hereto and each Purchaser.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective duly authorized officers as of the day and year first above written.

COMPANY:

EVOFEM BIOSCIENCES, INC.

By:

/s/ Justin J. File

Name: Justin J. File

Title: Chief Financial Officer

GUARANTORS:

EVOFEM, INC.

EVOFEM BIOSCIENCES OPERATIONS, INC.

EVOFEM LIMITED, LLC

EVOFEM NORTH AMERICA, INC.

By:

/s/ Justin J. File

Name: Justin J. File

Title: Chief Financial Officer

Forbearance Agreement

BAKER BROS. ADVISORS LP, as Designated Agent

By:

/s/ Scott Lessing

Scott Lessing

President

Forbearance Agreement

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

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

Forbearance Agreement

Exhibit A

SPA Amendment

Forbearance Agreement

Exhibit B

Adjuvant Exchange Agreement

Forbearance Agreement

Exhibit C

Exchange Agreement

Forbearance Agreement

Schedule I

SPECIFIED DEFAULTS

Any default or Event of Default related to the failure to remit the interest payment in the amount of $683,069 due on March 31, 2022 and the interest payment in the amount of $707,926 due on June 30, 2022, including pursuant to §§ 9.1(a) and (c) of the Securities Purchase Agreement.

Any default or Event of Default related to the suspension of trading of shares of the Company’s Common Stock on the Nasdaq Capital Market and any potential delisting of the Company’s Common Stock from the Nasdaq Capital Market as of August 11, 2022, including pursuant to §§ 8.1(d), 9.1(c) and (e) of the Securities Purchase Agreement.

Forbearance Agreement

Schedule II

667, L.P.: $1,234,527.57

Baker Brothers Life Sciences, L.P.: $13,459,442.57

Forbearance Agreement

Exhibit 10.2

FORBEARANCE AGREEMENT

This FORBEARANCE AGREEMENT, dated as of September 15, 2022 (this “Agreement”), is entered into by and among Evofem Biosciences, Inc., a Delaware corporation (the “Company”), the Guarantors identified on the signature pages hereto, and the Purchasers party hereto, and is made with reference to the Securities Purchase Agreement dated as of October 14, 2020, as amended from time to time (the “Securities Purchase Agreement”) by and among the Company and the purchasers from time to time party thereto (each, a “Purchaser”, and collectively, the “Purchasers”).

W I T N E S S E T H:

WHEREAS, (1) the Company has been delisted from the Nasdaq Stock Market as of August 11, 2022, which delisting constitutes an Event of Default pursuant to Section 8.1(d) of the Securities Purchase Agreement and (2) events of default have occurred pursuant to certain Other Note Agreements (as defined below) prior to the date hereof which constitute an Event of Default pursuant to Section 8.1(c) of the Securities Purchase Agreement (collectively, the “Specified Defaults”);

WHEREAS, by virtue of the Specified Defaults, the Purchasers have the right to accelerate payment of the Outstanding Balance per Section 8.2 of the Securities Purchase Agreement, absent the forbearance set forth in this Agreement;

WHEREAS, the Company has requested that the Purchasers agree to forbear during the Forbearance Period (as defined below) from exercising their rights and remedies as specified herein against the Company with respect to the Specified Defaults;

WHEREAS, the Company has requested that the Purchasers consent to the incurrence of any Indebtedness by the Company following the date hereof in an aggregate principal amount not to exceed $5,000,000 (the “Interim Financing”); and

WHEREAS, on the terms and subject to the conditions set forth herein, the undersigned Purchasers agree to provide such consent and to forbear from exercising their rights and remedies against the Company with respect to the Specified Defaults as specified herein.

“Baker Notes” shall mean the Notes (as defined in the Baker Securities Purchase Agreement).

“Baker Securities Purchase Agreement” shall mean that certain Securities Purchase Agreement, dated as of April 23, 2020, by and among the Company, the guarantors thereto, the purchasers thereto (the “Baker Purchasers”), and Baker Bros. Advisors LP, as agent and collateral agent for the Baker Purchasers (the “Designated Agent”), as amended by the First Amendment to Securities Purchase Agreement, entered into as of November 20, 2021, by and among the Company, the Baker Purchasers, and the Designated Agent, and as amended by the Second Amendment to Securities Purchase Agreement, entered into as of March 21, 2022, by and among the Company, the Baker Purchasers, and the Designated Agent.

“May 2022 Exchange Agreements” shall mean the collective reference to each Amendment and May 2022 Exchange Agreement, dated as of May 4, 2022, by and between the Company and the investor signatories thereto and “May 2022 Exchange Agreement” means each such Amendment and May 2022 Exchange Agreement, individually.

“Exchange Notes” shall mean the collective reference to each senior subordinated note issued by the Company pursuant to the applicable May 2022 Exchange Agreement.

“Other Note Agreements” shall mean (a) the Adjuvant Securities Purchase Agreement, (b) the Adjuvant Notes, (c) the 2022 Purchase Agreements, (d) the May 2022 Exchange Agreements and (e) the Exchange Notes.

SECTION 2.Ancillary Agreements. As of the date of this Agreement (the “Forbearance Effective Date”), the parties hereto shall execute and deliver: (i) that certain amendment to the Securities Purchase Agreement, in the form set forth on Exhibit A attached hereto (the “SPA Amendment”), (ii) those certain Exchange Agreements in substantially the form attached hereto as Exhibit B and Exhibit C (the “May 2022 Exchange Agreements”), and (iii) the ROFR Side Letter (the “ROFR Side Letter”) among the Company, the Designated Aget and the purchasers under the 2022 Purchase Agreements (together with the May 2022 Exchange Agreements SPA Amendment, and May 2022 Exchange Agreements, the “Ancillary Agreements”).

SECTION 3.Confirmation by Company of Obligations and Specified Defaults.

(b) The foregoing amount does not include interest payable in cash, fees, penalties, expenses and other amounts which are chargeable or otherwise reimbursable under the Securities Purchase Agreement and the other Transaction Documents. The Company shall not have any rights of offset, defenses, claims or counterclaims with respect to any of the outstanding Obligations.

event Interim Financing on commercially reasonable terms is available only on a senior secured basis, the Purchasers will agree to subordinate to such Interim Financing and waive any covenants or contractual prohibitions under the Securities Purchase Agreement and Transaction Documents proscribing the incurrence of such senior Indebtedness.

SECTION 5.Agreement to Forbear.

(a)Effective as of the Forbearance Effective Date, each Purchaser agrees that until the expiration of the Forbearance Period, it will forbear from exercising its rights and remedies and from otherwise taking any enforcement action against the Company with respect to the Specified Defaults, including, but not limited to, the commencement of a lawsuit and/or enforcement proceedings or other action against the Company solely with respect to the Specified Defaults; provided, however, that (i) the Company shall comply with all limitations, restrictions or prohibitions that would otherwise be effective or applicable under the Securities Purchase Agreement or any of the other Transaction Documents upon the occurrence or during the continuance of any Event of Default, and (ii) nothing herein shall restrict, impair or otherwise affect any Purchaser’s rights and remedies (other than any such rights and remedies against the Company as and to the extent expressly set forth in this Agreement) under any agreements, including, without limitation, any agreement containing subordination provisions in favor of any or all of the Purchasers (including, without limitation, any rights or remedies available to the Purchasers as a result of the occurrence or continuation of any Specified Default) or amend or modify any provision thereof.

(1) the first date after December 31, 2022 on which the Company’s total cash falls below $1,000,000,

(2) the occurrence of any Event of Default other than the Specified Defaults,

(3) the failure of the Company to timely comply with any term or agreement set forth in this Agreement in any material respect,

(4) an acceleration by the requisite purchasers or investors, as applicable, under and in accordance with Other Note Agreements, as applicable, or

(5) the date that the Company enters into any forbearance or similar agreement with the purchasers or investors, as applicable, under any Other Note Agreement solely to the extent such forbearance or similar agreement requires the Company to make any payment to such purchasers or investors in cash (excluding, for the avoidance of doubt, (i) permitted payment of regularly scheduled principal and interest and reimbursement of fees and expenses in the ordinary course of business, (ii) the forbearance agreement entered into with the Baker Purchasers and the Designated Agent on the date hereof and the Exchange Agreements), or

(6) the date that the Company first challenges the validity or enforceability of the actions contemplated under this Agreement or the validity or enforceability of the rights of the Purchasers under the Securities Purchase Agreement (and the ancillary agreements thereunder). For the avoidance of doubt, the Obligations are not impaired, reduced or affected by this Agreement and continue in full force and effect.

(b)Upon the expiration of the Forbearance Period, the agreement of the Purchasers hereunder to forbear from exercising their respective rights and remedies in respect of the Specified Defaults shall immediately terminate without the requirement of any demand, presentment, protest, or notice of any kind, all of which the Company waives. The

Company agrees that any or all of the Purchasers may at any time after the expiration of the Forbearance Period proceed to exercise any and all of their respective rights and remedies under any or all of the Securities Purchase Agreement, any other Transaction Document and/or applicable law, including, without limitation, their respective rights and remedies with respect to the Specified Defaults. Without limiting the generality of the foregoing, upon the expiration of the Forbearance Period, the Purchasers may, in their sole discretion and without the requirement of any demand, presentment, protest, or notice of any kind, (i) commence any legal or other action to collect any or all of the Obligations from the Company and (ii) take any other enforcement action or otherwise exercise any or all rights and remedies provided for by any or all of the Securities Purchase Agreement, any other Transaction Documents and/or applicable law, all of which rights and remedies are fully reserved by the Purchasers.

(c)Northing contained in this Agreement shall be construed to prevent the Purchasers from extending the Forbearance Period. Any agreement by the Purchasers to extend the Forbearance Period, if any, must be set forth in writing and signed by a duly authorized signatory of the Purchasers.

(d) The Company acknowledges that the Purchasers have not made any assurances concerning (i) any possibility of an extension of the Forbearance Period, (ii) the manner in which or whether the Specified Defaults may be resolved or (iii) any additional forbearance, waiver, restructuring or other accommodation.

(a)The Purchasers shall have received a counterpart signature page of this Agreement and the SPA Amendment, duly executed and delivered by the Company and each Purchaser under the Securities Purchase Agreement;

(b)the Company and the requisite parties thereto shall have entered into the Exchange Agreements; and

(c)the Forbearance Agreement, dated September 15, 2022, by and between the Company, the guarantors thereto, the Baker Purchasers, and the Designated Agent, shall be duly executed by all parties.

SECTION 7.General Release; Indemnity. In addition to, and not in lieu of or in any way limiting, the provisions of the Securities Purchase Agreement, in consideration of, among other things, the Purchasers’ execution and delivery of this Agreement, each of the Company, on behalf of itself and its agents, representatives, officers, directors, advisors, employees, subsidiaries, affiliates, successors and assigns (collectively, “Releasors”), hereby forever agrees and covenants not to sue or prosecute against any Releasee (as hereinafter defined) and hereby forever waives, releases and discharges, to the fullest extent permitted by law, each Releasee (as hereinafter defined) from any and all claims (including, without limitation, crossclaims, counterclaims, rights of set-off and recoupment or claims of fraudulent transfer under state or federal law), actions, causes of action, suits, debts, accounts, interests, liens, promises, warranties, damages and consequential damages, demands, agreements, bonds, bills, specialties, covenants, controversies, variances, trespasses, judgments, executions, costs, expenses or claims whatsoever (collectively, the “Claims”), that such Releasor now has, of whatsoever nature and kind, whether known or unknown, whether arising at law or in equity, against any or all of the Purchasers (in their capacities as such) and their respective affiliates, subsidiaries, shareholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys and other representatives of each of the foregoing (collectively, the “Releasees”), solely to the extent based on facts,

whether or not now known, existing on or before the Forbearance Effective Date, that relate to, arise out of or otherwise are in connection with: (i) any or all of the Transaction Documents or transactions contemplated thereby or any actions or omissions in connection therewith or (ii) any aspect of the dealings or relationships between or among the Company, on the one hand, and any or all of the Purchasers, on the other hand, relating to any or all of the documents, transactions, actions or omissions referenced in clause (i) hereof. In entering into this Agreement, the Company consulted with, and has been represented by, legal counsel and expressly disclaims any reliance on any representations, acts or omissions by any of the Releasees and hereby agrees and acknowledges that the validity and effectiveness of the releases set forth above do not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity hereof. Notwithstanding the foregoing, the directors and officers of the Company do not waive and may assert any defenses they may have as of the date hereof in connection with any claims made against them related to the foregoing. The provisions of this Section 6 shall survive the termination of this Agreement, the Securities Purchase Agreement, the other Transaction Documents and payment in full of the Obligations.

(a)The Company hereby agrees that it shall be obligated to indemnify and hold the Releasees harmless with respect to any and all liabilities, obligations, losses, penalties, actions, judgments, suits, costs, expenses or disbursements which are direct, indirect or consequential in nature which are incurred by the Releasees, or any of them, as a result of or arising from or relating to any proceeding by, or on behalf of any Person, including, without limitation, the respective officers, directors, agents, trustees, creditors, partners or shareholders of the Company or any of its respective Subsidiaries, whether threatened or initiated, in respect of any claim for legal or equitable remedy under any statue, regulation or common law principle arising from or in connection with the negotiation, preparation, execution, delivery, performance, administration and enforcement of the Securities Purchase Agreement, the other Transaction Documents, this Agreement or any other document executed and/or delivered in connection herewith; provided, that the Company shall not have any obligation to indemnify or hold harmless any Releasee hereunder with respect to liabilities to the extent they result from the gross negligence or willful misconduct of that Releasee as finally determined by a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Company agrees to make the maximum contribution to the payment and satisfaction thereof which is permissible under applicable law. The foregoing indemnity shall survive the termination of this Agreement, the Securities Purchase Agreement, the other Transaction Documents and the payment in full of the Obligations. Notwithstanding anything to the contrary herein, the rights of the Company’s officers and directors to receive indemnification from the Company pursuant to applicable law and agreements by and between the Company and such persons shall not be altered or otherwise affected pursuant to the terms of this Agreement.

(b)The Company, on behalf of itself and its successors and assigns, hereby absolutely, unconditionally and irrevocably, covenants and agrees with and in favor of each Releasee that it will not sue (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of any Claim released, remised and discharged by the Company pursuant to this Section 6. If the Company or any of its successors or assigns violates the foregoing covenant, the Company, for itself and its successors and assigns, agrees to pay, in addition to such other damages as any Releasee may sustain as a result of such violation, all attorneys’ fees and costs incurred by any Releasee as a result of such violation.

SECTION 8.Representations and Warranties. The Company hereby represents and warrants to each Purchaser (in each case solely with respect to itself), in each case as of the Forbearance Effective Date, that:

(a)The Company has the requisite power and authority, and the legal right, to enter into this Agreement. The Company has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Agreement. This Agreement constitutes a legal, valid and binding obligation of the Company, enforceable

against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

(b)The representations and warranties made by the Company pursuant to Section 5 of the Securities Purchase Agreement are true and correct in all material respects on and as of the Forbearance Effective Date, after giving effect to this Agreement and with the exception, where applicable, of the Specified Defaults, as if made on and as of such date except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date.

SECTION 9.Entire Agreement. This Agreement (including the exhibits attached hereto), the Securities Purchase Agreement and the other Transaction Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof. No amendment of any of the foregoing documents shall be valid unless memorialized in a writing by the Purchasers.

SECTION 10.GOVERNING LAW. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT, AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SECURITIES PURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

SECTION 11.Consent to Jurisdiction; Waiver of Jury Trial. The jurisdiction and waiver of jury trial provisions set forth in Sections 12.3 of the Securities Purchase Agreement are hereby incorporated by reference, mutatis mutandis.

SECTION 12.Consent to Service of Process. Each party to this Agreement irrevocably consents to the service of process in the manner provided for notices in Section 12.7 of the Securities Purchase Agreement. Nothing in any Transaction Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 13.Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.

SECTION 14.Transaction Document. This Agreement constitutes a “Transaction Document” for all purposes of the Securities Purchase Agreement and the other Transaction Documents.

SECTION 15.Reaffirmation. Each of the undersigned Loan Parties (a) acknowledges all of its obligations, undertakings and liabilities under the Securities Purchase Agreement

and the other Transaction Documents to which it is a party in each case as amended in connection herewith and such obligations, undertakings and liabilities, where applicable, are hereby reaffirmed and remain in full force and effect on a continuous basis and (b) agrees that its grant of security interests pursuant to the Security Purchase Agreement is reaffirmed and remains in full force and effect after giving effect to this Agreement and secures all Secured Obligations (as in effect after giving effect hereto).

SECTION 16.Counterparts. This Agreement may be executed by the parties hereto in any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by fax, email or other electronic transmission (including in .pdf or .tif format) shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 17.Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

SECTION 18.Effect of this Agreement. Except as expressly set forth herein, this Agreement (a) shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Purchasers, in each case under the Securities Purchase Agreement or any other Transaction Document, and (b) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Securities Purchase Agreement or any other Transaction Document. Except as expressly set forth in this Agreement, each and every term, condition, obligation, covenant and agreement contained in the Transaction Documents is hereby ratified and reaffirmed in all respects and shall continue in full force and effect. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided in this Agreement, operate as a waiver of any right, power or remedy of any Purchaser under any of the Transaction Documents, or constitute a waiver of any provision of any of the Transaction Documents. This Agreement shall not extinguish the obligations for the payment of money outstanding under the Securities Purchase Agreement. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Securities Purchase Agreement, which shall remain in full force and effect, except to any extent amended or modified by this Agreement. Nothing implied in this Agreement shall be construed as a release or other discharge any of the Loan Parties from the Transaction Documents. From and after the Forbearance Effective Date, all references to the Securities Purchase Agreement in any Transaction Document and all references in the Securities Purchase Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Securities Purchase Agreement shall, unless expressly provided otherwise, be deemed to refer to the Securities Purchase Agreement, as modified by this Agreement. Each of the Loan Parties hereby consents to this Agreement and confirms that all obligations of such Loan Party under the Transaction Documents to which the Company is a party shall continue to apply to the Securities Purchase Agreement, as modified by this Agreement.

SECTION 19.Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon each of the parties hereto, each Purchaser and the successors and permitted assigns of each of the parties hereto and each Purchaser.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective duly authorized officers as of the day and year first above written.

COMPANY:

EVOFEM BIOSCIENCES, INC.

By:

/s/ Justin J. File

Name: Justin J. File

Title: Chief Financial Officer

GUARANTORS:

EVOFEM, INC.

EVOFEM BIOSCIENCES OPERATIONS, INC.

EVOFEM LIMITED, LLC

EVOFEM NORTH AMERICA, INC.

By:

/s/ Justin J. File

Name: Justin J. File

Title: Chief Financial Officer

[Forbearance Agreement – Evofem Signature Page]

ADJUVANT GLOBAL HEALTH TECHNOLOGY FUND, LP as a Purchaser

By: Adjuvant Capital GP, L.P., its General Partner

By: Adjuvant Capital Management, LLC, its General Partner

By:

/s/ Jenny Yip

Jenny Yip

Co-President

ADJUVANT GLOBAL HEALTH TECHNOLOGY FUND DE, LP, as a Purchaser

By: Adjuvant Capital GP, L.P., its General Partner

By: Adjuvant Capital Management, LLC, its General Partner

By:

/s/ Jenny Yip

Jenny Yip

Co-President

[Forbearance Agreement – Adjuvant Signature Page]

Exhibit A

SPA Amendment

Exhibit A - SPA Amendment

Exhibit B

Adjuvant Exchange Agreement

Exhibit B – Adjuvant Exchange Agreement

Exhibit C

Exchange Agreement

Exhibit C – Exchange Agreement

Schedule I

SPECIFIED DEFAULTS

Any default or Event of Default pursuant to § 8.1(c) of the Securities Purchase Agreement, including without limitation, defaults arising from the Company’s failure to make interest payments pursuant to § 9.1(c) of the Baker Securities Purchase Agreement and the suspension of trading of shares of the Company’s Common Stock on the Nasdaq Capital Market and any potential delisting of the Company’s Common Stock from the Nasdaq Capital Market as of August 11, 2022, including pursuant to §§ 8.1(d), 9.1(c) and (e) of the Baker Securities Purchase Agreement.

Exhibit 10.3

SUBORDINATION AGREEMENT

This Subordination Agreement dated as of September 15, 2022 (this “Agreement”) is being made among Adjuvant Global Health Technology Fund, LP and Adjuvant Global Health Technology Fund, DE, LP (collectively, the “Subordinated Lenders”), and Baker Bros. Advisors LP (the “Senior Agent”) to determine the parties’ respective rights, remedies and interests with respect to certain obligations owed to each of them by Evofem Biosciences, Inc., a Delaware corporation (the “Company”). This Agreement is made with respect to the following facts:

A. The Company has issued to the Subordinated Lenders unsecured senior subordinated promissory notes in an aggregate principal amount of $25,000,000, plus any accrued interest thereon paid in kind (collectively, the “Subordinated Notes”).

B. The Noteholders (as defined below) have extended financial accommodations to the Company for the purposes of, among others, providing working capital to the Company. The Noteholders are unwilling to provide and to continue such financial accommodations unless the Subordinated Lenders subordinate their present and future indebtedness and other obligations of the Company under the Subordinated Notes in the manner set forth below.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, and to induce the Noteholders to extend and continue such financial accommodations to the Company as it may determine, the parties hereby agree as follows:

1. Definitions. Terms defined in the Securities Purchase Agreement (as defined below) and not otherwise defined herein are used herein as defined in the Securities Purchase Agreement, as of the date hereof and not giving effect to any subsequent amendments thereto. In addition, as used herein, the following terms shall have the meanings respectively set forth below:

a. “Insolvency Proceeding” means any proceeding commenced by or against any person under any provision of the United States Bankruptcy Code or under any other state, federal or foreign bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.

b. “Senior Indebtedness” means, collectively, all indebtedness and other obligations of the Company and its subsidiaries, in each case solely to the extent now or hereafter existing under the Securities Purchase and Security Agreement, dated as of April 23, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “Securities Purchase Agreement”) among the Company, such subsidiaries of the Company party thereto as guarantors from time to time, the purchasers party thereto from time to time (collectively, the “Noteholders”) and the Senior Agent, and all other documents, promissory notes, instruments, guaranties and agreements executed by the Company or any subsidiary thereof with or in favor of the Senior Agent or the Noteholders in connection therewith or pursuant thereto, in the case of the Securities Purchase Agreement and each such other document, promissory note, instrument, guaranty or agreement as it may be amended, supplemented, extended, renewed, modified or restated, or refinanced or replaced, from time to time, whether for principal, premium (including any applicable make-whole premium), interest (including all interest accruing after the initiation of any bankruptcy case, whether or not allowed as a claim in such case), fees, expenses, indemnities or otherwise, and in each case of any claim described above whether or not allowed under applicable law (collectively, the “Senior Debt Documents”).

c. “Senior Indebtedness Payment Condition” means that payment of at least $44,081,910.43 has been made with respect to the Senior Indebtedness (excluding any payments in-kind) in cash or cash equivalents; provided, that to the extent the Senior Agent in its sole and absolute discretion consents to the payment of any such amount in any property other than cash or cash equivalents, the fair market value

thereof shall be as determined by a substantially contemporaneous opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing, or if no such opinion or appraisal exists, by the Senior Agent in its good faith judgment.

d. “Subordinated Indebtedness” means, collectively, all present and future indebtedness and other obligations of the Company or any subsidiary thereof to the Subordinated Lenders, in each case solely to the extent evidenced by the Subordinated Notes, whether the sums represent principal, interest, dividends, costs, attorneys’ fees, charges, or other obligations due or not due, whether incurred directly or indirectly and whether absolute or contingent.

2. Subordination.

a. The Subordinated Indebtedness is hereby subordinated in right of payment and made junior to the payment of the Senior Indebtedness to the extent and in the manner set forth herein.

b. Except as expressly permitted herein, until the Senior Indebtedness Payment Condition shall have been satisfied, neither the Company nor any of its subsidiaries shall make, and the Subordinated Lender shall not receive, accept or retain, any direct or indirect payment or reduction (whether by way of loan, set-off or otherwise) in respect of the principal of, premium (if any), or interest on, the Subordinated Indebtedness or any security therefor, whether such Subordinated Indebtedness shall have become payable on the maturity of the installment, by acceleration or otherwise; provided, however, that interest (including default interest) may be paid in kind on the Subordinated Indebtedness in accordance with the terms of the Subordinated Notes as in effect on the date hereof; and provided, further, that the Subordinated Indebtedness may be converted or exchanged into common equity, or conversion rights of the Company.

c. For so long as any Senior Indebtedness remains outstanding and the Senior Indebtedness Payment Condition has not been satisfied, the Subordinated Lenders shall not, without the prior written consent of the Requisite Purchasers (i) take any action to accelerate the Subordinated Indebtedness, (ii) solely in their capacity as holders of the Subordinated Indebtedness, initiate or join with any other creditor to file an involuntary petition for the reorganization of the Company or any subsidiary of the Company or (iii) otherwise initiate any litigation or exercise any other rights or remedies, in each case solely to the extent in respect of the Subordinated Indebtedness, upon the occurrence of a default or event of default thereunder or breach thereof, against the Company or any subsidiary of the Company.

d. Each Subordinated Lender agrees that the Subordinated Indebtedness shall not be secured by any security interest in or Lien upon any right, title or interest in or to any assets of the Company or any subsidiary of the Company. If, notwithstanding the foregoing, any Subordinated Lender obtains such a security interest or Lien securing the Subordinated Indebtedness (by operation of law or otherwise), then notwithstanding the order or time of attachment, or the order, time or manner of perfection, or the order or time of filing, recordation or possession of any document or instrument, or other method of perfecting a security interest or Lien in favor of such Subordinated Lender in the assets of the Company or a subsidiary thereof, and notwithstanding any conflicting terms or conditions which may be contained in the Subordinated Notes or the Senior Debt Documents, each Subordinated Lender hereby subordinates any security interest or Lien it may now or hereafter have in the assets of the Company or any subsidiary of the Company securing the Subordinated Indebtedness to the present or future security interest or Lien of the Senior Agent or the Noteholders in the assets of the Company or any subsidiary of the Company securing the Senior Indebtedness.

e. In the event of (i) any Insolvency Proceeding or (ii) any proceeding for voluntary liquidation, dissolution or other winding up proceedings, then and in any such event:

(1) The Senior Indebtedness shall first be paid until the Senior Indebtedness Payment Condition has been satisfied before any payment or distribution of any character, whether in cash, securities, obligations or other property (other than payments of interest (including default interest) that are paid in kind), shall be made in respect of the Subordinated Indebtedness;

(2) Any payment or distribution of any character, whether in cash, securities, obligations or other property (other than payments of interest (including default interest) that are paid in kind), that would otherwise (but for the terms hereof) be payable or deliverable in respect of the Subordinated Indebtedness (including any payment or distribution in respect of the Subordinated Indebtedness by reason of any other indebtedness of the Company or any subsidiary of the Company being subordinated to the Subordinated Indebtedness), shall be paid or delivered directly to the Senior Agent for the benefit of the Noteholders, or its representative, until the Senior Indebtedness Payment Condition has been satisfied, and the Subordinated Lenders irrevocably authorize, empower and direct all receivers, custodians, trustees, liquidators, conservators and others having authority in the premises to effect all such payments and deliveries until the Senior Indebtedness Payment Condition has been satisfied;

(3) Until the Senior Indebtedness Payment Condition has been satisfied, the Subordinated Lenders shall execute and deliver to the Senior Agent or its representative all such further instruments confirming the authorization referred to in the foregoing clause (2), and all such proofs of claim, in each case as may be reasonably requested by the Senior Agent or its representative in connection with such Insolvency Proceeding or other proceeding and, with respect to the authorization in clause (2), in order to enable the Senior Agent or its representative to collect and give any and all payments or distributions that may be payable or deliverable at any time upon or with respect to such Subordinated Indebtedness pursuant to such authorization; and

(4) Until the Senior Indebtedness Payment Condition has been satisfied, the Senior Agent is irrevocably authorized and empowered, in its discretion, to make and present for and on behalf of the Subordinated Lenders such proofs of claim on account of the Subordinated Indebtedness upon the failure of any Subordinated Lender to do so prior to ten (10) days before the expiration of the time to file any such proofs of claim; provided, however, the Senior Agent shall have no obligation to execute and\or file any such proofs of claim. Each Subordinated Lender shall retain, exclusively, all rights to (i) enforce any proofs of claim filed on its behalf, and (ii) vote its claims in respect of the Subordinated Indebtedness to accept or reject any plan of reorganization, composition, arrangement or liquidation in any such Insolvency Proceeding or other proceeding, in each case to the extent done in a manner not inconsistent with the terms of this Agreement. Except as expressly set forth in this Agreement, the holders of Subordinated Indebtedness shall not be deemed to have waived or relinquished any rights that they may have with respect to any claims or otherwise in connection with any such Insolvency Proceeding or other proceeding, and each Subordinated Lender retains its rights, to the extent not otherwise in contravention of any terms of this Agreement, to otherwise act in any such Insolvency Proceeding or other proceeding in its capacity as a holder of Subordinated Indebtedness to the fullest extent provided by law.

f. If, notwithstanding the provisions of this Agreement, any payment or distribution of any character (whether in cash, securities, or other property (other than payments of interest (including default interest) that are paid-in-kind)) or any security shall be received by any Subordinated Lender on account of the Subordinated Indebtedness in contravention of the terms of this Agreement, and before the Senior Indebtedness Payment Condition has been satisfied, such payment, distribution or security shall not be commingled with any assets of such Subordinated Lender, shall be held in trust for the benefit of, and shall be paid over or delivered or transferred to, the Senior Agent, or its representative, for application to the payment of all Senior Indebtedness remaining unpaid, until the Senior Indebtedness Payment Condition has been satisfied.

g. All rights of any holder of Senior Indebtedness under this Agreement, without further reference, shall pass to and may be relied on and enforced by any transferee or subsequent holder of any Senior Indebtedness. No Subordinated Lender shall transfer, sell or otherwise assign any of its interests in the Subordinated Indebtedness unless the applicable transferor Subordinated Lender shall, prior to the consummation of any such transfer, sale or other assignment, cause the transferee thereof to execute and deliver to the Senior Agent a joinder to this Agreement (in form and substance reasonably satisfactory to the Senior Agent) or an agreement (in form and substance consistent with this Agreement) providing for the continued subordination of the Subordinated Indebtedness to the Senior Indebtedness as provided herein and for the continued effectiveness of all of the rights of the Noteholders arising under this Agreement. Any attempted or purported transfer by the Subordinated Lenders of all or any portion of the Subordinated Indebtedness in violation of this subsection (g) shall be null and void.

h. The foregoing provisions are solely for the purpose of defining the relative rights of the holders of the Senior Indebtedness on the one hand, and the Subordinated Lenders on the other hand. Nothing contained herein shall impair, as between the Company and the Subordinated Lenders, the obligation of the Company, which is absolute and unconditional, to pay to the Subordinated Lenders the principal of the Subordinated Indebtedness, and interest thereon, as and when the same shall become due and payable in accordance with the terms thereof, all subject to the rights of the Senior Agent and the Noteholders under this Agreement.

j. Notwithstanding any statute, including, without limitation, the United States Bankruptcy Code, any rule of law or bankruptcy procedures to the contrary, the right of the Senior Agent and the Noteholders hereunder to have the Senior Indebtedness Payment Condition satisfied prior to the payment of any of the Subordinated Indebtedness shall include, without limitation, the right of the Noteholders to be indefeasibly paid in cash all interest accruing on the Senior Indebtedness due to them after the filing of any petition by or against the Company or any subsidiary of the Company in connection with any bankruptcy or similar proceeding or any other proceeding referred to in subsection 2(d) hereof, whether or not a claim by the Senior Agent or the Noteholders for such post-petition interest is allowable in such proceeding, until the Senior Indebtedness Payment Condition has been satisfied, prior to the payment of any amounts in respect of the Subordinated Indebtedness, including, without limitation, any interest due to the Subordinated Lenders accruing after such date.

k. The Subordinated Lenders, solely in their capacity as holders of the Subordinated Indebtedness, agree not to take, or cause to be taken, any action to challenge the legality, validity, enforceability, or amount of the Senior Indebtedness (or any part thereof) or the legality, validity, enforceability, perfection or priority of any Lien or security interest securing the Senior Indebtedness.

l. The Subordinated Lenders, solely in their capacity as holders of the Subordinated Indebtedness, agree not to take, or cause to be taken, any action (including in an Insolvency Proceeding), to hinder or challenge any enforcement action taken by the Senior Agent and the Noteholders upon the occurrence and continuation of an Event of Default with respect to Senior Indebtedness.

3. Reinstatement. The Senior Indebtedness shall continue to be treated as Senior Indebtedness and the provisions of this Agreement shall continue to govern the relative rights and priorities of the Senior Agent and the Noteholders, on the one hand, and the Subordinated Lenders, on the other, with respect to the Senior Indebtedness and the Subordinated Indebtedness even if all or part of the Liens securing the Senior Indebtedness are subordinated, set aside, avoided or disallowed in connection with any Insolvency Proceeding or similar proceeding (or if all or part of the Senior Indebtedness is subordinated, set aside, avoided or disallowed in connection with any such Insolvency Proceeding or other proceeding as a result of a fraudulent conveyance or fraudulent transfer statute or if any interest accruing on the Senior Indebtedness following the commencement of such Insolvency Proceeding or other proceeding is otherwise disallowed). To the extent that the Senior Agent or any Noteholder receives payments on, or proceeds of any collateral for, the Senior Indebtedness which are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal or foreign law, common law, or equitable cause, then, to the extent of such payment or proceeds received, the Senior Indebtedness, or part thereof, intended to be satisfied shall be revived and continue in full force and effect as if such payments or proceeds had not been received by the Senior Agent or such Noteholder, as the case may be.

4. Subordinated Indebtedness Owed Only to Subordinated Lenders. Each Subordinated Lender warrants and represents that, as of the date hereof, it has not previously assigned any interest in the Subordinated Indebtedness, that no other party owns an interest in any of the Subordinated Indebtedness (whether as joint holders, participants or otherwise), and that the entire Subordinated Indebtedness is owing only to the Subordinated Lenders.

5. Postpetition Financing; Liens. If the Company or any of its subsidiaries shall be subject to any Insolvency Proceeding and the Requisite Purchasers shall desire, prior to satisfaction of the Senior Indebtedness Payment Condition, to permit the use of cash collateral or to permit the Company or any of its subsidiaries to obtain financing (whether from the Senior Agent, Requisite Purchasers or another

source of financing) (“DIP Financing”) under Section 363 or Section 364 of the United States Bankruptcy Code (or any similar provision under the law applicable to any Insolvency Proceeding) to be secured by all or any portion of the assets of the Company or such subsidiary, then each Subordinated Lender agrees that, solely in its capacity as a holder of the Subordinated Indebtedness, it will raise no objection to such use of cash collateral or such DIP Financing and will not request adequate protection or any other relief in connection with its interest in any such asset. To the extent the security interests and Liens securing the Senior Indebtedness are subordinated to or pari passu with any adequate protection liens grated in connection with the use of cash collateral or such DIP Financing, each Subordinated Lender hereby agrees that its security interests and Liens, if any, in the assets of the Company or such subsidiary, as the case may be, shall be subordinated to such security interests and Liens related to adequate protection or DIP Financing, as applicable (and all obligations relating thereto), to the extent of the lien priority and upon the terms and conditions specified in this Agreement. Until the Senior Indebtedness Payment Condition has been satisfied, each Subordinated Lender, solely in its capacity as a holder of the Subordinated Indebtedness, agrees that it shall not seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of any portion of the assets of the Company or any such subsidiary in which a security interest or Lien has been granted by such person to the Senior Agent or any Noteholder. While the Subordinated Lenders reserve the right to offer to provide DIP Financing (the “Subordinated Lender DIP Financing”), nothing herein shall be construed as a consent by Senior Agent or any Noteholder to any Subordination Lender DIP Financing and all such parties reserve the right to object to any or all of the terms of any Subordinated Lender DIP Financing.

Each Subordinated Lender agrees that, solely in its capacity as a holder of the Subordinated Indebtedness, prior to the satisfaction of the Senior Indebtedness Payment Condition, it shall not contest (or support any other person contesting) (a) any request by the Senior Agent or the Requisite Purchasers for adequate protection of its interest in the assets of the Company or any subsidiary of the Company pursuant to the Senior Indebtedness or (b) any objection by the Senior Agent or the Requisite Purchasers to any motion, relief, action, or proceeding based on a claim by the Noteholder that its interests in the assets of the Company or any such subsidiary pursuant to the Senior Indebtedness are not adequately protected (or any other similar request under any law applicable to an Insolvency Proceeding). In the event any Subordinated Lender seeks or requests adequate protection in respect of the Subordinated Indebtedness and such adequate protection is granted in the form of Liens in respect of any assets of the Company or any subsidiary of the Company securing the Subordinated Indebtedness, then such Subordinated Lender agrees that the Senior Agent and the Noteholders, also shall be granted a senior Lien on such additional collateral as security for the Senior Indebtedness (and for any DIP Financing provided by the Noteholders) and that any Lien on such assets securing the Subordinated Indebtedness shall be subordinated to the Liens in respect of such assets securing the Senior Indebtedness and any such DIP Financing to the extent of the lien priority and upon the other terms and conditions set forth in this Agreement.

Each Subordinated Lender agrees that, solely in its capacity as a holder of the Subordinated Indebtedness, it will not assert any objection to any sale consented to by the Requisite Purchasers of any assets of the Company or any subsidiary of the Company pursuant to Section 363(f) of the United States Bankruptcy Code (or any similar provision in any other applicable bankruptcy or insolvency law) until the Senior Indebtedness Payment Condition has been satisfied.

The provisions of this Agreement are intended to be and shall be enforceable under Section 510 of the United States Bankruptcy Code (or any similar provision in any other applicable bankruptcy or insolvency law). Each Subordinated Lender agrees that, until the Senior Indebtedness Payment Condition has been satisfied, all distributions that such Subordinated Lender receives in any Insolvency Proceeding on account of the Subordinated Indebtedness shall be held in trust by such Subordinated Lender and turned over to the Senior Agent for application to the payment of the Senior Indebtedness. To the extent that any amounts received by a Subordinated Lender on account of the Subordinated Indebtedness are paid over in connection with this provision, the obligations owed by the Company to such Subordinated Lender on account of the Subordinated Indebtedness will be deemed to be reinstated to the extent of the amounts so paid over.

Nothing in this Agreement shall restrict in any fashion any right of any Subordinated Lenders, in their capacity as a holder of any other obligation of the Company or any of its subsidiaries of any kind (other than the Subordinated Indebtedness), to take, or cause to be taken, any action with respect thereto.

6. Sale of Assets. In the event of a sale of some or all of the assets of the Company or any subsidiary of the Company as a result of which the Liens on such assets securing the Senior Indebtedness are released, each Subordinated Lender agrees to release its security interest or Lien (if any then exists) in such assets, or any of them, securing the Subordinated Indebtedness upon the request of the Senior Agent, whether or not such Subordinated Lender will receive any proceeds from such sale.

7. Instrument Legends. The faces of the Subordinated Notes and any other instrument evidencing the Subordinated Indebtedness or any portion thereof will be forthwith inscribed with a legend conspicuously indicating that payment thereon is subordinated to the claims of the Noteholders pursuant to the terms of this Agreement, and copies thereof will forthwith be delivered to the Senior Agent. Any instrument evidencing any of the Subordinated Indebtedness or any portion thereof which is hereafter executed will, on the date thereof, be inscribed with the aforesaid legend, and copies thereof will be delivered to the Senior Agent, on the date of its execution or within five (5) business days thereafter.

8. Additional Remedies. If any Subordinated Lender violates any of the terms of this Agreement, in addition to any remedies in law, equity or otherwise, the Senior Agent, on behalf of the Noteholders, may restrain such violation in any court of law and may interpose this Agreement as a defense in any action by the Subordinated Lender.

9. Subordinated Lender’s Waivers. All of the Senior Indebtedness shall be deemed to have been made or incurred in reliance upon this Agreement. Each Subordinated Lender expressly waives all notice of the acceptance by the Senior Agent and the Noteholders of the subordination and other provisions of this Agreement and any right to challenge or otherwise contest the enforceability of the subordination set forth in this Agreement on any grounds. Each Subordinated Lender expressly agrees that this Agreement shall be construed as continuing, absolute and unconditional without regard to (a) the legality, validity or enforceability of any Senior Debt Document, any Senior Indebtedness, any security interest or Lien granted in favor of the Senior Agent or any Noteholder in the assets of the Company or any subsidiary of the Company as security therefor or any guaranty of the Senior Indebtedness or any part thereof, (b) any defense (other than payment), set-off or counterclaim that may at any time be available to the Company or any guarantor of the Senior Indebtedness (against, and any right of setoff at any time held by, the Senior Agent or any Noteholder), (c) any act or failure to act on the part of the Company, any subsidiary of the Company, the Senior Agent or any Noteholder, or any noncompliance by the Company or any subsidiary of the Company with the provisions and covenants of, or any other default under, the Senior Debt Documents or any of them, regardless of any knowledge thereof that the Senior Agent or any Noteholder may have or be otherwise charged with or (d) any other circumstance whatsoever (with or without notice to or knowledge of the Subordinated Lenders), whether or not similar to any of the foregoing, that constitutes, or might be construed to constitute, an equitable or legal discharge of the Company or any guarantor of the Senior Indebtedness for the Senior Indebtedness (or any part thereof), in bankruptcy or in any other instance, or a legal or equitable discharge or exoneration of the subordination provisions set forth herein.

In addition to the foregoing, each Subordinated Lender agrees that (a) neither the Senior Agent nor any Noteholder has made any warranties or representations with respect to the legality, validity, enforceability, collectability or perfection of the Senior Indebtedness or any liens or security interests held in connection therewith, (b) the Senior Agent and the Noteholders shall be entitled to manage and supervise the Senior Indebtedness in accordance with applicable law and its usual practices, modified from time to time as it deems appropriate under the circumstances, without regard to the existence of any rights that any Subordinated Lender may now or hereafter have in or to any assets, and (c) neither the Senior Agent nor any Noteholder shall have any liability to the Subordinated Lenders as a result of any and all lawful actions which the Senior Agent or any Noteholder takes or omits to take (including, without limitation, actions with respect to the creation, perfection or continuation of its Liens or security interest, actions with respect to the occurrence of a Default or Event of Default, actions with respect to the foreclosure upon, sale, release or failure to realize upon, any of its collateral, and actions with respect to the collection of any claim for all or any part of the Senior Indebtedness from any account debtor or any

other party), regardless of whether any such actions or omissions may affect the Senior Agent’s or any Noteholder’s rights to deficiency or the Subordinated Lenders’ rights of subrogation or reimbursement.

Each Subordinated Lender waives any and all rights it may have to require the Noteholder to marshal assets.

10. Waivers. No waiver shall be deemed to be made by the Senior Agent, any Noteholder or any Subordinated Lender of any of their respective rights hereunder unless it is in writing signed by the waiving party. Each such waiver shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the waiving party or the obligations of the other party to the waiving party in any other respect at any other time.

11. Information Concerning Financial Condition. Each Subordinated Lender hereby assumes responsibility for keeping itself informed of the financial condition of the Company and its subsidiaries and of all other circumstances bearing upon the risk of nonpayment of the Senior Indebtedness, and agrees that neither that Senior Agent nor any Noteholder shall not have any duty to advise it of information known to the Senior Agent or any Noteholder regarding such condition or any such circumstances. In the event the Senior Agent or any Noteholder, in its sole discretion, undertakes, at any time or from time to time, to provide any such information to the Subordinated Lenders, the Senior Agent or such Noteholder shall be under no obligation (i) to provide any such information to the Subordinated Lenders on any subsequent occasion, (ii) to undertake any investigation not a part of its regular business routine or (iii) to disclose any information which, pursuant to its commercial finance practices, the Noteholder wishes to maintain confidential.

12. Third Party Beneficiaries. This Agreement is solely for the benefit of the Senior Agent, the Noteholders, the Subordinated Lenders and their respective successors and assigns, and neither the Company, nor any subsidiary of the Company nor any other persons or entities are intended to be third party beneficiaries hereunder or to have any right, benefit, priority or interest under, or because of the existence of, or to have any right to enforce, this Agreement. The Senior Agent, the Noteholders and the Subordinated Lenders shall have the right to modify or terminate this Agreement at any time without notice to or approval of the Company or any other person or persons.

13. Notices. For the purposes of this Agreement, written notices shall be sent by U.S. first class mail, postage prepaid; or by U.S. certified mail, return receipt requested, postage prepaid; or by personal delivery; or by facsimile or email confirmed by the recipient; and addressed to the notified party at its address set forth below its signature line, or such other address specified by the party with like notice. Notices shall be deemed received three (3) business days after deposit in the U.S. mail, if sent by first class mail; upon the date set forth in the return receipt, if by certified mail; on the day of confirmation of delivery by the recipient, if by facsimile or email; or on the day of transmittal by personal delivery.

14. Costs and Attorneys’ Fees. If there is any claim or controversy litigated in any lawsuit between any of the parties hereto in connection with this Agreement, the prevailing parties in the lawsuit shall be entitled to recover from the other parties their reasonable costs and attorneys’ fees.

15. Consent to Jurisdiction; Additional Waivers. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 13; AND (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN

ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.

16. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

17. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors and assigns, subject to the provisions hereof. An assignee or transferee of any Subordinated Indebtedness (including, without limitation, any person or entity obtaining rights in respect of Subordinated Indebtedness as a result of subrogation or similar rights) shall, as a condition to effectiveness of any such assignment or transfer, become a party to this Agreement by executing a joinder in accordance with Section 2(g) hereof.

18. Integrated Agreement. This Agreement sets forth the entire understanding of the parties with respect to the within matters and may not be modified or amended except upon a writing signed by all parties.

19. Authority. Each of the signatories hereto certifies that such party has all necessary authority to execute this Agreement.

20. Counterparts. This Agreement may be executed in one or more counterparts, each one of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement.

[Signature Page Follows]

“Subordinated Lender”

Adjuvant Global Health Technology Fund, LP

By:

/s/ Glenn Rockman

Name: Glenn Rockman

Title: Sole Member

Address for notices:

445 Fifth Ave, #20D

New York, NY 10016

“Subordinated Lender”

Adjuvant Global Health Technology Fund, DE, LP

By:

/s/ Glenn Rockman

Name: Glenn Rockman

Title: Sole Member

Address for notices:

445 Fifth Ave, #20D

New York, NY 10016

[Subordination Agreement]

“Senior Agent”

BAKER BROS. ADVISORS LP

By:

/s/ Scott Lessing

Name: Scott Lessing

Title: President

Address for notices:

860 Washing St., 10th Floor

New York, NY 10014

Attn: Scott Lessing

[Subordination Agreement]

All of the foregoing is consented and agreed to as of
the date first set forth above:

“Company”

EVOFEM BIOSCIENCES, INC.

By:

/s/ Justin J. File

Name: Justin J. File

Title:Chief Financial Officer

[Subordination Agreement]

Exhibit 10.4

EXCHANGE AGREEMENT

This Exchange Agreement (the “Agreement”) is entered into as of the date set forth on the signature pages below, by and among Evofem Biosciences, Inc., a Delaware corporation with offices located at 12400 High Bluff Drive, Suite 600, San Diego, California 92130 (the “Company”) and the investor signatory hereto (the “Holder”), with reference to the following facts:

A.Prior to the date hereof, the Company entered into that certain underwriting agreement, dated May 20, 2022, pursuant to which the Company issued certain warrants (the “May Warrants”) to purchase common stock of the Company, par value $0.0001 per share (the “Common Stock”).

B.Prior to the date hereof, pursuant to each one or more of those certain Securities Purchase Agreements, each dated as of the date for such agreement set forth on the signature page of the Holder attached hereto, by and between the Company and the investors party thereto (as the same has been amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Securities Purchase Agreements”), the Company issued (x) one or more senior subordinated notes (as the same has been amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, collectively the “Original Notes”) and certain warrants to purchase Common Stock (as defined in the Securities Purchase Agreement) to the Holder (collectively, the “Original Warrants”), as the initial holder.

C.Prior to the date hereof, pursuant to each one or more of those certain Exchange Agreements, each dated as of the May 4, 2022, by and between the Company and the investors party thereto (as the same has been amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, collectively the “May Exchange Agreements”), the Company exchanged one or more Original Notes into one or more senior subordinated notes (as the same has been amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, collectively the “Existing Notes”) to the Holder. Capitalized terms used but not otherwise defined herein shall have the meaning as set forth in each of the Securities Purchase Agreements (as amended by the May Exchange Agreements).

D.As defined herein, “Transaction Documents” means: (i) the Securities Purchase Agreements; (ii) the Original Notes; (iii) the Original Warrants; (iv) the May Exchange Agreements, (v) the Existing Notes, and (vi) those certain senior subordinated notes issued to the Holders on May 24, 2022.

E.The Company acknowledges and agrees that one or more Events of Default (as defined in the Existing Notes) exists as of the date hereof and in lieu of paying the Event of Default Redemption Price (as defined in the Existing Notes) to the Holder (the “Existing Note Value”), the Company and the Holder desire to (x) exchange (the “Exchange” or the “Transaction”) the Existing Notes (including, without limitation, the right of the Holder to be paid the Existing Note Value in accordance therewith), on the basis and subject to the terms and conditions set forth in this Agreement, for a prepaid right to receive that number of shares of Common Stock set forth on the signature page hereof, in substantially the form attached hereto as Exhibit A (such prepaid right, the “Right” and such underlying shares of Common Stock, the “Right Shares”, collectively with the Right, the “Securities”) and (y) with respect to any May Warrants the Holder has as of the date hereof (or acquires on or after the date hereof), to waive certain terms and conditions of the May Warrants.

F.The Securities and this Agreement and such other documents and certificates related thereto are collectively referred to herein as the “Exchange Documents”.

G.The Exchange is being made in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”).

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter contained, the parties hereto agree as follows:

1.Exchange and Waiver.

(a) Exchange. On the date hereof, pursuant to Section 3(a)(9) of the Securities Act, the Holder shall convey, assign and transfer the Existing Notes to the Company in exchange for which the Company shall issue the Right to the Holder. On the date hereof, in exchange for the Existing Notes, the Company shall execute and deliver the Right to the Holder, which Right shall be issued without restricted legend and shall be freely tradable by the Holder. Immediately following the delivery of the Right to the Holder (or its designee), the Holder shall relinquish all rights, title and interest in the Existing Notes (including any claims the Holder may have against the Company related thereto) and assign the same to the Company, and the Existing Notes shall be deemed canceled. In addition, effective upon the later of the Company’s and the Holder’s execution and delivery of this Agreement and the issuance of the Right, without any further action required by the Company or the Holder, all of the Company’s obligations set forth in the Existing Notes and Transaction Documents (including, without limitation, any right of repayment) shall be immediately deemed satisfied in full and terminated in their entirety, including, but not limited to, any security interest effected therein.

(b) Waiver. Effective as of the time of consummation of the Exchange, solely with respect to (i) any May Warrants held by the Holder (or any of its Affiliates) as of the date hereof or (ii) any May Warrants acquired by the Holder (or any of its Affiliates) from and after the date hereof (collectively, the “Holder May Warrants”), the Holder hereby waives, in part, Section 3(g) of each of the Holder May Warrants such that no adjustment to the aggregate number of Warrant Shares (as defined in the May Warrants) issuable upon exercise of the Holder May Warrants shall occur in connection with any adjustment of the Exercise Price (as defined in the May Warrants) as a result of Section 3(b) thereof.

2.Company Representations and Warranties. As a material inducement to the Holder to enter into this Agreement and consummate the Exchange, the Company hereby represents and warrants with and to the Holder, as of the date hereof, as follows:

(a)Organization and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority to own their properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each of the Company and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect.

(b)Authorization and Binding Obligation. The Company has the requisite power and authority to enter into and perform its obligations under this Agreement, the Securities and each of the other agreements and certificates entered into by the parties hereto in connection with the transactions contemplated by this Agreement (collectively, the “Exchange Documents”) and to issue the Securities in accordance with the terms

hereof. The execution and delivery of the Exchange Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Securities, have been duly authorized by the Board of Directors of the Company and, other than such filings required under applicable securities or “Blue Sky” laws of the states of the United States (the “Required Approvals”) and no further filing, consent, or authorization is required by the Company or of its Board of Directors or its shareholders. This Agreement and the other Exchange Documents have been duly executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

(c)No Conflict; Required Filings and Consents.

(i)The execution, delivery and performance of the Exchange Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby will not (i) result in a violation of the Certificate of Incorporation (including, without limitation, any certificate of designation contained therein), Bylaws, certificate of formation, memorandum of association, articles of association, bylaws or other organizational documents of the Company or any of its Subsidiaries, or any capital stock or other securities of the Company or any of its Subsidiaries, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including, without limitation, foreign, federal and state securities laws and regulations and including all applicable foreign, federal and state laws, rules and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected.

(ii)Except as has already been obtained, neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any filing or registration with (other than the Required Approvals), any Governmental Entity or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its respective obligations under or contemplated by the Exchange Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations which the Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been or will be obtained or effected on or prior to the date hereof, and neither the Company nor any of its Subsidiaries are aware of any facts or circumstances which might prevent the Company or any of its Subsidiaries from obtaining or effecting any of the registration, application or filings contemplated by the Exchange Documents.

(d)Securities Law Exemptions. Assuming the accuracy of the representations and warranties of the Holder contained herein, the offer and issuance by the Company of the Securities is exempt from registration under the Securities Act, pursuant to the exemption provided by Section 3(a)(9) thereof, and applicable state securities laws.

(e)Issuance of Securities. The issuance of the Securities is duly authorized and upon issuance in exchange for the Existing Notes or exercise of the Right, as

applicable, and in accordance with the terms of the Exchange Documents shall be validly issued, fully paid and nonassessable and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances with respect to the issue thereof, shall be freely tradeable by the Holder and shall be issued without any restricted legend. Upon issuance in accordance with the Right, the Right Shares will be validly issued, fully paid and nonassessable and free from all Liens with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. By virtue of Section 4(a)(2) and Rule 144(d)(3)(ii) under the Securities Act, the Securities will have a Rule 144 (as defined below) holding period that will be deemed to have commenced as of the Closing Date (as defined in the applicable Securities Purchase Agreement), the date of the original issuance of the applicable Original Note to the Holder. At any time on and after the date hereof and subject to the Holder’s representations and warranties contained in this Agreement, neither the Right nor the Right Shares shall be required to bear any restrictive legend and shall be freely transferable by the Holder pursuant to and in accordance with Rule 144 of the Securities Act (“Rule 144”), provided, for the avoidance of doubt, that the Holder shall not be an affiliate of the Company and shall not have been an affiliate during the 90 days preceding the date of any transfer.

(f)No Consideration Paid. No commission or other remuneration has been paid by Company for soliciting the exchange of the Existing Notes for the Securities as contemplated hereby.

(g)Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided the Holder or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, nonpublic information. All disclosure provided to the Holder regarding the Company and its Subsidiaries, their business and the transactions contemplated hereby furnished by or on behalf of the Company is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties, prospects, operations or financial conditions, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed.

3.Holder’s Representations and Warranties. As a material inducement to the Company to enter into this Agreement and consummate the Exchange, the Holder hereby represents and warrants with and to the Company, as of the date hereof, as follows:

(a)Organization and Authority. The Holder has the requisite power and authority to enter into and perform its obligations under this Agreement. The execution and delivery of this Agreement by the Holder and the consummation by Holder of the transactions contemplated hereby has been duly authorized by Holder’s board of directors or other governing body. This Agreement has been duly executed and delivered by Holder and constitutes the legal, valid and binding obligation of Holder, enforceable against Holder in accordance with its terms.

(b)Ownership of Existing Notes. The Holder owns the Existing Notes free and clear of any Liens (other than the obligations pursuant to this Agreement, the Transaction Documents and applicable securities laws).

(c)Reliance on Exemptions. The Holder understands that the Securities acquired hereunder and upon exercise of the Right are being offered and exchanged in reliance on specific exemptions from the registration requirements of United States

federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Holder’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Holder set forth herein and in the Exchange Documents in order to determine the availability of such exemptions and the eligibility of the Holder to acquire the Securities.

(d)Validity; Enforcement. This Agreement and the Exchange Documents to which the Holder is a party have been duly and validly authorized, executed and delivered on behalf of the Holder and shall constitute the legal, valid and binding obligations of the Holder enforceable against the Holder in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

(e)No Conflicts. The execution, delivery and performance by the Holder of this Agreement and the Exchange Documents to which the Holder is a party, and the consummation by the Holder of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of the Holder or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Holder is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Holder, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Holder to perform its obligations hereunder.

(f)No Consideration Paid. No commission or other remuneration has been paid by the Holder for soliciting the exchange of the Existing Notes for the Securities as contemplated hereby.

4.Covenants.

(a)Disclosure of Transaction. The Company shall, on or before 9:30 a.m., New York City Time, on or prior to the first Business Day after the date of this Agreement, file a Current Report on Form 8-K with the SEC describing the terms of the transactions contemplated hereby in the form required by the 1934 Act and attaching the Exchange Documents, to the extent they are required to be filed under the 1934 Act, that have not previously been filed with the SEC by the Company (including, without limitation, this Agreement) as exhibits to such filing (including all attachments, the “8-K Filing”). From and after the filing of the 8-K Filing, the Company shall have disclosed all material, non-public information (if any) provided up to such time to the Holder by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement with respect to the transactions contemplated by the Exchange Documents or as otherwise disclosed in the 8-K Filing, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and any of the Holder or any of their affiliates, on the other hand, shall terminate. Neither the Company, its Subsidiaries nor the Holder shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval of the Holder, to make a press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K

Filing and contemporaneously therewith or (ii) as is required by applicable law and regulations (provided that in the case of clause (i) the Holder shall be consulted by the Company in connection with any such press release or other public disclosure prior to its release). Without the prior written consent of the Holder (which may be granted or withheld in the Holder’s sole discretion), except as required by applicable law, the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of the Holder in any filing, announcement, release or otherwise.

(b)Fees. The Company shall reimburse Kelley Drye & Warren LLP, on demand, for all costs and expenses incurred by it in connection with preparing and delivering this Agreement (including, without limitation, all reasonable, documented legal fees and disbursements in connection therewith, and due diligence in connection with the transactions contemplated thereby) in an aggregate non-accountable amount equal to $[__] (the “Legal Fee Amount”).

(c)Holding Period. For the purposes of Rule 144, the Company acknowledges that the holding period of the Securities may be tacked onto both the holding period of the Existing Note and the holding period of the Original Note, and the Company agrees not to take a position contrary to this Section 4(c). The Company acknowledges and agrees that, subject to the Holder's representations and warranties contained in this Agreement, the Securities shall not be required to bear any restrictive legend and shall be freely transferable by the Holder pursuant to and in accordance with Rule 144, provided, for the avoidance of doubt, that the Holder shall not be an affiliate of the Company and shall not have been an affiliate during the 90 days preceding the date of any transfer.

(d)Blue Sky. The Company shall, on or before the tenth (10th) calendar day after the date hereof, take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Securities for sale to the Holder at the Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption from such qualification), if any. Without limiting any other obligation of the Company under this Agreement, the Company shall timely make all filings and reports relating to the offer and sale of the Securities required under all applicable securities laws (including, without limitation, all applicable federal securities laws and all applicable “Blue Sky” laws), and the Company shall comply with all applicable foreign, federal, state and local laws, statutes, rules, regulations and the like relating to the offering and sale of the Securities to the Holder.

(e)Reporting Status. Until the date no Right remain outstanding (the “Reporting Period”), the Company shall timely file all reports required to be filed with the SEC pursuant to the 1934 Act, and the Company shall not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination.

(f)Financial Information. The Company agrees to send the following to any holder of the Right (each, an “Investor”) during the Reporting Period (i) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system, within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, any interim reports or any consolidated balance sheets, income statements, stockholders' equity statements and/or cash flow statements for any period other than annual, any Current Reports on Form 8-K and any registration statements (other than on Form S-8) or amendments filed pursuant to the Securities Act, (ii) unless the following are either filed with the SEC through EDGAR or are otherwise widely disseminated via a recognized

news release service (such as PR Newswire), on the same day as the release thereof, facsimile copies of all press releases issued by the Company or any of its Subsidiaries and (iii) unless the following are filed with the SEC through EDGAR, copies of any notices and other information made available or given to the stockholders of the Company generally, contemporaneously with the making available or giving thereof to the stockholders.

(g)Reverse Stock Split. From the Issuance Date (as defined in the Right), until ninety (90) days following such date, the Company shall not complete a reverse stock split or reclassification of the Company’s common stock without the prior written consent of the Holder.

(h)Pledge of Securities. The Company acknowledges and agrees that the Securities may be pledged by a holder of the Securities without restriction in connection with a bona fide margin agreement or other loan or financing arrangement that is secured by the Securities. The Company hereby agrees to execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to such pledgee by the Holder.

(i)Effective Date. Except as otherwise provided herein, this Agreement shall be deemed effective as of such date that Company and the Holder shall have duly executed and delivered this Agreement (the “Effective Date”).

(j)No Commissions. Neither the Company nor the Holder has paid or given, or will pay or give, to any person, any commission, fee or other remuneration, directly or indirectly, in connection with the transactions contemplated by this Agreement.

(k)Termination. Notwithstanding anything contained in this Agreement to the contrary, if the Effective Date has not occurred and the Company does not deliver the Right to the Holder in accordance with Section 1 hereof, then, at the election of the Holder delivered in writing to the Company at any time after the fifth (5th) Business Day immediately following the date of this Agreement, this Agreement shall be terminated and be null and void ab initio and the Existing Notes shall not be cancelled hereunder and shall remain outstanding as if this Agreement never existed.

(l)Independent Nature of Holder’s Obligations and Rights. The obligations of the Holder under this Agreement are several and not joint with the obligations of any Other Holder, and the Holder shall not be responsible in any way for the performance of the obligations of any Other Holder under any Other Agreement. Nothing contained herein or in any Other Agreement, and no action taken by the Holder pursuant hereto, shall be deemed to constitute the Holder and Other Holders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Holder and Other Holders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any Other Agreement and the Company acknowledges that, to the best of its knowledge, the Holder and the Other Holders are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any Other Agreement. The Company and the Holder confirm that the Holder has independently participated in the negotiation of the transactions contemplated hereby with the advice of its own counsel and advisors. The Holder shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any Other Holder to be joined as an additional party in any proceeding for such purpose.

(i)Miscellaneous. Section 9 of the Securities Purchase Agreements is hereby incorporated by reference herein, mutatis mutandis.

[The remainder of the page is intentionally left blank]

IN WITNESS WHEREOF, Holders and the Company have executed this Agreement as of the date set forth on the signature page of the Holder below.

COMPANY:

EVOFEM BIOSCIENCES, INC.

By:

Name:

Title:

IN WITNESS WHEREOF, Holders and the Company have executed this Agreement as of September [__], 2022.


			HOLDER: [____________________] By:_____________________________ Name: Title: Email: Address:

			Aggregate Existing Note Value of all Existing Notes of Holder to be Exchanged

			$__________________

			Number of Shares of Common Stock Underlying Right

			___________________

Exhibit A

Form of Right to Receive Common Stock

Exhibit 10.5

EXCHANGE AGREEMENT

A. Prior to the date hereof, pursuant to that certain Securities Purchase Agreement, dated as of October 14, 2020, by and between the Company and the investors party thereto (as the same has been amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Securities Purchase Agreement”), the Company issued one or more senior subordinated notes (as the same has been amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, collectively the “Existing Notes”) to the Holder. Capitalized terms used but not otherwise defined herein shall have the meaning as set forth in each of the Securities Purchase Agreement (as amended hereby).

B. The Company and the Holder desire to amend and waive certain provisions of the Securities Purchase Agreement and exchange (the “Exchange” or the “Transaction”) [●] of the Existing Notes (the “Exchanged Notes”), on the basis and subject to the terms and conditions set forth in this Agreement, for a prepaid right to receive that number of shares of Common Stock set forth on the signature page hereof, in substantially the form attached hereto as Exhibit A (such prepaid right, the “Right” and such underlying shares of Common Stock, the “Right Shares”, collectively with the Right, the “Securities”).

C. The Securities and this Agreement and such other documents and certificates related thereto are collectively referred to herein as the “Exchange Documents”.

D. The Exchange is being made in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”).

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter contained, the parties hereto agree as follows:

1.Exchange. On the date hereof, pursuant to Section 3(a)(9) of the Securities Act, the Holder shall convey, assign and transfer the Exchanged Notes to the Company in exchange for which the Company shall issue the Right to the Holder. On the date hereof, in exchange for [●] of the Existing Notes, the Company shall execute and deliver the Right to the Holder, which Right shall be issued with a restrictive legend as set forth below. Immediately following the delivery of the Right to the Holder (or its designee), the Holder shall relinquish all rights, title and interest in the Exchanged Notes (including any claims the Holder may have against the Company related thereto) and assign the same to the Company, and the Exchanged Notes shall be deemed canceled.

2.Ratifications; Incorporation of Terms under Transaction Documents.

(a)Ratifications. Except as otherwise expressly provided herein, that certain Registration Rights Agreement, dated as of October 14, 2020, by and between the Company and the investors party thereto (the “Registration Rights Agreement”) is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the date hereof: (i) all references in the Registration Rights Agreement to “this Agreement”, “hereto”, “hereof”, “hereunder” or words of like import referring to the Registration Rights Agreement shall mean the Registration Rights Agreement as amended by this Agreement.

(b)Amendments and Incorporation of Terms under Transaction Documents. Effective as of the date hereof, the Registration Rights Agreement is hereby amended as follows (and any such agreements, covenants and related provisions therein shall be deemed incorporated by reference herein, mutatis mutandis, as amended as such):

(i)The defined term “Registrable Securities” is hereby amended to mean the Right Shares or the shares of Common Stock issued or issuable upon the conversion of the Notes.

(ii)Section 2.1(a) is hereby amended in its entirety as follows:

Following the date of conversion of the Right Shares or Notes with an Outstanding Balance of at least $5 million and within the thirty (30) day period immediately following the demand of any Investor, the Company shall file with the Commission a Registration Statement on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form in accordance with the Securities Act) covering the resale of the Registrable Securities by the Investors (the “Resale Registration Shelf”), and the Company shall file such Resale Registration Shelf as promptly as reasonably practicable following such demand, and in any event within sixty (60) days of such demand. Such Resale Registration Shelf shall include a “final” prospectus, including the information required by Item 507 of Regulation S-K of the Securities Act, as provided by the Investors in accordance with Section 2.7. Notwithstanding the foregoing, before filing the Resale Registration Shelf, the Company shall furnish to the Investors a copy of the Resale Registration Shelf and afford the Investors an opportunity to review and comment on the Resale Registration Shelf. The Company’s obligation pursuant to this Section 2.1(a) is conditioned upon the Investors providing the information contemplated in Section 2.7.

3.Company Representations and Warranties. As a material inducement to the Holder to enter into this Agreement and consummate the Exchange, the Company hereby represents and warrants with and to the Holder, as of the date hereof, as follows:

the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Securities, have been duly authorized by the Board of Directors of the Company and, other than such filings required under applicable securities or “Blue Sky” laws of the states of the United States (the “Required Approvals”) and no further filing, consent, or authorization is required by the Company or of its Board of Directors or its shareholders. This Agreement and the other Exchange Documents have been duly executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

(c)No Conflict; Required Filings and Consents.

(e)Issuance of Securities. The issuance of the Securities is duly authorized and upon issuance in exchange for the Exchanged Notes or exercise of the Right, as applicable, and in accordance with the terms of the Exchange Documents shall be validly issued, fully paid and nonassessable and free from all preemptive or similar rights, taxes, liens, charges and other encumbrances with respect to the issue thereof.

(f)No Consideration Paid. No commission or other remuneration has been paid by Company for soliciting the exchange of the Exchanged Notes for the Securities as contemplated hereby.

4.Holder’s Representations and Warranties. As a material inducement to the Company to enter into this Agreement and consummate the Exchange, the Holder hereby represents and warrants with and to the Company, as of the date hereof, as follows:

(c)Reliance on Exemptions. The Holder understands that the Securities acquired thereunder are being offered and exchanged in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Holder’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Holder set forth herein and in the Exchange Documents in order to determine the availability of such exemptions and the eligibility of the Holder to acquire the Securities.

(d)Exempt from Registration; Restricted Securities. The Holder understands that the Securities acquired thereunder will not be registered under the Securities Act on the grounds that the sale provided for in this Agreement is exempt from registration under of the Securities Act, and that the reliance on such exemption is predicated in part on the Holder’s representations set forth in this Agreement. The Holder understands that the Securities and the securities issuable upon conversion thereof are restricted securities within the meaning of Rule 144 under the Securities Act and such Securities will remain restricted securities under Rule 144 unless or until they are subsequently registered or exempt from registration.

(e)Validity; Enforcement. This Agreement and the Exchange Documents to which the Holder is a party have been duly and validly authorized, executed and delivered on behalf of the Holder and shall constitute the legal, valid and binding obligations of the Holder enforceable against the Holder in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy,

insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

(f)No Conflicts. The execution, delivery and performance by the Holder of this Agreement and the Exchange Documents to which the Holder is a party, and the consummation by the Holder of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of the Holder or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Holder is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Holder, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Holder to perform its obligations hereunder.

(g)No Consideration Paid. No commission or other remuneration has been paid by the Holder for soliciting the exchange of the Existing Notes for the Securities as contemplated hereby.

5.Covenants.

(a)Restrictions on Transfer. The Securities shall bear the following restrictive legend (unless and until such legend is removed) and appropriate stop transfer instructions may be issued against any transfer of the certificate for the shares of Securities in violation of this Section 5(a):

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE “BLUE SKY” LAWS OF ANY JURISDICTION. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE REGISTRATION, QUALIFICATION AND FILING REQUIREMENTS OF ALL APPLICABLE JURISDICTIONS HAVE BEEN SATISFIED OR THE COMPANY HAS RECEIVED A CERTIFICATE AND/OR AN OPINION OF COUNSEL THAT THE PROPOSED TRANSACTION WILL BE EXEMPT FROM REGISTRATION, QUALIFICATION, AND FILINGS IN ALL SUCH JURISDICTIONS.”

The Holder may request that the Company shall authorize the removal of the restrictive legend and stop transfer instructions described in this Section 5(a), and the Company agrees to authorize and instruct (including by causing any required legal opinion to be provided) the removal of any legend from the Securities, if permitted by applicable securities law, within two (2) business days of any such request; provided, however, each party will be responsible for any fees it incurs in connection with such request and removal.

(b)Disclosure of Transaction. The Company shall, on or before 9:30 a.m., New York City Time, on or prior to the first Business Day after the date of this Agreement, file a Current Report on Form 8-K with the SEC describing the terms of the transactions contemplated hereby in the form required by the 1934 Act and attaching the Exchange Documents, to the extent they are required to be filed under the 1934 Act, that have not previously been filed with the SEC by the Company (including, without limitation, this Agreement) as exhibits to such filing (including all attachments, the “8-K Filing”). From and after the filing of the 8-K Filing,

the Company shall have disclosed all material, non-public information (if any) provided up to such time to the Holder by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement with respect to the transactions contemplated by the Exchange Documents or as otherwise disclosed in the 8-K Filing, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and any of the Holder or any of their affiliates, on the other hand, shall terminate. Neither the Company, its Subsidiaries nor the Holder shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval of the Holder, to make a press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith or (ii) as is required by applicable law and regulations (provided that in the case of clause (i) the Holder shall be consulted by the Company in connection with any such press release or other public disclosure prior to its release). Without the prior written consent of the Holder (which may be granted or withheld in the Holder’s sole discretion), except as required by applicable law, the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of the Holder in any filing, announcement, release or otherwise.

(c)Blue Sky. The Company shall make all filings and reports relating to the Exchange as required under applicable securities or “Blue Sky” laws of the states of the United States following the date hereof, if any.

(d)Effective Date. Except as otherwise provided herein, this Agreement shall be deemed effective as of such date that Company and the Holder shall have duly executed and delivered this Agreement (the “Effective Date”).

(e)No Commissions. Neither the Company nor the Holder has paid or given, or will pay or give, to any person, any commission, fee or other remuneration, directly or indirectly, in connection with the transactions contemplated by this Agreement.

(f)Termination. Notwithstanding anything contained in this Agreement to the contrary, if the Effective Date has not occurred and the Company does not deliver the Right to the Holder in accordance with Section 1 hereof, then, at the election of the Holder delivered in writing to the Company at any time after the fifth (5th) Business Day immediately following the date of this Agreement, this Agreement shall be terminated and be null and void ab initio and the Exchanged Notes shall not be cancelled hereunder and shall remain outstanding as if this Agreement never existed.

(h)Independent Nature of Holder’s Obligations and Rights. The obligations of the Holder under this Agreement are several and not joint with the obligations of any other Person, and the Holder shall not be responsible in any way for the performance of the obligations of any other Holder under any other agreement. Nothing contained herein or in any other agreement, and no action taken by the Holder pursuant hereto, shall be deemed to constitute the Holder and other Persons as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Holder and other Persons are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any other agreement and the Company acknowledges that, to the best of its knowledge, the

Holder and the other Persons are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any other agreement. The Company and the Holder confirm that the Holder has independently participated in the negotiation of the transactions contemplated hereby with the advice of its own counsel and advisors. The Holder shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Person to be joined as an additional party in any proceeding for such purpose.

(i)Miscellaneous. Section 9 of the Securities Purchase Agreement is hereby incorporated by reference herein, mutatis mutandis.

[The remainder of the page is intentionally left blank]

IN WITNESS WHEREOF, Holders and the Company have executed this Agreement as of the date set forth on the signature page of the Holder below.

COMPANY:

EVOFEM BIOSCIENCES, INC.

By:

Name:

Title:

IN WITNESS WHEREOF, Holders and the Company have executed this Agreement as of the date set forth on the signature page of the Holder below.


			HOLDER: ADJUVANT GLOBAL HEALTH TECHNOLOGY FUND, LP By: Adjuvant Capital GP, L.P., its General Partner By: Adjuvant Capital Management, LLC, its General Partner By:___________________________ Name: Title: Email: Address:

			Outstanding Amount of Existing Note

			$ __________

			Number of Shares of Common Stock Underlying Right
			__________

IN WITNESS WHEREOF, Holders and the Company have executed this Agreement as of the date set forth on the signature page of the Holder below.


			HOLDER: ADJUVANT GLOBAL HEALTH TECHNOLOGY FUND DE, LP By: Adjuvant Capital GP, L.P., its General Partner By: Adjuvant Capital Management, LLC, its General Partner By:___________________________ Name: Title: Email: Address:

			Outstanding Amount of Existing Note

			$ __________

			Number of Shares of Common Stock Underlying Right
			__________

Exhibit A

Form of Right to Receive Common Stock

Exhibit 10.6

THE NUMBER OF SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS RIGHT MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 1(a) OF THIS RIGHT.

Evofem Biosciences, Inc.

Right To Receive Common Stock

Right No.: [ ]
Date of Issuance: [__________] (“Issuance Date”)
Date of Exchange: [________] (the “Exchange Date”)

Evofem Biosciences, Inc., a Delaware corporation (the “Company”), hereby certifies that [BUYER], the registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below, to receive from the Company, upon exercise of this Right to Receive Common Stock (including any Rights to Receive Common Stock issued in exchange, transfer or replacement hereof, the “Right”), at any time or times on or after _________________(the “Initial Exercisability Date”), but not after 11:59 p.m., New York time, on the Expiration Date (as defined below), _________________ (subject to adjustment as provided herein) fully paid and non-assessable shares of Common Stock (as defined below) (the “Right Shares”, and such number of Right Shares, the “Right Number”). Except as otherwise defined herein, capitalized terms in this Right shall have the meanings set forth in Section 19. This Right is one of the Rights to Receive Common Stock issued at an exchange price of $0.21 per share of Common Stock (the “Exchange Price”) in exchange for a subordinated note with an aggregate amount outstanding as of the Exchange Date of _________________ (the “Exchange Value”), dated September 15, 2022, pursuant to that certain Amendment and Exchange Agreement, dated as of the Exchange Date, by and between the Company and the Holder (the “Exchange Agreement”).

No consideration shall be required to be paid by the Holder to any Person to effect any exercise of this Right.

1.EXERCISE OF RIGHT.

(a)Mechanics of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section 1(f)), this Right may be exercised by the Holder on any day on or after the Initial Exercisability Date (an “Exercise Date”), in whole or in part, by delivery (whether via e-mail or otherwise) of a written notice, in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise this Right. No consideration shall be required to be paid by the Holder to any Person to effect any exercise of this Right. The Holder shall not be required to deliver an ink-original of this Right or an Exercise Notice in order to effect an exercise hereunder, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Exercise Notice form be required. Execution and delivery of an Exercise Notice with respect to less than all of the Right Shares shall have the same effect as cancellation of the original of this Right and issuance of a new Right evidencing the right to receive the remaining number of Right Shares. Execution and delivery of an Exercise Notice for all of the then-remaining Right Shares shall have the same effect as cancellation of the original of this Right after delivery of the Right Shares in accordance with the terms hereof. On or before the first (1st) Trading Day following the date on which the Company has received an Exercise Notice, the Company shall transmit by electronic mail an acknowledgment of confirmation of receipt of such Exercise Notice, in the form attached hereto as Exhibit B, to the Holder and the Company’s transfer agent (the “Transfer Agent”), which confirmation shall constitute an instruction to the Transfer Agent to process such Exercise Notice

in accordance with the terms herein. On or before the second (2nd) Trading Day following the date on which the Company has received such Exercise Notice (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a trade of such Right Shares initiated on the applicable Exercise Date) (the “Share Delivery Deadline”), the Company shall (i) provided that the Transfer Agent is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, 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 DTC through its Deposit/Withdrawal at Custodian system, or (ii) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, upon the request of the Holder, issue and deliver (via reputable overnight courier) to the address as specified in the Exercise Notice, a certificate, registered in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder shall be entitled pursuant to such exercise. Upon delivery of an Exercise Notice, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Right Shares with respect to which this Right has been exercised, irrespective of the date such Right Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Right Shares (as the case may be). If this Right is submitted in connection with any exercise pursuant to this Section 1(a) and the number of Right Shares represented by this Right submitted for exercise is greater than the number of Right Shares being acquired upon an exercise and upon surrender of this Right to the Company by the Holder, then, at the request of the Holder, the Company shall as soon as practicable and in no event later than two (2) Business Days after any exercise and at its own expense, issue and deliver to the Holder (or its designee) a new Right (in accordance with Section 7(d)) representing the right to receive the number of Right Shares issuable hereunder immediately prior to such exercise under this Right, less the number of Right Shares with respect to which this Right is exercised. The Company acknowledges and agrees that in accordance with Section 3(a)(9) of the 1933 Act, the Rights Shares take on the registered characteristics of the Rights being exercised.

(b)Factional Shares; Taxes. No fractional shares of Common Stock are to be issued upon the exercise of this Right, but rather the number of shares of Common Stock to be issued shall be rounded up to the nearest whole number. The Company shall pay any and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Transfer Agent) that may be payable with respect to the issuance and delivery of Right Shares upon exercise of this Right.

(c)Company’s Failure to Timely Deliver Securities. If the Company shall fail, for any reason or for no reason, on or prior to the Share Delivery Deadline, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, to issue and deliver to the Holder (or its designee) a certificate for the number of Right Shares to which the Holder is entitled and register such Right Shares on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of the Holder or the Holder’s designee with DTC for such number of Right Shares to which the Holder is entitled upon the Holder’s exercise of this Right (as the case may be) (a “Delivery Failure”), then, in addition to all other remedies available to the Holder, (X) the Company shall pay in cash to the Holder on each day after the Share Delivery Deadline and during such Delivery Failure an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Date and to which the Holder is entitled, multiplied by (B) any trading price of the Common Stock selected by the Holder in writing as in effect at any time during the period beginning on the applicable Exercise Date and ending on the applicable Share Delivery Date, and (Y) the Holder, upon written notice to the Company, may void its Exercise Notice with respect to, and retain or have returned, as the case may be, any portion of this Right that has not been exercised pursuant to such Exercise Notice; provided that the voiding of an Exercise Notice shall not affect the

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Company’s obligations to make any payments which have accrued prior to the date of such notice pursuant to this Section 1(c) or otherwise. In addition to the foregoing, if on or prior to the Share Delivery Date either (I) the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company shall fail to issue and deliver to the Holder (or its designee) a certificate and register such shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, the Transfer Agent shall fail to credit the balance account of the Holder or the Holder’s designee with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s exercise hereunder or pursuant to the Company’s obligation pursuant to clause (ii) below, and if on or after such Share Delivery Date the Holder acquires (in an open market transaction, stock loan or otherwise) shares of Common Stock corresponding to all or any portion of the number of shares of Common Stock issuable upon such exercise that the Holder is entitled to receive from the Company and has not received from the Company in connection with such Delivery Failure, then, in addition to all other remedies available to the Holder, the Company shall, within two (2) Business Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions, stock loan costs and other out-of-pocket expenses, if any) for the shares of Common Stock so acquired (including, without limitation, by any other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point the Company’s obligation to so issue and deliver such certificate (and to issue such shares of Common Stock) or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Right Shares to which the Holder is entitled upon the Holder’s exercise hereunder (as the case may be) (and to issue such Right Shares) shall terminate, or (ii) promptly honor its obligation to so issue and deliver to the Holder a certificate or certificates representing such Right Shares or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Right Shares to which the Holder is entitled upon the Holder’s exercise hereunder (as the case may be) and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of Right Shares multiplied by (B) the lowest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date of the applicable Exercise Notice and ending on the date of such issuance and payment under this clause (ii). Nothing 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 (or to electronically deliver such shares of Common Stock) upon the exercise of this Right as required pursuant to the terms hereof.

(d)144 Status. For purposes of Rule 144(d) promulgated under the 1933 Act, as in effect on the Issuance Date, it is intended that the Right Shares issued hereunder upon exercise of this Right, from time to time, shall be deemed to have been acquired by the Holder, and the holding period for the Right Shares shall be deemed to have commenced, as of the initial Issuance Date. The Company acknowledges and agrees that in accordance with Section 3(a)(9) of the 1933 Act, the Right Shares shall take on the registered characteristics of the Rights being exercised. The Company agrees not to take any position contrary to this Section 1(d).

(e)Disputes. In the case of a dispute as to the arithmetic calculation of the number of Right Shares to be issued pursuant to the terms hereof, the Company shall promptly issue to the Holder the number of Right Shares that are not disputed and resolve such dispute in accordance with Section 15.

(f)Limitations on Exercises. The Company shall not effect the exercise of any portion of this Right, and the Holder shall not have the right to exercise any portion of this Right, pursuant to the terms and conditions of this Right and any such exercise shall be null and void

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and treated as if never made, to the extent that after giving effect to such exercise, the Holder together with the other Attribution Parties collectively would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of this Right with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of this Right beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 1(f). For purposes of this Section 1(f)), beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of this Right without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Exercise Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(f)(i), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Right Shares to be acquired pursuant to such Exercise Notice. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and 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 Right, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon exercise of this Right results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Company, the Holder may from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of Rights that is not an Attribution Party of the Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Right in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior inability to exercise

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this Right pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1(f)(i) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 1(f)(i) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Right.

(g)Reservation of Shares.

(i)Required Reserve Amount. So long as this Right remains outstanding, the Company shall at all times keep reserved for issuance under this Right a number of shares of Common Stock at least (x) if on or prior to January 31, 2023 (the “Stockholder Meeting Deadline”), __________ shares of Common Stock or (y) after the Stockholder Meeting Deadline, such aggregate number of shares of Common Stock equal to 100% of the maximum number of shares of Common Stock as shall be necessary to satisfy the Company’s obligation to issue shares of Common Stock under the Rights then outstanding (without regard to any limitations on exercise) (the “Required Reserve Amount”); provided that at no time shall the number of shares of Common Stock reserved pursuant to this Section 1(g)(i) be reduced other than proportionally in connection with any exercise or redemption of Rights or such other event covered by Section 2(a) below. The Required Reserve Amount (including, without limitation, each increase in the number of shares so reserved) shall be allocated pro rata among the holders of the Rights based on number of shares of Common Stock issuable upon exercise of Rights held by each holder on the Exchange Date (without regard to any limitations on exercise) or increase in the number of reserved shares, as the case may be (the “Authorized Share Allocation”). In the event that a holder shall sell or otherwise transfer any of such holder’s Rights, each transferee shall be allocated a pro rata portion of such holder’s Authorized Share Allocation. Any shares of Common Stock reserved and allocated to any Person which ceases to hold any Rights shall be allocated to the remaining holders of Rights, pro rata based on the number of shares of Common Stock issuable upon exercise of the Rights then held by such holders (without regard to any limitations on exercise).

(ii)Insufficient Authorized Shares. If, notwithstanding Section 1(g)(i), and not in limitation thereof, at any time while any of the Rights remain outstanding, the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve the Required Reserve Amount (an “Authorized Share Failure”), then the Company shall immediately take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for all the Rights then outstanding. Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than ninety (90) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase in the number of authorized shares of Common Stock. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its best efforts to solicit its stockholders’ approval of such increase in authorized

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shares of Common Stock and to cause its board of directors to recommend to the stockholders that they approve such proposal.

2.ADJUSTMENT OF NUMBER OF RIGHT SHARES. The number of Right Shares issuable upon exercise of this Right are subject to adjustment from time to time as set forth in this Section 2. For the avoidance of doubt, to the extent that this Right has been partially or fully exercised prior to an adjustment event under this Section 2, no adjustment shall be made with respect to the previously issued shares and the portion of the Right that was previously exercised.

(a)Stock Dividends and Splits. Without limiting any provision of Section 3 or Section 4, if the Company, at any time on or after the Exchange Date, (i) pays a stock dividend on one or more classes of its then outstanding shares of Common Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its then outstanding shares of Common Stock into a larger number of shares or (iii) combines (by combination, reverse stock split or otherwise) one or more classes of its then outstanding shares of Common Stock into a smaller number of shares, then in each case the number of Rights Shares issuable upon exercise of the Right shall be proportionately adjusted. 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, and 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)Adjustment Upon Issuance of Shares of Common Stock. If and whenever on or after the Exchange Date and through the second anniversary of the Exchange Date, the Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 2 is deemed to have granted, issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company (each, a “Subsequent Placement”), but excluding any Excluded Securities granted issued or sold or deemed to have been granted issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the Exchange Price (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the aggregate Right Number then remaining shall increase to (i) the quotient of (x) the Exchange Value of the initial Holder (minus the ratable portion attributed to prior Right exercises) divided by (y) the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the New Issuance Price under this Section 2(b)), the following shall be applicable:

(i)Issuance of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any Options and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof is less than the Exchange Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting, issuance or sale (or the time of execution of such agreement to grant, issue or sell, as applicable) of such Option for such price per share. For purposes of this Section 2(b)(i), the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to

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the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting, issuance or sale (or pursuant to the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting, issuance or sale (or the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Right Number shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms of or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities. Notwithstanding the foregoing, in the event of the issuance of a “pre-funded” warrant (i.e., a warrant that has a purchase price attributed to it and a nominal exercise price), the price at which the underlying shares are sold shall equal the sum of the exercise price and the warrant purchase price.

(ii)Issuance of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Convertible Securities and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof is less than the Exchange Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section 2(b)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Right Number shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to

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the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Right has been or is to be made pursuant to other provisions of this Section 2(b), except as contemplated below, no further adjustment of the Right Number shall be made by reason of such issuance or sale.

(iii)Change in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other than proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 2(a)), the Right Number in effect at the time of such increase or decrease shall be adjusted to the Right Number which would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold . For purposes of this Section 2(b)(ii), if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible Security that was outstanding as of the Exchange Date) are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 2(b) shall be made if such adjustment would result in a decrease of the Right Number then in effect.

(iv)Calculation of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”, and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities” and together with the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration per share of Common Stock with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit, or (y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with Sections 2(b)(i) or 2(b)(ii) above. If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The

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fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.

(v)Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).

(c)Calculations. All calculations under this Section 2 shall be made by rounding to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issuance or sale of Common Stock.

3.RIGHTS UPON DISTRIBUTION OF ASSETS. In addition to any adjustments pursuant to Section 2 above, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property, options, evidence of indebtedness or any other assets by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Right, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Right (without regard to any limitations or restrictions on exercise of this Right, including without limitation, the Maximum Percentage) immediately before the date on which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution to the extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Distribution (and beneficial ownership) to the extent of such excess) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time or times, if ever, as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution held similarly in abeyance) to the same extent as if there had been no such limitation).

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4.PURCHASE RIGHTS; FUNDAMENTAL TRANSACTIONS.

(a)Purchase Rights. In addition to any adjustments pursuant to Section 2 above, if at any time the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Right (without regard to any limitations or restrictions on exercise of this Right, including without limitation, the Maximum Percentage) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issuance or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to the extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Purchase Right (and beneficial ownership) to the extent of any such excess) and such Purchase Right to such extent shall be held in abeyance for the benefit of the Holder until such time or times, if ever, as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted, issued or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance) to the same extent as if there had been no such limitation).

(b)Fundamental Transactions. Upon consummation of each Fundamental Transaction, the Successor Entity shall deliver to the Holder confirmation that there shall be issued upon exercise of this Right at any time after the consummation of the applicable Fundamental Transaction, in lieu of the shares of Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the exercise of this Right prior to the applicable Fundamental Transaction, such consideration which the Holder would have been entitled to receive upon the happening of the applicable Fundamental Transaction had this Right been exercised immediately prior to the applicable Fundamental Transaction (without regard to any limitations on the exercise of this Right), as adjusted in accordance with the provisions of this Right. Notwithstanding the foregoing, and without limiting Section 1(f) hereof, the Holder may elect, at its sole option, by delivery of written notice to the Company to waive this Section 4(b) to permit the Fundamental Transaction without the assumption of this Right. In addition to and not in substitution for any other rights hereunder, prior to the consummation of each Fundamental Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with respect to or in exchange for shares of Common Stock (a “Corporate Event”), the Company shall make appropriate provision to insure that the Holder will thereafter have the right to receive upon an exercise of this Right at any time after the consummation of the applicable Fundamental Transaction but prior to the Expiration Date, in lieu of the shares of the Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the exercise of the Right prior to such Fundamental Transaction, such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights) which the Holder would have been entitled to receive upon the happening of the applicable Fundamental Transaction had this Right been exercised

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immediately prior to the applicable Fundamental Transaction (without regard to any limitations on the exercise of this Right). Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory to the Holder.

(c)Subsequent Placement Exchange Right. At any time on or after the Issuance Date and prior to the second anniversary of the Exchange Date, if the Company consummates any Subsequent Placement (other than with respect to any Excluded Securities) (each, an “Eligible Subsequent Placement”), the Company shall provide the Holder the right, in accordance with Section 3(a)(9) of the Securities Act of 1933, as amended, to exchange (each, a “Subsequent Placement Exchange”) all, or any part, of this Right as elected in writing by the Holder into the securities (the “Eligible Exchange Securities”) issued (or to be issued, as applicable) in such Eligible Subsequent Placement (calculated as if the Exchange Value (as reduced, pro rata, for any exercises of this Right) of the portion of this Right then outstanding and elected by the Holder to be subject to such exchange (the “Exchanging Right Amount”), is credited, on a dollar-for-dollar basis, against the purchase price of the applicable Eligible Exchange Securities to be acquired in such Subsequent Placement Exchange). On or prior to the time of consummation of any Eligible Subsequent Placement, but in no event prior to the public announcement of such Eligible Subsequent Placement without the written consent of the Holder (which may be an e-mail), the Company shall deliver written notice to the Holder of the terms and conditions of such Eligible Subsequent Placement (each, an “Exchange Right Notice”). If the Holder fails to deliver a written notice electing to exchange all, or any part, of this Right into Eligible Exchange Securities on or prior to 24 hours after receipt of such Exchange Right Notice, the Holder shall not be permitted to effect such Subsequent Placement Exchange with respect to the applicable Eligible Subsequent Placement (but not with respect to any other Eligible Subsequent Placement); provided, that if the terms of such Eligible Subsequent Placement changes, the Company shall deliver a revised Exchange Right Notice to the Holder and the Holder (each, a “Replacement Exchange Right Notice”) will have an additional 24 hours after receipt of such Replacement Exchange Right Notice to elect to effect a Subsequent Placement Exchange with respect thereto. By no later than the second (2nd) Trading Day after the Holder elects to effect an exchange of the Exchange Right Amount into applicable Eligible Exchange Securities in accordance herewith, the Company shall deliver such Eligible Exchange Securities to the Holder (or its designee).

(d)Application. The provisions of this Section 4 shall apply similarly and equally to successive Fundamental Transactions, Subsequent Placement Exchanges and Corporate Events and shall be applied as if this Right (and any such subsequent rights) were fully exercisable and without regard to any limitations on the exercise of this Right (provided that the Holder shall continue to be entitled to the benefit of the Maximum Percentage, applied however with respect to shares of capital stock registered under the 1934 Act and thereafter receivable upon exercise of this Right (or any such other right)).

5.NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its certificate of incorporation or bylaws or other organizational documents or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issuance 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 Right, and will at all times in good faith carry out all the provisions of this Right and take all action as may be required to protect the rights of the Holder. Without limiting the generality of the

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foregoing, the Company shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock upon the exercise of this Right.

6.RIGHT HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, the Holder, solely in its capacity as a holder of this Right, 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 Right be construed to confer upon the Holder, solely in its capacity as the Holder of this Right, 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, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Right Shares which it is then entitled to receive upon the due exercise of this Right. In addition, nothing contained in this Right shall be construed as imposing any liabilities on the Holder to acquire any securities (upon exercise of this Right or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 6, the Company shall provide the Holder with copies of the same notices and other information given to the stockholders of the Company generally, contemporaneously with the giving thereof to the stockholders.

7.REISSUANCE OF RIGHTS.

(a)Transfer of Right. If this Right is to be transferred, the Holder shall surrender this Right to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Right (in accordance with Section 7(d)), registered as the Holder may request, representing the right to receive the number of Right Shares being transferred by the Holder and, if less than the total number of Right Shares then underlying this Right is being transferred, a new Right (in accordance with Section 7(d)) to the Holder representing the right to receive the number of Right Shares not being transferred.

(b)Lost, Stolen or Mutilated Right. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Right (as to which a written certification and the indemnification contemplated below shall suffice as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Right, the Company shall execute and deliver to the Holder a new Right (in accordance with Section 7(d)) representing the right to receive the Right Shares then underlying this Right.

(c)Exchangeable for Multiple Rights. This Right is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Right or Rights (in accordance with Section 7(d)) representing in the aggregate the right to receive the number of Right Shares then underlying this Right, and each such new Right will represent the right to receive such portion of such Right Shares as is designated by the Holder at the time of such surrender; provided, however, no rights for fractional shares of Common Stock shall be given.

(d)Issuance of New Rights. Whenever the Company is required to issue a new Right pursuant to the terms of this Right, such new Right (i) shall be of like tenor with this Right, (ii) shall represent, as indicated on the face of such new Right, the right to receive the Right Shares then underlying this Right (or in the case of a new Right being issued pursuant to Section 7(a) or Section 7(c), the Right Shares designated by the Holder which, when added to the number of

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shares of Common Stock underlying the other new Rights issued in connection with such issuance, does not exceed the number of Right Shares then underlying this Right), (iii) shall have an issuance date, as indicated on the face of such new Right which is the same as the Issuance Date, (iv) shall have an exchange date, as indicated on the face of such new Right which is the same as the Exchange Date and (v) shall have the same rights and conditions as this Right.

8.NOTICES. Whenever notice is required to be given under this Right, unless otherwise provided herein, such notice shall be given at its last address as it shall appear upon the right register of the Company. The Company shall provide the Holder with prompt written notice of all actions taken pursuant to this Right (other than the issuance of shares of Common Stock upon exercise in accordance with the terms hereof), including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the foregoing, the Company will give written notice to the Holder (i) promptly upon each adjustment of the number of Right Shares, setting forth in reasonable detail, and certifying, the calculation of such adjustment(s), (ii) at least ten Trading Days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the shares of Common Stock, (B) with respect to any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property to holders of shares of Common Stock or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall be made known to the public prior to or in conjunction with such notice being provided to the Holder, and (iii) the existence of a proposed Fundamental Transaction at least ten (10) Trading Days prior to the consummation of such Fundamental Transaction. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any of its Subsidiaries, the Company shall simultaneously file such notice with the SEC pursuant to a Current Report on Form 8-K. It is expressly understood and agreed that the time of execution specified by the Holder in each Exercise Notice shall be definitive and may not be disputed or challenged by the Company.

9.DISCLOSURE. Upon delivery by the Company to the Holder (or receipt by the Company from the Holder) of any notice in accordance with the terms of this Right, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, non-public information relating to the Company or any of its Subsidiaries, the Company shall on or prior to 9:00 am, New York city time on the Business Day immediately following such notice delivery date, publicly disclose such material, non-public information on a Current Report on Form 8-K or otherwise. In the event that the Company believes that a notice contains material, non-public information relating to the Company or any of its Subsidiaries, the Company so shall indicate to the Holder explicitly in writing in such notice (or immediately upon receipt of notice from the Holder, as applicable), and in the absence of any such written indication in such notice (or notification from the Company immediately upon receipt of notice from the Holder), the Holder shall be entitled to presume that information contained in the notice does not constitute material, non-public information relating to the Company or any of its Subsidiaries. Nothing contained in this Section 9 shall limit any obligations of the Company, or any rights of the Holder, under Section [4] of the Exchange Agreement.

10.ABSENCE OF TRADING AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent of the Company and that the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company or (b) refrain from trading any securities while in possession of such information in the absence of a written non-disclosure agreement signed by an officer of the Holder that explicitly provides for such confidentiality and trading restrictions. In the absence of such an executed, written non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any securities issued by the Company, may possess and use any information

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provided by the Company in connection with such trading activity, and may disclose any such information to any third party.

11.AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of this Right (other than Section 1(f)) 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. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.

12.SEVERABILITY. If any provision of this Right is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Right so long as this Right as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

13.GOVERNING LAW. This Right shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Right shall be governed by, the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. The Company 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 to the Company at its principal executive office and agrees that such service shall constitute good and sufficient service of process and notice thereof. The Company 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, 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, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS RIGHT OR ANY TRANSACTION CONTEMPLATED HEREBY.

14.CONSTRUCTION; HEADINGS. This Right shall be deemed to be jointly drafted by the Company and the Holder and shall not be construed against any Person as the drafter hereof. The headings of this Right are for convenience of reference and shall not form part of, or affect the interpretation of, this Right.

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15.DISPUTE RESOLUTION.

(a)Submission to Dispute Resolution.

(i)In the case of a dispute relating to the Closing Sale Price, or fair market value or the arithmetic calculation of the number of Right Shares (as the case may be) (including, without limitation, a dispute relating to the determination of any of the foregoing), the Company or the Holder (as the case may be) shall submit the dispute to the other party via e-mail (A) if by the Company, within two (2) Business Days after the occurrence of the circumstances giving rise to such dispute or (B) if by the Holder, at any time after the Holder learned of the circumstances giving rise to such dispute. If the Holder and the Company are unable to promptly resolve such dispute relating to such Closing Sale Price, or such fair market value or such arithmetic calculation of the number of Right Shares (as the case may be), at any time after the second (2nd) Business Day following such initial notice by the Company or the Holder (as the case may be) of such dispute to the Company or the Holder (as the case may be), then the Holder may, at its sole option, select an independent, reputable investment bank to resolve such dispute.

(ii)The Holder and the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance with the first sentence of this Section 15 and (B) written documentation supporting its position with respect to such dispute, in each case, no later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately following the date on which the Holder selected such investment bank (the “Dispute Submission Deadline”) (the documents referred to in the immediately preceding clauses (A) and (B) are collectively referred to herein as the “Required Dispute Documentation”) (it being understood and agreed that if either the Holder or the Company fails to so deliver all of the Required Dispute Documentation by the Dispute Submission Deadline, then the party who fails to so submit all of the Required Dispute Documentation shall no longer be entitled to (and hereby waives its right to) deliver or submit any written documentation or other support to such investment bank with respect to such dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation that was delivered to such investment bank prior to the Dispute Submission Deadline). Unless otherwise agreed to in writing by both the Company and the Holder or otherwise requested by such investment bank, neither the Company nor the Holder shall be entitled to deliver or submit any written documentation or other support to such investment bank in connection with such dispute (other than the Required Dispute Documentation).

(iii)The Company and the Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and the Holder of such resolution no later than ten (10) Business Days immediately following the Dispute Submission Deadline. The fees and expenses of such investment bank shall be borne solely by the Company, and such investment bank’s resolution of such dispute shall be final and binding upon all parties absent manifest error.

(b)Miscellaneous. The Company expressly acknowledges and agrees that (i) this Section 15 constitutes an agreement to arbitrate between the Company and the Holder (and constitutes an arbitration agreement) under the rules then in effect under § 7501, et seq. of the New York Civil Practice Law and Rules (“CPLR”) and that the Holder is authorized to apply for an order to compel arbitration pursuant to CPLR § 7503(a) in order to compel compliance with this Section 15, (ii) a dispute relating to the Exchange Price includes, without limitation, disputes as to (A) whether an issuance or sale or deemed issuance or sale of Common Stock occurred under Section 2(b), (B) the consideration per share at which an issuance or deemed issuance of

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Common Stock occurred, (C) whether any issuance or sale or deemed issuance or sale of Common Stock was an issuance or sale or deemed issuance or sale of Excluded Securities, (D) whether an agreement, instrument, security or the like constitutes and Option or Convertible Security and (E) whether a Dilutive Issuance occurred, (iii) the terms of this Right shall serve as the basis for the selected investment bank’s resolution of the applicable dispute, such investment bank shall be entitled (and is hereby expressly authorized) to make all findings, determinations and the like that such investment bank determines are required to be made by such investment bank in connection with its resolution of such dispute (including, without limitation, determining (A) whether an issuance or sale or deemed issuance or sale of Common Stock occurred under Section 2(b), (B) the consideration per share at which an issuance or deemed issuance of Common Stock occurred, (C) whether any issuance or sale or deemed issuance or sale of Common Stock was an issuance or sale or deemed issuance or sale of Excluded Securities, (D) whether an agreement, instrument, security or the like constitutes and Option or Convertible Security and (E) whether a Dilutive Issuance occurred) and in resolving such dispute such investment bank shall apply such findings, determinations and the like to the terms of this Right and any other applicable Transaction Documents, (iv) the Holder (and only the Holder), in its sole discretion, shall have the right to submit any dispute described in this Section 15 to any state or federal court sitting in The City of New York, Borough of Manhattan in lieu of utilizing the procedures set forth in this Section 15 and (v) nothing in this Section 15 shall limit the Holder from obtaining any injunctive relief or other equitable remedies (including, without limitation, with respect to any matters described in this Section 15).

16.REMEDIES, CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Right shall be cumulative and in addition to all other remedies available under this Right, at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Right. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, exercises and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the holder of this Right shall be entitled, in addition to all other available remedies, to specific performance and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and without posting a bond or other security. The Company shall provide all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Right (including, without limitation, compliance with Section 2 hereof). The issuance of shares and certificates for shares as contemplated hereby upon the exercise of this Right shall be made without charge to the Holder or such shares for any issuance tax or other costs in respect thereof, provided that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than the Holder or its agent on its behalf.

17.PAYMENT OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Right is placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding or the holder otherwise takes action to collect amounts due under this Right or to enforce the provisions of this Right or (b) there occurs any bankruptcy, reorganization, receivership of the company or other proceedings affecting company creditors’

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rights and involving a claim under this Right, then the Company shall pay the costs incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including, without limitation, attorneys’ fees and disbursements.

18.TRANSFER. This Right may be offered for sale, sold, transferred or assigned without the consent of the Company.

19.CERTAIN DEFINITIONS. For purposes of this Right, the following terms shall have the following meanings:

(a)“1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.

(b)“1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

(c) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

(d)“Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.

(e) “Attribution Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.

(f) “Bloomberg” means Bloomberg, L.P.

(g)“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.

(h)“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange

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or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does 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, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices). 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 such dispute shall be resolved in accordance with the procedures in Section 13. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.

(i)“Common Stock” means (i) the Company’s shares of common stock, $0.0001 par value per share, and (ii) any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.

(j)“Convertible Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock.

(k) “Eligible Market” means the Principal Market, the New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, the OTCQX or the OTCQB.

(l)“Excluded Securities” means (i) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such pursuant to an Approved Stock Plan (as defined above); (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the Exchange Date, provided that the conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered (other than antidilution adjustments pursuant to the terms thereof in effect as of the Exchange Date), none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder (other than antidilution adjustments pursuant to the terms thereof in effect as of the Exchange Date) and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the holders of the Rights; and (iii) the shares of Common Stock issuable upon exercise of the Rights; provided, that the terms of the Rights are not amended, modified or changed on or after the Exchange Date (other than antidilution adjustments pursuant to the terms thereof in effect as of the Exchange Date).

(n) “Expiration Date” means June 28, 2027.

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(o) “Fundamental Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Common Stock be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of at least either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (iv) consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) at least 50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding shares of Common Stock or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such Subject Entities as of the date of this Right calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other shareholders of the Company to surrender their shares of Common Stock without approval of the shareholders of the Company or (C) directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction.

(p) “Group” means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.

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(q) “Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.

(r)“Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.

(s)“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or a government or any department or agency thereof.

(t)“Principal Market” means The Pink Open Market.

(u) “SEC” means the United States Securities and Exchange Commission or the successor thereto.

(v)“Subject Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.

(w)“Successor Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been entered into.

(x)“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y) with respect to all determinations other than price determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.

(y)“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices). If the VWAP cannot be calculated for such security on such

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date on any of the foregoing bases, the VWAP 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 such dispute shall be resolved in accordance with the procedures in Section 15. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.

[signature page follows]

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IN WITNESS WHEREOF, the Company has caused this Right to Receive Common Stock to be duly executed as of the Issuance Date set out above.

EVOFEM BIOSCIENCES, INC.

By:

Name:

Title:

EXHIBIT A

EXERCISE NOTICE

TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
RIGHT TO RECEIVE COMMON STOCK

EVOFEM BIOSCIENCES, INC.

The undersigned holder hereby exercises the right to receive _________________ of the shares of Common Stock (“Right Shares”) of Evofem Biosciences, Inc., a Delaware corporation (the “Company”), evidenced by Right to Receive Common Stock No. _______ (the “Right”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Right.

The Company shall deliver to Holder, or its designee or agent as specified below, __________ Right Shares in accordance with the terms of the Right. Delivery shall be made to Holder, or for its benefit, as follows:

☐ Check here if requesting delivery as a certificate to the following name and to the following address:


			Issue to:

☐ Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows:


			DTC Participant:
			DTC Number:
			Account Number:

Date: _____________ __, _____

________________________________

Name of Registered Holder

By:

Name:

Title:

Tax ID:____________________________

E-mail Address:_____________________

EXHIBIT B

ACKNOWLEDGMENT

The Company hereby acknowledges this Exercise Notice and hereby directs ______________ to issue the above indicated number of shares of Common Stock.

EVOFEM BIOSCIENCES, INC.

By:

Name:

Title:

Exhibit 10.7

THIRD AMENDMENT TO
SECURITIES PURCHASE AND SECURITY AGREEMENT

This Third Amendment to Securities Purchase and Security Agreement (this “Amendment”) is entered into as of September 15, 2022 (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, as amended by that First Amendment to the Agreement, dated as of November 20, 2021, by and among the Company, the Purchasers and the Designated Agent, and as amended by that Second Amendment to the Agreement, dated as of March 21, 2022, by and among the Company, the Purchasers and the Designated Agent (as amended, 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.

2.1_____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 add new defined terms for “Approved Stock Plan,” “Convertible Securities,” “Excluded Securities,” “June 2022 Warrants,” and “Options” as set forth below:

“Approved Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.

“Convertible Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock.

“Excluded Securities” means (i) shares of Common Stock or standard options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such pursuant to an Approved Stock Plan; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the Amendment Effective Date, provided that the conversion price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered (other than antidilution adjustments pursuant to the terms thereof in effect as of the Amendment Effective Date), none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable thereunder (other than antidilution adjustments pursuant to the terms thereof in effect as of the Amendment Effective Date) and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely affects any of the Purchasers; and (iii) the shares of Common Stock issuable upon exercise of the Rights; provided, that the terms of the Rights are not amended, modified or changed on or after the Amendment Effective Date (other than antidilution adjustments pursuant to the terms thereof in effect as of the Amendment Effective Date).

“June 2022 Warrants” means those certain common stock purchase warrants issued to the Purchasers on June 28, 2022, pursuant to the Purchase Agreement.

“Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.

2.2_____Amendment to Section 3.2 of the Purchase Agreement. Effective as of the Amendment Effective Date, Section 3.2 of the Purchase Agreement is hereby deleted in its entirety and replaced with the following:

“3.2 Interest; Repayment. Interest on the unpaid principal balance of the Notes (such balance as increased as provided in this Section 3.2, the “Outstanding Balance”) will accrue from the applicable Closing Date at the rate of 10.0% per annum, calculated on the basis of a 360 day year and actual days elapsed. Accrued interest shall accrue daily and compound quarterly to the extent not paid on a current basis. For a period of one year from the Initial Closing Date, accrued interest shall accrete on a quarterly basis to the

Outstanding Balance, after which one-year period accrued interest shall thereafter be paid in arrears on a quarterly basis either in cash or in kind, at the Company’s option. To the extent not previously converted pursuant to Section 5 hereof, the Company will repay the Outstanding Balance plus all accrued and unpaid interest thereon on the Maturity Date.”

2.3_____Amendment 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:

“5.1 “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 lower of: (a) $0.21 or (b) the “Adjusted Conversion Price” which shall initially be $0.21 and subject to adjustment as set forth herein. If after the Amendment Effective Date and through the second anniversary of the Amendment Effective Date (the “Adjustment End Date”), the Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 5.1 is deemed to have granted, issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities granted issued or sold or deemed to have been granted issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the then effective Adjusted Conversion Price (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Adjusted Conversion Price shall equal the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the Adjusted Conversion Price under this Section 5.1, the following shall be applicable:

(a)Issuance of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any Options and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof is less than the Adjusted Conversion Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting, issuance or sale (or the time of execution of such agreement to grant, issue or sell, as applicable) of such Option for such price per share. For purposes of this Section 5.1, the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting, issuance or sale (or pursuant to the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting, issuance or sale (or the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other

consideration received or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Adjusted Conversion Price shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms of or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities. Notwithstanding the foregoing, in the event of the issuance of a “pre-funded” warrant (i.e., a warrant that has a purchase price attributed to it and a nominal exercise price), the price at which the underlying shares are sold shall equal the sum of the exercise price and the warrant purchase price.

(b)Issuance of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Convertible Securities and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof is less than the Adjusted Conversion Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section 5.1(b), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Adjusted Conversion Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of the Adjusted Conversion Price has been or is to be made pursuant to other provisions of this Section 5.1, except as contemplated below, no further adjustment of the Adjusted Conversion Price shall be made by reason of such issuance or sale.

(including, without limitation, any Option or Convertible Security that was outstanding as of the Amendment Effective Date) are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 5.1 shall be made if such adjustment would result in a decrease of the Adjusted Conversion Price then in effect.

(d)Calculation of Consideration Received. If any Option and/or Convertible Security is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Purchaser, the “Primary Security”, and such Option and/or Convertible Security, the “Secondary Securities” and together with the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration per share of Common Stock with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit or (y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with Sections 5.1(a) or 5.1(b) above. If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company and the Purchaser. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Purchaser. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company. “Principal Market” means the OTC Pink Marketplace.

(e)Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).

2.4Amendment to Section 5.7(b) of the Purchase Agreement. Effective as of the Amendment Effective Date, Section 5.7(b) of the Purchase Agreement is hereby deleted in its entirety and replaced with the following:

“(b) If (i) an Event of Default occurs or (ii) upon a Change of Control or liquidation of the Company, each Purchaser may elect, at its option, to require the Company to repurchase in cash the Notes held by such Purchaser (or any portion thereof) at a repurchase price equal to two times the sum of the Outstanding Balance of such Notes and any accrued but unpaid interest thereon. The Company shall provide the Purchasers with prompt (and in any event within three Business Days) written notice of the occurrence of such Event of Default or Change of Control or liquidation of the Company. Any such payment shall be due within three Business Days after the date that the applicable Purchaser delivers notice of such election.”

2.5Amendment to Section 8.1 of the Purchase Agreement. Effective as of the Amendment Effective Date, Section 8.1 of the Purchase Agreement is hereby amended to add a new clause (n) as follows:

“(n) If requested by the Designated Agent, the Company shall deliver to the Designated Agent, on the Friday of every second week commencing with the first Friday after such request is made, financial and operating reports with respect to the Company, in form reasonably acceptable to the Designated Agent.”

2.6Amendment to Section 8.2(b) of the Purchase Agreement. Effective as of the Amendment Effective Date, Section 8.2(b) of the Purchase Agreement is hereby amended to delete clause (iii) thereto in its entirety and replace it with the following:

“(iii) (x) other debt that is expressly subordinated to the Notes and (y) the unsecured convertible notes in an aggregate principal amount of $25,000,000, plus any accrued interest thereon paid in kind, issued under that certain Securities Purchase Agreement, dated as of October 14, 2020, by and among Evofem Biosciences, Inc., Adjuvant Global Health Technology Fund, L.P. and Adjuvant Global Health Technology Fund DE, L.P., as purchasers, provided that the holders thereof are party to the Subordination Agreement dated as of September 15, 2022 among the Designated Agent, such holders, and the Company.”

2.7Covenants of the Company. The Company hereby covenants to the Purchasers that the Company shall increase its authorized shares in an amount equal to 100% of the Waived Reserve Amount (as defined below) by January 31, 2023 (the “Share Reserve Deadline”).

2.8Subsequent Placement Exchange Right. If at any time during the term of the Notes, Company grants, issues or sells (or enters into any agreement to grant, issue or sell), any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company (each, a “Subsequent Placement”), the Purchasers may elect, on or prior to the fifth Business Day immediately following the public announcement of such Subsequent Placement, to purchase the securities or, as applicable, units of securities, issued in such Subsequent Placement by delivery of written notice to the Company of its request to apply all, or any part, of the Outstanding Balance then outstanding, on a dollar-for-dollar basis, against the purchase price of such securities. Notwithstanding the forgoing, the Company shall not be required to settle such securities prior to the Share Reserve Deadline.

3.Certain Waivers.

3.1_____Reservation of Shares. The Purchasers hereby waive from the date hereof and through the Share Reserve Deadline the requirement that the Company keep shares of Common Stock reserved for issuance upon conversion of the Notes (the “Waived Reserve Amount”).

3.2_____Warrants Explosion Provision. Effective as of the Amendment Effective Date, solely with respect to (i) any June 2022 Warrants and May 2022 Warrants (those issued pursuant to that certain Underwriting Agreement, dated May 20, 2022, by and between the Company and Piper Sandler & Co)held by the Purchasers (or any of its Affiliates) as of the Amendment Effective Date or (ii) any May 2022 Warrants acquired by the Purchasers (or any of its Affiliates) from and after the Amendment Effective Date (collectively, the “2022 Warrants”), the Purchasers hereby irrevocably waive, in part, Section 3(g) of each of the 2022 Warrants such that no adjustment to the aggregate number of Warrant Shares (as defined in the 2022 Warrants) issuable upon exercise of the 2022 Warrants shall occur in connection with any adjustment of the Exercise Price (as defined in the 2022 Warrants) as a result of Section 3(b) thereof. The Purchasers further agree to surrender the 2022 Warrants for revision and reissuance to reflect the waiver set forth above, which shall be binding upon any transferee of such warrants.

4.Miscellaneous.

4.1_____Governing 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.

4.2_____Entire 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.

4.3_____Titles 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.

4.4_____Counterparts. 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.

4.5_____Severability. 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 Third Amendment to Securities Purchase and Security Agreement to be effective as of the date first above written.

EVOFEM BIOSCIENCES, INC., as Company

By:

/s/ Justin J. File

Name: Justin J. File

Title: Chief Financial Officer

Address:

12400 High Bluff Drive, Suite 600

San Diego, CA

Email:

Signature Page to Third Amendment to Securities Purchase and Security Agreement

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 Third Amendment to Securities Purchase and Security Agreement

667, L.P.,

as a Purchaser

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 Third Amendment to Securities Purchase and Security Agreement

BAKER BROTHERS LIFE SCIENCES, L.P.,

as a Purchaser

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 Third Amendment to Securities Purchase and Security Agreement

Exhibit 10.8

SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT

This Second Amendment to Securities Purchase Agreement (this “Second Amendment”) is entered into as of September 15, 2022 (the “Second Amendment Effective Date”) by and among Evofem Biosciences, Inc., a Delaware corporation (the “Company”), Adjuvant Global Health Technology Fund, LP, and Adjuvant Global Health Technology Fund, DE, LP (the “Purchasers”).

RECITALS

WHEREAS, the Company and the Purchasers are party to that certain Securities Purchase Agreement, dated as of October 14, 2020, as amended by that First Amendment to Securities Purchase Agreement, dated as of April 4, 2022 (as amended, the “Purchase Agreement”), pursuant to which the Purchasers purchased certain convertible promissory notes (the “Notes”; together with the Purchase Agreement, the “Transaction Documents”) of the Company;

WHEREAS, pursuant to Section 10.8 of the Purchase Agreement, any term of the Purchase Agreement or the Notes may be amended only with the written consent of the Company 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 and the Purchasers 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. 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 and the Notes shall continue unmodified and remain in full force and effect.

2. Amendment to the Purchase Agreement.

2.1 Amendment to Section 1.1 of the Purchase Agreement. Effective as of the Second Amendment Effective Date, Section 1.1 of the Purchase Agreement is hereby amended to add new defined terms “Approved Stock Plan,” “Convertible Securities,” “Excluded Securities,” “June 2022 Warrants,” and “Options,” “Right,” and “Right Shares” as set forth below:

“June 2022 Warrants” means those certain common stock purchase warrants issued to the Purchasers on June 28, 2022, pursuant to the Purchase Agreement.

“Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.

“Right” means that certain prepaid right to receive shares of Common Stock as set forth in the Exchange Agreements, dated as of September 15, 2022, by and between the Company and each of the Purchasers.

“Right Shares” means the shares of Common Stock underlying the Right.

2.2 Amendment to Section 4.1 of the Purchase Agreement. Effective as of the achievement of the Second Amendment Effective Date, Section 4.1 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 4.4 and 4.5, 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 lower of: (a) $0.21 or (b) the “Adjusted Conversion Price” which shall initially be $0.21 and subject to adjustment as set forth herein. If after the Amendment Effective Date and through the second anniversary of the Amendment Effective Date (the “Adjustment End Date”), the Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 5.1 is deemed to have granted, issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities granted issued or sold or deemed to

have been granted issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the then effective Adjusted Conversion Price (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Adjusted Conversion Price shall equal the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the Adjusted Conversion Price under this Section 5.1, the following shall be applicable:

at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Adjusted Conversion Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of the Adjusted Conversion Price has been or is to be made pursuant to other provisions of this Section 5.1, except as contemplated below, no further adjustment of the Adjusted Conversion Price shall be made by reason of such issuance or sale.

(c)Change in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other than proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in this Section 5.1), the Adjusted Conversion Price in effect at the time of such increase or decrease shall be adjusted to the Adjusted Conversion Price which would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section 5.1(c), if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible Security that was outstanding as of the Amendment Effective Date) are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 5.1 shall be made if such adjustment would result in a decrease of the Adjusted Conversion Price then in effect.

deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company and the Purchaser. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Purchaser. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company. “Principal Market” means the OTC Pink Marketplace.

3. Amendment to the Registration Rights Agreement.

3.1 Amendment to defined term “Registrable Securities”. Effective as of the Second Amendment Effective Date, the defined term “Registrable Securities” is hereby amended to mean the Right Shares and the shares of Common Stock issued or issuable upon the conversion of the Notes.

4. Covenants of the Company. The Company hereby covenants to the Purchasers that the Company shall increase its shares in an amount equal to 100% of the Waived Reserve Amount (as defined below) by January 31, 2023 (the “Share Reserve Deadline”).

4.1 Subsequent Placement Exchange Right. If at any time during the term of the Notes, Company grants, issues or sells (or enters into any agreement to grant, issue or sell), any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company (each, a “Subsequent Placement”), the Purchasers may elect, on or prior to the fifth Business Day immediately following the public announcement of such Subsequent Placement, to purchase the securities or, as applicable, units of securities, issued in such Subsequent Placement by delivery of written notice to the Company of its request to apply all, or any part, of the Outstanding Balance then outstanding, on a dollar-for-dollar basis, against the purchase price of such securities. Notwithstanding the forgoing, the Company shall not be required to settle such securities prior to the Share Reserve Deadline.

5. Certain Waivers.

5.1 Reservation of Shares. The Purchasers hereby waive from the date hereof and through the Share Reserve Deadline the requirement that the Company keep shares of Common Stock reserved for issuance upon conversion of the Notes (the “Waived Reserve Amount”).

5.2 Outstanding Balance Increase. The Purchasers hereby grant a one-time waiver of Section 7.2(a) of the Purchase Agreement, solely and only to the extent necessary, to allow the increase to the principal amount of the Outstanding Balance (as defined in the Baker Purchase Agreement), including costs and expenses (including reasonable attorneys’ fees) incurred by the Designated Agent (as defined below) and/or Baker Bros. (as defined below) relating to the Baker Purchase Agreement, in accordance with the terms of that certain Forbearance Agreement, dated as of September 15, 2022, by and among the Company, the purchasers party thereto (“Baker Bros.”) and Baker Bros. Advisors LP, as agent and collateral agent for Baker Bros. (the “Designated Agent”). The “Baker Purchase Agreement,” means that certain Securities Purchase and Security Agreement, dated as of April 23, 2020, by and among the Company, Baker Bros., and the Designated Agent, as amended from time to time.

6. Miscellaneous.

6.1 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.

6.2 Entire Agreement. This Second Amendment, together with the Purchase Agreement, the Notes, the other Note Documents, and the Exhibits 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.

6.3 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.

6.4 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.

6.5 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.]

IN WITNESS WHEREOF, the parties have executed this Second Amendment to Securities Purchase Agreement to be effective as of the date first above written.

EVOFEM BIOSCIENCES, INC.

By: /s/ Justin J. File

Name: Justin J. File

Title: Chief Financial Officer

Address:

12400 High Bluff Drive, Suite 600

San Diego, CA

Email:

Signature Page to Second Amendment to Securities Purchase Agreement

ADJUVANT GLOBAL HEALTH TECHNOLOGY FUND, LP

as a Purchaser

By: Adjuvant Capital GP, L.P., its General Partner

By: Adjuvant Capital Management, LLC, its General Partner

By: /s/ Jenny Yip

Name: Jenny Yip

Title: Co-President

Address:

445 Fifth Ave, #20D

New York, NY 10016

Email:

Signature Page to Second Amendment to Securities Purchase Agreement

ADJUVANT GLOBAL HEALTH TECHNOLOGY FUND DE, LP,

as a Purchaser

By: Adjuvant Capital GP, L.P., its General Partner

By: Adjuvant Capital Management, LLC, its General Partner

By: /s/ Jenny Yip

Name: Jenny Yip

Title: Co-President

Address:

445 Fifth Ave, #20D

New York, NY 10016

Email:

Signature Page to Second Amendment to Securities Purchase Agreement

Exhibit 99.1

Evofem Announces Successful Debt Restructuring

-- Evofem Gains Forbearance from Debtholders for All Existing Matters--

SAN DIEGO, September 16, 2022 /PRNewswire/ -- Evofem Biosciences, Inc. (OTCPK: EVFM) today announced the successful restructuring of its debt, providing forbearance from its debtholders related to all existing events of default.

“This debt restructuring removes the overhang created by the Nasdaq delisting last month while securing ongoing forbearance from current defaults,” said Saundra Pelletier, Evofem’s CEO. “We are grateful to these investors for their support and commitment to the Company and Phexxi, which we believe testifies to the importance of this asset for hormone-free contraception and the significance of the pending top-line data readout next month from our Phase 3 registrational trial evaluating Phexxi for the prevention of chlamydia and gonorrhea in women. We believe positive outcomes from this landmark trial will catalyze strategic discussions and enable regulatory submissions to expand the Phexxi label.”

In addition to the forbearance from all the Company’s debtholders, other terms of the restructuring arrangements include:

All holders of junior unsecured debt obligations have exchanged these obligations into rights to acquire Evofem’s common stock.

In addition, the remaining unsecured creditor, Adjuvant Capital, exchanged 10% of its unsecured debt obligations into rights to acquire Evofem’s common stock. Adjuvant’s $25 million strategic investment in October 2020 supported Evofem's Phase 3 registrational trial evaluating Phexxi® (lactic acid citric acid, and potassium bitartrate) for the prevention of chlamydia and gonorrhea in women as well as initiatives to expand global market access for the product.

The healthcare investor that provided $25 million to Evofem under the April 2020 Securities Purchase and Security Agreement agreed to accept future interest payments as payment-in-kind instead of cash.

About Evofem Biosciences

Evofem Biosciences, Inc. 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 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. The Company expects to report top-line data in October 2022 from its registrational Phase 3 EVOGUARD clinical trial evaluating Phexxi for two potential new indications – prevention of chlamydia and prevention of gonorrhea in women. 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 related to the potential benefits and value of the forbearance and restructuring arrangements, the duration of forbearance, evaluations and judgments regarding investor support, and the potential results of the Company’s registrational Phase 3 trial and related implications on women’s health and related markets. Various factors could cause actual results to differ materially from those discussed or implied in the forward-looking statements, including market and other conditions, 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, 2021, filed with the SEC on March 10, 2022, its Quarterly Report on Form 10-Q for the quarter ended June 30, 2022 filed with the SEC on August 12, 2022. and subsequent filings. All forward-looking statements are expressly qualified in their entirety by such factors. The Company does not undertake any duty to update any forward-looking statement except as required by law.

Contact

Amy Raskopf

SVP, Investor Relations

Evofem Biosciences, Inc.
araskopf@evofem.com
(917) 673-5775