Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant
The information set forth under Item 3.02 of this Current Report on Form 8-K
regarding the issuance of the Notes is incorporated into this Item 2.03 by
reference.
Item 3.02. Unregistered Sales of Equity Securities
Securities Purchase Agreement and Private Placement
As previously reported, on April 23, 2020, Evofem Biosciences, Inc. (the
"Company," "we" or "us") and its wholly-owned domestic subsidiaries (the
"Guarantors") entered into a Securities Purchase and Security Agreement (the
"Securities Purchase Agreement") with certain institutional investors (the
"Purchasers") and their designated agent (the "Designated Agent"), pursuant to
which the Company agreed to issue and sell to the Purchasers and the Purchasers
agreed to purchase from the Company (i) convertible senior secured promissory
notes (the "Notes") in an aggregate principal amount of up to $25.0 million (the
"Maximum Amount") and (ii) warrants to purchase shares of common stock (the
"Warrants", and together with the Notes, the "Securities") in a private
placement (the "Private Placement").
The initial closing occurred on April 24, 2020 (the "Initial Closing") pursuant
to the terms of the Securities Purchase Agreement, whereby the Company issued
and sold to the Purchasers and the Purchasers purchased from the Company $15.0
million of Notes (the "First Closing Notes") and Warrants to be exercisable for
a number of shares of common stock equal to 50% of the aggregate principal
amount of the First Closing Notes divided by the exercise price of the Warrant.
On June 9, 2020 in a second closing under the Purchase Agreement (the "Second
Closing"), the Purchasers elected to purchase from the Company an additional
$10.0 million of Notes (the "Second Closing Notes") and Warrants (the "Second
Closing Warrants") to be exercisable for a number of shares of common stock
equal to 50% of the aggregate principal amount of the Second Closing Notes
divided by the exercise price of the Warrant. As of the Second Closing, the
initial conversion price of the Notes, including the Second Closing Notes, and
the initial exercise price of the Warrants, including the Second Closing
Warrants, was $2.44, but is subject to adjustment as described in the Warrants.
The Warrants have a five-year term with customary exercise blockers (mirroring
the conversion blocker under the Notes) and have other customary terms,
including a cashless exercise provision and buy-in remedy. The Second Closing
Notes are also secured by a pledge of substantially all of the assets, including
intellectual property, of the Company and each of the Guarantors pursuant to the
Intellectual Property Security Agreement ("IP Security Agreement") by and among
the Company, the Designated Agent, and the guarantors.
Upon completion of the First Closing and the Second Closing, the Company expects
to use these net proceeds for the commercialization of PhexxiTM, clinical
research and development purposes, and for general corporate purposes, although
the Company's management will have broad discretion in the use of these funds.
The Notes and Warrants were offered and sold in the Second Closing pursuant to
an exemption from the registration requirements under Section 4(a)(2) of the
Securities Act of 1933 (the "Securities Act") and Rule 506 of Regulation D
promulgated thereunder. The Purchasers are accredited investors and purchased
the securities as an investment in a private placement that did not involve a
general solicitation. The shares to be issued upon conversion of the Second
Closing Notes and exercise of the Second Closing Warrants have not been
registered under the Securities Act and may not be offered or sold in the United
States in the absence of an effective registration statement or exemption from
the registration requirements. This Current Report on Form 8-K shall not
constitute an offer to sell or the solicitation of an offer to buy, nor shall
there be any sale of these securities in any state in which such offer,
solicitation or sale would be unlawful prior to the registration or
qualification under the securities laws of any such state.
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Registration Rights Agreement
In addition and as previously reported, pursuant to the Securities Purchase
Agreement, the Company and the Purchasers may, at the request of the Designated
Agent, enter into a Registration Rights Agreement (the "Registration Rights
Agreement") pursuant to which the Company will grant to the Purchasers certain
demand resale registration rights with respect to the common stock issuable upon
conversion of the Note, exercise of the Warrants or any common stock acquired by
the Purchasers hereafter (the "Registrable Securities"). Pursuant to the
Registration Rights Agreement, if and only if executed, the Company will be
required, subject to limited exceptions, to file a registration statement
covering the resale of the Registrable Securities by the Purchasers within 60
days following the request by a Purchaser. The Company, the Purchasers and
certain of our and their affiliates will have reciprocal indemnification
obligations under the Registration Rights Agreement. The rights under the
Registration Rights Agreement will terminate automatically once all Registrable
Securities cease to be Registrable Securities because of any of the following
reasons (i) all Registrable Securities have been sold pursuant to an effective
registration statement, (ii) all Registrable Securities have been sold by the
Purchasers pursuant to Rule 144 as promulgated under the Securities Act ("Rule
144"), (iii) all Registrable Securities may be resold by the Purchasers without
limitations as to volume or manner or sale pursuant to Rule 144, or (iv) ten
years have the date of the Registration Rights Agreement.
The foregoing summaries of certain of the material terms of the Securities
Purchase Agreement, the IP Security Agreement, the form of Note, the form of
Warrant and the Registration Rights Agreement do not purport to be complete and
are qualified in their entirety by reference to the documents attached hereto as
exhibits 10.1, 10.2, 10.3, 4.1 and 10.4, respectively.
Additional Information And Where To Find It
The Company has filed a definitive proxy statement on Schedule 14A and
associated proxy card with the SEC, which was filed on May 8, 2020, in
connection with the solicitation of proxies for the special meeting of stock to
be held on June 18, 2020 (the "Special Meeting"). The Company, its directors,
its executive officers and certain other individuals set forth in the definitive
proxy statement will be deemed participants in the solicitation of proxies from
stockholders in respect of the Special Meeting. Information regarding the names
of the Company's directors and executive officers and certain other individuals
and their respective interests in the Company by security holdings or otherwise
is set forth in the definitive proxy statement. BEFORE MAKING ANY VOTING
DECISION, STOCKHOLDERS OF THE COMPANY ARE URGED TO READ ALL RELEVANT DOCUMENTS
FILED WITH OR FURNISHED TO THE SEC, INCLUDING THE DEFINITIVE PROXY STATEMENT AND
ANY SUPPLEMENTS THERETO AND ACCOMPANYING PROXY CARD, BECAUSE THEY CONTAIN
IMPORTANT INFORMATION. The Company's definitive proxy statement and a form of
proxy, including the materials incorporated by reference therein, have been
mailed to the stockholders of the Company. Stockholders can obtain a copy of the
documents filed by the Company with the SEC, including the definitive proxy
statement, free of charge by visiting the SEC's website, www.sec.gov.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit Number Description
4.1 Form of Warrant (incorporated by reference to Exhibit 4.1 to
Current Report on Form 8-K (File No. 001-36754) filed with the SEC
on April 27, 2020).
10.1 Securities Purchase and Security Agreement, dated as of April 23,
2020, by and between Evofem Biosciences, Inc., its wholly-owned
domestic subsidiaries as guarantors, certain affiliates of Baker
Bros. Advisors LP, as purchasers, and Baker Bros. Advisors LP, as
designated agent (agent (incorporated by reference to Exhibit 10.1
to Current Report on Form 8-K (File No. 001-36754) filed with the
SEC on April 27, 2020).
10.2 Intellectual Property Security Agreement, dated as of April 23,
2020 by and between Evofem Biosciences, Inc., certain of its
wholly-owned domestic subsidiaries and Baker Bros. Advisors LP, as
collateral agent (incorporated by reference to Exhibit 10.2 to
Current Report on Form 8-K (File No. 001-36754) filed with the SEC
on April 27, 2020).
10.3 Form of Note ((incorporated by reference to Exhibit 10.3 to
Current Report on Form 8-K (File No. 001-36754) filed with the SEC
on April 27, 2020).
10.4 Form of Registration Rights Agreement (incorporated by reference
to Exhibit 10.4 to Current Report on Form 8-K (File No. 001-36754)
filed with the SEC on April 27, 2020).
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