Item 1.01. Conclusion of a significant definitive agreement.
At March 21, 2022 (the “Effective Date of the Amendment”), Evofem Biosciences, Inc.
(the “Company”), certain institutional investors (the “Purchasers”) and baker brothers. SEC Advisors as appointed agent for the Purchasers (the “Designated Agent”) entered into a second amendment (the “Second Amendment”) to the Securities and Security Purchase Agreement by and between the Company, the Purchasers and the Agent Appointed, dated April 23, 2020 (the “Agreement”), as modified by this first amendment to the Agreement, dated
November 20, 2021. The Second Amendment amends the Agreement as follows: (i) effective on the next date on which the Company makes a public offering marketed and underwritten by the Equity Securities Company after the effective date of the Amendment, which translates to a total gross product for the company of at least
$20 million (the “Qualified Funding Threshold”), the covenant in the Agreement currently requiring Evofem to achieve $100 million cumulative net sales of Phexxi® (lactic acid, citric acid and potassium bitartrate) (“Phexxi”) on or before June 30, 2022 be amended to require the Company to achieve $100 million
in Phexxi net sales on or before October 31, 2022and (ii) notwithstanding (i) above, from the next date on which the Company reaches the Qualified Funding Threshold and the publication by the Company of the first results of its EVOGUARD clinical trial (the “Trial Milestone clinic”), the commitment in the agreement currently requiring Evofem to achieve $100 million aggregate net sales of Phexxi no later than June 30, 2022 be amended to require the Company to achieve $100 million in Phexxi’s cumulative net sales no later than
June 30, 2023.
The Second Amendment also provides for an adjustment to the conversion price of senior secured convertible promissory notes sold to purchasers pursuant to the Agreement, such that the conversion price of such promissory notes will henceforth be the lesser of (i) $0.3871 and (ii) 100% of the lowest price per common share (or, with respect to securities convertible into common stock, 100% of the applicable conversion price) sold under any equity financing until the Company has reached the Qualified Funding Threshold and the Clinical Trial Milestone. The Second Amendment also provides that the exercise price of the warrants issued under the agreement will be equal to the conversion price of the promissory notes and that the number of common shares issuable upon the exercise of these warrants will be equal to half of the original principal amount price of the promissory notes divided by $2.44.
The foregoing description of the Second Amendment is qualified in its entirety by reference to the Second Amendment attached as Schedule 10.1 to this current Report on Form 8-K and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
The information set forth in Sections 1.01 of this Current Report on Form 8-K regarding the issuance of the Notes is incorporated into this Section 2.03 by reference.
Item 9.01. Financial Statements and Exhibits.
10.1 Second Amendment to Securities Purchase and Security Agreement, dated as of April
23, 2020, by and among Evofem Biosciences, Inc., certain affiliates of Baker Bros.
Advisors LP, as purchasers, and Baker Bros. Advisors LP, as designated agent.
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