Evofem Biosciences Inc. filed SEC Form 8-K: Entry into a Material Definitive Agreement, Financial Statements and Exhibits
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Item 1.01 Entry into a Material Definitive Agreement
Securities Purchase Agreement
As previously disclosed in that Current Report on Form 8-K dated March 26, 2025, on March 22, 2025, Evofem Biosciences, Inc., a Delaware corporation (the “Company”), Aditxt, Inc., a Delaware Corporation (“Aditxt”), and Adifem, Inc., a Delaware corporation and wholly-owned subsidiary of Aditxt (the “Merger Sub”), entered into the Fifth Amendment to the Amended and Restated Merger Agreement (the “Fifth Amendment”). Pursuant to the Fifth Amendment Aditxt shall provide the Company with a Fifth Parent Investment (as defined in the Fifth Amendment) in the amount of $1,500,000 through either the issuance of additional shares of F-1 Preferred Stock, or senior subordinated notes, on or before April 7, 2025; if this investment is not made by the required date, the Company may terminate the Merger.
On April 8, 2025, the Company entered into a securities purchase agreement (“SPA”) with Aditxt providing for the sale and issuance of senior subordinated convertible notes due in the aggregate original principal amount of $2,307,692 (the “Notes”) and warrants to purchase an aggregate of 149,850,150 shares (the “Warrants”) of common stock the Company, par value $0.0001 (the “Common Stock”) (collectively, the “Offering”).
The Offering partially closed on April 8, 2025 (the “Initial Closing Date”) and, as a result, the Company issued Notes in an aggregate principal amount of $1,153,846 and Warrants to purchase 74,925,075 shares of Common Stock. Aditxt paid approximately $650 for each $1,000 of the principal amount of Notes and Warrants. The net proceeds after the offering costs to the Company from the Offering were approximately $750,000. The Company waived Aditxt’s default due to the full Fifth Parent Investment not being made by the deadline set forth in the Fifth Amendment. As part of the waiver, the second half of the total anticipated aggregate original principal balance and Warrants must close no later than April 16, 2025 or Aditxt will be in default and the Company will have the ability to terminate the Merger.
The Company may not effect the conversion or the exercise of the Notes and/or Warrants, and the applicable holder will not be entitled to convert or exercise any portion of any such Notes and/or Warrants, which, upon giving effect to such conversion or exercise, would cause the aggregate number of shares of Common Stock beneficially owned by the holder of such Notes and/or Warrants (together with its affiliates) to exceed 9.99% of the total Common Stock issued and outstanding immediately after giving effect to the conversion or exercise, as such percentage ownership is determined in accordance with the terms of such Notes and/or Warrants.
Warrants
The Warrants are exercisable into shares of Common Stock at an exercise price of $0.0154 per share (“Exercise Price”) and allow for cashless exercise. If on any of the thirtieth (30th), sixtieth (60th), ninetieth (90th), one hundred twentieth (120th), and/or one hundred and eightieth (180th), as applicable, calendar day after the Closing Date (the “Adjustment Date”), the Exercise Price then in effect is greater than the Market Price (as defined by the SPA) then in effect (the “Adjustment Price”), on the Adjustment Date the Exercise Price shall automatically lower to the Adjustment Price. The Warrants are immediately exercisable and expire on the fifth (5th) anniversary date from the Issuance Date.
Notes
The Notes will be the senior subordinate obligations of the Company and not the financial obligations of our subsidiaries. The principal amount of the Notes accrue interest at a rate of 8% per annum (the “Interest Rate”), which will adjust to 12% upon an Event of Default (the “Default Rate”). The Notes are convertible at a conversion price of $0.0154 per share, subject to adjustment as described therein. Unless earlier converted or redeemed, the Notes will mature on April 8, 2028, (the “Maturity Date”), subject to the right of the investor to extend the date:
(i) if an event of default under the Notes has occurred and is continuing (or any event shall have occurred and be continuing that with the passage of time and the failure to cure would result in an event of default under the Notes) and
(ii) for a period of 20 business days after the consummation of a fundamental transaction if certain events occur.
The Company is required to pay a late charge of 12% per annum (“Late Charges”) on any amount of principal or other amounts that are not paid when due. The Company is required to pay, on the Maturity Date, all outstanding principal, accrued and unpaid interest, and accrued and unpaid Late Charges on such principal and interest, if any.
Beneficial Ownership Limitation on Conversion
The Notes may not be converted and shares of Common Stock may not be issued under Notes if, after giving effect to the conversion or issuance, the applicable holder of Notes (together with its affiliates, if any) would beneficially own in excess of 9.99% of our outstanding shares of Common Stock, which we refer to herein as the “Note Blocker”.
Fundamental Transactions
The Notes prohibit the Company from entering specified fundamental transactions (including, without limitation, mergers, business combinations and similar transactions) unless we are (or our successor is) a public company that assumes in writing all of our obligations under the Notes.
Change of Control Redemption Right
In connection with a change of control of the Company, each holder may require us to redeem in cash all, or any portion, of the Notes at the greater of the product of the 25% redemption premium multiplied by (i) the conversion amount to be redeemed, (ii) the product of the conversion amount to be redeemed multiplied by the equity value of our Common Stock underlying the Notes and (iii) the product of the conversion amount to be redeemed multiplied by the equity value of the change of control consideration payable to the holder of our Common Stock underlying the Notes.
The equity value of our Common Stock underlying the Notes is calculated using the greatest closing sale price of our Common Stock during the period immediately preceding the consummation or the public announcement of the change of control and ending the date the holder gives notice of such redemption.
The equity value of the change of control consideration payable to the holder of our Common Stock underlying the Notes is calculated using the aggregate cash consideration per share of our Common Stock to be paid to the holders of our Common Stock upon the change of control.
Covenants
The Notes contain a variety of obligations on our part not to engage in specified activities, which are typical for transactions of this type, as well as the following covenants:
| ○ | All payments under the Notes shall be made pari passu with all other Notes and shall be senior to all other Indebtedness other than Permitted Senior Indebtedness and Permitted Indebtedness secured by Permitted Liens. | |
| ○ | we and our subsidiaries will not initially (directly or indirectly) incur any other indebtedness except for permitted indebtedness; | |
| ○ | we and our subsidiaries will not initially (directly or indirectly) will not incur any liens, except for permitted liens; | |
| ○ | we and our subsidiaries will not, directly or indirectly, redeem or repay all or any portion of any indebtedness (except for certain permitted indebtedness) if at the time the payment is due or is made or, after giving effect to the payment, an event constituting, or that with the passage of time and without being cured would constitute, an event of default has occurred and is continuing; | |
| ○ | we and our subsidiaries will not redeem, repurchase, or pay any dividend or distribution on our respective capital stock; | |
| ○ | we and our subsidiaries will not initially, directly or indirectly, permit any indebtedness to mature or accelerate prior to the Maturity Date of the Notes; and | |
| ○ | we will maintain engagement with an independent auditor to audit our financial statements that is registered with the Public Company Accounting Oversight Board. |
Events of Default
The Notes contain standard and customary events of default including but not limited: (i) the suspension of our Common Stock from trading on the Eligible Market; (ii) the failure to cure a Conversion Failure (as defined therein); (iii) failure to make payments when due under the Notes; (iv) bankruptcy or insolvency of the Company; and/or (v) the occurrence of default under redemption or acceleration prior to Maturity of an aggregate $100,000 of Indebtedness (as defined therein).
If an event of default occurs, each holder may require us to redeem all or any portion of the Notes (including all accrued and unpaid interest and Late Charges thereon), in cash, at the greater of a 125% redemption premium multiplied by the conversion amount to be redeemed, and solely with respect to certain events of the default, the equity value of our Common Stock underlying the Notes.
The equity value of our Common Stock underlying the Notes is calculated using the greatest closing sale price of our Common Stock on any trading day immediately preceding such event of default and the date we make the entire payment required.
Subsequent Placement Optional Redemption Rights
At any time from and after the earlier of (x) the date the Holder becomes aware of the occurrence of a Subsequent Placement (as defined in the Securities Purchase Agreement) (the “Holder Notice Date”) and (y) the time of consummation of a Subsequent Placement (in each case, other than with respect to Excluded Securities (as defined in the SPA)) (each, an “Eligible Subsequent Placement”), so long as No Permitted Senior Indebtedness remains outstanding or undefeased (unless the Company has obtained the prior written consent of such holders of Permitted Senior Indebtedness) (the “Senior Debt Condition”), the Holder shall have the right, in its sole discretion, to require that the Company redeem (each an “Subsequent Placement Optional Redemption”) all, or any portion, of the Conversion Amount under this Note not in excess of (together with any Subsequent Placement Optional Redemption Amount (as defined in the applicable other Note of the Holder) of any other Notes of the Holder) the Holder’s Holder Pro Rata Amount of 25% of the gross proceeds of such Eligible Subsequent Placement (the “Eligible Subsequent Placement Optional Redemption Amount”).
Asset Sale Optional Redemption
At any time from and after the earlier of (x) the date the Holder becomes aware of the occurrence of an Asset Sale (including any insurance and condemnation proceeds thereof) and (y) the time of consummation of an Asset Sale (other than sales of inventory and product in the ordinary course of business and amounts reinvested in assets to be used in the Company’s business within 12 months of the date of consummation of such Asset Sale) (each, an “Eligible Asset Sale”), subject to the satisfaction of the Senior Debt Condition, the Holder shall have the right, in its sole discretion, to require that the Company redeem (each an “Asset Sale Optional Redemption”) all, or any portion, of the Conversion Amount under this Note not in excess of (together with any Asset Sale Optional Redemption Amount (as defined in the applicable other Note of the Holder) of any other Notes of the Holder) the Holder’s Holder Pro Rata Amount of 100% of the net proceeds (including any insurance and condemnation proceeds with respect thereto, but excluding legal and investment banking reasonable fees and expenses) of such Eligible Asset Sale (the “Eligible Asset Sale Optional Redemption Amount”) by delivering written notice thereof (an “Asset Sale Optional Redemption Notice”) to the Company.
The Notes will be governed by, and construed in accordance with, the laws of the State of New York without regard to its conflicts of law principles.
Call Option Agreement
On April 10, 2025, Aditxt, the Company and Adjuvant Global Health Technology Fund, L.P. and Adjuvant Global Fund DE, L.P. (collectively “Adjuvant”) entered into a Call Option Agreement (“Agreement”) wherein Adjuvant granted to Aditxt, a call option to purchase, at the sole discretion of Aditxt, all of the Convertible Promissory Notes and Right to receive Common Stock agreements (the “Securities”) issued to Adjuvant for an aggregate purchase price of $13,000,000. The call option can be exercised at any time after the satisfaction in full of the repayment obligations under the Company’s secured senior creditor, and until June 30, 2025. Further, in the event that Aditxt has not provided the funding under the Fifth Parent Investment (defined above) by April 30, 2025 or if the obligations under the Company’s senior secured creditor are not satisfied by May 31, 2025, Adjuvant is free to transfer the Securities and the call option agreement shall be extinguished and terminate.
Item 9.01 Financial Statements and Exhibits.
| Exhibit No. | Description | |
| 10.1 | Form of Securities Purchase Agreement | |
| 10.2 | Form of Senior Subordinated Convertible Note | |
| 10.3 | Form of Warrant | |
| 10.4 | Form of Call Option Agreement | |
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL) |
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. | ||
| Dated: April 14, 2025 | By: | /s/ Saundra Pelletier |
| Saundra Pelletier | ||
| Chief Executive Officer | ||