Securities Registration: Employee Benefit Plan (s-8)

Date : 06/06/2019 @ 9:34PM
Source : Edgar (US Regulatory)
Stock : Evofem Biosciences, Inc. (EVFM)
Quote : 4.92  -0.03 (-0.61%) @ 11:00PM

Securities Registration: Employee Benefit Plan (s-8)



As filed with the Securities and Exchange Commission on June 6, 2019
Registration Statement No. 333-

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_______________________________
EVOFEM BIOSCIENCES, INC.
(Exact name of registrant as specified in its charter)
_______________________________
Delaware
 
20-8527075
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)
12400 High Bluff Drive, Suite 600
San Diego, CA 92130
(858) 550-1900
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
_______________________________

Amended and Restated 2012 Equity Incentive Plan
2019 Employee Stock Purchase Plan
(Full title of the plans)

Saundra Pelletier
President and Chief Executive Officer
Evofem Biosciences, Inc.
12400 High Bluff Drive, Suite 600
San Diego, CA 92130
(858) 550-1900
(Name, address, including zip code, and telephone number, including area code, of agent for service)
_______________________________
Copies to:
Adam C. Lenain, Esq.
Melanie Ruthrauff Levy, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
3580 Carmel Mountain Road, Suite 300
San Diego, CA 92130
Tel: (858) 314-1500
Alexander A. Fitzpatrick, Esq.
General Counsel
Evofem Biosciences, Inc.
12400 High Bluff Drive, Suite 600
San Diego, CA 92130
Tel: (858) 550-1900
___________________________________________________________










Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
 
 
 
Large accelerated filer
 
 
Accelerated filer
 
Non-accelerated filer ý  
 
 
Smaller reporting company ý  
 
 
 
Emerging growth company ý
 
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 7(a)(2)(B) of the Securities Act. ý
    
CALCULATION OF REGISTRATION FEE
 

Title of securities
to be registered
Amount To be
registered  (1)(2)
Proposed maximum 
offering
price per share
Proposed maximum 
aggregate
offering price
Amount of
registration fee
Common Stock, $0.0001 par value per share
(2019 Employee Stock Purchase Plan)
500,000
$5.99 (3)
$2,995,000.00
$362.99
Common Stock, $0.0001 par value per share
(2012 Amended and Restated Equity Incentive Plan)
152,165
$57.27 (3)
$8,714,489.55
$1,056.20
TOTAL
652,165
$17.95
$11,709,489.55
$1,419.19
 
(1)
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (“Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock, par value $.0001 per share (“Common Stock”) that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of the outstanding shares of the Registrant’s Common Stock.
(2)
The number of shares of Common Stock, stated above consists of the aggregate number of shares which may be sold (i) upon the exercise of options or issuance of stock-based awards which have been granted and/or may hereafter be granted under the Registrant’s Amended and Restated 2012 Equity Incentive Plan (the “2012 Plan”) and the Registrant’s 2019 Employee Stock Purchase Plan (the “2019 ESPP”; and collectively with the 2012 Plan, the “Plans”). The shares of Common Stock registered hereunder consist of 500,000 shares reserved for issuance pursuant to the 2019 ESPP as well as up to 152,165 additional shares of Common Stock reserved for issuance pursuant to the 2012 Plan.
(3)
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act as follows: (a) shares of Common Stock issuable upon the exercise of outstanding options granted under the 2012 Plan are based upon the weighted-average exercise price of such outstanding options; and (b) shares of Common Stock reserved for future grant or issuance under the 2019 ESPP are based on the average of the high and the low price of the Registrant’s Common Stock as reported on the Nasdaq Capital Market on June 5, 2019.
 


EXPLANATORY NOTE
 
On January 17, 2018, Neothetics, Inc., a Delaware corporation (“Neothetics”), now known as Evofem Biosciences, Inc. and referred to herein as the “Registrant,” completed its merger (the “Merger”) with privately-held Evofem Biosciences Operations, Inc. (“Private Evofem”), in accordance with the terms of the Agreement and Plan of Merger and Reorganization, dated October 17, 2017. Following the Merger Neothetics affected a 6:1 reverse stock split of its common stock which was effective on January 17, 2018. The Registrant assumed options to purchase shares of Private Evofem common stock that were outstanding and unexercised immediately prior to the effective time of the Merger under the 2012 Plan, whether or not vested, representing the right to purchase 152,165 shares of the Registrant’s Common Stock post-split.








PART I
Information Required in the Section 10(a) Prospectus

EXPLANATORY NOTE

In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for offers of Common Stock pursuant to the Plans. The documents containing the information specified in Part I will be delivered to the participants in the Plans covered by this Registration Statement as required by Rule 428(b)(1) under the Securities Act.

PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), are incorporated herein by reference:
(a)
the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018, as filed on March 1, 2019;  
(b)
the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2019 filed with the Commission on May 7, 2019;
(c)
the Registrant’s Reports on Form 8-K filed with the SEC on January 3, 2019, January 7, 2019, February 11, 2019, March 1, 2019, April 11, 2019, May 7, 2019 and June 5, 2019 (except for the information furnished under Items 2.02 or 7.01 and the exhibits thereto);
(d)
all other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report referred to in (a) above (in each case, except for the information furnished under Items 2.02 or 7.01 in any current report on Form 8-K); and
(e)
the description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A (Registration No. 001-36754) filed with the Commission on November 18, 2014 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.

All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and prior to the filing of a post-effective amendment, which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as set forth therein. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document, which also is deemed to be incorporated by reference herein, modifies or supersedes such statement.
You should rely only on the information provided or incorporated by reference in this registration statement or any related prospectus. The Registrant has not authorized anyone to provide you with different information. You should not assume that the information in this registration statement or any related prospectus is accurate as of any date other than the date on the front of the document.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our amended and restated certificate of incorporation and amended and restated bylaws provide that each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including, without limitation, as a witness) in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that he or she is or was one of our directors or officers or is or was serving at our request as a director, officer, or trustee of another corporation, or





of a partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, or trustee or in any other capacity while serving as a director, officer, or trustee, shall be indemnified and held harmless by us to the fullest extent authorized by the Delaware General Corporation Law, or the DGCL, against all expense, liability, and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) reasonably incurred or suffered by such.
Section 145 of the DGCL permits a corporation to indemnify any director or officer of the corporation against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred in connection with any action, suit, or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reason to believe his or her conduct was unlawful. In a derivative action, or an action brought by or on behalf of the corporation, indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent the court in which the action or suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the DGCL, Article 12 of our amended and restated certificate of incorporation eliminates the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
from any breach of the director’s duty of loyalty to us or our stockholders;
from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
under Section 174 of the DGCL; and
from any transaction from which the director derived an improper personal benefit.

The foregoing discussion of our amended and restated certificate of incorporation, amended and restated bylaws, indemnification agreements, and Delaware law is not intended to be exhaustive and is qualified in its entirety by such certificate of incorporation, bylaws, indemnification agreements, or law.
We have entered into indemnification agreements with each of our directors and officers. These indemnification agreements may require us, among other things, to indemnify our directors and officers for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service as one of our directors or officers, or any of our subsidiaries or any other company or enterprise to which the person provides services at our request.
Insofar as the forgoing provisions permit indemnification of directors, executive officers, or persons controlling us for liability arising under the Securities Act of 1933, as amended, or the Securities Act, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.



















Item 8. Exhibits.  
EXHIBIT INDEX
 
 
 
 
 
Incorporated by Reference
Exhibit No.
Exhibit Title
 
Herewith
 
Form
 
File No.
    
Date Filed
4.1
 
 
 
10-K
(Exhibit 3.1)
 
001-36754
 
02/26/2018
4.2
 
 
 
8-K
(Exhibit 3.2)
 
001-36754
 
01/17/2018
4.4
 
 
 
10-K
(Exhibit 4.1)
 
001-36754
 
02/26/2018
5.1
 
X
 
 
 
 
 
 
23.1
 
X
 
 
 
 
 
 
23.2
Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1).
 
X
 
 
 
 
 
 
24.1
Power of Attorney (included on signature page).
 
X
 
 
 
 
 
 
99.1
 
 
 
S-4
(Exhibit 10.47)
 
333-221592
 
11/15/2017
99.2
 
 
 
8-K
(Exhibit 10.2)
 
001-36754
 
06/05/2019

Item 9. Undertakings.
1.     Item 512(a) of Regulation S-K . The undersigned Registrant hereby undertakes:
(1)    To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)    To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)    To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(iii)    To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
provided, however,  that paragraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

(2)    That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3)    To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

2.     Item 512(b) of Regulation S-K . The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial  bona fide  offering thereof.






3.     Item 512(h) of Regulation S-K . Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.





SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of San Diego, California, on this 6th day of June, 2019.

EVOFEM BIOSCIENCES, INC.
By:
/s/ Saundra Pelletier
Name:
Saundra Pelletier
Title:
President and Chief Executive Officer

POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Saundra Pelletier and Justin J. File, and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of Evofem Biosciences, Inc., and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to the attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the attorneys-in-fact and agents or any of each of them or their substitute may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature
 
Title
 
Date
/s/ Saundra Pelletier
 
President and Chief Executive Officer and Director
( Principal Executive Officer )
 
 
Saundra Pelletier
 
 
June 6, 2019
 
 
 
 
 
/s/ Justin J. File
 
Chief Financial Officer
( Principal Financial Officer and Principal Accounting Officer )
 
 
Justin J. File
 
 
June 6, 2019
 
 
 
 
 
/s/ Thomas Lynch
 
Chairman of the Board
 
 
Thomas Lynch
 
 
 
June 6, 2019
 
 
 
 
 
/s/ Gillian Greer, Ph.D.
 
Director
 
 
Gillian Greer, Ph.D.
 
 
 
June 6, 2019
 
 
 
 
 
/s/ William Hall, Ph.D.
 
Director
 
 
William Hall, Ph.D., M.D.
 
 
 
June 6, 2019
 
 
 
 
 
/s/ Kim P. Kamdar, Ph.D.
 
Director
 
 
Kim P. Kamdar, Ph.D.
 
 
 
June 6, 2019
 
 
 
 
 
/s/Tony O’Brien
 
Director
 
 
Tony O’Brien
 
 
 
June 6, 2019
 
 
 
 
 
/s/ Colin Rutherford
 
Director
 
 
Colin Rutherford
 
 
 
June 6, 2019


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