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):
October 3, 2023
Femasys Inc.
(Exact name of registrant as specified in its charter)
|
Delaware
|
|
001-40492
|
|
11-3713499
|
|
(State or Other Jurisdiction
of Incorporation)
|
|
(Commission File Number)
|
|
(I.R.S. Employer
Identification No.)
|
|
3950 Johns Creek Court,
Suite 100
Suwanee, Georgia
|
|
30024
|
|
(Address of Principal Executive Offices)
|
|
(Zip Code)
|
(770) 500-3910
(Registrant’s telephone number)
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:
|
☐
|
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 $0.001 per value
|
|
FEMY
|
|
The Nasdaq Stock Market LLC
|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b–2 of the
Securities Exchange Act of 1934.
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. ☒
On October 3, 2023, Femasys, Inc. (the “Company”) filed a prospectus supplement for the offer and sale of shares
(the “Shares”) of its common stock, par
value $0.001 per share (the “Common Stock”), having an aggregate offering price of up to $16,700,000, pursuant to the Equity Distribution Agreement (the “Equity Distribution Agreement”), dated July 1, 2022, with Piper
Sandler & Co. (the “Sales Agent”) under which the Company may offer and sell Shares, from time to time at its sole discretion, through its Sales Agent.
Pursuant to the Equity Distribution Agreement, sales of the Shares, will be made under the Company’s previously
filed and effective Registration Statement on Form S-3 (File No. 333-266001) and an applicable prospectus supplement, by any method that is deemed to be an “at
the market offering” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended. Subject to the terms and conditions of the Equity Distribution Agreement, the Sales Agent may sell the Shares by any method permitted by law deemed to
be an “at the market offering” as defined in Rule 415(a)(4) of the Securities Act of 1933, as amended. The Sales Agent will use commercially reasonable efforts to sell the Shares from time to time, based upon instructions from the Company
(including any price, time or size limits or other customary parameters or conditions the Company may impose).
The foregoing description of the Equity Distribution Agreement is not complete and is qualified in its entirety by reference to the full text of the
Equity Distribution Agreement, a copy of which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall
there be any offer, solicitation, or sale of the securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
The following exhibits are filed as part of this report
|
Exhibit Number
|
|
Description
|
|
|
|
Opinion of Dechert LLP
|
| |
|
|
|
|
|
Equity Purchase Agreement dated July 1, 2022, between Femasys Inc. and Piper
Sandler & Co. (incorporated by reference to Exhibit 1.2 of the Company’s Registration Statement on Form S-3 (File No. 333-266001) dated July 1, 2022)
|
| |
|
|
|
|
|
Consent of Dechert LLP (included in Exhibit 5.1)
|
| |
|
|
|
104
|
|
Cover page Interactive Data File (embedded in the cover page formatted in 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.
| |
Femasys, Inc.
|
| |
|
| |
|
|
Date: October 3, 2023
|
By:
|
/s/ Kathy Lee-Sepsick
|
| |
|
Name: Kathy Lee-Sepsick
|
| |
|
Title: Chief Executive Officer
|
Exhibit 5.1
October 3, 2023
Femasys Inc.
3950 Johns Creek Court, Suite 100
Suwanee, Georgia
Re: Prospectus Supplement to Registration Statement on Form S-3
Dear Ladies and Gentlemen:
We have acted as counsel to Femasys Inc., a Delaware
corporation (the “Company”), in connection with the issuance and sale of
issuance and sale of up to $16,700,000 of shares of the Company’s common stock, par value $0.001 per share (“Common Stock”) that may be issued and sold under the Equity Distribution Agreement, dated as of July 1, 2022, between the Company and Piper Sandler & Co. (such agreement, the “Equity Distribution Agreement”, and such shares the “Shares”) in an offering pursuant to the Registration Statement on Form S-3 (File No. 333-266001) (the “Registration Statement”), which was originally filed with the U.S. Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “Act”), on July 1, 2022, and was declared effective on
July 12, 2022, and the related prospectus contained therein, dated July 1, 2022 (the “Base Prospectus”), and the prospectus supplement relating to the Shares, dated October 3, 2023 (the “Prospectus Supplement,” and, together with the Base Prospectus, the “Prospectus”). The Company’s Base Prospectus was filed with the Commission pursuant to Rule 424(b) under the Securities Act on July 12, 2022. The Prospectus Supplement, relating to
the Shares was filed with the Commission pursuant to Rule 424(b) under the Securities Act on October 3, 2023. All of the Shares are to be sold by the Company as described
in the Registration Statement and the Prospectus.
In connection with this opinion (this “Opinion”),
we have examined originals or copies (in each case signed, certified or otherwise proven to our satisfaction to be genuine) of: (i) the Registration Statement and the Prospectus; (ii) the Company’s Eleventh Amended and Restated Certificate of
Incorporation as filed with the Secretary of State of the State of Delaware on June 22, 2021 (as amended to date); (iii) the Company’s Bylaws, as may be amended and restated from time to time; (iv) the Equity Distribution Agreement; (v) resolutions
of the board of directors of the Company, evidencing corporate action of the Company authorizing the issuance and sale of the Shares; and (vi) a certificate of an officer of the Company as to matters of fact material to this Opinion.
In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as original
documents, and the conformity to original documents of all documents submitted to us as copies, the legal capacity of natural persons who are signatories to the documents examined by us and the legal power and authority of all persons signing on
behalf of parties (other than the Company) to all documents.
We have further assumed that the Shares will be issued and sold in the manner stated in the Registration Statement and the Prospectus,
and in compliance with the applicable provisions of the Act and the rules and regulations of the Commission thereunder and the securities or blue sky laws of various states and the terms and conditions of the Equity Distribution Agreement.
Our opinions set forth herein are based solely upon the laws of the State of New York and the General Corporation Law of the State of
Delaware as in effect on the date hereof, and we express no opinion with respect to any other laws, rules or regulations (including, without limitation, the application of the securities or “Blue Sky” laws of any state to the offer and/or sale of the
Shares).
Based upon and subject to the foregoing, we are of the opinion that, as of the date hereof, the Shares have been duly authorized for
issuance by the Company and, when the Shares have been (i) duly issued and sold in accordance with the Registration Statement and the Prospectus and (ii) delivered to the purchaser or purchasers thereof against receipt by the Company of such lawful
consideration therefor in accordance with the terms of the Equity Distribution Agreement and at a price per share not less than the par value of the Common Stock, the Shares will be will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this Opinion as an exhibit to the Company’s Current Report on Form 8-K filed with the Commission on
October 3, 2023 and as an exhibit to any application under the securities or other laws of any state of the United States which relate to the offer and sale of the Shares. We further consent to the use of our name under the heading “Legal Matters” in
the Prospectus Supplement related to the Registration Statement. In giving such consent, we do not admit hereby that we come within the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations of the
Commission thereunder.
This Opinion is furnished to you in connection with the closing of the offer and sale of the Shares and is not to be used, circulated,
quoted or otherwise relied upon for any other purpose, except as expressly provided in the preceding paragraph. This Opinion is furnished as of the date hereof and we disclaim any undertaking to update this Opinion after the date hereof or to advise
you of any subsequent changes of the facts stated or assumed herein or of any subsequent changes in applicable law.
| |
Very truly yours,
|
| |
|
| |
/s/ Dechert LLP
|
| |
Dechert LLP
|