Form 8-K - Current report

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): September 14, 2023

EVOFEM BIOSCIENCES, INC.

(Exact name of registrant as specified in its charter)

Delaware	001-36754	20-8527075
(State or other jurisdiction	(Commission	(I.R.S. Employer
of incorporation)	File Number)	Identification No.)

7770 Regents Road, Suite 113-618

San Diego, California 92122

(Address of principal executive offices)

(858) 550-1900

(Registrant’s telephone number, including area code)

N/A

(Former name or former address, if changed since last report)

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 exchange on which registered
Common Stock, par value $0.0001 per share		EVFM		OTCQB

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). 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. ☐

Item 5.03.

Amendment to Certificate of Incorporation or Bylaws; Change in Fiscal Year

Evofem Biosciences, Inc. (the “Company”) held its Annual Meeting of Stockholders on September 14, 2023 (the “Annual Meeting”). At the Annual Meeting, the Company’s stockholders approved a resolution to amend the Company’s existing Amended and Restated Certificate of Incorporation (“Certificate”). The Company’s stockholders approved: (i) an amendment to the Certificate to increase the total number of common shares authorized for issuance by the Company to 3,000,000.000. Detailed descriptions of the amendments to the Certificate are contained in the definitive proxy statement for the Annual Meeting, filed with the Securities and Exchange Commission on August 29, 2023.

The Board previously approved the amendment to the Certificate, subject to and conditioned upon stockholder approval at the Annual Meeting. Following stockholder approval of the amendment to the Certificate at the Annual Meeting, the Company prepared an Amended and Restated Certificate of Incorporation to reflect the amendment. The Amended and Restated Certificate of Incorporation is effective as of September 15, 2023. A copy of the Amended and Restated Certificate of Incorporation is attached hereto as Exhibit 3.1.

The descriptions of the amendments to the Certificate contained herein are qualified in their entirety by reference to the full text of the Amended and Restated Certificate of Incorporation attached hereto and incorporated by reference herein.

Item 5.07.

Submission of Matters to a Vote of Security Holders.

The Company’s Annual Meeting was held on September 14, 2023 at 8:00 a.m. Pacific Daylight Time at the offices of the Company’s outside counsel, Procopio, Cory, Hargreaves & Savitch LLP, at 12544 High Bluff Drive, Suite 400, San Diego, California 92130 pursuant to a definitive notice and proxy statement filed with the Securities and Exchange Commission on August 29, 2023 (the “Definitive Proxy”). Of the Company’s 8,560,209 eligible votes as of August 7, 2023 (the “Record Date”), 5,011,486 votes (approximately 58.6% of the total eligible votes) were represented by proxy or in person, which constituted a quorum for the purposes of the Annual Meeting. Approximately 13% of eligible votes, present in person or represented by proxy, were from holders of the Company’s Common Stock. All holders of the Company’s 1,800 shares of series E-1 convertible preferred stock issued and outstanding (and eligible to vote on an as-converted basis) as of the Record Date were present in person or represented by proxy.

Each of the matters set forth below is described in detail in the Company’s Definitive Proxy.

The following is a summary of the proposals voted on at the Annual Meeting, including the number of votes cast for, against, and the number of votes withheld and broker non-votes, with respect to each proposal.

Proposal 1

Election of the following nominee as a Class III director of the company, to serve a three-year term until the 2026 Annual Meeting of Stockholders and until her successor is duly elected and qualified.

		Votes For				Votes Against				Votes Withheld				Broker Non-Vote
Saundra Pelletier			4,821,109				-				190,377				-

Proposal 2

Approval, on a non-binding advisory basis, of the compensation of our named executive officers.

		Votes For				Votes Against				Votes Withheld				Broker Non-Vote
			4,754,413				185,842				71,231				-

Proposal 3

Approval of the amendment unanimously approved by the Company’s board of directors to the Company’s Restated Certificate to authorize an increase in the total number of common shares authorized to 3,000,000,000.

		Votes For				Votes Against				Votes Withheld				Broker Non-Vote
			4,722,280				271,079				18,127				-

Proposal 4

Ratification of the appointment of BPM LLP as the Company’s Independent Registered Public Accounting firm for the year ending December 31, 2023.

		Votes For				Votes Against				Votes Withheld				Broker Non-Vote
			4,943,298				34,100				34,088				-

Proposal 5

Authorization of the Company’s board of directors, in its discretion, to adjourn the Annual Meeting to another place, or a later date or dates, if necessary or appropriate, to solicit additional proxies in favor of the proposals listed above at the time of the Annual Meeting.

		Votes For				Votes Against				Votes Withheld				Broker Non-Vote
			4,806,992				182,796				21,698				-

Item 9.01.

Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.		Description
3.1		Amended and Restated Certificate of Incorporation of Evofem Biosciences, Inc. dated September 14, 2023.
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: September 15, 2023	By:	/s/Saundra Pelletier
		Saundra Pelletier
		Chief Executive Officer

Exhibit 3.1

CERTIFICATE OF AMENDMENT

TO THE

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

EVOFEM BIOSCIENCES, Inc.

Evofem Biosciences, Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies that:

FIRST: The name of this Corporation is Evofem Biosciences, Inc.

SECOND: That the Board of Directors of the Corporation, acting in accordance with the provisions of Sections 141 and 242 of the DGCL, duly adopted the resolutions approving the amendment to the Amended and Restated Certificate of Incorporation and declared that said amendment to be advisable and in the best interests of the Corporation. The resolutions provide that the Amended and Restated Certificate of Incorporation be further amended as set forth below.

THIRD: The Amended and Restated Certificate of Incorporation is hereby amended by deleting in its entirety the first paragraph of Article IV thereof and inserting the following in lieu thereof:

“The total number of shares of all classes of stock which the Corporation shall have authority to issue is 3,005,000,000 shares, consisting of (a) 3,000,000,000 shares of Common Stock, $0.0001 par value per share (the “Common Stock”) and (b) 5,000,000 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”).”

FOURTH: That thereafter, pursuant to resolution of its Board of Directors, at the annual meeting of the stockholders of the Corporation was duly called and held, upon notice in accordance with Section 222 of the DGCL, at which annual meeting the necessary number of shares as required by applicable law were voted in favor of the amendment, and such amendment was duly adopted in accordance with the provisions of Sections 222 and 242 of the DGCL.

FIFTH: The foregoing amendment shall be effective upon the Effective Time and filing of this Certificate of Amendment with the Secretary of State of the State of Delaware.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by a duly authorized officer this 14^th day of September, 2023.

	Evofem Biosciences, Inc.

	By:	/s/ Saundra Pelletier
	Name:	Saundra Pelletier
	Title:	Chief Executive Officer

Cover	Sep. 14, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Sep. 14, 2023
Current Fiscal Year End Date	--12-31
Entity File Number	001-36754
Entity Registrant Name	EVOFEM BIOSCIENCES, INC.
Entity Central Index Key	0001618835
Entity Tax Identification Number	20-8527075
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	7770 Regents Road
Entity Address, Address Line Two	Suite 113-618
Entity Address, City or Town	San Diego
Entity Address, State or Province	CA
Entity Address, Postal Zip Code	92122
City Area Code	(858)
Local Phone Number	550-1900
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.0001 per share
Trading Symbol	EVFM
Entity Emerging Growth Company	false