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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): January 30, 2024
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
1.01. Entry into a Material Definitive Agreement.
As
previously disclosed in that Current Report on Form 8-K filed by Evofem Biosciences, Inc. (the “Company”) with the Securities
and Exchange Commission (the “SEC”) on December 12, 2023, on December 11, 2023 the Company, Aditxt, Inc., a Delaware Corporation
(“Aditxt”) and Adicure, Inc., a Delaware corporation and wholly-owned subsidiary of the Parent (the “Merger Sub”),
entered into an Agreement and Plan of Merger (the “Merger Agreement”), whereby the Merger Sub will merge with and into the
Company, with the Company surviving as a wholly-owned subsidiary of Parent (the “Merger”).
As
previously disclosed in that Current Report on Form 8-K filed by the Company with the SEC on January 10, 2024, the Company, Parent and
Merger Sub entered into the first amendment to the Merger Agreement (the “First Amendment”), to change the filing date for
the Joint Proxy Statement (as defined in the Merger Agreement) to February 14, 2024.
On
January 30, 2024, the Company, Parent and Merger Sub entered into the second amendment to the Merger Agreement (the “Second Amendment”)
to amend (i) the date of the Parent Loan (as defined in the Merger Agreement) to the Company to be February 29, 2024, (ii) to change
the date by which the Company may terminate the Merger Agreement for failure to receive the Loan from Parent to be February 29, 2024,
and (iii) to change the filing date for the Joint Proxy Statement (as defined in the Merger Agreement) to April 1, 2024.
Item
1.01 of this Current Report on Form 8-K contains only a brief description of the material terms of the Second Amendment and does not
purport to be a complete description of the Second Amendment. Such description is qualified in its entirety by reference to the
full text of the Merger Agreement, First Amendment and Second Amendment, which are attached as Exhibits 2.1, 2.2, and 2.3 respectively,
to this Current Report on Form 8-K.
Important
Information About the Merger and Where to Find It
In
connection with the proposed Merger, the Company intends to file a proxy statement. The preliminary and definitive proxy statements and
other relevant documents will be sent or given to the stockholders of the Company as of the record date established for voting on the
proposed Merger and will contain important information about the proposed Merger and related matters. Before making any voting decision,
investors and security holders of the Company are urged to read, when available, the preliminary proxy statement and any amendments thereto
and, once available, the definitive proxy statement in connection with the Company’s solicitation of proxies for the meeting of
stockholders to be held to approve, among other things, the proposed Merger because these documents will contain important information
about the Company, Aditxt and the proposed Merger. When available, the definitive proxy statement will be made available to the Company’s
stockholders as of a record date to be established for voting on the proposed Merger. Aditxt stockholders will also be able to obtain
copies of the proxy statement, without charge, once available, at the SEC’s website at www.sec.gov.
Participants
in the Solicitation
The
Company and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from the
Company’s stockholders in connection with the proposed Merger. The Company’s stockholders and other interested persons may
obtain, without charge, more detailed information regarding the directors and executive officers of the Company in the Company’s
public filings. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to
the Company’s stockholders in connection with the proposed Merger will be set forth in the proxy statement for the proposed Merger
when available. Additional information regarding the interests of participants in the solicitation of proxies in connection with the
proposed Merger will be included in the proxy statement that the Company intends to file with the SEC, as described in the “Important
Information About the Merger and Where to Find It” section of this Current Report on Form 8-K.
Forward-Looking
Statements
This
Current Report on Form 8-K contains certain forward-looking statements within the meaning of the “safe harbor “provisions
under the United States Private Securities Litigation Reform Act of 1995. All statements other than statements of historical facts contained
in this Current Report on Form 8-K, including statements regarding the Company’s or Evofem’s future results of operations
and financial position are forward-looking statements. These forward-looking statements generally are identified by the words “believe,”
“project,” “expect,” “anticipate,” “estimate,” “target,” “intend,”
“strategy,” “future,” “opportunity,” “plan,” “may,” “should,”
“will,” “would,” “will be,” “will continue,” “will likely result,” and similar
expressions. These statements are based on various assumptions, whether or not identified in this Current Report on Form 8-K, and on
the current expectations of the respective management teams of the Company and Aditxt and are not predictions of actual performance.
These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied
on by an investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances
are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control
of the Company and Aditxt.
These
forward-looking statements are subject to a number of risks including, but not limited to, the following risks relating to the proposed
transactions: (1) the risk that the proposed transactions may not be completed in a timely manner or at all, which may adversely affect
the price of the Company’s securities; (2) the failure to satisfy the conditions to the Initial Closing or Secondary Closing, including
the approval by the stockholders of the Company; (3) the ability to realize the anticipated benefits of the proposed transactions; and
(4) other risks and uncertainties indicated from time to time in the Company’s public filings with the SEC. If any of these risks
materialize or the Company’s and Aditxt’s assumptions prove incorrect, actual results could differ materially from the results
implied by these forward-looking statements. You should carefully consider the risks and uncertainties described in the “Risk Factors”
section of our Annual Report December 31, 2022 filed with the SEC on April 27, 2023, Quarterly Report on Form 10-Q for the quarter ended
September 30, 2023 filed with the SEC on November 14, 2023, and any subsequent filings or other documents we filed, or will file, including
the proxy statement/prospectus, with the SEC. There may be additional risks that neither the Company nor Aditxt presently know, or that
the Company or Adtixt currently believe are immaterial, that could also cause actual results to differ from those contained in the forward-looking
statements. In addition, forward-looking statements reflect the Company’s and Aditxt’s expectations, plans or forecasts of
future events and views as of the date of this Current Report on Form 8-K. The Company and Aditxt anticipate that subsequent events and
developments will cause the Company’s and Adtixt’s assessments to change. However, while the Company and Adtixt may elect
to update these forward-looking statements at some point in the future, the Company and Adtixt specifically disclaim any obligation to
do so, except as otherwise required by law. These forward-looking statements should not be relied upon as representing the Company’s
and Adtixt’s assessments of any date subsequent to the date of this Current Report on Form 8-K. Accordingly, undue reliance should
not be placed upon the forward-looking statements.
No
Offer or Solicitation
This
Current Report on Form 8-K shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or
in respect of the proposed Merger. This Current Report on Form 8-K shall also not constitute an offer to sell or the solicitation of
an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of any securities in any state
or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of such other jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of
Section 10 of the Securities Act, or an exemption therefrom.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits
*
Furnished herewith.
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:
January 31, 2024 |
By: |
/s/
Saundra Pelletier |
| |
|
Saundra
Pelletier |
| |
|
Chief
Executive Officer |
Exhibit
2.3
THIS
SECOND AMENDMENT, dated as of January 30, 2024 (this “Amendment”), to that certain Agreement and Plan of Merger
dated as of December 11, 2023 (as amended hereby and by that First Amendment dated January 8, 2024, the “Merger Agreement”;
and all defined terms used herein that are not otherwise defined herein shall have the meanings set forth in the Merger Agreement), is
entered into by and among Aditxt, Inc., a Delaware corporation (“Parent”), Adicure, Inc., a Delaware corporation (“Merger
Sub”) and Evofem Biosciences, Inc., a Delaware corporation (the “Company”, and, together with Parent and
Merger Sub, the “Parties” and each, a “Party”).
WHEREAS,
the Parties desire to further amend the Merger Agreement as set forth herein.
NOW,
THEREFORE, in consideration for the promises contained herein and the mutual obligations of the Parties, the receipt and sufficiency
of which are hereby expressly acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
Article
1. Amendments.
Section
1.1 Section 6.10 of the Merger Agreement is hereby amended by replacing the date “January 31, 2024” with “February
29, 2024.”
Section
1.2 Section 8.1(f) of the Merger Agreement is hereby amended by replacing the date “January 31, 2024” with “February
29, 2024.”
Section
1.3 The first sentence of Section 6.5(b) of the Merger Agreement is hereby amended and restated in its entirety as follows:
“The
Company and Parent shall cooperate in preparing and shall cause to be filed with the SEC, on or before April 1, 2024, a mutually acceptable
Joint Proxy Statement relating to the matters to be submitted to the holders of Company Common Stock at the Company Shareholders Meeting
and the holders of Parent Common Stock at the Parent Shareholders Meeting, which will set forth the Merger Consideration and Exchange
Ratio as finally determined pursuant to Section 3.1, and Parent shall prepare and file with the SEC the Registration Statement (of which
the Joint Proxy Statement will be a part).”
Article
2. Miscellaneous.
Section
2.1 Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall
not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid
or unenforceable.
Section
2.2 Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Merger Agreement and, except as expressly modified and superseded by this Amendment, the terms and provisions
of the Merger Agreement are ratified and confirmed and shall continue in full force and effect. The Parties agree that the Merger Agreement
shall continue to be legal, valid, binding and enforceable in accordance with its terms.
Section
2.3 Entire Agreement. This Amendment, the Merger Agreement and such other agreements, documents and instruments referred to in
Section 9.6(a) of the Merger Agreement constitute the entire agreement among the Parties with respect to the subject matter hereof and
thereof, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject
matter.
Section
2.4 Miscellaneous. The terms and provisions of Article IX of the Merger Agreement (other than Section 9.6(a), which Section 2.3
of this Amendment above replaces for purposes of this Amendment) are incorporated herein by reference as if set forth herein and shall
apply mutatis mutandis to this Amendment.
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first set forth above.
| |
Aditxt,
Inc. |
| |
|
|
| |
By:
|
/s/
Amro Albanna |
| |
Name:
|
Amro
Albanna |
| |
Title:
|
Chief
Executive Officer |
| |
|
|
| |
Adicure,
Inc. |
| |
|
|
| |
By:
|
/s/
Amro Albanna |
| |
Name:
|
Amro
Albanna |
| |
Title:
|
Chief
Executive Officer |
| |
|
|
| |
Evofem
Biosciences, Inc. |
| |
|
|
| |
By:
|
/s/
Saundra Pelletier |
| |
Name:
|
Saundra
Pelletier |
| |
Title:
|
President
and Chief Executive Officer |
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