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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): November 19, 2024
EVOFEM
BIOSCIENCES, INC.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
001-36754 |
|
20-8527075 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
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.
Amendment
No. 4 to Merger Agreement
As
previously disclosed in that Current on Form 8-K filed by Evofem Biosciences, Inc. (the “Company”) with the Securities and
Exchange Commission (“SEC”) on July 18, 2024, on July 12, 2024 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 Amended
and Restated Agreement and Plan of Merger (as amended August 20, 2024, September 6, 2024, and October 2, 2024, the “A&R Merger
Agreement”), whereby the Merger Sub will merge with and into the Company with the Company being the surviving company
and wholly-owned subsidiary of Aditxt.
On
November 19, 2024, the Company, Aditxt and Merger Sub entered into the fourth amendment to the A&R Merger Agreement (the “Fourth
Amendment”), to amend Section 8.1(b)(ii) of the A&R Merger Agreement to change the required consummation date to January
31, 2025.
Item 1.01 of this Current
Report on Form 8-K contains only a brief description of the material terms of the Fourth Amendment and does not purport to be a complete
description of the Fourth Amendment. Such description is qualified in its entirety by reference to the full text of the form of Fourth
Amendment, which is attached as Exhibit 2.1, 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. 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 includes “forward-looking statements” within the meaning of the “safe harbor” provisions of
the Private Securities Litigation Reform Act of 1995 with respect to the proposed transaction between the Company and Aditxt, including
statements regarding the anticipated timing, completion and success of the transaction. The Company’s and Aditxt’s actual
results may differ from their expectations, estimates and projections and consequently, you should not rely on these forward-looking
statements as predictions of future events. Words such as “expect,” “estimate,” “project,” “budget,”
“forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,”
“should,” “would,” “believes,” “predicts,” “potential,” “strategy,”
“opportunity,” “continue,” and similar expressions are intended to identify such forward-looking statements.
These forward-looking statements include, without limitation, the Company’s and Aditxt’s expectations with respect to future
performance and anticipated financial impacts of the Merger, the satisfaction of the closing conditions to the Merger and the timing
of the completion of the Merger. These forward-looking statements involve significant risks and uncertainties that could cause the actual
results to differ materially from the expected results. Most of these factors are outside the Company’s and Aditxt’s control
and are difficult to predict. Factors that may cause such differences include, but are not limited to: (1) the occurrence of any
event, change or other circumstances that could give rise to the termination of the Merger Agreement; (2) the lack of a third party valuation in
determining whether the proposed transaction is fair to the Company’s stockholders from a financial point of view; (3) the
outcome of any legal proceedings that may be instituted against the Company and Aditxt following the announcement of the Merger Agreement
and the transactions contemplated therein; (4) the inability to complete the Merger, including due to failure to obtain approval
of the stockholders of the Company, or the satisfaction of other conditions to closing in the Merger Agreement; (5) the occurrence
of any event, change or other circumstance that could give rise to the termination of the Merger Agreement or could otherwise cause the
transaction to fail to close; (6) the inability to obtain or maintain the listing of Aditxt common stock on the Nasdaq following
the Merger; (7) the risk that the Merger disrupts current plans, operations, business relationships, performance and business generally
as a result of the announcement and consummation of the Merger; (8) the ability to recognize the anticipated benefits of the Merger,
which may be affected by, among other things, competition, and the ability of combined company to grow and manage growth profitably,
maintain relationships with customers and suppliers, and retain its management and key employees; (9) costs related to the merger;
(10) changes in applicable laws or regulations; (11) the ability to implement business plans, forecasts, and other expectations
after the completion of the proposed transaction, and identify and realize additional opportunities; and (12) other risks and uncertainties
indicated from time to time in the proxy statement/prospectus relating to the Merger, including those under “Risk Factors”
therein, and in the Company’s other filings with the SEC. The Company cautions that the foregoing list of factors is not exclusive.
You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors”
section of the Company’s Annual Report on Form 10-K filed with the Commission on March 23, 2024, its Quarterly Report
on Form 10-Q, filed with the SEC on November 14, 2024, and other documents filed by the Company from time to time with the SEC. These
filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially
from those contained in the forward-looking statements.
Forward-looking statements
speak only as of the date they are made. Nothing in this Current Report on Form 8-K should be regarded as a representation
by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking
statements will be achieved. The Company cautions readers not to place undue reliance upon any forward-looking statements, which speak
only as of the date made. The Company does not undertake or accept any obligation or undertaking to release publicly any updates or revisions
to any forward-looking statements to reflect any change in its expectations or any change in events, conditions or circumstances on which
any such statement is based.
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
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:
November 25, 2024 |
By: |
/s/
Saundra Pelletier |
| |
|
Saundra
Pelletier |
| |
|
Chief
Executive Officer |
Exhibit
2.1
THIS
FOURTH AMENDMENT dated as of November 19, 2024 (this “Amendment”), to that certain Amended and Restated Agreement
and Plan of Merger dated as of July 12, 2024 (as amended hereby, the “Restated Merger Agreement”), which amended and
restated in its entirety that certain Agreement and Plan of Merger dated December 11, 2023, is entered into by and among Aditxt, Inc.,
a Delaware corporation (“Parent”), Adifem, 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”), as amended by that certain First Amendment to the Restated Merger Agreement by and among the
Parties dated as of August 16, 2024, that certain Second Amendment to the Restated Merger Agreement by and among the Parties dated as
of September 6, 2024 and that certain Third Amendment to the Restated Merger Agreement by and among the Parties dated as of October 2,
2024 (the Restated Merger Agreement, as amended thereby and by this Amendment, the “Merger Agreement”). All defined
terms used herein that are not otherwise defined herein shall have the meanings set forth in the Merger Agreement.
WHEREAS,
Parent, Merger Sub and Parent mutually desire to amend the Merger Agreement as provided below.
NOW,
THEREFORE, in further consideration of 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. Amendment.
Section
2.1. Change to Section 8.1(b)(ii) of the Merger Agreement. Section 8.1(b)(ii) of the Merger Agreement is hereby amended by changing
the date “November 29, 2024” to “January 31, 2025.”
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(b) 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(b), 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: |
CEO |
| |
|
|
| |
Adifem,
Inc. |
| |
|
| |
By: |
/s/ Amro Albanna |
| |
Name: |
Amro
Albanna |
| |
Title: |
CEO |
| |
|
|
| |
Evofem
Biosciences, Inc. |
| |
|
|
| |
By: |
/s/ Saundra Pelletier |
| |
Name: |
Saundra
Pelletier |
| |
Title: |
CEO |
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Evofem Biosciences (QB) (USOTC:EVFM)
過去 株価チャート
から 11 2024 まで 12 2024
Evofem Biosciences (QB) (USOTC:EVFM)
過去 株価チャート
から 12 2023 まで 12 2024
