S-8

As filed with the Securities and Exchange Commission on April 5, 2024

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

Femasys Inc.

(Exact name of registrant as specified in its charter)

Delaware	11-3713499
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

3950 Johns Creek Court, Suite 100

Suwanee, Georgia 30024

(Address of principal executive offices) (Zip Code)

FEMASYS INC. 2021 EQUITY INCENTIVE PLAN

FEMASYS INC. EMPLOYEE STOCK PURCHASE PLAN

(Full title of the Plans)

Kathy Lee-Sepsick

President and Chief Executive Officer

3950 Johns Creek Court, Suite 100

Suwanee, Georgia 30024

(770) 500-3910

(Name, address, including zip code, and telephone number, including area code, of agent for service)

With a copy to:

David S. Rosenthal, Esq.

Anna Tomczyk Esq.

Dechert LLP

1095 Avenue of Americas

New York, New York 10036

(212) 698-3616

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 definition 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 ☒	Smaller reporting company ☒
	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 7(a)(2)(B) of the Securities Act. ☒

REGISTRATION OF ADDITIONAL SHARES

PURSUANT TO GENERAL INSTRUCTION E

Pursuant to General Instruction E of Form S-8, the Registrant is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”) to register 866,295 additional shares of common stock under the Femasys Inc. 2021 Equity Incentive Plan and 216,573 additional shares of common stock under the Femasys Inc. Employee Stock Purchase Plan pursuant to the provisions of those plans providing for an automatic increase in the number of shares reserved for issuance under such plans. This Registration Statement hereby incorporates by reference the contents of the Registrant’s registration statements on Form S-8 filed with the Commission on June 22, 2021 (Registration No. 333-257284), March 24, 2022 (Registration No. 333-263833) and April 5, 2023 (Registration No. 333-271139).

Item 8. Exhibits.

EXHIBIT INDEX

Exhibit Number	Exhibit Description
5.1*	Opinion of Dechert LLP.
23.1*	Consent of Dechert LLP (included in Exhibit 5.1).
23.2*	Consent of KPMG LLP.
24.1*	Power of Attorney (included on signature page).
99.1	Femasys Inc. 2021 Equity Incentive Plan, and forms of agreements thereunder (Incorporated by reference to Exhibit 10.3 of the Registrant’s Registration Statement on Form S-1 (File No. 333-256156) filed May 14, 2021).
99.2	Femasys Inc. 2021 Employee Stock Purchase Plan (Incorporated by reference to Exhibit 10.4 of the Registrant’s Registration Statement on Form S-1 (File No. 333-256156) filed May 14, 2021).
107*	Filing Fee Table

* Filed herewith

SIGNATURES

Pursuant to the requirements of the Securities Act, 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 Suwanee, State of Georgia on April 5, 2024.

FEMASYS INC.
By:	/s/ Kathy Lee-Sepsick
	Kathy Lee-Sepsick
	Chief Executive Officer and President

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Kathy Lee-Sepsick and Dov Elefant, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to sign any Registration Statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their or her substitute or substitutes, 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 held and on the dates indicated.

Signature	Title	Date
/s/ Kathy Lee-Sepsick	President, Chief Executive Officer and Director (principal executive officer)	April 5, 2024
Kathy Lee-Sepsick
/s/ Dov Elefant	Chief Financial Officer (principal financial and accounting officer)	April 5, 2024
Dov Elefant
/s/ Charles Larsen	Chair of the Board of Directors	April 5, 2024
Charles Larsen
/s/ Alistair Milnes	Director	April 5, 2024
Alistair Milnes
/s/ Joshua Silverman	Director	April 5, 2024
Joshua Silverman
/s/ Edward Uzialko, Jr.	Director	April 5, 2024
Edward Uzialko, Jr.

EX-5.1

Exhibit 5.1

April 5, 2024

Femasys Inc.

3950 Johns Creek Court, Suite 100

Suwanee, Georgia 30024

Re: REGISTRATION STATEMENT ON FORM S-8

Ladies and Gentlemen:

We have acted as special counsel to Femasys Inc. a Delaware corporation (the “Company”), in connection with the filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-8 (the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), 1,082,868  shares of its common stock, par value $0.001 per share (the “Shares”), issuable under (i) the Femasys Inc. 2021 Equity Incentive Plan and (ii) the Femasys Inc. Employee Stock Purchase Plan (collectively, as each may be amended and/or restated from time to time, the “Plans”).

This opinion (the “Opinion”) is being furnished to the Company in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement other than as expressly stated herein with respect to the Shares.

As your special counsel, we have examined such documents and such matters of fact and law that we have deemed necessary for the purpose of rendering the Opinion expressed herein. In connection with 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 Plans, (ii) the Company’s Certificate of Incorporation, as currently in effect (the “Charter”), (iii) the Company’s Bylaws, as currently in effect, and (iv) resolutions approving the corporate action of the Company authorizing the issuance and sale of the Shares.

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.

In rendering the Opinion expressed below, we have assumed that prior to the issuance of any of the Shares, there will exist under the Charter the requisite number of authorized but unissued shares of common stock. In addition, we have assumed (i) the resolutions authorizing the Company to issue the Shares in accordance with the terms and conditions of the Plans will remain in effect and unchanged at all times during which the Shares are issued by the Company and (ii) the Registration Statement, and any amendments thereto, at the time of issuance of the Shares, will continue to be effective under the Securities Act.

Based on the foregoing, we advise you that, in our opinion, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the holder and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Plans, assuming in each case that the individual issuances, grants or awards under the Plans are duly issued and granted or awarded and exercised in accordance with the requirements of law and the Plans (and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and non-assessable.

We are members of the Bar of the State of New York and the foregoing Opinion is limited to the General Corporation Law of the State of Delaware.

We hereby consent to the filing of this Opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Dechert LLP

EX-23.2

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the use of our report dated March 28, 2024, with respect to the financial statements of Femasys Inc., incorporated herein by reference.

/s/ KPMG LLP

Atlanta, Georgia

April 5, 2024

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

Femasys Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered(1)	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.001 par value per share, reserved for future issuance under the 2021 Equity Incentive Plan	Rule 457(c) and Rule 457(h)	866,295(2)	$1.55(3)	$1,342,757.25	0.00014760	$198.19
Equity	Common Stock, $0.001 par value per share, reserved for future issuance under the Employee Stock Purchase Plan	Rule 457(c) and Rule 457(h)	216,573(4)	$1.31(5)	$283,710.63	0.00014760	$41.88
Total Offering Amounts					$1,879,859.01		$240.07
Total Fee Offsets							-
Net Fee Due							$240.07

(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the registration statement on Form S-8 (the “Registration Statement”) shall also cover any additional shares of the common stock of Femasys Inc. (the “Registrant”) 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) Represents 866,295 additional shares of the Registrant’s common stock that were automatically added to the shares authorized for issuance under the Registrant’s 2021 Equity Incentive Plan (the “2021 Plan”) on January 1, 2024, pursuant to an annual “evergreen” increase provision contained in the 2021 Plan.

(3) Estimated in accordance with Rules 457(c) and (h) of the Securities Act, solely for the purpose of calculating the registration fee. The proposed maximum offering price per share of $1.55 was computed by averaging the high and low prices of a share of the Registrant’s common stock as reported on The Nasdaq Capital Market on March 28, 2024.

(4) Represents 216,573 additional shares of the Registrant’s common stock that were automatically added to the shares authorized for issuance under the Registrant’s Employee Stock Purchase Plan (the “ESPP”) on January 1, 2024, pursuant to an annual “evergreen” increase provision contained in the ESPP.

(5) Estimated in accordance with Rules 457(c) and (h) of the Securities Act, solely for the purpose of calculating the registration fee. The proposed maximum offering price per share is equal to 85% of $1.55, which was computed by averaging the high and low prices of a share of the Registrant’s common stock as reported on The Nasdaq Capital Market on March 28, 2024. Under the ESPP, the purchase price of a share of common stock is equal to 85% of the fair market value of the Registrant’s common stock on the offering date or the purchase date, whichever is less.