S-8

As filed with the Securities and Exchange Commission on March 10, 2022

Registration Statement No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

_______________________________

FORM S-8

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

_______________________________

EVOFEM BIOSCIENCES, INC.

(Exact name of registrant as specified in its charter)

_______________________________

Delaware	20-8527075
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

12400 High Bluff Drive, Suite 600

San Diego, CA 92130

(858) 550-1900

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

_______________________________

Amended and Restated 2014 Equity Incentive Plan

2019 Employee Stock Purchase Plan

(Full title of the plan)

Saundra Pelletier

President and Chief Executive Officer and Chairperson of the Board

Evofem Biosciences, Inc.

12400 High Bluff Drive, Suite 600

San Diego, CA 92130

(858) 550-1900

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

_______________________________

Copies to:

Adam C. Lenain, Esq. Melanie Ruthrauff Levy, Esq. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 3580 Carmel Mountain Road, Suite 300 San Diego, CA 92130 Tel: (858) 314-1500	Alexander A. Fitzpatrick, Esq. General Counsel Evofem Biosciences, Inc. 12400 High Bluff Drive, Suite 600 San Diego, CA 92130 Tel: (858) 550-1900
________________________________________________________________

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 the definitions 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 ý	Smaller reporting company ý
	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

    This Registration Statement registers an aggregate of (i) 2,559,103 additional shares of common stock, par value $0.0001 per share (“Common Stock”) reserved for issuance under the Evofem Bioscience, Inc.’s Amended and Restated 2014 Equity Incentive Plan (the “2014 Plan”), (ii) 2,440,897 shares reserved for issuance upon the exercise of issued and outstanding options pursuant to the 2014 Plan, and (iii) 250,000 additional shares of Common Stock reserved for issuance under the Evofem Bioscience, Inc.’s 2019 Employee Stock Purchase Plan (the “ESPP”), by operation of each plan’s “evergreen” provision. This Registration Statement registers additional securities of the same class as other securities for which Registration Statements filed on Form S-8 with the Securities and Exchange Commission (a) on November 20, 2014 (Registration No. 333-200409), March 27, 2015 (Registration No. 333-203059), June 1, 2018 (Registration No. 333-225366), June 6, 2019 (Registration No. 333-231993), March 12, 2020 (Registration No. 333-237126), May 13, 2020 (Registration No. 333-238228), and January 28, 2021 (Registration No. 333-252516) with respect to the 2014 Plan and (b) on June 6, 2019 (Registration No. 333-231991), March 12, 2020 (Registration No. 333-237126), and January 28, 2021 (Registration No. 333-252516) with respect to the ESPP, are effective. Pursuant to Instruction E of Form S-8, the information contained in the Registration Statements on Form S-8 filed with the Securities and Exchange Commission (a) on November 20, 2014 (Registration No. 333-200409), March 27, 2015 (Registration No. 333-203059), June 1, 2018 (Registration No. 333-225366), June 6, 2019 (Registration No. 333-231993), March 12, 2020 (Registration No. 333-237126), May 13, 2020 (Registration No. 333-238228), and January 28, 2021 (Registration No. 333-252516) with respect to the 2014 Plan and (b) on June 6, 2019 (Registration No. 333-231991), March 12, 2020 (Registration No. 333-237126), and January 28, 2021 (Registration No. 333-252516) with respect to the ESPP, is incorporated by reference herein.

PART II

Information Required in the Registration Statement

Item 8. Exhibits.

EXHIBIT INDEX

			Incorporated by Reference
Exhibit No.	Exhibit Title	Herewith	Form	File No.	Date Filed
4.1	Amended and Restated Certificate of Incorporation.		10-K (Exhibit 3.1)	001-36754	3/10/2022
4.2	Amended and Restated Bylaws of the Registrant.		8-K (Exhibit 3.2)	001-36754	1/17/2018
4.3	Form of Stock Certificate.		10-K (Exhibit 4.1)	001-36754	2/26/2018
5.1	Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding legality of securities being registered.	X
23.1	Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.	X
23.2	Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1).	X
24.1	Power of Attorney (included on signature page).	X
99.1 #	Amended and Restated 2014 Equity Incentive Plan.		8-K (Exhibit 10.1)	001-36754	5/12/2020
99.2 #	2019 Employee Stock Purchase Plan.		8-K (Exhibit 10.2)	001-36754	6/5/2019
107	Filing Fee Table.	X

# Indicates a management contract or compensatory plan.  

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 San Diego, State of California, on March 10, 2022.

EVOFEM BIOSCIENCES, INC.

By:	/s/ Saundra Pelletier
Name:	Saundra Pelletier
Title:	President, Chief Executive Officer and Chairperson of the Board

POWER OF ATTORNEY

    Each person whose signature appears below constitutes and appoints Saundra Pelletier and Justin J. File, and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of Evofem Biosciences, Inc., and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to the attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the attorneys-in-fact and agents or any of each of them or their substitute 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 and on the dates indicated.

Signature	Title	Date
/s/ Saundra Pelletier	President, Chief Executive Officer and Chairperson of the Board (Principal Executive Officer)	March 10, 2022
Saundra Pelletier
/s/ Justin J. File	Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	March 10, 2022
Justin J. File
/s/ Gillian Greer, Ph.D.	Director	March 10, 2022
Gillian Greer, Ph.D.
/s/ Kim P. Kamdar, Ph.D.	Director	March 10, 2022
Kim P. Kamdar, Ph.D.
/s/Tony O’Brien	Director	March 10, 2022
Tony O’Brien
/s/ Colin Rutherford	Director	March 10, 2022
Colin Rutherford
/s/ Lisa Rarick, M.D.	Director	March 10, 2022
Lisa Rarick, M.D.

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

Evofem Biosciences, 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
Fees to be Paid	Equity	Shares Reserved for Issuance Pursuant to Outstanding Options	Other(2)	2,440,897	$0.49	$1,196,039.53	$0.0000927	$110.87
	Equity	Shares Reserved for Issuance Pursuant to ESPP	Other(3)	250,000(4)	$0.50	$125,000.00	$0.0000927	$11.59
	Equity	Shares Reserved for Issuance Pursuant to the 2014 Plan	Other(3)	2,559,103(5)	$0.50	$1,279,551.50	$0.0000927	$118.61
	Total Offering Amounts				—	$2,600,591.03	—	$241.07
	Total Fees Previously Paid				—	—	—	—
	Total Fee Offsets				—	—	—	—
	Net Fee Due				—	—	—	$241.07

(1)	Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the common stock of Evofem Biosciences, Inc. (the “Registrant”) that become issuable with respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of outstanding shares of Registrant’s common stock.
(2)	Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) under the Securities Act on the basis of the weighted average exercise price of $0.49 per share (rounded up to the nearest cent).
(3)	Estimated in accordance with Rules 457(c) and 457(h) solely for purposes of calculating the registration fee on the basis of $0.50, the weighted average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Capital Market on March 3, 2022.
(4)	Represents additional shares of Registrant’s common stock reserved for future issuance under the 2019 Employee Stock Purchase Plan (the “ESPP”) as of the date of this Registration Statement by operation of the plan’s “evergreen” provisions.
(5)	Represents additional shares of Registrant’s common stock reserved for future issuance under the Amended and Restated 2014 Equity Incentive Plan (the “2014 Plan”) as of the date of this Registration Statement by operation of the plan’s “evergreen” provisions.

1

EX-5.1

Exhibit 5.1

March 10, 2022

Evofem Biosciences, Inc.

12400 High Bluff Drive, Suite 600

San Diego, California 92130

Ladies and Gentlemen:

We have acted as counsel to Evofem Biosciences, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-8 (the “Registration Statement”), pursuant to which the Company is registering the issuance under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of (i) 2,559,103 additional shares of Company’s common stock, par value $0.0001 per share (“Common Stock”), reserved for issuance under the Evofem Bioscience, Inc.’s Amended and Restated 2014 Equity Incentive Plan (the “2014 Plan”), (ii) 2,440,897 shares of Common Stock reserved for issuance pursuant to issued and outstanding options under the 2014 Plan, and (iii) 250,000 additional shares of Common Stock reserved for issuance under the Evofem Bioscience, Inc.’s 2019 Employee Stock Purchase Plan (the “ESPP”). All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement.

In connection with this opinion, we have examined the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company’s officers as we have deemed relevant; and the Registration Statement and the exhibits thereto.

In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such copies, and the truth and correctness of any representations and warranties contained therein. In addition, we have assumed that the Company will receive any required consideration in accordance with the terms of the Plan.

Our opinion expressed herein is limited to the General Corporation Law of the State of Delaware (the “DGCL”), and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or of any foreign jurisdiction.

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.

Based upon the foregoing, we are of the opinion that the Shares, when issued and delivered in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable.

We understand that you wish to file this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act, and we hereby consent thereto. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

Very truly yours,
/s/Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.	.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

EX-23

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 10, 2022, relating to the financial statements of Evofem Biosciences, Inc., appearing in the Annual Report on Form 10-K of Evofem Biosciences, Inc. for the year ended December 31, 2021.

/s/ DELOITTE & TOUCHE LLP

San Diego, CA

March 10, 2022