10/31/2024 | Press release | Distributed by Public on 10/31/2024 15:20
Item 1.01. Entry into a Material Definitive Agreement.
Support Agreement
As previously reported in that Current Report on Form 8-K dated July 18, 2024, on July 12, 2024, Evofem Biosciences, Inc. (the "Company"), Aditxt, Inc., a Delaware Corporation ("Aditxt"), and Adifem, Inc., f/k/a Adicure, Inc., a Delaware corporation and wholly-owned subsidiary of Aditxt (the "Merger Sub") entered into an Amended and Restated Merger Agreement (as amended August 16, 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 Company being the surviving company and wholly-owned subsidiary of Aditxt (the "Merger"). Between October 28 and October 30, 2024, the Company entered into support agreements (each a "Support Agreement") with some of its institutional investors (the "Investors" and each an "Investor") pursuant to which the Investors agreed (i) to vote all Subject Shares (as defined in the Support Agreement) that an Investor is entitled to vote at the time any vote to approve and adopt the A&R Merger Agreement and the Merger at any meeting of the stockholders of the Company, and at any adjournment thereof, at which the A&R Merger Agreement is submitted for consideration and vote of the stockholders of the Company, and (ii) that he or it will not vote any Subject Shares in favor of, and will vote such Subject Shares against the approval of, any Company Acquisition Proposal (as defined in the Support Agreement). Each Investor also revoked any and all previous proxies granted with respect to the Subject Shares. The Investors agreed that all shares of Company Capital Stock (as defined in the Support Agreement) that each Investor purchases, acquires the right to vote, or otherwise acquires beneficial ownership of, after the execution of the Support Agreement and prior to the Expiration Date (as defined below) shall be subject to the terms and conditions of the Support Agreement.Furthermore, the Investors agreed not to sell or transfer any of such Subject Shares until: (a) the A&R Merger Agreement shall have been terminated for any reason; (b) the Merger shall become effective in accordance with the terms and provisions of the A&R Merger Agreement; (c) the acquisition by Aditxt of all Subject Shares of the Investors, whether pursuant to the Merger or otherwise; (d) any amendment, change or waiver to the A&R Merger Agreement as in effect on the date hereof, without each Investor's consent, that (1) decreases the amount, or changes the form or timing (except with respect to extensions of time of the offer in accordance with the terms of the A&R Merger Agreement) of consideration payable to the Investors pursuant to the terms of the A&R Merger Agreement as in effect on the date hereof or (2) materially and adversely affects such Investor; or € is agreed to in writing by Aditxt and each Investor (collectively the "Expiration date").
As of the date of the Support Agreement, the Investors own collectively an aggregate of 1,468 shares of Company preferred stock, 297,316,553 shares of common stock issuable upon the conversion of convertible notes, 8,463,511 shares of common stock issuable upon exercise of warrants, and 781,154,325 shares of Company common stock issuable upon any other instrument convertible into Company common stock.
The foregoing summary of the terms and of the form of Support Agreement do not purport to be complete, and are qualified in their entirety by reference to the complete text of the form of Support Agreement, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K (this "Current Report") and incorporated herein by reference.