
8			Evofem Biosciences, Inc. \| 2023 Proxy Statement

~~SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT~~Security Ownership of Certain Beneficial Owners and Management

Security Ownership of Certain Beneficial Owners and Management

The following table sets forth certain information concerning the ownership or voting control of our common stock as of ~~October 28, 2021,~~January 18, 2023, by (i) those persons who are known to us to be the beneficial owner(s) of more than five percent of our common stock, (ii) each of our directors and named executive officers and (iii) all of our directors and named executive officers as a group. ~~Percentage~~

As of ~~ownership is based on 163,144,964~~January 18, 2023, 137,598,285 shares of common stock ~~outstanding on October 28, 2021.~~

and 70 shares of Series D Non-Convertible Preferred Stock were issued and outstanding. The holders of the Series D Non-Convertible Preferred Shares are entitled to vote together with the holders of our common stock only to approve a reverse split. After a reverse split, if approved by the majority of the holders entitled to vote, we are required to redeem each share of the Series D Non-Convertible Preferred Shares at $1.00 per share. The Series D Non-Convertible Preferred Shares carry no other voting, dividend, distribution or other rights.

The number of shares beneficially owned by each entity, person, director or executive officer is determined in accordance with the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. ~~Beneficial ownership is determined in accordance~~In the cases of holders who are not directors, director nominees, and named executive officers, Schedules 13G or 13D filed with the SEC (and, consequently, ownership reflected here) often reflect holdings as of a date prior to January 18, 2023. Under such rules, ofbeneficial ownership generally includes any shares over which the ~~SEC and includes~~individual has sole or shared voting power or investment power ~~with respect~~as well as any shares that the individual has the right to ~~the securities. We deem shares of common stock that may be acquired by an individual or group~~acquire within 60 days ~~of October 28, 2021 pursuant to~~after January 18, 2023, through the exercise of stock options, warrants or other rights to be outstanding for the purpose of computing the percentage ownership of such individual or group, but those shares are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person shown in the table.rights. Unless otherwise indicated in the footnotes to this table, we believe that each of the stockholders named in this table has sole voting and investment power with respect to the shares indicated as beneficially owned. Unless otherwise noted, the address of the persons in the table below is that of the Company.

Name and Address of Beneficial Owner Shares
Beneficially
Owned Percent of Shares
Beneficially
Owned
5% Stockholders
Entity affiliated with Heights Capital Management, Inc. (1)
101 California Street, Suite 3250
San Francisco, California 94111
15,567,602 9.2 %
Directors and Named Executive Officers
William Hall, Ph.D., M.D. (2)
142,566 *
Gillian Greer, Ph.D. (3)
137,566 *
Kim Kamdar, Ph.D. (4)
159,790 *
Tony O’Brien (5)
137,566 *
Colin Rutherford (6)
158,886 *
Lisa Rarick, MD (7)
106,083 *
Saundra Pelletier (8)
2,651,923 1.6 %
Justin J. File (9)
1,073,348 *
Russell Barrans (10)
1,005,127 *
Directors and executive officers as a group (10 Persons) (11)
6,456,138 3.9 %


Name and Address of Beneficial Owner	Shares Beneficially Owned	Percent of Class Beneficially Owned
Directors and Named Executive Officers
Gillian Greer, Ph.D.(1)	15,170	*
Kim Kamdar, Ph.D.(2)	16,650	*
Tony O’Brien(3)	15,712	*
Lisa Rarick, M.D.(4)	15,016	*
Colin Rutherford(5)	16,591	*
Jenny Yip(6)	—		*
Saundra Pelletier(7)	342,697	*
Justin J. File(8)	80,104	*
Katherine Atkinson(9)	3,057	*
Directors and executive officers as a group (9 Persons)(10)	504,997	0.4 %
Holders of Greater than 5%
Keystone Capital Partners, LLC(11)	15	21.4	%
Cavalry Fund I LP(12)	5	7.1	%
Mercer Street Global Opportunity Fund, LLC(13)	20	28.6	%
Seven Knots, LLC(14)	5	7.1	%
Pinz Capital Special Opportunities Fund, LP(15)	5	7.1	%
Walleye Opportunities Master Fund(16)	10	14.3	%
Stratgyx, LLC(17)	5	7.1	%
Jim Fallon(18)	5	7.1	%
Holders of Greater than 5% as a group (8 persons)	70	100 %


*			* Includes beneficial ownership of less than 1% of the outstanding shares of Evofem’s common stock.

(1)Heights Capital Management, Inc., in its capacity as an investment manager, may be deemed to beneficially own 15,567,602 shares. Heights Capital Management, Inc. is the investment manager to CVI Investments, Inc. which beneficially owns (i) 10,000,000Consists of 15,170 shares of common stock ~~and (ii) 5,567,602 shares of common stock issuable upon~~that may be acquired by Dr. Greer pursuant to the exercise of ~~warrants exercisable~~stock options within 60 days of ~~October 28, 2021.~~January 18, 2023.

(2)Consists of (i) ~~5,000~~1,285 shares of common stock held by ~~Mr. Hall~~Dr. Kamdar and (ii) ~~137,566~~15,365 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of ~~October 28, 2021.~~January 18, 2023.

(3)Consists of ~~137,566~~(i) 542 shares of common stock held by Mr. O'Brien and (ii) 15,170 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of ~~October 28, 2021.~~January 18, 2023.


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Security Ownership of Certain Beneficial Owners and Management

(4)Consists of (i) ~~19,287~~683 shares of common stock held by Dr. ~~Kamdar~~Rarick and (ii) ~~140,503~~14,333 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of ~~October 28, 2021.~~January 18, 2023.

(5)Consists of ~~137,566~~16,591 shares of common stock that may be acquired by Mr. Rutherford pursuant to the exercise of stock options within 60 days of January 18, 2023.

(6)Ms. Yip elected to not receive stock options upon her election to the Company’s Board of Directors.

(7)Consists of (i) 186,722 shares of common stock held by Ms. Pelletier and (ii) 155,975 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of ~~October 28, 2021.~~January 18, 2023.

~~(6)~~(8)Consists of ~~158,886~~(i) 24,065 shares of common stock held by Mr. File and (ii) 56,039 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of ~~October 28, 2021.~~January 18, 2023.

~~(7)~~(9)Consists of ~~(i) 10,250 shares of common stock held by Dr. Rarick and (ii) 95,833~~3,057 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of ~~October 28, 2021.~~

~~(8)~~Consists of (i) 850,837 shares of common stock held by Ms. Pelletier and (ii) 1,801,086 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of October 28, 2021.

~~(9)~~Consists of (i) 440,388 shares of common stock held by Mr. File and (ii) 632,960 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of October 28, 2021.January 18, 2023.

(10)Consists of ~~(i) 448,833 shares of common stock held by Mr. Barrans and (ii) 556,294 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of October 28, 2021.~~

~~(11)Consists of 2,086,017~~213,297 shares of common stock held by our current executive officers and directors and (ii) ~~4,370,121~~291,700 shares of common stock that may be acquired by our current executive officers and directors pursuant to the exercise of stock options within 60 days after ~~October 28, 2021.~~January 18, 2023.

(11)Consists of 15 shares of Series D Non-Convertible Preferred Shares, with voting rights equal to 1% of the then issued and outstanding common shares entitled to vote in a shareholder action relating to a reverse split for each share of Series D Non-Convertible Preferred Stock. According to our books and records, the address of Keystone Capital Partners, LLC is 139 Fulton Street, Suite 412, New York, NY, 10038. Keystone Capital Partners, LLC is managed by RANZ Group LLC. Fredric Zaino, the Managing Member of RANZ Group LLC, may be deemed to have investment discretion and voting power over the shares held by Keystone Capital Partners LLC. RANZ Group LLC and Mr. Zaino each disclaim any beneficial ownership of these shares.

(12)Consists of 5 shares of Series D Non-Convertible Preferred Shares, with voting rights equal to 1% of the then issued and outstanding common shares entitled to vote in a shareholder action relating to a reverse split for each share of Series D Non-Convertible Preferred Stock. According to our books and records, the address of Cavalry Fund I LP is 82 E. Allendale Road, Suite 5B, Saddle River, NJ, 07458. Cavalry Fund I Management LLC, the General Partner of Cavalry Fund I LP, has discretionary authority to vote and dispose of the shares held by Cavalry Fund I LP and may be deemed to be the beneficial owner of these shares. Thomas Walsh, in his capacity as CEO of Cavalry Fund I Management LLC, may also be deemed to have investment discretion and voting power over the shares held by Cavalry Fund I LP. Cavalry Fund I LP and Mr. Walsh each disclaim any beneficial ownership of these shares.

(13)Consists of 20 shares of Series D Non-Convertible Preferred Shares, with voting rights equal to 1% of the then issued and outstanding common shares entitled to vote in a shareholder action relating to a reverse split for each share of Series D Non-Convertible Preferred Stock. According to our books and records, the address of Mercer Street Global Opportunity Fund, LLC is 1111 Brickell Ave., Suite 2920, Miami, FL, 33131. Mercer Street Global Opportunity Fund, LLC is managed by Mercer Street Capital Partners LLC, which is managed by Jonathan Juchno. Mercer Street Capital Partners LLC and Mr. Juchno may be deemed to have investment discretion and voting power over the shares held by Mercer Street Global Opportunity Fund, LLC. Mercer Street Capital Partners LLC and Mr. Juchno each disclaim any beneficial ownership of these shares.

(14)Consists of 5 shares of Series D Non-Convertible Preferred Shares, with voting rights equal to 1% of the then issued and outstanding common shares entitled to vote in a shareholder action relating to a reverse split for each share of Series D Non-Convertible Preferred Stock. According to our books and records, the address of Seven Knots, LLC is 7 Rose Avenue, Great Neck, NY, 11021. Marissa Welner, the Manager of Seven Knots, LLC, holds voting and dispositive power over the shares held by this stockholder. Ms. Welner disclaims any beneficial ownership of these shares.

(15)Consists of 5 shares of Series D Non-Convertible Preferred Shares, with voting rights equal to 1% of the then issued and outstanding common shares entitled to vote in a shareholder action relating to a reverse split for each share of Series D Non-Convertible Preferred Stock. According to our books and records, the address of Pinz Capital Special Opportunities Fund, LP is c/o Walkers Corporate Center, 27 Hospital Road, Georgetown Grand Cayman KY1-9008, Cayman Islands. Matthew Pinz, the General Partner of Pinz Capital Special Opportunities Fund, LP, holds voting and dispositive power over the shares held by Pinz Capital Special Opportunities Fund, LP. Mr. Pinz disclaims any beneficial ownership of these shares.

(16)Consists of 10 shares of Series D Non-Convertible Preferred Shares, with voting rights equal to 1% of the then issued and outstanding common shares entitled to vote in a shareholder action relating to a reverse split for each share of Series D Non-Convertible Preferred Stock. According to our books and records, the address of Walleye Opportunities Master Fund, Ltd. is c/o Walleye Capital, LLC 2800 Niagara Lane North, Plymouth, MN, 55447. Walleye Capital LLC is the investment manager of Walleye Opportunities Master Fund Ltd and may be deemed to beneficially own the shares owned by the Walleye Opportunities Master Fund Ltd. Roger Masi is a Portfolio Manager of Walleye Capital LLC and may be deemed to have voting and dispositive power over the shares owned by the Walleye Opportunities Master Fund Ltd. Walleye Capital LLC and Mr. Masi each disclaim any beneficial ownership of these shares.

(17)Consists of 5 shares of Series D Non-Convertible Preferred Shares with voting rights equal to 1% of the then issued and outstanding common shares entitled to vote in a shareholder action relating to a reverse split for each share of Series D Non-Convertible Preferred Stock. According to our books and records, the address of Stratgyx, LLC is 340 West 86th Street #9B, New York, NY, 10024. Sameer Mithal, the Manager of Stratgyx, LLC, holds voting and dispositive power over the shares held by this stockholder. Mr. Mithal disclaims any beneficial ownership of these shares.

(18)Consists of 5 shares of Series D Non-Convertible Preferred Shares with voting rights equal to 1% of the then issued and outstanding common shares entitled to vote in a shareholder action relating to a reverse split for each share of Series D Non-Convertible Preferred Stock. According to our books and records, the address of Jim Fallon is 137 West 83rd Street, Apt. 5W, New York, NY 10024.


10			Evofem Biosciences, Inc. \| 2023 Proxy Statement

PROPOSAL 1: Reverse Stock Split

~~PROPOSAL NO.~~

PROPOSAL

Reverse Stock Split

The Board believes that a reverse stock split is necessary to ensure the Company has a sufficient number of authorized shares of common stock to cover the number of common shares underlying the Company’s convertible securities on a fully-diluted basis. If we are unable to maintain a sufficient number of authorized common shares, we may default under our debt arrangements and/or we may not be able to raise sufficient capital to fund our planned operations.

Recommendation

The Board recommends a vote for the approval of the reverse stock split.

General

~~AMENDMENT OF OUR AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO INCREASE FROM 300,000,000 SHARES TO 500,000,000 SHARES THE AGGREGATE NUMBER OF SHARES OF COMMON STOCK AUTHORIZED TO BE ISSUED~~

~~Our Board has determined that it is advisable to increase~~At the Special Meeting of Stockholders, holders of our ~~authorized~~ common stock ~~from 300,000,000 shares~~and Series D Non-Convertible Preferred Stock are being asked to ~~500,000,000 shares and has voted to recommend~~approve the proposal that ~~our stockholders adopt an amendment to~~ our Amended and Restated Certificate of Incorporation, as amended (the Certificate of Incorporation), be amended to effect a reverse stock split of the issued and outstanding shares of common stock (such split to combine a number of outstanding shares of our common stock at a ratio of between 1-for-[x] and 1-for-[y], such number consisting of only whole shares, into one (1) share of common stock) (the Reverse Stock Split). No fractional shares shall be issued as a result of the reverse stock split. Instead, any stockholder who would otherwise be entitled to a fractional share of our Common Stock as a result of the reclassification shall be entitled to receive a cash payment equal to the product of such resulting fractional interest in one share of our common stock multiplied by the closing trading price of our common stock on the trading day immediately preceding the effective date of the Reverse Stock Split. The affirmative vote of a majority of the combined voting power of the outstanding shares of common stock and Series D Non-Convertible Preferred Stock, voting together as a single class as of the record date, is required to approve the Reverse Stock Split. As set forth in the Certificate of Designation of the Series D Non-Convertible Preferred Stock previously disclosed, holders of the Series D Non-Convertible Preferred Stock are only entitled to vote with respect to the Reverse Stock Split at the Special Meeting.

If approved by the stockholders, the Reverse Stock Split would become effective at a time, and at a ratio, to be designated by the Board. The Board may effect only one reverse stock split as a result of this authorization. The Board’s decision as to whether and when to effect the Reverse Stock Split will be based on a number of factors, including market conditions, existing and expected trading prices for our common stock, and the need or ability to raise capital.

Even if the stockholders approve the Reverse Stock Split, we reserve the right not to effect the Reverse Stock Split if the Board does not deem it to be in the best interests of us and our stockholders to effect the Reverse Stock Split. The Reverse Stock Split, if authorized pursuant to this resolution and if deemed by the Board to be in the best interests of us and our stockholders, will be effected, if at all, by [date], 2023. If effected, the Amendment, as more fully described below, will effect the Reverse Stock Split.

The Reverse Stock Split

The Board believes that effecting the ~~proposed increase. The full text~~reverse stock split is necessary to avoid a breach, event of default or otherwise non-compliance with the ~~proposed amendment~~Company's contractual obligations. If we are unable to maintain compliance with our various contractual obligations relating to the Company's authorized common shares, this may result in a default under our issued and outstanding debt arrangements, may cause trading in shares of our common stock to become difficult and could adversely affect our ability to raise capital when and as may be necessary to fund our planned operations.

Several of Our Existing Debt Covenants Require the Reservation of a Certain Number of Shares of Common Stock, on a Fully-


			www.evofem.com			11

PROPOSAL 1: Reverse Stock Split

Diluted Basis

We are currently authorized to issue 500,000,000 shares of common stock under our Amended and Restated Certificate of Incorporation is attached to this proxy statement as Appendix A. If approved by our stockholders, we intend to file the amendment with the Secretary of State of Delaware as soon as practicable following the special meeting, and the amendment will be effective upon this filing. If the proposal is not approved by our stockholders, our Certificate of Incorporation will continue as currently in effect.

~~Current Capital Structure~~

Incorporation. As of ~~October 28, 2021, we had 305,000,000~~January 18, 2023, of the authorized ~~shares, with 300,000,000 shares designated as~~ common stock, ~~$0.0001 par value per share, of which 163,144,964~~137,598,285 shares ~~were~~are issued and outstanding 5,000,000 shares of preferred stock, $0.0001 par value per share, of which 1,000,000 have been designated as Series A Preferred Stock, none of which are currently outstanding, 5,000 shares of Series B-1 Preferred Stock, none of which are currently outstanding, and 5,000 shares of Series B-2 Preferred Stock, all of which are outstanding. Of the remaining 136,855,036 authorized shares of common stock, 17,063,492 shares are reserved for issuance upon full conversion of the Series B-2 Convertible Preferred Stock (in accordance with the terms of the Series B-2 Preferred Stock and without regard to any conversion limitations), 18,684,393 shares are reserved for issuance upon the conversion of outstanding convertible notes, 67,767,107 shares are reserved for issuance upon the exercise of outstanding warrants, 10,454,074 shares are reserved for issuance upon the exercise of issued and outstanding equity awards, 2,728,668 shares are reserved for future issuance under our equity incentive plans and 2,120,046approximately 2.1 billion shares are reserved for issuance under pending conversions of convertible notes, rights, warrants and all other derivatives. As such, our ~~Employee Stock Purchase Plan.~~fully diluted capital structure is presently well above the amount of common stock we are authorized to issue. Therefore, until we either increase our authorized common stock, effectuate a reverse split or obtain waivers from the holders of the outstanding derivative securities both and with respect to their rights to an adequate reserve from which to receive the shares of common stock which underlie their respective securities, we are exposed to the risk of liability arising from the excess fully diluted capitalization. In addition to the dilutive effect any exercises of the derivative securities would have, in the event we are unable to obtain the requisite shareholder approval or waivers, or we are delayed in those efforts, the Company and your investment in us would be at risk. The conversion prices of the Adjuvant Notes (as amended) (defined below) and Baker Notes (defined below) may also be subject to adjustment depending on the price of issuances in future financings as described in our Form 10-Q for the period ended September 30, 2022. These adjustments would further increase the number of shares of common stock ~~issuable upon conversion~~to be reserved as a result of these adjustments. Due to the limited number of authorized shares common stock available for future issuance, we need to seek stockholder approval of the Reverse Stock Split.

In April 2020, we entered into a Securities Purchase and Security Agreement (the Baker Bros. Purchase Agreement) with certain institutional investors and their designated agent pursuant to which we issued and sold secured convertible promissory notes (the Baker Notes) in an aggregate principal amount of $25.0 million and warrants to purchase shares of our ~~Series B-2 Convertible Preferred Stock may also be greater~~common stock. The Baker Notes are secured by substantially all of our assets. In October 2020, we entered into a Securities Purchase Agreement (the Adjuvant Purchase Agreement) pursuant to which we issued and sold to certain institutional investors unsecured convertible promissory notes (the Adjuvant Notes) in ~~the event~~an aggregate principal amount of ~~certain dilutive issuances further described~~$25.0 million. In January 2022, we sold unsecured subordinate promissory notes (the January 2022 Notes) in ~~the Certificate~~an aggregate amount of ~~Rights, Preferences~~$5.9 million and ~~Privileges of the Series B-2 Convertible Preferred Stock. This leaves 18,037,256~~warrants to purchase shares of our ~~authorized~~ common ~~stock unreserved~~stock. In March 2022, we sold unsecured subordinate promissory notes (the March 2022 Notes) in an aggregate amount of $7.45 million and ~~available for future issuance.~~

~~The proposed amendment would not increase or otherwise affect~~warrants to purchase shares of our ~~authorized preferred stock, nor would it have any effect on par value. Our~~ common ~~stock is all of a single class, with equal voting, distribution, liquidation~~stock. In May 2022, the Company and ~~other rights. The additional common stock to be authorized by adoption~~investors of the January and March 2022 Notes entered into amendment ~~would have rights identical~~and exchange agreements pursuant to ~~our currently outstanding~~which the investors exchanged the January and March 2022 Notes for new unsecured subordinate promissory notes and shares of common stock. ~~Should our Board issue additional~~In May 2022, the Company also entered into amendment and exchange agreements pursuant to which shares of common stock, ~~existing stockholders would not have any preferential rights~~Series B-2 preferred stock, and Series-C preferred stock was exchanged for unsecured subordinate promissory notes and warrants. The aggregate amount of notes issued in May 2022 from these exchanges (the May 2022 Notes) was $22.3 million. The May 2022 Notes, Baker Notes and Adjuvant notes are collectively the Debt Obligations. As of July 31, 2022, approximately $74.1 million in principal and accrued interest was the aggregate amount outstanding pursuant to the Debt Obligations. In December 2022, we entered into a Securities Purchase Agreements with certain investors or the sale and issuance of senior secured convertible notes due in the aggregate original principal amount of $2,307,692 (the December Notes), warrants to purchase ~~any newly authorized~~an aggregate 46,153,847 shares of common stock ~~solely by virtue~~(December Warrants) and an aggregate 70 shares of ~~their ownership~~Series D Preferred Stock (the Preferred Shares) (collectively, the December Offering).

We are required to reserve the requisite number of shares of our common stock underlying the various convertible securities the Company has issued. Defaults under our debt obligations would likely accelerate our payment obligations under the debt obligations, cause an event of Default and ~~their percentage ownership~~have other adverse events. The failure to approve and effectuate the Reverse Stock Split to ensure adequate share reserves, could trigger an event of ~~our then outstanding common stock could be reduced. The issuance of additional shares of common stock could have~~default and other adverse everts under the ~~effect of diluting existing stockholder earnings per share, book value per share and voting power.~~

~~Background and Purpose~~terms of the ~~Amendment~~

~~The limited number of unreserved shares of common stock available for future issuance will likely~~Company’s debt obligations. Given our current financial position, these circumstances and default obligations would adversely affect our ~~ability to raise the capital needed to continue~~results of operations, impair our planned operations. We have sufficient cash and cash equivalents available to fund our operations into the first quarter of 2022. We will need additional funding to sustain our planned operations through the expected date on which we announce top line data from our Phase 3 trial of EVO100 for the prevention of chlamydia and gonorrhea in women. While it is possible that we may be able to pursue and complete capital raising transactions that do not require the issuance of additional shares of our common stock, we may find it more difficult to obtain financing to fund our ongoing operations, and any financing we are able to obtain may not be on as favorable terms to us as would a financing with the use of our common stock. An increase in the number of authorized shares of our common stock will also allow us the flexibility to issue shares of common stock for other corporate purposes, such as potential strategic partnerships, acquisitions or other strategic transactions though we currently have no commitments to do so.

~~If we are unable~~ability to raise capital when and as ~~needed~~may be necessary to fund our planned operations, weand may ~~be required~~require us to ~~curtail or~~ cease our operations ~~entirely and to proceed with a liquidation of the Company.~~entirely. In the event of a liquidation of the Company and prior to any distribution to the holders of our common stock, proceeds of approximately $119.7 million would (as of October 28, 2021) be due to the holders of our convertible notes (who also have a security interest in all of our assets) and proceeds of approximately $5 million would be due to the holders of our Series B-2 Convertible Preferred Stock. At this time,these circumstances, the holders of our common stock may not receive any value for their ~~shares~~shares.

Certain Risks of the Reverse Stock Split

General Risks

There are risks associated with the Reverse Stock Split, including that the Reverse Stock Split may not result in a ~~liquidation.~~

sustained increase in the per share price of our common stock. We cannot predict whether the Reverse Stock Split will increase the market price for our common stock on a sustained basis. The history of similar stock split combinations for companies in like circumstances is varied. There is no assurance that:

•the market price per share of our common stock after the Reverse Stock Split will rise in proportion to the reduction in the number of shares of our common stock outstanding before the Reverse Stock Split;

~~As a result,~~•if the ~~Board believes it is vital to our best interests to have sufficient additional authorized but unissued shares~~market price per share of common stock ~~available~~after the Reverse Stock Split does increase, that it will stay elevated at such level for any period of time thereafter;

•the Reverse Stock Split will result in a per share price that will attract brokers and investors who do not trade in lower priced stocks;

•our ability to provide flexibility for corporate action in the future. The Board believes that the availability of additional authorized shares of common stock for issuance from time to time in the Board’s discretion in connection with expectedconduct future financings or strategic transactions will be enhanced; and,

•the market price per share will either exceed or remain above the $0.01 minimum bid price as required by the OTCQB Venture Market, or that we will otherwise meet the requirements of OTC Markets for ~~other corporate purposes is critical both to our ability to continue our operations in~~continued inclusion for trading on the ~~near-term as well as to our long-term success and, therefore, is in the best interests~~OTCQB Venture Market.

The market price of our ~~company~~common stock will also be based on our performance and ~~our stockholders.~~

Weother factors, some of which are ~~requesting stockholder approval of an amendment~~unrelated to ~~our Amended and Restated Certificate of Incorporation (the “Charter Amendment”) to increase~~ the number of ~~authorized~~ shares outstanding. If the Reverse Stock Split is effected and the market price of our common stock ~~from 300,000,000 authorized shares to 500,000,000 authorized shares.~~

~~Effects of~~declines, the ~~Amendment~~

~~If the proposed amendment~~percentage decline as an absolute number and as a percentage of our ~~Certificate~~overall market capitalization may be greater than would occur in the absence of ~~Incorporation is approved,~~a Reverse Stock Split. Furthermore, the liquidity of our common stock could be adversely affected by the reduced number of ~~authorized~~ shares ~~of common stock of our Company will~~that would be ~~increased from 300,000,000 to 500,000,000. Should we need additional authorized shares of capital stock in~~outstanding after the ~~future, we would need to seek stockholder approval for such an increase.~~Reverse Stock Split.

~~Potential Anti-takeover Effects~~


12			Evofem Biosciences, Inc. \| 2023 Proxy Statement

PROPOSAL 1: Reverse Stock Split

~~Since this amendment will provide that the~~The total number of authorized shares of common stock will not be ~~500,000,000,~~reduced in accordance with the ~~amendment, if effected,~~exchange ratio, which may result in a significant increase in the availability of authorized shares of common stock and will be dilutive to our stockholders.

The total number of authorized shares of common stock will not be reduced in accordance with the exchange ratio, which will result in ana significant increase in the availability of authorized shares of common stock. Any additional common stock so authorized will be available for issuance by the Board of Directors for stock splits or stock dividends, acquisitions, raising additional capital, conversion of our debt into equity, or other corporate purposes, and any such issuances may be dilutive to current stockholders.

The proposed reverse stock split may decrease the liquidity of our stock.

The liquidity of our capital stock may be harmed by the proposed Reverse Stock Split given the reduced number of shares that would be outstanding after the Reverse Stock Split, particularly if the stock price does not increase as a result of the Reverse Stock Split.

The increased proportion of unissued authorized shares to issued shares may have anti-takeover effects under certain circumstances, although the Board of Directors is not implementing the Reverse Stock Split for such purpose.

The increased proportion of unissued authorized shares to issued shares may have an anti-takeover effect under certain circumstances, since the proportion allows for dilutive issuances which could prevent certain stockholders from changing the composition of the Board of Directors or render tender offers for a combination with another entity more difficult to successfully complete. The Board of Directors is not implementing the Reverse Stock Split to have any anti-takeover effects.

Principal Effects of the Reverse Stock Split

If the requisite holders approve the proposal to authorize the Board to implement the Reverse Stock Split and the Board implements the Reverse Stock Split, we will amend our Certificate of Incorporation by striking out the second paragraph of the section titled “Capital Stock” of Article IV in its entirety and by substituting in lieu thereof the following paragraph:

Upon effectiveness of this Certificate of Amendment (the Effective Time), the shares of Common Stock issued and outstanding immediately prior to the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time are reclassified into a smaller number of shares such that between and including [_____](x) and [_____](x) shares of issued Common Stock immediately prior to the Effective Time is reclassified into one (1) share of Common Stock. Notwithstanding the immediately preceding sentence, no fractional shares shall be issued as a result of the reverse stock split. Instead, any stockholder who would otherwise be entitled to a fractional share of our Common Stock as a result of the reclassification shall be entitled to receive a cash payment equal to the product of such resulting fractional interest in one share of our Common Stock multiplied by the closing trading price of our Common Stock on the trading day immediately preceding the effective date of the reverse stock split. Notwithstanding the foregoing, the Corporation shall not be obliged to issue certificates evidencing the shares of Common Stock outstanding as a result of the reverse stock split or cash in lieu of fractional shares, if any, unless and until the certificates evidencing the shares held by a holder prior to the reverse stock split are either delivered to the Corporation or its transfer agent, or the holder notifies the Corporation or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Corporation to indemnify the Corporation from any loss incurred by it in connection with such certificates.

The Reverse Stock Split will be effected simultaneously for all issued and outstanding shares of common stock, and the exchange ratio will be the same for all issued and outstanding shares of common stock. The Reverse Stock Split will affect all of our stockholders uniformly and will not affect any stockholder’s percentage ownership interests in the Company, except to the extent that cash payments are made in lieu of fractional shares. Common stock issued pursuant to the Reverse Stock Split will remain fully paid and nonassessable. The Reverse Stock Split will not affect the Company continuing to be subject to the periodic reporting requirements of the Exchange Act. Following the Reverse Stock Split, our common stock will continue to be listed on the OTCQB Venture Market, under the symbol “EVFM,” although it would receive a new CUSIP number. The Reverse Stock Split does not change the number of authorized ~~but unissued~~shares of our Preferred Stock.

By approving this Amendment, stockholders will approve the combination of any whole number of shares of common stock between and including [_____](x) and [_____](x) into one (1) share. The Amendment to be filed with the Secretary of State of the State of Delaware will include only that number determined by the Board to be in the best interests of the Company and its stockholders. The Board will not implement any amendment providing for a different split ratio.


			www.evofem.com			13

PROPOSAL 1: Reverse Stock Split

Procedure for Effecting Reverse Stock Split and Exchange of Stock Certificates

If the Amendment is approved by our stockholders, and if at such time the Board still believes that a Reverse Stock Split is in the best interests of the Company and its stockholders, the Board will determine the ratio of the Reverse Stock Split to be implemented within the range of ratios approved by the stockholders. We will file the Amendment with the Secretary of State of the State of Delaware at such time as the Board has determined the appropriate effective time for the Reverse Stock Split. The Board may delay effecting the Reverse Stock Split, if at all, until a date that is not later than [date], 2023, without re-soliciting stockholder approval. The Reverse Stock Split will become effective on the date of filing of the Amendment with the Secretary of State of the State of Delaware. Beginning on the effective date of the split, each certificate representing pre-split shares will be deemed for all corporate purposes to evidence ownership of post-split shares.

Book-Entry Shares

If the Reverse Stock Split is effected, stockholders who hold uncertificated shares (i.e., shares held in book-entry form and not represented by a physical stock certificate), either as direct or beneficial owners, will have their holdings electronically adjusted automatically by our transfer agent (and, for beneficial owners, by their brokers or banks that hold in “street name” for their benefit, as the case may be) to give effect to the Reverse Stock Split. Stockholders who hold uncertificated shares as direct owners will be sent a statement of holding from our transfer agent that indicates the number of post-Reverse Stock Split shares of our common stock owned in book-entry form.

Certificated Shares

As soon as practicable after the effective date of the split, stockholders will be notified that the Reverse Stock Split has been effected. We expect that our transfer agent will act as exchange agent for purposes of implementing the exchange of stock certificates. Holders of pre-split shares will be asked to surrender to the exchange agent certificates representing pre-split shares in exchange for certificates representing post-split shares in accordance with the procedures to be set forth in a letter of transmittal to be sent by us or our exchange agent. No new certificates will be issued to a stockholder until such stockholder has surrendered such stockholder’s outstanding certificate(s) together with the properly completed and executed letter of transmittal to the exchange agent. Any pre-split shares submitted for transfer, whether pursuant to a sale or other disposition, or otherwise, will automatically be exchanged for post-split shares. STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATE(S) AND SHOULD NOT SUBMIT ANY CERTIFICATE(S) UNTIL REQUESTED TO DO SO.

Fractional Shares

No fractional shares will be issued in connection with the Reverse Stock Split. Stockholders of record on the effective date of the split who otherwise would be entitled to receive fractional shares because they hold a number of pre-split shares not evenly divisible by the number of pre-split shares for which each post-split share is to be exchanged will, in lieu of a fractional share, be entitled upon surrender to the exchange agent of certificates representing such pre-split shares, if any, to receive payment in cash in lieu of any such resulting fractional shares of common stock, as the post-reverse split amounts of common stock will be rounded down to the nearest full share. Such cash payment in lieu of a fractional share of common stock will be calculated by multiplying such fractional interest in one share of common stock by the closing trading price of our common stock on the trading day immediately preceding the effective date of the Reverse Stock Split, and rounded to the nearest cent.

Accounting Matters

The Reverse Stock Split will not affect the common stock capital account on our balance sheet. However, because the par value of our common stock will remain unchanged on the effective date of the split, the components that make up the common stock capital account will change by offsetting amounts. The stated capital component will be reduced, and the additional paid-in capital component will be increased with the amount by which the stated capital is reduced. The per share net loss and net book value of our common stock will be increased because there will be fewer weighted average shares of common stock outstanding. Prior periods’ common stock and additional paid-in capital balances and net loss per share amounts will be restated to reflect the Reverse Stock Split.

Effect on Par Value

The Amendment will not affect the par value of our common stock, which will remain at $0.0001 per share.

No Going Private Transaction

Notwithstanding the anticipated decrease in the number of outstanding shares following the proposed Reverse Stock Split, if effected, our Board does not intend for this transaction to be the first step in a “going private transaction” within the meaning of Rule 13e-3 under the Exchange Act.


14			Evofem Biosciences, Inc. \| 2023 Proxy Statement

PROPOSAL 1: Reverse Stock Split

Potential Anti-Takeover Effect

Although the increased proportion of unissued authorized shares to issued shares could, under certain circumstances, have an anti-takeover effect ~~although this~~(for example, by permitting issuances that would dilute the stock ownership of a person seeking to effect a change in the composition of the Board or contemplating a tender offer or other transaction for the combination of the Company with another company), the Reverse Stock Split proposal is not ~~the purpose or intent~~being proposed in response to any effort of which we are aware to accumulate shares of our ~~Board. An increase~~common stock or obtain control of the Company, nor is it part of a plan by management to recommend a series of similar amendments to the Board and stockholders. Other than the Reverse Stock Split proposal, the Board does not currently contemplate recommending the adoption of any other actions that could be construed to affect the ability of third parties to take over or change control of the Company.

No Dissenters’ Rights

Under the Delaware General Corporation Law, our stockholders are not entitled to dissenters’ rights with respect to the Reverse Stock Split, and we will not independently provide stockholders with any such right.

Material United States Federal Income Tax Consequences of the Reverse Stock Split

The following is not intended as tax or legal advice. Each holder should seek advice based on his, her, their or its particular circumstances from an independent tax advisor.

The following discussion describes the anticipated material United States federal income tax consequences to “U.S. holders” (as defined below) of our capital stock relating to the Reverse Stock Split. This discussion is based upon the Internal Revenue Code of 1986, as amended (the Code), Treasury Regulations promulgated thereunder, judicial authorities, published positions of the Internal Revenue Service (IRS), and other applicable authorities, all as currently in effect and all of which are subject to change or differing interpretations (possibly with retroactive effect). We have not obtained a ruling from the IRS or an opinion of legal or tax counsel with respect to the tax consequences of the Reverse Stock Split and there can be no assurance the IRS will not challenge the statements set forth below or that a court would not sustain any such challenge. The following discussion is for information purposes only and is not intended as tax or legal advice.

For purposes of this discussion, the term “U.S. holder” means a beneficial owner of our capital stock that is for United States federal income tax purposes:

(i)an individual citizen or resident of the United States;

(ii)a corporation (or other entity treated as a corporation for United States federal income tax purposes) organized under the laws of the United States, any state or the District of Columbia;

(iii)an estate with income subject to United States federal income tax regardless of its source; or

(iv)a trust that (a) is subject to primary supervision by a United States court and for which United States persons control all substantial decisions or (b) has a valid election in effect under applicable Treasury Regulations to be treated as a United States person.

This discussion assumes that a U.S. holder holds our capital stock as a capital asset within the meaning of Code Section 1221. This discussion does not address all of the tax consequences that may be relevant to a particular stockholder or to stockholders that are subject to special treatment under United States federal income tax laws including, but not limited to, financial institutions, tax-exempt organizations, insurance companies, regulated investment companies, persons that are broker-dealers, traders in securities who elect the mark-to-market method of accounting for their securities, or stockholders holding their shares of our capital stock as part of a “straddle,” “hedge,” “conversion transaction” or other integrated transaction. In addition, this discussion does not address other United States federal taxes (such as gift or estate taxes or alternative minimum taxes), the tax consequences of the reverse stock split under state, local or foreign tax laws or certain tax reporting requirements that may be applicable with respect to the Reverse Stock Split.

If a partnership (or other entity treated as a partnership for United States federal income tax purposes) is a stockholder, the tax treatment of a partner in the partnership or any equity owner of such other entity will generally depend upon the status of the person and the activities of the partnership or other entity treated as a partnership for United States federal income tax purposes.

Tax Consequences of the Reverse Stock Split Generally

We believe that the Reverse Stock Split should qualify as a “recapitalization” under Section 368(a)(1)(E) of the Code. Accordingly:

•A U.S. holder will not recognize any gain or loss as a result of the Reverse Stock Split.

•A U.S. holder’s aggregate tax basis in his, her, their, or its post-Reverse Stock Split shares will be equal to the aggregate tax basis in the pre-reverse stock split shares exchanged therefor.

•A U.S. holder’s holding period for the post-Reverse Stock Split shares will include the period during which such stockholder held the pre-Reverse Stock Split shares surrendered in the Reverse Stock Split.


			www.evofem.com			15

PROPOSAL 1: Reverse Stock Split

Treasury Regulations promulgated under the Code provide detailed rules for allocating the tax basis and holding period of the shares of our common stock surrendered to the shares of our common stock received pursuant to the reverse stock split. Holders of shares of our common stock who acquired their shares on different dates and at different prices should consult their tax advisors regarding the allocation of the tax basis and holding period of such shares among their post-reverse stock split shares.

A U.S. holder that receives cash in lieu of a fractional share of our common stock pursuant to the Reverse Stock Split should be treated as having received the fractional share pursuant to the Reverse Stock Split and then as having transferred to the Company that fractional share in exchange for cash. As a result, a U.S. holder should generally recognize capital gain or loss in an amount equal to the difference between the amount of cash received and the portion of the U.S. holder’s tax basis in our ~~authorized~~common stock allocable to such fractional share, unless the receipt of cash is treated as having the effect of a distribution of a dividend, in which case the cash received will be treated as dividend income to the extent of the Company’s current accumulated earnings and profits as calculated for U.S. federal income tax purposes. Stockholders are urged to consult their tax advisors to determine whether receipt of cash has the effect of a distribution of a dividend. Any capital gain or loss should be long term capital gain or loss if the U.S. holder’s holding period for our common stock surrendered exceeded one year as of effective date of the Reverse Stock Split. The deductibility of capital losses is subject to limitation.

THE PRECEDING DISCUSSION IS INTENDED ONLY AS A SUMMARY OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT AND DOES NOT PURPORT TO BE A COMPLETE ANALYSIS OR DISCUSSION OF ALL POTENTIAL TAX EFFECTS RELEVANT THERETO. YOU SHOULD CONSULT YOUR OWN TAX ADVISORS AS TO THE PARTICULAR FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT IN LIGHT OF YOUR SPECIFIC CIRCUMSTANCES.

Interests of Directors and Executive Officers

Our directors and executive officers have no substantial interests, directly or indirectly, in the matters set forth in this proposal except to the extent of their ownership of shares ~~could potentially deter takeovers, including takeovers~~of our common stock.

Reservation of Right to Abandon Reverse Stock Split

We reserve the right to not file the Amendment and to abandon any reverse stock split without further action by our stockholders at any time before the effectiveness of the filing with the Secretary of the State of Delaware of the Amendment, even if the authority to effect this amendment is approved by our stockholders at the Special Meeting. By voting in favor of the Reverse Stock Split, you are expressly also authorizing the Board to delay, not proceed with, and abandon, this proposed amendment if it should so decide, in its sole discretion, that ~~our Board has determined are not~~such action is in the best ~~interest~~interests of our ~~stockholders, in that additional shares could be issued (within~~stockholders.

Vote Required and Board’s Recommendation

The affirmative vote of the ~~limits imposed by applicable law and Nasdaq) in one or more transactions that could make a change in control or takeover more difficult. The amendment could make the accomplishment~~holders of a ~~given transaction more difficult even if it is favorable to~~majority of the ~~interests~~combined voting power of ~~stockholders. For example, we could issue additional~~the outstanding shares of common stock ~~without further stockholder approval so~~and Series D Non-Convertible Preferred Stock, voting together as ~~to dilute~~a single class, having voting power outstanding on the stock ownership or voting rights of persons seeking to obtain control without our agreement. Similarly, the issuance of additional shares to certain persons allied with our management could have the effect of making it more difficult to remove our current management by diluting the stock ownership or voting rights of persons seeking to cause such removal. The amendment therefore may have the effect of discouraging unsolicited takeover attempts. By potentially discouraging initiation of any such unsolicited takeover attempts, the amendment may limit the opportunity for our stockholders to dispose of their shares at the higher price generally available in takeover attempts or that may be available under a merger proposal.

We have not proposed the increase in the number of authorized shares of common stock with the intention of using the additional authorized shares for anti-takeover purposes, but we would be able to use the additional shares to oppose a hostile takeover attempt or delay or prevent changes in our control or our management. Although the amendment has been prompted by business and financial considerations and not by the threat of any known or threatened hostile takeover attempt, stockholders should be aware that the effect of the amendment could facilitate future attempts by us to oppose changes in our control and perpetuate our management, including transactions in which the stockholders might otherwise receive a premium for their shares over then current market prices. We cannot provide assurances that any such transactions will be consummated on favorable terms or at all, that they will enhance stockholder value, or that they will not adversely affect our business or the trading price of our common stock.

~~Required Vote~~

~~The affirmative vote of majority of the common stock outstanding and entitled to vote at the Meeting~~Record Date is required to approve the ~~amendment to our Amended and Restated Certificate of Incorporation~~Amendment to effect the ~~proposed increase~~Reverse Stock Split. The holders of common stock have the right to cast one vote per share of common stock on this proposal. Each share of Series D Non-Convertible Preferred Stock shall have the right to vote in ~~our authorized shares.~~

an amount equal to 1% of the total voting power then-outstanding shares of common stock, subject to the limitation that no single holder's voting power, in the aggregate, shall exceed 9.99% of the total voting power. As an example, if a shareholder holds 5% of the total then-outstanding shares of common stock and 10 shares of the Series D Non-Convertible Preferred Stock representing 10% of the voting power of the then outstanding shares of common stock, the total aggregate voting power of this shareholder shall be 9.99%.

~~Recommendation~~

~~Our Board Recommends THAT STOCKHOLDERS~~THE BOARD RECOMMENDS A VOTE ~~FOR~~TO AUTHORIZE THE ~~APPROVAL~~BOARD IN ITS DISCRETION TO AMEND THE AMENDED AND RESTATED CERTIFICATE OF ~~The Amendment To Our Certificate Of Incorporation, And Proxies Solicited By Our Board Will Be Voted In Favor Of The Amendment Unless~~INCORPORATION, AS AMENDED, TO EFFECT A ~~Stockholder Indicates Otherwise On The Proxy.~~

REVERSE STOCK SPLIT OF THE ISSUED AND OUTSTANDING SHARES OF OUR COMMON STOCK AT [RATIO] (SUCH SPLIT TO COMBINE A NUMBER OF OUTSTANDING SHARES OF OUR COMMON STOCK BETWEEN [x] AND [y], SUCH NUMBER CONSISTING OF ONLY WHOLE SHARES, INTO ONE (1) SHARE OF OUR COMMON STOCK). PROXIES SOLICITED BY THE BOARD WILL BE VOTED IN FAVOR OF THE AMENDMENT UNLESS A STOCKHOLDER INDICATES OTHERWISE ON THE PROXY.


16			Evofem Biosciences, Inc. \| 2023 Proxy Statement

Other Matters / Stockholder Proposal

~~OTHER MATTERS~~Other Matters

The Board knows of no other business which will be presented to the Special Meeting. If any other business is properly brought before the Special Meeting, proxies will be voted in accordance with the judgment of the persons named therein. No director, executive officer or nominee for director, nor any associate of any of the foregoing, has any substantial interest, direct or indirect, by security holdings or otherwise, in any matter to be acted upon at the Meeting.

~~STOCKHOLDER PROPOSALS AND NOMINATIONS FOR DIRECTOR~~

To be considered for inclusion in the proxy statement relating to our 2022 annual meeting of stockholders, we must receive stockholder proposals (other than for director nominations) no later than November 29, 2021, which is 120 days prior to the first anniversary of the mailing date of the proxy statement for our 2021 annual meeting of stockholders. However, if the date of the 2022 annual meeting of stockholders is changed by more than 30 days from the anniversary of our 2021 annual meeting, the deadline for such proposals will be a reasonable time before we begin to print and send our proxy materials. These proposals must comply with the requirements as to form and substance established by the SEC for such proposals in order to be included in the proxy statement.

In nominating candidates for election as a director, the Nominating and Corporate Governance Committee will consider a reasonable number of candidates for director recommended by a single stockholder who has held over 0.1% of our common stock for over one year and who satisfies the notice, information and consent provisions set forth in our amended and restated bylaws and corporate governance guidelines. Stockholders who wish to recommend a candidate may do so by writing to the Nominating and Corporate Governance Committee in care of the Corporate Secretary, Evofem Biosciences, Inc., 12400 High Bluff Drive, Suite 600, San Diego, CA 92130. Our amended and restated bylaws state the procedures for a stockholder to bring a stockholder proposal or nominate an individual to serve as a director of the Board. Our amended and restated bylaws provide that advance notice of a stockholder’s proposal or nomination of an individual to serve as a director must be delivered to our Corporate Secretary at our corporate offices not earlier than the one hundred twentieth (120th) day, nor later than the close of business on the ninetieth (90th) day, prior to the anniversary of the previous year’s annual meeting of stockholders. However, our amended and restated bylaws also provide that in the event that the date of the annual meeting is advanced by more than thirty (30) days, or delayed by more than seventy (70) days, from the anniversary date of the preceding year’s annual meeting, notice must be received no earlier than the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or, if the first public announcement of the date of such annual meeting is less than one-hundred (100) days prior to the date of such annual meeting, the tenth (10th) day following the day on which the public announcement of the date of such meeting is first made. In addition to meeting the advance notice provisions mentioned above, the stockholder in its notice must provide the information required by our amended and restated bylaws to bring a stockholder proposal or nominate an individual to serve as a director of the Board.Stockholder Proposal

A copy of the full text of the provisions of our amended and restated bylaws dealing with ~~stockholder nominations and proposals~~this proposal is available to stockholders from our Corporate Secretary upon written request. ~~The Nominating and Corporate Governance Committee will use the same evaluation process for director nominees recommended by stockholders as it uses for other director nominees.~~

~~San Diego, California~~

~~November 9, 2021~~

~~Appendix A~~

~~TEXT OF AMENDMENT TO AMENDED AND RESTATED CERTIFICATE OF INCORPORATION~~

~~CERTIFICATE OF AMENDMENT~~

~~AMENDED AND RESTATED CERTIFICATE OF INCORPORATION~~

~~EVOFEM BIOSCIENCES, INC.~~

~~It is hereby certified that:~~

~~FIRST~~:~~The name of the corporation is~~ ~~Evofem Biosciences, Inc.~~ ~~(the “Corporation”).~~

~~SECOND~~:The Amended and Restated Certificate of Incorporation of the Corporation, as amended to date, is hereby further amended by striking out the first paragraph of Article IV in its entirety and by substituting in lieu of the following:

“The total number of shares of all classes of stock which the Corporation shall have authority to issue is 505,000,000 shares, consisting of (a) 500,000,000 shares of Common Stock, $0.0001 par value per share (the “Common Stock”) and (b) 5,000,000 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”).”

~~THIRD~~:The amendment of the Amended and Restated Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

~~EXECUTED, effective as of this ___ day of ________, 2021.~~


~~EVOFEM BIOSCIENCES, INC.~~

~~By:~~
	~~Saundra Pelletier~~ ~~President and Chief Executive Officer~~www.evofem.com	17

Appendix A

~~Appendix B~~


☐x			Preliminary Proxy Statement

☐			Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

x☐			Definitive Proxy Statement

☐			Definitive Additional Materials

☐			Soliciting Material Under Rule 14a-12


Important Information About the ~~Special~~Sp ecial Meeting and Voting						26
Security Ownership of Certain Beneficial Owners and Management						69
~~Proposal 1 – To Approve an Amendment to our Amended and Restated Certificate~~PROPOSAL 1: Approval of ~~Incorporation to Increase the Total Number of Shares of Common~~Reverse Stock ~~Authorized for Issuance Thereunder from 300,000,000 Shares to 500,000,000 Shares~~Split						811























Other Matters						1017
Stockholder ~~Proposals and Nominations For Director~~Proposal						1017

Appendix
Appendix A ~~Certificate of Amendment of Amended and Restated Certificate of Incorporation~~
~~Appendix B~~ Proxy Cards


			●			Approval of an amendment to the Company’s Certificate of Incorporation to effect a reverse stock split of the outstanding shares of our common stock by a ratio of not less than [__] and not more than [___] at any time on or prior to [__], with the exact ratio to be set at a whole number within this range by the Board of Directors in its sole discretion (the “Reverse Stock Split”).


~~Sincerely,~~

~~Saundra Pelletier~~
~~President and Chief Executive Officer~~


1			To approve an amendment to our Amended and Restated Certificate of Incorporation to increase the total number of shares of common stock authorized for issuance thereunder from 300,000,000 shares to 500,000,000 shares.

*~~We currently intend to hold the special meeting in person.However~~, as a result of the public health and travel concerns that our stockholders may have due to COVID-19, we may announce alternative arrangements for the meeting, which may include switching to a virtual meeting format, or changing the time, date or location of the special meeting. If we take this step, we will announce any changes in advance in a press release available on our website (~~www.evofem.com) and filed with the Securities Exchange Commission as additional proxy materials, and as otherwise required by applicable state law.~~


~~BY ORDER OF THE BOARD OF DIRECTORS~~

~~Alexander A. Fitzpatrick~~
~~Secretary~~



Proposal 1: ~~Approve Amendment to our Amended and Restated Certificate of Incorporation to Increase the Total Number of Shares of Common~~Reverse Stock ~~Authorized for Issuance Thereunder from 300,000,000 Shares to 500,000,000 Shares~~ Split						The affirmative vote of ~~the holders of~~ a majority of the combined voting power of the outstanding shares of ~~our~~ common stock ~~entitled~~and Series D Non-Convertible Preferred Stock, voting together as a single class as of the record date is required to ~~vote will be required for~~approve the approval of an amendment to our Amended and Restated Certificate of Incorporation to increase the total number of shares of common stock authorized for issuance thereunder from 300,000,000 shares to 500,000,000 shares.Reverse Stock Split. Abstentions and broker non-votes ~~if any,~~are not counted in determining the number of shares voted for or against this proposal. However, abstentions and broker non-votes will be ~~treated~~counted as ~~votes against~~entitled to vote and will, therefore, have the same effect as a vote “against” this proposal.


Name and Address of Beneficial Owner	Shares Beneficially Owned	Percent of Shares Beneficially Owned
5% Stockholders
Entity affiliated with Heights Capital Management, Inc. (1) 101 California Street, Suite 3250 San Francisco, California 94111	15,567,602	9.2	%
Directors and Named Executive Officers
William Hall, Ph.D., M.D. (2)	142,566	*
Gillian Greer, Ph.D. (3)	137,566	*
Kim Kamdar, Ph.D. (4)	159,790	*
Tony O’Brien (5)	137,566	*
Colin Rutherford (6)	158,886	*
Lisa Rarick, MD (7)	106,083	*
Saundra Pelletier (8)	2,651,923	1.6 %
Justin J. File (9)	1,073,348	*
Russell Barrans (10)	1,005,127	*
Directors and executive officers as a group (10 Persons) (11)	6,456,138	3.9	%