EX-10.58





 Exhibit 10.58 

FIRST AMENDMENT TO 

SERIES D PREFERRED STOCK PURCHASE AGREEMENT 

This FIRST AMENDMENT TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT (this “Amendment”) is made and entered into
as of July 28, 2017, by and among Evofem Biosciences, Inc. (f/k/a Evofem Holdings, Inc.), a Delaware corporation (the “Company”) and Woodford Investment Management Limited, as agent for and on behalf of each of
Woodford Patient Capital Trust Plc, CF Woodford Equity Income Fund, a sub fund of CF Woodford Investment Fund, and Omnis Income & Growth Fund, a sub fund of Omnis Portfolio Investments ICVC (“WIM”), and amends that certain
Series D Preferred Stock Purchase Agreement (as amended, the “Purchase Agreement”), dated as of July 13, 2016, by and between the Company and WIM. The Company and WIM are sometimes referred to herein together as the
“Parties.” 
 RECITALS 

WHEREAS, the Parties desire to amend the Purchase Agreement, pursuant to Section 4.9 thereof, to (i) increase the number of
shares of Series D Preferred Stock and warrants to purchase capital stock of the Company issuable by the Company pursuant to the Purchase Agreement from an aggregate value of Thirty Million Dollars ($30,000,000) of Series D Preferred Stock to an
aggregate value of Forty Million Dollars ($40,000,000) of Series D Preferred Stock, (ii) provide for the Company to have the right to request additional investment from the existing holders of Series D Preferred Stock and (iii) make
certain other changes as set forth herein; and 
 WHEREAS, WIM holds one hundred percent (100%) of the shares of Series D Preferred
Stock of the Company currently outstanding. 
 NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged and agreed, the Parties hereby agree as follows: 
 AGREEMENT 

1.    Amendment of Recitals. The Recitals of the Purchase Agreement are hereby amended and restated in their
entirety as follows: 
 “A.    The Board of Directors of the Company has determined that it is in
the best interests of the Company and its stockholders to issue and sell Series D Preferred Stock of the Company up to an aggregate value of Forty Million Dollars ($40,000,000). 

B.    Each Purchaser desires to purchase a portion of such amount on the terms and conditions set forth in
the Restated Certificate. As used herein, the term “Restated Certificate” shall mean (i) prior to the date hereof, the Company’s Second Amended and Restated Certificate of Incorporation as filed with the Secretary of State of
Delaware on July 15, 2016, (ii) on and following the date hereof, the Company’s Third Amended and Restated Certificate of Incorporation as filed with the Secretary of State of Delaware on July 28, 2017.” 

2.    Amendment of Section 1.1. Section 1.1 of the Purchase Agreement
is hereby amended and restated in its entirety as follows: 
 “1.1    Issuance and Sale of Series
D Preferred Stock. Subject to the terms and conditions of this Agreement, at each Closing and each Additional Closing (each as defined herein), each Purchaser agrees to purchase, and the Company agrees to issue and sell to such













 
Purchaser, the number of shares of Series D Preferred Stock for the aggregate purchase price set forth opposite such Purchaser’s name in the Schedule of Purchasers with respect to the
applicable Closing at a purchase price of $500,000.00 per share. The Series D Preferred Stock will automatically convert into shares of capital stock of the Company having the same rights, preferences and privileges as the security the Company
issues and sells in its next equity financing in accordance with the terms of the Restated Certificate (the equity financing, the “Next Equity Financing” and the securities, the “Next Equity Securities”, it being
understood that the liquidation preference per share of such Next Equity Securities issued to each Purchaser shall be equal to the conversion price per share attributable to such conversion (and not the price per share paid by the new investors in
the Next Equity Financing (the “New Investors”)). 
 3.    Amendment of
Section 1.2. Section 1.2 of the Purchase Agreement is hereby amended and restated in its entirety as follows: 

“1.2    Warrant to Purchase Next Equity Securities. For consideration of $1.00, for which the Company hereby
confirms receipt, the Company hereby agrees to issue to each Purchaser a warrant to purchase up to that number of Next Equity Securities equal to (a) seventy-five percent (75%) of the purchase price paid for the Series D Preferred Stock issued
to such Purchaser hereunder, divided by (b) the per share price of the Next Equity Securities issued to the New Investors in such Next Equity Financing, in the form attached hereto as Exhibit C.” 

4.    Section 1.3.3. A new Section 1.3.3 of the Purchase Agreement is hereby inserted following
Section 1.3.2 as follows: 
 “1.3.3    Additional Closings. The Company may, until the
earlier of the closing of the Next Equity Financing or December 31, 2017, request that the Purchasers purchase up to an additional Ten Million Dollars ($10,000,000) in value of Series D Preferred Stock in Two Million Five Hundred Thousand
Dollar ($2,500,000) increments. Any such request shall be delivered in writing to WIM, and such requested amount shall be allocated in WIM’s discretion among the Purchasers who then hold Series D Preferred Stock (the “Call
Notice”). Upon delivery of a Call Notice, WIM (or the Purchasers designated by WIM) may, in WIM’s or such Purchaser’s sole discretion, purchase that number of shares of Series D Preferred Stock set forth in the Call Notice (up to
a total aggregate of Ten Million Dollars ($10,000,000) in value of Series D Preferred Stock in all such Call Notices). An additional closing shall occur on the date that is ten (10) business days after the date of the Call Notice, or such later
date as the Company may designate, in its sole discretion (each such closing, an “Additional Closing”). Any such sale and issuance of Series D Preferred Stock in an Additional Closing shall be on the same terms and conditions
as those contained herein. After each Additional Closing, the Schedule of Purchasers shall be amended to reflect the number of shares of Series D Preferred Stock purchased by each Purchaser upon such Additional Closing and the date of such
Additional Closing. At each Additional Closing, each Purchaser purchasing shares of Series D Preferred Stock in such Additional Closing shall deliver to the Company, by check or wire transfer of immediately available funds, the amount indicated in
the Call Notice, and the Company shall deliver to each such Purchaser an originally executed stock certificate representing the shares of Series D Preferred Stock so purchased. 

5.    Amendment of Section 2.2. The first sentence of Section 2.2 of
the Purchase Agreement is hereby amended and restated as follows: 
 “All corporate action on the part of the Company, its officers,
directors, and stockholders necessary for the authorization, execution, and delivery of this Agreement, the performance of all obligations of the Company hereunder, and the authorization, issuance (or reservation for


  
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issuance), and delivery of the Series D Preferred Stock (collectively, the “Securities”) has been taken or will be taken prior to the Closing or Additional Closing, as
applicable.” 
 6.    Amendment of Section 4.1. Section 4.1 is
hereby amended and restated in its entirety as follows: 
 “4.1    Assignment. Upon any assignment of this
Agreement (including any assignment of the rights set forth in Section 1.3.3 of this Agreement), the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto. Any assignment shall be subject to (i) the assignee’s agreement in writing to be subject to the applicable terms of this Agreement; and (ii) compliance with all applicable state and federal securities laws
(including the delivery of legal opinions reasonably satisfactory to the Company, if such are reasonably requested by the Company); provided, however, that at any time prior to the closing of the Next Equity Financing, each Purchaser acknowledges
and agrees that the shares of Series D Preferred Stock purchased by such Purchaser, any rights to participate in an Additional Closing set forth in Section 1.3.3 of this Agreement held by such Purchaser in connection with
its purchase of Series D Preferred Stock, and the warrant issued to such Purchaser pursuant to the terms of Section 1.2 of this Agreement may only be transferred by such Purchaser collectively as a single unit.” 

7.    Amendment of Section 4.6. The reference to “Evofem Holdings,
Inc.” in Section 4.6 of the Purchase Agreement is hereby deleted and replaced with “Evofem Biosciences, Inc.” and the reference to “K&L Gates LLP” and associated address are deleted and replaced with: 

“Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 

Attn: Adam C. Lenain 
 3580 Carmel
Mountain Road, Suite 300 
 San Diego, CA 92130” 

8.    Amendment of Section 4.8. Section 4.8 of the Purchase Agreement
is hereby amended and restated in its entirety as follows:  
 “4.8    Fees and
Expenses. The Company will reimburse WIM, for reasonable fees and expenses of Mishcon de Reya LLP, counsel for WIM, incurred in connection with the transactions contemplated by this Agreement (i) with respect to the First Closing, in an
amount not to exceed, in the aggregate, Eighty Thousand British Pounds (£80,000, excluding VAT and out of pocket costs), and (ii) with respect to the Additional Closing occurring on or about July 28, 2017, in an amount not to exceed
Twenty Thousand British Pounds (£20,000, excluding VAT and out of pocket costs). In furtherance of the foregoing, WIM may deduct such amounts from the proceeds deliverable pursuant to Sections 1.3.1 and 1.3.3 hereof, respectively.” 

9.    Amendment of Section 4.11. Section 4.11 of the Purchase
Agreement is hereby amended and restated in its entirety as follows:  

“4.11    Market Stand Off. In connection with the IPO of the Common Stock, each Purchaser
hereby agrees that such Purchaser shall not sell or otherwise transfer or dispose of any of the Company’s securities held by such Purchaser (other than those included in the registration at issue, if any) for a period specified by the
representative of the underwriters of Common Stock not to exceed one hundred eighty (180) days following the effective date of the registration statement for such initial public offering unless otherwise approved in writing by the Company;
provided that such Purchaser shall not be subject to such lock-up unless the officers and directors 

  
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of the Company are also bound by similar restrictions. Each Purchaser agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter which
are consistent with the foregoing or which are necessary to give further effect thereto. The Company may impose stop transfer instructions with respect to the shares of Common Stock (or other securities) subject to the foregoing restriction until
the end of said period.” 
 10.    Amendment of Section 4. A new
Section 4.12 of the Purchase Agreement is hereby inserted following Section 4.11 as follows: 

“(d)     WIM Obligations. WIM will not be obliged to comply with any provision of this
Agreement if so complying would result in WIM breaching any applicable law or regulation (to be determined by the Investor in its sole discretion) provided that WIM will use reasonable endeavours to procure that any such breach is avoided. If, by
entering into any provision of this Agreement, WIM would be in breach of any applicable law or regulation (to be determined by WIM in its sole discretion), that provision will be treated by the parties as void ab initio and will be severed from this
Agreement. Notwithstanding that severance, the other provisions of this Agreement and the remainder (if any) of the relevant provision will continue to be fully effective.” 

11.    Amendment of Exhibit A. Exhibit A of the Purchase Agreement is hereby amended and restated in its
entirety as follows: 
 SCHEDULE OF PURCHASERS 

 

					
	Purchaser	  	 Investment Amount at First

Closing and Number of Shares

of Series D Preferred Stock to

be issued therefor
	  	 Investment Amount at

Subsequent Closing and Number

of Shares of Series D Preferred

Stock to be issued therefor

	 WIM acting as agent for and on behalf of CF Woodford Equity Income Fund, a sub fund of CF Woodford
Investment Fund
	  	 $29,500,000

for fifty-nine (59) shares of

Series D Preferred Stock(1)
	  	—  
			
	 WIM acting as agent for and on behalf of Omnis Income & Growth Fund, a sub-fund of Omnis Portfolio Investments ICVC
	  	 $500,000

for one (1) share of
 Series D
Preferred Stock
	  	 $500,000

for one (1) share of
 Series D
Preferred Stock

			
	 WIM acting as agent for and on behalf of Woodford Patient Capital Trust PLC
	  	—  	  	$7,000,000 for fourteen (14) shares of Series D Preferred Stock
		  	  
	  	  

	 TOTAL:
	  	$30,000,000	  	$7,500,000

  

	(1)	$5,000,000 of such investment amount consists of forgiveness of indebtedness relating to the cancellation of the Promissory Note. 


  
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 12.    Amendment of Definition. The definition of
“Company” is hereby amended and restated in its entirety to read as follows: 
 ““Company” Evofem
Biosciences, Inc. (f/k/a Evofem Holdings, Inc.), a Delaware corporation.” 
 13.    Amendment of
Section 7 of the Warrant Attached as Exhibit C to the Purchase Agreement and addition of new Section 11(d) to the Warrant Attached as Exhibit C to the Purchase Agreement.
Section 7 of the Warrant attached as Exhibit C to the Purchase Agreement are hereby amended and restated in their entirety as follows:  

“7.    Transferability and Negotiability of Warrant. This Warrant may be assigned
or transferred, in whole or in part, without the prior written consent of the Company, subject to compliance with all applicable securities laws; provided, however, that at any time prior to the closing of the Next Equity Financing, each Holder
acknowledges and agrees that the shares of Series D Preferred Stock purchased by such Holder pursuant to the Purchase Agreement, any rights to participate in an Additional Closing set forth in Section 1.3.3 of the Purchaser
Agreement held by such Holder in connection with its purchase of Series D Preferred Stock, and this Warrant may only be transferred by such Holder collectively as a single unit. Subject to the terms of this Section 7, it is expressly understood
that the Holder may transfer all or a portion of this Warrant to an affiliate.” 
 A new Section 11(d) of the Warrant is hereby inserted following
Section 11(c) of the Warrant as follows: 
 “(d)     WIM Obligations. WIM will not be obliged to
comply with any provision of this Warrant if so complying would result in WIM breaching any applicable law or regulation (to be determined by the Investor in its sole discretion) provided that WIM will use reasonable endeavours to procure that any
such breach is avoided. If, by entering into any provision of this Warrant, WIM would be in breach of any applicable law or regulation (to be determined by WIM in its sole discretion), that provision will be treated by the parties as void ab initio
and will be severed from this Warrant. Notwithstanding that severance, the other provisions of this Warrant and the remainder (if any) of the relevant provision will continue to be fully effective.” 

14.    Amendment and Ratification. The parties agree that the Purchase Agreement is hereby amended in
accordance with the foregoing provisions of this Amendment. Except as specifically amended hereby, all terms, conditions, covenants, representations and warranties contained in the Purchase Agreement shall remain in full force and effect, and shall
be binding upon each party to the Purchase Agreement. 
 15.    Governing Law. This Amendment, and any
disputes arising under this Amendment, shall be governed and construed under the laws of the State of Delaware, without giving effect to any conflict of laws therein. 

16.    Titles and Subtitles. The titles and subtitles used in this Amendment are used for convenience and
ease of reference only, and will not in any manner influence the construction or interpretation of any provision of this Amendment. 

17.    Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute but one and the same instrument. This Amendment may be executed on signature pages exchanged by facsimile or electronic mail, which copies shall be equally as effective as delivery of an
original executed counterpart of this Amendment. 

  
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 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date first above written. 
  

			
	EVOFEM BIOSCIENCES, INC.
		
	By:	 	 /s/ Jay File

	Name:	 	Jay File
	Title:	 	Chief Financial Officer



  
 SIGNATURE
PAGE TO FIRST AMENDMENT TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT 













 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date first above written. 
  

			
	Woodford Investment Management Limited, as agent for and on behalf of CF Woodford Equity Income Fund, a sub fund of CF Woodford Investment Fund
		
	By:	 	 /s/ Chris Martin

	Name:	 	Chris Martin
	Title:	 	Authorised Signatory
	
	Woodford Investment Management Limited, as agent for and on behalf of Omnis Income & Growth Fund, a sub fund of Omnis Portfolio Investments ICVC
		
	By:	 	 /s/ Chris Martin

	Name:	 	Chris Martin
	Title:	 	Authorised Signatory
	
	Woodford Investment Management Limited, as agent for and on behalf of Woodford Patient Capital Trust Plc
		
	By:	 	 /s/ Chris Martin

	Name:	 	Chris Martin
	Title:	 	Authorised Signatory



  
 SIGNATURE
PAGE TO FIRST AMENDMENT TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT