bbi_evofemxfirstamendmen






105931676.1      FIRST AMENDMENT TO   FORBEARANCE AGREEMENT  This First Amendment to Forbearance Agreement (this “Amendment”) is entered into as  of December 15, 2022 (the “Amendment Effective Date”) by and among Evofem Biosciences,  Inc., a Delaware corporation (the “Company”), the Guarantors identified on the signature pages  hereto (the “Guarantors” and, together with the Company being collectively referred to as the  “Loan Parties”), the Purchasers party hereto (the “Consenting Purchasers”) and Baker Bros.  Advisors LP, as agent and collateral agent for the Purchasers (in such capacity the “Designated  Agent”), and is made with reference to the Securities Purchase and Security Agreement dated as  of April 23, 2020 (the “Securities Purchase Agreement”) by and among the Company, the  Guarantors  the purchasers from time to time party thereto (each, a “Purchaser”, and collectively,  the “Purchasers”), and the Designated Agent.  RECITALS  WHEREAS, the Loan Parties, the Purchasers and the Designated Agent are party to that  certain Forbearance Agreement, dated as of September 15, 2022;   WHEREAS, (1) the Company failed to timely file its Quarterly Report on Form 10-Q in  respect of the quarter ended September 30, 2022, as required pursuant to Section 13 or 15(d) of  the Exchange Act and, such failure having persisted for 15 business days, and constitutes an Event  of Default pursuant to Section 9.1(e) of the Securities Purchase Agreement, and (2) cross-default  provisions of Other Note Agreements (as defined in the Forbearance Agreement) were potentially  trigged by the Form 10-Q Default, thereby constituting an Event of Default pursuant to Section  9.1(c) of the Securities Purchase Agreement (collectively, the “Form 10-Q Default”);  WHEREAS, by virtue of the Form 10-Q Default, the Designated Agent has the right to  accelerate payment of the Outstanding Balance per Section 9.2 of the Securities Purchase  Agreement, absent the forbearance set forth in this Amendment;  WHEREAS, the Company has requested that the Designated Agent and the Purchasers  agree to forbear during the Forbearance Period from exercising their rights and remedies as  specified herein against the Company and the other Loan Parties with respect to the Form 10-Q  Default, and that the Parties amend the Forbearance Agreement to add the Form 10-Q Default to  the list of defaults subject to the Forbearance Agreement;  WHEREAS, the Purchasers and the Designated Agent have requested that the Company  agree to modify the terms of Section 4 of the Forbearance Agreement to revise the nature of Interim  Financing to which the Purchasers are willing to consent such that such consent applies only to  financing that is pari passu with the Purchasers’ Notes, and the Company is agreeable to such  modification;  WHEREAS, pursuant to Section 10 of the Forbearance Agreement, the Forbearance  Agreement may be amended only if memorialized in a writing signed by the Purchasers and the  Designated Agent;  DocuSign Envelope ID: 97363474-8510-4378-8D43-F9149180BC9E8D E5647-99FB-41A3-9322-5FB689E0E2A6 





 






105931676.1    2    WHEREAS, pursuant to Section 12.8 of the Purchase Agreement, any term of the Purchase  Agreement, the Notes or the Warrants may be amended only with the written consent of the  Company, the Designated Agent and the Purchasers holding a majority of the outstanding balance,  in the aggregate, of all Notes issued pursuant to the Purchase Agreement (the “Requisite  Purchasers”);   WHEREAS, the undersigned Purchasers constitute the Requisite Purchasers; and  WHEREAS, the Company, the Purchasers and the Designated Agent wish to amend the  Forbearance Agreement to address the provisions set forth herein effective as of the Amendment  Effective Date.   NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are  hereby acknowledged, the parties hereto hereby agree as follows:  AGREEMENT  1. Definitions; References; Continuation of Purchase Agreement.  Unless otherwise  specified herein, each capitalized term used herein that is defined in the Purchase Agreement shall  have the meaning assigned to such term in the Purchase Agreement and each capitalized term used  herein that is defined in the Forbearance Agreement shall have the meaning assigned to such term  in the Forbearance Agreement.  Each reference to “hereof,” “hereto,” “hereunder,” “herein” and  “hereby” and each other similar reference, and each reference to “this Agreement”, the “Securities  Purchase Agreement” and each other similar reference, contained in the Purchase Agreement and  any other Transaction Document shall from and after the date hereof refer to the Purchase  Agreement as amended hereby.  Except as amended or waived hereby, all terms and provisions of  the Purchase Agreement, the Notes and the Warrants shall continue unmodified and remain in full  force and effect.  2. Amendment to Fifth Recital Clause  2.1 Amendment to Fifth Recital Clause.  Effective as of the Amendment  Effective Date, the fifth recital clause of the Forbearance Agreement is hereby stricken and  replaced with the following:    WHEREAS, the Company has requested that the Purchasers consent  to the incurrence of any additional indebtedness pari passu (but, for  the avoidance of doubt, not senior) to that of the Purchasers by the  Company following the Forbearance Effective Date (defined below)  in an aggregate principal amount not to exceed $5,000,000 (the “Pari  Interim Financing”), subject to a right of first offer granted by the  Company to the Purchasers, to provide such Pari Interim Financing;  3. Amendment to Section 4  3.1 Amendment to Section 4.  Effective as of the Amendment Effective Date,  Section 4 of the Forbearance Agreement is hereby stricken and replaced with the following:    DocuSign Envelope ID: 97363474-8510-4378-8D43-F9149180BC9E8D E5647-99FB-41A3-9322-5FB689E0E2A6 





 






105931676.1    3    SECTION 4.Consent. Notwithstanding anything to the contrary set  forth in the Securities Purchase Agreement or the other Transaction  Documents, including, without limitation, Section 8.2(a) of the  Securities Purchase Agreement, the Purchasers hereby consent to the  incurrence by the Company and its subsidiaries of Pari Interim  Financing following the Forbearance Effective Date in an aggregate  principal amount not to exceed $5,000,000. The Company will use  reasonable best efforts to obtain interim financing through the  offering and sale of equity securities and/or on an unsecured or junior  secured basis only.  With respect to a Pari Interim Financing,  Purchasers’ consent shall only be effective provided that  notwithstanding the equal priority of the liens granted on the  collateral in such Pari Interim Financing, Purchasers shall be  authorized to deal with the collateral as if Purchasers had a senior and  exclusive lien on such collateral and that participants in such Pari  Interim Financing other than Purchasers agree not to (a) contest,  protest or object to (i) any foreclosure proceeding or action or any  other exercise of other remedies or rights by Purchasers or (b) (i) file  any motion, objection or make any other appearance in any court  related to the obligations of Company under such Pari Interim  Financing or (ii) declare any default or exercise any remedy with  respect to the obligations under such Pari Interim Financing without  Purchasers prior written consent, or (c) to vote for any plan filed in  the bankruptcy case if Purchasers do not support and vote in favor of  such plan. Prior to entering into any Pari Interim Financing, the  Company shall provide the Purchasers with three (3) business days  written notice of the terms of such Pari Interim Financing, during  which time the Purchasers shall have the right to extend Pari Interim  Financing on the same terms and condition of any other proposed  third-party Pari Interim Financing.  3.2 Any prior consent by the Designated Agent or the Purchasers to subordinate  their liens or claims in any way to other indebtedness or financing, including that consent  previously included in Section 4 of the Forbearance Agreement prior to its amendment hereby, is  hereby revoked.  4. Amendment to Schedule I.  4.1 Amendment to Schedule I of the Forbearance Agreement.  Effective as of  the Amendment Effective Date, Schedule I of the Forbearance Agreement is hereby amended to  add the following (with no change to the remainder of such schedule):    Any default or Event of Default related to the failure of the Company to timely  file its Quarterly Report on Form 10-Q in respect of the quarter ended September  30, 2022, as required pursuant to Section 13 or 15(d) of the Exchange Act.  5. Miscellaneous.  DocuSign Envelope ID: 97363474-8510-4378-8D43-F9149180BC9E8D E5647-99FB-41A3-9322-5FB689E0E2A6 





 






105931676.1    4    5.1 Governing Law.  This Amendment shall be governed in all respects by and  construed in accordance with the laws of the State of New York without regard to provisions  regarding choice of laws.    5.2 Entire Agreement. This Amendment, together with the Purchase  Agreement, the Notes, the Warrants, the other Note Documents and the Exhibits and Schedules to  the Purchase Agreement and thereto (all of which are hereby expressly incorporated herein by this  reference) constitute the entire understanding and agreement between the parties with regard to the  subjects hereof and thereof.  5.3 Titles and Subtitles.  The titles of the sections and clauses of this  Amendment are for convenience of reference only and are not to be considered in construing this  Amendment.  5.4 Counterparts.  This Amendment may be executed in any number of  counterparts, each of which shall be an original, but all of which together shall constitute one  instrument.  Delivery by facsimile or e-mail of an executed counterpart of a signature page shall  be effective as delivery of an original executed counterpart.  5.5 Severability.  Should any provision of this Amendment be determined to be  illegal or unenforceable, such determination shall not affect the remaining provisions of this  Amendment.  5.6 Transaction Document.   This Amendment constitutes a “Transaction  Document” for all purposes of the Securities Purchase Agreement and the other Transaction  Documents.  5.7 Reaffirmation.  Each of the undersigned Loan Parties (a) acknowledges all  of its obligations, undertakings and liabilities under the Securities Purchase Agreement and the  other Transaction Documents to which it is a party in each case as amended in connection herewith  and such obligations, undertakings and liabilities, where applicable, are hereby reaffirmed and  remain in full force and effect on a continuous basis and (b) agrees that its grant of security interests  pursuant to the Security Agreement is reaffirmed and remains in full force and effect after giving  effect to this Agreement and secures all Secured Obligations (as in effect after giving effect hereto).  [Signature page follows.]     DocuSign Envelope ID: 97363474-8510-4378-8D43-F9149180BC9E8D E5647-99FB-41A3-9322-5FB689E0E2A6 





 






Signature Page to First Amendment to Forbearance Agreement  IN WITNESS WHEREOF, the parties have executed this Fourth Amendment to  Securities Purchase and Security Agreement to be effective as of the date first above written.  EVOFEM BIOSCIENCES, INC., as Company  By:    Name:  Saundra Pelletier  Title:  Chief Executive Officer    GUARANTORS:    EVOFEM, INC.  EVOFEM BIOSCIENCES OPERATIONS,  INC.  EVOFEM LIMITED, LLC  EVOFEM NORTH AMERICA, INC.      By:    Name:  Saundra Pelletier  Title:  Chief Executive Officer  Address:    12400 High Bluff Drive, Suite 600  San Diego, CA  Email: spelletier@evofem.com      DocuSign Envelope ID: 97363474-8510-4378-8D43-F9149180BC9E8D E5647-99FB-41A3-9322-5FB689E0E2A6 





 






Signature Page to First Amendment to Forbearance Agreement    BAKER BROS. ADVISORS LP,  as the Designated Agent   By:    Scott Lessing   President    Address:  860 Washington St., 10th Floor  New York, NY 10014  Attn: Scott Lessing  Email: bbi_officialnotices@BBInvestments.com     DocuSign Envelope ID: 97363474-8510-4378-8D43-F9149180BC9E8D E5647-99FB-41A3-9322-5FB689E0E2A6 





 






Signature Page to First Amendment to Forbearance Agreement    667, L.P.,  as a Purchaser   By: BAKER BROS. ADVISORS LP, management  company and investment adviser to 667, L.P.,  pursuant to authority granted to it by Baker Biotech  Capital, L.P., general partner to 667, L.P., and not as  the general partner.     By:      Scott Lessing  President    Address:  c/o Baker Bros. Advisors LP  860 Washington St., 10th Floor  New York, NY 10014  Attn: Scott Lessing    Email: bbi_officialnotices@BBInvestments.com             DocuSign Envelope ID: 97363474-8510-4378-8D43-F9149180BC9E8D E5647-99FB-41A3-9322-5FB689E0E2A6 





 






Signature Page to First Amendment to Forbearance Agreement    BAKER BROTHERS LIFE SCIENCES, L.P.,  as a Purchaser    By:  BAKER BROS. ADVISORS LP,  management company and investment adviser to  Baker Brothers Life Sciences, L.P., pursuant to  authority granted to it by Baker Brothers Life  Sciences Capital, L.P., general partner to Baker  Brothers Life Sciences, L.P., and not as the general  partner.                 By:      Scott Lessing  President  Address:  c/o Baker Bros. Advisors LP  860 Washington St., 10th Floor  New York, NY 10014  Attn: Scott Lessing   Email: bbi_officialnotices@BBInvestments.com     DocuSign Envelope ID: 97363474-8510-4378-8D43-F9149180BC9E8D E5647-99FB-41A3-9322-5FB689E0E2A6 





 






    DocuSign Envelope ID: 97363474-8510-4378-8D43-F9149180BC9E8D E5647-99FB-41A3-9322-5FB689E0E2A6