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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
☑ Filed by the Registrant ☒
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 ☐ Filed by a partyParty other than the Registrant  ☐
Check the appropriate box:CHECK THE APPROPRIATE BOX:
☒☑
Preliminary Proxy Statement
 ☐
Confidential, forFor Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
 ☐
Definitive Proxy Statement
 ☐
Definitive Additional Materials
 ☐
Soliciting Material under §240.14a-12Under Rule 14a-12
FEMASYS INC.
(Name of Registrant as Specified inIn Its Charter)
(Name of Person(s) Filing Proxy Statement, if other thanIf Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box)PAYMENT OF FILING FEE (CHECK ALL BOXES THAT APPLY):
☒☑
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No fee required.
 ☐
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Fee paid previously with preliminary materialsmaterials.
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 ☐
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Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-110-11.
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PRELIMINARY PROXY STATEMENT—SUBJECT TO COMPLETION

 
May , 2023
To Our Stockholders:
You are cordially invited to attend the 2023 Annuala Special Meeting of Stockholders, or the AnnualSpecial Meeting, of Femasys Inc. to be held on Wednesday, June 21,September 6, 2023 at 9:0010 a.m. Eastern Daylight Time at the offices of Femasys Inc. at 3950 Johns Creek Court, Suite 100, Suwanee, Georgia 30024. Please note that if you plan to attend the AnnualSpecial Meeting in person, photographic identification will be required for admission.
The matters expected to be acted upon at the AnnualSpecial Meeting are described in the accompanying Notice of Annual Meeting of Stockholdersnotice and proxy statement. The Annual Meeting materials include the notice, the proxy statement, our annual report and the proxy card, each of which is enclosed.
Please use this opportunity to take part in our affairs by voting on the business to come before the AnnualSpecial Meeting. You will receive a Notice of Internet Availability of Proxy Materials, orPlease review in detail the Notice,attached notice and proxy statement, which we expectare first being mailed to mailour stockholders on or about May , 2023, unless you have previously requested to receive our proxy materials in paper form.August 7, 2023. Only stockholders of record at the close of business on May 15,July 28, 2023 may vote at the AnnualSpecial Meeting and any postponements or adjournments of the AnnualSpecial Meeting. All stockholders are cordially invited to participate in the AnnualSpecial Meeting and any postponements or adjournments of the AnnualSpecial Meeting. However, to ensure your representation at the AnnualSpecial Meeting, please vote as soon as possible by using the internet or telephone, as instructeddescribed in the Notice. Alternatively, you may follow the procedures outlined in the Notice to request a paper proxy card to submit your vote by mail.enclosed materials. Returning the paper proxy card or voting electronically does NOT deprive you of your right to participate in the AnnualSpecial Meeting and to vote your shares for the matters acted upon at the AnnualSpecial Meeting.
Your vote is important. Whether or not you expect to attend and participate in the AnnualSpecial Meeting, please submit your proxy by mail, electronically via the Internet or by telephone by following the instructions in the Notice or if you asked to receive the proxy materials in paper form, please complete, sign and date the proxy card and return it in the postage paid envelope provided.enclosed materials.
Sincerely,
/s/ Kathy Lee-Sepsick
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Kathy Lee-Sepsick
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Founder, President and Chief Executive Officer
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE ANNUAL MEETING TO BE HELD ON JUNE 21, 2023: THE PROXY STATEMENT, PROXY CARD AND ANNUAL REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2022 ARE AVAILABLE FREE OF CHARGE AT www.proxyvote.com.

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FEMASYS INC.
 
NOTICE OF ANNUALSPECIAL MEETING OF STOCKHOLDERS
 
May , 2023
Time and Date:
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June 21,September 6, 2023 at 9:0010 a.m. Eastern Daylight Time.
 
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Place:
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The AnnualSpecial Meeting will be held on Wednesday, June 21, 2023 at 9:00 a.m. Eastern Daylight Timein person at 3950 Johns Creek Court, Suite 100, Suwanee, Georgia 30024.
 
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Items of Business:
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1.
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ElectTo approve an amendment to the three Class IICompany’s Eleventh Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) to effect, at the discretion of the board of directors, listeda reverse stock split (the “Reverse Stock Split”) of the Company’s common stock, par value $0.001 per share, at a ratio in the accompanying proxy statement, eachrange of 1-for-2 to serve a three-year term expiring1-for-25, with such ratio to be determined at the 2026 annual meetingdiscretion of stockholders or until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation, disqualification or removal.the board of directors at any time prior to April 28, 2024 (the “Reverse Stock Split Proposal”).
 
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2.
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To approve an amendment to Femasys’ Certificate of Incorporation to provide for the exculpation of officers as permitted by the Delaware General Corporation Law.
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3.
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Ratify the appointment of KPMG LLP as the independent registered public accounting firm of Femasys Inc. for the fiscal year ending December 31, 2023.
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4.
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Transact any other business as may properly come before the Annual Meeting or any adjournment or postponement of the Annual Meeting.Special Meeting of Stockholders, if necessary or appropriate, to permit further solicitation of additional proxies if there are insufficient votes to approve the Reverse Stock Split Proposal (the “Adjournment Proposal”).
 
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Record Date:
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Only holders of record of common stock at the close of business on May 15,July 28, 2023 are entitled to notice of, and to vote at, the AnnualSpecial Meeting and any adjournments thereof.
 
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Proxy Voting:
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With respect to all matters that will come before the AnnualSpecial Meeting, each holder of shares of common stock is entitled to one vote for each share of common stock held as of the close of business on May 15,July 28, 2023, the record date.
 
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For questions regarding your stock ownership, you may contact us through our Investor Relations section of our website https://ir.femasys.com/overview/ or, if you are a registered holder, contact our transfer agent, Broadridge Investor Communication Solutions, Inc., by telephone at (844) 998-0339, or by email at shareholder@broadridge.com. If you wish to contact us by mail:
 
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Regular Mail
 
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Broadridge Shareholder Services
 
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c/o Broadridge Corporate Issuer Solutions
 
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P.O. Box 1342
 
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Brentwood, NY 11717
 
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Overnight Mail
 
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Broadridge Shareholder Services
 
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c/o Broadridge Corporate Issuer Solutions
 
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1155 Long Island Avenue
 
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Edgewood, NY 11717-8309
 
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ATTN: IWS
By Order of the Board of Directors,
/s/ Kathy Lee-Sepsick
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Kathy Lee-Sepsick
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Founder, President and Chief Executive Officer

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Page
INFORMATIONQUESTIONS AND ANSWERS ABOUT SOLICITATIONTHESE PROXY MATERIALS AND VOTING
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INTERNET AVAILABILITY OF PROXY MATERIALS
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1
QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING
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27
BOARD OF DIRECTORS AND CORPORATE GOVERNANCEPROPOSAL 1 THE REVERSE STOCK SPLIT PROPOSAL
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NOMINATIONS PROCESS AND DIRECTOR QUALIFICATIONS
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1310
PROPOSAL ONE: ELECTION OF DIRECTORS
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PROPOSAL TWO: APPROVAL OF AN AMENDMENT TO FEMASYS’ CERTIFICATE OF INCORPORATION TO PROVIDE FOR2 THE EXCULPATION OF OFFICERS AS PERMITTED BY THE DELAWARE GENERAL CORPORATION LAWADJOURNMENT PROPOSAL
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PROPOSAL THREE: RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRMVOTING SECURITIES AND PRINCIPAL HOLDERS
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SECURITY OWNERSHIPHOUSEHOLDING OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENTPROXY MATERIALS
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20
EXECUTIVE OFFICERS
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21
EXECUTIVE COMPENSATION
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EQUITY COMPENSATION PLAN INFORMATION
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25
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
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26
REPORT OF THE AUDIT COMMITTEE
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27
ADDITIONAL INFORMATION
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28
OTHER MATTERS
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2920
ANNEX A FORM OF CERTIFICATE OF AMENDMENT
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FEMASYS INC.
PROXY STATEMENT FOR THE 2023 ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON WEDNESDAY, JUNE 21, 2023

May , 2023
INFORMATION ABOUT SOLICITATION AND VOTING
The accompanying proxy is solicited on behalf of the board of directors of Femasys Inc. (“Femasys”) for use at the Femasys 2022 Annual Meeting of Stockholders (the “Annual Meeting” or “meeting”) to be held on Wednesday, June 21, 2023 at 9:00 a.m. Eastern Daylight Time at the offices of Femasys at 3950 Johns Creek Court, Suite 100, Suwanee, Georgia 30024. References in the Proxy Statement to “we,” “us,” “our,” “the Company” or “Femasys” refer to Femasys Inc.
INTERNET AVAILABILITY OF PROXY MATERIALS
We will mail, on or about May , 2023, the Notice of Internet Availability of Proxy Materials, or the Notice, to our stockholders of record and beneficial owners at the close of business on May 15, 2023. On the date of mailing of the Notice, all stockholders and beneficial owners will have the ability to access all of the proxy materials on a website referred to in the Notice. These proxy materials will be available free of charge.
The Notice will identify the website where the proxy materials will be made available; the date, the time and location of the Annual Meeting; the matters to be acted upon at the meeting and our board of directors’ recommendations with regard to each matter; a toll-free telephone number, an e-mail address, and a website where stockholders can request a paper or e-mail copy of the Proxy Statement; our Annual Report on Form 10-K for the year ended December 31, 2022, or our Annual Report, and a form of proxy relating to the Annual Meeting; information on how to access the form of proxy; and information on how to participate in the meeting and vote in person.
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QUESTIONS AND ANSWERS ABOUT THE MEETINGTHESE PROXY MATERIALS AND VOTING
Q:
What is the purpose of the meeting?
A:
At the meeting, stockholders will act upon the proposals described in this proxy statement. In addition, following
Q:
Why am I receiving these proxy materials?
A:
You are receiving these proxy materials, including this Proxy Statement, the formal portionNotice of Special Meeting of Stockholders and the proxy card or voting instruction form, in connection with the solicitation of proxies by the board of directors for use at the Special Meeting to be held on September 6, 2023 at 10 a.m. Eastern Daylight Time, and all adjournments or postponements thereof. The Special Meeting will be held in person. Please note that if you plan to attend the Special Meeting in person, photographic identification will be required for admission.
Q:
Why is the Company proposing the Reverse Stock Split Proposal?
A:
The Company received a letter (the “Delisting Letter”) dated June 1, 2023 from the Nasdaq Listing Qualifications department (the “Staff”) indicating that the Company is not in compliance with the Nasdaq Listing Rule 5550(a)(2) (the “Minimum Bid Price Rule”) which requires the Company to maintain a closing bid price of at least $1.00 per share, as the minimum bid price of the meeting, managementcompany’s common stock has been below $1.00 per share for 30 consecutive business days, commencing on April 19, 2023. In accordance with the Nasdaq Listing Rules, the Company has 180 calendar days, or until November 28, 2023, to regain compliance with the Minimum Bid Price Requirement. To regain compliance, the minimum bid price of the Company’s common stock must meet or exceed $1.00 per share for a minimum of ten consecutive business days during this 180-calendar day grace period. In the event the Company does not regain compliance with the Minimum Bid Price Requirement by November 28, 2023, the Company may be eligible for an additional 180-calendar day compliance period if it meets all other initial listing standards for The Nasdaq Capital Market, with the exception of the Minimum Bid Price Requirement, and provides written notice of its intention to cure the bid deficiency during the second compliance period, by effecting a reverse stock split, if necessary. If the Company does not regain compliance with the Minimum Bid Price Requirement by the end of the compliance period (or the second compliance period, if applicable), the Company’s common stock will be availablebecome subject to respond to questions from stockholders.delisting.
The board of directors has considered the potential harm to us and our stockholders if Nasdaq delists our common stock from Nasdaq. Delisting could adversely affect the liquidity of our common stock since alternative markets are generally considered to be less efficient markets. An investor likely would find it less convenient to sell, or to obtain accurate quotations in seeking to buy, our common stock on an over-the-counter market. Many investors likely would not buy or sell our common stock due to difficulty in accessing over-the-counter markets, policies preventing them from trading in securities not listed on a national exchange or for other reasons.
We expect that the Reverse Stock Split, if implemented, would increase the closing price per share of our common shares above the $1.00 per share minimum price for the required number of days, thereby satisfying the Minimum Bid Price Requirement.
The Company may need to raise equity capital to have the necessary cash resources to fund operations. We believe that the Reverse Stock Split will make our common stock more attractive to a broader range of institutional and other investors, as we have been advised that the current per share trading price of our common stock may affect its acceptability to certain institutional investors, professional investors and other members of the investing public. Many brokerage houses and institutional investors have internal policies and practices that either prohibit them from investing in low-priced stocks or tend to discourage individual brokers from recommending low-priced stocks to their customers. In addition, some of those policies and practices may function to make the processing of trades in low-priced stocks economically unattractive to brokers.
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Q:
What proposals are scheduled to be voted on at the meeting?
A:
Stockholders will be asked to vote on the following two proposals at the meeting:
1.
To approve an amendment to elect Charles Larsen, Anne Morrisseythe Company’s Eleventh Amended and Wendy PerrowRestated Certificate of Incorporation, as Class IIamended from time to time (the “Certificate of Incorporation”) to effect, at the discretion of the board of directors, a Reverse Stock Split at a ratio in the range of 1-for-2 to serve for a term1-for-25, with such ratio (the “Final Ratio”) to be determined at the discretion of three years or until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation, disqualification or removal;the board of directors at any time prior to April 28, 2024 (the “Reverse Stock Split Proposal”); and
2.
To approve the adjournment of the Special Meeting, if necessary or appropriate, to permit further solicitation of additional proxies if there are insufficient votes to approve an amendment to Femasys’ Certificate of Incorporation to provide for the exculpation of officers as permitted by the Delaware General Corporation Law.
3.
to ratify the appointment of KPMG LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023.Reverse Stock Split Proposal (the “Adjournment Proposal”).
Q:
Could matters other than Proposal One Proposal Two and Proposal ThreeTwo be decided at the meeting?
A:
Our amended and restated bylaws, requireas amended from time to time (the “Bylaws”) state that we receive advanceonly those matters set forth in the notice of any proposal tothe special meeting may be brought before theconsidered or acted upon at a special meeting byof stockholders of Femasys, and we have not received notice of any such proposals. If any other matter were to come before the meeting, the proxy holders appointed by our board of directors will have the discretion to vote on those matters for you.Company.
Q:
How does the board of directors recommend I vote on these proposals?
A:
Our board of directors recommends that you vote your shares:
“FOR ALL”FOR” the nominees to the board of directorsReverse Stock Split Proposal (Proposal One); and
“FOR” the approval of an amendment to Femasys’ Certificate of Incorporation to provide for the exculpation of officers as permitted by the Delaware General Corporation LawAdjournment Proposal (Proposal Two).
“FOR” the ratification of the appointment of KPMG LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023 (Proposal Three).
Q:
Who may vote at the AnnualSpecial Meeting?
A:
Holders of record of our common stock as of the close of business on May 15,July 28, 2023, or the Record Date, are entitled to receive notice of, to attend and participate, and to vote at the AnnualSpecial Meeting. At the close of business on the Record Date, there were __15,073,153 shares of our common stock outstanding and entitled to vote.vote, which excludes treasury shares.
Stockholder of Record: Shares Registered in Your Name
If your shares are registered directly in your name with our transfer agent, Broadridge Investor Communication Solutions, Inc., you are considered the stockholder of record with respect to those shares, and the Notice or these proxy materials were sent directly to you by Femasys.
Beneficial Owner of Shares Held in Street Name: Shares Registered in the Name of a Broker or Nominee
If your shares are held in an account at a brokerage firm, bank, broker-dealer, or other similar organization, then you are the “beneficial owner” of shares held in “street name,” and the Notice or these proxy materials were forwarded to you by that organization. The organization holding your account is considered the stockholder of record for purposes of voting at the AnnualSpecial Meeting. As a beneficial owner, you have the right to instruct that organization on how to vote the shares held in your account. In most instances, you can do this over the internet, or if you have received or requested a hard copy of the proxy statement and accompanying voting instruction form, you may mark, sign, date and mail your voting instruction form
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using the envelope your broker, bank or other nominee provides. The materials that were sent to you have specific instructions for how to submit your vote and the deadline for doing so. If you would like to revoke your proxy, you must follow the broker, bank or other nominee’s instructions on how to do so.
Because you are not the stockholder of record, you are required to obtain a valid proxy from the organization that holds your shares giving you the right to vote the shares at the AnnualSpecial Meeting.
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Q:
How do I vote?
A.
You may vote by mail or follow any alternative voting procedure (such as telephone or internet voting) described on your proxy card. To use an alternative voting procedure, follow the instructions on each Notice and/orthe proxy card that you receive. The procedures for voting are as follows:
Stockholder of Record: Shares Registered in Your Name
If you are a stockholder of record, you may:
vote by telephone or through the internet—ininternet-in order to do so, please follow the instructions shown on your Notice or proxy card;
vote by mail—if you request or receive a paper proxy card and voting instructions by mail,mail- simply complete, sign and date the enclosed proxy card and return it before the meeting in the pre-paid envelope provided; or
vote in person—youperson-you may attend the AnnualSpecial Meeting and vote your shares in person.
Votes submitted by telephone or through the internet must be received prior to the start of the meeting. Submitting your proxy, whether by telephone, through the internet or by mail, if you request or received a paper proxy card, will not affect your right to vote in person should you decide to attend the meeting in person.
Beneficial Owner: Shares Registered in the Name of a Broker or Other Nominee
If you are not the stockholder of record, please refer to the voting instructions provided by your nominee to direct it how to vote your shares. Your vote is important. To ensure that your vote is counted, complete and mail the voting instruction card provided by your brokerage firm, bank, or other nominee as directed by your nominee. To vote in person at the meeting, you will be required to obtain a legal proxy from your nominee. Follow the instructions from your nominee included with our proxy materials or contact your nominee to request a proxy form.
Your vote is important. Whether or not you plan to participate in the AnnualSpecial Meeting, we urge you to vote by proxy to ensure that your vote is counted.
Q:
How do I vote by internet or telephone?
A.
If you wish to vote by internet or telephone, you may do so by following the voting instructions included on your Notice or proxy card. Please have each Notice or proxy card you received in hand when you vote over the internet or by telephone as you will need information specified therein to submit your vote. The giving of such a telephonic or internet proxy will not affect your right to vote in person (as detailed above) should you decide to attend the meeting.
The telephone and internet voting procedures are designed to authenticate stockholders’ identities, to allow stockholders to give their voting instructions and to confirm that stockholders’ instructions have been recorded properly.
Q:
What shares can I vote?
A:
Each share of Femasys common stock issued and outstanding as of the close of business on May 15,July 28, 2023 is entitled to vote on all items being voted on at the meeting. You may vote all shares owned by you as of May 15,July 28, 2023, including (1) shares held directly in your name as the stockholder of record, and (2) shares held for you as the beneficial owner in street name through a broker, bank, trustee, or other nominee.
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Q:
How many votes am I entitled to per share?
A:
Each holder of shares of common stock is entitled to one vote for each share of common stock held as of May 15,July 28, 2023.
Q:
What is the quorum requirement for the meeting?
A:
The holders of 33.34% of the outstanding shares of our common stock entitled to vote at the AnnualSpecial Meeting as of the Record Date must be present in person or represented by proxy at the AnnualSpecial Meeting in order to hold the AnnualSpecial Meeting and conduct business. This presence is called a quorum. Your shares are counted as present at the AnnualSpecial Meeting if you are present and vote in person at the AnnualSpecial Meeting or if you have properly submitted a proxy.
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Q:
How are abstentions and broker non-votes treated?
A:
Abstentions (i.e. shares present at the Annual Meeting and marked “abstain”) are deemed to be shares presented or represented by proxy and entitled to vote, and are counted for purposes of determining whether a quorum is present. However, abstentions are not counted as a vote either for or against a proposal, and have no effect on the outcome of the matters voted upon.
All votes will be tabulated by the inspector of election appointed for the Special Meeting, who will separately tabulate affirmative and negative votes, abstentions and broker non-votes. An abstention is the voluntary act of not voting for or against a particular matter by a stockholder who is present, virtually, in person or by proxy, at the Special Meeting and entitled to vote. A broker non-vote“non-vote” occurs when a broker nominee holding shares for a beneficial owner submits a proxy to vote on at least one “routine” proposal but does not vote on a given proposal because the nominee does not have discretionary power for that particular item and has not received instructions from the beneficial owner ofowner. If you hold your shares fails to provide thein “street name” through a broker bank or other nominee, that holdsyour broker or nominee may not be permitted to exercise voting discretion with respect to some of the shares withmatters to be acted upon. If you do not give your broker or nominee specific instructions on howregarding such matters, your broker may submit a proxy to vote on any“routine” matters but not on “non-routine” matters broughtand such proxy will be deemed a “broker non-vote” with respect to such “non-routine” proposals.
The question of whether your broker or nominee may be permitted to exercise voting discretion with respect to a particular matter depends on whether the New York Stock Exchange (the “NYSE”) deems the particular proposal to be a “routine” matter and how your broker or nominee exercises any discretion they may have in the voting of the shares that you beneficially own. Brokers and nominees can use their discretion to vote at“uninstructed” shares with respect to matters that are considered to be “routine,” but not with respect to “non-routine” matters. Under the Annual Meeting. Inrules and interpretations of the NYSE, “non-routine” matters are matters that may substantially affect the rights or privileges of stockholder, such as mergers, stockholder proposals, elections of directors (even if not contested), executive compensation (including any advisory stockholder votes on executive compensation and on the frequency of stockholder votes on executive compensation), and certain corporate governance proposals, even if management-supported. The determination of which proposals are deemed “routine” versus “non-routine” may not be made by the NYSE until after the date on which this situation, theproxy statement has been mailed to you. As such, it is important that you provide voting instructions to your bank, broker bank or other nominee, if you wish to determine the voting of your shares.
For any proposal that is considered a “routine” matter, your broker or nominee may vote your shares in its discretion either for or against the proposal in the absence of your instruction. For a proposal that is considered a “non-routine” matter for which you do not give your broker instructions, the shares will be treated as broker non-votes. “Broker non-votes” occur when a broker or other nominee submits a proxy to vote on at least one “routine” proposal and indicates that it does not have, or is not exercising, voting authority on matters deemed “non-routine.” Broker non-votes will not votebe counted as having been voted on the “non-routine” matter. Broker non-votes are counted for purposes of determining whether a quorum is present and have no effect on the outcome of the matters voted upon.
Note thatapplicable proposal. Therefore, if you are a beneficial holder,owner and want to ensure that shares you beneficially own are voted in favor or against any or all of the proposals in this proxy statement, the only way you can do so is to give your broker or nominee specific instructions as to how the shares are to be voted. Under the applicable rules governing such brokers, we believe both Proposal 1 and other nomineesProposal 2 are likely to be considered a “routine” item. Abstentions and broker non-votes will not affect the outcome of such proposals. If such proposals are deemed to be “non-routine” as described above, there will be entitled to vote your shares on “routine” matters without instructions from you. The only proposal that would be considered “routine” in such event is the proposal for the ratification of the appointment of KPMG LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023 (Proposal Three). Ano broker or other nominee willnon-votes cast. If there are no broker non-votes and if you do not be entitled to vote your shares on any “non-routine” matters, absent instructions from you. “Non-routine” matters include all proposals other than Proposal Three, including the election of directors and charter amendment proposal. Accordingly, we encourage you to provide voting instructions to your bank, broker or other nominee, whetherhowever, your shares will not count towards achieving a quorum.
As such, it is important that you provide voting instructions to your bank, broker or not you plan to attend the meeting.other nominee.
Q:
What is the vote required for each proposal?
A:
The votes required to approve each proposal are as follows:
Proposal One: Each director shallApproval will be elected by a pluralityobtained if the number of votes cast “FOR” the votes properly cast on the election of directors, meaning that the three individuals nominated for election to our board of directorsproposal at the AnnualSpecial Meeting receivingexceeds the highest number of “FOR” votes will be elected.“AGAINST” the proposal.
Proposal Two: Approval will be obtained if the number of votes cast “FOR” the proposal at the Annual Meeting equals or exceeds sixty-six and two-third precedent (66 2/3%) of the outstanding shares of our common stock.
Proposal Three: Approval will be obtained if the number of votes cast “FOR” the proposal at the AnnualSpecial Meeting exceeds the number of votes “AGAINST” the proposal.
Q:
If I submit a proxy, how will it be voted?
A:
When proxies are properly dated, executed and returned, the shares represented by such proxies will be voted at the AnnualSpecial Meeting in accordance with the instructions of the stockholder. If no specific instructions are given, the shares will be voted in accordance with the recommendations of our board of directors as described above. If any matters not described in the Proxy Statement are properly presented at the Annual Meeting, the proxy holders will use their own judgment to determine how to vote your shares. If the Annual Meeting is postponed or adjourned, the proxy holders can vote your shares on the new meeting date as well, unless you have revoked your proxy instructions, as described below under “Can I change my vote or revoke my proxy?”
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instructions are given, the shares will be voted in accordance with the recommendations of our board of directors as described above. If any matters not described in the Proxy Statement are properly presented at the Special Meeting, the proxy holders will use their own judgment to determine how to vote your shares. If the Special Meeting is postponed or adjourned, the proxy holders can vote your shares on the new meeting date as well, unless you have revoked your proxy instructions, as described below under “Can I change my vote or revoke my proxy?”
Q:
What should I do if I get more than one proxy or voting instruction card?
A:
Stockholders may receive more than one set of voting materials, including multiple copies of the proxy materials, and multiple Notices, proxy cards or voting instruction cards. For example, stockholders who hold shares in more than one brokerage account may receive separate sets of proxy materials or one Notice for each brokerage account in which shares are held. Stockholders of record whose shares are registered in more than one name will receive more than one set of proxy materials. You should vote in accordance with all of the proxy cards and voting instruction cards you receive relating to our AnnualSpecial Meeting to ensure that all of your shares are voted and counted.
Q:
Can I change my vote or revoke my proxy?
A:
You may change your vote or revoke your proxy at any time prior to the taking of the vote or the polls closing at the AnnualSpecial Meeting.
If you are the stockholder of record, you may change your vote by:
granting a new proxy bearing a later date (which automatically revokes the earlier proxy) using any of the methods described above (and until the applicable deadline for each method);
providing a written notice of revocation to the Corporate Secretary of Femasys at Femasys Inc., 3950 Johns Creek Court, Suite 100, Suwanee, Georgia 30024, prior to your shares being voted,
transmitting a subsequent vote using the internet or by telephone prior to the close of voting; or
attending the AnnualSpecial Meeting and voting in person.
Please note, however, that if your shares are held of record by a broker, bank or other nominee and you wish to revoke a proxy, you must contact that firm to revoke any prior voting instructions.
Q:
How can I attend the AnnualSpecial Meeting in person?
A:
Only holders of common stock, their proxy holders and guests we may invite may attend the AnnualSpecial Meeting. If you wish to attend the AnnualSpecial Meeting in person, but you hold your shares through someone else, such as a broker, you must bring proof of your ownership and photographic identification to the AnnualSpecial Meeting. For example, you may bring an account statement showing that you beneficially own shares common stock as of the record date as acceptable proof of ownership. In addition, if you wish to vote in person at the AnnualSpecial Meeting, you must bring a legal proxy from the broker, bank or other nominee holding your shares, confirming your beneficial ownership of the shares and giving you the right to vote your shares. Please be aware that participating in the AnnualSpecial Meeting will not, by itself, revoke a proxy. See, “Can I change my vote or revoke my proxy?” above for more details.
Q:
Can I submit questions prior to the meeting?
A:
No, you can only submit questions during the meeting.
Q.
How can I get electronic access to the proxy materials?
A:
The Notice will provide you with instructions regarding how to:
view our proxy materials for the meeting through the internet; and
instruct us to send our future proxy materials to you electronically by email.
If you choose to receive future proxy materials by email, you will receive an email next year with instructions containing a link to those materials and a link to the proxy voting site. Your election to receive proxy materials by email will remain in effect until you terminate it.
Q:
Is there a list of stockholders entitled to vote at the AnnualSpecial Meeting?
A:
The names of stockholders of record entitled to vote will be available for inspection by stockholders of record for ten (10) days prior to the meeting and during the AnnualSpecial Meeting. If you are a stockholder of record and want to inspect the stockholder list, please send a written request to our Corporate Secretary at ir@femasys.com to arrange for inspection of the list at our corporate headquarters, 3950 Johns Creek Court, Suite 100, Suwanee, GA 30024.
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Q:
Who will tabulate the votes?
A:
A representative of Broadridge Investor Communication Solutions, Inc. will serve as the Inspector of Elections and will tabulate the votes at the AnnualSpecial Meeting.
Q:
Where can I find the voting results of the AnnualSpecial Meeting?
A:
We will announce preliminary voting results at the AnnualSpecial Meeting. We will also disclose voting results on a Current Report on Form 8-K that we will file with the Securities and Exchange Commission, or the SEC, within four business days after the AnnualSpecial Meeting.
Q:
I share an address with another stockholder, and we received only one paper copy of the proxy materials. How may I obtain an additional copy of the proxy materials?
A:
The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for proxy statements and annual reports with respect to two or more stockholders sharing the same address by delivering a single proxy statement addressed to those stockholders. This process is commonly referred to as “householding.”
Brokers with account holders who are Femasys stockholders may be householding our proxy materials. A single set of proxy materials may be delivered to multiple stockholders sharing an address unless contrary instructions have been received from the affected stockholders. Once you have received notice from your broker that it will be householding communications to your address, householding will continue until you are notified otherwise or until you notify your broker or Femasys that you no longer wish to participate in householding.
If, at any time, you no longer wish to participate in householding and would prefer to receive a separate proxy statement, and annual report, you may (1) notify your broker, (2) direct your written request to: Investor Relations, Femasys Inc., 3950 Johns Creek Court, Suite 100, Suwanee, GA 30024 or (3) contact our Investor Relations department by email at ir@femasys.com or by telephone at (770) 500-3910. Stockholders who currently receive multiple copies of the proxy statement or annual report at their address and would like to request householding of their communications should contact their broker. In addition, we will promptly deliver, upon written or oral request to the address or telephone number above, a separate copy of the annual report and proxy statement to a stockholder at a shared address to which a single copy of the documents was delivered.
Q:
What if I have questions about my Femasys shares or need to change my mailing address?
A:
You may contact our transfer agent, Broadridge Investor Communication Solutions, Inc., by telephone at (844) 998-0339, by email at shareholder@broadridge.com or by U.S. regular mail at Broadridge Shareholder Services, c/o Broadridge Corporate Issuer Solutions, P.O. Box 1342, Brentwood, NY 11717, if you have questions about your Femasys shares or need to change your mailing address.
Q:
Who is soliciting my proxy and paying for the expense of solicitation?
A:
The proxy for the AnnualSpecial Meeting is being solicited on behalf of our board of directors. We will pay the cost of preparing, assembling, printing, mailing and distributing these proxy materials and soliciting votes. We may, on request, reimburse brokerage firms and other nominees for their expenses in forwarding proxy materials to beneficial owners. In addition to soliciting proxies by mail, we expect that our directors, officers and employees may solicit proxies in person or by telephone or facsimile. None of these individuals will receive any additional or special compensation for doing this, although we may reimburse these individuals for their reasonable out-of-pocket expenses. We do not expect to, but have the option to, retain a proxy solicitor. If you choose to access the proxy materials or vote via the Internet or by phone, you are responsible for any Internet access or phone charges you may incur.
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Q:
What are the requirements to propose actions to be included in our proxy materials for next year’s annual meeting of stockholders, or our 2024 Annual Meeting, or for consideration at our 2024 Annual Meeting?
A:
Requirements for Stockholder Proposals to be considered for inclusion in our proxy materials for our 2024 Annual Meeting:
Our amendedTHE SPECIAL MEETING
Date, Time and restated bylaws provide that stockholders may present proposals for inclusionPlace of the Special Meeting
The Special Meeting will be held in our proxy statement by submitting their proposals in writing to the attention of our Corporate Secretary at our principal executive office. Our current principal executive office is locatedperson at 3950 Johns Creek Court, Suite 100, Suwanee, GA 30024. In addition, stockholder proposals must complyGeorgia 30024, on September 6, 2023 at 10 a.m. Eastern Daylight Time. Please note that if you plan to attend the Special Meeting in person, photographic identification will be required for admission.
Stockholders of Record
If your shares of common stock are registered directly in your name with the requirementsCompany’s transfer agent, Broadridge Investor Communication Solutions, Inc., you are considered the stockholder of Rule 14a-8record with respect to those shares, and the Notice of Special Meeting of Stockholders is being sent directly to you. If you hold restricted stock under the Securities Exchange Act of 1934, as amended,Company’s 2021 Equity Incentive Plan (the “2021 Equity Plan”) or the Exchange Act,2021 Employee Stock Purchase Plan (the “2021 Stock Plan”, and related SEC regulations under Rule 14a-8 regardingtogether with the inclusion2021 Equity Plan, the “Plans”), you are also considered the stockholder of record with respect to those shares. As the stockholder proposals in company-sponsoredof record, you have the right to vote by proxy materials. Inthrough any of the below methods:
vote by telephone or through the internet-in order to do so, please follow the instructions shown on your proxy card;
vote by mail-simply complete, sign and date the enclosed proxy card and return it before the meeting in the pre-paid envelope provided; or
vote in person-you may attend the Special Meeting and vote your shares in person.
Votes submitted by telephone or through the internet must be includedreceived prior to the start of the meeting. Submitting your proxy, whether by telephone, through the internet or by mail, will not affect your right to vote in person should you decide to attend the meeting in person.
Beneficial Owners of Shares Held in Street Name
If your shares are held in an account at a brokerage firm, bank, broker-dealer, or other similar organization, then you are the “beneficial owner” of shares held in “street name,” and the Notice or these proxy materials were forwarded to you by that organization. The organization holding your account is considered the stockholder of record for purposes of voting at the Special Meeting. As a beneficial owner, you have the right to instruct that organization on how to vote the shares held in your account. In most instances, you can do this over the internet, or if you have received or requested a hard copy of the proxy statement and accompanying voting instruction form, you may mark, sign, date and mail your voting instruction form using the envelope your broker, bank or other nominee provides. The materials that were sent to you have specific instructions for our 2024 Annual Meeting,how to submit your vote and the deadline for doing so. If you would like to revoke your proxy, you must follow the broker, bank or other nominee’s instructions on how to do so.
Because you are not the stockholder proposals must be received by our Corporate Secretary no later than December 31, 2023of record, you are required to obtain a valid proxy from the organization that holds your shares giving you the right to vote the shares at the Special Meeting.
Record Date and must otherwise comply with the requirementsQuorum
Stockholders of Rule 14a-8record of the Exchange Act.
Requirements for Stockholder Proposals to be presentedcommon stock, at our 2024 Annual Meeting:
Our amended and restated bylaws provide that stockholders may present proposals to be considered at an annual meeting by providing timely notice to our Corporate Secretary at our principal executive office. To be timely for our 2024 Annual Meeting, our Corporate Secretary must receive the written notice at our principal executive office:
not earlier than the close of business on 2024,July 28, 2023 (the “Record Date”) are entitled to notice of, and
not later than to vote at, the Special Meeting. At the close of business on 2024.July 28, 2023, we had
If we hold our 2024 annual meetingoutstanding shares of stockholders more than 30 dayscommon stock, the holders of which are entitled to one vote per share on each matter properly brought before or more than 60 days after June 21, 2024 (the one-year anniversary datethe Special Meeting. There was no other class of voting securities outstanding on such date.
In order for business to be conducted, a quorum must be present at the Special Meeting. The holders of 33.34% of the Annual Meeting), then noticeoutstanding shares of a stockholder proposal that is not intendedour common stock entitled to be included in our proxy statementvote at the Special Meeting as of the Record Date must be receivedpresent in person or represented by our Corporate Secretaryproxy at our principal executive office not later than the closeSpecial Meeting, shall constitute a quorum. At the Special Meeting, abstentions and broker “non-votes”, if any, are counted as present and entitled to vote for purposes of business on the later of (i) the 90th day prior to such annual meeting, or (ii) the tenth day following the day on which public announcement of the date of such annual meeting is first made.
A stockholder’s notice to the Corporate Secretary must set forth, as to each matter the stockholder proposes to bring before the annual meeting, the information required by our amended and restated bylaws. Ifdetermining a stockholder who has notified Femasys of such stockholder’s intention to present a proposal at an annual meeting does not appear to present such stockholder’s proposal at such meeting, Femasys does not need to present the proposal for vote at such meeting.quorum.
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BOARD OF DIRECTORS AND CORPORATE GOVERNANCERequired Vote
WeApproval of the Reverse Stock Split Proposal will be obtained if the number of votes cast “FOR” the proposal at the Special Meeting exceeds the number of votes “AGAINST” the proposal. Approval of the Adjournment Proposal will be obtained if the number of votes cast “FOR” the proposal at the Special Meeting exceeds the number of votes “AGAINST” the proposal. An abstention, which is a properly signed proxy card which is marked “Abstain,” will have no effect on either proposal.
Voting
You may vote online, via telephone or by mail by following the instructions on the proxy card or voting instruction form sent to you. Voting by any of these methods will not affect your right to attend the Special Meeting and vote in person. However, for those who will not be voting at the Special Meeting, your proxy must be received by no later than 11:59 Eastern Daylight Time on September 5, 2023.
The shares of common stock represented by all valid proxies in the enclosed form will be voted if received in time for the Special Meeting in accordance with the specifications, if any, made on the proxy card. Votes may be cast “FOR,” “AGAINST” or “ABSTAIN” on each proposal. Proxy cards that are executed and returned without any designated voting direction will be voted “FOR” each proposal.
Each share of common stock represented is entitled to one vote on all matters properly brought before the Special Meeting.
Revocability of Proxies
If you are the stockholder of record, you may revoke your proxy by:
granting a strong commitmentnew proxy bearing a later date (which automatically revokes the earlier proxy) using any of the methods described above (and until the applicable deadline for each method);
providing a written notice of revocation to goodthe Corporate Secretary of Femasys at Femasys Inc., 3950 Johns Creek Court, Suite 100, Suwanee, Georgia 30024, prior to your shares being voted,
transmitting a subsequent vote using the internet or by telephone prior to the close of voting; or
attending the Special Meeting and voting in person.
Please note, however, that if your shares are held of record by a broker, bank or other nominee and you wish to revoke a proxy, you must contact that firm to revoke any prior voting instructions.
Broker Non-Votes
A broker “non-vote” occurs when a broker nominee holding shares for a beneficial owner submits a proxy to vote on at least one “routine” proposal but does not vote on a given proposal because the nominee does not have discretionary power for that particular item and has not received instructions from the beneficial owner. If you hold your shares in “street name” through a broker or other nominee, your broker or nominee may not be permitted to exercise voting discretion with respect to some of the matters to be acted upon. If you do not give your broker or nominee specific instructions regarding such matters, your broker may submit a proxy to vote on “routine” matters but not on “non-routine” matters and such proxy will be deemed a “broker non-vote” with respect to such “non-routine” proposals.
The question of whether your broker or nominee may be permitted to exercise voting discretion with respect to a particular matter depends on whether the NYSE deems the particular proposal to be a “routine” matter and how your broker or nominee exercises any discretion they may have in the voting of the shares that you beneficially own. Brokers and nominees can use their discretion to vote “uninstructed” shares with respect to matters that are considered to be “routine,” but not with respect to “non-routine” matters. Under the rules and interpretations of the NYSE, “non-routine” matters are matters that may substantially affect the rights or privileges of stockholder, such as mergers, stockholder proposals, elections of directors (even if not contested), executive compensation (including any advisory stockholder votes on executive compensation and on the frequency of stockholder votes on executive compensation), and certain corporate governance practices. These practices provide an important framework withinproposals, even if management-supported. The determination of which our board of directors, its committees and our management can pursue our strategic objectives in order to promoteproposals are deemed “routine” versus “non-routine” may not be made by the interests of our stockholders.
Corporate Governance Guidelines
Our board of directors has adopted Corporate Governance Guidelines that set forth expectations for directors, director independence standards, board committee structure and functions and other policies for the governance of our company. Our Corporate Governance Guidelines are available without charge on the Investor Relations section of our website, which is located at https://ir.femasys.com/governance/governance-documents/. Our Corporate Governance Guidelines are subject to modification from time to time by our board of directors pursuant to the recommendations of our nominating and corporate governance committee.
Board Leadership Structure and Role of the Board in Risk Oversight:
Our board of directors is currently chaired by Charles Larsen, an “independent director” as defined under Rule 10A-3 of the Exchange Act and the Nasdaq rules. Our board of directors believes that separation of the positions of chairman and Chief Executive Officer reinforces the independence of the Board from management, creates an environment that encourages objective oversight of management’s performance and enhances the effectiveness of the board of directors as a whole. The board of directors retains the flexibility to change its leadership structure from time to time as appropriate based on its view of the best interests of the company.
Our board of directors has an active role, as a whole and also at the committee level, in overseeing the management of our risks. Our board of directors is responsible for general oversight of risks and regular review of information regarding our risks, including credit risks, liquidity risks and operational risks. The compensation committee is responsible for overseeing the management of risks relating to our executive compensation plans and arrangements. The audit committee is responsible for overseeing the management of risks relating to accounting matters and financial reporting. The nominating and corporate governance committee is responsible for overseeing the management of risks associated with the independence of our board of directors and potential conflicts of interest. Although each committee is responsible for evaluating certain risks and overseeing the management of such risks, the entire board of directors is regularly informed through discussions from committee members about such risks. Our board of directors believes its administration of its risk oversight function has not negatively affected our board of directors' leadership structure.
Director Independence
Our board of directors has undertaken a review of its composition, the composition of its committees and the independence of our directors and considered whether any director has a material relationship with us that could compromise his or her ability to exercise independent judgment in carrying out his or her responsibilities. Based upon information requested from and provided by each director concerning his or her background, employment and affiliations, including family relationships, our board of directors has determined that none of Mr. Adams, Mr. Dyett, Mr. Larsen, Ms. Morrissey, Mr. Uzialko or Ms. Perrow, representing six of our seven directors, has a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director and that each of these directors is “independent” as that term is defined under the rules of Nasdaq. In making this determination, our board of directors considered the relationships that each non-employee director has with us and all other facts and circumstances our board of directors deemed relevant in determining their independence, including the beneficial ownership of our common stock and/or convertible preferred stock by certain non-employee directors and the relationships of certain non-employee directors with certain of our significant stockholders. Ms. Lee-Sepsick, as our President and Chief Executive officer is not “independent” under the rules of Nasdaq.
Board Diversity
We believe the board is most effective when it embodies a diverse range of views, backgrounds and experience. Diversity is considered in the broadest sense, including, among other attributes, reflecting geography, age, gender, leadership, perspectives, educational background, other board experience and commitments, business and professional achievements, skills and experience in the context of the needs of the Board. While the nominating and corporateNYSE
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governance committeeuntil after the date on which this proxy statement has been mailed to you. As such, it is important that you provide voting instructions to your bank, broker or other nominee, if you wish to determine the voting of your shares.
For any proposal that is considered a “routine” matter, your broker or nominee may vote your shares in its discretion either for or against the proposal in the absence of your instruction. For a proposal that is considered a “non-routine” matter for which you do not give your broker instructions, the shares will be treated as broker non-votes. “Broker non-votes” occur when a broker or other nominee submits a proxy to vote on at least one “routine” proposal and indicates that it does not have, or is not exercising, voting authority on matters deemed “non-routine.” Broker non-votes will not be counted as having been voted on the applicable proposal. Therefore, if you are a formal policy on diversity with regardbeneficial owner and want to considerationensure that shares you beneficially own are voted in favor or against any or all of director nominees, the nominatingproposals in this proxy statement, the only way you can do so is to give your broker or nominee specific instructions as to how the shares are to be voted. Under the applicable rules governing such brokers, we believe both Proposal 1 and corporate governance committee considers diversity in its selectionProposal 2 is likely to be considered a “routine” item. Broker non-votes will not affect the outcome of nomineessuch proposals. If such proposals are deemed to be “non-routine” as described above, there will be no broker non-votes. If there are no broker non-votes and endeavorsyou do not provide voting instructions to include women and minority candidates in the qualified pool from which Board candidates are chosen.your bank, broker or other nominee, however, your shares will not count towards achieving a quorum.
As such, it is important that you provide voting instructions to your bank, broker or other nominee.
Solicitation of Proxies
The below table provides information related toproxy for the composition of our board members and nominees. Each of the categories listed in the table has the meaning as itSpecial Meeting is used in Nasdaq Rule 5605(f).
 
Board Diversity Matrix (As of May 1, 2023)*
Total Number of Directors
​​
7
 
​​
Female
​​
Male
​​
Non-Binary
​​
Did Not
Disclose
Gender
Part I: Gender Identity
​​
 
​​
 
​​
 
​​
 
Directors
​​
3
​​
3
​​
—
​​
1
Part II: Demographic Background
​​
 
​​
 
​​
 
​​
 
White
​​
2
​​
3
​​
—
​​
—
Two or More Races or Ethnicities
​​
1
​​
—
​​
—
​​
—
Did Not Disclose Demographic Background
​​
1
*
Per Nasdaq’s board diversity requirements, inapplicable categories have been omitted.
Board Committees
Our board of directors has an audit committee, a compensation committee and a nominating and corporate governance committee, each of which has the composition and the responsibilities described below. In addition, from time to time, special committees may be established under the directionbeing solicited on behalf of our board of directors. We will pay the cost of preparing, assembling, printing, mailing and distributing these proxy materials and soliciting votes. We may, on request, reimburse brokerage firms and other nominees for their expenses in forwarding proxy materials to beneficial owners. In addition to soliciting proxies by mail, we expect that our directors, when necessaryofficers and employees may solicit proxies in person or by telephone or facsimile. None of these individuals will receive any additional or special compensation for doing this, although we may reimburse these individuals for their reasonable out-of-pocket expenses. We do not expect to, address specific issues.but have the option to, retain a proxy solicitor. If you choose to access the proxy materials or vote via the Internet or by phone, you are responsible for any Internet access or phone charges you may incur.
EachNo Right of Appraisal
Neither Delaware law, nor our Certificate of Incorporation nor our Bylaws provides for appraisal or other similar rights for dissenting stockholders in connection with any of the audit committee, the compensation committee and the nominating and corporate governance committee operate under a written charter that has been approved by our board of directors. A copy of each of the audit committee, compensation committee and nominating and corporate governance committee charters is available on our corporate website at https://ir.femasys.com/governance/governance-documents/. The information contained on or that can be accessed through our website is not incorporated by reference into this proxy statement, and you should not consider such informationproposals to be part of this proxy statement.
Audit Committee
Our audit committee overseesvoted upon at the Special Meeting. Accordingly, our corporate accountingstockholders will have no right to dissent and financial reporting process and assists our board of directors in its oversight of (i) the integrity of our financial statements, (ii) our compliance with legal and regulatory requirements, (iii) our risk management program, (iv) the performance of our independent auditor and (v) the design and implementation of our internal audit function and internal controls. Our audit committee is responsibleobtain payment for among other things:
appointing, compensating, retaining and overseeing the work of our independent auditor and any other registered public accounting firm engaged for the purpose of preparing or issuing an audit report or related work or performing other audit, review or attest services for us;
discussing with our independent auditor any audit problems or difficulties and management's response;
pre-approving all audit and non-audit services provided to us by our independent auditor (other than those provided pursuant to appropriate preapproval policies established by the committee or exempt from such requirement under SEC rules);
reviewing and discussing our annual and quarterly financial statements with management and our independent auditor;
discussing and overseeing our policies with respect to risk assessment and risk management; andtheir shares.
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establishing procedures for the receipt, retention and treatment of complaints received by us regarding accounting, internal accounting controls or auditing matters, and for the confidential and anonymous submission by our employees of concerns regarding questionable accounting or auditing matters.PROPOSAL 1
Our audit committee consists of Mr. Larsen, Mr. Dyett and Ms. Morrissey, with Mr. Dyett serving as chair. All members of our audit committee meet the requirements for financial literacy under the applicable rules and regulations of the SEC and Nasdaq. Our
THE REVERSE STOCK SPLIT PROPOSAL
The board of directors has affirmatively determined that Mr. Larsen, Mr. Dyettunanimously adopted and Ms. Morrissey meetis submitting for stockholder approval an amendment to our Certificate of Incorporation to effect, at the definition of “independent director” under Rule 10A-3discretion of the Exchange Actboard of directors, a Reverse Stock Split at a ratio in the range of 1-for-2 to 1-for-25, with the Final Ratio to be determined at the discretion of the board of directors at any time prior to April 28, 2024. Depending on the Final Ratio determined by the board of directors, no fewer than every 2 and no more than every 25 shares of common stock, including shares held in our treasury, will be combined into one share of common stock at the Effective Time (as defined below). The purpose of seeking stockholder approval of the Reverse Stock Split within the range set forth above (rather than a fixed ratio) is to provide the Company with the flexibility to achieve the desired results of the Reverse Stock Split. The board of directors believes it is in the best interests of the Company and our stockholders to grant such approval. If the stockholders approve the Reverse Stock Split Proposal, the board of directors, in its discretion, may elect to effect the Reverse Stock Split Proposal, or the board of directors may determine in its discretion not to proceed with the Reverse Stock Split Proposal. The Reverse Stock Split will only be effected after the board of directors (or a duly authorized committee of the board of directors) authorizes the filing of a Certificate of Amendment to the Company’s Certificate of Incorporation with the Secretary of State of the State of Delaware and upon the filing and effectiveness of such Amendment (the “Effective Time”). The form of the proposed Amendment is attached to this proxy statement as Annex A. The board of directors reserves the right to abandon the Reverse Stock Split Proposal without further action by our stockholders at any time before the Effective Time, even if stockholders approve such amendment at the Special Meeting.
Reason for the Reverse Stock Split Proposal
The board of directors recommends that the stockholders approve the Reverse Stock Split Proposal for the following reasons.
The Company may be subject to delisting from the Nasdaq rules for purposesif the Reverse Stock Split Proposal fails to obtain stockholder approval. The Company is currently not in compliance with the Minimum Bid Price Rule. If the Company does not regain compliance with the Minimum Bid Price Requirement by the end of serving on the audit committee. In addition, ourcompliance period (or the second compliance period, if applicable), the Company’s common stock will become subject to delisting.
The board of directors has determinedconsidered the potential harm to us and our stockholders if Nasdaq delists our common stock from Nasdaq. Delisting could adversely affect the liquidity of our common stock since alternative markets are generally considered to be less efficient markets. An investor likely would find it less convenient to sell, or to obtain accurate quotations in seeking to buy, our common stock on an over-the-counter market. Many investors likely would not buy or sell our common stock due to difficulty in accessing over-the-counter markets, policies preventing them from trading in securities not listed on a national exchange or for other reasons.
We expect that Mr. Dyett qualifiesthe Reverse Stock Split, if implemented, would increase the closing price per share of our common shares above the $1.00 per share minimum price for the required number of days, thereby satisfying the Minimum Bid Price Requirement.
Improve Perception of Common Stock as an “audit committee financial expert,” as such term is defined in Item 407(d)(5) of Regulation S-K and has the requisite accounting or related financial management expertise and financial sophistication under the applicable rules and regulations of Nasdaq.Investment Security. The audit committee held 5 committee meetings during the fiscal year ended December 31, 2022.
Compensation Committee
Our compensation committee oversees our compensation policies, plans and benefits programs. Our compensation committee is responsible for, among other things:
reviewing and approving corporate goals and objectives with respect to the compensation of our Chief Executive Officer, evaluating our Chief Executive Officer's performance in light of these goals and objectives and setting compensation;
reviewing and setting or making recommendations to our board of directors regardingbelieves that the compensationReverse Stock Split will likely result in a higher per share trading price, which is intended to generate greater investor interest in the Company and improve the marketability of ourthe shares to a broader range of investors. In addition, we expect to realize meaningful savings in stock exchange listing, stockholder meeting costs and other executive officers;administrative fees as a result of the reduction in outstanding shares of common stock.
reviewing and making recommendationsAppeal to oura Broader Range of Investors to Generate Greater Investor Interest in the Company. The board of directors regarding director compensation;
reviewingbelieves that the expected increase in the stock price as a result of the Reverse Stock Split would help increase broker interest in our common stock. We believe a higher share price could make our common stock more attractive to a broader range of investors, as we believe that the current market price of our common stock may affect its acceptability to certain professional investors and approving or making recommendationsother members of the investing public. In particular, we believe that an increased share price would enable us to attract additional institutional investors and investment funds who may not consider purchasing our common stock due to our board of directors regarding our incentive compensationlow trading price. For example, certain institutional investors and equity-based plansinvestment funds may be reluctant to invest, and arrangements;in some cases may be prohibited from investing, in lower-priced stocks, and
appointing and overseeing any compensation consultants.
Our compensation committee consists of Mr. Larsen, Mr. Adams and Ms. Perrow, with Mr. Larsen serving as chair.
Our board of directors has determined that Mr. Larsen, Mr. Adams and Ms. Perrow meet the definition of “independent director” under the applicable Nasdaq rules for purposes of serving on the compensation committee, are “outside directors” as defined in Rule 162(m) of the Internal Revenue Code, or the Code, and “non-employee directors” as defined in Section 16b-3 of the Exchange Act. The compensation committee held 4 committee meetings during the fiscal year ended December 31, 2022.
Nominating and Corporate Governance Committee
Our nominating and corporate governance committee oversees and assists our board of directors in reviewing and recommending nominees for election as directors. Our nominating and corporate governance committee is responsible for, among other things:
identifying individuals qualified brokerage firms may be reluctant to become members of our board of directors, consistent with criteria approved by our board of directors;
recommending to our board of directors the nominees for election to our board of directors at annual meetings of our stockholders;
overseeing the annual self-evaluations of our board of directors and management; and
developing and recommending to our board of directors a set of corporate governance guidelines and principles.
Our nominating and corporate governance committee consists of Mr. Larsen, Mr. Dyett and Ms. Morrissey, with Mr. Larsen serving as chair. Our board has determined that Mr. Larsen, Mr. Dyett and Ms. Morrissey meet the definition of “independent director” under applicable Nasdaq rules for purposes of serving on the nominating and corporate governance committee. The nominating and corporate governance committee held 3 committee meetings during the fiscal year ended December 31, 2022.recommend
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Compensation Committee Interlocks and Insider Participation
Nonelower-priced stocks to their clients. Further, the nature of trading commissions, which are often set at a fixed price, tend to have an adverse impact on holders of lower-priced securities because the brokerage commissions on a sale of lower-priced securities generally represent a higher percentage of the memberssales prices than the commissions on relatively higher-priced securities, which may discourage trading in such lower-priced stocks. Moreover, a reduction in outstanding shares would reduce the actual transaction costs imposed on those investors who pay commissions on trades of our compensation committee is an officer or onecommon stock based on the number of shares actually traded. The combination of lower transaction costs and increased interest from institutional investors and investment funds could ultimately improve the trading liquidity of our employees. Nonecommon stock, which we believe would benefit all stockholders.
Decrease Price Volatility. The board of our executive officers currently serves, ordirectors believes that the intended increase in the past three years has served,stock price as a memberresult of the Reverse Stock Split could decrease price volatility, as currently small changes in the price of common stock result in relatively large percentage changes in the stock price.
Current and Future Equity Financing. As of the Record Date, we had approximately 178,953,168 authorized shares of common stock available for future issuance. The Company may need to raise equity capital to have the necessary cash resources to fund operations. A Reverse Stock Split would provide the Company with additional authorized but unissued shares of common stock available which would provide the board of directors with flexibility to use our common stock for business and/or compensation committee (or other board committee performing equivalent functions or,financial purposes, as well as to accommodate the shares of our common stock to be authorized and reserved for future equity awards.
Certain Risks Associated with the Reverse Stock Split
There can be no assurance that the Reverse Stock Split, if completed, will result in the absenceintended benefits described above, including:
The Reverse Stock Split may not increase the price of any such committee,common stock. Although the entire board of directors) of any entity that has one or more executive officers serving on our board of directors expects that the Reverse Stock Split will result in an increase in the price of our common stock, the effect of the Reverse Stock Split cannot be predicted with certainty. Other factors, such as our financial results, the clinical development of our product candidates, market conditions and the market perception of our business, may adversely affect the stock price. As a result, there can be no assurance that the Reverse Stock Split, if completed, will result in the intended benefit described above, that the stock price will increase following the Reverse Stock Split or compensation committee.that the stock price will not decrease in the future.
Compensation Committee Report
Our compensation committee has reviewedThe Reverse Stock Split will facilitate the sale of additional shares of common stock which will dilute the ownership interest of existing holders of our common stock. We may need to raise capital by issuing additional shares of common stock, to have the necessary cash resources to fund operations. We are authorized in our Certificate of Incorporation to issue up to a total of 200,000,000 shares of common stock. As of July 28, 2023, we had 15,190,376 issued shares (including treasury shares) and discussed178,953,168 shares available for future issuance. The Reverse Stock Split will reduce the Executive Compensation information contained in this proxy statement with management. Based on our compensation committee’s reviewnumber of issued shares of common stock and discussions with management, our compensation committee recommended to ourincrease the shares of common stock available for future issuance by the Company. For example, if the board of directors adopts a 1-for-25 Final Ratio, the     shares of common stock issued (including treasury shares) as of July 28, 2023 prior to the Reverse Stock Split, will be reduced to approximately 607,615 issued shares of common stock (including treasury shares) post-Reverse Stock Split. In such a scenario, we would have 199,158,127 shares of common stock available for future issuance. All authorized but unissued shares that the compensation information be included in this proxy statement.
This report is submittedare not reserved for issuance would remain available for issuance by the members of the compensation committee of the Board of Directors:
Submitted by the Compensation Committee
Charles Larsen
Wendy Perrow
John Adams, Jr.
Insider Trading Policy; Employee, Officer and Director Hedging
Our executive officers, employees, and directors are subject to our insider trading policy. Femasys does not have a standalone anti-hedging policy.
Board and Committee Meetings and Attendance
Our board of directors and its committees meet regularly throughout the year, and also hold special meetings and act by written consent from time to time. During 2022, each member of our board of directors attended at least 75% of the aggregate of all meetings of our board of directors and of all meetings of committees of our board of directors on which such member served that were held during the period in which such director served. The board of directors held 6 board meetings during the fiscal year ended December 31, 2022.
Board Attendance at Annual Meeting of Stockholders
Our policy is to invite and encourage each member of our board of directors to be presentraise equity capital, at our annual meetingsany time, at the board of stockholders. All ofdirectors’ discretion. If the members of our board of directors were present at our 2022 annual meetingto authorize the issuance of stockholders.
Communication with Directors
Stockholders and interested parties who wish to communicate with our boardany such shares, such issuances would dilute the ownership interests of directors, non-management membersexisting holders of our board of directors as a group, a committeecommon stock. Our decision to issue securities in any future offering will depend on market conditions and other factors beyond our control, which may adversely affect the amount, timing or nature of our board of directors or a specific memberfuture offerings. Thus, holders of our boardcommon stock bear the risk that our future offerings will dilute their stockholdings in us.
Following the Reverse Stock Split, a “short squeeze” due to a sudden increase in demand for shares of directorsour common stock that largely exceeds supply and/or focused investor trading in anticipation of a potential short squeeze may lead to extreme price volatility in the shares of our common stock. As a result of the Reverse Stock Split, the total issued shares of common stock (including our Chairman and independent directors) may do sotreasury shares) will be reduced by letters addressedthe Final Ratio. For example, if the Board adopts a 1-for-25 Final Ratio, the 15,190,376 shares of common stock issued (including treasury shares) as of July 28, 2023 prior to the attentionReverse Stock Split will be reduced to approximately 607,615 issued shares of our Corporate Secretary.
All communications are reviewed by the Corporate Secretary and provided to the members of our board of directors as appropriate. Unsolicited items, sales materials, abusive, threatening or otherwise inappropriate materials and other routine items and items unrelated to the duties and responsibilities of our board of directors will not be provided to directors.
The address for these communications is:
Femasys Inc.
3950 Johns Creek Court, Suite 100common stock (including treasury shares) post-Reverse Stock Split. Investors may
Suwanee, Georgia 30024
Attn: Corporate Secretary
Code of Business Conduct and Ethics
We have adopted a written code of business conduct and ethics that applies to our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. A current copy of the code is posted on the investor section
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purchase shares of our website, whichcommon stock to hedge existing exposure or to speculate on the price of our common stock. Speculation on the price of our common stock may involve long and short exposures. To the extent aggregate short exposure exceeds the number of shares of our common stock available for purchase on the open market, investors with short exposure may have to pay a premium to repurchase shares of our common stock for delivery to lenders of our common stock. Those repurchases may, in turn, dramatically increase the price of shares of our common stock until additional shares of our common stock are available for trading or borrowing. This is locatedoften referred to as a “short squeeze.” A short squeeze and/or focused investor trading in anticipation of a short squeeze have led to, may be currently leading to, and could again, following the Reverse Stock Split, lead to volatile price movements in shares of our common stock that may be unrelated or disproportionate to our operating performance or prospects and, once investors purchase the shares of our common stock necessary to cover their short positions, or if investors no longer believe a short squeeze is viable, the price of our common stock may rapidly decline.
The Reverse Stock Split could cause the market price of our common stock to decline due to the large number of shares of our common stock available for future sale. If the Reverse Stock Split Proposal is approved and the Reverse Stock Split is effectuated, more shares will be available for future issuance. For example, if the board of directors adopts a 1-for-25 Final Ratio, the number of issued shares of common stock (including treasury shares) of 15,190,376 as of July 28, 2023 prior to the Reverse Stock Split, will be reduced to approximately 607,615 issued shares of common stock (including treasury shares) post-Reverse Stock Split. In such a scenario, we would have 199,158,127 shares of common stock available for future issuance. Sales of substantial amounts of our common stock in the public market in future offerings or the perception that these sales could occur, could cause the market price of our common stock to decline. These sales could also make it more difficult for us to sell equity or equity-related securities in the future, at https://ir.femasys.com/governance/governance-documents/a time and price that we deem appropriate. In addition, the additional sale of our common stock by our officers or directors in the public market or the perception that these sales may occur, could cause the market price of our common stock to decline. Further, resales by the investors of our common stock could have a significant impact on the market price of our common stock. We may issue shares of our common stock or other securities from time to time as consideration for, or to finance, future acquisitions, investments, debt-for-equity exchanges or for other capital needs. We cannot predict the size of future issuances of our shares or the effect, if any, that future sales and issuances of shares would have on the market price of our common stock.
The Reverse Stock Split may not result in a sustained increase in the market price of our common stock. We intendAlthough the board of directors expects that the Reverse Stock Split will result in an initial increase in the price of our common stock, the sustained effect of the Reverse Stock Split on the market price of our common stock cannot be predicted with certainty. Factors such as our financial results, the clinical development of our product candidates, market conditions and the market perception of our business, may adversely affect the market price of our common stock notwithstanding the approval of the Reverse Stock Split. In addition, the Company may need to satisfyraise equity capital to have the disclosure requirement under Item 5.05necessary cash resources to fund operations. Since January 1, 2023, the market price of Form 8-K regarding amendmentour common stock has decreased from $0.90 to $   on   , 2023. A declining market price of our common stock will decrease the amount of net cash proceeds the Company may raise in a financing in light of the limited amount of shares of common stock available for issuance by the Company. In addition, any sale of common stock by the Company may also adversely affect the market price of our common stock following the Reverse Stock Split. The continued downward pressure on the market price of our common stock may adversely affect the amount of net cash proceeds raised by the Company in any financing. As a result, a declining market price of our common stock may raise the likelihood that we would continue to, or waiver from, a provisionwill in the future, fail to comply with the Minimum Bid Price Requirement, which may ultimately result in the delisting of our Codecommon stock from the Nasdaq.
The Reverse Stock Split may decrease the trading market for common stock. Because the Reverse Stock Split will reduce the number of Business Conductshares of common stock available in the public market, the trading market for common stock may be harmed, particularly if the stock price does not increase as a result of the Reverse Stock Split.
The Reverse Stock Split may leave certain stockholders with “odd lots.” The Reverse Stock Split may result in some stockholders owning “odd lots” of fewer than 100 shares of common stock. Odd lot shares may be more difficult to sell, and Ethics by posting such information on our website atbrokerage commissions and other costs of transactions in odd lots are generally somewhat higher than the location specified above.costs of transactions in “round lots” of even multiples of 100 shares.
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NOMINATIONS PROCESS AND DIRECTOR QUALIFICATIONS
NominationYou should also keep in mind that the implementation of the Reverse Stock Split does not have an effect on the actual or intrinsic value of our business or a shareholder’s proportional ownership in the Company (subject to the Boardtreatment of Directorsfractional shares). However, should the overall value of common stock decline after the proposed Reverse Stock Split, then the actual or intrinsic value of the shares of common stock held by you will also proportionately decrease as a result of the overall decline in value.
Candidates for nomination to ourThe board of directors are selectedconsidered all of the foregoing factors and determined that seeking stockholder approval for the Reverse Stock Split Proposal is in the best interests of the Company and the stockholders.
If the Reverse Stock Split Proposal is Not Approved
If the Reverse Stock Split Proposal is not approved, the Company may put the Adjournment Proposal to a vote in order to seek time to obtain sufficient votes in support of the Reverse Stock Split Proposal. If the Reverse Stock Split Proposal is not approved, the Company will abandon the amendment to the Company’s Certificate of Incorporation to effect the Reverse Stock Split, although the Company may again, prior to the end of the compliance period (or second compliance period, if applicable) seek to obtain approval of a reverse stock split. In such case, it could significantly and negatively affect the Company’s ability to meet the Minimum Bid Price Requirement.
If the Reverse Stock Split Proposal is Approved
General. If the Reverse Stock Split Proposal is approved and implemented, the principal effects would be that (i) the shares of common stock owned by our boarda shareholder would be combined into one share of directorscommon stock based on the recommendationFinal Ratio, with any fractional shares being treated as addressed below, and (ii) the total number of issued shares of common stock (including treasury shares) would decrease based on the Final Ratio.
The following table contains approximate information, based on share information as of July 28, 2023 (the Record Date), relating to our issued shares of common stock (including treasury shares) based on the range of Reverse Stock Split ratios to be authorized by our stockholders, without giving effect to the treatment of fractional shares:
Status
​​
Number of
Shares of
Common Stock
Authorized
​​
Number of
Shares of
Common
Stock Issued
(including
Treasury Shares)
​​
Number of
Shares of
Common Stock
Reserved for
Future
Issuance
​​
Number of
Shares of
Common Stock
Authorized
but Unissued
and
Unreserved
Pre-Reverse Stock Split
​​
200,000,000
​​
15,190,376
​​
5,856,456
​​
178,953,168
Post-Reverse Stock Split 1:2
​​
200,000,000
​​
7,595,188
​​
2,928,228
​​
189,476,584
Post-Reverse Stock Split 1:10
​​
200,000,000
​​
1,519,037
​​
585,645
​​
197,895,318
Post-Reverse Stock Split 1:25
​​
200,000,000
​​
607,615
​​
234,258
​​
199,158,127
The Reverse Stock Split would be effected simultaneously for all of our nominating and corporate governance committee in accordance with its charter, our amended and restated certificate of incorporation and amended and restated bylaws, our Corporate Governance Guidelinescommon stock, and the criteria approved by our board of directors regarding director candidate qualifications. In recommending candidates for nomination, our nominating and corporate governance committee considers candidates recommended by directors, officers, employees, stockholders and others, usingreverse stock split ratio would be the same criteria to evaluatefor all candidates.
Additional information regardingshares of common stock. The Reverse Stock Split would affect all of the process for properly submitting stockholder nominations for candidates for nomination to our board of directors is set forth below under “Requirements for Stockholder Proposals to be considered for inclusion in our proxy materials for our 2024 Annual Meeting” and “Requirements for Stockholder Proposals to be presented at our 2024 Annual Meeting.”
Director Qualifications
With the goal of developing a diverse, experienced and highly qualified board of directors, our nominating and corporate governance committee is responsible for developing and recommending to our board of directors the desired qualifications, expertise and characteristics of membersholders of our board of directors, includingcommon stock uniformly and would not affect any specific minimum qualifications thatstockholder’s percentage ownership interests in the committee believes must be met by a committee-recommended nominee for membership on our board of directorsCompany. Proportionate voting rights and any specific qualities or skills that the committee believes are necessary for one or moreother rights of the membersholders of common stock will not be affected by the Reverse Stock Split, other than as a result of the treatment of fractional shares. Common stock issued pursuant to the Reverse Stock Split would remain fully paid and non-assessable. We will not issue any fractional shares as a result of the Reverse Stock Split as described below in the paragraph titled “Fractional Shares.” Each stockholder will hold the same percentage of common stock immediately following the Reverse Stock Split as such stockholder held immediately prior to the Reverse Stock Split other than the nominal effect of the treatment of fractional shares.
In addition, the Reverse Stock Split will not itself immediately affect our board of directors to possess.
Becauseoverall market capitalization, i.e., our market capitalization immediately before the identification, evaluation and selection of qualified directors is a complex and subjective process that requires consideration of many intangible factors, andReverse Stock Split will be significantly influenced by the particular needs of our board of directors from time to time, our board of directors has not adoptedsame as immediately after the Reverse Stock Split, except as a specific set of minimum qualifications, qualities or skills that are necessary for a nominee to possess, other than those that are necessary to meet U.S. legal, regulatory and Nasdaq listing requirements and the provisions of our amended and restated certificate of incorporation and amended and restated bylaws, our Corporate Governance Guidelines and the chartersresult of the committeestreatment of fractional shares as described below. However, if our board of directors. When considering nominees, our nominating and corporate governance committee may take into consideration many factors including, among other things,trading price increases or declines over time following the Reverse Stock Split, we will have a candidate’s independence, integrity, diversity, skills, financial and other expertise, breadth of experience, knowledge about our businesshigher or industry and ability to devote adequate time and effort to responsibilities of our board of directors in the context of its existing composition. The brief biographical description of each director set forth in “Proposal One: Election of Directors” below includes the primary individual experience, qualifications, attributes and skills of each of our directorslower market capitalization depending on that led to the conclusion that each director should serve as a member of our board of directors at this time.trading price.
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PROPOSAL ONE: ELECTION OF DIRECTORSExchange Act and Stock Listing. After the Effective Time, we would continue to be subject to periodic reporting and other requirements of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and the common stock would continue to be listed on Nasdaq under the symbol “FEMY.”
OurNew CUSIP Number. After the Effective Time, the post-Reverse Stock Split shares of common stock would have a new CUSIP number, which is a number used to identify our equity securities.
Effectiveness of Reverse Stock Split. The Reverse Stock Split, if approved by stockholders, would become effective upon the date determined by the board of directors currently consistsand upon the filing of seven directors and is divided into three classes, with staggered three-year terms, pursuanta Certificate of Amendment to our amended and restated certificateCertificate of incorporationIncorporation with the Secretary of State of the State of Delaware. It is expected that this filing will take place shortly following the Special Meeting, assuming the stockholders approve the Reverse Stock Split Proposal. However, the exact timing of the filing of the Certificate of Amendment will be determined by the board of directors based on its evaluation as to when such action will be the most advantageous to the Company and our amendedstockholders. In addition, the board of directors reserves the right, notwithstanding stockholder approval and restated bylaws. Directors in Class II will stand for electionwithout further action by the stockholders, to elect not to proceed with the Reverse Stock Split Proposal if, at any time before the Annual Meeting. The terms of officeEffective Time, the board of directors, in Class IIIits sole discretion, determines that it is no longer in our and Class I expire at our Annual Meetingsstockholders’ best interests to proceed with the Reverse Stock Split Proposal.
Effect on the Company’s Stock Plans. As of Stockholders to be heldJuly 28, 2023, we reserved approximately 1,041,818 shares of common stock in 2024connection with our Plans and 2025, respectively. Atequity awards. Under the recommendation of our nominating and corporate governance committee, our board of directors proposes that eachterms of the three Class II nominees named below be elected as a Class II director for a three-year term expiring at our 2026 Annual Meeting of StockholdersCompany’s Plans, the Compensation Committee or until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation, disqualification or removal.
Shares represented by proxies will be voted “FOR” the election of each of the three nominees named below, unless the proxy is marked to withhold authority to so vote. If any nominee for any reason is unable to serve or for good cause will not serve, the proxies may be voted for such substitute nominee as the proxy holder might determine. Each nominee has consented to being named in this Proxy Statement and to serve if elected. Proxies may not be voted for more than three directors. Stockholders may not cumulate votes for the election of directors.
Nominees to Our Board of Directors
The nominees and their ages, occupations and lengths of service on our board of directors, as applicable , may, in its sole discretion, make equitable adjustments to the Plans in order to prevent dilution or enlargement of April 11, 2023 are providedthe benefits available under the Plans, which may include adjustments to the aggregate number and kind of shares that may be issued under the Plans, the number and kind of shares or other property (including cash) to be issued upon the vesting or exercise of an outstanding awards granted under the Plans and the purchase price thereof (as applicable). In accordance with such provisions in each of the table below and inPlans, upon implementation of the additional biographical descriptions set forth inReverse Stock Split Proposal, the text below the table.
Name
​​
Age
​​
Position
​​
Director Since
Charles Larsen(1)(2)(3)(4)(5)(6)
​​
71
​​
Director and Director Nominee
​​
October 2015
Anne Morrissey(1)(3)
​​
56
​​
Director and Director Nominee
​​
May 2021
Wendy Perrow(2)
​​
65
​​
Director and Director Nominee
​​
January 2022
(1)
Member of our audit committee
(2)
Member of our compensation committee
(3)
Member of our nominating and corporate governance committee
(4)
Chairperson of our compensation committee
(5)
Chairperson of our nominating and corporate governance committee
(6)
Chairperson of the Board
Charles Larsen has served as a member of our Board since October 2015 and as Chairman of our Board since 2021. Mr. Larsen has over 35 years of operating and technical experience in the medical device industry. He co-founded Novoste Corporation in 1992 and The Innovation Factory in 1999 and through his role at The Innovation Factory, he co-founded additional companies, including medical device companies such as Acufocus, Inc., AqueSys Inc., Halscion, Inc., Neuronetics, Inc. and Sebacia, Inc. He holds over 30 issued U.S. and international patents on medical devices. Before joining Novoste, Mr. Larsen held positions with Novoste Puerto Rico, Cordis Corporation, Key Pharmaceuticals and Parke-Davis/Warner Lambert in executive, senior engineering and project management roles. Mr. Larsen also serves onCompensation Committee or the board of directors, as applicable, is expected to make certain equitable adjustments to the number of Acufocus, CardioFocus, Intuity Medical Inc.,shares issuable upon the vesting of outstanding restricted stock units, per share exercise price and Torax Medical, Inc, each specialty medicalthe number of shares issuable upon the exercise of stock options under the Plans and proportionately adjust the aggregate number of shares reserved for issuance and the aggregate number of shares that may be issued pursuant to equity stock options based on the Final Ratio determined by the board of directors. In addition, pursuant to the authority provided under the Plans, the Compensation Committee or medical device companies. Mr. Larsen is a graduate of the New Jersey Institute of Technology with a B.S. in Mechanical Engineering.
Our board of directors, believes that Mr. Larsenas applicable, is qualifiedexpected to serve onauthorize the Company to effect any other changes necessary, desirable or appropriate to give effect to the Reverse Stock Split Proposal, including any applicable technical, conforming changes to our Plans. The Compensation Committee or the board of directors duewill also determine the treatment of fractional shares subject to his expertisestock options and other outstanding awards under the Plans.
Effect on Authorized but Unissued Shares of Common Stock. Currently, we are authorized in medical device companies and technology.
Anne Morrissey has servedour Certificate of Incorporation to issue up to a total of 200,000,000 shares of common stock. The total number of authorized shares of common stock will not change as a memberresult of the Reverse Stock Split. As of July 28, 2023, we had 15,073,153 shares of common stock outstanding and 117,223 shares of common stock held in treasury. As described above, the Reverse Stock Split would have the effect of reducing the number of outstanding shares of common stock, the number of shares of common stock held in treasury, and the number of shares of common stock reserved for issuance pursuant to our stock plans. Therefore, because the total number of authorized shares of common stock will not change as a result of the Reverse Stock Split, upon the effectiveness of the Reverse Stock Split, the number of authorized shares of common stock that are not issued or reserved for issuance would increase. All authorized but unissued shares that are not reserved for issuance would remain available for issuance by the board of directors since May 2021. She serves asfor general corporate purposes, at its discretion, without stockholder approval. If the Presidentboard of directors were to authorize the issuance of any such shares, such issuances could dilute the ownership interests of holders of common stock and Chief Executive Officermay also cause a decline in the trading price of May Health (formerly AblaCare)our common stock.
Effect on Preferred Stock. The Reverse Stock Split will not affect the authorized number or par value of the shares of preferred stock of the Company (the “Preferred Stock”), a medical technology company. Ms. Morrissey served as Presidentwhich will remain at 10,000,000 and Chief Executive Officer$0.001, respectively.
Effect on Common Stock Warrants. If the Reverse Stock Split is effected, proportionate adjustments are generally required to be made to the per share exercise price and the number of Alydia Health from 2016 to 2020, and thereafter as an advisor until it was acquired by Merck in March 2021. She co-founded Vivant Medical in 1998, where she served as Director of Business Development until 2000, and founded Ucan Products in 2011, where she served as CEO until 2016. Previously, she also served as Marketing Manager at General Surgical Innovations, subsequently acquired by Tyco. She also held positions with Mentor Worldwide, LLC, a Johnson & Johnson Company, and Kimberly Clark in sales roles. She holds several patents on medical devices and advises several medical device companies, including Raydiant Oximetry. Ms. Morrissey is a graduate of Willamette University with a BA in History.shares issuable upon the exercise
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Our board of directors believes that Ms. Morrissey is qualifiedwarrants to servepurchase common stock into shares of common stock. This will result in approximately the same aggregate price being required to be paid under such securities upon exercise or conversion, and approximately the same value of shares of common stock being delivered upon such exercise immediately following the Reverse Stock Split as was the case immediately preceding the Reverse Stock Split. The number of shares reserved for issuance pursuant to these securities will be proportionately adjusted based on the Final Ratio, subject to our boardtreatment of directors due to her extensive experiencefractional shares.
Potential Anti-Takeover Effect. This proposal, if adopted and implemented, will result in a relative increase in the life sciences creating new businessesnumber of authorized but unissued shares of common stock vis-à-vis the outstanding shares of common stock and establishing strategic direction, as well as her leadership experience.
Wendy Perrow has served ascould, under certain circumstances, have an anti-takeover effect. For example, the issuance of a memberlarge block of our boardcommon stock could dilute the stock ownership of directors since January 2022. She serves as a Senior Advisor at Princeton Capital Advisors,person seeking to effect a global independent advisory firm, and she is a memberchange in the composition of the board of advisorsdirectors or contemplating a tender offer or other transaction for the Maryland Momentum Fund. Previously, she served as Chief Executive Officer and Board Member of AsclepiX Therapeutics, Inc. from 2016 to 2020. She was the Vice President of Marketing and then Chief Executive Officer of Alba Therapeutics, Inc. from 2008 to 2016. Previously, she served as Vice President, Marketing & Sales for Sigma-Tau Pharmaceuticals focusing on rare and orphan disease products. She also held positions with Merck & Co. in U.S. and global marketing, where she led U.S. and global launches/initiatives for Zocor®, Varivax®, Cozaar®, and Hyzaar®. Ms. Perrow began her career in a divisioncombination of the Johnson & Johnson Company. Ms. Perrow also serves as memberCompany with another company. However, the Reverse Stock Split Proposal providing for the Reverse Stock Split is not being proposed in response to any effort of which the Company is aware to accumulate shares of common stock or obtain control of the Maryland Life Sciences Advisory Board,Company, nor is it part of a plan by management to recommend to the Maryland TEDCO review board of the Maryland Innovation Initiative, and Women in Bio. Ms. Perrow is a graduate of Duke University, The Fuqua School of Business with an MBA and Eastern Illinois University with a BS in Education.
Our board of directors believes that Ms. Perrow is qualifiedand stockholders a series of amendments to serve on ourthe Company’s Certificate of Incorporation. Other than the Reverse Stock Split Proposal for the Reverse Stock Split, the board of directors duedoes not currently contemplate recommending the adoption of any other amendments to her extensive experiencethe Company’s Certificate of Incorporation that could be construed to reduce or interfere with the ability of third parties to take over or change the control of the Company.
Fractional Shares. To avoid having any fractional shares of common stock (i.e., less than one full share of common stock) outstanding as a biotechnology entrepreneurresult of the Reverse Stock Split, no fractional shares will be issued in connection with the Reverse Stock Split. Instead, we will issue one full share of the post-Reverse Stock Split Common Stock to any stockholder who would have been entitled to receive a fractional share as a result of the process; provided that fractional shares of common stock subject to outstanding equity awards shall be aggregated until, and leadereliminated at, the time of exercise or settlement by rounding-down for innovative biotechfractions that are less than one-half and pharmaceutical ventures, as well as her leadership experiencerounding-up for fractions that are equal to or greater than one-half, in expediting growth, profitability and fundraising.
Continuing Directors
The directors who are serving for terms that end followingeach case, unless otherwise determined by the Annual Meeting and their ages, occupations and lengths of service on ourCompensation Committee or the board of directors, as applicable, or as otherwise required by applicable law. Each holder of April 26, 2023 are providedshares of common stock will hold the same percentage of the outstanding common stock immediately following the Reverse Stock Split as that stockholder did immediately prior to the Reverse Stock Split, except for minor adjustments due to the additional net share fraction that will need to be issued as a result of the treatment of fractional shares.
Effect on Par Value; Reduction in Stated Capital. The Reverse Stock Split will not affect the par value of our Common Stock and preferred stock, which will remain at $0.001 per share of Common Stock and $0.001 per share of preferred stock. As a result, the stated capital on our balance sheet attributable to our Common Stock, which consists of the par value per share of Common Stock multiplied by the aggregate number of shares of Common Stock issued (including treasury shares), will be reduced in proportion to the Final Ratio selected by the board if directors. Correspondingly, our additional paid-in capital account, which consists of the difference between our stated capital and the aggregate amount paid to the Company upon issuance of all currently outstanding shares of the Common Stock, will be increased by the amount by which the stated capital is reduced. Our stockholders’ equity, in the table below andaggregate, will remain unchanged.
No Going Private Transaction. Notwithstanding the decrease in the additional biographical descriptions set forth innumber of outstanding shares of common stock following the text belowproposed Reverse Stock Split, the table.
Name
​​
Age
​​
Position
​​
Director Since
Class III Directors:
​​
​​
​​
Kathy Lee-Sepsick
​​
55
​​
Founder, President, Chief Executive Officer and Director
​​
February 2004
John Dyett(1) (3) (4)
​​
53
​​
Director
​​
January 2017
​​
​​
​​
Class I Directors:
​​
​​
​​
John Adams, Jr.(2)
​​
61
​​
Director
​​
April 2015
Edward Uzialko, Jr.
​​
72
​​
Director
​​
August 2005
(1)
Member of our audit committee
(2)
Member of our compensation committee
(3)
Member of our nominating and corporate governance committee
(4)
Chairperson of our audit committee
Kathy Lee-Sepsick, our founder, has served as our President and Chief Executive Officer since 2004 and as our Chairman from 2004 to 2021. Ms. Lee-Sepsick has served as a senior executive in the medical technologies industry for nearly three decades, compiling a successful track record in growing emerging companies and corporate operating divisions. She holds over 100 patents globally for Femasys products and product candidates. Ms. Lee-Sepsick was instrumental in the various stages of product and company life cycles with strategic, operational, and executive responsibilities, at start-ups Novoste Corporation, developer of intravascular therapy solution and SaluMedica, biomaterial developer of artificial cartilage. At the onset of her career, Ms. Lee-Sepsick served in a product management role at Terumo Medical Corporation, where she was integral in the management of strategic partner, Boston Scientific Corporation. Ms. Lee-Sepsick also serves on the Board of Directors of Georgia Bio. Ms. Lee-Sepsick is a graduate of Rutgers University with an MBA and a BS in Biochemistry.
Our board of directors believes that Ms. Lee-Sepsick is qualifieddoes not intend for this transaction to serve on our boardbe the first step in a “going private transaction” within the meaning of directors becauseRule 13e-3 of the perspectiveExchange Act.
No Appraisal or Dissenter’s Rights. Under Delaware law, holders of common stock will not be entitled to dissenter’s rights or appraisal rights with respect to the Reverse Stock Split Proposal.
Effect on Registered and experience she brings as our founder, President and Chief Executive Officer and her backgroundBeneficial Holders. If the Reverse Stock Split is effected, we intend to treat beneficial holders (i.e., stockholders who hold their shares in “street name” through a bank, broker or other nominee) in the life sciences industry.
John Dyett has servedsame manner as a member of our board of directors since January 2017. Mr. Dyett has served asregistered stockholders whose shares are registered in their names. Banks, brokers or other nominees will be instructed to effect the Co-CEO of Salem Partners, LLC since 1997 and Salem Partners Wealth Management, LLC since 2004. Mr. Dyett helped raise several rounds of venture capitalReverse Stock Split for Adams Respiratory Therapeutics, Inc. which was purchased for $2.3 billion by Reckitt Benckisertheir beneficial holders holding shares in 2008. Mr. Dyett helped launch ZS Pharma, Inc., a specialty“street
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pharmaceutical company. ZS Pharma, Inc. completedname.” However, these banks, brokers or other nominees may have different procedures than registered stockholders for processing the Reverse Stock Split. Stockholders who hold shares of our common stock with a successful initial public offeringbank, broker or other nominee and who have questions in June 2014 and was subsequently purchasedthis regard are encouraged to contact their banks, brokers or other nominees.
Effect on Registered Book-Entry Holders. Some of our registered stockholders may hold some or all of their shares electronically in book-entry form under the direct registration system for securities. These stockholders do not have stock certificates evidencing their ownership of common stock. Instead, they are provided with a statement reflecting the number of shares registered in their accounts. If you hold shares in book-entry form, you do not need to take any action following the Effective Time in order for your shares to be adjusted to reflect the Reverse Stock Split, subject to the treatment of fractional shares, if applicable. If you are entitled to post-Reverse Stock Split shares, a transaction statement will automatically be sent to your address of record indicating the number of shares you hold following the Effective Time.
Reservation of Right to Abandon the Reverse Stock Split Proposal
The board of directors reserves the right to abandon the Reverse Stock Split Proposal without further action by AstraZeneca for $2.7 billion. Mr. Dyett serves onour stockholders at any time before the investment committeeEffective Time, even if stockholders approve such amendment at the Special Meeting. By voting in favor of Salem Partners Wealth Management. Mr. Dyett wasthe Reverse Stock Split Proposal, stockholders are also a banker with Gerard Klauer Mattison & Co., Inc. and Needham and Co., Inc. Mr. Dyett previously served onexpressly authorizing the board of directors to determine not to proceed with, and abandon, the Reverse Stock Split Proposal if it should so decide.
Interests of Sierra Total Return Fund from 2016 to 2020. Mr. Dyett also serves onDirectors and Executive Officers
Certain of our officers and directors have an interest in the board of directors of Medley Management and OncoNano Medicine. Mr. Dyett is a graduate of Harvard College with BA in Government and Economics.
Our board of directors believes that Mr. Dyett is qualified to serve on our board of directors due to his experienceReverse Stock Split Proposal as a biopharmaceutical and medical device private and public company investor.
John Adams, Jr. has served as a memberresult of their ownership of shares of common stock. However, we do not believe that our board ofofficers or directors since April 2015. Mr. Adams has served as Chief Executive Officer of Adams Respiratory Therapeutics Inc. and served as its President from 2003 to 2008. Adams Respiratory developed Mucinex and was subsequently acquired by Reckitt Benckiser for $2.3 billion. Mr. Adams founded and has managed Legacy Capital Partners, LLC, an investment management and private equity firm focused on healthcare technology and pharmaceutical development, since 2009. Mr. Adams is a graduate of Austin College in Sherman, Texas with a BA in Business.
Our board of directors believes that Mr. Adams is qualified to serve on our board of directors due to his extensive experiencehave interests in the life sciences as well as his business and leadership experience.
Edward Uzialko, Jr. has served as a memberReverse Stock Split Proposal that are different than or greater than those of our board of directors since August 2005. Mr. Uzialko was the founder and Chief Executive Officer of Lynk Systems, Inc. from 1991 until it was acquired by Royal Bank of Scotland in 2004. Lynk provided electronic payment, cash dispensing and e-commerce services. Lynk was a full service Value Added Reseller offering ongoing support for hardware, software, and project development for Hewlett Packard, Motorola, Microsoft and various other technological products. Mr. Uzialko has also served as the owner and Chief Executive Officer of Mainstream Merchant Services, a credit card processing firm, since 2007. Mr. Uzialko attended the Florida Institute of Technology from 1969 to 1973.
Our board of directors believes that Mr. Uzialko is qualified to serve on our board due to his experience in the fields of finance and technology.
Family Relationships
There are no family relationships among any of our directors or executive officers.other stockholders.
Director Compensation
Director Compensation TableMaterial U.S. Federal Income Tax Consequences of the Reverse Stock Split
The following table provides information concerning compensation awardedis a discussion of material U.S. federal income tax consequences of the Reverse Stock Split to earned byU.S. Holders (as defined below) that hold shares of Femasys common stock as capital assets for U.S. federal income tax purposes.
This summary does not address all aspects of U.S. federal income taxation that may be relevant to U.S. Holders in light of their particular circumstances or to U.S. Holders who may be subject to special tax treatment under the Code, including, without limitation dealers or traders in securities, commodities or foreign currency; banks, thrifts, insurance companies, and paidother financial institutions; traders that mark-to-market their securities; tax-exempt organizations or governmental organizations; regulated investment companies; real estate investment trusts; tax-deferred or other retirement accounts; persons whose functional currency is not the U.S. dollar; persons who hold Femasys common stock as part of a “straddle,” “hedge,” “conversion transaction” or other risk reduction transaction; persons who hold or receive Femasys common stock pursuant to the exercise of compensatory stock options, the vesting of previously restricted shares of stock or otherwise as compensation; any entity or arrangement that is a partnership or other pass-through entity for U.S. federal income tax purposes; “expatriated entities”; or certain former citizens or long-term residents of the United States.
This discussion is based on the Internal Revenue Code of 1986 (the “Code”), U.S. Treasury regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the Internal Revenue Services (the “IRS”) in effect as of the date hereof, all of which are subject to change, possibly with retroactive effect, or differing interpretations. Any such change may cause the U.S. federal income tax consequences of the Reverse Stock Split to vary substantially from the consequences summarized below. Femasys has not sought any ruling from the IRS with respect to the statements made and the conclusions reached in this discussion, and there can be no assurance that the IRS will agree with these statements and conclusions. The effects of other U.S. federal tax laws, such as estate and gift tax laws and the alternative minimum tax and the 3.8% tax on net investment income.
The state and local tax consequences of a reverse stock split may vary as to each person who servedU.S. Holder, depending on the jurisdiction in which such U.S. Holder resides. This discussion should not be considered as a non-employee membertax or investment advice, and the tax consequences of our boardthe Reverse Stock Split may not be the same for all U.S. Holders. U.S. Holders should consult their own tax advisors to understand their individual federal, state, local and foreign tax consequences to them of directors during the fiscal year ended December 31, 2022. Ms. Lee-Sepsick is not included in the table below, as she is employed as our Chief Executive Officer and receives no compensation for her service as a director. The compensation received by Ms. Lee-Sepsick as an employee is shown in “Executive Compensation-Summary Compensation Table” below.reverse stock split.
Name
​​
Fees Earned or
Paid in Cash
($)
​​
Awards(1)
($)
​​
All Other
Compensation
($)
​​
Total
($)
John Adams, Jr.
​​
46,000
​​
10,454
​​
—
​​
56,454
John Dyett
​​
80,000
​​
10,454
​​
—
​​
90,454
Charles Larsen
​​
78,736
​​
10,454
​​
—
​​
89,190
Anne Morrissey
​​
53,758
​​
10,454
​​
—
​​
64,212
Wendy Perrow(2)
​​
43,775
​​
52,805
​​
—
​​
96,580
Edward Uzialko
​​
40,290
​​
10,454
​​
—
​​
50,744
William Witte(3)
​​
2,177
​​
—
​​
—
​​
2,177
(1)
The values shown reflect the grant date fair value of the non-employee director stock option awards computed in accordance with FASB ASC, Topic 718. See Note 9 to the Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 30, 2023, for a discussion on the relevant assumptions used in the calculation.
(2)
Ms. Perrow joined our board of directors in January 2022
(3)
Mr. Witte is a former director who transitioned off of our board of directors in January 2022.
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Non-Employee Director Compensation ArrangementsFor purposes of this discussion, a “U.S. Holder” is a beneficial owner of shares of Femasys common stock that, for U.S. federal income tax purposes, is or is treated as:
Our non-employee director compensation policy consistsan individual who is a citizen or resident of annual retainer feesthe United States;
a corporation (or other entity taxable as a corporation for U.S. federal income purposes) created or organized under the laws of the United States, any state thereof, or the District of Columbia;
an estate, the income of which is subject to U.S. federal income tax regardless of its source; or
a trust if either a court within the United States is able to exercise primary supervision over the administration of such trust and long-term equity awards.one or more United States persons (within the meaning of Section 7701(a)(30) of the Code) have the authority to control all substantial decisions of such trust, or the trust has a valid election in effect under applicable Treasury Regulations to be treated as a United States person for U.S. federal income tax purposes.
UnderThis discussion does not consider the policy,tax treatment of partnerships or other pass-through entities or persons who hold Femasys common stock through such entities. If a partnership (or other entity or arrangement treated as a partnership or other pass-through entity for U.S. federal income tax purposes) is the beneficial owner of Femasys common stock, the U.S. federal income tax treatment of a partner or member in such partnership or other pass-through entity generally will depend on the status of the partner or member and the activities of the partnership or other pass-through entity and its partners or members. Partnerships or other pass-through entities or arrangements holding Femasys common stock and partners or members in such entities or arrangements are urged to consult their own tax advisors.
Tax Consequences of the Reverse Stock Split
The Reverse Stock Split should constitute a “recapitalization” for U.S. federal income tax purposes under Section 368(a)(1)(E) of the Code. As a result, a U.S. Holder of shares of Femasys common stock should not recognize any gain or loss for U.S. federal income tax purposes as a result of the Reverse Stock Split. A U.S. Holder’s aggregate tax basis in shares of Femasys common stock received in the Reverse Stock Split should equal the U.S. Holder’s aggregate tax basis in the shares of Femasys common stock exchanged in the Reverse Stock Split. In addition, each director whoU.S. Holder’s holding period for the shares of Femasys common stock the U.S. Holder receives in the Reverse Stock Split should include the U.S. Holder’s holding period for the shares of Femasys common stock exchanged in the Reverse Stock Split. U.S. Holders of shares of Femasys common stock acquired on different dates and at different prices should consult their own tax advisors regarding the allocation of the tax basis and holding period of such shares.
Information Reporting and Backup Withholding
A U.S. Holder of shares of Femasys common stock may be subject to information reporting and backup withholding in connection with the Reverse Stock Split, unless the U.S. Holder is an exempt recipient. Backup withholding generally will apply to such payments if the U.S. Holder fails to furnish a correct taxpayer identification number, a certification of exempt status or has been notified by the IRS that it is subject to backup withholding (and such notification has not been withdrawn). Each U.S. Holder of shares of Femasys common stock should properly complete and sign, and deliver, an IRS Form W-9 in order to provide the information and certification necessary to avoid backup withholding, or otherwise establish an applicable exemption in a manner acceptable to the paying agent. U.S. Holders of shares of Femasys common stock should consult their own tax advisors regarding their qualification for an exemption from backup withholding and the procedures for obtaining such an exemption. Backup withholding is not an employeeadditional tax. Any amounts withheld will be paid cash compensationallowed as set forth below:
​​
Annual
Retainer
Board of Directors:
​​
Members
​​
$40,000
Additional retainer for non-executive chair, if any
​​
$35,000
Audit Committee:
​​
Members (other than chair)
​​
$9,000
Retainer for chair
​​
$20,000
Compensation Committee:
​​
Members (other than chair)
​​
$6,000
Retainer for chair
​​
$15,000
Nominatinga credit against the holder’s U.S. federal income tax liability and Corporate Governance Committee:
​​
Members (other than chair)
​​
$5,000
Retainer for chair
​​
$10,000
The board of directors may in its discretion, permitentitle such holder to a non-employee directorrefund, provided the required information is timely furnished to elect to receive any portionthe IRS. U.S. Holders should consult their tax advisors regarding their qualification for an exemption from backup withholding and the procedures for obtaining such an exemption.
Required Vote
Approval of the annual cash retainer in the form of fully vested and unrestricted shares of common stock in lieu of cash.
Also, pursuant to this policy, on the date of any annual meeting of our stockholders, we intend to grant each eligible non-employee director an award of an option to purchase 8,500 shares of our common stock (at a per-share exercise price equal to the closing price per share of the common stock on the date of such annual meeting (or on the last preceding trading day)). The terms of each such awardReverse Stock Split Proposal will be set forth in a written award agreement between each non-employee director and us, which will generally provide for vesting after one yearobtained if the number of continued service as a director. Each such award will vest in full immediately prior tovotes cast “FOR” the occurrenceproposal at the Special Meeting exceeds the number of a Change in Control (as defined invotes “AGAINST” the Femasys Inc. 2021 Equity Incentive Plan, or the 2021 Plan).proposal.
Also, pursuant to this policy, we intend to grant any eligible new non-employee director who joins the board an award of an option to purchase 17,000 shares of our common stock (at a per-share exercise price equal to the closing price per share of the common stock on the date of such director’s election or appointment (or on the last preceding trading day)). The terms of each such award will be set forth in a written award agreement between the non-employee director and us, which will generally provide for vesting in three equal installments following the date of grant (such that such award will vest in full on the third anniversary of the date of grant subject to continued service). Each such award will vest in full immediately prior to the occurrence of a Change in Control.Recommendation
All cash and equity awards granted under the non-employee director compensation policy will be granted under, and subject to the limits of, the 2021 Plan.
We also reimburse all reasonable out-of-pocket expenses incurred by non-employee directors in attending meetings of the board of directors and committees thereof.
OURTHE BOARD OF DIRECTORS RECOMMENDS ATHAT THE STOCKHOLDERS VOTE “FOR ALL” NOMINEES FORTO APPROVE THE ELECTION OF THE THREE CLASS II DIRECTORS SET FORTH IN THIS PROPOSAL ONE.REVERSE STOCK SPLIT PROPOSAL.
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PROPOSAL TWO: APPROVAL OF AN AMENDMENT TO FEMASYS’ CERTIFICATE OF2
INCORPORATION TO PROVIDE FOR THE EXCULPATION OF OFFICERS AS PERMITTED BY
THE DELAWARE GENERAL CORPORATION LAWADJOURNMENT PROPOSAL
Our CertificateIf at the Special Meeting the number of Incorporation currently provides for Femasys to limit the monetary liabilityshares of directorscommon stock present or represented and voting in certain circumstances pursuant to and consistent with Section 102(b)(7)favor of the Delaware General Corporation Law (“DGCL”). Effective August 1, 2022, Section 102(b)(7) of the DGCL was amended to permit a corporation’s certificate of incorporation to include a provision eliminating or limiting monetary liability for certain senior corporate officers for breach of the duty of care, subject to certain exceptions. The board has determined that itReverse Stock Split Proposal is advisable and in the best interests of Femasysinsufficient to approve an amendment (the “Proposed Amendment”)the proposal, our management may move to our Certificate of Incorporation to provide for exculpation of our officers as now permitted byadjourn the DGCL, and has directed that the Proposed Amendment be submitted for adoption and approval by the stockholders at the Annual Meeting. The full text of the Proposed Amendment is set forth in Appendix A to this Proxy Statement.
Summary of Principal Changes
If this proposal is adopted, Article VII of our Certificate of Incorporation will be amended to add officers to the exculpation provision and provide officers with similar protections to those currently afforded members of the board, subject to the additional limitations of the DGCL. The board believes that the Proposed Amendment is necessarySpecial Meeting in order to enable the board of directors to continue to attract and retain experienced and qualified officers.
As amended, effective August 1, 2022, Section 102(b)(7)solicit additional proxies in favor of the DGCL providesReverse Stock Split Proposal. In that event, you will be asked to vote only certain officers may be entitledupon the Adjournment Proposal and not on the Reverse Stock Split Proposal.
In this proposal, we are asking you to exculpation; namely: (i) a corporation’s president, chief executive officer, chief operating officer, chief financial officer, chief legal officer, controller, treasurer or chief accounting officer; (ii) an individual identifiedauthorize the holder of any proxy solicited by the board of directors to vote in public filings as onefavor of adjourning the Special Meeting. If our stockholders approve the Adjournment Proposal, we could adjourn the Special Meeting, and any adjourned session of the most highly compensated officers of Femasys; and (iii) an individual who, by written agreement with Femasys, has consentedSpecial Meeting, to be identified as an officer for purposes of Delaware’s long-arm jurisdiction statute.
Similaruse the additional time to the existing exculpation provided memberssolicit additional proxies in favor of the board under Femasys’ current CertificateReverse Stock Split Proposal, including the solicitation of Incorporation,proxies from stockholders that have previously voted against the Proposed Amendment would not limit the liability of officers for any breachproposal. Among other things, approval of the duty of loyalty to the corporation or its stockholders, any acts or omissions not in good faith or which involve intentional misconduct orAdjournment Proposal could mean that, even if proxies representing a knowing violation of the law, or any transaction from which the officer derived an improper personal benefit. Furthermore, pursuant to Section 102(b)(7) of the DGCL, the Proposed Amendment would allow for the exculpation of the officers specified above only in connection with direct claims brought by stockholders, including class actions, but would not eliminate such officers’ monetary liability for breach of fiduciary duty claims brought by the corporation itself or for derivative claims brought by stockholders in the name of the corporation.
This description of the Proposed Amendment is only a summary of those amendments and is qualified in its entirety by reference to, and should be read in conjunction with, the full text of Article VII of our Certificate of Incorporation a copy of which is attached to this proxy statement as Appendix A. Other than the amendment of the existing Article VII by the Proposed Amendment, the remainder of the Certificate of Incorporation will remain unchanged. If the Proposed Amendment is approved by the stockholders, the Proposed Amendment will become effective upon filing of the Certificate of Amendment of Certificate of Incorporation with the Delaware Secretary of State, which Femasys intends to file promptly following the Annual Meeting if the requisite votes are obtained.
Vote Required and Recommendation of the Board of Directors
The approval of Proposal 2 requires the affirmative sixty-six and two thirds (66 2/3rds) of the outstanding shares of our common stock. Broker non-votes and abstentions will have the effectsufficient number of votes against the Reverse Stock Split Proposal have been received, we could adjourn the Special Meeting without a vote on the Reverse Stock Split Proposal and seek to convince the holders of those shares to change their votes to votes in favor of the approval of the Reverse Stock Split Proposal.
Required Vote
Approval of the Adjournment Proposal will be obtained if the number of votes cast “FOR” the proposal at the Special Meeting exceeds the number of votes “AGAINST” the proposal.
OURRecommendation
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL OF PROPOSAL TWO.THE ADJOURNMENT PROPOSAL.
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PROPOSAL THREE: RATIFICATION OF APPOINTMENT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Our audit committee has selected KPMG LLP as our independent registered public accounting firm to perform the audit of our financial statements for the fiscal year ending December 31, 2023 and recommends that our stockholders vote for the ratification of such selection. The ratification of the selection of KPMG LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023 requires the affirmative vote of a majority of the number of votes cast “FOR” and “AGAINST” the proposal. In the event that KPMG LLP is not ratified by our stockholders, the audit committee will review its future selection of KPMG LLP as our independent registered public accounting firm.
KPMG LLP audited our financial statements for the fiscal year ended December 31, 2022 and their engagement for the fiscal year ended December 31, 2023 is being recommended by the board of directors to the shareholders for ratification. Representatives of KPMG LLP are expected to be present at the Annual Meeting and they will be given an opportunity to make a statement at the Annual Meeting if they desire to do so and will be available to respond to appropriate questions.
Independent Registered Public Accounting Firm Fees and Services
We regularly review the services and fees from our independent registered public accounting firm. These services and fees are also reviewed with our audit committee annually. The following table provides information regarding the fees billed for professional services rendered by KPMG LLP, our independent registered public accounting firm, for the fiscal years ended December 31, 2022 and 2021:
 
​​
Year Ended December 31,
 
​​
2022
​​
2021
Audit fees(1)
​​
$411,266
​​
$673,942
Tax fees(2)
​​
34,600
​​
43,000
Total fees
​​
$445,866
​​
$716,942
(1)
Consists of services rendered in connection with the audit of our financial statements, including audited financial statements included in our Form 10-K filing and presented in our Registration Statement on Form S-1, review of the interim financial statements and services normally provided in connection with regulatory filings. Included in Audit fees is an aggregate of $386,208 of services rendered in connection with our initial public offering, which closed in June 2021.
(2)
Consists of fees billed for professional services in connection with the preparation of our tax returns, including the services for our research and development tax credit analysis.
Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Independent Registered Public Accounting Firm
Our audit committee’s policy is to pre-approve all audit and permissible non-audit services provided by our independent registered public accounting firm, the scope of services provided by our independent registered public accounting firm and the fees for the services to be performed. These services may include audit services, audit-related services, tax services and other services. Pre-approval is detailed as to the particular service or category of services and is generally subject to a specific budget. Our independent registered public accounting firm and management are required to periodically report to the audit committee regarding the extent of services provided by our independent registered public accounting firm in accordance with this pre-approval, and the fees for the services performed to date.
All of the services relating to the fees described in the table above for 2022 were approved by our audit committee.
OUR BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL OF PROPOSAL THREE.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERSVOTING SECURITIES AND MANAGEMENTPRINCIPAL HOLDERS
The following table sets forth information with respect to the beneficial ownership of our common stock, as of April 17,July 28, 2023 by:
each person or group of affiliated persons known by us to beneficially own more than 5% of our common stock;
each of our named executive officers;
each of our directors; and
all of our executive officers and directors as a group.
The number of shares beneficially owned by each stockholder is determined under rules issued by the SEC. Under these rules, a person is deemed to be a “beneficial” owner of a security if that person has or shares voting power or investment power, which includes the power to dispose of or to direct the disposition of such security. Except as indicated in the footnotes below, we believe, based on the information furnished to us, that the individuals and entities named in the table below have sole voting and investment power with respect to all shares of common stock beneficially owned by them, subject to any applicable community property laws.
Percentage ownership of our common stock is based on 11,872,57315,073,153 shares of our common stock outstanding on April 17, 2023.July 28, 2023, which excludes treasury shares. Unless noted otherwise, the address of all listed stockholders is 3950 Johns Creek Court, Suite 100, Suwanee, Georgia 30024.
 
​​
Number of
Shares
Beneficially
Owned (#)
​​
Percentage of
Shares
Beneficially
Owned (%)
Named executive officers and directors:
​​
 
​​
 
Kathy Lee-Sepsick(1)
​​
576,392
​​
4.76%
Daniel Currie(2)
​​
132,133
​​
1.11%
Dov Elefant(3)
​​
25,000
​​
*
John Adams, Jr.(4)
​​
248,438
​​
2.09%
John Dyett(5)
​​
301,344
​​
2.54%
Charles Larsen(6)
​​
39,976
​​
*
Anne Morrissey(7)
​​
8,500
​​
*
Edward Uzialko, Jr.(8)
​​
1,225,906
​​
10.32%
Wendy Perrow(9)
​​
14,167
​​
*
All executive officers and directors as a group (10 individuals)
​​
2,571,856
​​
21.04%
 
​​
Number of
Shares
Beneficially
Owned (#)
​​
Percentage of
Shares
Beneficially
Owned (%)
Named executive officers and directors:1
​​
 
​​
 
Kathy Lee-Sepsick(1)
​​
848,292
​​
5.45%
Daniel Currie(2)
​​
256,933
​​
1.69%
Dov Elefant(3)
​​
229,700
​​
1.50%
Charles Larsen(4)
​​
39,976
​​
*
Keith Kendall
​​
—
​​
—
Alistair Milnes
​​
—
​​
—
Anne Morrissey(5)
​​
8,500
​​
*
Edward Uzialko, Jr.(6)
​​
1,225,906
​​
8.13%
Wendy Perrow(7)
​​
14,167
​​
*
All executive officers and directors as a group (10 individuals)
​​
2,623,474
​​
16.39
*
Less than 1%.
(1)
Consists of 277,778 shares owned, 72,223 shares held by the Lee-Sepsick Family Trust, and 226,391498,291 shares issuable upon exercise of outstanding stock options that are exercisable withing 60 days of April 17,July 28, 2023, of which all are vested as of such date.
(2)
Consists of 66,667 shares owned, 22,223 shares held by the Currie Family Trust, 742 shares held by Mr. Currie’s spouse, and 42,501167,301 shares issuable upon exercise of outstanding stock options that are exercisable withing 60 days of April 17,July 28, 2023, of which all are vested as of such date.
(3)
Consists of 25,000229,700 shares issuable upon exercise of outstanding stock options that are exercisable withingwithin 60 days of April 17,July 28, 2023, of which all are vested as of such date.
(4)
Consists of 239,938 shares owned and 8,500 shares issuable upon exercise of outstanding stock options that are exercisable withingwithin 60 days of April 17,July 28, 2023, of which all are vested as of such date.
(5)
Consists of 290,344 shares of common stock held by The Dyett Family Trust, of which John Dyett is the Trustee, 2,500 shares held by IRA and 8,500 shares issuable upon exercise of outstanding stock options that are exercisable withingwithin 60 days of April 17,July 28, 2023, of which all are vested as of such date.
(6)
Consists of 31,476 shares owned and 8,500 shares issuable upon exercise of outstanding stock options that are exercisable withing 60 days of April 17, 2023, of which all are vested as of such date.
(7)
Consists of 8,500 shares issuable upon exercise of outstanding stock options that are exercisable withing 60 days of April 17, 2023, of which all are vested as of such date.
(8)
Consists of 1,187,231 shares owned, 30,175 shares owned by Mr. Uzialko’s spouse and 8,500 shares issuable upon exercise of outstanding stock options that are exercisable withing 60 days of April 17,July 28, 2023, of which all are vested as of such date.
(9)(7)
Consists of 14,167 shares issuable upon exercise of outstanding stock options that are exercisable withingwithin 60 days of April 17,July 28, 2023, of which all are vested as of such date.
1
Company to provide updated spreadsheet showing vested shares within 60 days of July 28, 2023.
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HOUSEHOLDING OF PROXY MATERIALS
The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for proxy statements with respect to two or more stockholders sharing the same address by delivering a single proxy statement addressed to those stockholders. This process is commonly referred to as “householding.”
Brokers with account holders who are Femasys stockholders may be householding our proxy materials. A single set of proxy materials may be delivered to multiple stockholders sharing an address unless contrary instructions have been received from the affected stockholders. Once you have received notice from your broker that it will be householding communications to your address, householding will continue until you are notified otherwise or until you notify your broker or Femasys that you no longer wish to participate in householding.
If, at any time, you no longer wish to participate in householding and would prefer to receive a separate proxy statement, you may (1) notify your broker, (2) direct your written request to: Investor Relations, Femasys Inc., 3950 Johns Creek Court, Suite 100, Suwanee, GA 30024 or (3) contact our Investor Relations department by email at ir@femasys.com or by telephone at (770) 500-3910. Stockholders who currently receive multiple copies of the proxy statement at their address and would like to request householding of their communications should contact their broker. In addition, we will promptly deliver, upon written or oral request to the address or telephone number above, a separate copy of the proxy statement to a stockholder at a shared address to which a single copy of the documents was delivered.
OTHER MATTERS
According to our Bylaws, no matters may properly be brought before the Special Meeting, except as specified in the Notice of Special Meeting of Shareholders.
If you have questions about how to vote or direct a vote in respect of your shares or about the proposals, or if you need additional copies of the proxy statement or proxy card, you may also contact us at:
Femasys Inc.
3950 Johns Creek Court,
Suite 100
Suwanee, GA 30024
Attention: Investor Relations Dept.
Email: ir@femasys.com
These documents are also available in the Investor Relations section of our website at https://ir.femasys.com/overview/.
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EXECUTIVE OFFICERSANNEX A
Our executive officersFORM OF CERTIFICATE OF AMENDMENT
OF THE
ELEVENTH AMEDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FEMASYS INC.
Femasys Inc. (the “Corporation”), a corporation organized and their ages as of April 26, 2023existing under and positions with Femasys are provided in the table below and in the additional biographical descriptions set forth in the text below the table.
Name
​​
Age
​​
Position
Kathy Lee-Sepsick
​​
55
​​
Founder, President and Chief Executive Officer
Dov Elefant
​​
55
​​
Chief Financial Officer
Edward Evantash
​​
60
​​
Chief Medical Officer
Daniel Currie
​​
59
​​
Senior Vice President, Operations
Christine Thomas
​​
50
​​
Senior Vice President, Regulatory and Clinical Affairs
Our board of directors chooses our executive officers, who then serve at the discretion of our board of directors.
Kathy Lee-Sepsick. For a brief biography of Ms. Lee-Sepsick, please see “Proposal One: Election of Directors-Continuing Directors.”
Dov Elefant has served as our Chief Financial Officer since February 2022. Mr. Elefant served as the vice president and CFO of Cellectar Biosciences, a late-stage clinical biopharmaceutical company focused on the discovery, development and commercialization of targeted cancer drugs, from September 2019 to February 2022. He served as Chief Financial Officer at Akari Therapeutics, Plc from January 2012 to September 2019. Prior to his role at Akari Therapeutics, Plc, he was Chief Financial Officer at Althera Medical Ltd. Mr. Elefant holds a B.S. in Accounting from the Sy Syms School of Business at Yeshiva University.
Edward Evantash has served as our Chief Medical Officer since 2021. Dr. Evantash has over 20 years of leadership experience in medical affairs, including clinical study strategy and execution while serving as Medical Director at Hologic Inc. from 2009 to March 2020 and Chief Medical Officer at Alydia Health from March 2020 to August 2020. Dr. Evantash has been Co-Founder and Partner at BEspoke Medical Affairs Solutions since August 2020. Dr. Evantash developed and managed product lifecycle publication pipelines, identified customer knowledge gaps, created programs to overcome barriers to commercial success, and created strategies in alignment with healthcare economics. Before entering industry, Dr. Evantash served as chiefby virtue of the division of general obstetrics and gynecology at Tufts Medical Center. In addition, he held faculty appointments at Tufts University School of Medicine, Northeastern University and Harvard Medical School. Dr. Evantash holds a BA in biology from Brandeis University and a MD from the University of Pennsylvania School of Medicine.
Daniel Currie has served as our Senior Vice President, Operations since 2009 and previously as our Vice President, Operations since 2004. Mr. Currie has over 30 years of operational experience in the medical device industry, including assignments at early stage and large established companies. He worked closely with research and development teams, implemented and managed quality systems, spearheaded compliance and complaint handling systems at CIBA Vision Corporation. As head of Quality at NovosteGeneral Corporation he oversaw and was directly involved in design and manufacturing controls, quality auditing (including FDA), evaluating and managing subcontractor operations, managing validation systems and performing product evaluations and testing. In addition, Mr. Currie was responsible for evaluating facilities outside the United States capable of manufacturing class III medical devices. Once the site was selected, Mr. Currie co-managed a team to establish full manufacturing operations. Mr. Currie is a graduate of Georgia Southern University with a BBA in Economics.
Christine Thomas has served as our Senior Vice President, Regulatory and Clinical Affairs since October 2022. Ms. Thomas has over 20 years of successful leadership in regulatory and clinical affairs, including global strategy development, operations, and executive responsibility for medical device companies, such as GE Healthcare, Boston Scientific, Smiths Medical, and RTI Surgical, as well as providing FDA focused consultant expertise with IQVIA a large clinical research organization. Ms. Thomas has served as vice president of regulatory, quality, design assurance, clinical and compliance over her career. Ms. Thomas has been the regulatory, clinical, and quality lead on multiple M&A opportunities for both divestiture of product lines and acquisitions for several companies. Ms. Thomas holds a BS in Education from University of Wisconsin – Whitewater and is currently in the Johns Hopkins Master of Science program.
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EXECUTIVE COMPENSATION
Our named executive officers for 2022, which consist of our principal executive officer and the next two most highly compensated executive officers, are:
Kathy Lee-Sepsick, our founder, President and Chief Executive Officer;
Daniel Currie, our Senior Vice President, Operations; and
Dov Elefant, our Chief Financial Officer.
Summary Compensation Table
The following table provides information concerning compensation awarded to, earned by and paid to each of our named executive officers during 2022:
Name and Principal Position
​​
Year
​​
Salary
($)
​​
Awards(1)
($)
​​
All other
compensation
($)(3)
​​
Total
($)
Kathy Lee-Sepsick
President and Chief Executive Officer
​​
2022
2021
​​
423,296
540,000(2)
​​
205,403
—
​​
30,280
26,715
​​
658,979
566,715
Daniel Currie
Senior Vice President, Operations
​​
2022
2021
​​
322,273
384,750(2)
​​
153,133
—
​​
30,280
26,715
​​
505,686
411,465
Dov Elefant(4)
Chief Financial Officer
​​
2022
​​
335,185
​​
245,855
​​
20,535
​​
601,575
(1)
The values shown reflect the grant date fair value of the stock option awards computed in accordance with FASB ASC, Topic 718. See Note 9 to the Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on March 30, 2023, for a discussion on the relevant assumptions used in the calculation.
(2)
Includes salaries paid in connection with retention plan in place effective November 1, 2019.
(3)
Consists of paid family health benefits and 401K match for 2022.
(4)
Mr. Elefant was employed as of February 28, 2022.
Executive Employment Arrangements
We have entered into employment agreements with each of our named executive officers, as further described below. Each of our named executive officers’ employment is “at-will” and may be terminated at any time.
Ms. Lee-Sepsick. We entered into an amended and restated employment agreement with Ms. Lee-Sepsick, dated June 1, 2021, or the Lee-Sepsick Employment Agreement, providing for her position as President and Chief Executive Officer. Ms. Lee-Sepsick’s base salary in 2021 was $425,000. The Lee-Sepsick Employment Agreement provides for an indefinite term and is terminable for just cause by us and at will by Ms. Lee-Sepsick, provided Ms. Lee-Sepsick is required to provide thirty days’ advance written notice to us in the event she voluntarily terminates the Lee-Sepsick Employment Agreement. The Lee-Sepsick Employment Agreement provides for Ms. Lee-Sepsick's eligibility to receive discretionary, performance-based annual bonuses. The Lee-Sepsick Employment Agreement contains non-competition and employee non-solicitation covenants that apply through one year following termination of employment. The Lee-Sepsick Employment Agreement also provides for severance equal to (i) in the event of a severance-eligible termination of employment that occurs on or within the twelve-month period following a Change of Control (as defined in the Lee-Sepsick Employment Agreement), (A) the sum of (x) 24 months of her then current base salary and (y) two times her annual target bonus, (B) subsidized COBRA premiums for 24 months following her termination of employment and (C) acceleration in fullLaw of the vestingState of his outstanding equity awards that are granted by us, and (ii) inDelaware (the “DGCL”), does hereby certify:
FIRST: Effective upon the eventfiling of a severance-eligible termination of employment that does not occur on or within the twelve-month period following a Change of Control, (A) the sum of (x) twelve months of her then current base salary and (y) a prorated portion of her annual bonus, and (B) subsidized COBRA premiums for twelve months following her termination of employment.
Daniel Currie. We entered into an amended and restated employment agreement with Mr. Currie, dated June 1, 2021, providing for his position as Senior Vice President – Operations. Mr. Currie’s base salary in 2022 was $325,000. Mr. Currie’s employment agreement provides for severance equal to (i) in the event of a
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severance-eligible termination of employment that occurs on or within the twelve-month period following a Change of Control, (A) the sum of (x) twelve months of his then current base salary and (y) annual target bonus or commission amount, (B) subsidized COBRA premiums for twelve months following his termination of employment and (C) acceleration in full of the vesting of any outstanding equity awards that are granted by us on or following the date of effectiveness of the registration statement of which this prospectus forms a part, and (ii) in the event of a severance-eligible termination of employment that does not occur on or within the twelve-month period following a Change of Control, (A) the sum of (x) nine months of his then current base salary and (y) a prorated portion of his annual target bonus or commission amount, and (B) subsidized COBRA premiums for nine months following his termination of employment.
Dov Elefant. We entered into an employment agreement with Mr. Elefant, dated February 28, 2022, providing for his position as Chief Financial Officer. Mr. Elefant’s base salary in 2022 was $400,000. Mr. Elefant’s employment agreement provides for severance equal to (i) in the event of a severance-eligible termination of employment that occurs on or within the twelve-month period following a Change of Control, (A) the sum of (x) eighteen months of his then current base salary and (y) annual target bonus or commission amount, (B) subsidized COBRA premiums for eighteen months following his termination of employment and (C) acceleration in full of the vesting of any outstanding equity awards that are granted by us on or following the date of effectiveness of the registration statement of which this prospectus forms a part, and (ii) in the event of a severance-eligible termination of employment that does not occur on or within the twelve-month period following a Change of Control, (A) the sum of (x) twelve months of his then current base salary and (y) a prorated portion of his annual target bonus or commission amount, and (B) subsidized COBRA premiums for twelve months following his termination of employment.
Retirement Plans
We currently maintain a 401(k) retirement savings plan for our employees, including our named executive officers, who satisfy certain eligibility requirements. We expect that our named executive officers will be eligible to participate in the 401(k) plan on the same terms as other full-time employees. The Code allows eligible employees to defer a portion of their compensation, within prescribed limits, on a pre-tax basis through contributionsamendment to the 401(k) plan. We believe that providing a vehicle for tax-deferred retirement savings though our 401(k) plan adds to the overall desirabilityCorporation’s Eleventh Amended and Restated Certificate of our executive compensation package and further incentivizes our employees, including our named executive officers, in accordance with our compensation policies.
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Employee Benefits and Perquisites
All of our full-time employees, including our named executive officers, are eligible to participate in our health and welfare plans, including:
medical, dental and vision benefits;
medical and dependent care flexible spending accounts;
short-term and long-term disability insurance; and
life insurance.
We believe the perquisites described above are necessary and appropriate to provide a competitive compensation package to our named executive officers.
Outstanding Equity Awards at Fiscal Year-End Table
The following table summarizes the number ofIncorporation (the “Effective Time”), each [•]* shares of common stock, underlyingpar value $0.001 per share (“Common Stock”), issued and outstanding equity incentive plan awards for each named executive officer as of December 31, 2022.
Name
​​
Grant Date
​​
Vesting
Commencement
Date
​​
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
​​
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
​​
Number of
Securities
Underlying
Unexercised
Unearned
Options (#)
​​
Option
Exercise
Price
($)
​​
Option
Expiration
Date
Kathy Lee-Sepsick
​​
03/18/2016
​​
—(1)
​​
55,556
​​
—
​​
111,111
​​
1.71
​​
03/18/2026
​
06/30/2017
​​
06/01/2017(2)
​​
166,668
​​
—
​​
—
​​
3.24
​​
06/30/2027
​
12/13/2019
​​
11/01/2019(2)
​​
4,167
​​
1,389(3)
​​
—
​​
6.12
​​
12/13/2029
​
01/26/2022
​​
—(4)
​​
—
​​
—
​​
100,000
​​
13.00
​​
01/26/2032
Daniel Currie
​​
03/18/2016
​​
09/11/2015(2)
​​
5,556
​​
—
​​
—
​​
1.71
​​
03/18/2026
​
06/30/2017
​​
06/01/2017(2)
​​
27,778
​​
—
​​
—
​​
3.24
​​
06/30/2027
​
12/13/2019
​​
11/01/2019(2)
​​
4,167
​​
1,389(3)
​​
—
​​
6.12
​​
12/13/2029
​
01/25/2022
​​
—(2)
​​
—
​​
20,000
​​
—
​​
3.03
​​
01/25/2032
​
01/25/2022
​​
—(5)
​​
—
​​
—
​​
40,000
​​
3.03
​​
01/25/2032
Dov Elefant
​​
02/28/2022
​​
02/28/2022
​​
—
​​
100,000
​​
—
​​
2.97
​​
02/28/2032
(1)
The stock option award provides for 55,556 awards to vest on the approval of an IDE application and 111,111 awards to vest on the PMA approval for FemBloc.
(2)
The stock option award provides for 25% of the award to vest on each anniversary of the vesting commencement date (such that the award would fully vest on the fourth anniversary of the vesting commencement date), subject to the recipient's continuous employment with us through the relevant vesting dates.
(3)
Provides that a stock option award will fully accelerate in vesting in the event of a termination of the recipient's employment by us without “Just Cause” (as defined in the named executive officer's employment agreement) within one year following a “Change in Control”. For additional details, please refer to the section titled “Executive Compensation” above.
(4)
The stock option award provides for 100,000 awards to vest on FDA de novo approval for FemaSeed.
(5)
The stock option award provides for 5,000 awards to vest annually on each anniversary of the filing of the date of the FemaSeed de novo with FDA if such filing occurs during the year ended December 31, 2023 and for 5,000 awards to vest annually on each anniversary of the filing of the date of the IDE submission to the FDA for FemBloc if such filing occurs during the year ended December 31, 2023, subject to the recipient's continuous employment with us through the relevant vesting dates.
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EQUITY COMPENSATION PLAN INFORMATION
We currently maintain the following equity compensation plans that provide for the issuance of shares of our common stock to our officers and other employees, directors and consultants, each of which has been approved by our stockholders: our 2021 Equity Incentive Plan (“2021 Plan”) and our 2021 Employee Stock Purchase Plan (“ESPP”).
The following table presents information as of December 31, 2022 with respect to compensation plans under which shares of our common stock may be issued.
 
​​
(a)
​​
(b)
​​
(c)
Plan Category
​​
Number of securities
to be issued upon
exercise of
outstanding
securities
​​
Weighted-average
exercise price of
outstanding
securities
($)
​​
Number of securities
remaining available
for future issuance
under equity
compensation plans
(excluding securities
reflected in
column(a))
Equity compensation plans approved by stockholders 2021 Plan(1)
​​
357,950
​​
5.40
​​
1,605,111
Equity compensation plans not approved by stockholders 2015 Plan
​​
573,600
​​
3.07
​​
n/a
Inducement Awards
​​
150,000
​​
2.42
​​
n/a
Total
​​
1,081,550
​​
 
​​
1,605,111
(1)
Includes our 2021 Plan and our ESPP. For a description of these plans, refer to Note 9 to the historical financial statements included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022.
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
In addition to the executive officer and director compensation arrangements discussed above under “Executive Compensation” and “Proposal One: Election of Directors-Director Compensation,” respectively, since January 1, 2020, the following are the only transactions or series of similar transactions to which we were or will be a party in which the amount involved exceeds $120,000 and in which any director, nominee for director, executive officer, beneficial holder of more than 5% of our capital stock or any member of their immediate family or any entity affiliated with any of the foregoing persons had or will have a direct or indirect material interest, other than equity and other compensation, termination, change of control and other arrangements, which are described under “Executive Compensation.”
Employment Agreements
We have entered into employment agreements with each of our executive officers. See “Executive Compensation—Executive Employment Agreements” for a further discussion of these arrangements.
Director and Officer Indemnification and Insurance
We have agreed to indemnify each of our directors and executive officers against certain liabilities, costs and expenses, and have purchased directors' and officers' liability insurance.
Stock Option Grants to Executive Officers and Directors
We have granted options to our executive officers and our directors as more fully described in the section entitled “Executive Compensation.”
Policies and Procedures for Transactions with Related Persons
Our board of directors has adopted a written related person transaction policy setting forth the policies and procedures for the review and approval or ratification of related person transactions. This policy covers, with certain exceptions set forth in Item 404 of Regulation S-K under the Securities Act of 1933, as amended, or the Securities Act, any transaction, arrangement or relationship, or any series of similar transactions, arrangements or relationships, in which we were or are to be a participant, where the amount involved exceeds $120,000 in any fiscal year and a related person had, has or will have a direct or indirect material interest, including without limitation, purchases of goods or services by or from the related person or entities in which the related person has a material interest, indebtedness, guarantees of indebtedness and employment by us of a related person. In reviewing and approving any such transactions, our audit committee is tasked to consider all relevant facts and circumstances, including, but not limited to, whether the transaction is on terms comparable to those that could be obtained in an arm's length transaction and the extent of the related person's interest in the transaction. All of the transactions described in this section occurredimmediately prior to the adoptionEffective Time either issued and outstanding or held by the Corporation as treasury stock shall be combined into one (1) validly issued, fully paid and non-assessable share of this policy.
Common Stock without any further action by the Corporation or the holder thereof (the “Reverse Stock Split”); provided that no fractional shares shall be issued to any holder and that instead of issuing such fractional shares, the Corporation shall round shares up to the nearest whole number.
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REPORT OF THE AUDIT COMMITTEE
SECOND: The information contained inBoard of Directors of the Corporation duly adopted resolutions approving the following reportamendment to the Corporation’s Restated Certificate of our audit committee is not consideredIncorporation (the “Certificate of Incorporation”), declaring said amendment to be “soliciting material,” “filed” or incorporated by reference in any past or future filing by us under the Exchange Act or the Securities Act unlessadvisable and only to the extent that we specifically incorporate it by reference.
Our audit committee has reviewed and discussed with our management and KPMG LLP our audited financial statementsproviding for the fiscal year ended December 31, 2022. Our audit committee has also discussed with KPMG LLP the matters required to be discussed by the applicable requirementsconsideration of such amendment at a special meeting of stockholders of the Public Company Accounting Oversight Board, orCorporation.
THIRD: On [•], the PCAOB,special meeting of stockholders of the Corporation was duly called and held, upon notice in accordance with Section 222 of the SEC.
Our audit committee has received and reviewedGeneral Corporation Law of the written disclosures andState of Delaware, at which meeting the letter from KPMG LLPnecessary number of shares required by applicable requirementsstatute were voted in favor of the PCAOB regarding the independent accountant’s communications with our audit committee concerning independence, and has discussed with KPMG LLP its independence from us.amendment.
Based on the review and discussions referred to above, our audit committee recommended to our board of directors that the audited financial statements be included in our annual report on Form 10-K for the fiscal year ended December 31, 2022 filing with the SEC.
Submitted by the Audit Committee
FOURTH:John Dyett, Chair
Charles Larsen
Anne Morrissey
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ADDITIONAL INFORMATION
We will mail, without charge, upon written request, a copy of our annual report on Form 10-K for the fiscal year ended December 31, 2022, including the financial statements and list of exhibits, and any exhibit specifically requested. Requests should be sent to:
Femasys Inc.
3950 Johns Creek Court, Suite 100
Suwanee, Georgia 30024
Attn: Investor Relations
Our annual report on Form 10-K for the fiscal year ended December 31, 2022 is also available at https://ir.femasys.com/financials/sec-filings/ under “SEC Filings” in the “Financial” section of our website.
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OTHER MATTERS
Our board of directors does not presently intend to bring any other business before the Annual Meeting and, so far as is known to our board of directors, no matters are to be brought before the Annual Meeting except as specified in the Notice of Annual Meeting of Stockholders. As to any business that may arise and properly come before the Annual Meeting, however, it is intended that proxies, in the form enclosed, will be voted in respect thereof Said amendment was duly adopted in accordance with the judgmentprovisions of Section 242 of the persons voting such proxies.
By OrderGeneral Corporation Law of the BoardState of Directors,Delaware.
IN WITNESS WHEREOF, this Certificate of Amendment of the Amended and Restated Certificate of Incorporation has been executed as of this [•] day of [•], 2023.
/s/ Kathy Lee-SepsickFEMASYS INC.
​​
 
Kathy Lee-Sepsick
​​
​​
 
Founder, President and Chief Executive OfficerBy:
​​
Suwanee, Georgia
​​
 
May _, 2023Name:
​​
​​
Title:
​​
​​
 
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APPENDIX A

PROPOSED AMENDMENT TO FEMASYS’ CERTIFICATE OF
INCORPORATION, AS AMENDED

ARTICLE VII: EXCULPATION AND INDEMNIFICATION.
A Director or officer of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of his or her fiduciary duty as a Director or officer, except for liability (i) for any breach of the Director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the Director or officer derived an improper personal benefit. If the DGCL is amended after the effective date of this Certificate to authorize corporate action further eliminating or limiting the personal liability of Directors or officers, then the liability of a Director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Any amendment, repeal or modification of this Article VII by either of (i) the stockholders of the Corporation or (ii) an amendment to the DGCL, shall not adversely affect any right or protection existing at the time of such amendment, repeal or modification with respect to any acts or omissions occurring before such amendment, repeal or modification of a person serving as a Director or officer at the time of such amendment, repeal or modification.
Notwithstanding anything herein to the contrary, the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two-thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of this Article VII.
*
This amendment approves the Reverse Stock Split of the Corporation’s Common Stock, at a ratio in the range of 1-for-2 to 1-for-25. By approving this amendment, the stockholders of the Corporation would be deemed to approve any ratio within the range referred to above as determined by the board of directors in its sole discretion.
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