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As filed with the Securities and Exchange Commission on July 1, 2022November 30, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Femasys Inc.
(Exact name of registrant as specified in its charter)
Delaware
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11-3713499
(State or other jurisdiction
​​
(I.R.S. Employer
of
incorporation or organization)
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(I.R.S. Employer
Identification Number)No.)
3950 Johns Creek Court, Suite 100
Suwanee, Georgia 30024
(770) 500-3910

(Address, including zip code, and telephone number, including area code, of registrant’sregistrant's principal executive offices)
Kathy Lee-Sepsick
President and Chief Executive Officer
3950 Johns Creek Court, Suite 100
Suwanee, Georgia 30024
(770) 500-3910
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:

David S. Rosenthal Esq.
Anna Tomczyk Esq.
Dechert LLP
1095 Avenue of the Americas
New York, New York 10036
(212) 698-3616
Approximate date of commencement of proposed sale to the publicpublic: : From time to time on or after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐☒
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box:box : ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering:offering.  ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earliestearlier effective registration statement for the same offering:offering.  ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the -SecuritiesSecurities Act, check the following box.  ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I. D.I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
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 ☐
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Accelerated filer
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 ☐
Non-accelerated filer
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☒
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Smaller reporting company
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☒
Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☒
The Registrant hereby amends this registration statementRegistration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statementRegistration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 as amended, or until the registration statementRegistration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

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EXPLANATORY NOTE
This registration statement contains two prospectuses:
a base prospectus, which covers the offering, issuance and sale by us of up to $150.0 million of our common stock, preferred stock, debt securities, warrants to purchase our common stock, preferred stock or debt securities, rights to purchase our common stock, preferred stock or debt securities and/or units consisting of some or all of these securities; and
an equity distribution agreement prospectus covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $8.8 million of our common stock that may be issued and sold under an equity distribution agreement dated, July 1, 2022, with Piper Sandler & Co.
The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus. The equity distribution agreement prospectus immediately follows the base prospectus.
The equity distribution agreement prospectus immediately follows the base prospectus. The common stock that may be offered, issued and sold by us under the equity distribution agreement prospectus is included in the $150.0 million of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the equity distribution agreement with Piper Sandler & Co., any portion of the $8.8 million included in the equity distribution agreement prospectus that is not sold pursuant to the equity distribution agreement will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus supplement, and if no shares are sold under the equity distribution agreement, the full $8.8 million, of securities may be sold in other offerings pursuant to the base prospectus and a corresponding prospectus supplement.

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The information in this prospectus is not complete and may be changed. WeThe selling stockholders may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting offersan offer to buy these securities in any statejurisdiction where suchthe offer or sale is not permitted.
SUBJECT TO COMPLETION - DATED JULY 1, 2022NOVEMBER 30, 2023
PRELIMINARY PROSPECTUS

 
Femasys Inc.
18,111,861 Shares
 
$150,000,000

Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
FromThis prospectus relates to the offer and resale from time to time we may offerby the selling stockholders named in this prospectus of up to $150,000,000an aggregate of any combination18,111,861 shares of our common stock, par value $0.001 per share. These shares consist of (i) 6,501,695 shares of common stock issuable upon conversion of convertible notes or that could be issued in satisfaction of accrued interest thereon, (ii) 5,805,083 shares of common stock issuable upon the exercise of Series A common stock purchase warrants and (iii) 5,805,083 shares of common stock issuable upon the exercise of Series B common stock purchase warrants, in each case, that were initially issued in a private placement to certain institutional and accredited investors as part of a private placement completed on November 21, 2023.
Our registration of the securities described incovered by this prospectus in onedoes not mean that the selling stockholders will offer or more offerings. We may also offer securities as may be issuable upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including any applicable anti-dilution provisions.
This prospectus provides a general description of the securities we may offer. Each time we offer securities, we will provide specific terms of the securities offered in a supplement to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before you invest insell any of the securities being offered.shares of common stock. The selling stockholders may sell or otherwise dispose of the shares of common stock publicly or through private transactions at prevailing market prices or at negotiated prices. We provide more information about how the selling stockholders may sell their shares in the section entitled “Plan of Distribution.”
This prospectus mayWe will not be used to consummate areceive any proceeds from the sale of shares of common stock by the selling stockholders. We will, however, receive the proceeds from any securities unless accompanied by a prospectus supplement.exercise of the warrants for cash.
Our common stock is tradedlisted on Thethe Nasdaq Capital Market (“Nasdaq”) under the symbol “FEMY.” On JuneNovember 30, 2022,2023, the last reported sale price of our common stock was $2.41 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing on The Nasdaq Capital Market or any securities market or other exchange of the securities, if any, covered by the prospectus supplement.
As of June 30, 2022, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $26,448,716, which we calculated based on 11,804,165 shares of outstanding common stock as of March 31 2022, of which 9,582,868 shares were held by non-affiliates, and a price per share of $2.76, which was the closing price of our common stock on June 29, 2022. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell, pursuant to the registration statement of which this prospectus forms a part, securities with a value exceeding one-third of the aggregate market value of our outstanding common stock held by non-affiliates in any 12-month period, so long as the aggregate market value of our outstanding common stock held by non-affiliates remains below $75.0 million. During the 12 calendar months prior to and including the date of this prospectus, we have not offered or sold any securities pursuant to General Instruction I.B.6 of Form S-3.
We will sell these securities directly to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the section titled “Plan of Distribution” in this prospectus. If any agents or underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts or over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Nasdaq was $0.9522 per share.
Investing in our securitiescommon stock involves a high degree of risk. YouBefore deciding whether to invest in our securities, you should reviewconsider carefully the risks and uncertaintiesthat we have described under the headingcaption “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus as described on page 5 of this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is   , 2022.2023.

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ABOUT THIS PROSPECTUSAbout this Prospectus
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SUMMARYIndustry and Market Data
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The Company
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RISK FACTORSOffering Summary
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTSCautionary Note Regarding Forward Looking Statements
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Use of Proceeds
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USE OF PROCEEDSSelling Stockholders
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DESCRIPTION OF CAPITAL STOCKPlan of Distribution
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DESCRIPTION OF DEBT SECURITIESLegal Matters
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Experts
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Where You Can Find More Information
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Incorporation of Certain Documents by Reference
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DESCRIPTION OF WARRANTS
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DESCRIPTION OF RIGHTS
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DESCRIPTION OF UNITS
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PLAN OF DISTRIBUTION
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LEGAL MATTERS
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EXPERTS
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WHERE YOU CAN FIND MORE INFORMATION
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
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ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process. UnderWe urge you to read carefully this shelf registration process, we may sell any combination of the securities described in this prospectus in one or more offerings up to a total aggregate offering price of $150,000,000. This prospectus provides you with a general description of the securities we may offer.
Each time we sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in any documents that we have incorporated by reference into this prospectus. You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the heading “Incorporation of Certain InformationDocuments by Reference,”Reference” before investing inbuying any of the securities offered.
NeitherThis prospectus is part of a registration statement that we nor any agent, underwriterhave filed with the Securities and Exchange Commission (the “SEC”) under which the selling stockholders named herein may, from time to time, offer and sell or dealer has authorized any person to give anyotherwise dispose of the securities covered by this prospectus.
A prospectus supplement may add, update or change information or to make any representation other than those contained or incorporated by referenceincluded in this prospectus. You should read both this prospectus and any applicable prospectus supplement or any related free writing prospectus prepared by or on behalf of us or to which we have referred you. This prospectus, any applicable supplement to this prospectus or any related free writing prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor does this prospectus, any applicable supplement to this prospectus or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that thetogether with additional information contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even if this prospectus, any applicable prospectus supplement or any related free writing prospectus is delivered, or securities are sold, on a later date.
This prospectus and the information incorporated herein by reference contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where You Can Find MoreAdditional Information.”
You should rely only on the information contained or incorporated by reference in this prospectus and any applicable prospectus supplement. Neither we nor the selling stockholders have authorized anyone to provide you with different information, and if anyone provides, or has provided you, with different or inconsistent information, you should not rely on it. We and the selling stockholders take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer to sell only the securities offered hereby and only under circumstances and in jurisdictions where it is lawful to do so. This prospectus is not an offer to sell securities, and it is not soliciting an offer to buy securities, in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus, any prospectus supplement or in the documents incorporated by reference herein is accurate only as of the date of the document containing the information, regardless of the time of delivery of this prospectus or any applicable prospectus supplement or any sale of a security. Our business, financial condition, results of operations and prospects may have changed since those dates.
For investors outside of the United States, neither we nor the selling stockholders have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. You are required to inform yourselves about, and to observe any restrictions relating to, this offering and the distribution of this prospectus outside of the United States.
INDUSTRY AND MARKET DATA
This prospectus and the information incorporated by reference herein contain market and industry statistics that are based on various sources that we believe is accurate. It is generally based on academic and other publications that are not produced for purposes of securities offerings or economic analysis. We believe the data contained in these reports or publications to be reliable as of the date of this prospectus, but there can be no assurance as to the accuracy or completeness of such information. We have not independently verified the market and industry data obtained from these sources. Forecasts and other forward-looking information obtained from these sources are subject to the same qualifications and the additional uncertainties accompanying any estimates of future market size, revenue and market acceptance of products and services.
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SUMMARYTHE COMPANY
This summary highlightscontains basic information contained in other parts of this prospectus or incorporated by reference into this prospectus from our filings with the Securities and Exchange Commission (the “SEC”). As it is only a summary, it does not contain all of the information that youabout us. You should consider before purchasing our securities and it is qualified in its entirety by, and should be read in conjunction with, the applicable prospectus supplement and the more detailed information appearing elsewhere or incorporated by reference into this prospectus. You shouldcarefully read the entire prospectus and the applicable prospectus supplement,documents we incorporate by reference herein. Some of the registration statement of whichstatements contained in this prospectus is a part, and the informationdocuments incorporated by reference herein, in their entirety, including thestatements under this summary and “Risk Factors” and our financial, are forward-looking statements and may involve a number of risks and uncertainties. We note that our actual results and future events may differ significantly based upon a number of factors. You should not put undue reliance on the related notes contained in and incorporated by reference into this prospectus, before purchasing our securities.
Unlessthese forward-looking statements. References to “we,” “our,” “us,” the context indicates otherwise, references in this prospectus to “Femasys,” “Company,” “we,” “us” and “our”or “Femasys” refer to Femasys Inc., a Delaware corporation.
CompanyBusiness Overview
We are a biomedical company focused on transforming women’s healthcare by developing novel solutions and next-generation advancements providingmeeting significant clinical impact to address severely underserved areas. Our mission is to provideunmet needs for women worldwide with superior minimally-invasive, non-surgicala broad portfolio of in-office, accessible solutions, including a lead late-clinical stage product technologies, accessible in the office, improving patient carecandidate and overall health economics.innovative therapeutic and diagnostic products. We are a woman-founded and led company with an expansive, internally created intellectual property portfolio with over 150 patents globally, in-house chemistry, manufacturing, and controls (CMC) and device manufacturing capabilities and proven ability to develop and commercialize products. Our suite of products and product candidates address what we believe are multi-billion dollar global market segments in which there has been little advancement for many years, helping women avoid pharmaceutical solutions, implants and surgery that can be expensive and expose women to harm. With an initial focus in the area of reproductive health, our two lead product candidates offer solutions for two ends of the spectrum: FemBloccandidate offers a solution for permanent birth control (FemBloc) and infertility treatment with our FemaSeed as anproduct for intratubal artificial insemination, infertility treatment.which received FDA 510(k) clearance in September 2023.
November 2023 Private Placement
On November 21, 2023, we closed a private placement in which we sold to certain accredited investors (the “Investors”) (i) senior unsecured convertible notes (the “Convertible Notes”) in an aggregate principal amount of $6,850,000, convertible into shares of our common stock at a conversion price of $1.18 per share, (ii) Series A Warrants (the “Series A Warrants”) to purchase up to an aggregate of 5,805,083 shares of our common stock at an exercise price of $1.18 per share, and (iii) Series B Warrants (the “Series B Warrants” and together with the Series A Warrants, the “Warrants”) to purchase up to an aggregate of 5,805,083 shares of our common stock at an exercise price of $1.475 per share (collectively, the “Private Placement”). The Convertible Notes are convertible immediately and will mature on November 21, 2025. The Series A Warrants are exercisable immediately and will expire on November 21, 2028. The Series B Warrants are exercisable immediately and will expire on November 21, 2024.
We received aggregate net proceeds from the Private Placement of approximately $6.7 million, after deducting offering expenses payable by us. We expect to use the net proceeds from the Private Placement for general corporate purposes.
Corporate InformationCommon Stock
This prospectus relates to the offer and resale from time to time by the selling stockholders named in this prospectus of up to an aggregate of 18,111,861 shares of our common stock, par value $0.001 per share. These shares consist of (i) 6,501,695 shares of common stock issuable upon conversion of convertible notes or that could be issued in satisfaction of accrued interest thereon, (ii) 5,805,083 shares of common stock issuable upon the exercise of Series A common stock purchase warrants and (iii) 5,805,083 shares of common stock issuable upon the exercise of Series B common stock purchase warrants, in each case, that were initially issued in a private placement to certain institutional and accredited investors as part of a private placement completed on November 21, 2023.
Our registration of the securities covered by this prospectus does not mean that the selling stockholders will offer or sell any of the shares of common stock. The selling stockholders may sell or otherwise dispose of the shares of common stock publicly or through private transactions at prevailing market prices or at negotiated prices. We provide more information about how the selling stockholders may sell their shares in the section entitled “Plan of Distribution.”
We were incorporated in February 2004 as a Delaware corporationwill not receive any proceeds from the sale of shares of common stock by the selling stockholders. We will, however, receive the proceeds from any exercise of the warrants for cash.
Our common stock is listed on the Nasdaq Capital Market (“Nasdaq”) under the name Femasys Inc. Our principal executive office is located at 3950 Johns Creek Court, Suite 100, Suwanee, Georgia, 30024, andsymbol “FEMY.” On November 30, 2023, the last reported per share price of our telephone number is (770) 500-3910. Our website address is www.femasys.com. The information set forthcommon stock on or connectedthe Nasdaq was $0.9522 per share.
Investing in our common stock involves a high degree of risk. Before deciding whether to invest in our website is expressly notsecurities, you should consider carefully the risks that we have described under the caption “Risk Factors” in the documents incorporated by reference into this prospectus.
Neither the Securities and does not constituteExchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a partcriminal offense.
The date of this prospectus. We have included our website address as an inactive textual reference only.prospectus is   , 2023.
Implications of Being an Emerging Growth Company and a Smaller Reporting Company
We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012, or JOBS Act. We will remain an emerging growth company until the earliest to occur of: the last day of the fiscal year in which we have more than $1.07 billion in annual revenue; the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities held by non-affiliates; the issuance, in any three-year period, by us of more than $1 billion in non-convertible debt securities; and the last day of the fiscal year ending after the fifth anniversary of our initial public offering.
An emerging growth company may take advantage of reduced reporting requirements that are otherwise applicable to public companies. These provisions include, but are not limited to:
being permitted to present only two years of audited financial statements and only two years of related Management’s Discussion and Analysis of Financial Condition and Results of Operations in this prospectus;
not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended;
reduced disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and
exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved.
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We have elected to take advantage of certain of the reduced disclosure obligations in our filings with the SEC. As a result, the information that we provide to our stockholders may be different than you might receive from other public reporting companies in which you hold equity interests.
The JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. We have elected not to take advantage of such extended transition period, which means that we will adopt a new standard when it is issued or revised.
We are also a “smaller reporting company,” meaning that the market value of our shares held by non-affiliates plus the proposed aggregate amount of gross proceeds to us as a result of this offering is less than $700 million and our annual revenue was less than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company after this offering if either (i) the market value of our shares held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than $700 million. If we are a smaller reporting company at the time we cease to be an emerging growth company, we may continue to rely on exemptions from certain disclosure requirements that are available to smaller reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most recent fiscal years of audited financial statements in our Annual Report on Form 10-K and have reduced disclosure obligations regarding executive compensation, and, similar to emerging growth companies, if we are a smaller reporting company with less than $100 million in annual revenue, we would not be required to obtain an attestation report on internal control over financial reporting issued by our independent registered public accounting firm.
The Securities We May Offer
We may offer shares of our common stock and preferred stock, various series of debt securities, warrants and rights to purchase shares of common stock or preferred stock, debt securities or units, as well as units to purchase any of such securities, from time to time under this prospectus, together with any applicable prospectus supplement and related free writing prospectus, at prices and on terms to be determined by market conditions at the time of offering. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type or series of securities, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
designation or classification;
aggregate principal amount or aggregate offering price;
maturity;
original issue discount, if any;
rates and times of payment of interest or dividends, if any;
redemption, conversion, exchange or sinking fund terms, if any;
conversion or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property receivable upon conversion or exchange;
ranking;
restrictive covenants, if any;
voting or other rights, if any; and
important U.S. federal income tax considerations.
The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in documents we have incorporated by reference into this prospectus. However, no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus is a part.
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This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
We may sell the securities directly to investors or through underwriters, dealers or agents. We, and our underwriters or agents, reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through underwriters or agents, we will include in the applicable prospectus supplement:
the names of those underwriters or agents;
applicable fees, discounts and commissions to be paid to them;
details regarding over-allotment options, if any; and
the estimated net proceeds to us.
Common Stock
We may offer shares of our common stock, par value $0.001 per share, either alone or underlying other registered securities convertible into or exercisable for our common stock. Holders of our common stock are entitled to dividends as our board of directors may declare from time to time out of legally available funds, subject to the preferential rights of the holders of any shares of our preferred stock that we may issue in the future. Currently, we do not pay any dividends and we do not have any issued and outstanding preferred stock. Each holder of our common stock is entitled to one vote per share. In this prospectus, we provide a general description of, among other things, the rights and restrictions that apply to holders of our common stock. Our common stock is described in greater detail in this prospectus under “Description of Capital Stock—Common Stock.”
Preferred Stock
We may issue shares of preferred stock in one or more classes or series. Our board of directors or a committee designated by our board of directors will determine the dividend, voting and conversion rights and other provisions at the time of sale. The particular terms of each class or series of preferred stock, including redemption privileges, liquidation preferences, voting rights, dividend rights and/or conversion rights, will be more fully described in the applicable prospectus supplement relating to the preferred stock offered thereby. Our preferred stock is described in greater detail in this prospectus under “Description of Capital Stock—Preferred Stock.”
Debt Securities
We may offer debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities will rank equally with any other unsubordinated debt that we may have and may be secured or unsecured. The subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the debt, to all or some portion of our indebtedness. Any convertible debt securities that we issue will be convertible into or exchangeable for our common stock or other securities of ours. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates.
The debt securities will be issued under one or more documents called indentures, which are contracts between us and a trustee for the holders of the debt securities. In this prospectus, we have summarized certain general features of the debt securities under “Description of Debt Securities.” We urge you, however, to read the prospectus supplements and any free writing prospectus that we may authorize to be provided to you related to the series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities. A form of an indenture has been filed as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of debt securities being offered will be incorporated by reference into the registration statement of which this prospectus is a part from reports we file with the SEC.
Warrants
We may from time to time offer warrants for the purchase of our common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from those securities.
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About this Prospectus
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Industry and Market Data
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The Company
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Offering Summary
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Cautionary Note Regarding Forward Looking Statements
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Use of Proceeds
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Selling Stockholders
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Plan of Distribution
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Legal Matters
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Experts
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Where You Can Find More Information
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Incorporation of Certain Documents by Reference
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The warrants will be evidenced by warrant certificates issued under one or more warrant agreements, which are contracts between us and an agent (which may be us) for the holders of the warrants. In this prospectus, we have summarized certain general features of the warrants under “Description of Warrants.” We urge you, however, to read the prospectus supplements and any free writing prospectus that we may authorize to be provided to you related to the series of warrants being offered, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants. Specific warrant agreements will contain additional important terms and provisions and will be incorporated by reference as an exhibit to the registration statement which includes this prospectus.
Rights
We may from time to time issue rights to purchase shares of our common stock or preferred stock, debt securities or units. The rights may be issued independently or together with other securities and may or may not be transferable by the persons purchasing or receiving the rights. In connection with any rights offering, we may enter into a standby underwriting or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such rights offering. In connection with a rights offering to our stockholders, we would make available a prospectus supplement to our stockholders on or about the record date that we set for receiving rights in such rights offering.
In this prospectus, we have summarized certain general features of the rights under “Description of Rights.” We urge you, however, to read the prospectus supplements and any free writing prospectus that we may authorize to be provided to you related to the series of rights being offered.
Units
We may offer units consisting of common stock, preferred stock, debt securities and/or warrants to purchase any of such securities in one or more series. In this prospectus, we have summarized certain general features of the units under “Description of Units.” We urge you, however, to read the prospectus supplements and any free writing prospectus that we may authorize to be provided to you related to the series of units being offered, as well as the unit agreements that contain the terms of the units. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that we file with the SEC, the form of unit agreement and any supplemental agreements, if any, that describe the terms of the series of units we are offering before the issuance of the related series of units.
We will evidence each series of units by unit certificates that we will issue under a separate agreement, unless the units are uncertificated. We may enter into the unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select, unless we serve as our own agent. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units.
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RISK FACTORSABOUT THIS PROSPECTUS
InvestingWe urge you to read carefully this prospectus, together with the information incorporated herein by reference as described under “Incorporation of Certain Documents by Reference” before buying any of the securities offered.
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”) under which the selling stockholders named herein may, from time to time, offer and sell or otherwise dispose of the securities covered by this prospectus.
A prospectus supplement may add, update or change information included in our securities involves a high degree of risk.this prospectus. You should carefully review the risksread both this prospectus and uncertaintiesany applicable prospectus supplement together with additional information described below under the heading “Risk Factors” contained in“Where You Can Find Additional Information.”
You should rely only on the applicable prospectus supplement and any related free writing prospectus, and under similar headings in our Annual Report on Form 10-K for the year ended December 31, 2021, any amendment or update thereto reflected in subsequent filings with the SEC, and all other information contained or incorporated by reference in this prospectus and any applicable prospectus supplement. Neither we nor the selling stockholders have authorized anyone to provide you with different information, and if anyone provides, or has provided you, with different or inconsistent information, you should not rely on it. We and the selling stockholders take no responsibility for, and can provide no assurance as updatedto the reliability of, any other information that others may give you. This prospectus is an offer to sell only the securities offered hereby and only under circumstances and in jurisdictions where it is lawful to do so. This prospectus is not an offer to sell securities, and it is not soliciting an offer to buy securities, in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus, any prospectus supplement or in the documents incorporated by our subsequent filings under the Exchange Act, before deciding whether to purchase anyreference herein is accurate only as of the securities being registered pursuant todate of the registration statementdocument containing the information, regardless of whichthe time of delivery of this prospectus isor any applicable prospectus supplement or any sale of a part. Each of these risk factors could have a material and adverse effect on oursecurity. Our business, financial condition, results of operations financial positionand prospects may have changed since those dates.
For investors outside of the United States, neither we nor the selling stockholders have done anything that would permit this offering or cash flows, which may resultpossession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the lossUnited States. You are required to inform yourselves about, and to observe any restrictions relating to, this offering and the distribution of allthis prospectus outside of the United States.
INDUSTRY AND MARKET DATA
This prospectus and the information incorporated by reference herein contain market and industry statistics that are based on various sources that we believe is accurate. It is generally based on academic and other publications that are not produced for purposes of securities offerings or parteconomic analysis. We believe the data contained in these reports or publications to be reliable as of your investment.the date of this prospectus, but there can be no assurance as to the accuracy or completeness of such information. We have not independently verified the market and industry data obtained from these sources. Forecasts and other forward-looking information obtained from these sources are subject to the same qualifications and the additional uncertainties accompanying any estimates of future market size, revenue and market acceptance of products and services.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTSTHE COMPANY
This summary contains basic information about us. You should carefully read the entire prospectus and the documents we incorporate by reference herein. Some of the statements contained in this prospectus and the documents incorporated by reference contain forward-looking statements. Allherein, including statements other than statements of historical facts contained inunder this prospectussummary and “Risk Factors”, are forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “expect,” “plan,” “anticipate,” “could,” “intend,” “target,” “project,” “contemplate,” “believe,” “estimate,” “predict,” “potential” or “continue” or the negative of these terms or other similar expressions, although not all forward-looking statements contain these words. These forward-looking statements are also based on our current expectations and beliefs and are subject tomay involve a number of risks and uncertaintiesuncertainties. We note that could causeour actual results toand future events may differ materially from those described insignificantly based upon a number of factors. You should not put undue reliance on the these forward-looking statements. Such risksReferences to “we,” “our,” “us,” the “Company,” or “Femasys” refer to Femasys Inc., a Delaware corporation.
Business Overview
We are a biomedical company focused on meeting significant unmet needs for women worldwide with a broad portfolio of in-office, accessible solutions, including a lead late-clinical stage product candidate and uncertainties include, butinnovative therapeutic and diagnostic products. We are not limited to, the following:
oura woman-founded and led company with an expansive, internally created intellectual property portfolio with over 150 patents globally, in-house chemistry, manufacturing, and controls (CMC) and device manufacturing capabilities and proven ability to develop and advance our current product candidates and programs into, and successfully initiate and complete, clinical trials;
the abilitycommercialize products. Our suite of our clinical trials to demonstrate safety and effectiveness of our product candidates and other positive results;
estimates regarding the total addressable market for our product candidates;
our ability to enroll subjects in the clinical trials for our product candidates in order to advance the development thereof on a timely basis;
our ability to obtain additional financing to fund the clinical development of our products and fund operations;
competitive companies and technologies in our industry;
our ability to obtain U.S Food and Drug Administration (FDA) approval for our permanent birth control system, ability to gain FDA grant of a de novo classification request for our intrauterine insemination system, expand sales of our women-specific medical products and develop and commercialize additional products;
our ability to commercialize or obtain regulatory approvals, grants of de novo classification requests or 510(k) clearance for our product candidates, or the effect of delays in commercializing or obtaining regulatory authorizations;
our business model and strategic plans for our products, technologies and business, including our implementation thereof;
commercial success and market acceptance of our product candidates;
our ability to achieve and maintain adequate levels of coverage or reimbursement for our FemBloc system or any future products we may seek to commercialize;
our ability to manufacture our products and product candidates address what we believe are multi-billion dollar global market segments in compliance with applicable laws, regulationswhich there has been little advancement for many years, helping women avoid pharmaceutical solutions, implants and requirementssurgery that can be expensive and expose women to oversee third-party suppliers, service providers and vendorsharm. With an initial focus in the performancearea of any contracted activities in accordance with applicable laws, regulations and requirements;
the impact of the COVID-19 pandemic onreproductive health, our business, financial condition, results of operations, and prospects;
our ability to accurately forecast customer demandlead product candidate offers a solution for our product candidates, and manage our inventory;
our ability to build, manage and maintain our direct sales and marketing organization, and to market and sell our permanent birth control system,(FemBloc) and infertility treatment with our FemaSeed product for intratubal artificial insemination, system and women-specific medical productswhich received FDA 510(k) clearance in marketsSeptember 2023.
November 2023 Private Placement
On November 21, 2023, we closed a private placement in and outsidewhich we sold to certain accredited investors (the “Investors”) (i) senior unsecured convertible notes (the “Convertible Notes”) in an aggregate principal amount of the United States (U.S.);
our ability to obtain necessary financing for the Company and maintain adequate resources to fund our operations;
our ability to hire and retain our senior management and other highly qualified personnel;
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FDA or other U.S. or foreign regulatory actions affecting us or the healthcare industry generally, including healthcare reform measures in the U.S. and international markets;
the timing or likelihood of regulatory filings and approvals or clearances;
our ability to establish and maintain intellectual property protection for our product candidates and our ability to avoid claims of infringement;
the volatility of the trading price$6,850,000, convertible into shares of our common stock;stock at a conversion price of $1.18 per share, (ii) Series A Warrants (the “Series A Warrants”) to purchase up to an aggregate of 5,805,083 shares of our common stock at an exercise price of $1.18 per share, and
our expectations about market trends.
You should also read carefully the factors described in the “Risk Factors” section contained in this prospectus, any applicable prospectus supplement (iii) Series B Warrants (the “Series B Warrants” and any related free writing prospectus, and incorporated by reference herein from our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, as updated by annual, quarterly and other reports and documents we filetogether with the SEC afterSeries A Warrants, the date“Warrants”) to purchase up to an aggregate of this prospectus5,805,083 shares of our common stock at an exercise price of $1.475 per share (collectively, the “Private Placement”). The Convertible Notes are convertible immediately and thatwill mature on November 21, 2025. The Series A Warrants are incorporated by reference herein to better understand the risksexercisable immediately and uncertainties inherent in our businesswill expire on November 21, 2028. The Series B Warrants are exercisable immediately and underlying any forward-looking statements. As a result of these factors, we cannot assure you that the forward-looking statements contained in or incorporated by reference into this prospectus will prove to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements, you should not regard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time frame, or at all.
Any forward-looking statements that we make in or incorporate by reference into this prospectus speak only as of the date of such statement, and, except as required by applicable law, we undertake no obligation to update such statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events. Comparisons of results for current and any prior periods are not intended to express any future trends or indications of future performance, unless expressed as such, and should only be viewed as historical data.
For all forward-looking statements, we claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995.
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USE OF PROCEEDSexpire on November 21, 2024.
We will retain broad discretion over the use of thereceived aggregate net proceeds from the salePrivate Placement of the securities offered hereby. Except as described in any applicable prospectus supplement or in any free writing prospectuses that we may authorize to be provided to you in connection with a specificapproximately $6.7 million, after deducting offering we currently intendexpenses payable by us. We expect to use the net proceeds from the sale of the securities offered hereby, if any,Private Placement for working capital, capital expenditures and general corporate purposes. We may also use a portion of the net proceeds to invest in or acquire businesses or technologies that we believe are complementary to our own, although we have no current plans, commitments or agreements with respect to any acquisitions as of the date of this prospectus. We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds received from the sale of any securities sold pursuant to the prospectus supplement or free writing prospectus. Pending these uses, we plan to invest these net proceeds in short-term, investment-grade securities.
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DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock and provisions of our amended and restated certificate of incorporation, or Charter, and amended and restated bylaws, or Bylaws, are summaries. You should also refer to the text of the Charter and Bylaws, each of which are filed as exhibits to the registration statement of which this prospectus is part.
General
Our certificate of incorporation authorizes us to issue up to 200,000,000 shares of common stock, $0.001 par value per share, and 10,000,000 shares of preferred stock, $0.001 par value per share, all of which remains undesignated.
Common Stock
HoldersThis prospectus relates to the offer and resale from time to time by the selling stockholders named in this prospectus of up to an aggregate of 18,111,861 shares of our common stock, are entitled to one vote for each share held on all matters submitted to a votepar value $0.001 per share. These shares consist of stockholders and do not have cumulative voting rights. An election of directors by our stockholders shall be determined by a plurality of the votes cast by the stockholders entitled to vote on the election. Holders of common stock are entitled to receive proportionately any dividends as may be declared by our board of directors, subject to any preferential dividend rights of any series of preferred stock that we may designate and issue in the future.
In the event of our liquidation or dissolution, the holders of common stock are entitled to receive proportionately our net assets available for distribution to stockholders after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights. Our outstanding(i) 6,501,695 shares of common stock are validlyissuable upon conversion of convertible notes or that could be issued fully paid and nonassessable. The rights, preferences and privilegesin satisfaction of holders of common stock are subject to and may be adversely affected by the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Preferred Stock
Under the terms of our Charter, our board of directors is authorized to direct us to issue shares of preferred stock in one or more series without stockholder approval. Our board of directors has the discretion to determine the rights, preferences, privileges and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock.
The purpose of authorizing our board of directors to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions, future financings and other corporate purposes, could have the effect of making it more difficult for a third-party to acquire, or could discourage a third-party from seeking to acquire, a majority of our outstanding voting stock.
Anti-Takeover Provisions
Charter and Bylaws
Because our stockholders do not have cumulative voting rights, our stockholders holding a majority of the voting power of ouraccrued interest thereon, (ii) 5,805,083 shares of common stock outstandingissuable upon the exercise of Series A common stock purchase warrants and (iii) 5,805,083 shares of common stock issuable upon the exercise of Series B common stock purchase warrants, in each case, that were initially issued in a private placement to certain institutional and accredited investors as part of a private placement completed on November 21, 2023.
Our registration of the securities covered by this prospectus does not mean that the selling stockholders will be able to elect alloffer or sell any of the shares of common stock. The selling stockholders may sell or otherwise dispose of the shares of common stock publicly or through private transactions at prevailing market prices or at negotiated prices. We provide more information about how the selling stockholders may sell their shares in the section entitled “Plan of Distribution.”
We will not receive any proceeds from the sale of shares of common stock by the selling stockholders. We will, however, receive the proceeds from any exercise of the warrants for cash.
Our common stock is listed on the Nasdaq Capital Market (“Nasdaq”) under the symbol “FEMY.” On November 30, 2023, the last reported per share price of our directors. The Chartercommon stock on the Nasdaq was $0.9522 per share.
Investing in our common stock involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks that we have described under the caption “Risk Factors” in the documents incorporated by reference into this prospectus.
Neither the Securities and Bylaws provide that all stockholder actions must be effected atExchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a duly called meeting of stockholders and not by consent in writing. A special meeting of stockholders may be called only by a majority of our board of directors, the chair of our board of directors, or our chief executive officer.criminal offense.
The Charter further provides that the affirmative votedate of holders of at least sixty-six and two-thirds percent (662∕3%) of the voting power of all of the then outstanding shares of voting stock, voting as a single class, will be required to amend certain provisions of the Charter, including provisions relating to the election of directors, removal of directors, special meetings, actions by written consent and cumulative voting. The affirmative vote of holders of at least sixty-six and two-thirds percent (662∕3%) of the voting power of all of the then outstanding shares of voting stock, voting as a single class, will be required to amend or repeal the Bylaws, although the Bylaws may be amended by a simple majority vote of our board of directors.this prospectus is   , 2023.
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The Charter further provides that our board of directors is divided into three classes, Class I, Class II and Class III, with each class serving staggered terms, and gives our board of directors the exclusive right to expand the size of our board of directors and to elect directors to fill a vacancy created by the expansion of the board of directors or the resignation, death or removal of a director.
Finally, the Charter provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for: (i) any derivative action or proceeding brought on behalf of us; (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers or other employees or agents to us or our stockholders; (iii) any action asserting a claim against us arising pursuant to any provision of the Delaware General Corporation Law, or DGCL, or the Charter or Bylaws; or (iv) any action asserting a claim against us governed by the internal affairs doctrine. The enforceability of similar choice of forum provisions in other companies' certificates of incorporation has been challenged in legal proceedings, and it is possible that, in connection with any action, a court could find the choice of forum provisions contained in the Charter to be inapplicable or unenforceable in such action.
The foregoing provisions will make it more difficult for our existing stockholders to replace our board of directors as well as for another party to obtain control of us by replacing our board of directors. Since our board of directors has the power to retain and discharge our officers, these provisions could also make it more difficult for existing stockholders or another party to effect a change in management. In addition, the authorization of undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede the success of any attempt to change the control of our company.
These provisions are intended to enhance the likelihood of continued stability in the composition of our board of directors and its policies and to discourage certain types of transactions that may involve an actual or threatened acquisition of our company. These provisions are also designed to reduce our vulnerability to an unsolicited acquisition proposal and to discourage certain tactics that may be used in proxy fights. However, these provisions could have the effect of discouraging others from making tender offers for our shares and may have the effect of deterring hostile takeovers or delaying changes in control of our company or our management. As a consequence, these provisions also may inhibit fluctuations in the market price of our common stock that could result from actual or rumored takeover attempts.
Section 203 of the DGCL
We are subject to Section 203 of the DGCL, which prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years after the date that such stockholder became an interested stockholder, with the following exceptions:
before such date, our board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
upon closing of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction began, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (1) persons who are directors and also officers and (2) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
on or after such date, the business combination is approved by our board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least sixty-six and two-thirds percent (662∕3%) of the outstanding voting stock that is not owned by the interested stockholder.
In general, Section 203 defines business combination to include the following:
any merger or consolidation involving the corporation and the interested stockholder;
any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
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any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or
the receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits by or through the corporation.
In general, Section 203 defines an “interested stockholder” as an entity or person who, together with the person's affiliates and associates, beneficially owns, or within three years prior to the time of determination of interested stockholder status did own, fifteen percent (15%) or more of the outstanding voting stock of the corporation.
Limitations on Liability and Indemnification Matters
The Bylaws provide that we will indemnify each of our directors and executive officers to the fullest extent permitted by the DGCL. We have entered and intend to continue to enter into indemnification agreements with each of our directors and executive officers that may, in some cases, be broader than the specific indemnification provisions contained under Delaware law. Further, we intend to indemnify each of our directors and executive officers against certain liabilities, costs and expenses, and to purchase a policy of directors' and officers' liability insurance that insures our directors and executive officers against the cost of defense, settlement or payment of a judgment under certain circumstances. In addition, as permitted by Delaware law, the Charter includes provisions that eliminate the personal liability of our directors for monetary damages resulting from breaches of certain fiduciary duties as a director. The effect of this provision is to restrict our rights and the rights of our stockholders in derivative suits to recover monetary damages against a director for breach of fiduciary duties as a director.
These provisions may be held not to be enforceable for violations of the federal securities laws of the United States.
Listing
Our common stock is traded on The Nasdaq Capital Market under the symbol “FEMY.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Broadridge Investor Communication Solutions, Inc.
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About this Prospectus
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Industry and Market Data
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The Company
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Offering Summary
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Cautionary Note Regarding Forward Looking Statements
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Use of Proceeds
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Selling Stockholders
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Plan of Distribution
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Legal Matters
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Experts
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Incorporation of Certain Documents by Reference
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DESCRIPTION OF DEBT SECURITIESABOUT THIS PROSPECTUS
The following description,We urge you to read carefully this prospectus, together with the additional information incorporated herein by reference as described under “Incorporation of Certain Documents by Reference” before buying any of the securities offered.
This prospectus is part of a registration statement that we includehave filed with the Securities and Exchange Commission (the “SEC”) under which the selling stockholders named herein may, from time to time, offer and sell or otherwise dispose of the securities covered by this prospectus.
A prospectus supplement may add, update or change information included in this prospectus. You should read both this prospectus and any applicable prospectus supplementssupplement together with additional information described below under the heading “Where You Can Find Additional Information.”
You should rely only on the information contained or free writing prospectuses, summarizesincorporated by reference in this prospectus and any applicable prospectus supplement. Neither we nor the material termsselling stockholders have authorized anyone to provide you with different information, and provisionsif anyone provides, or has provided you, with different or inconsistent information, you should not rely on it. We and the selling stockholders take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer to sell only the securities offered hereby and only under circumstances and in jurisdictions where it is lawful to do so. This prospectus is not an offer to sell securities, and it is not soliciting an offer to buy securities, in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus, any prospectus supplement or in the documents incorporated by reference herein is accurate only as of the debt securities that we may offer under this prospectus. We may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. Whiledate of the terms we have summarized below will apply generally to any future debt securities we may offer underdocument containing the information, regardless of the time of delivery of this prospectus we will describe the particular terms ofor any debt securities that we may offer in more detail in the applicable prospectus supplement or free writing prospectus. The termsany sale of a security. Our business, financial condition, results of operations and prospects may have changed since those dates.
For investors outside of the United States, neither we nor the selling stockholders have done anything that would permit this offering or possession or distribution of this prospectus in any debtjurisdiction where action for that purpose is required, other than in the United States. You are required to inform yourselves about, and to observe any restrictions relating to, this offering and the distribution of this prospectus outside of the United States.
INDUSTRY AND MARKET DATA
This prospectus and the information incorporated by reference herein contain market and industry statistics that are based on various sources that we believe is accurate. It is generally based on academic and other publications that are not produced for purposes of securities we offer under a prospectus supplement may differ fromofferings or economic analysis. We believe the terms we describe below. Asdata contained in these reports or publications to be reliable as of the date of this prospectus, we havebut there can be no outstanding registered debt securities. Unless the context requires otherwise, whenever we referassurance as to the “indenture,” we also are referring to any supplemental indentures that specify the termsaccuracy or completeness of a particular series of debt securities.
We may offer senior debt securities or subordinated debt securities under the indenture and any supplemental indentures that we will enter into with the trustee named in the indenture.such information. We have filed a form ofnot independently verified the indenture as an exhibit to the registration statement, of which this prospectus is a part,market and supplemental indenturesindustry data obtained from these sources. Forecasts and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by referenceother forward-looking information obtained from reports that we file with the SEC.
The indenture will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
The following summaries of material provisions of the indenturethese sources are subject to and qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the terms of the debt securities.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in an officer’s certificate or by a supplemental indenture. Debt securities may be issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt securities of any series. We will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
the title of the series of debt securities;
any limit upon the aggregate principal amount that may be issued;
the maturity date or dates;
the form of the debt securities of the series;
the applicability of any guarantees;
whether or not the debt securities will be secured or unsecured,same qualifications and the termsadditional uncertainties accompanying any estimates of any secured debt;
whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof,future market size, revenue and the termsmarket acceptance of any subordination;
if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another security or the method by which any such portion shall be determined;
the interest rate or rates, which may be fixed or variable, or the method for determining the rateproducts and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
our right, if any, to defer payment of interest and the maximum length of any such deferral period;services.
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if applicable,
THE COMPANY
This summary contains basic information about us. You should carefully read the date or dates after which, or the period or periods during which,entire prospectus and the price or prices at which,documents we may, at our option, redeemincorporate by reference herein. Some of the series of debt securities pursuant to any optional or provisional redemption provisionsstatements contained in this prospectus and the termsdocuments incorporated by reference herein, including statements under this summary and “Risk Factors”, are forward-looking statements and may involve a number of those redemption provisions;risks and uncertainties. We note that our actual results and future events may differ significantly based upon a number of factors. You should not put undue reliance on the these forward-looking statements. References to “we,” “our,” “us,” the “Company,” or “Femasys” refer to Femasys Inc., a Delaware corporation.
the date or dates, if any,Business Overview
We are a biomedical company focused on which,meeting significant unmet needs for women worldwide with a broad portfolio of in-office, accessible solutions, including a lead late-clinical stage product candidate and the price or prices at whichinnovative therapeutic and diagnostic products. We are a woman-founded and led company with an expansive, internally created intellectual property portfolio with over 150 patents globally, in-house chemistry, manufacturing, and controls (CMC) and device manufacturing capabilities and proven ability to develop and commercialize products. Our suite of products and product candidates address what we believe are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unitmulti-billion dollar global market segments in which there has been little advancement for many years, helping women avoid pharmaceutical solutions, implants and surgery that can be expensive and expose women to harm. With an initial focus in the debt securities are payable;area of reproductive health, our lead product candidate offers a solution for permanent birth control (FemBloc) and infertility treatment with our FemaSeed product for intratubal artificial insemination, which received FDA 510(k) clearance in September 2023.
the denominationsNovember 2023 Private Placement
On November 21, 2023, we closed a private placement in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;
any and all terms, if applicable, relatingsold to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisablecertain accredited investors (the “Investors”) (i) senior unsecured convertible notes (the “Convertible Notes”) in connection with the marketing of debt securities of that series;
whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities; and the depositary for such global security or securities;
if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange;
if other than the full principal amount thereof, the portion of thean aggregate principal amount of debt securities$6,850,000, convertible into shares of our common stock at a conversion price of $1.18 per share, (ii) Series A Warrants (the “Series A Warrants”) to purchase up to an aggregate of 5,805,083 shares of our common stock at an exercise price of $1.18 per share, and (iii) Series B Warrants (the “Series B Warrants” and together with the Series A Warrants, the “Warrants”) to purchase up to an aggregate of 5,805,083 shares of our common stock at an exercise price of $1.475 per share (collectively, the “Private Placement”). The Convertible Notes are convertible immediately and will mature on November 21, 2025. The Series A Warrants are exercisable immediately and will expire on November 21, 2028. The Series B Warrants are exercisable immediately and will expire on November 21, 2024.
We received aggregate net proceeds from the Private Placement of approximately $6.7 million, after deducting offering expenses payable by us. We expect to use the net proceeds from the Private Placement for general corporate purposes.
Corporate Information
We were incorporated in February 2004 as a Delaware corporation under the name Femasys Inc. Our principal executive office is located at 3950 Johns Creek Court, Suite 100, Suwanee, Georgia, 30024, and our telephone number is (770) 500-3910. Our website address is www.femasys.com. The information on, or that can be accessed through, our website is not part of this prospectus. We have included our website address as an inactive textual reference only.
We use “Femasys,” “FemBloc,” “FemChec,” “FemaSeed,” “FemVue,” “FemCerv,” “FemEMB,” and other marks as trademarks in the United States and other countries. This prospectus contains references to our trademarks and service marks and to those belonging to other entities. Solely for convenience, trademarks and trade names referred to in this prospectus, including logos, artwork, and other visual displays, may appear without the ® or ™ symbols, but such references are not intended to indicate in any way that we will not assert, to the fullest extent under applicable law, our right or the rights of the series which shall be payable upon declarationapplicable licensor to these trademarks and trade names. We do not intend our use or display of accelerationother entities’ trade names, trademarks, or service marks to imply a relationship with, or endorsement or sponsorship of us by, any other entity.
Implications of Being an Emerging Growth Company and a Smaller Reporting Company
We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012. We will remain an emerging growth company until the earliest to occur of: the last day of the maturity thereof;
additions to or changesfiscal year in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or sale covenant;
additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable;
additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture;
the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election may be made;
the terms and conditions, if any, upon which we will pay amountshave more than $1.07 billion in addition toannual revenue; the stated interest, premium, if any and principal amounts of the debt securities of the series to any holder that is notdate we qualify as a “United States person” for federal tax purposes;“large accelerated filer,” with at least $700 million
any restrictions on transfer, sale or assignment of the debt securities of the series; and
any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
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Conversion or Exchange Rights
of equity securities held by non-affiliates; the issuance, in any three-year period, by us of more than $1 billion in non-convertible debt securities; and the last day of the fiscal year ending after the fifth anniversary of our initial public offering. We refer to the Jumpstart Our Business Startups Act of 2012 herein as the “JOBS Act,” and any reference herein to “emerging growth company” has the meaning ascribed to it in the JOBS Act.
An emerging growth company may take advantage of reduced reporting requirements that are otherwise applicable to public companies. These provisions include, but are not limited to:
being permitted to present only two years of audited financial statements and only two years of related Management’s Discussion and Analysis of Financial Condition and Results of Operations in this prospectus;
not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended;
reduced disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and
exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved.
We will set forthhave elected to take advantage of certain of the reduced disclosure obligations in this prospectus and may elect to take advantage of other reduced reporting requirements in our future filings with the applicable prospectus supplementU.S. Securities and Exchange Commission, or the terms under whichSEC. As a series of debt securitiesresult, the information that we provide to our stockholders may be convertible intodifferent than you might receive from other public reporting companies in which you hold equity interests.
The JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or exchangeable forrevised accounting standards. We have elected not to take advantage of such extended transition period, which means that we will adopt a new standard when it is issued or revised.
We are also a “smaller reporting company,” meaning that the market value of our common stock,shares held by non-affiliates plus the proposed aggregate amount of gross proceeds to us as a result of this offering is less than $700 million and our preferred stockannual revenue was less than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company after this offering if either (i) the market value of our shares held by non-affiliates is less than $250 million or other securities (including securities(ii) our annual revenue was less than $100 million during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than $700 million. If we are a third party). We will include provisions as to whether conversion or exchange is mandatory,smaller reporting company at the option of the holder or at our option. We may include provisions pursuanttime we cease to which the number of shares of our common stock, our preferred stock or other securities (including securities of a third party) that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indenture or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect to any series of debt securities thatan emerging growth company, we may issue:
continue to rely on exemptions from certain disclosure requirements that are available to smaller reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most recent fiscal years of audited financial statements in our Annual Report on Form 10-K and have reduced disclosure obligations regarding executive compensation, and, similar to emerging growth companies, if we failare a smaller reporting company with less than $100 million in annual revenue, we would not be required to pay interest when due and payable andobtain an attestation report on internal control over financial reporting issued by our failure continues for 90 days and the time for payment has not been extended;independent registered public accounting firm.
if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase or otherwise, and the time for payment has not been extended;
if we fail to observe or perform any other covenant contained in the debt securities or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the trustee or we and the trustee receive notice from the holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and
if specified events of bankruptcy, insolvency or reorganization occur.
If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any, and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
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Subject to
OFFERING SUMMARY
Common stock that may be offered by selling stockholders
18,111,861 shares, which are comprised of (i) 6,501,695 shares of common stock issuable upon conversion of Convertible Notes or that could be issued in satisfaction of accrued interest thereon, (ii) 5,805,083 shares of common stock issuable upon the termsexercise of Series A Warrants and (iii) 5,805,083 shares of common stock issuable upon the exercise of Series B Warrants.
Use of proceeds
The selling stockholders will receive all of the indenture, if an eventnet proceeds from the sale of default under the indenture shall occur and be continuing, the trusteeshares offered pursuant to this prospectus. We will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction ofnot receive any of the holders of the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any seriesproceeds from these sales. However, we will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
the direction so given by the holder is not in conflict with any law or the applicable indenture; and
subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
The indenture provides that if an event of default has occurred and is continuing, the trustee will be required inreceive proceeds from the exercise of its powers to use the degreeWarrants if exercised for cash.
Plan of care thatDistribution
The selling stockholders may sell or otherwise dispose the shares of our common stock covered by this prospectus in a prudent person would use in the conductnumber of its own affairs. The trustee, however, may refuse to follow any direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial to the rightsdifferent ways and at varying prices. For further information, see “Plan of any other holder of the relevant series of debt securities, or that would involve the trustee in personal liability. Prior to taking any action under the indenture, the trustee will be entitled to indemnification against all costs, expenses and liabilities that would be incurred by taking or not taking such action.
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, a holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only if:
the holder has given written notice to the trustee of a continuing event of default with respect to that series;
the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request and such holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss, liability or expense or to be incurred in compliance with instituting the proceeding as trustee; and
the trustee does not institute the proceeding and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interestDistribution” beginning on the debt securities, or other defaults that may be specified in the applicable prospectus supplement.page 9.
We will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
Subject to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change the indenture without the consent of any holders with respect to the following specific matters:
to cure any ambiguity, defect or inconsistency in the indenture;
to comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;”
to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture;
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to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above under “Description of Debt Securities—General” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;
to evidence and provide for the acceptance of appointment under any indenture by a successor trustee;
to provide for uncertificated debt securities and to make all appropriate changes for such purpose;
to add such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred to us in the indenture; or
to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect.
In addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected.
However, subject to the terms of the indenture for any series of debt securities that we may issue or otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may only make the following changes with the consent of each holder of any outstanding debt securities affected:
extending the fixed maturity of any debt securities of any series;
reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any series of any debt securities; or
reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.
Discharge
The indenture may provide that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we may elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations to:
register the transfer or exchange of debt securities of the series;
replace stolen, lost or mutilated debt securities of the series;
maintain paying agencies;
hold monies for payment in trust;
recover excess money held by the trustee;
compensate and indemnify the trustee; and
appoint any successor trustee.
In order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent global
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form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms related to any book-entry securities will be set forth in the applicable prospectus supplement.
At the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an event of default under the indenture, undertakes to perform only those duties as are specifically set forth in the indenture and is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur. However, upon an event of default under the indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest payment.
We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
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Governing Law
The indenture and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Ranking Debt Securities
The subordinated debt securities that we may offer will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness to the extent described in a prospectus supplement.
The senior debt securities that we may offer will be unsecured and will rank equally in right of payment to all our other senior unsecured debt.
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DESCRIPTION OF WARRANTSCAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
The following description, together withThis prospectus and the additional information wedocuments incorporated by reference may include in any applicable prospectus supplements and free writing prospectuses, summarizescontain “forward-looking statements” within the material terms and provisionsmeaning of Section 27A of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common stock, preferred stock or debt securitiesSecurities Act and may be issued in one or more series. Warrants may be offered independently or together with common stock, preferred stock or debt securities offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants that we may offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that we file with the SEC, the form of warrant agreement, if any, including a form of warrant certificate, if any, that describes the termsSection 21E of the particular seriesSecurities Exchange Act of warrants we are offering before the issuance of the related series of warrants. The following summaries of material provisions of the warrants1934, as amended (the “Exchange Act”). We have based these forward-looking statements on our current expectations and the warrant agreementsbeliefs about future developments or events and their potential effects on us. Forward-looking statements generally relate to future events or our future financial or operating performance. In some cases, you can identify forward-looking statements by terms such as “may”, “will”, “should”, “could”, “would”, “expects”, “plans”, “anticipates”, “believes”, “estimates”, “projects”, “predicts”, “potential” and similar expressions intended to identify forward-looking statements. These forward-looking statements are subject to known and qualified in their entiretyunknown risks, uncertainties and assumptions about us that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by referencesuch forward-looking statements. Important factors that may cause such differences include:
our ability to all develop and advance our current product candidates and programs into, and successfully initiate and complete, clinical trials;
the provisionsability of the warrant agreementour clinical trials to demonstrate safety and warrant certificate applicableeffectiveness of our product candidates and other positive results;
our ability to a particular series of warrants. We urge you to read the applicable prospectus supplement and any applicable free writing prospectus related to the particular series of warrants that we sell under this prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
General
We will describeenroll subjects in the applicable prospectus supplementclinical trials for our product candidates in order to advance the terms relatingdevelopment thereof on a timely basis;
our ability to a seriesobtain additional financing to fund the clinical development of warrants, including:our products and fund operations;
estimates regarding the titletotal addressable market for our product candidates;
competitive companies and technologies in our industry;
our ability to obtain U.S. Food and Drug Administration (FDA) approval for our permanent birth control system, ability to establish and expand sales of such securities;our women-specific medical products and develop and commercialize additional products;
the offering and exercise priceour ability to commercialize or prices and aggregate number of warrants offered;
the currencyobtain regulatory approvals or currencies510(k) clearance for which the warrants may be purchased;
if applicable, the designation and terms of the securities with which the warrants are issued, and the number of warrants issued with each such securityour product candidates, or each principal amount of such security;
if applicable, the date on and after which the warrants and the related securities will be separately transferable;
if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;
in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at which, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which, and the currency in which, these shares may be purchased upon such exercise;
the effect of delays in commercializing or obtaining regulatory authorizations;
our business model and strategic plans for our products, technologies and business, including our implementation thereof;
commercial success and market acceptance of our product candidates;
our ability to achieve and maintain adequate levels of coverage or reimbursement for our FemBloc system or any merger, consolidation, salefuture products we may seek to commercialize;
our ability to manufacture our products and product candidates in compliance with applicable laws, regulations and requirements and to oversee third-party suppliers, service providers and vendors in the performance of any contracted activities in accordance with applicable laws, regulations and requirements;
adverse developments affecting the financial services industry;
the impact of the COVID-19 pandemic on our business, financial condition, results of operations, and prospects;
our ability to accurately forecast customer demand for our product candidates, and manage our inventory;
our ability to build, manage and maintain our direct sales and marketing organization, and to market and sell our permanent birth control system, artificial insemination product and women-specific medical product solutions in markets in and outside of the United States (U.S.);
our ability to hire and retain our senior management and other highly qualified personnel;
FDA or other disposition of our business onU.S. or foreign regulatory actions affecting us or the warrant agreementshealthcare industry generally, including healthcare reform measures in the United States and the warrants;international markets;
the termstiming or likelihood of any rights to redeemregulatory filings and approvals or call the warrants;
the terms of any rights to force the exercise of the warrants;
any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
the dates on which the right to exercise the warrants will commence and expire;
the manner in which the warrant agreements and warrants may be modified;clearances;
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a discussionour ability to establish and maintain intellectual property protection for our product candidates and our ability to avoid claims of any material or special U.S. federal income tax consequences of holding or exercising the warrants;infringement;
the termsvolatility of the securities issuable upon exercisetrading price of the warrants;our common stock;
our ability to maintain compliance with Nasdaq’s continued listing requirements; and
our expectations about market trends.
We discuss many of these and other risks and uncertainties in greater detail under the heading “Risk Factors” in our most recent Annual Report on Form 10-K, as updated in our subsequent Quarterly Reports on Form 10-Q. Given these risks and uncertainties, you should not place undue reliance on these forward-looking statements. We undertake no obligation to update or revise any other specific terms, preferences, rightsforward-looking statements, whether as a result of new information, future events or limitations of or restrictions on the warrants.
Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. Unless we otherwise, specify in the applicable prospectus supplement, holders of the warrantsexcept as may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant certificate or agreement representing the warrants to be exercised together with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate or agreement and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver tounder applicable securities laws.
You should read this prospectus, as well as the warrant agent.
Upon receipt ofdocuments incorporated by reference into this prospectus, completely and with the required paymentunderstanding that our actual future results, performance and the warrant certificate or agreement properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement,achievements may be materially different from what we will issue and deliver the securities purchasable upon such exercise. If fewer thanexpect. We qualify all of the warrants represented by the warrant certificate or agreement are exercised, then we will issue a new warrant certificate or agreement for the remaining amount of warrants. If we so indicateforward-looking statements in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements, and any claim, controversy or dispute arising under or related to the warrants or warrant agreements, will be governedforegoing documents by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.these cautionary statements.
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DESCRIPTIONUSE OF RIGHTSPROCEEDS
The following is a general descriptionWe will not receive any proceeds from the sale of shares of our common stock by the selling stockholders identified in this prospectus. However, we will receive proceeds from the exercise of the termsWarrants for cash. We expect to use these proceeds for working capital purposes. We will have broad discretion over the use of proceeds from the exercise of the rights we may issue from timeWarrants. There is no assurance that the holders of the Warrants will elect to time unless we provide otherwise in the applicable prospectus supplement. Particular terms ofexercise any rights we offer will be described in the prospectus supplement relating to such rights.
General
We may issue rights to purchase common stock, preferred stock, debt securities or units. Rights may be issued independently or together with other securities and may or may not be transferable by the person purchasing or receiving the rights. In connection with any rights offering to our stockholders, we may enter into a standby underwriting, backstop or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such rights offering. In connection with a rights offering to our stockholders, we would distribute certificates evidencing the rights and a prospectus supplement to our stockholders on or about the record date that we set for receiving rights in such rights offering.
The applicable prospectus supplement will describe the following terms of any rights we may issue, including some or all of such Warrants. The Warrants contain a “cashless exercise” feature that allows the following:
holders to exercise any of such Warrants without making a cash payment to us if there is not an effective registration statement covering the title and aggregate numberresale of the rights;
the subscription price or a formula for the determination of the subscription price for the rights and the currency or currencies in which the subscription price may be payable;
if applicable, the designation and terms of the securities with which the rights are issued and the number of rights issued with each such security or each principal amount of such security;
the number or a formula for the determination of the number of the rights issued to each stockholder;
the extent to which the rights are transferable;
in the case of rights to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one right;
in the case of rights to purchase common stock or preferred stock, the type of stock and number of shares of stock purchasable upon exercise of one right;
the date on which the right to exercise the rights will commence, and the date on which the rights will expire (subject to any extension);
if applicable, the minimum or maximum amount of the rights that may be exercised at any one time;
the extent to which such rights include an over-subscription privilege with respect to unsubscribed securities;
if applicable, the procedures for adjusting the subscription price and number of shares of common stock or preferred stock purchasable upon the exercise of each right upon the occurrence of certain events, including stock splits, reverse stock splits, combinations, subdivisions or reclassifications of common stock or preferred stock;
the effect on the rights of any merger, consolidation, sale or other disposition of our business;
the terms of any rights to redeem or call the rights;
information with respect to book-entry procedures, if any;
the terms of the securities issuable upon exercise of the rights;
if applicable, the material terms of any standby underwriting, backstop or other purchase arrangement that we may enter into in connection with the rights offering;
if applicable, a discussion of certain U.S. Federal income tax considerations; and
any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights.such Warrants.
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Exercise of Rights
Each right will entitle the holder to purchase for cash or other consideration such shares of stock or principal amount of securities at the subscription price as shall in each case be set forth in, or be determinable as set forth in, the prospectus supplement relating to the rights offered thereby. Rights may be exercised as set forth in the applicable prospectus supplement beginning on the date specified therein and continuing until the close of business on the expiration date set forth in the prospectus supplement relating to the rights offered thereby. After the close of business on the expiration date, unexercised rights will become void.
Upon receipt of payment and a subscription certificate properly completed and duly executed at the corporate trust office of the subscription agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the securities purchasable upon such exercise. If less than all of the rights represented by such subscription certificate are exercised, a new subscription certificate will be issued for the remaining rights. If we so indicate in the applicable prospectus supplement, holders of the rights may surrender securities as all or part of the exercise price for rights.
We may determine to offer any unsubscribed offered securities directly to stockholders, persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting, backstop or other arrangements, as set forth in the applicable prospectus supplement.
Prior to exercising their rights, holders of rights will not have any of the rights of holders of the securities purchasable upon subscription, including, in the case of rights to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our liquidation, dissolution or winding up or to exercise any voting rights or, in the case of rights to purchase debt securities, the right to receive principal, premium, if any, or interest payments, on the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture.
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DESCRIPTION OF UNITSSELLING STOCKHOLDERS
The following description, togethershares of common stock being offered by the selling stockholders are those issuable to the selling stockholders upon conversion of the Convertible Notes and exercise of the Warrants. For additional information regarding the issuance of the Convertible Notes and the Warrants, see “Summary – November 2023 Private Placement” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except for the ownership of the Convertible Notes and the Warrants issued pursuant to the Securities Purchase Agreement, the selling stockholders have not had any material relationship with us within the past three years.
The table below lists the selling stockholders and other information regarding the beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the shares of common stock held by each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by the selling stockholders, based on their respective ownership of shares of common stock, Convertible Notes and Warrants, as of November 30, 2023, assuming conversion of the Convertible Notes and exercise of the Warrants held by each such selling stockholder on that date but taking account of any limitations on conversion and exercise set forth therein.
The third column lists the shares of common stock being offered by this prospectus by the selling stockholders and does not take in account any limitations on (i) conversion of the Convertible Notes set forth therein or (ii) exercise of the Warrants set forth therein.
In accordance with the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizesterms of a registration rights agreement with the material terms and provisionsholders of the unitsConvertible Notes and the Warrants, this prospectus generally covers the resale of the sum of (i) the maximum number of shares of common stock issued or issuable pursuant to the Convertible Notes, including payment of interest on the Convertible Notes through November 21, 2025, and (ii) the maximum number of shares of common stock issued or issuable upon exercise of the Warrants, in each case, determined as if the outstanding Convertible Notes (including interest on the Convertible Notes through November 21, 2025) and Warrants were converted or exercised (as the case may be) in full (without regard to any limitations on conversion or exercise contained therein solely for the purpose of such calculation) at the floor price or exercise price (as the case may be) calculated as of the trading day immediately preceding the date this registration statement was initially filed with the SEC. Because the conversion price of the Convertible Notes and the exercise price of the Warrants may be adjusted, the number of shares that wewill actually be issued may offer underbe more or less than the number of shares being offered by this prospectus. WhileThe fourth column assumes the terms we have summarized below will apply generallysale of all of the shares offered by the selling stockholders pursuant to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.prospectus.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that we file with the SEC, the form of unit agreement that describesUnder the terms of the series of units we are offering,Convertible Notes and any supplemental agreements, before the issuance ofWarrants, a selling stockholder may not convert the related series of units. The following summaries of material terms and provisions ofConvertible Notes or exercise the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements relatedWarrants to the particular seriesextent (but only to the extent) such selling stockholder or any of units that we sell under this prospectus, as well as the complete unit agreement and any supplemental agreements that contain the termsits affiliates would beneficially own a number of the units.
General
We may issue units comprisedshares of one or more debt securities,our shares of common stock which would exceed 19.99% or 4.99%, as applicable, of the outstanding shares of preferred stock and warrants in any combination. Each unit will be issued so that the holderCompany. The number of the unit is also the holder of each security includedshares in the unit. Thus, the holdersecond column reflects these limitations. The selling stockholders may sell all, some or none of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units, including:
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
any provisions of the governing unit agreement that differ from those described below; and
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
The provisions describedtheir shares in this section, as well as those described under “Descriptionoffering. See “Plan of Capital Stock,Distribution.” “Description of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, preferred stock, debt security or warrant included in each unit, respectively.
Issuance
Name of Selling Stockholder
​​
Number of shares of Common
Stock Beneficially Owned
Prior to Offering
​​
Maximum Number of shares
of Common Stock to be Sold
Pursuant to this Prospectus
​​
Number of shares
of Common Stock
of Owned After Offering
PharmaCyte Biotech, Inc.
​​
4,327,759
​​
13,220,339(1)
​​
0
Iroquois Master Fund Ltd.
​​
1,080,316
​​
1,586,440(2)
​​
0
Iroquois Capital Investment Group LLC
​​
1,057,628
​​
1,057,628(3)
​​
0
Special Opportunities I Series
​​
1,080,316
​​
2,247,456(4)
​​
0
(1)
Represents (i) 4,745,763 shares of our common stock issuable to PharmaCyte Biotech, Inc. (“PharmaCyte”) upon conversion of the Convertible Notes or in satisfaction of accrued interest thereon, (ii) 4,237,288 shares of our common stock issuable to PharmaCyte upon exercise of the Series A Warrants, and (iii) 4,237,288 shares of our common stock issuable to PharmaCyte upon exercise of the Series B Warrants. The Convertible Notes and the Warrants are subject to a beneficial ownership limitation of 19.99%, which does not permit the selling shareholder to convert that portion of the Convertible Notes or to exercise that portion of the Warrants that would result in the selling shareholder and its affiliates owning, after exercise, a number of shares of our common stock in excess of the beneficial ownership limitation. The amounts and percentages in the third column of the table do not give effect to the 19.99% beneficial ownership limitation, if applicable. PharmaCyte is a publicly traded company, the board of directors and chief executive officer of which are identified in PharmaCyte’s filings with the SEC. To the best of our knowledge, no person has sole voting or sole investment power with respect to the shares of our common stock beneficially owned by PharmaCyte.
We may issue units in such amounts and in numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent (which may be us) will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
We, the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.7
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(2)
Represents (i) 569,492 shares of our common stock issuable to Iroquois Master Fund, Ltd. (“IMF”) upon conversion of the Convertible Notes or in satisfaction of accrued interest thereon, (ii) 508,474 shares of our common stock issuable to IMF upon exercise of the Series A Warrants, and (iii) 508,474 shares of our common stock issuable to IMF upon exercise of the Series B Warrants. The Convertible Notes and the Warrants are subject to a beneficial ownership limitation of 4.99%, which does not permit the selling shareholder to convert that portion of the Convertible Notes or to exercise that portion of the Warrants that would result in the selling shareholder and its affiliates owning, after exercise, a number of shares of our common stock in excess of the beneficial ownership limitation. The amounts and percentages in the third column of the table do not give effect to the 4.99% beneficial ownership limitation, if applicable. Iroquois Capital Management L.L.C. (“ICM”) is the investment manager of IMF. ICM has voting control and investment discretion over securities held by IMF. As Managing Members of ICM, Richard Abbe and Kimberly Page make voting and investment decisions on behalf of ICM in its capacity as investment manager to IMF. As a result of the foregoing, Mr. Abbe and Mrs. Page may be deemed to have beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of the securities held by ICM and IMF. The principal business address of IMF is c/o Iroquois Capital Management, LLC, 2 Overhill Road, Suite 400, Scarsdale, NY 10583. his information is based solely on information provided by IMF on November 29, 2023.
(3)
Represents (i) 379,662 shares of our common stock issuable to Iroquois Capital Investment Group (“ICIG”) upon conversion of the Convertible Notes or in satisfaction of accrued interest thereon, (ii) 338,983 shares of our common stock issuable to ICIG upon exercise of the Series A Warrants, and (iii) 338,983 shares of our common stock issuable to ICIG upon exercise of the Series B Warrants. The Convertible Notes and the Warrants are subject to a beneficial ownership limitation of 4.99%, which does not permit the selling shareholder to convert that portion of the Convertible Notes or to exercise that portion of the Warrants that would result in the selling shareholder and its affiliates owning, after exercise, a number of shares of our common stock in excess of the beneficial ownership limitation. The amounts and percentages in the third column of the table do not give effect to the 4.99% beneficial ownership limitation, if applicable. Richard Abbe is the managing member of ICIG. Mr. Abbe has voting control and investment discretion over securities held by ICIG. As such, Mr. Abbe may be deemed to be the beneficial owner (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended) of the securities held by ICIG. The principal business address of ICIG is 2 Overhill Road, Suite 400, Scarsdale, NY 10583. This information is based solely on information provided by ICIG on November 29, 2023.
(4)
Represents (i) 806,780 shares of our common stock issuable to Special Opportunities I Series (“SOIS”) upon conversion of the Convertible Notes or in satisfaction of accrued interest thereon, (ii) 720,338 shares of our common stock issuable to SOIS upon exercise of the Series A Warrants, and (iii) 720,338 shares of our common stock issuable to SOIS upon exercise of the Series B Warrants. The Convertible Notes and the Warrants are subject to a beneficial ownership limitation of 4.99%, which does not permit the selling shareholder to convert that portion of the Convertible Notes or to exercise that portion of the Warrants that would result in the selling shareholder and its affiliates owning, after exercise, a number of shares of our common stock in excess of the beneficial ownership limitation. The amounts and percentages in the third column of the table do not give effect to the 4.99% beneficial ownership limitation, if applicable.
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PLAN OF DISTRIBUTION
We may sellare registering the securities,shares of common stock issuable upon conversion of the Convertible Notes and exercise of the Warrants to permit the resale of these shares of common stock by the holders of the Convertible Notes and Warrants from time to time to or through underwriters or dealers, through agents or remarketing firms, or directly to one or more purchasers pursuant to:
underwritten public offerings;
negotiated transactions;
block trades;
“Atafter the Market Offerings,” within the meaningdate of Rule 415(a)(4)this prospectus. We will not receive any of the Securities Act, into an existing trading market, at prevailing market prices; orproceeds from the sale by the selling stockholders of the shares of common stock, although we will receive the exercise price of any Warrants not exercised by the selling stockholders on a cashless exercise basis. We will bear all fees and expenses incident to our obligation to register the shares of common stock.
through a combination of these methods.
WeThe selling stockholders may sell all or a portion of the securitiesshares of common stock held by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or dealers (acting as principalagents. If the shares of common stock are sold through underwriters or agent), through agents,broker-dealers, the selling stockholders will be responsible for underwriting discounts or directly to onecommissions or more purchasers.
We may distribute securities from time to time in one or more transactions:
at a fixed price or prices, whichagent’s commissions. The shares of common stock may be changed;
at market prices prevailing at the time of sale;
at prices related to such prevailing market prices; or
at negotiated prices.
A prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the securities, including, to the extent applicable:
the name or names of the underwriters, dealers or agents, if any;
if the securities are to be offered through the selling efforts of brokers or dealers, the plan of distribution and the terms of any agreement, arrangement, or understanding entered into with broker(s) or dealer(s) prior to the effective date of the registration statement, and, if known, the identity of any broker(s) or dealer(s) who will participate in the offering and the amount to be offered through each;
the purchase price of the securities or other consideration therefor, and the proceeds, if any, we will receive from the sale;
if any of the securities being registered are to be offered otherwise than for cash, the general purposes of the distribution, the basis upon which the securities are to be offered, the amount of compensation and other expenses of distribution, and by whom they are to be borne;
any delayed delivery arrangements;
any over-allotment or other options under which underwriters may purchase additional securities from us;
any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
any public offering price;
any discounts, commissions or concessions allowed or reallowed or paid to dealers;
the identity and relationships of any finders, if applicable; and
any securities exchange or market on which the securities may be listed.
Only underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to timesold in one or more transactions at a fixed public offering price orprices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale. The obligationssale or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions, pursuant to one or more of the underwriters to purchasefollowing methods:
on any national securities exchange or quotation service on which the securities willmay be subject tolisted or quoted at the conditions set forth time of sale;
in the over-the-counter market;
in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
through the writing or settlement of options, whether such options are listed on an options exchange or otherwise;
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
an exchange distribution in accordance with the rules of the applicable underwriting agreement. Weexchange;
privately negotiated transactions;
short sales made after the date the Registration Statement is declared effective by the SEC;
broker-dealers may offeragree with a selling security holder to sell a specified number of such shares at a stipulated price per share;
a combination of any such methods of sale; and
any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares of common stock under Rule 144 promulgated under the securitiesSecurities Act of 1933, as amended, if available, rather than under this prospectus. In addition, the selling stockholders may transfer the shares of common stock by other means not described in this prospectus. If the selling stockholders effect such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the publicform of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the shares of common stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and deliver shares of common stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares.
The selling stockholders may pledge or grant a security interest in some or all of the Convertible Notes, Warrants or shares of common stock owned by them and, if they default in the performance of their secured obligations, the
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through underwriting syndicates represented by managing underwriterspledgees or by underwriters without a syndicate. Unless otherwise indicated insecured parties may offer and sell the prospectus supplement, subject to certain conditions, the underwriters will be obligated to purchase allshares of the securities offered by the prospectus supplement, other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may changecommon stock from time to time. We may use underwriters, dealers or agents with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, dealer or agent, the nature of any such relationship.
We may use a remarketing firm to offer the securities in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own account or as agents for us. These remarketing firms will offer or sell the securitiestime pursuant to the termsthis prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the securities. A prospectus supplementSecurities Act amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will identify any remarketing firmbe the selling beneficial owners for purposes of this prospectus.
To the extent required by the Securities Act and the terms of its agreement, ifrules and regulations thereunder, the selling stockholders and any with us and will describe the remarketing firm’s compensation. Remarketing firms may be deemed to be underwriters in connection the securities they remarket.
If we offer and sell securities through a dealer, we or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. The name of the dealer and the terms of the transaction will be set forth in the applicable prospectus supplement.
We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any commissions payable to the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, the agent will act on a best-efforts basis for the period of its appointment.
Dealers and agentsbroker-dealer participating in the distribution of the securitiesshares of common stock may be deemed to be underwriters, and compensation received by them on resale“underwriters” within the meaning of the securitiesSecurities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting discounts. If such dealerscommissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement, if required, will be distributed, which will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, were deemedany discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may be underwriters, theysold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that any selling stockholder will sell any or all of the shares of common stock registered pursuant to the registration statement, of which this prospectus forms a part.
The selling stockholders and any other person participating in such distribution will be subject to statutory liabilities underapplicable provisions of the Securities Act.
WeExchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may sell securities directly to one or more purchasers without using underwriters or agents. Underwriters, dealerslimit the timing of purchases and agents that participatesales of any of the shares of common stock by the selling stockholders and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with respect to the common stock. All of the foregoing may affect the marketability of the common stock and the ability of any person or entity to engage in market-making activities with respect to the common stock.
We will pay all expenses of the registration of the shares of common stock pursuant to the registration rights agreement, estimated to be $50,000 in total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities may be underwriters as defined inor “blue sky” laws; provided, however, a selling stockholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling stockholders against liabilities, including some liabilities under the Securities Act and any discountsin accordance with the registration rights agreements or commissions they receive from us and any profit on their resale of the securitiesselling stockholders will be entitled to contribution. We may be treated as underwriting discounts and commissions underindemnified by the Securities Act.
We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
We may provide agents, underwriters and dealers with indemnificationselling stockholders against civil liabilities, including liabilities under the Securities Act or contribution with respectthat may arise from any written information furnished to payments thatus by the agents, underwriters or dealers may make with respect to these liabilities. Agents, underwriters and dealers, or their respective affiliates, may engageselling stockholder specifically for use in transactions with, or perform services for, us in the ordinary course of business.
The securities we offer may be new issues of securities and may have no established trading market. The securities may or may not be listed on a securities exchange. Underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We can make no assurance as to the liquidity of, or the existence of trading markets for, any of the securities.
Any underwriter may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bidsthis prospectus, in accordance with Regulation Mthe related registration rights agreements or we may be entitled to contribution.
Once sold under the Exchange Act. Over-allotment involves sales in excessregistration statement, of which this prospectus forms a part, the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum price. Syndicate-covering or other short-covering transactions involve purchasesshares of the securities, either through exercise of the over-allotment option orcommon stock will be freely tradable in the open market after the distribution is completed, to cover short positions. Penalty bids permit thehands of persons other than our affiliates.
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underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters that are qualified market makers on The Nasdaq Capital Market may engage in passive market making transactions in the common stock on The Nasdaq Capital Market in accordance with Regulation M under the Exchange Act, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
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LEGAL MATTERS
Dechert LLP will pass for us upon theThe validity of theany securities being offered from time to time by this prospectus and any applicable prospectus supplement. Additional legal matters maywill be passed upon for us or any underwriters, dealers or agents by counsel that we will name in the applicable prospectus supplement.Dechert LLP.
EXPERTS
The financial statements of Femasys Inc. as of December 31, 20212022 and 2020,2021, and for each of the years in the two-year period ended December 31, 2021,2022, have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
The audit report covering the December 31, 2022 financial statements contains an explanatory paragraph that states that the Company’s recurring losses and negative cash flows from operations and net accumulated deficit raise substantial doubt about the entity’s ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of that uncertainty.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities being offered bywe are offering under this prospectus. This prospectus does not contain all of the information contained in the registration statement, including its exhibits and its exhibits. Forschedules. You should refer to the registration statement, including the exhibits and schedules, for further information with respect toabout us and the securities offered bycommon stock we may offer. Statements we make in this prospectus about certain contracts or other documents are not necessarily complete. When we make such statements, we refer you to the registration statement and its exhibits. Statements contained in this prospectus as to the contents of any contract or any other document referred to herein are not necessarily complete, and in each instance, we refer you to the copycopies of the contractcontracts or other documentdocuments that are filed as an exhibitexhibits to the registration statement. Each of thesestatement, because those statements isare qualified in all respects by this reference.reference to those exhibits. The registration statement, including exhibits and schedules, is on file at the office of the SEC and may be inspected without charge.
We file electronically with the SEC annual, reports on Form 10-K, quarterly reports on Form 10-Q,and current reports, on Form 8-K, proxy statements and other information and amendments to those reports filed or furnished pursuant to Section 13 or 15(d) ofwith the SEC under the Exchange Act. TheOur SEC maintains an Internet site (www.sec.gov) that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC.
We makefilings are available free of charge and through our Internet web site at www.femasys.com, our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and any amendments to any such reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material with, or furnish it to the SEC. Copies of our Code of Business Conduct and Ethics and our Corporate Governance Guidelines may be accessed free of charge by visiting ourpublic at the SEC’s website at www.femasys.com under “Investors” at “Governance: Governance Documents” or by requesting a copy via an e-mail addressed to IR@Femasys.com or by written request addressed to our Corporate Secretary at our principal executive offices. To the extent required by applicable law and regulation, we intend to post on our website any amendment to, or waiver under, a provision of the Code of Business Conduct and Ethics that applies to our executive officers and directors within the time period required. The information set forth on, or connected to, our website is expressly not incorporated by reference into, and does not constitute a part of, this prospectus.www.sec.gov.
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INCORPORATION OF CERTAIN INFORMATIONDOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” the information into this prospectus,we file with them which means that we can disclose important information to you by referring you to another document filed separately withthose documents instead of having to repeat the SEC.information in this prospectus supplement. The SEC file number for the documentsinformation incorporated by reference is considered to be part of this prospectus supplement, and later information that we file with the SEC will automatically update and supersede this information. Any statement contained in a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus supplement to the extent that a statement contained in this prospectus is 001-40492. The documents incorporatedsupplement modifies or replaces that statement. We incorporate by reference intothe documents listed below and any future information filed (rather than furnished) with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act between the date of this prospectus contain importantsupplement and the termination of this offering, provided, however, that we are not incorporating any information that you should read about us.
The following documents are incorporated by reference into this document:furnished under Item 2.02 or Item 7.01 of any current report on Form 8-K:
•
our Annual Report on Form 10-K for the year ended December 31, 2021,2022, filed with the SEC on March 30, 2023, our Annual Report on Form 10-K/A as filed with the SEC on April 28, 2023, and our Annual Report on Form 10-K/A as filed with the SEC on July 24, 2022;2023;
•
our Quarterly ReportReports on Form 10-Q (i) for the quarter ended March 31, 2022,2023 filed with the SEC on May 11, 20222023, (ii) for the quarter ended June 30, 2023 filed on August 10, 2023, and (iii) for the quarter ended September 30, 2023 filed on November 14, 2023;
•
our Current Reports on Form 8-K filed with the SEC on January 20, 2022March 13, 2023, February 24, 2022March 30, 2023, April 18, 2023, April 20, 2023, May 4, 2023, June 2, 2023, June 8, 2023, June 15, 2023, June 21, 2023, June 26, 2023, July 27, 2023, August 3, 2023, August 10, 2023, September 6, 2023, September 27, 2023, October 3, 2023, October 11, 2023, November 15, 2023, November 21, 2023, and June 9, 2022November 29, 2023, to the extent the information in such reports is filed and not furnished;; and
•
the description of our common stock contained in our Registration Statementregistration statement on Form 8-A filed with the SEC on June 14, 2021,, including any amendments or reports filed for the purposespurpose of updating thissuch description.
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WeThese documents may also incorporatebe accessed on our website at www.femasys.com. Except as otherwise specifically incorporated by reference intoin this prospectus all documents (other than current reports furnished under Item 2.02supplement, information contained in, or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus formsaccessible through, our website is not a part and prior to effectiveness of the registration statement, or (ii) after the date of this prospectus but prior to the termination of the offering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements.supplement.
We will providefurnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, without chargeyou, upon written or oral request, a copy of any or all of the documents that are incorporated by reference, into this prospectus but not delivered with the prospectus, including exhibits that are specifically incorporatedto these documents by reference into such documents. You should direct any requests for documents throughwriting or telephoning us at the SEC’s website, as provided above, or by contacting following address:
Femasys Inc., Attn: Corporate Secretary,
3950 Johns Creek Court, Suite 100
Suwanee, Georgia 30024; telephone: 30024
(770) 500-3910.500-3910
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference into this document will be deemed to be modified or superseded for purposes of the document to the extent that a statement contained in this document or any other subsequently filed document that is deemed to be incorporated by reference into this document modifies or supersedes the statement.Attn: Corporate Secretary
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FEMASYS INC.
$150,000,00018,111,861 Shares
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
PROSPECTUS
July   , 2022

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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated July 1, 2022
PROSPECTUS
Up to $8,800,000

Common Stock
We have entered into an Equity Distribution Agreement, dated July 1, 2022 (the “Equity Distribution Agreement”), with Piper Sandler & Co. (“Piper Sandler” or the “Sales Agent”) relating to shares of our common stock offered by this prospectus. In accordance with the terms of the Equity Distribution Agreement, under this prospectus, we may offer and sell shares of our common stock having an aggregate offering price of up to $8.8 million from time to time through the Sales Agent.
Our common stock is traded on The Nasdaq Capital Market under the symbol “FEMY.” The last reported sale price of our common stock on The Nasdaq Capital Market on June 30, 2022 was $2.41 per share.
As of the date of this prospectus, we are subject to General Instruction I.B.6 of Form S-3, which limits the amounts that we may sell under the registration statement of which this prospectus is a part. After giving effect to these limitations and the current public float of our common stock, we currently may offer and sell from and after the date hereof shares of our common stock having an aggregate offering price of up to $8.8 million under the sales agreement pursuant to this prospectus. If our public float increases such that we may sell additional amounts under the sales agreement and the registration statement of which this prospectus is a part, we will file a prospectus supplement prior to selling such additional amounts.
As of June 30, 2022, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $26,448,716, which we calculated based on 11,804,165 shares of outstanding common stock as of March 31, 2022, of which 9,582,868 shares were held by non-affiliates, and a price per share of $2.76 which was the closing price of our common stock on June 29, 2022. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell, pursuant to the registration statement of which this prospectus forms a part, securities with a value exceeding one-third of the aggregate market value of our outstanding common stock held by non-affiliates in any 12-month period, so long as the aggregate market value of our outstanding common stock held by non-affiliates remains below $75.0 million. During the 12 calendar months prior to and including the date of this prospectus, we have not offered or sold any securities pursuant to General Instruction I.B.6 of Form S-3.
Sales of our common stock, if any, under this prospectus may be made in sales deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). The Sales Agent is not required to sell any specific number or dollar amount of securities, but will act as our sales agent using commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between the Sales Agent and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The Sales Agent will be entitled to compensation at a fixed commission rate of up to 3.0% of the gross sales price per share sold. In connection with the sale of the common stock on our behalf, the Sales Agent will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation to the Sales Agent will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to the Sales Agent with respect to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”). See “Plan of Distribution” beginning on page 10 for additional information regarding the compensation to be paid to the Sales Agent.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties referenced under the heading “Risk Factors” on page 4 of this prospectus as well as those contained in any accompanying prospectus and any related free writing prospectus or prospectus supplement we prepare or authorize in connection with this offering, and in the other documents that are incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Piper Sandler
The date of this prospectus is    , 2022.

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ABOUT THIS PROSPECTUS
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PROSPECTUS SUMMARY
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THE OFFERING
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3
RISK FACTORS
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4
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
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USE OF PROCEEDS
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DILUTION
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PLAN OF DISTRIBUTION
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LEGAL MATTERS
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EXPERTS
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WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, we may from time to time sell shares of our common stock.
This prospectus describes the terms of this offering of common stock and also adds to and updates information contained in the documents incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document incorporated by reference into this prospectus that was filed with the SEC before the date of this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement in one of these documents is inconsistent with a statement in another document having a later date—for example, a document incorporated by reference into this prospectus—the statement in the document having the later date modifies or supersedes the earlier statement.
We have not, and the Sales Agent has not, authorized anyone to provide you with any information other than that contained or incorporated by reference in this prospectus or any prospectus supplement or related free writing prospectus to which we have referred you. Neither we nor the Sales Agent take any responsibility for, and can provide no assurance as to the reliability of, any other information others may give you. We are not, and the Sales Agent is not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing in this prospectus, the documents incorporated by reference herein and any prospectus supplement or related free writing prospectus that we have authorized for use in connection with this offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates. You should read this prospectus, the documents incorporated by reference herein and any prospectus supplement or free writing prospectus that we have authorized for use in connection with this offering, in their entirety before making an investment decision.
In this prospectus, unless the context otherwise requires, the terms “Femasys,” the “Company,” “we,” “us,” and “our” refer to Femasys Inc., a Delaware corporation. This prospectus and the information incorporated by reference herein may contain additional trade names, trademarks and service marks of other companies, which are the property of their respective owners. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, these other companies.
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PROSPECTUS SUMMARY
Company Overview
We are a biomedical company focused on transforming women’s healthcare by developing novel solutions and next-generation advancements providing significant clinical impact to address severely underserved areas. Our mission is to provide women worldwide with superior minimally-invasive, non-surgical product technologies, accessible in the office, improving patient care and overall health economics. We are a woman-founded and led company with an expansive, internally created intellectual property portfolio with over 150 patents globally, in-house chemistry, manufacturing, and controls (CMC) and device manufacturing capabilities and proven ability to develop and commercialize products. Our suite of products and product candidates address what we believe are multi-billion dollar global market segments in which there has been little advancement for many years, helping women avoid pharmaceutical solutions, implants and surgery that can be expensive and expose women to harm. With an initial focus in the area of reproductive health, our two lead product candidates offer solutions for two ends of the spectrum: FemBloc for permanent birth control and FemaSeed as an artificial insemination infertility treatment.
Corporate Information
We were incorporated in February 2004 as a Delaware corporation under the name Femasys Inc. Our principal executive office is located at 3950 Johns Creek Court, Suite 100, Suwanee, Georgia, 30024, and our telephone number is (770) 500-3910. Our website address is www.femasys.com. The information set forth on, or connected to, our website is expressly not incorporated by reference into, and does not constitute a part of, this prospectus. We have included our website address as an inactive textual reference only.
Implications of Being an Emerging Growth Company and a Smaller Reporting Company
We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012. We will remain an emerging growth company until the earliest to occur of: the last day of the fiscal year in which we have more than $1.07 billion in annual revenue; the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities held by non-affiliates; the issuance, in any three-year period, by us of more than $1 billion in non-convertible debt securities; and the last day of the fiscal year ending after the fifth anniversary of our initial public offering.
An emerging growth company may take advantage of reduced reporting requirements that are otherwise applicable to public companies. These provisions include, but are not limited to:
being permitted to present only two years of audited financial statements and only two years of related Management’s Discussion and Analysis of Financial Condition and Results of Operations in this prospectus;
not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended;
reduced disclosure obligations regarding executive compensation in our periodic reports, proxy statements and registration statements; and
exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved.
We have elected to take advantage of certain of the reduced disclosure obligations in our filings with the U.S. Securities and Exchange Commission, or the SEC. As a result, the information that we provide to our stockholders may be different than you might receive from other public reporting companies in which you hold equity interests.
The JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. We have elected not to take advantage of such extended transition period, which means that we will adopt a new standard when it is issued or revised.
We are also a “smaller reporting company,” meaning that the market value of our shares held by non-affiliates plus the proposed aggregate amount of gross proceeds to us as a result of this offering is less than
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$700 million and our annual revenue was less than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company after this offering if either (i) the market value of our shares held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than $700 million. If we are a smaller reporting company at the time we cease to be an emerging growth company, we may continue to rely on exemptions from certain disclosure requirements that are available to smaller reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most recent fiscal years of audited financial statements in our Annual Report on Form 10-K and have reduced disclosure obligations regarding executive compensation, and, similar to emerging growth companies, if we are a smaller reporting company with less than $100 million in annual revenue, we would not be required to obtain an attestation report on internal control over financial reporting issued by our independent registered public accounting firm.
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THE OFFERING
Common stock offered by us
Shares of our common stock having an aggregate offering price of up to $8.8 million.
Common stock to be outstanding immediately after this offering
Up to 15,455,617 shares (as more fully described in the notes following this table), assuming sales of 3,651,452 shares of our common stock in this offering at an offering price of $2.41 per share, which was the last reported sale price of our common shares on The Nasdaq Capital Market on June 30, 2022. The actual number of shares issued will vary depending on the number of shares that are sold and the sales price under this offering.
Plan of Distribution
“At the market offering” that may be made from time to time through our sales agent, Piper Sandler. See “Plan of Distribution” on page 10.
Use of Proceeds
We intend to use the net proceeds from the sale of any securities offered under this prospectus for general corporate purposes. General corporate purposes may include funding research, clinical development, working capital, capital expenditures and other general corporate purposes. See “Use of Proceeds.”
Risk Factors
Investing in our common stock involves significant risks. See the disclosure under the heading “Risk Factors” on page 4 in this prospectus and under similar headings in other documents incorporated by reference into this prospectus.
The Nasdaq Capital Market symbol
“FEMY”
The number of shares of our common stock shown above to be outstanding after this offering is based on 11,804,165 shares of our common stock outstanding as of March 31, 2022, and excludes:
1,055,997 shares of common stock issuable upon the exercise of stock options outstanding as of March 31, 2022, with a weighted-average exercise price of $4.25 per share;
244,572 shares of common stock issuable upon the exercise of warrants to purchase shares of our common stock outstanding as of March 31, 2022, with a weighted-average exercise price of $12.64 per share;
1,319,136 shares of common stock reserved for future issuance under our 2021 Equity Incentive Plan, or 2021 Plan, as of March 31, 2022; and
284,707 shares of common stock reserved for future issuance under our 2021 Employee Stock Purchase Plan, or ESPP, as of March 31, 2022.
Except as otherwise indicated, all information in this prospectus does not assume or give effect to the issuance of or exercise of any options, or the exercise of any outstanding warrants after March 31, 2022.
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RISK FACTORS
Investment in any securities offered pursuant to this prospectus involves risks. You should carefully consider the risk factors described below and in our Annual Report on Form 10-K for the year ended December 31, 2021, incorporated by reference in this prospectus, any amendment or update thereto reflected in subsequent filings with the SEC, and all other information contained or incorporated by reference in this prospectus, as updated by our subsequent filings under the Exchange Act. Each of these risk factors could have a material and adverse effect on our business, results of operations, financial position or cash flows, which may result in the loss of all or part of your investment.
Risks Relating to this Offering
If you purchase shares of our common stock sold in this offering, you may experience immediate and substantial dilution in the net tangible book value of your shares. In addition, we may issue additional equity or convertible debt securities in the future, which may result in additional dilution to you.
The price per share of our common stock being offered may be higher than the net tangible book value per share of our outstanding common stock prior to this offering. Assuming that an aggregate of 3,651,452 shares of our common stock are sold at a price of $2.41 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on June 30, 2022, for aggregate gross proceeds of approximately $8.8 million, and after deducting commissions and estimated offering expenses payable by us, new investors in this offering will incur immediate dilution of $0.35 per share. For a more detailed discussion of the foregoing, see the section entitled “Dilution” below.
To the extent outstanding stock options or warrants are exercised, there will be further dilution to new investors. In addition, to the extent we need to raise additional capital in the future and we issue additional shares of common stock or securities convertible or exchangeable for our common stock, our then existing stockholders may experience dilution and the new securities may have rights senior to those of our common stock offered in this offering. The price per share at which we sell additional shares of our common stock, or securities convertible or exchangeable into common stock, in any future transactions may be higher or lower than the price per share paid by investors in this offering.
We have broad discretion in the use of the net proceeds from this offering and may not use them effectively.
Our management will have broad discretion in the application of the net proceeds from this offering, including for any of the purposes described in the section entitled “Use of Proceeds,” and you will not have the opportunity as part of your investment decision to assess whether the net proceeds are being used appropriately. Because of the number and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. Our management might not apply our net proceeds in ways that ultimately increase the value of your investment. We intend to use the net proceeds from the sale of any securities offered under this prospectus for general corporate purposes. General corporate purposes may include funding research, clinical development, working capital, capital expenditures and other general corporate purposes. The failure by our management to apply these funds effectively could harm our business. Pending their use, we plan to invest the net proceeds from this offering in short-term or long-term, investment-grade, interest-bearing securities. These investments may not yield a favorable return to our stockholders. If we do not invest or apply the net proceeds from this offering in ways that enhance stockholder value, we may fail to achieve expected financial results, which could cause our stock price to decline.
The actual number of shares we will issue under the Equity Distribution Agreement, at any one time or in total, is uncertain.
Subject to certain limitations in the Equity Distribution Agreement and compliance with applicable law, we have the discretion to deliver a placement notice to the Sales Agent at any time throughout the term of the Equity Distribution Agreement. The number of shares that are sold, if any, by the Sales Agent after we deliver a placement notice will fluctuate based on the market price of the common shares during the sales period and limits we set with the Sales Agent. Because the price per share of each share sold will fluctuate based on the market price of our common stock during the sales period, it is not possible at this stage to predict the number of shares that will be ultimately issued.
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The common stock offered hereby will be sold in “at the market offerings,” and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold, and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share sales made at prices lower than the prices they paid.
Because we do not anticipate paying any cash dividends on our capital stock in the foreseeable future, capital appreciation, if any, will be your sole source of gain.
We have never paid or declared any cash dividends on our capital stock. We currently intend to retain earnings, if any, to finance the growth and development of our business and we do not anticipate paying any cash dividends in the foreseeable future. As a result, it is likely that only appreciation of the price of our common stock will provide a return to our stockholders.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain forward-looking statements. All statements other than statements of historical facts contained in this prospectus are forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “expect,” “plan,” “anticipate,” “could,” “intend,” “target,” “project,” “contemplate,” “believe,” “estimate,” “predict,” “potential” or “continue” or the negative of these terms or other similar expressions, although not all forward-looking statements contain these words. These forward-looking statements are also based on our current expectations and beliefs and are subject to a number of risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements. Such risks and uncertainties include, but are not limited to, the following:
our ability to develop and advance our current product candidates and programs into, and successfully initiate and complete, clinical trials;
the ability of our clinical trials to demonstrate safety and effectiveness of our product candidates and other positive results;
estimates regarding the total addressable market for our product candidates;
our ability to enroll subjects in the clinical trials for our product candidates in order to advance the development thereof on a timely basis;
our ability to obtain additional financing to fund the clinical development of our products and fund operations;
competitive companies and technologies in our industry;
our ability to obtain U.S Food and Drug Administration (FDA) approval for our permanent birth control system, ability to gain FDA grant of a de novo classification request for our intrauterine insemination system, expand sales of our women-specific medical products and develop and commercialize additional products;
our ability to commercialize or obtain regulatory approvals, grants of de novo classification requests or 510(k) clearance for our product candidates, or the effect of delays in commercializing or obtaining regulatory authorizations;
our business model and strategic plans for our products, technologies and business, including our implementation thereof;
commercial success and market acceptance of our product candidates;
our ability to achieve and maintain adequate levels of coverage or reimbursement for our FemBloc system or any future products we may seek to commercialize;
our ability to manufacture our products and product candidates in compliance with applicable laws, regulations and requirements and to oversee third-party suppliers, service providers and vendors in the performance of any contracted activities in accordance with applicable laws, regulations and requirements;
the impact of the COVID-19 pandemic on our business, financial condition, results of operations, and prospects;
our ability to accurately forecast customer demand for our product candidates, and manage our inventory;
our ability to build, manage and maintain our direct sales and marketing organization, and to market and sell our permanent birth control system, artificial insemination system and women-specific medical products in markets in and outside of the United States (U.S.);
our ability to obtain necessary financing for the Company and maintain adequate resources to fund our operations;
our ability to hire and retain our senior management and other highly qualified personnel;
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FDA or other U.S. or foreign regulatory actions affecting us or the healthcare industry generally, including healthcare reform measures in the U.S. and international markets;
the timing or likelihood of regulatory filings and approvals or clearances;
our ability to establish and maintain intellectual property protection for our product candidates and our ability to avoid claims of infringement;
the volatility of the trading price of our common stock; and
our expectations about market trends.
You should also read carefully the factors described in the “Risk Factors” section contained in this prospectus, any applicable prospectus supplement and any related free writing prospectus, and incorporated by reference herein from our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, as updated by annual, quarterly and other reports and documents we file with the SEC after the date of this prospectus and that are incorporated by reference herein to better understand the risks and uncertainties inherent in our business and underlying any forward-looking statements. As a result of these factors, we cannot assure you that the forward-looking statements contained in or incorporated by reference into this prospectus will prove to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements, you should not regard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time frame, or at all.
Any forward-looking statements that we make in or incorporate by reference into this prospectus speak only as of the date of such statement, and, except as required by applicable law, we undertake no obligation to update such statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events. Comparisons of results for current and any prior periods are not intended to express any future trends or indications of future performance, unless expressed as such, and should only be viewed as historical data.
For all forward-looking statements, we claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995.
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USE OF PROCEEDS
We may issue and sell shares of our common stock having aggregate sales proceeds of up to $8.8 million from time to time. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. There can be no assurance that we will sell any shares under or fully utilize the Equity Distribution Agreement with the Sales Agent as a source of financing.
We intend to use the net proceeds from the sale of any securities offered under this prospectus for general corporate purposes. General corporate purposes may include funding research, clinical development, working capital, capital expenditures and other general corporate purposes. We may temporarily invest the net proceeds in short-term, investment-grade securities, until they are used for their stated purpose. We have not determined the amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation of net proceeds.
The amounts and timing of our actual expenditures will depend on numerous factors, including the progress of our clinical trials and other development efforts and other factors described under “Risk Factors” in this prospectus and the documents incorporated by reference herein, as well as the amount of cash used in our operations. We may find it necessary or advisable to use the net proceeds for other purposes, and we will have broad discretion in the application of the net proceeds. Pending their use as described above, we intend to invest the net proceeds to us from this offering in short-term, investment-grade securities.
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DILUTION
If you invest in our common stock, your interest will be diluted to the extent of the difference between the price per share you pay in this offering and the net tangible book value per share of our common stock immediately after this offering. Our net tangible book value of our common stock as of March 31, 2022 was approximately $23.5 million, or approximately $1.99 per share of common stock based upon 11,804,165 shares outstanding. Net tangible book value per share is equal to our total tangible assets, less our total liabilities, divided by the total number of shares outstanding as of March 31, 2022.
After giving effect to the sale of our common stock in the aggregate amount of $8.8 million at an assumed offering price of $2.41 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on June 30, 2022, and after deducting commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of March 31, 2022 would have been $31.8 million, or $2.06 per share of common stock. This represents an immediate increase in net tangible book value of $0.07 per share to our existing stockholders and an immediate dilution in net tangible book value of $0.35 per share to new investors in this offering.
The following table illustrates this calculation on a per share basis. The as-adjusted information is illustrative only and will adjust based on the actual price to the public, the actual number of shares sold and other terms of the offering determined at the time shares of our common stock are sold pursuant to this prospectus. The as-adjusted information assumes that all of our common stock in the aggregate amount of $8.8 million is sold at the assumed offering price of $2.41 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on June 30, 2022. The shares sold in this offering, if any, will be sold from time to time at various prices.
Assumed public offering price per share
​​
​​
$2.41
Net tangible book value per share as of March 31, 2022
​​
$1.99
​​
Increase in net tangible book value per share attributable to the offering
​​
0.07
​​
As adjusted net tangible book value per share after giving effect to the offering
​​
​​
2.06
Dilution per share to new investors participating in the offering
​​
​​
$0.35
The table above assumes for illustrative purposes that an aggregate of 3,651,452 shares of our common stock are sold pursuant to this prospectus at a price of $2.41 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on June 30, 2022, for aggregate gross proceeds of $8.8 million. The shares are being sold from time to time at various prices pursuant to the Equity Distribution Agreement with the Sales Agent.
The number of shares of our common stock shown above to be outstanding after this offering is based on 11,804,165 shares of our common stock outstanding as of March 31, 2022, and excludes:
1,055,997 shares of common stock issuable upon the exercise of stock options outstanding as of March 31, 2022, with a weighted-average exercise price of $4.25 per share;
244,572 shares of common stock issuable upon the exercise of warrants to purchase shares of our common stock outstanding as of March 31, 2022, with a weighted-average exercise price of $12.64 per share;
1,319,136 shares of common stock reserved for future issuance under the 2021 Plan as of March 31, 2022; and
284,707 shares of common stock reserved for future issuance under the ESPP as of March 31, 2022.
The foregoing table does not give effect to the issuance of or exercise of any options, or the exercise of any outstanding warrants after March 31, 2022. To the extent options or warrants are exercised, there may be further dilution to new investors.
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PLAN OF DISTRIBUTION
We have entered into the Equity Distribution Agreement with Piper Sandler as our sales agent under which we may offer and sell shares of our common stock from time to time through the Sales Agent. Pursuant to this prospectus, we may offer and sell up to $8.8 million of our shares of common stock. The Sales Agent will use commercially reasonable efforts to sell on our behalf all of the shares of our common stock requested to be sold by us, consistent with its normal trading and sales practices, under the terms and subject to the conditions set forth in the Equity Distribution Agreement. We may instruct the Sales Agent not to sell our common stock if the sales cannot be effected at or above the price designated by us in any instruction. We or the Sales Agent may suspend the offering of our common stock upon proper notice and subject to other conditions, as further described in the Equity Distribution Agreement. A copy of the Equity Distribution Agreement is filed as an exhibit to the registration statement of which this prospectus forms a part.
The Sales Agent may sell our common stock by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act, including sales made directly on or through The Nasdaq Capital Market or on any other existing trading market for our common stock. The Sales Agent will provide written confirmation to us following the close of trading on The Nasdaq Capital Market each day in which our common stock is sold under the Equity Distribution Agreement. Each such confirmation will include the number of shares of our common stock sold on such day, the net proceeds to us and the compensation payable by us to the Sales Agent in connection with such sales.
We will pay the Sales Agent’s commissions for its services in acting as Sales Agent in the sale of our common stock. The Sales Agent will be entitled to compensation in an amount up to 3.0% of the gross sales price of all common stock sold through it as Sales Agent under the Equity Distribution Agreement. We have also agreed to reimburse the Sales Agent for the out-of-pocket reasonable fees and disbursements of its legal counsel, in an amount not to exceed $75,000 in connection with the establishment of this at the market offering program. We estimate that the total expenses for this offering, excluding compensation payable to the Sales Agent under the terms of the Equity Distribution Agreement, will be approximately $200,000.
Settlement for sales of our common stock will occur on the second business day following the date on which any such sales are made, or on some other date that is agreed upon by us and the Sales Agent in connection with a particular transaction, in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will report at least quarterly the number of shares of our common stock sold through the Sales Agent, under the Equity Distribution Agreement, the net proceeds to us and the compensation paid by us to the Sales Agent in connection with such sales.
The Sales Agent and its affiliates have from time to time provided, and may in the future provide, various investment banking, commercial banking, fiduciary and advisory services for us for which they have received, and may in the future receive, customary fees and expenses. The Sales Agent and its affiliates may from time to time engage in other transactions with and perform services for us in the ordinary course of their business.
In connection with the sale of our common stock on our behalf, the Sales Agent will be deemed to be an underwriter within the meaning of the Securities Act, and the compensation paid by us to the Sales Agent will be deemed to be underwriting commissions or discounts. We have agreed to indemnify the Sales Agent against specified liabilities, including liabilities under the Securities Act, or to contribute to payments that the Sales Agent may be required to make because of such liabilities.
The offering of our common stock pursuant to the Equity Distribution Agreement will terminate upon the termination of the Equity Distribution Agreement. The Equity Distribution Agreement may be terminated by the Sales Agent or us at any time on the close of business on the date of receipt of written notice, and by the Sales Agent at any time in certain circumstances, including any suspension or limitation on the trading of our common stock on The Nasdaq Capital Market, as further described therein.
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LEGAL MATTERS
The validity of the shares of our common stock offered hereby will be passed upon for us by Dechert LLP. Certain legal matters will be passed upon for the Sales Agent by Goodwin Procter LLP, New York, New York.
EXPERTS
The financial statements of Femasys Inc. as of December 31, 2021 and 2020, and for each of the years in the two-year period ended December 31, 2021, have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
Available Information
We file reports, proxy statements and other information with the SEC. The SEC maintains a web site that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is www.sec.gov.
Our web site address is www.femasys.com. The information set forth on, or connected to, our website is expressly not incorporated by reference into, and does not constitute a part of, this prospectus.
This prospectus is part of a registration statement that we filed with the SEC and does not contain all of the information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided below. Documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement. Statements in this prospectus about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. You may inspect a copy of the registration statement through the SEC’s website, as provided above, or by contacting Femasys Inc., Attn: Corporate Secretary, 3950 Johns Creek Court, Suite 100, Suwanee, Georgia, 30024; telephone: (770) 500-3910.
Incorporation by Reference
The SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The SEC file number for the documents incorporated by reference in this prospectus is 001-40492. The documents incorporated by reference into this prospectus contain important information that you should read about us.
The following documents are incorporated by reference into this document:
•
our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 24, 2022;
•
our Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed with the SEC on May 11, 2022;
•
our Current Reports on Form 8-K filed with the SEC on January 20, 2022, February 24, 2022, and June 9, 2022, to the extent the information in such reports is filed and not furnished; and
•
the description of our common stock contained in our Registration Statement on Form 8-A, filed with the SEC on June 14, 2021, including any amendments or reports filed for the purposes of updating this description.
We also incorporate by reference into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus forms a part and prior to effectiveness of the registration statement, or (ii) after the date of this prospectus but prior to the termination of the offering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements.
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We will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits that are specifically incorporated by reference into such documents. You should direct any requests for documents through the SEC’s website, as provided above, or by contacting Femasys Inc., Attn: Corporate Secretary, 3950 Johns Creek Court, Suite 100, Suwanee, Georgia, 30024; telephone: (770) 500-3910.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference into this document will be deemed to be modified or superseded for purposes of the document to the extent that a statement contained in this document or any other subsequently filed document that is deemed to be incorporated by reference into this document modifies or supersedes the statement.
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Up to $8,800,000
Common Stock
PROSPECTUS
Piper Sandler
  , 20222023
 

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PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14.13.
Other Expenses of Issuance and DistributionDistribution.
The following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable by usthe registrant in connection with the offeringsale of the securitiescommon stock being registered. All the amounts shown are estimates except for the SECSecurities and Exchange Commission registration fee and FINRA filing fee.
SECSecurities and Exchange Commission registration fee
​​
$13,9052,640.43
FINRA filing fee Accounting feesPrinting and engraving expenses
​​
$15,5003,000.00
Legal fees and expenses
​​
*$25,000.00
Transfer agentAccounting fees and expenses
​​
*$15,000.00
Trustee fees and expensesMiscellaneous
​​
*
Printing and miscellaneous expenses
​​
$*4,359.57
Total
​​
$*50,000.00
*
These fees cannot be estimated at this time, as they are calculated based on the securities offered and the number of issuances. In accordance with Rule 430B, an estimate of the aggregate expenses in connection with the sale and distribution of the securities being offered will be included in the applicable prospectus supplement
Item 15.14.
Indemnification of OfficersDirectors and DirectorsOfficers.
The RegistrantFemasys Inc. (the “Registrant”) is governed by the Delaware General Corporation Law, or DGCL. Section 145 of the DGCL provides that a corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was or is an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such officer, director, employee or agent acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the corporation's best interest and, for criminal proceedings, had no reasonable cause to believe that such person's conduct was unlawful. A Delaware corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or contemplated action or suit by or in the right of such corporation, under the same conditions, except that such indemnification is limited to expenses (including attorneys' fees) actually and reasonably incurred by such person, and except that no indemnification is permitted without judicial approval if such person is adjudged to be liable to such corporation. Where an officer or director of a corporation is successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to above, or any claim, issue or matter therein, the corporation must indemnify that person against the expenses (including attorneys'attorneys’ fees) which such officer or director actually and reasonably incurred in connection therewith.
The Registrant's amended and restated bylaws will authorize the indemnification of its officers and directors, consistent with Section 145 of the DGCL.
Reference is made to Section 102(b)(7) of the DGCL, which enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director's fiduciary duty, except (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) pursuant to Section 174 of the DGCL, which provides for liability of directors for unlawful payments of dividends of unlawful stock purchase or redemptions or (iv) for any transaction from which a director derived an improper personal benefit.
We have entered into indemnification agreements with each of our directors and officers. These indemnification agreements may require us, among other things, to indemnify our directors and officers for some expenses, including attorneys' fees, judgments, fines and settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service as one of our directors or officers, or any of our subsidiaries or any other company or enterprise to which the person provides services at our request.
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We maintain a general liability insurance policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions in their capacities as directors or officers.
In any underwriting agreement we enter into in connection with
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Item 15.
Recent Sales of Unregistered Securities.
The Registrant has issued the sale offollowing securities beingthat were not registered hereby, the underwriters will agree to indemnify, under certain conditions, us, our directors and officers (as well as certain other persons) against certain liabilities arising in connection with such offering.
Insofar as the forgoing provisions permit indemnification of directors, executive officers, or persons controlling us for liability arising under the Securities Act within the past three years:
(1)
On April 20, 2023, pursuant to a securities purchase agreement, we issued unregistered common warrants to certain accredited investors to purchase an aggregate of 3,196,722 shares of our common stock at an exercise price of $1.095 per share (the “April 2023 Public Offering”).
(2)
On November 21, 2023, pursuant to a securities purchase agreement, we issued to certain accredited investors (a) unregistered convertible notes in the amount of $6,850,000.00, (b) unregistered warrants to purchase an aggregate of 5,805,083 shares of our common stock at an exercise price of $1.18 per share, and (c) unregistered warrants to purchase an aggregate of 5,805,083 shares of our common stock at an exercise price of $1.475 per share.
Pursuant to a letter agreement dated March 8, 2023, we paid to H.C. Wainwright & Co, LLC (“Wainwright”), which acted as placement agent for the April 2023 Public Offering, an aggregate fee equal to 7.5% of 1933, as amended, orthe aggregate gross proceeds received by us in the April 2023 Public Offering, a management fee equal to 1% of the aggregate gross proceeds received by us in the April 2023 Public Offering, $25,000 in non-accountable expenses and up to $50,000 in legal and other out-of-pocket expenses. We also issued to the placement agent warrants to purchase up to 191,803 shares of our common stock at an exercise of $1.525 (equal to 125% of the offering price).
The issuance of the foregoing securities was not registered under the Securities Act we have been informed that, in reliance upon the opinionexemption from registration provided by Section 4(a)(2) of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.Rule 506 promulgated thereunder.
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Item 16.
Exhibits and Financial Statement SchedulesExhibits.
EXHIBIT INDEX
Exhibit
Number
​​
Description
of Document
1.1*
​​
Form of Underwriting Agreement
1.2
​​
Sales Agreement dated as of July 1, 2022, by and between Femasys Inc. and Piper Sandler & Co.Exhibit
3.1
​​
Eleventh Amended and Restated Certificate of Incorporation of Femasys Inc., dated asincorporated by reference to Exhibit 3.1 of the registrant’s Form 8-K filed June 22, 2021 (filed as Exhibit 3.3 to the Registration Statement on Form S-1 of the Company (File No. 333-256156), as filed on June 14, 2021, and incorporated by reference herein).
3.2
​​
Amended and Restated Bylaws of Femasys Inc. (filed as Exhibit 3.4 to the Registration Statement on Form S-1 of the Company (File No. 333-256156), as filed on June 14, 2021, and incorporated by reference herein).to Exhibit 3.2 of the registrant’s Form 8-K filed June 22, 2021
3.3
​​
First Amendment to the Amended and Restated Bylaws of Femasys Inc., incorporated by reference to Exhibit 3.1 of the registrant’s Form 8-K filed March 30, 2023
4.1
​​
Form of Common Stock Certificate of Femasys Inc. (filed as Exhibit 4.1 to the Registration Statement on Form S-1Description of the Company (File No. 333-256156), as filed on June 14, 2021, andRegistrant’s Securities, incorporated by reference herein).to Exhibit 4.1 of the registrant’s Form 10-K filed March 24, 2022
4.2*4.2
​​
Form of certificateCertificate of designation with respectCommon Stock, incorporated by reference to any preferred stock issued hereunder andincorporated by reference to Exhibit 4.1 of the related form of preferred stock certificateregistrant’s Form S-1 filed May 14, 2021
4.3
​​
Form of indentureApril 2023 Pre-Funded Warrant, incorporated by reference to be entered into between registrant and a trustee acceptable toExhibit 4.1 of the registrant.registrant’s Form 8-K filed April 20, 2023
4.4*4.4
​​
Form of warrant agreement.April 2023 Common Stock Warrant, incorporated by reference to Exhibit 4.2 of the registrant’s Form 8-K filed April 20, 2023
4.5*4.5
​​
Form of warrant certificate.April 2023 Placement Agent Warrant, incorporated by reference to Exhibit 4.3 of the registrant’s Form 8-K filed April 20, 2023
4.6*4.6
​​
Form of debt security.Convertible Note, incorporated by reference to Exhibit 10.2 of the registrant’s Form 8-K filed November 15, 2023
4.7*4.7
​​
Form of rights certificate.Series A Warrant, incorporated by reference to Exhibit 4.1 of the registrant’s Form 8-K filed November 15, 2023
4.8*4.8
​​
Form of unit agreement.
4.9*
​​
Series B Warrant, incorporated by reference to Exhibit 4.2 of the registrant’s Form of unit certificate.8-K filed November 15, 2023
5.1
​​
Opinion of Dechert LLP.LLP
10.1
​​
Femasys Inc. 2021 Equity Incentive Plan, and forms of agreements thereunder, incorporated by reference to Exhibit 10.3 of the registrant’s Form S-1 filed May 14, 2021
10.2
​​
Femasys Inc. 2021 Employee Stock Purchase Plan, incorporated by reference to Exhibit 10.4 of the registrant’s Form S-1 filed May 14, 2021
10.3
​​
Amended and Restated Employment Agreement, by and between Femasys Inc. and Kathy Lee-Sepsick, incorporated by reference to Exhibit 10.6 of the registrant’s Form S-1/A filed June 14, 2021
10.4
​​
Amended and Restated Employment Agreement, by and between Femasys Inc. and Daniel Currie, incorporated by reference to Exhibit 10.8 of the registrant’s Form S-1/A filed June 14, 2021
10.5
​​
Employment Agreement, dated February 15, 2010, by and between Femasys Inc. and Gary Thompson, incorporated by reference to Exhibit 10.9 of the registrant’s Form S-1/A filed June 14, 2021
10.6
​​
Femasys Inc. Non-Employee Director Compensation Policy, incorporated by reference to Exhibit 10.11 of the registrant’s Form S-1/A filed June 14, 2021
10.7
​​
Form of Indemnification Agreement between Femasys Inc. and its directors and officers, incorporated by reference to Exhibit 10.12 of the registrant’s Form S-1 filed May 14, 2021
10.8
​​
Master Services Agreement and Statement of Work for consulting services, effective August 12, 2021, by and between Femasys Inc. and Bespoke Medical Affairs Solutions, LLC, incorporated by reference to Exhibit 10.1 of the registrant’s Form 10-Q filed November 12, 2021
10.9
​​
Employment Agreement, dated as of February 28, 2022, between Femasys Inc. and Dov Elefant, incorporated by reference to Exhibit 10.1 of the registrant’s Form 8-K filed February 24, 2022
10.10
​​
Form of Inducement Stock Option Agreement, incorporated by reference to Exhibit 10.2 of the registrant’s Form 8-K filed February 24, 2022
10.11
​​
Equity Purchase Agreement dated as of July 1, 2022, by and between Femasys Inc. and Piper Sandler & Co., incorporated by reference to Exhibit 1.2 of the registrant’s Form S-3 filed July 1, 2022
10.12
​​
Form of Securities Purchase Agreement dated April 18, 2023, between Femasys Inc. and the purchaser(s) party thereto, incorporated by reference to Exhibit 10.1 of the registrant’s Form 8-K filed April 20, 2023
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Exhibit  Number
​​
Description of Exhibit
10.13
​​
Form of Securities Purchase Agreement dated November 14, 2023, between Femasys Inc. and the purchasers party thereto, incorporated by reference to Exhibit 10.1 of the registrant’s Form 8-K filed November 15, 2023
10.14
​​
Form of Registration Rights Agreement dated November 14, 2023, between Femasys Inc. and the other parties thereto, incorporated by reference to Exhibit 10.3 of the registrant’s Form 8-K filed November 15, 2023
10.15
​​
Form of Collaboration Agreement dated November 14, 2023, between Femasys Inc. and the other parties thereto, incorporated by reference to Exhibit 10.4 of the registrant’s Form 8-K filed November 15, 2023
23.1
​​
Consent of KPMG LLP.LLP
23.2
​​
Consent of Dechert LLP (included in its Opinion filed as Exhibit 5.1 hereto).5.1)
24.1
​​
PowersPower of Attorney (included on signature page).
25.1**
​​
Statement of Eligibility of Trustee under the Indenture.
107
​​
Filing Fee Table
*
To be filed, if applicable, by amendment or as an exhibit to a document filed under the Securities Exchange Act of 1934, as amended, and incorporated by reference herein.
**
To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the appropriate rules and regulations thereunder.
Item 17.
UndertakingsUndertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)  To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
(a) (1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, an increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
provided, however, that the undertakings set forth in paragraphs that: Paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) aboveof this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act that are incorporated by reference in thisthe registration statement, or areis contained in a form of prospectus filed pursuant to Rule 424(b) that is part of thisthe registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), 424(b)(5), or 424(b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), 415(a)(1)(vii), or 415(a)(1)(x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
That, for the purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange CommissionSEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted against the registrant by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Suwanee, State of Georgia, on the 130stth day of July, 2022.November, 2023.
 
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FEMASYS INC.
 
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By:
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/s/ Kathy Lee-Sepsick
 
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Kathy Lee-Sepsick
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President and Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Kathy Lee-Sepsick and Dov Elefant, and each of them, as their true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for them and in their name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Name and Signature
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Title
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Date
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/s/ Kathy Lee-Sepsick
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President and Chief Executive Officer and Member of the Board of Directors (Principal Executive Officer)
(principal executive officer)
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July 1, 2022November 30, 2023
Kathy Lee-Sepsick
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/s/ Dov Elefant
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Chief Financial Officer (Principal Financial
(principal financial and Accounting Officer)accounting officer)
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July 1, 2022November 30, 2023
Dov Elefant
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/s/ Charles Larsen
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DirectorChair of the Board of Directors
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July 1, 2022November 30, 2023
Charles Larsen
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/s/ John Adams, Jr.Alistair Milnes
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Director
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July 1, 2022November 30, 2023
John Adams, Jr.Alistair Milnes
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/s/ John DyettJoshua Silverman
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Director
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July 1, 2022November 30, 2023
John Dyett
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Director
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July 1, 2022
Anne Morrissey
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/s/ Wendy Perrow
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Director
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July 1, 2022
Wendy PerrowJoshua Silverman
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/s/ Edward Uzialko, Kr.Jr.
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Director
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July 1, 2022November 30, 2023
Edward Uzialko, Jr.
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