Item 1.01. Entry into a Material
Definitive Agreement
ATM Sales Agreement
On January 10, 2022, Agile Therapeutics, Inc. (the
“Company”) entered into a Controlled Equity OfferingSM Sales Agreement (the “Sales Agreement”) with
Cantor Fitzgerald & Co. and H.C. Wainwright & Co., LLC (together, the “Sales Agents”) with respect to an at the market
offering program, under which the Company may, from time to time in its sole discretion, issue and sell through or to the Sales Agents,
acting as the Company’s agents, up to $50.0 million of shares of the Company’s common stock, par value $0.0001 per share (the
“Placement Shares”). The issuance and sale, if any, of the Placement Shares by the Company under the Sales Agreement will
be made pursuant to a prospectus supplement to the Company’s registration statement on Form S-3, originally filed with the Securities
and Exchange Commission (the “SEC”) on October 2, 2020 and declared effective by the SEC on October 14, 2020.
Pursuant to the Sales Agreement, the Sales Agents
may sell the Placement Shares by any method deemed to be an “at the market offering” as defined in Rule 415 of the Securities
Act of 1933, as amended (the “Securities Act”). The Sales Agents will use commercially reasonable efforts consistent with
normal trading and sales practices to sell the Placement Shares from time to time, based upon instructions from the Company (including
any price, time or size limits or other customary parameters or conditions the Company may impose). The Company cannot provide any assurance
that it will issue any shares of its common stock pursuant to the Sales Agreement.
The Company will pay the Sales Agents a commission
of up to 3.0% of the gross sales proceeds of any Placement Shares sold under the Sales Agreement. In addition, pursuant to the terms of
the Sales Agreement, the Company has agreed to reimburse the Sales Agents for the documented fees and costs of their legal counsel reasonably
incurred in connection with (i) entering into the transactions contemplated by the Sales Agreement in an amount not to exceed $50,000
in the aggregate and (ii) the Sales Agents’ ongoing diligence, drafting and other filing requirements arising from the transactions
contemplated by the Sales Agreement in an amount not to exceed $15,000 in the aggregate per calendar quarter.
The Company is not obligated to make any sales
of Placement Shares under the Sales Agreement. The offering of Placement Shares pursuant to the Sales Agreement will terminate upon the
earlier to occur of (i) the issuance and sale of all Placement Shares subject to the Sales Agreement and (ii) termination of the Sales
Agreement in accordance with its terms.
The Sales Agreement contains representations, warranties
and covenants that are customary for transactions of this type. In addition, the Company has agreed to indemnify the Sales Agents against
certain liabilities, including liabilities under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
The foregoing description of the Sales Agreement
is not complete and is qualified in its entirety by reference to the full text of the Sales Agreement, a copy of which is filed herewith
as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The legal opinion of Morgan, Lewis & Bockius
LLP as to the legality of the Placement Shares is being filed as Exhibit 5.1 to this Current Report on Form 8-K.
This Current Report on Form 8-K shall not constitute
an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation or
sale of the securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such jurisdiction.
Perceptive Credit Agreement Amendment
As previously disclosed, on
February 10, 2020 the Company entered into a Credit Agreement and Guaranty with Perceptive Credit Holdings III, LP, a related party (“Perceptive”),
for a senior secured term loan credit facility of up to $35.0 million (the “Perceptive Credit Agreement”). A first tranche
of $5.0 million was funded on execution of the Perceptive Credit Agreement. A second tranche of $15.0 million was funded as a result of
the approval of Twirla by the FDA. Another $15.0 million tranche will be available to the Company based on the achievement of certain
revenue milestones. On February 26, 2021 the Perceptive Credit Agreement was amended (“Amended Perceptive Credit Agreement”)
to increase the total amount available to the Company to $45.0 million by creating a fourth tranche of $10.0 million that will be available
based on the achievement of a revenue milestone. While another $25.0 million is available in these two separate tranches upon the achievement
of certain revenue milestones, the Company does not believe it will achieve these milestones. The facility will be interest only until
the third anniversary of the closing date. The interest rate and 1% fee payable upon the drawing of a tranche set forth in the Perceptive
Credit Agreement also applied to the fourth tranche created by the Amended Perceptive Credit Agreement. In addition, the Company
received a covenant waiver pertaining to the existence of a “going concern” qualification in the accompanying opinion of the
Company’s auditors in the Company’s Annual Report on Form 10-K, filed on March 1, 2021. In connection with the Amended Perceptive
Credit Agreement, the Company issued to Perceptive a warrant to purchase 450,000 shares of the Company’s common stock with an exercise
price of $2.87 per share.
On January 7, 2022, the
Company and Perceptive entered into a second amendment to the Amended Perceptive Credit Agreement (the “Second Amendment”).
The Second Amendment waives the Company’s obligations to comply with certain financial covenants relating to minimum revenue requirements
through September 30, 2022 and to file financial statements along with its Annual Report on Form 10-K that are not subject to any “going
concern” qualification. The effectiveness of the Second Amendment is conditioned upon the satisfaction of certain conditions, including
the Company raising additional capital and prepaying a portion of its outstanding debt.
The foregoing description
of the Second Amendment does not purport to be complete and is qualified in its entirety by reference to the Second Amendment, a copy
of which is filed as Exhibit 10.1 to this Form 8-K and is incorporated herein by reference.