UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): June 15, 2022
| First Wave BioPharma, Inc. | ||
| (Exact name of registrant as specified in its charter) |
| Delaware | 001-37853 | 46-4993860 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
|
777 Yamato Road, Suite 502 Boca Raton, Florida |
33431 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (561) 589-7020
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) |
Name of each exchange on which registered | ||
| Common Stock, par value $0.0001 per share | FWBI | Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
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 13(a) of the Exchange Act. ¨
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On June 16, 2022, Gregory Oakes submitted his resignation from the Board of Directors (the “Board”) of First Wave BioPharma, Inc. (the “Company”), effective immediately. Mr. Oakes indicated that his resignation was not the result of any disagreement with the Company on any matters relating to the Company’s operations, policies or practices.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Bylaw Amendment
On June 15, 2022, the Board adopted an amendment (the “Amendment”) to the Company’s Amended and Restated Bylaws, amending Section 1.6 of Article I thereof to decrease the quorum requirement for stockholder meetings from a majority to one-third of the voting power of the shares of the capital stock of the Company issued and outstanding and entitled to vote at a meeting (or, in the case of a class vote, the holders of one-third of the voting power of the shares of such class or classes or series issued and outstanding and entitled to vote on the matter), present in person, present by means of remote communication in a manner, if any, authorized by the Board in its sole discretion, or represented by proxy.
Certificate of Correction
On June 16, 2022, the Company filed with the Secretary of State of Delaware a Certificate of Correction to the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Correction”). The Certificate of Correction was filed to clarify the right of the Board to designate one or more series of preferred stock with or without voting powers. Pursuant to Section 103(f) of the Delaware General Corporation Law, the correction was effective as of July 13, 2016.
The foregoing summaries and descriptions of the provisions of the Amendment and the Certificate of Correction do not purport to be complete and are qualified in their entirety by reference to the full texts of the Amendment and Certificate of Correction, copies of which are filed as Exhibits 3.1 and 3.2, respectively, with this Current Report on Form 8-K and are incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit No. | Description | |
| 3.1 | Amendment to Amended and Restated Bylaws. | |
| 3.2 | Certificate of Correction to the Amended and Restated Certificate of Incorporation, filed with the Secretary of State of Delaware on June 16, 2022. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| First Wave BioPharma, Inc. | ||
| June 17, 2022 | By: | /s/ James Sapirstein |
| Name: | James Sapirstein | |
| Title: | Chief Executive Officer | |
Exhibit 3.1
Amendment No. 1
to the
Amended and Restated
Bylaws
of
First Wave BioPharma, Inc.
Section 1.6 of the Amended and Restated Bylaws (the “Bylaws”) of First Wave BioPharma, Inc., a Delaware corporation, is hereby amended as follows:
1.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the holders of one-third of the voting power of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person, present by means of remote communication in a manner, if any, authorized by the Board in its sole discretion, or represented by proxy, shall constitute a quorum for the transaction of business; provided, however, that where a separate vote by a class or classes or series of capital stock is required by law or the Certificate of Incorporation, the holders of one-third of the voting power of the shares of such class or classes or series of the capital stock of the Corporation issued and outstanding and entitled to vote on such matter, present in person, present by means of remote communication in a manner, if any, authorized by the Board in its sole discretion, or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on such matter. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum.
Adopted by the Board of Directors of First Wave BioPharma, Inc. effective as of June 15, 2022.
Exhibit 3.2
CERTIFICATE OF CORRECTION
OF THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FIRST WAVE BIOPHARMA, INC.
First Wave BioPharma, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), DOES HEREBY CERTIFY:
FIRST: The name of the Corporation is First Wave BioPharma, Inc.
SECOND: On July 13, 2016, the Corporation filed with the Secretary of State of the State of Delaware its Amended and Restated Certificate of Incorporation (the “Restated Certificate of Incorporation”), which instrument requires correction as permitted by subsection (f) of Section 103 of the DGCL.
THIRD: The inaccuracy or defect of the Restated Certificate of Incorporation to be corrected hereby is that the second sentence of Article FOURTH of the Restated Certificate of Incorporation inadvertently omitted express language vesting the board of directors of the Corporation (the “Board”) with the power to fix the voting powers of shares of preferred stock to be designated by resolution or resolutions of the Board.
FOURTH: The second sentence of Article FOURTH of the Restated Certificate of Incorporation is hereby corrected to read in its entirety as follows:
“The board of directors of the Corporation may, by resolution or resolutions thereof, divide the preferred stock into any number of series, fix the designation and number of each such series, and determine or change the designation, relative rights (including voting powers), preferences and limitations of any series of preferred stock.”
FIFTH: All other provisions of the Restated Certificate of Incorporation remain unchanged.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Correction to be executed by its duly authorized officer on this 16th day of June, 2022.
| FIRST WAVE BIOPHARMA, INC. |
| By: | /s/ James Sapirstein | |
| Name: James Sapirstein | ||
| Title: Chief Executive Officer |