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): August 25, 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 3.01 | Material Modification to Rights of Security Holders. |
To the extent required by Item 3.03 of Form 8-K, the information regarding the Reverse Stock Split (as defined below) contained in Item 5.03 of this Current Report on Form 8-K is incorporated by reference herein.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On August 25, 2022, First Wave BioPharma, Inc. (the “Company” or “First Wave”) announced that it intends to effect a reverse stock split (the “Reverse Stock Split”) of its issued and outstanding common stock (the “Common Stock”) at a ratio of 1 post-split share for every 30 pre-split shares. First Wave’s Common Stock will continue to be traded on The Nasdaq Capital Market under the symbol FWBI and will begin trading on a split-adjusted basis when the market opens on Friday, August 26, 2022, under a new CUSIP number, 33749P200.
At the annual meeting of stockholders held on August 25, 2022, First Wave’s stockholders granted the Company’s Board of Directors (the “Board”) the discretion to effect a reverse stock split of First Wave’s Common Stock through an amendment (the “Amendment”) to its Certificate of Incorporation, as amended and restated to date (the “Charter”), at a ratio of not less than 1-for-10 and not more than 1-for-40, such ratio to be determined by the Board.
On August 25, 2022, the Company filed the Amendment for the Reverse Stock Split with the Secretary of State of the State of Delaware, and the Reverse Stock Split will become effective in accordance with the terms of the Amendment at 12:01 AM Eastern Time on August 26, 2022 (the “Effective Time”).
At the Effective Time, every thirty shares of First Wave’s issued and outstanding Common Stock will be converted automatically into one issued and outstanding share of Common Stock, with no corresponding reduction in the number of authorized shares of Common Stock, and without any change in the par value per share. Stockholders holding shares through a brokerage account will have their shares automatically adjusted to reflect the 1-for-30 Reverse Stock Split. It is not necessary for stockholders holding shares of the Common Stock in certificated form to exchange their existing stock certificates for new stock certificates of the Company in connection with the Reverse Stock Split, although stockholders may do so if they wish.
The Reverse Stock Split will affect all stockholders uniformly and will not alter any stockholder’s percentage interest in the Company’s equity, except to the extent that the Reverse Stock Split would result in a stockholder owning a fractional share. No fractional shares will be issued in connection with the Reverse Stock Split. Stockholders who would otherwise be entitled to receive a fractional share will instead receive a cash payment based on the closing price of the Common Stock as reported on The Nasdaq Capital Market on August 25, 2022. The Reverse Stock Split will reduce the number of shares of Common Stock outstanding from approximately 42 million shares to approximately 1.4 million shares. Proportional adjustments will be made to the number of shares of Common Stock issuable upon exercise or conversion of First Wave’s equity awards, convertible preferred stock and warrants, as well as the applicable exercise price. Stockholders with shares in brokerage accounts should direct any questions concerning the Reverse Stock Split to their broker; all other stockholders may direct questions to the Company’s transfer agent, Colonial Stock Transfer, at 801-355-5740.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is filed as Exhibit 3.1 to this Current Report on Form 8-K and incorporated by reference herein.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
On August 25, 2022, the Company held an annual meeting of stockholders (the “Annual Meeting”). The matters voted on at the Annual Meeting were the following proposals: (1) the election of directors, (2) the adoption and approval of an amendment to the Charter to effect a reverse stock split of the Company’s issued and outstanding shares of Common Stock at a specific ratio, ranging from one-for-ten (1:10) to one-for-forty (1:40), at any time prior to the one-year anniversary date of the Annual Meeting, with the exact ratio to be determined by the Board without further approval or authorization of the Company’s stockholders, (3) the approval, on an advisory basis, of the exeutive compensation of the Company’s named executive officers, (4) indication, on an advisory basis, of the preferred frequency of stockholder advisory votes on the compensation of the Company’s named executive officers, and (5) the approval of the adjournment of the Annual Meeting to the extent there are insufficient proxies at the Annual Meeting to approve any one or more of the foregoing proposals
At the Annual Meeting, all five of the foregoing stockholder proposals were approved, based upon an aggregate of 41,590,308 shares of Common Stock, 150 shares of Series D Preferred Stock and 150 shares of Series E Preferred Stock outstanding as of July 15, 2022, which was the record date for the Annual Meeting. The final voting results were as follows:
| 1. | The election of each of James Sapirstein, Edward J. Borkowski, Charles J. Casamento, Terry Coelho, David Hoffman and Alastair Riddell as directors to hold office for a term of one year, until his or her successor is duly elected and qualified or he or she is otherwise unable to complete his or her term. |
The votes were cast for this matter as follows:
| Nominees | Votes For | Votes Withheld | Broker Non-Votes | |||
| James Sapirstein | 3,123,370 | 1,322,525 | 10,224,308 | |||
| Edward J. Borkowski | 3,131,149 | 1,314,746 | 10,224,308 | |||
| Charles J. Casamento | 3,149,717 | 1,296,178 | 10,224,308 | |||
| Terry Coelho | 3,146,281 | 1,299,614 | 10,224,308 | |||
| David Hoffman | 3,118,818 | 1,327,077 | 10,224,308 | |||
| Alastair Riddell | 3,147,928 | 1,297,967 | 10,224,308 |
| 2. | The proposal to adopt and approve an amendment to the Charter to effect a reverse stock split of the Company’s issued and outstanding shares of Common Stock, at a specific ratio, ranging from one-for-ten (1:10) to one-for-forty (1:40), at any time prior to the one-year anniversary date of the Annual Meeting, with the exact ratio to be determined by the Board was approved by a majority of the voting power of the outstanding shares of Common Stock, Series D Preferred Stock and Series E Preferred Stock entitled to vote on the proposal, based upon the following votes: |
| Votes For | Votes Against | Abstentions | ||
| 22,716,528,871 | 7,298,877,910 | 14,549 |
| 3. | The proposal to approve, on an advisory basis, the executive compensation of the Company’s named executive officers was approved by a majority of votes cast, based upon the following votes: |
| Votes For | Votes Against | Abstentions | Broker Non-Votes | |||
| 2,518,382 | 1,706,052 | 221,461 | 10,224,308 |
| 4. | The proposal to indicate, on an advisory basis, the preferred frequency of stockholder advisory votes on the compensation of the Company’s named executive officers was approved by a majority of votes cast, based upon the following votes: |
| 1 Year | 2 Years | 3 Years | Abstain | |||
| 3,452,479 | 93,307 | 413,074 | 487,035 |
| 5. | The proposal to approve the adjournment of the Annual Meeting to the extent that there are insufficient proxies at the Annual Meeting to approve any one or more of the foregoing proposals was approved by a majority of votes cast, based upon the following votes: |
| Votes For | Votes Against | Abstentions | ||
| 12,065,061 | 2,417,662 | 187,480 |
The Board has considered the outcome of Proposal 4, the advisory vote on how often the Company will conduct an advisory vote on executive compensation and has determined, as was recommended with respect to this proposal by the Board in the proxy statement for the Annual Meeting, that the Company will conduct future advisory votes on executive compensation every year until the occurrence of the next vote on how often the Company will conduct an advisory vote on executive compensation. The next vote, on an advisory basis, on how often the Company will conduct an advisory vote on executive compensation is required to occur no later than the Company’s 2028 Annual Meeting of Stockholders.
| Item 7.01 | Regulation FD Disclosure. |
On August 25, 2022, the Company issued a press release announcing the Reverse Stock Split, a copy of which is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits. |
| Exhibit No. | Description | |
| 3.1 | Certificate of Amendment to the Amended and Restated Certificate of Incorporation of First Wave BioPharma, Inc., dated August 25, 2022. | |
| 99.1 | Press Release, dated August 25, 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. | ||
| August 25, 2022 | By: | /s/ James Sapirstein |
| Name: | James Sapirstein | |
| Title: | Chief Executive Officer | |
Exhibit 3.1
CERTIFICATE OF AMENDMENT TO 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, does hereby certify as follows:
FIRST: That a resolution was duly adopted on May 27, 2022, by the Board of Directors of the Corporation pursuant to Section 242 of the General Corporation Law of the State of Delaware setting forth an amendment to the Certificate of Incorporation of the Corporation and declaring said amendment to be advisable. The stockholders of the Corporation duly approved said proposed amendment at an annual meeting of stockholders held on August 25, 2022, in accordance with Section 242 of the General Corporation Law of the State of Delaware. The proposed amendment set forth as follows:
Article FOURTH of the Amended and Restated Certificate of Incorporation of the Corporation, as amended to date, be and hereby is further amended by adding the following paragraphs after the first paragraph of Article FOURTH:
Upon effectiveness (“Effective Time”) of this amendment to the Amended and Restated Certificate of Incorporation of the Corporation, a one-for-thirty reverse stock split (the “Reverse Split”) of the Corporation’s Common Stock shall become effective, pursuant to which each thirty (30) shares of Common Stock outstanding and held of record by each stockholder of the Corporation (including treasury shares) immediately prior to the Effective Time (“Old Common Stock”) shall automatically, and without any action by the holder thereof, be reclassified and combined into one (1) validly issued, fully paid and non-assessable share of Common Stock (“New Common Stock”), subject to the treatment of fractional interests as described below and with no corresponding reduction in the number of authorized shares of our Common Stock. The Reverse Split shall also apply to any outstanding securities or rights convertible into, or exchangeable or exercisable for, Old Common Stock and all references to such Old Common Stock in agreements, arrangements, documents and plans relating thereto or any option or right to purchase or acquire shares of Old Common Stock shall be deemed to be references to the New Common Stock or options or rights to purchase or acquire shares of New Common Stock, as the case may be, after giving effect to the Reverse Split.
No fractional shares of Common Stock will be issued in connection with the reverse stock split. Stockholders of record who otherwise would be entitled to receive fractional shares, will be entitled to receive cash (without interest) in lieu of fractional shares, equal to such fraction multiplied by the average of the closing sales prices of our Common Stock on the exchange the Corporation is currently trading during regular trading hours for the five consecutive trading days immediately preceding the effective date of the Reverse Split (with such average closing sales prices being adjusted to give effect to the Reverse Split).
Each holder of record of a certificate or certificates for one or more shares of the Old Common Stock shall be entitled to receive as soon as practicable, upon surrender of such certificate, a certificate or certificates representing the largest whole number of shares of New Common Stock to which such holder shall be entitled pursuant to the provisions of the immediately preceding paragraphs. Each stock certificate that, immediately prior to the Effective Time, represented shares of Old Common Stock that were issued and outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of New Common Stock after the Effective Time into which the shares formerly represented by such certificate have been reclassified (as well as the right to receive cash in lieu of fractional shares of New Common Stock after the Effective Time.
SECOND: That said amendment will have an Effective Time of 12:01 A.M., Eastern Time, on August 26, 2022. .
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its President and Chief Executive Officer this 25th day of August, 2022.
| /s/ James Sapirstein | |
| James Sapirstein | |
| President and Chief Executive Officer |
-2-
Exbibit 99,1
First Wave BioPharma, Inc. Announces Reverse Stock Split
BOCA RATON, Fla., August 25, 2022 – First Wave BioPharma, Inc. (NASDAQ:FWBI) (“First Wave BioPharma” or the “Company”), a clinical-stage biopharmaceutical company specializing in the development of targeted, non-systemic therapies for gastrointestinal diseases, today announced that it intends to effect a reverse stock split of its common stock at a ratio of 1 post-split share for every 30 pre-split shares. First Wave’s common stock will continue to be traded on the NASDAQ Capital Market under the symbol FWBI and will begin trading on a split-adjusted basis when the market opens on Friday, August 26, 2022, under a new CUSIP number, 33749P200.
At the effective time of the reverse stock split, every thirty shares of First Wave’s issued and outstanding common stock will be converted automatically into one issued and outstanding share of common stock, with no corresponding reduction in the number of authorized shares of common stock, and without any change in the par value per share. Stockholders holding shares through a brokerage account will have their shares automatically adjusted to reflect the 1-for-30 reverse stock split. It is not necessary for stockholders holding shares of the Company’s common stock in certificated form to exchange their existing stock certificates for new stock certificates of the Company in connection with the reverse stock split, although stockholders may do so if they wish.
The reverse stock split will affect all stockholders uniformly and will not alter any stockholder’s percentage interest in the Company’s equity, except to the extent that the reverse stock split would result in a stockholder owning a fractional share. No fractional shares will be issued in connection with the reverse split. Stockholders who would otherwise be entitled to receive a fractional share will instead receive a cash payment based on today’s closing price of the Company’s common stock as reported on Nasdaq. The reverse stock split will reduce the number of shares of First Wave’s common stock outstanding from approximately 42 million shares to approximately 1.4 million shares. Proportional adjustments will be made to the number of shares of First Wave’s common stock issuable upon exercise or conversion of First Wave’s equity awards, convertible preferred stock and warrants, as well as the applicable exercise price. Stockholders with shares in brokerage accounts should direct any questions concerning the reverse stock split to their broker; all other stockholders may direct questions to the Company’s transfer agent, Colonial Stock Transfer, at 801-355-5740.
At the annual meeting of stockholders held on Thursday, August 25, 2022, First Wave’s stockholders granted the Company’s Board of Directors the discretion to effect a reverse stock split of First Wave’s outstanding common stock through an amendment to its Certificate of Incorporation at a ratio of not less than 1-for-10 and not more than 1-for-40, such ratio to be determined by the Company’s Board of Directors. Among other things, the reverse stock split is intended to increase the per share trading price of the common stock to satisfy the minimum bid price requirement for continued listing on The Nasdaq Capital Market (Rule 5550(a)(2)).
About First Wave BioPharma, Inc.
First Wave BioPharma is a clinical-stage biopharmaceutical company specializing in the development of targeted, non-systemic therapies for gastrointestinal (GI) diseases. The Company is currently advancing a therapeutic development pipeline with multiple clinical stage programs built around its two proprietary technologies – the biologic adrulipase, a recombinant lipase enzyme designed to enable the digestion of fats and other nutrients, and niclosamide, an oral small molecule with anti-inflammatory properties. First Wave is advancing two Phase 2 clinical programs built around adrulipase for the treatment of exocrine pancreatic insufficiency (FW-EPI) in patients with cystic fibrosis (CF) and chronic pancreatitis (CP). In developing adrulipase, First Wave is seeking to provide CF and CP patients with a safe and effective therapy to control EPI that is non-animal derived and offers the potential to dramatically reduce their daily pill burden. The company is also advancing multiple programs involving niclosamide, including FW-UP for ulcerative proctitis and ulcerative proctosigmoiditis, FW-UC for ulcerative colitis, and FW-CD for Crohn’s disease. First Wave BioPharma is headquartered in Boca Raton, Florida. For more information visit www.firstwavebio.com.
Forward-Looking Statements
This press release may contain certain statements relating to future results which are forward-looking statements. These forward-looking statements are subject to risks and uncertainties including, among other things, the completion of the private placement, the satisfaction of customary closing conditions related to the private placement and the intended use of proceeds from the private placement. It is possible that the Company’s actual results and financial condition may differ, possibly materially, from the anticipated results and financial condition indicated in these forward-looking statements, depending on factors including risks and uncertainties related to market conditions whether results obtained in preclinical and nonclinical studies and clinical trials will be indicative of results obtained in future clinical trials; whether preliminary or interim results from a clinical trial will be indicative of the final results of the trial; the size of the potential markets for the Company’s drug candidates and its ability to service those markets; the effects of the First Wave Bio, Inc. acquisition and its announcement on the Company’s business, operating results and financial prospects; the integration of the First Wave Bio, Inc. business with the Company’s own business; and the Company’s current and future capital requirements and its ability to raise additional funds to satisfy its capital needs. Additional information concerning the Company and its business, including a discussion of factors that could materially affect the Company’s financial results are contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2021 under the heading “Risk Factors,” as well as the Company’s subsequent filings with the Securities and Exchange Commission. All forward-looking statements included in this press release are made only as of the date of this press release, and we do not undertake any obligation to publicly update or correct any forward-looking statements to reflect events or circumstances that subsequently occur or of which we hereafter become aware.
For more information:
First Wave BioPharma, Inc.
777 Yamato Road, Suite 502
Boca Raton, FL 33431
Phone: (561) 589-7020
info@firstwavebio.com
Media contact:
Tiberend Strategic Advisors, Inc.
David Schemelia
(609) 468-9325
dschemelia@tiberend.com