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): January 14, 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 (17 CFR §230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §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 5.03
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On January 14, 2022, following the approval of Proposal 2 reported in Item 5.07 below, First Wave BioPharma, Inc. (the “Company”) filed with the Secretary of State of the State of Delaware a certificate of amendment (the “Certificate of Amendment”) to its certificate of incorporation, as amended and restated (the “Charter”), increasing the total number of authorized shares of common stock, par value $0.0001 per share (the “Common Stock”), to 50,000,000. A copy of the Certificate of Amendment is attached hereto as Exhibit 3.1 and incorporated by reference herein.

Item 5.07
Submission of Matters to a Vote of Security Holders.

On January 14, 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 approval to amend the Charter to increase the total number of authorized shares of Common Stock by 25,000,000 shares to 50,000,000 shares, (3) the ratification of the appointment of Mazars USA LLP as the Company’s independent registered public accounting firm for the Company’s fiscal year ending December 31, 2021 and (4) 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 four of the foregoing stockholder proposals were approved, based upon an aggregate of 12,460,848 shares of Common Stock outstanding as of November 9, 2021, 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, Alastair Riddell, Gregory Oakes and Terry Coelho 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
 
4,696,139
 
596,620
 
2,245,623
Edward J. Borkowski   4,642,213   650,546   2,245,623
Charles J. Casamento   4,560,876   731,883   2,245,623
Alastair Riddell   4,754,585  
538,174
  2,245,623
Gregory Oakes   4,761,599   531,160   2,245,623
Terry Coelho   4,767,569
  525,190   2,245,623

2.
The proposal to approve the Certificate of Amendment to increase the total number of authorized shares of Common Stock by 25,000,000 shares to 50,000,000 shares was approved by a majority of the issued and outstanding shares entitled to vote, based upon the following votes:

Votes For
 
Votes Against
 
Abstentions
6,359,895
 
1,116,860
 
61,627

3.
The proposal to ratify the appointment of Mazars USA LLP as the Company’s independent registered public accounting firm for the Company’s fiscal year ending December 31, 2021 was approved by a majority of votes cast, based upon the following votes:

Votes For
 
Votes Against
 
Abstentions
7,100,244
 
251,609
 
186,529

4.
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
 
Broker Non-Votes
4,685,960
 
503,233
 
103,566
 
2,245,623

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.
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.
   
January 14, 2022
By:
/s/ Daniel Schneiderman
 
Name:
Daniel Schneiderman
 
Title:
Chief Financial Officer


Exhibit 3.1


Delaware
Page 1
 
The First State
 

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “FIRST WAVE BIOPHARMA, INC.”, FILED IN THIS OFFICE ON THE FOURTEENTH DAY OF JANUARY,
A.D. 2022, AT 10:13 O`CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF AMENDMENT IS THE FOURTEENTH DAY OF JANUARY, A.D. 2022 AT 5 O'CLOCK P.M.

 
 
 
5474088 8100
Authentication: 202400582
SR# 20220130437
Date: 01-14-22
You may verify this certificate online at corp.delaware.gov/authver.shtml   

State of Delaware
 
 
Secretary of State    
Division of Corporations    
Delivered 10:13 AM 01/14/2022
CERTIFICATE OF AMENDMENT TO THE
 
FILED 10:13 AM 01/14/2022
AMENDED AND RESTATED
 
SR 20220130437 - File Number 5474088
CERTIFICATE OF INCORPORATION  
  OF  
  FIRST WAVE BIOPHARMA, INC.  

First Wave BioPhanna, 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 November 8, 2021, 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 January 14, 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 amended and restated in its entirety to read as follows:
 
The total number of shares which the Corporation shall have authority to issue is sixty million (60,000,000) shares, of which fifty million (50,000,000) shares shall be common stock, par value $0.0001 per share, and ten million (10,000,000) shares shall be preferred stock, par value $0.0001 per share. The board of directors of the Corporation may 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, preferences, and limitations of any series of preferred stock. The board of directors (within the limits and restrictions of the adopting resolutions) may increase or decrease the number of shares initially fixed for any series, but no decrease may reduce the number below the shares then outstanding and duly reserved for issuance.
 
SECOND: That said amendment will have an Effective Time of5:00 P.M., Eastern Time, on the filing date of this Certificate of Amendment to the Amended and Restated Certificate of Incorporation
 
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its President and ChiefExecutive Officer this 14th day of January, 2022.
 
 
/s/ James Sapirstein
 
 
James Sapirstein
 
 
President and Chief Executive Officer