As filed with the Securities and Exchange Commission
on September 14, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST WAVE BIOPHARMA, INC.
(Exact name of registrant as specified in its charter)
| Delaware |
2834 |
46-4993860 |
|
(State or other jurisdiction of
incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
777 Yamato Road, Suite 502
Boca Raton, Florida 33431
(561) 589-7020
(Address, including zip code, and telephone number,
including area code, of registrant’s principal
executive offices)
James Sapirstein, President, Chief Executive
Officer and Chairman
First Wave BioPharma, Inc.
777 Yamato Road, Suite 502
Boca Raton, Florida 33431
(561) 589-7020
(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
Copies to
|
John D. Hogoboom, Esq.
Michael J. Lerner, Esq. |
|
|
Rick Werner, Esq.
Jayun Koo, Esq. |
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, New York 10020
Telephone: (212) 262-6700 |
|
|
Haynes and Boone LLP
30 Rockefeller Plaza, 26th Floor
New York, New York 10112
Telephone: (212) 659-7300 |
Approximate
date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
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. x
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. ¨
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 earlier effective registration statement for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging
growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
¨ |
|
Accelerated filer |
¨ |
| Non-accelerated filer |
x |
|
Smaller reporting company |
x |
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|
|
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 7(a)(2)(B) of the Securities Act. ¨
The Registrant hereby
amends this Registration 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 Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
The information in this preliminary
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 preliminary prospectus is not an offer to sell these securities, nor is it a solicitation of
offers to buy these securities, in any state where the offer or sale is not permitted.
| PRELIMINARY PROSPECTUS |
SUBJECT TO COMPLETION |
DATED SEPTEMBER 14, 2022 |
Up to $12,000,000
Up to Shares of Common Stock
Pre-Funded Warrants to Purchase up to Shares
of Common Stock
Common Warrants to Purchase up to Shares of
Common Stock
Shares of Common Stock underlying the Pre-Funded
Warrants and Common Warrants
We are offering shares
of common stock, together with common warrants to purchase shares of common stock at an assumed combined public
offering price of $ per share and common warrant, which is equal to the last reported sale price per share
of our common stock on The Nasdaq Capital Market, on , 2022 (and
the shares issuable from time to time upon exercise of the common warrants) pursuant to this prospectus. The shares of common stock and
common warrant will be separately issued, but the shares of common stock and common warrants will be issued to purchasers in the ratio
of one-to-one. Each common warrant will have an exercise price of $ per share, will be exercisable
upon issuance and will expire years from the date of issuance.
We are also offering pre-funded
warrants to those purchasers, whose purchase of shares of common stock in this offering would result in the purchaser, together with its
affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding
common stock following the consummation of this offering in lieu of the shares of our common stock that would result in ownership in excess
of 4.99% (or, at the election of the purchaser, 9.99%). Each pre-funded warrant will be exercisable for one share of common stock at an
exercise price of $0.0001 per share. Each pre-funded warrant is being issued together with the same common warrant described above being
issued with each share common stock. The assumed combined public offering price for each such pre-funded warrant, together with the common
warrant, is $ which is equal to the last reported sale price of our common stock on The Nasdaq Capital Market on
, 2022 less the $0.0001 per share exercise price of each such pre-funded
warrant. Each pre-funded warrant will be exercisable upon issuance and will expire when exercised in full. The pre-funded warrants and
common warrants are immediately separable and will be issued separately in this offering.
There is no established public trading market
for the pre-funded warrants or common warrants, and we do not expect a market to develop. We do not intend to apply for listing of the
pre-funded warrants or common warrants on any securities exchange or other nationally recognized trading system. Without an active trading
market, the liquidity of the pre-funded warrants and common warrants will be limited.
We have engaged H.C. Wainwright & Co.,
LLC, or the placement agent, to act as our exclusive placement agent in connection with this offering. The placement agent has agreed
to use its reasonable best efforts to arrange for the sale of the securities offered by this prospectus. The placement agent is not purchasing
or selling any of the securities we are offering and the placement agent is not required to arrange the purchase or sale of any specific
number or dollar amount of securities. We have agreed to pay to the placement agent the placement agent fees set forth in the table below,
which assumes that we sell all of the securities offered by this prospectus. There is no arrangement for funds to be received in escrow,
trust or similar arrangement. There is no minimum number of shares of common stock or pre-funded warrants or minimum aggregate amount
of proceeds that is a condition for this offering to close. We may sell fewer than all of the shares of common stock and pre-funded warrants
offered hereby, which may significantly reduce the amount of proceeds received by us, and investors in this offering will not receive
a refund if we do not sell all of the securities offered hereby. Because there is no escrow account and no minimum number of securities
or amount of proceeds, investors could be in a position where they have invested in us, but we have not raised sufficient proceeds in
this offering to adequately fund the intended uses of the proceeds as described in this prospectus. We will bear all costs associated
with the offering. See “Plan of Distribution” on page 21 of this prospectus for more information regarding these arrangements.
Our common stock is listed on The Nasdaq Capital
Market under the symbol “FWBI.” On , 2022, the last
reported sale price of our common stock on The Nasdaq Capital Market was $ per share. All share, common warrant,
and pre-funded warrant numbers are based on an assumed combined public offering price of $ per share or pre-funded
warrant, as applicable, and common warrant.
Effective as of 12:01 am Eastern Time on August
26, 2022, we filed an amendment to our Amended and Restated Certificate of Incorporation to effect a reverse stock split of the issued
and outstanding shares of our common stock, at a ratio of one share for thirty shares (the “Reverse Stock Split”). All share
and per share prices in this prospectus have been adjusted to reflect the Reverse Stock Split. However, common stock share and per share
amounts in certain of the documents incorporated by reference herein have not been adjusted to give effect to the Reverse Stock Split.
The actual combined public offering price per
share and common warrant and the actual combined public offering price per pre-funded warrant and common warrant will be determined between
us and investors based on market conditions at the time of pricing, and may be at a discount to the current market price of our common
stock.
You should read this prospectus, together with
additional information described under the headings “Information Incorporated by Reference” and “Where You Can Find
More Information,” carefully before you invest in any of our securities.
Investing in our securities involves a high
degree of risk. See the section entitled “Risk Factors” beginning on page 8 of this prospectus and in the documents incorporated
by reference into this prospectus for a discussion of risks that should be considered in connection with an investment in our securities.
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Per Share and
Accompanying
Common Warrant |
|
Per Pre-Funded
Warrant and
Accompanying
Common Warrant |
|
Total |
| Public offering price |
$ |
|
|
$ |
|
|
$ |
|
| Placement agent fees(1) |
$ |
|
|
$ |
|
|
$ |
|
| Proceeds to us, before expenses(2) |
$ |
|
|
$ |
|
|
$ |
|
(1) Includes a cash fee of 7.0% of the gross
proceeds of this offering. We have also agreed to issue to the placement agent (or its designees) warrants to purchase shares of common
stock as described under “Plan of Distribution” on page 21 of this prospectus and pay the placement agent a reimbursement
for non-accountable expenses equal to $25,000, a reimbursement for legal fees and expenses of the placement agent in the amount of $150,000
and $15,950 for clearing fees. See “Plan of Distribution” for additional information about the compensation payable to the
placement agent.
(2) We estimate the total expenses of this
offering payable by us, excluding the placement agent fee, will be approximately $ .
The delivery of the shares of common stock and
any pre-funded warrants and common warrants to purchasers is expected to be made on or about ,
2022.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
H.C. Wainwright &
Co.
The date of this
prospectus is , 2022.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
We incorporate by reference important information
into this prospectus. You may obtain the information incorporated by reference without charge by following the instructions under “Where
You Can Find More Information.” You should carefully read this prospectus as well as additional information described under “Incorporation
of Certain Information by Reference,” before deciding to invest in our securities.
We have not, and the placement agent has
not, authorized anyone to provide any information or to make any representations other than those contained in this prospectus or in
any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We 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. The
information contained in this prospectus or in any applicable free writing prospectus is current only as of its date, regardless of
its time of delivery or any sale of our securities. Our business, financial condition, results of operations and prospects may have
changed since that date.
The information incorporated by reference or provided
in this prospectus contains statistical data and estimates, including those relating to market size and competitive position of the markets
in which we participate, that we obtained from our own internal estimates and research, as well as from industry and general publications
and research, surveys and studies conducted by third parties. Industry publications, studies and surveys generally state that they have
been obtained from sources believed to be reliable. While we believe our internal company research is reliable and the definitions of
our market and industry are appropriate, neither this research nor these definitions have been verified by any independent source.
For investors outside the United States: We have
not, and the placement agent has not, 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. Persons outside the United States who come
into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the securities
and the distribution of this prospectus outside the United States.
This
prospectus and the information incorporated by reference into this prospectus contain references to our trademarks and to trademarks belonging
to other entities. Solely for convenience, trademarks and trade names referred to in this prospectus and the information incorporated
by reference into this prospectus, including logos, artwork, and other visual displays, may appear without the ®
or TM 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 rights or the rights of the applicable licensor to these trademarks and trade names. We
do not intend our use or display of other companies’ trade names or trademarks to imply a relationship with, or endorsement or sponsorship
of us by, any other company.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, and any
documents we incorporate by reference, contain certain forward-looking statements that involve substantial risks and uncertainties. All
statements contained in this prospectus and any documents we incorporate by reference, other than statements of historical facts, are
forward-looking statements including statements regarding our strategy, future operations, future financial position, future revenue,
projected costs, prospects, plans, objectives of management and expected market growth. These statements involve known and unknown risks,
uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different from
any future results, performance or achievements expressed or implied by the forward-looking statements.
The words “anticipate”,
“believe”, “estimate”, “expect”, “intend”, “may”, “plan”, “predict”,
“project”, “target”, “potential”, “will”, “would”, “could”, “should”,
“continue” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements
contain these identifying words. These forward-looking statements include, among other things, statements about:
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our ability to comply with the terms of the Exception and to regain compliance with the continued listing requirements of the Nasdaq Capital Market; |
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our ability to satisfy our payment obligations in connection with the acquisition of First Wave Bio, Inc.; |
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statements regarding the impact of the COVID-19 pandemic and other geopolitical events, including the war in Ukraine and their effects on our operations, access to capital, research and development and clinical trials and potential disruption in the operations and business of third-party vendors, contract research organizations (“CROs”), contract development and manufacturing organizations (“CDMOs”), other service providers, and collaborators with whom we conduct business; |
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the availability of capital to satisfy our working capital requirements; |
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our current and future capital requirements and our ability to raise additional funds to satisfy our capital needs; |
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the integration and effects of our acquisitions, including the First Wave Acquisition, and other strategic transactions; |
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the accuracy of our estimates regarding expense, future revenue and capital requirements; |
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ability to continue operating as a going concern; |
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our plans to develop and commercialize our product candidates, including the biologic adrulipase (formerly MS1819) and niclosamide; |
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our ability to initiate and complete our clinical trials and to advance our principal product candidates into additional clinical trials, including pivotal clinical trials, and successfully complete such clinical trials; |
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regulatory developments in the U.S. and foreign countries; |
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the performance of our third-party vendor(s), CROs, CDMOs and other third-party non-clinical and clinical development collaborators and regulatory service providers |
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our ability to obtain and maintain intellectual property protection for our core assets; |
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the size of the potential markets for our product candidates and our ability to serve those markets; |
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the rate and degree of market acceptance of our product candidates for any indication once approved; |
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the success of competing products and product candidates in development by others that are or become available for the indications that we are pursuing; |
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the loss of key scientific, clinical and nonclinical development, and/or management personnel, internally or from one of our third-party collaborators; and |
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other risks and uncertainties, including those listed in the “Risk Factors” section of this prospectus and the documents incorporated by reference herein. |
These forward-looking statements
are only predictions and we may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements,
so you should not place undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans,
intentions and expectations disclosed in the forward-looking statements we make. We have based these forward-looking statements largely
on our current expectations and projections about future events and trends that we believe may affect our business, financial condition
and operating results. We have included important factors in the cautionary statements included in this prospectus that could cause actual
future results or events to differ materially from the forward-looking statements that we make. Our forward-looking statements do not
reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments we may make.
You should read this prospectus
with the understanding that our actual future results may be materially different from what we expect. We do not assume any obligation
to update any forward-looking statements whether as a result of new information, future events or otherwise, except as required by applicable
law.
PROSPECTUS SUMMARY
This
summary highlights information contained elsewhere in this prospectus. This summary does not contain all of the information that you should
consider before deciding to invest in our securities. You should read this entire prospectus carefully, including the “Risk Factors”
section in this prospectus and under similar captions in the documents incorporated by reference into this prospectus. In this prospectus,
unless otherwise stated or the context otherwise requires, references to “First Wave BioPharma”, “AzurRx”, “Company”,
“we”, “us”, “our” or similar references mean First Wave BioPharma, Inc. and its subsidiaries
on a consolidated basis. References to “First Wave BioPharma” refer to First Wave BioPharma, Inc. on an unconsolidated
basis. References to “AzurRx SAS” refer to AzurRx SAS, First Wave BioPharma’s wholly-owned subsidiary through which
we conduct our European operations. References to “First Wave Bio” refer to First Wave Bio, Inc., First Wave BioPharma’s
wholly-owned subsidiary.
Overview
We
are engaged in the research and development of targeted, non-systemic therapies for the treatment of patients with gastrointestinal (“GI”)
diseases. Non-systemic therapies are non-absorbable drugs that act locally, i.e. the intestinal lumen, skin or mucosa, without reaching
an individual’s systemic circulation.
We
are currently focused on developing our pipeline of gut-restricted GI clinical drug candidates, including the biologic adrulipase (formerly
MS1819), a recombinant lipase enzyme designed to enable the digestion of fats and other nutrients, and niclosamide, an oral small molecule
with anti-viral and anti-inflammatory properties. Our adrulipase programs are focused on the development of an oral, non-systemic, biologic
capsule for the treatment of exocrine pancreatic insufficiency (“EPI”) in patients with cystic fibrosis (“CF”)
and chronic pancreatitis (“CP”). The Company’s niclosamide programs leverage proprietary oral and topical formulations
to address multiple GI conditions, including inflammatory bowel disease (“IBD”) indications and viral diseases.
We
are developing our drug candidates for a host of GI diseases where there are significant unmet clinical needs and limited therapeutic
options, resulting in painful, life threatening and discomforting consequences for patients.
Recent Developments
Nasdaq Listing Extension
On
November 26, 2021, we received a deficiency notice from the Listing Qualifications Staff (the “Staff”) of The Nasdaq
Stock Market LLC (“Nasdaq”), indicating that we were not in compliance with the $2.5 million minimum stockholders’ equity
requirement for continued listing of the Common Stock on Nasdaq as set forth in Nasdaq Listing Rule 5550(b)(1) (the “Minimum
Stockholders’ Equity Rule”). In that regard, we reported a stockholders’ deficit of $(6,969,988) in our Quarterly Report
on Form 10-Q for the period ended September 30, 2021 (we did not then, and do not now, meet the alternative compliance standards
relating to the market value of listed securities of $35 million or net income from continuing operations of $500,000 in the most recently
completed fiscal year or in two of the last three most recently completed fiscal years).
On
January 10, 2022, we submitted a plan to the Staff to regain compliance with the Minimum Stockholders’ Equity Rule and
on February 15, 2022, the Staff notified us that Nasdaq had granted us an extension through May 25, 2022, to regain compliance
(this represented the maximum extension period available to the Staff under the Nasdaq Listing Rules). On May 26, 2022, we received
a letter from the Nasdaq Staff indicating that, based upon our continued non-compliance with the Minimum Stockholders’ Equity Rule,
the Staff had determined to delist our securities from Nasdaq unless we timely requested a hearing before the Nasdaq Hearings Panel (the
“Panel”).
Additionally, on May 16,
2022, we received notice from the Staff indicating that, based upon the closing bid price of the Common Stock for the prior 30 consecutive
business days, we were not in compliance with the requirement to maintain a minimum bid price of $1.00 per share for continued listing
on Nasdaq as set forth in Nasdaq Listing Rule 5550(a)(2) (the “Bid Price Rule”). We have 180 days from May 16,
2022, or through November 14, 2022, to regain compliance with the Bid Price Rule.
We timely requested a hearing before the Panel.
Following the hearing, on July 11, 2022 the Panel granted our request for continued listing of the Common Stock (the “Exception”).
The Exception is subject to a number of significant
conditions that must be satisfied on or before specific deadlines set forth in the Exception, including the completion of a significant
equity financing. The final term of the Exception expires on November 22, 2022.
Pursuant to the Exception, we are required to
provide the Panel with prompt notification of any significant events that occur including any event that may call into question our ability
to satisfy the terms of the Exception. The Panel has reserved the right to reconsider the terms of the Exception based on any event, condition
or circumstance that exists or develops that would, in the Panel’s opinion, make continued listing of our securities on Nasdaq inadvisable
or unwarranted.
Reverse Stock Split
As contemplated by the Exception, on August 26,
2022, we effected a reverse stock split, whereby every thirty shares of our issued and outstanding common stock was converted automatically
into one issued and outstanding share of common stock. There was no corresponding reduction in the number of authorized shares of common
stock and no change in the par value per share. Effective as of the close of trading on September 9, 2022, we regained compliance with
the Bid Price Rule.
All share and per share amounts in this prospectus
have been retroactively restated to reflect the 1-for-30 reverse stock split.
The FWB Action
On May 19, 2022, Fortis Advisors LLC, the hired
representative (in such capacity, the “Representative”) of the former stockholders of First Wave Bio, Inc. (“FWB”)
in connection with the Agreement and Plan of Merger dated as of September 13, 2021, by and among us, Alpha Merger Sub, Inc. and FWB (the
“Merger Agreement”), filed a complaint in the Court of Chancery of the State of Delaware (the “FWB Action”), for
breach of contract and anticipatory repudiation or for unjust enrichment. The FWB Action seeks specific performance of the Company’s
obligations under the Merger Agreement and the settlement agreement by and between us and the Representative, dated November 15, 2021,
including all payments currently owed and to be owed to the Representative, and damages at the maximum amount permitted by law.
On July 29, 2022, we entered into a binding term
sheet (the “Term Sheet”) with the Representative to settle the FWB Action and to restructure our obligations to the former
FWB stockholders (the “FWB Settlement”). We agreed to pay the Representative: (i) $1.5 million in cash on July 29, 2022 (the
“First Payment”); (2) $1.0 million in cash no later than September 29, 2022 (the “Second Payment”); and (iii)
$2.0 million on the earlier of November 30, 2022 and our completion of one or more qualifying equity offerings (the “Third Payment”
and collectively with the First Payment and the Second Payment, the “Payments”). The Representative is also entitled to receive
future cash payments conditioned on the achievement of certain development milestones for adrulipase and to a percentage of any consideration
received by us in the event of a license or sale of adrulipase, subject to a cap. The Representative also is entitled receive a percentage
of the consideration received by us in the event of a license or sale of niclosamide and will retain its existing milestone payment rights
with respect to niclosamide. In the event that the consideration received by us in connection with the sale or license of adrulipase or
niclosamide consists of securities or other non-cash consideration, the Representative will have the right to elect either to receive
its payment in such form of consideration or to cause the licensee or acquirer to assume the obligations described herein. In the event
of a “Company Sale” (as defined in the Term Sheet), the Representative is entitled to receive a pro rata share of the total
consideration received by us or our stockholders up to $4.0 million (plus any unpaid Payments whether or not then due) based on a formula
set forth in the Term Sheet. In certain circumstances, the Representative has the right to treat a “Company Sale” as a sale
of ardulipase or niclosamide, as applicable, and to treat the Company Sale as a sale of the related asset and to receive the consideration
with respect thereto described herein.
In the Term Sheet, the Representative has agreed
to stay the FWB Action for a period of 90 days and to eliminate our obligation to pay a portion of any offering proceeds to the Representative.
In addition, our obligation to use commercially reasonable efforts to develop niclosamide will be deferred for a period of 24 months from
the date of the Term Sheet. Effective upon the Second Payment, the Representative has agreed to dismiss the FWB Action with prejudice
and to extinguish the approximately $12.5 million of fixed payment obligations currently owed to the former FWB shareholders. On September
9, 2022, we paid the Second Payment.
Corporate Information
We
were incorporated on January 30, 2014 in the State of Delaware. In June 2014, we acquired 100% of the issued and outstanding
capital stock of AzurRx SAS. In September 2021, we acquired First Wave Bio through a merger transaction, and changed our name to
First Wave BioPharma, Inc. Our principal executive offices are located at 777 Yamato Road, Suite 502, Boca Raton, Florida 33431.
Our telephone number is (561) 589-7020. We maintain a website at www.firstwavebio.com. The information contained on our website is not,
and should not be interpreted to be, a part of this prospectus.
The Offering
| Common Stock to be Offered |
shares based on the sale of our common stock at an assumed combined public offering price of $ per share of common stock and accompanying common warrant, which is the last reported sale price of our common stock on , 2022, and no sale of any pre-funded warrants. |
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| Pre-funded Warrants to be Offered |
We are also offering to certain purchasers whose purchase of shares of common stock in this offering would otherwise result in the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock immediately following the consummation of this offering, the opportunity to purchase, if such purchasers so choose, pre-funded warrants to purchase shares of common stock, in lieu of shares of common stock that would otherwise result in any such purchaser’s beneficial ownership exceeding 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding common stock. Each pre-funded warrant will be exercisable for one share of our common stock. The purchase price of each pre-funded warrant and accompanying common warrant will equal the price at which the share of common stock and accompanying common warrant are being sold to the public in this offering, minus $0.0001, and the exercise price of each pre-funded warrant will be $0.0001 per share. The pre-funded warrants will be exercisable immediately and may be exercised at any time until all of the pre-funded warrants are exercised in full. This offering also relates to the shares of common stock issuable upon exercise of any pre-funded warrants sold in this offering. For each pre-funded warrant we sell, the number of shares of common stock we are offering will be decreased on a one-for-one basis. Because we will issue a common warrant for each share of our common stock and for each pre-funded warrant to purchase one share of our common stock sold in this offering, the number of common warrants sold in this offering will not change as a result of a change in the mix of the shares of our common stock and pre-funded warrants sold. |
| Common Warrants to be Offered |
Common warrants to purchase an aggregate of shares of our common stock, based on the sale of our common stock at an assumed combined public offering price of $ per share of common stock and accompanying common warrant, which is the last reported sale price of our common stock on , 2022. Each share of our common stock and each pre-funded warrant to purchase one share of our common stock is being sold together with a common warrant to purchase one share of our common stock. Each common warrant will have an exercise price of $ per share (representing 100% of the price at which a share of common stock and accompanying common warrant are sold to the public in this offering), will be immediately exercisable and will expire on the of the original issuance date. The shares of common stock and pre-funded warrants, and the accompanying common warrants, as the case may be, can only be purchased together in this offering but will be issued separately and will be immediately separable upon issuance. This prospectus also relates to the offering of the shares of common stock issuable upon exercise of the common warrants. |
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| Common Stock to be Outstanding Immediately After this Offering |
shares, (assuming we sell only shares of common stock and no pre-funded warrants and assuming no exercise of the common warrants). |
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| Use of Proceeds |
We estimate that the net proceeds from this offering will be approximately
$ million, based on an assumed combined public offering price
of per share of common stock (or pre-funded warrant) and
accompanying common warrants which was the last reported sales price of our common stock on The Nasdaq Capital Market
on , 2022, and excluding the proceeds, if any, from the exercise of
the common warrants in this offering. We currently intend to use $2.0 million of the net proceeds from this offering to make the
Third Payment owed to the former stockholders of FWB under the FWB Settlement. The remaining net proceeds from this offering will be
used for working capital and general corporate purposes, including the further development of our product candidates. See “Use
of Proceeds” for additional information. |
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| Risk Factors |
An investment in our securities involves a high degree of risk. See “Risk Factors” beginning on page 8 of this prospectus and the other information included and incorporated by reference in this prospectus for a discussion of the risk factors you should carefully consider before deciding to invest in our securities. |
| |
|
| Nasdaq symbol |
Our common stock is listed on The Nasdaq Capital Market under the symbol “FWBI”. There is no established public trading market for the pre-funded warrants or common warrants, and we do not expect a market to develop. In addition, we do not intend to apply to list the pre-funded warrants or common warrants on any national securities exchange or other nationally recognized trading system. Without an active trading market, the liquidity of the pre-funded warrants and common warrants will be limited. |
The above discussion is based on 2,307,008 shares
of our common stock outstanding as of September 9, 2022 and excludes up to:
| ● |
5,320 shares of common stock issuable upon exercise of stock options, with a weighted average exercise price of $383.80 per share, under our Amended and Restated 2014 Omnibus Equity Incentive Plan (the “2014 Plan”); |
| ● |
2,094 shares of awarded but unissued restricted stock and restricted stock units under our 2014 Plan; |
| ● |
23,947 shares of common stock issuable upon exercise of stock options, with a weighted average exercise price of $83.80 per share, under our Amended and Restated 2020 Omnibus Equity Incentive Plan (the “2020 Plan”); |
| ● |
46,531 shares of common stock available for future issuance under our 2020 Plan; |
| ● |
486,361 shares of common stock issuable upon exercise of outstanding warrants, with a weighted average exercise price of $89.49 per share; |
| ● |
24,208 shares of common stock issuable upon conversion of Series B Preferred Stock, including in respect of accrued and unpaid dividends of approximately $0.738 million through September 9, 2022; |
| ● |
either (x) if the holders of Series B Preferred Stock elect to exchange into our registered direct and private placement offering from January 2021, up to 24,859 additional shares of common stock issuable upon conversion of Series C Convertible Preferred Stock (the “Series C Preferred Stock”) and up to 24,859 shares of common stock issuable upon exercise of warrants or (y) if the holders of Series B Preferred Stock elect to exchange into our sales made on November 30, 2021, at a price of $78.471 per share, pursuant to our At The Market Offering Agreement dated May 26, 2021 (the “ATM Agreement”) (such price being the lowest price per share sold under the ATM Agreement to date), up to 71,336 additional shares of common stock, in each case that may be issued pursuant to the Series B Exchange Right in excess of amounts currently underlying Series B Preferred Stock; |
| ● |
the shares of common stock issuable upon exercise of the warrants issued in this offering; and |
| |
|
| ● |
the shares of common stock issuable upon exercise of the warrants to be issued to the placement agent (or its designees) as part of the compensation payable to the placement agent in connection with this offering (the “Placement Agent Warrants”). See “Plan of Distribution.” This prospectus also relates to the offering of the shares of common stock issuable upon exercise of the Placement Agent Warrants. |
Except as otherwise indicated, the information
in this prospectus supplement gives effect to the 1-for-30 Reverse Stock Split of our common stock, effected on August 26, 2022, and assumes
(i) no exercise of the Placement Agent Warrants and (ii) no exercise of options or exercise of warrants and no conversion of any shares
of preferred stock described above.
RISK FACTORS
An
investment in our securities involves a high degree of risk. Before deciding whether to purchase our securities, including the shares
of common stock offered by this prospectus, you should carefully consider the risks and uncertainties described under “Risk Factors”
in our Annual Report on Form 10-K for the fiscal year ended December 31, 2021,
any subsequent Quarterly Report on Form 10-Q and our other filings with the SEC, all of which are incorporated by reference herein.
If any of these risks actually occur, our business, financial condition and results of operations could be materially and adversely affected
and we may not be able to achieve our goals, the value of our securities could decline and you could lose some or all of your investment.
Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations.
If any of these risks occur, our business, results of operations or financial condition and prospects could be harmed. In that event,
the market price of our common stock and the value of the warrants could decline, and you could lose all or part of your investment.
Risks Related to This Offering
Our failure to maintain compliance with
Nasdaq’s continued listing requirements could result in the delisting of our Common Stock.
Our
common stock is currently listed for trading on The Nasdaq Capital Market. We must satisfy the continued listing requirements of Nasdaq,
to maintain the listing of our common stock on The Nasdaq Capital Market.
On
November 26, 2021, we received notice from the Staff of Nasdaq indicating that we were not in compliance with the $2.5 million minimum
stockholders’ equity requirement for continued listing of our common stock on Nasdaq, as set forth in Nasdaq Listing Rule 5550(b)(1).
In that regard, we reported a stockholders’ deficit of $(6,969,988) in our Quarterly Report on Form 10-Q for the period ended
September 30, 2021 (we did not then, and do not now, meet the alternative compliance standards relating to the market value of listed
securities of $35 million or net income from continuing operations of $500,000 in the most recently completed fiscal year or in two of
the last three most recently completed fiscal years).
On
January 10, 2022, we submitted a plan to the Staff to regain compliance with the Minimum Stockholders’ Equity Rule and
on February 15, 2022, the Listing Qualifications Staff notified us that Nasdaq had granted us an extension through May 25, 2022,
to regain compliance (this represented the maximum extension period available to the Staff under the Nasdaq Listing Rules). On May 26,
2022, we received a letter from the Staff indicating that, based upon our continued non-compliance with the Minimum Stockholders’
Equity Rule, the Staff had determined to delist the Company’s securities from Nasdaq unless we timely requested a hearing before
the Panel.
Additionally, on May 16,
2022, we received notice from the Staff indicating that, based upon the closing bid price of our common stock for the prior 30 consecutive
business days, we were not in compliance with the requirement to maintain a minimum bid price of $1.00 per share for continued listing
on Nasdaq, as set forth in Nasdaq Listing Rule 5550(a)(2). We have 180 days from May 16, 2022, or through November 14,
2022, to regain compliance with the Bid Price Rule. We regained compliance with the Bid Price Rule as of September 9, 2022 due to the
Reverse Stock Split. No assurance can be given that we will be able to remain in compliance with the Bid Price Rule.
We
timely requested a hearing before the Panel. Following the hearing, on July 11, 2022 the Panel granted our request for continued
listing of our common stock.
The Exception is subject
to a number of significant conditions that must be satisfied on or before specific deadlines set forth in the Exception, including the
completion of a significant equity financing on terms described in the Exception. The final term of the Exception expires on November 22,
2022.
Pursuant
to the Exception, we are required to provide the Panel with prompt notification of any significant events that occur including any event
that may call into question our ability to satisfy the terms of the Exception. The Panel has reserved the right to reconsider the terms
of the Exception based on any event, condition or circumstance that exists or develops that would, in the Panel’s opinion, make
continued listing of our securities on Nasdaq inadvisable or unwarranted.
There can be no assurance
that we will be able to satisfy the conditions set forth in the Exception on a timely basis, if at all, or that we will ultimately regain
and sustain compliance with all applicable requirements for continued listing on The Nasdaq Capital Market. In the event that we are unable
to comply with the terms of the Exception, our common stock may be delisted from Nasdaq.
If
our common stock were delisted from Nasdaq, trading of our common stock would most likely take place on an over-the-counter market established
for unlisted securities, such as the OTCQB or the Pink Market maintained by OTC Markets Group Inc. An investor would likely find it less
convenient to sell, or to obtain accurate quotations in seeking to buy, our common stock on an over-the-counter market, and many investors
would likely not buy or sell our common stock due to difficulty in accessing over-the-counter markets, policies preventing them from trading
in securities not listed on a national exchange or other reasons. In addition, as a delisted security, our common stock would be subject
to SEC rules as a “penny stock,” which impose additional disclosure requirements on broker-dealers. The regulations relating
to penny stocks, coupled with the typically higher cost per trade to the investor of penny stocks due to factors such as broker commissions
generally representing a higher percentage of the price of a penny stock than of a higher-priced stock, would further limit the ability
of investors to trade in our common stock. In addition, delisting would materially and adversely affect our ability to raise capital on
terms acceptable to us, or at all, and may result in the potential loss of confidence by investors, suppliers, customers and employees
and fewer business development opportunities. For these reasons and others, delisting would adversely affect the liquidity, trading volume
and price of our common stock, causing the value of an investment in us to decrease and having an adverse effect on our business, financial
condition and results of operations, including our ability to attract and retain qualified employees and to raise capital.
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, including for any of the purposes described in the section of this prospectus entitled “Use of
Proceeds”. You will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not
have the opportunity, as part of your investment decision, to assess whether the net proceeds are being used appropriately. The failure
by our management to apply these funds effectively could result in financial losses that could have a material adverse effect on our business,
cause the price of our securities to decline and delay the development of our product candidates. Pending the application of these funds,
we may invest the net proceeds from this offering in a manner that does not produce income or that loses value.
You will experience immediate and substantial dilution in the
net tangible book value of the shares you purchase in this offering and may experience additional dilution in the future.
The combined public offering price per share
of common stock and related warrant, and the combined public offering price of each pre-funded warrant and related warrant, will be
substantially higher than the as adjusted net tangible book value per share of our common stock after giving effect to this
offering. Assuming the sale of shares of our common stock and warrants to purchase up
to shares of common stock at an assumed combined public offering price of
$ per share and related warrant, the closing sale price per share of our common stock on
The Nasdaq Capital Market on , 2022, assuming no sale of any pre-funded warrants in this
offering, no exercise of the warrants being offered in this offering and after deducting the placement agent fees and commissions
and estimated offering expenses payable by us, you will incur immediate dilution of approximately
$ per share. As a result of the dilution to investors purchasing securities in this
offering, investors may receive significantly less than the purchase price paid in this offering, if anything, in the event of the
liquidation of our company. See the section entitled “Dilution” below for a more detailed discussion of the dilution you
will incur if you participate in this offering. To the extent shares are issued under outstanding options and warrants at exercise
prices lower than the public offering price of our common stock in this offering, you will incur further dilution.
There is no public market for the common
warrants or pre-funded warrants being offered by us in this offering.
There is no established public trading market for
the common warrants or the pre-funded warrants, and we do not expect a market to develop. In addition, we do not intend to apply to list
the common warrants or pre-funded warrants on any national securities exchange or other nationally recognized trading system. Without
an active market, the liquidity of the common warrants and pre-funded warrants will be limited.
The common warrants and pre-funded warrants
are speculative in nature.
The common warrants and pre-funded warrants offered
hereby do not confer any rights of share of common stock ownership on their holders, such as voting rights or the right to receive dividends,
but rather merely represent the right to acquire shares of common stock at a fixed price. Specifically, commencing on the date of issuance,
holders of the common warrants may acquire the shares of common stock issuable upon exercise of such warrants at an exercise price of
$ per share of common stock, and holders of the pre-funded warrants may acquire the shares of
common stock issuable upon exercise of such warrants at an exercise price of $0.0001 per share of common stock. Moreover, following this
offering, the market value of the common warrants and pre-funded warrants is uncertain and there can be no assurance that the market value
of the common warrants or pre-funded warrants will equal or exceed their respective public offering prices. There can be no assurance
that the market price of the shares of common stock will ever equal or exceed the exercise price of the common warrants or pre-funded
warrants, and consequently, whether it will ever be profitable for holders of common warrants to exercise the common warrants or for holders
of the pre-funded warrants to exercise the pre-funded warrants.
Holders of the warrants offered hereby will
have no rights as common stockholders with respect to the shares our common stock underlying the warrants until such holders exercise
their warrants and acquire our common stock, except as otherwise provided in the warrants.
Until holders of the common warrants and the pre-funded
warrants acquire shares of our common stock upon exercise thereof, such holders will have no rights with respect to the shares of our
common stock underlying such warrants, except to the extent that holders of such warrants will have certain rights to participate in distributions
or dividends paid on our common stock as set forth in the warrants. Upon exercise of the common warrants and the pre-funded warrants,
the holders will be entitled to exercise the rights of a common stockholder only as to matters for which the record date occurs after
the exercise date.
This is a best efforts offering, no minimum
amount of securities is required to be sold, and we may not raise the amount of capital we believe is required for our business plans,
including our near-term business plans.
The placement agent has agreed to use its reasonable
best efforts to solicit offers to purchase the securities in this offering. The placement agent has no obligation to buy any of the securities
from us or to arrange for the purchase or sale of any specific number or dollar amount of the securities. There is no required minimum
number of securities that must be sold as a condition to completion of this offering. Because there is no minimum offering amount required
as a condition to the closing of this offering, the actual offering amount, placement agent fees and proceeds to us are not presently
determinable and may be substantially less than the maximum amounts set forth above. We may sell fewer than all of the securities offered
hereby, which may significantly reduce the amount of proceeds received by us, and investors in this offering will not receive a refund
in the event that we do not sell an amount of securities sufficient to support our continued operations, including our near-term continued
operations. Thus, we may not raise the amount of capital we believe is required for our operations in the short-term and may need to raise
additional funds, which may not be available or available on terms acceptable to us.
USE OF PROCEEDS
We estimate that the net proceeds from the offering
will be approximately $ million, assuming a combined public offering price per share of common
stock and accompanying common warrant of $ , the closing price per share of our common stock on The Nasdaq
Capital Market on , 2022, after deducting the placement agent fees
and estimated offering expenses payable by us, assuming no sale of any fixed combinations of pre-funded warrants and warrants offered
hereunder. If the common warrants are exercised in full for cash, the estimated net proceeds will increase to $
. However, because this is a best efforts offering and there is no minimum offering amount required as a condition to the closing of this
offering, the actual offering amount, the placement agent’s fees and net proceeds to us are not presently determinable and may be
substantially less than the maximum amounts set forth on the cover page of this prospectus.
We currently intend to use $2.0 million of the
net proceeds from this offering to make the Third Payment owed to the former stockholders of FWB under the FWB Settlement. The remaining
net proceeds from this offering will be used for working capital and general corporate purposes, including the further development of
our product candidates. This expected use of proceeds from this offering represents our intentions based upon our current plans and prevailing
business conditions, which could change in the future as our plans and prevailing business conditions evolve. The amounts and timing of
our use of proceeds will vary depending on a number of factors, including the amount of cash generated or used by our operations. As a
result, we will retain broad discretion in the allocation of the net proceeds of this offering.
DILUTION
If you invest in our securities in this offering,
your interest will be diluted immediately to the extent of the difference between the public offering price paid by the purchasers of
the shares of common stock and warrants sold in this offering and the as-adjusted net tangible book value per shares of common stock after
this offering.
The net tangible book value (deficit) of our common
stock as of June 30, 2022, was approximately $(15.9 million), or approximately $(21.0738) per share of common stock. Net tangible
book value (deficit) per share represents the amount of our total tangible assets less total liabilities divided by the total number of
our shares of common stock outstanding as of June 30, 2022.
After giving effect to the sale by us in this offering
of shares of common stock, pre-funded warrants and warrants
at a price per share and related warrant of $ , and assuming the exercise in full of pre-funded
warrants issued in this offering, our as adjusted net tangible book value as of June 30, 2022 would have been approximately $ million,
or approximately $ per share of common stock. This represents an immediate increase in net tangible
book value of approximately $ per share of common stock to our existing security holders and
an immediate dilution in as adjusted net tangible book value of approximately $ per share of
common stock to purchasers of common stock in this offering, as illustrated by the following table:
| Assumed combined public offering price per share and accompanying common warrant |
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|
$ |
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|
| Historical net tangible book value (deficit) per share as of June 30, 2022 |
|
$ |
(21.0738 |
) |
|
|
|
|
| Increase in net tangible book value per share attributable to this offering |
|
|
|
|
|
|
|
|
| As adjusted net tangible book value per share after giving effect to this offering |
|
|
|
|
|
|
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| Dilution per share to new investors in this offering |
|
|
|
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|
$ |
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|
Each $0.10 increase or decrease in the assumed
combined public offering price of $ per share and accompanying common warrant, which was the
last reported sale price of our common stock on The Nasdaq Capital Market on , 2022, would increase
or decrease the as adjusted net tangible book value per share by $ per share and the dilution
per share to investors participating in this offering by $ per share, assuming that the number
of shares and accompanying common warrants offered by us, as set forth on the cover page of this prospectus, remains the same and
after deducting the placement agent fees and commissions and estimated offering expenses payable by us, and excluding the proceeds, if
any, from the exercise of the common warrants issued in this offering.
We may also increase or decrease the number of
shares we are offering. A million share increase in the number of shares and accompanying common
warrants offered by us, as set forth on the cover page of this prospectus, would increase the as adjusted net tangible book value
per share by approximately $ and decrease the dilution per share to new investors participating
in this offering by approximately $ , based on an assumed combined public offering price of $ per
share and accompanying common warrant, which was the last reported sale price of our common stock on The Nasdaq Capital Market on ,
2022, remaining the same and after deducting estimated offering expenses payable by us, and excluding the proceeds, if any, from the exercise
of the common warrants issued in this offering. A $0.10 share decrease in the number of shares and accompanying common warrants offered
by us, as set forth on the cover page of this prospectus, would decrease the as adjusted net tangible book value per share after
this offering by approximately $ and increase the dilution per share to new investors participating
in this offering by approximately $ , based on an assumed combined public offering price of $ per
share and accompanying common warrant, which was the last reported sale price of our common stock on The Nasdaq Capital Market on ,
2022, remaining the same and after deducting the placement agent fees and commissions and estimated offering expenses payable by us, and
excluding the proceeds, if any, from the exercise of the common warrants issued in this offering.
The table and discussion above are based on 756,660
shares of common stock outstanding as of June 30, 2022, and excludes:
| ● |
6,585 shares of common stock issuable upon exercise of stock options, with a weighted average exercise price of $414.85 per share, under our Amended and Restated 2014 Omnibus Equity Incentive Plan (the “2014 Plan”); |
| ● |
2,095 shares of awarded but unissued restricted stock and restricted stock units under our 2014 Plan; |
| ● |
23,883 shares of common stock issuable upon exercise of stock options, with a weighted average exercise price of $85.27 per share, under our Amended and Restated 2020 Omnibus Equity Incentive Plan (the “2020 Plan”); |
| ● |
46,595 shares of common stock available for future issuance under our 2020 Plan; |
| ● |
416,169 shares of common stock issuable upon exercise of outstanding warrants, with a weighted average exercise price of $104.79 per share; |
| ● |
23,871 shares of common stock issuable upon conversion of Series B Preferred Stock, including in respect of accrued and unpaid dividends of approximately $0.653 through September 9, 2022; |
| ● |
either (x) if the holders of Series B Preferred Stock elect
to exchange into our registered direct and private placement offering from January 2021, up to 24,487 additional shares of common
stock issuable upon conversion of Series C Preferred Stock and up to 24,487 shares of common stock issuable upon exercise of warrants
or (y) if the holders of Series B Preferred Stock elect to exchange into our sales made on November 30, 2021, at a price
of $78.471 per share, pursuant to our ATM Agreement (such price being the lowest price per share sold under the ATM Agreement to
date), up to 70,243 additional shares of common stock, in each case that may be issued pursuant to the Series B Exchange Right in
excess of amounts currently underlying Series B Preferred Stock; |
| ● |
the shares of common stock issuable upon exercise of the warrants issued in this offering; and |
| |
|
| ● |
the shares of common stock issuable upon exercise of the Placement Agent Warrants. |
The information discussed above is illustrative
only and will adjust based on the actual public offering price, the actual number of shares and common warrants that we offer in this
offering, and other terms of this offering determined at pricing. Except as indicated otherwise, the discussion and table above assumes
(i) no sale of pre-funded warrants, which, if sold, would reduce the number of shares of common stock that we are offering on a one-for-one
basis, and (ii) no exercise of common warrants accompanying the shares of common stock sold in this offering
DESCRIPTION OF CAPITAL STOCK
The
following summary of the rights of our capital stock is not complete and is subject to and qualified in its entirety by reference to
our Charter and Bylaws, copies of which are filed as exhibits to our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 31, 2022, as amended by Amendment No. 1 to the Annual Report on Form 10-K/A, filed with the SEC on May 10, 2022, and the Certificate of Designations and forms of securities, copies of which
are filed as exhibits to the registration statement of which this prospectus forms a part , which are incorporated by reference herein.
General
Our authorized capital stock consists of:
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● |
50,000,000 shares of common stock, par value $0.0001
per share; and |
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10,000,000 shares of preferred stock, par value $0.0001. |
As of September 9,
2022, there were 50,000,000 shares of Common Stock authorized, and 10,000,000 shares of preferred stock authorized, of which a series
of 5,194.81 shares of Series B Convertible Preferred Stock (the “Series B Preferred Stock”), a series of 75,000
shares of Series C 9.00% Convertible Junior Preferred Stock (the “Series C Preferred Stock”), a series of 150 shares
of Series D Preferred Stock and a series of 150 shares of Series E Preferred Stock have been designated.
As of September 9, 2022, there were 2,307,008
shares of Common Stock issued and outstanding, approximately 631.34 shares of Series B Preferred Stock issued and outstanding, 0
shares of Series C Preferred Stock issued and outstanding. 0 shares of Series D Preferred Stock issued and outstanding and 0
shares of Series E Preferred Stock issued and outstanding.
The additional shares of
our authorized capital stock available for issuance may be issued at times and under circumstances so as to have a dilutive effect on
earnings per share and on the equity ownership of the holders of our common stock. The ability of our board of directors to issue additional
shares of stock could enhance the board’s ability to negotiate on behalf of the stockholders in a takeover situation but could
also be used by the board to make a change of control more difficult, thereby denying stockholders the potential to sell their shares
at a premium and entrenching current management. The following description is a summary of the material provisions of our capital stock.
You should refer to our certificate of incorporation, as amended (the “Charter”), and our bylaws, as amended and restated
(the “Bylaws”), both of which are on file with the SEC as exhibits to previous SEC filings, for additional information. The
summary below is qualified by provisions of applicable law.
Common Stock
Holders of our common stock
are entitled to one vote for each share held of record on all matters on which the holders are entitled to vote (or consent pursuant
to written consent). Directors are elected by a plurality of the votes present in person or represented by proxy and entitled to vote.
Our Charter and Bylaws do not provide for cumulative voting rights.
Holders of our common stock
are entitled to receive, ratably, dividends only if, when and as declared by our board of directors out of funds legally available therefor
and after provision is made for each class of capital stock having preference over the common stock.
In the event of our liquidation,
dissolution or winding-up, the holders of common stock are entitled to share, ratably, in all assets remaining available for distribution
after payment of all liabilities and after provision is made for each class of capital stock having preference over the common stock.
Holders of our common stock
have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable to the common
stock. The rights, preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights
of the holders of shares of any series of our preferred stock that we may designate and issue in the future.
Transfer Agent
The transfer agent and registrar
for our common stock is Colonial Stock Transfer Co., Inc., 7840 S. 700 E., Sandy, Utah 84070, Tel: (801) 355-5740.
Preferred Stock
We currently have up to 10,000,000 shares of preferred
stock, par value $0.0001 per share, authorized and available for issuance in one or more series. Our board of directors is authorized
to 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 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. As of September 9, 2022, approximately 5,194.81 shares were designated as Series B Preferred Stock, of which approximately
631.34 shares were issued and outstanding, 75,000 shares were designated as Series C Preferred Stock, of which none were issued and
outstanding, 150 shares were designated as Series D Preferred Stock, of which none were issued and outstanding and 150 shares were
designated as Series E Preferred Stock, of which none were issued and outstanding.
Transfer Agent and Registrar for Preferred Stock
The transfer agent and registrar
for any series or class of preferred stock will be set forth in each applicable prospectus supplement.
Anti-Takeover Effects of Certain Provisions of Delaware Law and
of Our Charter and Bylaws
Certain provisions of Delaware
law, our Charter and Bylaws discussed below may have the effect of making more difficult or discouraging a tender offer, proxy contest
or other takeover attempt. These provisions are expected to encourage persons seeking to acquire control of our company to first negotiate
with our Board of Directors. We believe that the benefits of increasing our ability to negotiate with the proponent of an unfriendly
or unsolicited proposal to acquire or restructure our company outweigh the disadvantages of discouraging these proposals because negotiation
of these proposals could result in an improvement of their terms.
Delaware Anti-Takeover Law.
We are subject to Section 203
of the Delaware General Corporation Law (the “DGCL”). Section 203 generally prohibits a public Delaware corporation
from engaging in a “business combination” with an “interested stockholder” for a period of three years after
the date of the transaction in which the person became an interested stockholder, unless:
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prior to the date of the
transaction, the Board of Directors of the corporation approved either the business combination or the transaction which resulted
in the stockholder becoming an interested stockholder; |
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upon consummation 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 commenced, excluding specified shares; or |
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● |
at or subsequent to the
date of the transaction, the business combination is approved by the Board of Directors and authorized at an annual or special meeting
of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is
not owned by the interested stockholder. |
Section 203 defines a “business combination”
to include:
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any merger or consolidation involving the corporation
and the interested stockholder; |
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any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of 10% or more of the assets of the corporation to or with the interested stockholder; |
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subject to 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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subject to exceptions,
any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or
series of the corporation beneficially owned by the interested stockholder; or |
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the receipt by the interested
stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation. |
In general, Section 203 defines an “interested
stockholder” as any person that is:
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the owner of 15% or more of the outstanding voting
stock of the corporation; |
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an affiliate or associate
of the corporation who was the owner of 15% or more of the outstanding voting stock of the corporation at any time within three years
immediately prior to the relevant date; or |
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the affiliates and associates of the above. |
Under specific circumstances,
Section 203 makes it more difficult for an “interested stockholder” to effect various business combinations with a corporation
for a three-year period, although the stockholders may, by adopting an amendment to the corporation’s certificate of incorporation
or bylaws, elect not to be governed by this section, effective 12 months after adoption.
Our Charter and Bylaws do
not exclude us from the restrictions of Section 203. We anticipate that the provisions of Section 203 might encourage companies
interested in acquiring us to negotiate in advance with our Board of Directors since the stockholder approval requirement would be avoided
if a majority of the directors then in office approve either the business combination or the transaction that resulted in the stockholder
becoming an interested stockholder.
Charter and Bylaws.
Provisions of our Charter
and Bylaws may delay or discourage transactions involving an actual or potential change of control or change in our management, including
transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our stockholders might otherwise
deem to be in their best interests. Therefore, these provisions could adversely affect the price of our common stock.
Stockholder Action by Written Consent
Our Bylaws provide that
our stockholders may take action by written consent or electronic transmission, setting forth the action so taken, signed or e-mailed
by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such
action at a meeting for such purpose.
Potential Effects of Authorized but Unissued Stock
We have shares of common
stock and preferred stock available for future issuance without stockholder approval. We may utilize these additional shares for a variety
of corporate purposes, including future public offerings to raise additional capital, to facilitate corporate acquisitions or payment
as a dividend on the capital stock.
The existence of
unissued and unreserved common stock and preferred stock may enable our board of directors to issue shares to persons friendly to
current management or to issue preferred stock with terms that could render more difficult or discourage a third-party attempt to
obtain control of us by means of a merger, tender offer, proxy contest or otherwise, thereby protecting the continuity of our
management. In addition, the board of directors has the discretion to determine designations, rights, preferences, privileges and
restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences of each
series of preferred stock, all to the fullest extent permissible under the DGCL and subject to any limitations set forth in our
Charter. The purpose of authorizing the board of directors to issue preferred stock and to determine the rights and preferences
applicable to such preferred stock is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of
preferred stock, while providing desirable flexibility in connection with possible financings, acquisitions 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
acquiring, a majority of our outstanding voting stock.
DESCRIPTION OF SECURITIES WE ARE OFFERING
We are offering shares
of our common stock and warrants to purchase up to shares of common stock. We are also offering pre-funded
warrants to those purchasers whose purchase of shares of common stock in this offering would result in the purchaser, together with its
affiliates and certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding
shares of common stock following the consummation of this offering in lieu of the shares of common stocks that would result in such excess
ownership. Each pre-funded warrant will be exercisable for one share of common stock. No warrant for fractional shares of common stock
will be issued, rather warrants will be issued only for whole shares of common stock. We are also registering the shares of common stock
issuable from time to time upon exercise of the pre-funded warrants and warrants offered hereby.
Common Stock
The material terms and provisions of our common
stock are described under the caption “Description of Capital Stock” in this prospectus and are incorporated herein by reference.
Warrants
The following is a summary of certain terms and
provisions of the warrants that are being offered hereby is not complete and is subject to, and qualified in its entirety by, the provisions
of the warrant, the form of which will be filed as an exhibit to the registration statement of which this prospectus forms a part. Prospective
investors should carefully review the terms and provisions of the form of warrant for a complete description of the terms and conditions
of the warrants.
Duration and Exercise Price
Each warrant offered hereby will have an exercise
price equal to $ . The warrants will be immediately exercisable and may be exercised until . The exercise
price and number of shares of common stock issuable upon exercise is subject to appropriate adjustment in the event of stock dividends,
stock splits, reorganizations or similar events affecting our common stock and the exercise price. The warrants will be issued separately
from the common stock or pre-funded warrants, respectively, and may be transferred separately immediately thereafter. The warrants will
be issued in certificated form only.
Exercisability
The warrants will be exercisable, at the option
of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full for the number
of shares of our common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). A holder (together
with its affiliates) may not exercise any portion of such holder’s warrants to the extent that the holder would own more than 4.99%
of the outstanding common stock immediately after exercise, except that upon at least 61 days’ prior notice from the holder to us,
the holder may increase the amount of ownership of outstanding stock after exercising the holder’s warrants up to 9.99% of the number
of shares of our common stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined
in accordance with the terms of the warrants. On the termination date, the warrant shall be automatically exercised via cashless exercise.
Cashless Exercise
If, at the time a holder exercises its warrants,
a registration statement registering the issuance or resale of the shares of common stock underlying the warrants under the Securities
Act is not then effective or available for the issuance of such shares, then in lieu of making the cash payment otherwise contemplated
to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon such exercise
(either in whole or in part) the net number of shares of common stock determined according to a formula set forth in the warrant.
Fundamental Transactions
In the event of any fundamental transaction, as
described in the warrants and generally including any merger with or into another entity, sale of all or substantially all of our assets,
tender offer or exchange offer, or reclassification of our common stock, then upon any subsequent exercise of a warrant, the holder will
have the right to receive as alternative consideration, for each share of our common stock that would have been issuable upon such exercise
immediately prior to the occurrence of such fundamental transaction, the number of shares of common stock of the successor or acquiring
corporation or of our company, if it is the surviving corporation, and any additional consideration receivable upon or as a result of
such transaction by a holder of the number of shares of our common stock for which the warrant is exercisable immediately prior to such
event. Notwithstanding the foregoing, in the event of a fundamental transaction, the holders of the warrants have the right to require
us or a successor entity to redeem the warrants for cash in the amount of the Black-Scholes Value (as defined in each warrant) of the
unexercised portion of the warrants concurrently with or within 30 days following the consummation of a fundamental transaction.
However, in the event of a fundamental transaction
which is not in our control, including a fundamental transaction not approved by our board of directors, the holders of the warrants
will only be entitled to receive from us or our successor entity, as of the date of consummation of such fundamental transaction the
same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of the warrant
that is being offered and paid to the holders of our common stock in connection with the fundamental transaction, whether that consideration
is in the form of cash, stock or any combination of cash and stock, or whether the holders of our common stock are given the choice to
receive alternative forms of consideration in connection with the fundamental transaction.
Transferability
Subject to applicable laws, a warrant may be transferred
at the option of the holder upon surrender of the warrant to us together with the appropriate instruments of transfer.
Fractional Shares
No fractional shares of common stock will be issued
upon the exercise of the warrants. Rather, the number of shares of common stock to be issued will, at our election, either be rounded
up to the next whole share or we will pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the exercise price.
Trading Market
There is no established trading market for the
warrants, and we do not expect an active trading market to develop. We do not intend to apply to list the warrants on any securities
exchange or other trading market. Without a trading market, the liquidity of the warrants will be extremely limited.
Right as a Stockholder
Except as otherwise provided in the warrants or
by virtue of the holder’s ownership of shares of our common stock, such holder of warrants does not have the rights or privileges
of a holder of our common stock, including any voting rights, until such holder exercises such holder’s warrants. The warrants will
provide that the holders of the warrants have the right to participate in distributions or dividends paid on our shares of common stock.
Waivers and Amendments
The warrant may be modified or amended or the provisions
of the warrant waived with our and the holder’s written consent.
Pre-funded Warrants
The following summary of certain terms and provisions
of the pre-funded warrants that are being offered hereby is not complete and is subject to, and qualified in its entirety by, the provisions
of the pre-funded warrant, the form of which will be filed as an exhibit to the registration statement of which this prospectus forms
a part. Prospective investors should carefully review the terms and provisions of the form of pre-funded warrant for a complete description
of the terms and conditions of the pre-funded warrants.
Duration and Exercise Price
Each pre-funded warrant offered hereby will have
an initial exercise price per share of common stock equal to $0.0001. The pre-funded warrants will be immediately exercisable and will
expire when exercised in full. The exercise price and number of shares of common stock issuable upon exercise is subject to appropriate
adjustment in the event of share dividends, share splits, reorganizations or similar events affecting our shares of common stock and
the exercise price. Subject to the rules and regulations of the applicable trading market, we may at any time during the term of
the pre-funded warrant, subject to the prior written consent of the holders, reduce the then current exercise price to any amount and
for any period of time deemed appropriate by our board of directors.
Exercisability
The pre-funded warrants will be exercisable, at
the option of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full for
the number of shares of common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). A holder
(together with its affiliates) may not exercise any portion of the pre-funded warrant to the extent that the holder would own more than
4.99% of the outstanding shares of common stock immediately after exercise, except that upon at least 61 days’ prior notice from
the holder to us, the holder may increase the amount of beneficial ownership of outstanding shares after exercising the holder’s
pre-funded warrants up to 9.99% of the number of our shares of common stock outstanding immediately after giving effect to the exercise,
as such percentage ownership is determined in accordance with the terms of the pre-funded warrants. Purchasers of pre-funded warrants
in this offering may also elect prior to the issuance of the pre-funded warrants to have the initial exercise limitation set at 9.99%
of our outstanding shares of common stock.
Cashless Exercise
In lieu of making the cash payment otherwise contemplated
to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon such exercise
(either in whole or in part) the net number of shares of common stock determined according to a formula set forth in the pre-funded warrants.
Fractional Shares
No fractional shares of common stock will be issued
upon the exercise of the pre-funded warrants. Rather, at the Company’s election, the number of shares of common stock to be issued
will be rounded up to the next whole share or the Company will pay a cash adjustment in an amount equal to such fraction multiplied by
the exercise price.
Transferability
Subject to applicable laws, a pre-funded warrant
may be transferred at the option of the holder upon surrender of the pre-funded warrants to us together with the appropriate instruments
of transfer.
Trading Market
There is no trading market available for the pre-funded
warrants on any securities exchange or nationally recognized trading system, and we do not expect a trading market to develop. We do
not intend to list the pre-funded warrants on any securities exchange or nationally recognized trading market. Without a trading market,
the liquidity of the pre-funded warrants will be extremely limited. The shares of common stock issuable upon exercise of the pre-funded
warrants are currently traded on The Nasdaq Capital Market.
Right as a Shareholder
Except as otherwise provided in the pre-funded
warrants or by virtue of such holder’s ownership of shares of common stock, the holders of the pre-funded warrants do not have the
rights or privileges of holders of our shares of common stock, including any voting rights, until they exercise their pre-funded warrants.
The pre-funded warrants will provide that the holders of the pre-funded warrants have the right to participate in distributions or dividends
paid on our shares of common stock.
Fundamental Transaction
In the event of a fundamental transaction, as
described in the pre-funded warrants and generally including any reorganization, recapitalization or reclassification of our shares of
common stock, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger
with or into another person, the acquisition of more than 50% of our outstanding shares of common stock, or any person or group becoming
the beneficial owner of 50% of the voting power represented by our outstanding shares of common stock, the holders of the pre-funded
warrants will be entitled to receive upon exercise of the pre-funded warrants the kind and amount of securities, cash or other property
that the holders would have received had they exercised the pre-funded warrants immediately prior to such fundamental transaction on
a net exercise basis
PLAN OF DISTRIBUTION
We engaged H.C. Wainwright & Co., LLC
(“H.C. Wainwright” or the “placement agent”) to act as our exclusive placement agent to solicit offers to purchase
the securities offered by this prospectus on a reasonable best efforts basis. H.C. Wainwright is not purchasing or selling any securities,
nor are they required to arrange for the purchase and sale of any specific number or dollar amount of securities, other than to use their
“reasonable best efforts” to arrange for the sale of the securities by us. Therefore, we may not sell the entire amount of
securities being offered. There is no minimum amount of proceeds that is a condition to closing of this offering. The placement agent
does not guarantee that it will be able to raise new capital in this offering. The terms of this offering were subject to market conditions
and negotiations between us and prospective investors in consultation with the placement agent. The placement agent will have no authority
to bind us. We will enter into a securities purchase agreement directly with the institutional investors, at the investor’s option,
who purchase our securities in this offering. Investors who do not enter into a securities purchase agreement shall rely solely on this
prospectus in connection with the purchase of our securities in this offering. H.C. Wainwright may engage one or more sub-placement agents
or selected dealers to assist with the offering.
Fees and Expenses
The following table shows the per share and accompanying
warrant, and per pre-funded and accompanying warrant, and total placement agent fees we will pay in connection with the sale of the securities
in this offering.
| Per
share and common warrant placement agent cash fees |
$ |
|
| Per
pre-funded warrant and common warrant placement agent cash fees |
$ |
|
| Total
|
$ |
|
We have agreed to pay the placement agent a total
cash fee equal to 7.0% of the aggregate gross proceeds of this offering. We will also pay the placement agent a non-accountable expense
allowance of $25,000 and will reimburse the placement agent’s legal fees and expenses in an amount up to $150,000. We estimate the
total offering expenses of this offering that will be payable by us, excluding the placement agent fees and expenses, will be approximately
$ million. After deducting the placement agent fees and our estimated offering expenses, we expect
the net proceeds from this offering to be approximately $ million.
Placement Agent Warrants
Additionally, we will issue to the placement agent
(or its designees) Placement Agent Warrants to purchase that number of shares of common stock equal to 6.0% of the aggregate number of
shares of common stock and pre-funded warrants placed in this offering. The Placement Agent Warrants shall have a term of five years from
the commencement of sales in this offering and an exercise price equal to $ (125% of the combined public offering price per share of common
stock and warrant). The Placement Agent Warrants are registered on the registration statement of which this prospectus is a part. The
form of the Placement Agent Warrant will be included as an exhibit to the registration statement of which this prospectus forms a part.
Participation Right
In addition, we have granted participation right to the placement
agent pursuant to which it has the right to act as the joint book-running manager, joint-lead placement agent or financial advisor, if
the Company or its subsidiaries raise capital through a public or private offering of equity or equity-linked securities from January 1,
2023 until June 30, 2023.
Tail
We have also agreed to pay the placement agent
a tail fee equal to the cash compensation in this offering, if any investor, who was brought over-the-wall or introduced to us by the
placement agent during the term of its engagement, provides us with capital in any public or private offering or other financing or capital
raising transaction during the twelve-month period following expiration or termination of our engagement of the placement agent.
Other Relationships
The placement agent acted as the placement
agent in connection with the private placement consummated in July 2022, and as sales agent in connection with sales made under
the ATM Agreement, dated May 26, 2021, for which it has received customary fees and expenses. The placement agent also acted as
placement agent for our February 2022 registered direct offering and received cash compensation and reimbursement of certain
expenses of approximately $848,000 and warrants to purchase up to 12,996 shares of common stock at an exercise price of $51.90 per
share. The placement agent may, from time to time, engage in transactions with or perform services for us in the ordinary course of
its business and may continue to receive compensation from us for such services.
Determination of Offering Price
The combined public offering price per share and common warrant and
the combined public offering price per pre-funded warrant and common warrant we are offering and the exercise prices and other terms
of the warrants were negotiated between us and the investors, in consultation with the placement agent based on the trading of our common
stock prior to this offering, among other things. Other factors considered in determining the public offering prices of the securities
we are offering and the exercise prices and other terms of the warrants include the history and prospects of our company, the stage of
development of our business, our business plans for the future and the extent to which they have been implemented, an assessment of our
management, general conditions of the securities markets at the time of the offering and such other factors as were deemed relevant.
Lock-up Agreements
We and each of our officers and directors have agreed with the placement
agent to be subject to a lock-up period of [•] days following the date of this prospectus. This means that, during the applicable
lock-up period, we may not offer for sale, contract to sell, or sell any shares of our common stock or any securities convertible into,
or exercisable or exchangeable for, shares of our common stock subject to certain customary exception such as issuing stock options to
directors, officers, employees and consultants under our existing plans. The placement agent may, in its sole discretion and without
notice, waive the terms of any of these lock-up agreements. In addition, we have agreed to not issue any shares of common stock or securities
exercisable or convertible into shares of common stock for a period of [•] days following the closing date of this offering, subject
to certain exceptions, and to not issue any securities that are subject to a price reset based on trading prices of our common stock
or upon a specified or contingent event in the future, or enter into an agreement to issue securities at a future determined price, until
[•].
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Colonial Stock
Transfer Company, Inc.
The Nasdaq Capital Market Listing
Our common stock is currently listed on The Nasdaq Capital Market
under the symbol “FWBI.” On , 2022, the reported closing
price per share of our common stock was $ .
Indemnification
We have agreed to indemnify the placement agent against certain liabilities,
including certain liabilities arising under the Securities Act, or to contribute to payments that the placement agent may be required
to make for these liabilities.
Regulation M
The placement agent may be deemed to be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act and any fees received by it and any profit realized on the sale of the securities
by it while acting as principal might be deemed to be underwriting discounts or commissions under the Securities Act. The placement agent
will be required to comply with the requirements of the Securities Act and the Exchange Act of 1934, as amended (the “Exchange
Act”), including, without limitation, Rule 10b-5 and Regulation M under the Exchange Act. These rules and regulations
may limit the timing of purchases and sales of our securities by the placement agent. Under these rules and regulations, the placement
agent may not (i) engage in any stabilization activity in connection with our securities; and (ii) bid for or purchase any
of our securities or attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act,
until they have completed their participation in the distribution.
Electronic Distribution
A prospectus in electronic format may be made available on a website
maintained by the placement agent and the placement agent may distribute prospectuses electronically. Other than the prospectus in electronic
format, the information on these websites is not part of this prospectus or the registration statement of which this prospectus forms
a part, has not been approved and/or endorsed by us or the placement agent and should not be relied upon by investors.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed with the SEC are
incorporated by reference into this prospectus:
| |
● |
our Quarterly Report on Form 10-Q
for the period ended March 31, 2022 filed on May 23,
2022 and for the period ended June 30, 2022, filed on August 15,
2022; |
| |
|
|
| |
● |
our Current Report on Form 8-K,
filed on January 14, 2022, February 7, 2022, February 17, 2022, March 1, 2022, April 6, 2022, April 29, 2022, May 3, 2022, May 5, 2022, May 13, 2022, May 16, 2022, May 27, 2022, May 27, 2022, June 17, 2022, July 7, 2022, July 7, 2022, July 15, 2022, July 18, 2022, July 29, 2022 and August 25, 2022 (other
than any portions thereof deemed furnished and not filed); |
| |
|
|
| |
● |
the description of our common
stock which is registered under Section 12 of the Exchange Act, in our registration statement on Form 8-A,
filed on August 8, 2016, as supplemented and updated by the description of our capital stock set forth in Exhibit 4.19
of our Annual Report on Form 10-K for the year ended December 31, 2021, filed on March 31, 2022, including any amendment
or reports filed for the purposes of updating this description. |
We also incorporate by reference
all documents we file pursuant to Section 13(a), 13(c), 14 or 15 of the Exchange Act (other than any portions of filings that are
furnished rather than filed pursuant to Items 2.02 and 7.01 of a Current Report on Form 8-K) after the date of the initial registration
statement of which this prospectus is a part and prior to effectiveness of such registration statement. All documents we file in the
future pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to the
termination of the offering are also incorporated by reference and are an important part of this prospectus.
Any statement contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes
of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also
is or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part
of a registration statement we filed with the SEC. This prospectus does not contain all of the information set forth in the
registration statement and the exhibits to the registration statement. For further information with respect to us and the securities
we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of
the registration statement. You should rely only on the information contained in this prospectus or incorporated by reference into
this prospectus. We have not authorized anyone else to provide you with different information. We are not making an offer of these
securities in any jurisdiction where the offer is not permitted. You should assume that the information contained in this
prospectus, or any document incorporated by reference in this prospectus, is accurate only as of the date of those respective
documents, regardless of the time of delivery of this prospectus or any sale of our securities.
We are subject to the informational
requirements of the Exchange Act and in accordance therewith we file annual, quarterly, and other reports, proxy statements and other
information with the Commission under the Exchange Act. Such reports, proxy statements and other information, including the Registration
Statement, and exhibits and schedules thereto, are available to the public through the Commission’s website at www.sec.gov.
We make available free of
charge on or through our website our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K
and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended, as soon as reasonably practicable after we electronically file such material with or otherwise furnish it to the Commission.
The registration statement and the documents referred to under “Incorporation of Certain Information by Reference”
are also available on our website, www. firstwavebio.com/investors/regulatory-filings.
We have not incorporated
by reference into this prospectus the information on our website, and you should not consider it to be a part of this prospectus.
LEGAL MATTERS
The validity of the securities offered hereby
will be passed upon for us by Lowenstein Sandler LLP, New York, New York. The placement agent is being represented by Haynes and Boone,
LLP, New York, New York, in connection with this offering.
EXPERTS
The consolidated audited
financial statements incorporated by reference in this prospectus and elsewhere in the registration statement have been incorporated by
reference in reliance upon the report of Mazars USA LLP, independent registered public accounting firm, upon the authority of said firm
as experts in accounting and auditing. The 2021 and 2020 audited annual consolidated financial statements of First Wave BioPharma, Inc.
(formerly known as AzurRx BioPharma, Inc.), as of and for the years ended December 31, 2021 and 2020, have been audited by Mazars
USA LLP, independent registered public accounting firm. The audit report dated March 31, 2022 for the 2021 audited annual consolidated
financial statements includes an explanatory paragraph which states that certain circumstances raise substantial doubt about our ability
to continue as a going concern.
Up to $12,000,000
Up to Shares of Common Stock
Pre-Funded Warrants to Purchase up to Shares
of Common Stock
Common Warrants to Purchase up to Shares of
Common Stock
Shares of Common Stock underlying the Pre-Funded
Warrants and Common Warrants
PRELIMINARY PROSPECTUS
H.C. Wainwright & Co.
The date of this prospectus is , 2022.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 13. |
Other Expenses of Issuance and Distribution. |
The following table indicates
the expenses to be incurred in connection with the offering described in this registration statement, other than underwriting discounts
and commissions, all of which will be paid by us. All amounts are estimated except the Securities and Exchange Commission registration
fee.
| |
|
Amount |
|
| SEC Registration Fee |
$ |
2,300 |
|
| FINRA Filing Fee |
|
4,300 |
|
| Legal Fees and Expenses |
|
300,000 |
|
| Accounting Fees and Expenses |
|
25,000 |
|
| Transfer Agent and Registrar fees and expenses |
|
5,000 |
|
| Miscellaneous Expenses |
|
5,000 |
|
| Total expenses |
$ |
341,600 |
|
| Item 14. |
Indemnification of Directors and Officers. |
Amended and Restated Bylaws
Pursuant to our bylaws, our
directors and officers will be indemnified to the fullest extent allowed under the laws of the State of Delaware for their actions in
their capacity as our directors and officers.
We must indemnify any person
made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative
(“Proceeding”) by reason of the fact that he is or was a director, against judgments, penalties, fines, settlements and reasonable
expenses (including attorney’s fees) (“Expenses”) actually and reasonably incurred by him in connection with such Proceeding
if: (a) he conducted himself in good faith, and: (i) in the case of conduct in his own official capacity with us, he reasonably
believed his conduct to be in our best interests, or (ii) in all other cases, he reasonably believes his conduct to be at least not
opposed to our best interests; and (b) in the case of any criminal Proceeding, he had no reasonable cause to believe his conduct
was unlawful.
We must indemnify any person
made a party to any Proceeding by or in the right of us, by reason of the fact that he is or was a director, against reasonable expenses
actually incurred by him in connection with such proceeding if he conducted himself in good faith, and: (a) in the case of conduct
in his official capacity with us, he reasonably believed his conduct to be in our best interests; or (b) in all other cases, he reasonably
believed his conduct to be at least not opposed to our best interests; provided that no such indemnification may be made in respect of
any proceeding in which such person shall have been adjudged to be liable to us.
No indemnification will be
made by unless authorized in the specific case after a determination that indemnification of the director is permissible in the circumstances
because he has met the applicable standard of conduct.
Reasonable expenses incurred
by a director who is party to a proceeding may be paid or reimbursed by us in advance of the final disposition of such Proceeding in certain
cases.
We have the power to purchase
and maintain insurance on behalf of any person who is or was our director, officer, employee, or agent or is or was serving at our request
as an officer, employee or agent of another corporation, partnership, joint venture, trust, other enterprise, or employee benefit plan
against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not
we would have the power to indemnify him against such liability under the provisions of the amended and restated bylaws.
Delaware Law
We are incorporated under
the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify
any persons who are, or are threatened to be made, parties to any threatened, pending or completed 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 an officer, director, employee or agent of such corporation, or is or was serving at the request of such person as
an officer, director, 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 that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed
to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that
his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any
threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director,
officer, 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) actually and reasonably
incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification
is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director
is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against
the expenses which such officer or director has actually and reasonably incurred. Our amended and restated certificate of incorporation
and amended and restated bylaws provide for the indemnification of our directors and officers to the fullest extent permitted under the
Delaware General Corporation Law.
Section 102(b)(7) of
the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director,
except for liability for any:
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● |
transaction from which the director derives an improper personal benefit; |
| |
|
|
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● |
act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
| |
|
|
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● |
unlawful payment of dividends or redemption of shares; or |
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● |
breach of a director’s duty of loyalty to the corporation or its stockholders. |
Our amended and restated
certificate of incorporation and amended and restated bylaws include such a provision. Expenses incurred by any officer or director in
defending any such action, suit or proceeding in advance of its final disposition shall be paid by us upon delivery to us of an undertaking,
by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified by us.
Section 174 of the
Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an unlawful
payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either
absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such
actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or
immediately after such absent director receives notice of the unlawful acts.
Indemnification Agreements
As permitted by the Delaware
General Corporation Law, we have entered, and intend to continue to enter, into separate indemnification agreements with each of our directors
and executive officers, that require us to indemnify such persons against any and all expenses (including attorneys’ fees), witness
fees, damages, judgments, fines, settlements and other amounts incurred (including expenses of a derivative action) in connection with
any action, suit or proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that
such person is or was a director, an officer or an employee of us or any of our affiliated enterprises, provided that such person acted
in good faith and in a manner such person reasonably believed to be in or not opposed to our best interests and, with respect to any criminal
proceeding, had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification thereunder.
At present, there is no pending
litigation or proceeding involving any of our directors or executive officers as to which indemnification is required or permitted, and
we are not aware of any threatened litigation or preceding that may result in a claim for indemnification.
We have an insurance policy
covering our officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to our directors, officers or controlling persons, we have been advised
that in the opinion of the SEC this indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
| Item 15. |
Recent Sales of Unregistered Securities. |
On November 13, 2019, we issued to an
investor 16,238 shares of Common Stock as commitment shares in consideration for entering into an equity line agreement with us.
Between December 20, 2019 and January 9,
2020, we sold senior convertible promissory notes to investors in the aggregate principal amount of $2,942,700 and warrants to purchase
an aggregate of up to 50,562 shares of Common Stock. We issued to the placement agent in the offering warrants to purchase an aggregate
of 16,607 shares of Common Stock. The sale of the warrants was exempt from registration under the Securities Act of 1933, as amended,
in reliance upon Section 4(a)(2) (or Regulation D promulgated thereunder).
During
the three months ended March 31, 2020, the Company issued an aggregate of 337 shares of its Common Stock to consultants with a grant
date fair value of $87,105 for services provided, that was recorded as part of G&A expense. Such issuance was exempt from registration
under 4(a)(2) of the Securities Act.
During
the three months ended March 31, 2020, the Company issued its outside Board members an aggregate of 353 shares of Common Stock for
the settlement of accounts payable in the aggregate amount of $131,137. The aggregate effective settlement price was $372 per share, and
each individual stock issuance was based on the closing stock price of the Common Stock on the initial date the payable was accrued.
Such issuance was exempt from registration under 4(a)(2) of the Securities Act.
During
the three months ended March 31, 2019, the Company issued 90 shares of its common stock to a consultant as payment of $60,000 of accounts
payable. Such issuance was exempt from registration under 4(a)(2) of the Securities Act.
During
the three months ended March 31, 2019, the Company issued an aggregate of 100 shares of its Common Stock to outside members of its Board
as payment of Board fees with an aggregate grant date fair value of $296,285, that was recorded as part of G&A expense. Such
issuance was exempt from registration under 4(a)(2) of the Securities Act.
On July 16, 2020, we issued an aggregate of
2,912.583124 shares of Series B Convertible Preferred Stock, at a price of $7,700.00 per share, initially convertible into an aggregate
of 29,125,833 shares of our Common Stock at $0.77 per share, together with Series B Warrants to purchase an aggregate of 485,431
shares of Common Stock at an exercise price of $0.85 per share. An aggregate of 1,975.578900 shares of Series B Preferred Stock initially
convertible into 19,755,795 shares of Common Stock and related 245,993 Series B Warrants were issued for cash consideration, resulting
in aggregate gross proceeds to us of approximately $15.2 million. In addition, the balance of an aggregate of 937.004221 shares of Series B
Preferred Stock initially convertible into 9,370,039 shares of Common Stock and related Series B Warrants to purchase 156,168 shares
of Common Stock was issued to certain investors in exchange for consideration consisting of approximately $6.9 million aggregate outstanding
principal amount, together with accrued and unpaid interest thereon of approximately $0.3 million, of certain Senior Convertible Promissory
Notes issued between December 20, 2019 and January 9, 2020. As additional consideration to the Exchange Investors, we also issued
certain additional warrants to purchase an aggregate of 59,099 shares of Common Stock at an exercise price of $25.50 per share. We issued
to the placement agent in the offerings warrants to purchase up to 7.0% of the aggregate number of shares of Common Stock underlying the
Series B Preferred Stock sold for cash consideration in the Private Placement, or 45,915 shares. The issuance of these securities
was made pursuant to Section 4(a)(2) of the Securities Act, and the rules promulgated thereunder, to accredited investors.
During the period from April 6, 2020 through
May 22, 2020, we sold an aggregate of 44,839 shares of Common Stock pursuant to an equity line agreement, from which we derived approximately
$869,000 in net proceeds. The sales of these shares under the equity line agreement was exempt from registration under the Securities
Act of 1933, as amended, in reliance upon Section 4(a)(2) (or Regulation D promulgated thereunder).
On January 5, 2021, in a private placement
offering we sold to an investor 5,333.3333 shares of Series C Preferred Stock, which shares are convertible into an aggregate of
5,333,334 shares of Common Stock, together with warrants to purchase up to an aggregate of 355,555 shares of Common Stock, with an exercise
price of $24.00 per share and an expiration term of five and one-half years from the date of issuance. The aggregate gross proceeds from
the offering, excluding the net proceeds, if any, from the exercise of the Private Placement Warrants will be approximately $8.0 million.
The issuance of these securities was made pursuant to Section 4(a)(2) of the Securities Act, and the rules promulgated
thereunder, to accredited investors.
On January 8, 2021, in
connection with entering into a license agreement with a third party, we entered into a securities purchase agreement where we issued
3,290.1960 shares of Series C Preferred Stock, initially convertible into an aggregate of 3,290,196 shares of Common Stock, at an
initial stated value of $750.00 per share and a conversion price of $0.75 per share. The Series C Preferred Stock issued, together
with any Common Stock issuable upon conversion, were issued without registration under the Securities Act in reliance on the exemptions
provided by Section 4(a)(2) of the Securities Act as transactions not involving a public offering.
On September 13, 2021, in connection with
the merger with First Wave Bio, Inc., we issued the former stockholders of First Wave Bio, Inc. approximately 20,800 shares
of common stock. The common stock was issued without registration under the Securities Act in reliance on exemptions provided by Section 4(a)(2) of
the Securities Act as transactions not involving a public offering.
During the three months ended March 31, 2022, we
issued an aggregate of 3,001 shares of common stock to consultants with a grant date fair value of approximately $119,000 for investor
relations services provided. Such issuance was exempt from registration under 4(a)(2) of the Securities Act.
On July 15, 2022, in a private placement offering,
we sold to investors 150 shares of Series D Preferred Stock, which is convertible into an aggregate of 1,000,000 shares of common
stock, 150 shares of Series E Preferred Stock, convertible into an aggregate of 1,000,000 shares of common stock, Series D Warrants
to purchase up to an aggregate of 66,666 shares of common stock, with an exercise price of $135.00 and an expiration term of five years
from its initial exercise date. The aggregate gross proceeds from the offering, excluding the net proceeds, if any from the exercise of
the Series D Warrants will be approximately $300,000. The issuance of these securities was made pursuant to Section 4(a)(2) of
the Securities Act, and the rules promulgated thereunder, to accredited investors.
During the period from July 16, 2020 to date,
pursuant to the exchange right in the Series B Preferred Stock Certificate of Designations, we issued 71,227 shares of common stock
and warrants to purchase up to 70,112 of common stock to holders of Series B Preferred Stock exercising such right. The issuance
of these securities was made pursuant to exemptions provided by Section 3(a)(9) under the Securities Act.
The list of exhibits following the signature page of
this registration statement is incorporated by reference herein.
(1) The undersigned registrant hereby undertakes:
(a) 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
(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 paragraphs (1)(i), (1)(ii) and
(1)(iii) above 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 Securities and Exchange Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(b) 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.
(c) 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.
(d) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as
part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the
date it is first used after effectiveness. 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
first use, 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 date of first use.
(e) 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
hereby 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 (§ 230.424 of this chapter);
(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.
(2) The undersigned registrant hereby undertakes
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 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 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.
(3) The undersigned registrant hereby undertakes
that:
(a) For purposes of determining any liability
under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance
on Rule 430A and contained in a form of prospectus filed by the undersigned registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective;
and
(b) For the purpose of determining any liability
under the Securities Act, each post-effective amendment that contains a form of prospectus 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.
(4) 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 SEC 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 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 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.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Boca Raton, State of Florida, on September 14, 2022.
| |
FIRST WAVE BIOPHARMA, INC. |
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By: |
/s/ James Sapirstein |
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|
Name: |
James Sapirstein |
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|
Title: |
President, Chief Executive Officer and Chairman of the Board
(Principal Executive Officer) |
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|
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By: |
/s/ Sarah Romano |
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|
Name: |
Sarah Romano |
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|
Title: |
Chief Financial Officer
(Principal Financial and Accounting Officer) |
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James Sapirstein and Sarah
Romano, and each of them, each with full power to act without the other, his or her true and lawful attorneys-in-fact and agents, each
with full power of substitution and resubstitution, for such person and in his or her name, place and stead, in any and all capacities,
to sign any amendments to this registration statement, and to sign any registration statement for the same offering covered by this registration
statement, including post-effective amendments or registration statements filed pursuant to Rule 462(b) 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, hereby ratifying and confirming that each of said such attorneys-in-fact and agents or his or her substitute or substitutes,
may 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.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ James Sapirstein |
|
President, Chief Executive Officer and Chairman of the Board
(Principal Executive Officer) |
|
September 14, 2022 |
| James Sapirstein |
|
| |
|
|
|
|
| /s/ Sarah Romano |
|
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer) |
|
September 14, 2022 |
| Sarah Romano |
|
| |
|
|
|
|
| /s/ Edward J. Borkowski |
|
Director |
|
September 14, 2022 |
| Edward J. Borkowski |
|
| |
|
|
|
|
| /s/ Charles Casamento |
|
Director |
|
September 14, 2022 |
| Charles Casamento |
|
| |
|
|
|
|
| /s/ Terry Coelho |
|
Director |
|
September 14, 2022 |
| Terry Coelho |
|
| |
|
|
|
|
| /s/ David Hoffman |
|
Director |
|
September 14, 2022 |
| David Hoffman |
|
| |
|
|
|
|
| /s/ Alastair Riddell |
|
Director |
|
September 14, 2022 |
| Alastair Riddell |
|
Exhibit
No. |
|
Description |
| 2.1# |
|
Agreement
and Plan of Merger dated September 13, 2021, by and among the Company, Alpha Merger Sub, Inc., and Fortis Advisors LLC,
as shareholder representative (incorporated by reference to Exhibit 2.1 of the Company’s Current Report on Form 8-K
filed with the SEC on September 13, 2021). ## |
| 3.1* |
|
Amended and Restated Certificate of Incorporation of the Registrant, as amended to date (filed herewith). |
| 3.2 |
|
Amended
and Restated Bylaws, as amended to date (incorporated by reference to Exhibit 3.2 of the Company’s Registration Statement
on Form S-3 filed with the SEC on July 28, 2022). |
| 4.1 |
|
Form of
Common Stock Certificate (incorporated by reference to Exhibit 4.1 filed with Amendment No 1. to Registration Statement on Form S-1,
filed July 29, 2016). |
| 4.2 |
|
Form of Investor Warrant
(incorporated by reference to Exhibit 4.2 of the Company’s Registration Statement on Form S-1 filed with the SEC
on July 13, 2016). |
| 4.3 |
|
Form of Underwriter Warrant
(incorporated by reference to Exhibit 4.3 to the Company’s Registration Statement on Form S-1, filed with the SEC
on July 29, 2016). |
| 4.4 |
|
Form of Series A
Warrant, dated April 11, 2017 between the Company and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.3
filed with the Company’s Current Report on Form 8-K filed with the SEC on April 12, 2017). |
| 4.5 |
|
Form of Series A
Warrant, dated June 5, 2017 (incorporated by reference to Exhibit 10.3 filed with the Company’s Current Report on
Form 8-K filed with the SEC on June 9, 2017). |
| 4.6 |
|
Form of Series A-1
Warrant, dated June 5, 2017 (incorporated by reference to Exhibit 10.4 filed with the Company’s Current Report on
Form 8-K filed with the SEC on June 9, 2017). |
| 4.7 |
|
Form of Underwriter Warrant
(incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on May 4,
2018). |
| 4.8 |
|
Form of Selling Agent
Warrant (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC
on April 3, 2019). |
| 4.9 |
|
Form of Selling Agent
Warrant (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC
on May 14, 2019). |
| 4.10 |
|
Form of Wainwright Warrant
(incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on July 22,
2019). |
| 4.11 |
|
Form of Warrant (incorporated
by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on July 20, 2020). |
| 4.12 |
|
Form of Warrant for Convertible
Notes Offering (incorporated by reference to Exhibit 4.2 of the Company’s Registration Statement on Form S-3 filed
with the SEC on July 27, 2020). |
| 4.13 |
|
Form of Pre-funded Warrant
(incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on January 4,
2021). |
| 4.14 |
|
Form of Private Placement
Warrant (incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed with the SEC
on January 4, 2021). |
| 4.15 |
|
Form of Wainwright Warrant
(incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on January 8,
2021). |
| 4.16 |
|
Form of Pre-Funded Warrant
(incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on March 10,
2021). |
| 4.17 |
|
Form of Warrant (incorporated
by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed with the SEC on March 10, 2021). |
| 4.18 |
|
Form of Wainwright Warrant
(incorporated by reference to Exhibit 4.3 of the Company’s Current Report on Form 8-K filed with the SEC on March 10,
2021). |
| 4.19 |
|
Description of Capital Stock
(incorporated by reference to Exhibit 4.19 of the Company’s Annual Report on Form 10-K filed with the SEC on March 31,
2022). |
| 4.20 |
|
Form of Wainwright Warrant
(incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on July 27,
2021). |
| 4.21 |
|
Form of Pre-Funded Warrant
(incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on March 1,
2022). |
| 4.22 |
|
Form of Series C
Warrant (incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed with the SEC
on March 1, 2022). |
| 4.23 |
|
Form of Placement Agent
Warrant (incorporated by reference to Exhibit 4.3 of the Company’s Current Report on Form 8-K filed with the SEC
on March 1, 2022). |
| 4.24 |
|
Form of Warrant Amendment
Agreement (incorporated by reference to Exhibit 4.4 of the Company’s Current Report on Form 8-K filed with the SEC
on March 1, 2022). |
| 4.25 |
|
Form of
Warrant (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed with the SEC on July 18,
2022). |
| 4.26 |
|
Form of
Placement Agent Warrant (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K filed with the SEC
on July 18, 2022). |
| 4.27^ |
|
Form of
Pre-Funded Warrant. |
| 4.28^ |
|
Form of
Common Warrant. |
| 4.29^ |
|
Form of Placement Agent Warrant. |
| 5.1^ |
|
Opinion
of Lowenstein Sandler LLP. |
| 10.1 |
|
Stock Purchase Agreement dated
May 21, 2014 between the Registrant, Protea Biosciences Group, Inc. and its wholly-owned subsidiary, Protea Biosciences, Inc
(incorporated by reference to Exhibit 10.1 of the Company’s Registration Statement on Form S-1 filed with the SEC
on July 13, 2016). |
| 10.2† |
|
Amended and Restated AzurRx
BioPharma, Inc. 2014 Omnibus Equity Incentive Plan (incorporated by reference to Exhibit 10.3 of the Company’s Registration
Statement on Form S-1 filed with the SEC on July 13, 2016). |
| 10.3 |
|
Securities Purchase Agreement
dated April 11, 2017 between the Registrant and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.1
of the Company’s Current Report on Form 8-K filed with the SEC on April 12, 2017). |
| 10.4 |
|
Registration Rights Agreement
dated April 11, 2017 between the Registrant and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.4
of the Company’s Current Report on Form 8-K filed with the SEC on April 12, 2017). |
| 10.5 |
|
Form of Securities Purchase
Agreement dated June 5, 2017 (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K
filed with the SEC on June 9, 2017). |
| 10.6 |
|
Form of Registration
Rights Agreement dated June 5, 2017 (incorporated by reference to Exhibit 10.2 of the Company’s Current Report on
Form 8-K filed with the SEC on April 12, 2017). |
| 10.7 |
|
Sublicense Agreement dated
August 7, 2017 by and between the Registrant and TransChem, Inc. (incorporated by reference to Exhibit 10.1 of the
Company’s Current Report on Form 8-K filed with the SEC on August 11, 2017). |
| 10.8 |
|
Asset Sale and Purchase Agreement,
dated December 7, 2018, by and between Protea Biosciences Group, Inc., Protea Biosciences, Inc. and AzurRx Biopharma, Inc.
(incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on December 13,
2018). |
| 10.9 |
|
Registration Rights Agreement,
dated February 14, 2019 (incorporated by reference to Exhibit 10.6 of the Company’s Current Report on Form 8-K
filed with the SEC on February 20, 2019). |
| 10.10 |
|
Asset Purchase Agreement,
by and between AzurRx BioPharma, Inc., AzurRx BioPharma SAS and Laboratoires Mayoly Spindler SAS, dated March 27, 2019
(incorporated by reference to Exhibit 10.25 of the Company’s Annual Report on Form 10-K filed with the SEC on April 1,
2019). |
| 10.11 |
|
Patent License Agreement,
by and between AzurRx BioPharma, Inc. and Laboratoires Mayoly Spindler SAS, dated March 27, 2019 (incorporated by reference
to Exhibit 10.26 of the Company’s Annual Report on Form 10-K filed with the SEC on April 1, 2019). |
| 10.12† |
|
Employment Agreement by and
between AzurRx BioPharma, Inc. and James Sapirstein, dated October 8, 2019 (incorporated by reference to Exhibit 10.1
of the Company’s Current Report on Form 8-K filed with the SEC on October 11, 2019). |
| 10.13 |
|
Securities Purchase Agreement,
dated November 13, 2019 (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K
filed with the SEC on November 14, 2019). |
| 10.14 |
|
Registration Rights Agreement,
dated November 13, 2019 (incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K
filed with the SEC on November 14, 2019). |
| 10.15 |
|
Form of Note Purchase
Agreement (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC
on December 30, 2019). |
| 10.16 |
|
Form of Warrant (incorporated
by reference to Exhibit 10.3 of the Company’s Current Report on Form 8-K filed with the SEC on December 30,
2019). |
| 10.17 |
|
Form of Registration
Rights Agreement (incorporated by reference to Exhibit 10.4 of the Company’s Current Report on Form 8-K filed with
the SEC on December 30, 2019). |
| 10.18† |
|
Employment Agreement by and
between AzurRx BioPharma, Inc. and Daniel Schneiderman, dated January 1, 2020 (incorporated by reference to Exhibit 10.1
of the Company’s Current Report on Form 8-K filed with the SEC on January 6, 2020). |
| 10.19 |
|
Form of Purchase Agreement,
by and among the Company and the investors set forth on the signature pages thereto, including the form of Exchange Addendum
(incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on July 20,
2020). |
| 10.20 |
|
Form of Registration
Rights Agreement, by and among the Company and the investors set forth on the signature page thereto (incorporated by reference
to Exhibit 10.2 of the Company’s Current Report on Form 8-K filed with the SEC on July 20, 2020). |
| 10.21† |
|
First
Amendment to 2014 Omnibus Equity Incentive Plan (incorporated by reference as Exhibit 10.3 of the Company’s Current Report
on Form 8-K filed with the SEC on July 20, 2020). |
| 10.22† |
|
2020 Omnibus Equity Incentive
Plan (incorporated by reference to Exhibit 10.4 of the Company’s Quarterly Report on Form 10-Q filed with the SEC
on November 16, 2020). |
| 10.23 |
|
Form of Purchase Agreement
(incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on January 4,
2021). |
| 10.24 |
|
Form of Registration
Rights Agreement (incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K filed with
the SEC on January 4, 2021). |
| 10.25 |
|
First Wave Purchase Agreement
(incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on January 8,
2021). |
| 10.26# |
|
First Wave License Agreement
(incorporated by reference to Exhibit 10.1 filed with the Company’s Current Report on Form 8-K filed with the SEC
on January 13, 2021). |
| 10.27 |
|
Form of Purchase Agreement
(incorporated by reference to Exhibit 10.1 filed with the Company’s Current Report on Form 8-K filed with the SEC
on March 10, 2021). |
| 10.28 |
|
At The Market Offering Agreement,
dated May 26, 2021, by and between AzurRx BioPharma, Inc. and H.C. Wainwright & Co., LLC (incorporated by reference
to Exhibit 1.2 of the Company’s Registration Statement on Form S-3 filed with the SEC on May 26, 2021). |
| 10.29 |
|
Settlement Agreement, by and
between the Company and Fortis Advisors LLC, dated November 15, 2021 (incorporated by reference to Exhibit 10.1 of the
Company’s Current Report on Form 8-K filed with the SEC on November 16, 2021). |
| 10.30 |
|
Form of Waiver (incorporated
by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on February 7, 2022). |
| 10.31† |
|
Employment Agreement by and
between First Wave BioPharma, Inc. and Sarah Romano, dated February 14, 2022 (incorporated by reference to Exhibit 10.1
of the Company’s Current Report on Form 8-K filed with the SEC on February 17, 2022). |
| 10.32 |
|
Form of Purchase Agreement
(incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on March 1,
2022). |
| 10.33 |
|
Form of
Indemnification Agreement (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K
filed with the SEC on May 5, 2022). |
| 10.34 |
|
Form of
Waiver Agreement (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with
the SEC on May 12, 2022). |
| 10.35 |
|
Form of
Purchase Agreement (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with
the SEC on July 18, 2022). |
| 10.36 |
|
Form of
Registration Rights Agreement (incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K
filed with the SEC on July 18, 2022). |
| 10.37# |
|
Form of
Term Sheet, by and between the Representative and the Company, dated July 29, 2022. (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC
on July 29, 2022). |
| 10.38^ |
|
Form of
Securities Purchase Agreement. |
| 16.1 |
|
Letter
from Mazars USA LLP to the U.S. Securities and Exchange Commission, dated May 3, 2022 (incorporated by reference to Exhibit 16.1
of the Company’s Current Report on Form 8-K filed with the SEC on May 3, 2022). |
| ^ |
To be filed by amendment. |
| * |
Filed herewith. |
| # |
Certain portions of this exhibit (indicated by “[*****]”) have been omitted as we have determined (1) it is not material and (2) is the type that the Company treats as private or confidential. |
| ## |
Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the SEC. |
| † |
Indicates a management contract or compensation plan, contract or arrangement. |
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