FWBI First Wave BioPharma Inc

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of report (Date of earliest event reported): December 12, 2023

 

	First Wave BioPharma, Inc.
	(Exact name of registrant as specified in its charter)

 

Delaware		001-37853		46-4993860
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

777 Yamato Road, Suite 502 Boca Raton, Florida		33431
(Address of principal executive offices)		(Zip Code)

 

Registrant’s telephone number, including area code: (561) 589-7020

 

Not Applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, par value $0.0001 per share		FWBI		Nasdaq Capital Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

Item 3.03

Material Modification to Rights of Security Holders.

 

To the extent required by Item 3.03 of Form 8-K, the information regarding the Reverse Stock Split (as defined below) contained in Item 5.03 of this Current Report on Form 8-K is incorporated by reference herein.

 

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

On December 12, 2023, First Wave BioPharma, Inc. (the “Company”) held a special meeting of stockholders (the “Special Meeting”). At the Special Meeting, the Company’s stockholders approved (1) the Authorized Share Increase Proposal, as defined below, and (2) the Reverse Stock Split Proposal, as defined below, thereby granting the Company’s Board of Directors (the “Board”) the discretion to effect a reverse stock split of the Company’s issued and outstanding common stock, par value $0.0001 (the “Common Stock”), through an amendment (the “Amendment”) to the Company’s Amended and Restated Certificate of Incorporation, as amended to date (the “Charter”), at a ratio of not less than 1-for-10 and not more than 1-for-20, with such ratio to be determined by the Board.

 

On December 13, 2023, the Company filed the Amendment to its Charter with the Secretary of State of the State of Delaware to increase the total number of authorized shares of Common Stock by 50,000,000 shares to 100,000,000 shares and to effect a reverse stock split of its Common Stock at a ratio of 1-to-20 (the “Reverse Stock Split”). The Reverse Stock Split will become effective in accordance with the terms of the Amendment at 12:01 AM Eastern Time on December 18, 2023 (the “Effective Time”). First Wave’s Common Stock will continue to be traded on The Nasdaq Capital Market under the symbol FWBI and will begin trading on a split-adjusted basis when the market opens on Monday, December 18, 2023, under a new CUSIP number, 33749P408.  

 

At the Effective Time, every 20 shares of the Company’s issued and outstanding Common Stock will be converted automatically into one issued and outstanding share of Common Stock, with no corresponding reduction in the number of authorized shares of Common Stock, and without any change in the par value per share. Stockholders holding shares through a brokerage account will have their shares automatically adjusted to reflect the 1-for-20 Reverse Stock Split. It is not necessary for stockholders holding shares of the Common Stock in certificated form to exchange their existing stock certificates for new stock certificates of the Company in connection with the Reverse Stock Split, although stockholders may do so if they wish.

 

The Reverse Stock Split will affect all stockholders uniformly and will not alter any stockholder’s percentage interest in the Company’s equity, except to the extent that the Reverse Stock Split would result in a stockholder owning a fractional share. No fractional shares will be issued in connection with the Reverse Stock Split. Stockholders who would otherwise be entitled to receive a fractional share will instead receive a cash payment (without interest) equal to such fraction multiplied by the average of the closing sales prices of Common Stock on The Nasdaq Capital Market for the five consecutive trading days immediately preceding the effective date of the Reverse Stock Split (with such average closing sales prices being adjusted to give effect to the Reverse Stock Split). The Reverse Stock Split will reduce the number of shares of Common Stock outstanding from approximately 13,499,979 shares to approximately 674,998 shares. Proportional adjustments will be made to the number of shares of Common Stock issuable upon exercise or conversion of the Company’s equity awards, convertible preferred stock and warrants, as well as the applicable exercise price. Stockholders with shares in brokerage accounts should direct any questions concerning the Reverse Stock Split to their broker; all other stockholders may direct questions to the Company’s transfer agent, Colonial Stock Transfer, at 801-355-5740.

 

 

The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is filed as Exhibit 3.1 to this Current Report on Form 8-K and incorporated by reference herein.

 

Item 5.07

Submission of Matters to a Vote of Security Holders.

 

On December 12, 2023, the Company held the Special Meeting. The matters voted on at the Special Meeting were: (1) the adoption and approval of the amendment to our Company’s Charter to increase the total number of authorized shares of Common Stock by 50,000,000 shares to 100,000,000 shares (the “Authorized Share Increase Proposal”), (2) the adoption and approval of the Amendment to the Company’s Charter to effect a reverse stock split of the Company’s issued and outstanding shares of Common Stock, at a specific ratio, ranging from one-for-ten (1:10) to one-for-twenty (1:20), at any time prior to the one-year anniversary date of the Special Meeting with the exact ratio to be determined by the Board without further approval or authorization of the Company’s stockholders (the “Reverse Stock Split Proposal”), (3) the ratification of the Company’s entry into a securities purchase agreement on July 18, 2023, with certain purchasers and issuance thereto (the “July 2023 Offering”) of an aggregate of (i) 610,000 shares of Common Stock of the Company, (ii) pre-funded warrants to purchase up to an aggregate of 2,675,000 shares of Common Stock (the “Pre-Funded Warrants”), (iii) common warrants to purchase up to an aggregate of 6,570,000 shares of Common Stock (the “Common Warrants” and, together with the Pre-Funded Warrants, the “Warrants”) (the “July 2023 Offering Proposal”), and (4) approval of the adjournment of the Special Meeting to the extent there are insufficient votes at the Special Meeting to approve any one or more of the foregoing proposals (the “Adjournment Proposal”).

 

At the Special Meeting, all of the matters voted on were approved, based upon an aggregate of 13,499,979 shares of Common Stock outstanding as of October 16, 2023, which was the record date for the Special Meeting. The final voting results were as follows:

  

1. Authorized Share Increase Proposal.

 

The votes were cast for this matter as follows:

 

Votes For		Votes Against		Abstentions
3,191,201		1,793,825		15,707

  

2. The Reverse Stock Split Proposal.

  

The votes were cast for this matter as follows:

 

Votes For		Votes Against		Abstentions
3,402,578		1,581,860		16,294

 

3. The July 2023 Offering Proposal.

 

The votes were cast for this matter as follows:

  

Votes For		Votes Against		Abstentions
1,103,896		601,958		125,522

 

4. The Adjournment Proposal.

 

The votes were cast for this matter as follows:

  

Votes For		Votes Against		Abstentions
3,833,578		1,139,463		27,691

 

 

Item 7.01

Regulation FD Disclosure.

 

On December 14, 2023, the Company issued a press release announcing the results of the Special Meeting and the Reverse Stock Split, a copy of which is furnished as Exhibit 99.1 to this Current Report on Form 8-K.

 

Item 9.01

Financial Statements and Exhibits.

 

	(d) Exhibits

        The following exhibits are being filed or furnished, as applicable, with this Current Report on Form 8-K:

 

Exhibit No.		Description
3.1		Certificate of Amendment to the Amended and Restated Certificate of Incorporation, as amended, of First Wave BioPharma, Inc., dated December 13, 2023.
99.1		Press Release, dated December 14, 2023.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	First Wave BioPharma, Inc.
December 14, 2023	By:	/s/ James Sapirstein
	Name:	James Sapirstein
	Title:	Chief Executive Officer

 

 

 

Exhibit 3.1

 

CERTIFICATE OF AMENDMENT TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FIRST WAVE BIOPHARMA, INC. 

 

First Wave BioPharma, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify as follows:

 

FIRST: That a resolution was duly adopted on December 6, 2023, by the Board of Directors of the Corporation pursuant to Section 242 of the General Corporation Law of the State of Delaware setting forth an amendment to the Certificate of Incorporation of the Corporation and declaring said amendment to be advisable. The stockholders of the Corporation duly approved said proposed amendment at a special meeting of stockholders held on December 12, 2023, in accordance with Section 242 of the General Corporation Law of the State of Delaware. The proposed amendment set forth as follows:

 

Article FOURTH of the Amended and Restated Certificate of Incorporation of the Corporation, as amended to date, be and hereby is further amended and restated in its entirety to read as follows:

 

The total number of shares which the Corporation shall have authority to issue is one hundred and ten million (110,000,000) shares, of which a hundred million (100,000,000) shares shall be common stock, par value $0.0001 per share, and ten million (10,000,000) shares shall be preferred stock, par value $0.0001 per share. The board of directors of the Corporation may divide the preferred stock into any number of series, fix the designation and number of each such series, and determine or change the designation, relative rights, preferences, and limitations of any series of preferred stock. The board of directors (within the limits and restrictions of the adopting resolutions) may increase or decrease the number of shares initially fixed for any series, but no decrease may reduce the number below the shares then outstanding and duly reserved for issuance.

 

Upon effectiveness (“Effective Time”) of this amendment to the Amended and Restated Certificate of Incorporation of the Corporation, a one-for-twenty reverse stock split (the “Reverse Split”) of the Corporation’s Common Stock shall become effective, pursuant to which each twenty shares of Common Stock outstanding and held of record by each stockholder of the Corporation (including treasury shares) immediately prior to the Effective Time (“Old Common Stock”) shall automatically, and without any action by the holder thereof, be reclassified and combined into one (1) validly issued, fully paid and non-assessable share of Common Stock (“New Common Stock”), subject to the treatment of fractional interests as described below and with no corresponding reduction in the number of authorized shares of our Common Stock. The Reverse Split shall also apply to any outstanding securities or rights convertible into, or exchangeable or exercisable for, Old Common Stock and all references to such Old Common Stock in agreements, arrangements, documents and plans relating thereto or any option or right to purchase or acquire shares of Old Common Stock shall be deemed to be references to the New Common Stock or options or rights to purchase or acquire shares of New Common stock, as the case may be, after giving effect to the Reverse Split.

 

 

No fractional shares of Common Stock will be issued in connection with the reverse stock split. Stockholders of record who otherwise would be entitled to receive fractional shares, will be entitled to receive cash (without interest) in lieu of fractional shares, equal to such fraction multiplied by the average of the closing sales prices of our Common Stock on the exchange the Corporation is currently trading during regular trading hours for the five consecutive trading days immediately preceding the effective date of the Reverse Split (with such average closing sales prices being adjusted to give effect to the Reverse Split).

 

Each holder of record of a certificate or certificates for one or more shares of the Old Common Stock shall be entitled to receive as soon as practicable, upon surrender of such certificate, a certificate or certificates representing the largest whole number of shares of New Common Stock to which such holder shall be entitled pursuant to the provisions of the immediately preceding paragraphs. Each stock certificate that, immediately prior to the Effective Time, represented shares of Old Common Stock that were issued and outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole shares of New Common Stock after the Effective Time into which the shares formerly represented by such certificate have been reclassified (as well as the right to receive cash in lieu of fractional shares of New Common Stock after the Effective Time.

 

SECOND: That said amendment will have an Effective Time of 12:01 A.M., Eastern Time, on December 18, 2023.

 

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its President and Chief Executive Officer this thirteenth day of December, 2023.

 

	/s/ James Sapirstein
	James Sapirstein
	President and Chief Executive Officer​

 

 

 

Exhibit 99.1

 

First Wave BioPharma Announces 1-for-20 Reverse Stock Split and Results of the Special Meeting of Stockholders 

 

BOCA RATON, Fla., Dec. 14, 2023 (GLOBE NEWSWIRE) – First Wave BioPharma, Inc. (NASDAQ: FWBI) (“First Wave BioPharma,” “First Wave” or the “Company”), a clinical-stage biopharmaceutical company specializing in the development of targeted, non-systemic therapies for gastrointestinal (GI) diseases, today announced that the Company’s stockholders have approved all proposals voted on at the Company’s special meeting of stockholders (the “Special Meeting”) held on December 12, 2023, and that its Board of Directors approved a 1-for-20 reverse stock split of its outstanding shares of common stock, to be effective as of 12:01 a.m. Eastern Time on Monday, December 18, 2023.

 

Results of the Special Meeting

 

At the Special Meeting, First Wave’s stockholders approved four proposals: 1) to increase the total number of authorized shares of the Company’s common stock, par value $0.0001, by 50,000,000 shares to 100,000,000 shares; 2) to grant the Company’s Board of Directors the discretion to effect a reverse stock split of First Wave’s Common Stock through an amendment to its Certificate of Incorporation at a ratio of not less than 1-for-10 and not more than 1-for-20; 3) to ratify the Company’s entry into a securities purchase agreement entered into on July 18, 2023; and 4) to adjourn the Special Meeting in the event that there are insufficient proxies to approve any one or more of the three preceding proposals.

 

Final voting results from the Special Meeting will be included in a Form 8-K filed with the Securities and Exchange Commission.

 

Reverse Stock Split

 

In conjunction with stockholder approval of the reverse stock split, the Company’s Board of Directors determined to fix a split ratio of 1-for-20. The Company’s common stock will begin trading on a reverse stock split-adjusted basis at the opening of the market on Monday, December 18, 2023. Following the reverse stock split, the Company’s common stock will continue to trade on the Nasdaq Capital Market under the symbol “FWBI” with the new CUSIP number, 33749P408. The reverse stock split is intended for the Company to regain compliance with the minimum bid price requirement of $1.00 per share of common stock for continued listing on the Nasdaq Capital Market.

 

At the effective time of the reverse split, every 20 issued and outstanding shares of the Company’s common stock will be converted automatically into one share of the Company’s common stock without any change in the par value per share. No fractional shares will be issued in connection with the reverse stock split, and fractional shares resulting from the reverse stock split will be canceled with the holders thereof receiving cash compensation. The amount of compensation will be determined by multiplying the fractional share by the average of the closing sales price of the Company’s common stock on the Nasdaq Capital Market during regular trading hours for the five consecutive trading days immediately preceding the date of the reverse split with the average closing sales prices being adjusted to give effect to the reverse split. The reverse split will have no effect on the number of authorized shares of the Company’s common stock and the ownership percentage of each stockholder will remain unchanged other than as a result of fractional shares. The reverse stock split will additionally apply to the Company’s common stock issuable upon the exercise of the Company’s outstanding warrants and stock options, with proportionate adjustments to be made to the exercise prices thereof and under the Company’s equity incentive plans, as applicable.

 

The reverse stock split will reduce the number of issued and outstanding shares of the Company’s common stock from approximately 13.5 million to approximately 675,000.

 

 

About First Wave BioPharma, Inc.

 

First Wave BioPharma is a clinical-stage biopharmaceutical company specializing in the development of targeted, non-systemic therapies for gastrointestinal (GI) diseases. The Company is currently advancing a therapeutic development pipeline with multiple Phase 2 clinical stage programs built around three proprietary technologies – the biologic Adrulipase, a recombinant lipase enzyme designed to enable the digestion of fats and other nutrients in cystic fibrosis and chronic pancreatitis patients with exocrine pancreatic insufficiency; Capeserod, a selective 5-HT4 receptor partial agonist which First Wave is developing for gastrointestinal (GI) indications; and Niclosamide, an oral small molecule with anti-inflammatory properties for patients with inflammatory bowel diseases such as ulcerative colitis and Crohn’s disease. First Wave BioPharma is headquartered in Boca Raton, Florida. For more information visit www.firstwavebio.com.

 

Forward-Looking Statements

 

This press release may contain certain statements relating to future results which are forward-looking statements. It is possible that the Company’s actual results and financial condition may differ, possibly materially, from the anticipated results and financial condition indicated in these forward-looking statements, depending on factors including whether results obtained in preclinical and nonclinical studies and clinical trials will be indicative of results obtained in future clinical trials; whether preliminary or interim results from a clinical trial will be indicative of the final results of the trial; whether the Company will be able to maintain compliance with Nasdaq’s continued listing criteria and the effect of a delisting from Nasdaq on the market for the Company’s securities; the size of the potential markets for the Company’s drug candidates and its ability to service those markets; the effects of the First Wave Bio, Inc. acquisition, the related settlement and their effect on the Company’s business, operating results and financial prospects; and the Company’s current and future capital requirements and its ability to raise additional funds to satisfy its capital needs. Additional information concerning the Company and its business, including a discussion of factors that could materially affect the Company’s financial results are contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 under the heading “Risk Factors,” as well as the Company’s subsequent filings with the Securities and Exchange Commission. All forward-looking statements included in this press release are made only as of the date of this press release, and we do not undertake any obligation to publicly update or correct any forward-looking statements to reflect events or circumstances that subsequently occur or of which we hereafter become aware.

 

 

For more information:

 

First Wave BioPharma, Inc.
777 Yamato Road, Suite 502
Boca Raton, FL 33431
Phone: (561) 589-7020
info@firstwavebio.com

 

Media contact:

 

Tiberend Strategic Advisors, Inc.
David Schemelia
(609) 468-9325
dschemelia@tiberend.com

 

 

v3.23.3

Cover	Dec. 12, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Dec. 12, 2023
Current Fiscal Year End Date	--12-31
Entity File Number	001-37853
Entity Registrant Name	First Wave BioPharma, Inc.
Entity Central Index Key	0001604191
Entity Tax Identification Number	46-4993860
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	777 Yamato Road
Entity Address, Address Line Two	Suite 502
Entity Address, City or Town	Boca Raton
Entity Address, State or Province	FL
Entity Address, Postal Zip Code	33431
City Area Code	561
Local Phone Number	589-7020
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.0001 per share
Trading Symbol	FWBI
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false

---