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): October 6, 2022
| First Wave BioPharma, Inc. |
| (Exact name of registrant as specified in its charter) |
| Delaware | | 001-37853 | | 46-4993860 |
(State or other jurisdiction of
incorporation) | | (Commission File Number) | | (IRS Employer Identification No.) |
777 Yamato Road, Suite 502 Boca Raton, Florida | | 33431 |
| (Address of principal executive offices) | | (Zip Code) |
Registrant’s telephone number, including area code: (561) 589-7020
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | | Trading Symbol(s) | | Name of each exchange on which registered |
| Common Stock, par value $0.0001 per share | | FWBI | | Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement. |
On October 6, 2022, First Wave BioPharma, Inc. (the “Company”) entered a into securities purchase agreement with investors (the “Purchase Agreement”) pursuant to which the Company agreed to sell, in a best efforts public offering (the “Offering”) priced at the market under Nasdaq rules, an aggregate of (i) 255,000 shares (the “Shares”) of common stock, par value $0.0001 per share (the “Common Stock”), of the Company, (ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase up to an aggregate of 3,183,396 shares of Common Stock (the “Pre-Funded Warrant Shares”) and (iii) common warrants (the “Warrants”) to purchase up to an aggregate of 3,438,396 shares of Common Stock (the “Common Warrant Shares” and, together with the Pre-Funded Warrant Shares, the “Warrant Shares”). The public offering price for each share of Common Stock and accompanying Warrant to purchase one share of Common Stock was $1.745, and the public offering price for each Pre-Funded Warrant and accompanying Warrant to purchase one share of Common Stock was $1.7449. The Pre-Funded Warrants have an exercise price of $0.0001 per share, are exercisable immediately and will expire when exercised in full. The Warrants have an exercise price of $1.62 per share, are exercisable immediately and will expire five years from the initial exercise date.
The net proceeds of the Offering, after deducting the placement agent’s fees and expenses and other offering expenses payable by the Company and excluding the net proceeds, if any, from the exercise of the Warrants, is $5.2 million. The Company intends to use the net proceeds from the Offering to make the final upfront payment owed to the former stockholders of First Wave Bio, Inc. (“FWB”) pursuant to the settlement agreement between the Company and the representative of the former stockholders of FWB. The Company intends to use the remaining net proceeds from the Offering for working capital and general corporate purposes. The Offering closed on October 11, 2022.
In the Purchase Agreement, the Company agreed not to issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock or file any registration statement or prospectus, or any amendment or supplement thereto for 60 days after the closing date of the Offering. In addition, the Company has agreed not to effect or enter into an agreement to effect any issuance of Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock involving a variable rate transaction (as defined in the Purchase Agreement) until the one-year anniversary of the date of the Purchase Agreement, subject to certain exceptions.
The Purchase Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the purchasers, including for liabilities arising under the Securities Act (as defined below), other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the Purchase Agreement were made only for the purposes of such agreements and as of specific dates, were solely for the benefit of the parties to such agreements, and may be subject to limitations agreed upon by the contracting parties.
Subject to certain ownership limitations described in the Pre-Funded Warrants, the Pre-Funded Warrants are immediately exercisable and may be exercised at a nominal consideration of $0.0001 per share of Common Stock any time until all of the Pre-Funded Warrants are exercised in full. A holder will not have the right to exercise any portion of the Warrants or the Pre-Funded Warrants if the holder (together with its affiliates) would beneficially own in excess of 4.99% or 9.99%, respectively, (or, at the election of the holder of the Warrants, 9.99%) of the number of 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 Warrants or the Pre-Funded Warrants, respectively. However, upon notice from the holder to the Company, the holder may increase the beneficial ownership limitation, which may not exceed 9.99% of the number of 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 Warrants, respectively, provided that any increase in the beneficial ownership limitation will not take effect until 61 days following notice to the Company.
H.C. Wainwright & Co., LLC (the “Placement Agent”) acted as the exclusive placement agent for the Offering. The Company paid the Placement Agent as compensation a cash fee equal to 7.0% of the gross proceeds of the Offering, and reimbursed the Placement Agent for a non-accountable expense allowance of $25,000, $150,000 in legal fees and $15,950 for clearing expenses. On October 5, 2022, we and the Placement Agent’s designees who had been previously issued, as compensation in connection with the private placement that closed on July 15, 2022, certain warrants to purchase an aggregate of 4,000 shares of our common stock at an exercise price of $5.625 per share, agreed to cancel and terminate such warrants.
The Shares, the Pre-Funded Warrants, the Warrants and the Warrant Shares were offered by the Company pursuant to a Registration Statement on Form S-1 (the “Form S-1”) originally filed on September 14, 2022, with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (File No. 333-267423), and declared effective on October 6, 2022.
The foregoing description of the material terms of the Purchase Agreement, the Pre-Funded Warrants and the Warrants is not complete and is qualified in its entirety by reference to the full text of the form of Purchase Agreement, the form of Pre-Funded Warrant and the form of Warrant, copies of which are filed as Exhibits 10.1, 4.1 and 4.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
| Item 7.01 | Regulation FD Disclosure. |
On October 6, 2022, the Company issued a press release announcing the pricing of the Offering. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is hereby incorporated by reference herein.
On October 11, 2022, the Company issued a press release announcing the closing of the Offering. A copy of the press release is attached as Exhibit 99.2 to this Current Report on Form 8-K and is hereby incorporated by reference herein.
| Item 9.01 | Financial Statements and Exhibits. |
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. |
| | |
| October 12, 2022 | By: | /s/ James Sapirstein |
| | Name: | James Sapirstein |
| | Title: | Chief Executive Officer |
