| Item 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year |
Series F Preferred Stock
On
November 25, 2022, the Board of Directors (the “Board”) of First Wave BioPharma, Inc. (the “Company”) declared
a dividend of 0.001 of a share of Series F Preferred Stock, par value $0.0001 per share (“Series F Preferred Stock”), for
each outstanding share of the Company’s common stock, par value $0.0001 per share (the “Common Stock”) to stockholders
of record at 5:00pm Eastern Time on December 5, 2022 (the “Record Date”).
General; Transferability.
Shares of Series F Preferred Stock will be uncertificated and represented in book-entry form. No shares of Series F Preferred Stock may
be transferred by the holder thereof except in connection with a transfer by such holder of any shares of Common Stock held by such holder,
in which case a number of one one-thousandths (1/1,000ths) of a share of Series F Preferred Stock equal to the number of shares of Common
Stock to be transferred by such holder will be automatically transferred to the transferee of such shares of Common Stock.
Voting Rights. Each
share of Series F Preferred Stock will entitle the holder thereof to 1,000,000 votes per share (and, for the avoidance of doubt, each
fraction of a share of Series F Preferred Stock will have a ratable number of votes). Thus, each 0.001 of a share of Series F Preferred
Stock would entitle the holder thereof to 1,000 votes. The outstanding shares of Series F Preferred Stock will vote together with the
outstanding shares of Common Stock of the Company as a single class exclusively with respect to (1) any proposal (the “Reverse Stock
Split Proposal”) to adopt an amendment to the Company’s Amended and Restated Certificate of Incorporation, as amended (the
“Certificate of Incorporation”), to reclassify the outstanding shares of Common Stock into a smaller number of shares of Common
Stock at a ratio specified in or determined in accordance with the terms of such amendment (the “Reverse Stock Split”) and
(2) any proposal to adjourn any meeting of stockholders called for the purpose of voting on the Reverse Stock Split (the “Adjournment
Proposal”). The Series F Preferred Stock will not be entitled to vote on any other matter, except to the extent required under the
Delaware General Corporation Law.
Unless otherwise provided
on any applicable proxy or ballot with respect to the voting on the Reverse Stock Split Proposal or the Adjournment Proposal, the vote
of each share of Series F Preferred Stock (or fraction thereof) entitled to vote on the Reverse Stock Split Proposal, the Adjournment
Proposal or any other matter brought before any meeting of stockholders held to vote on the Reverse Stock Split Proposal will be cast
in the same manner as the vote, if any, of the share of Common Stock in respect of which such share of Series F Preferred Stock was issued
as a dividend is cast on the Reverse Stock Split Proposal, the Adjournment Proposal or such other matter, as applicable, and the proxy
or ballot with respect to shares of Common Stock held by any holder on whose behalf such proxy or ballot is submitted will be deemed to
include all shares of Series F Preferred Stock (or fraction thereof) held by such holder. Holders of Series F Preferred Stock will not
receive a separate ballot or proxy to cast votes with respect to the Series F Preferred Stock on the Reverse Stock Split Proposal, the
Adjournment Proposal or any other matter brought before any meeting of stockholders held to vote on the Reverse Stock Split Proposal.
Dividend Rights.
The holders of Series F Preferred Stock, as such, will not be entitled to receive dividends of any kind.
Liquidation Preference.
The Series F Preferred Stock will rank senior to the Common Stock as to any distribution of assets upon a liquidation, dissolution or
winding up of the Company, whether voluntarily or involuntarily (a “Dissolution”). Upon any Dissolution, each holder of outstanding
shares of Series F Preferred Stock will be entitled to be paid out of the assets of the Company available for distribution to stockholders,
prior and in preference to any distribution to the holders of Common Stock, an amount in cash equal to $0.0001 per outstanding share
of Series F Preferred Stock.
Redemption.
All shares of Series F Preferred Stock that are not present in person or by proxy at any meeting of stockholders held to vote on the Reverse
Stock Split and the Adjournment Proposal as of immediately prior to the opening of the polls at such meeting (the “Initial Redemption
Time”) will automatically be redeemed in whole, but not in part, by the Company at the Initial Redemption Time without further action
on the part of the Company or the holder of shares of Series F Preferred Stock (the “Initial Redemption”). Any outstanding
shares of Series F Preferred Stock that have not been redeemed pursuant to an Initial Redemption will be redeemed in whole, but not in
part, (i) if such redemption is ordered by the Board in its sole discretion, automatically and effective on such time and date specified
by the Board in its sole discretion or (ii) automatically upon the effectiveness of the amendment to the Certificate of Incorporation
implementing the Reverse Stock Split.
Each share of Series F Preferred
Stock redeemed in any redemption described above will be redeemed in consideration for the right to receive an amount equal to $0.001
in cash for each ten whole shares of Series F Preferred Stock that are “beneficially owned” by the “beneficial owner”
(as such terms are defined in the certificate of designation with respect to the Preferred Stock (the “Certificate of Designation”))
thereof as of immediately prior to the applicable redemption time and redeemed pursuant to such redemption. However, the redemption consideration
in respect of the shares of Series F Preferred Stock (or fractions thereof) redeemed in any redemption described above: (i) will entitle
the former beneficial owners of less than ten whole shares of Series F Preferred Stock redeemed in any redemption to no cash payment in
respect thereof and (y) will, in the case of a former beneficial owner of a number of shares of Series F Preferred Stock (or fractions
thereof) redeemed pursuant to any redemption that is not equal to a whole number that is a multiple of ten, entitle such beneficial owner
to the same cash payment, if any, in respect of such redemption as would have been payable in such redemption to such beneficial owner
if the number of shares (or fractions thereof) beneficially owned by such beneficial owner and redeemed pursuant to such redemption were
rounded down to the nearest whole number that is a multiple of ten (such, that for example, the former beneficial owner of 25 shares of
Series F Preferred Stock redeemed pursuant to any redemption will be entitled to receive the same cash payment in respect of such redemption
as would have been payable to the former beneficial owner of 20 shares of Series F Preferred Stock redeemed pursuant to such redemption).
The Series F Preferred Stock
is not be convertible into, or exchangeable for, shares of any other class or series of stock or other securities of the Company. The
Series F Preferred Stock has no stated maturity and is not be subject to any sinking fund. The Series F Preferred Stock is not subject
to any restriction on the redemption or repurchase of shares by the Company while there is any arrearage in the payment of dividends or
sinking fund installments.
The Certificate of Designation
was filed with the Delaware Secretary of State and became effective on November 28, 2022. The foregoing description of the Series F Preferred
Stock does not purport to be complete and is qualified in its entirety by reference to the Certificate of Designation, which is filed
as Exhibit 3.1 to this Current Report and is incorporated herein by reference.