Item 1.01
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Entry into a Material Definitive Agreement.
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The Offering
On February 27, 2022, First Wave BioPharma, Inc. (the “Company”) entered into a securities purchase agreement with a single institutional investor (the
“Purchase Agreement”) pursuant to which the Company agreed to sell, in a registered direct offering (the “Offering”) priced at the market under Nasdaq rules, an aggregate of (i) 1,650,000 shares (the “Shares”) of its common stock, par value $0.0001
per share (the “Common Stock”), (ii) pre-funded warrants (the “Pre-Funded Warrants”) exercisable for an aggregate of up to 4,848,195 shares of Common Stock, and (iii) Series C warrants (the “Warrants”) exercisable for an aggregate of up to 6,498,195
shares of Common Stock. The public offering price for each share of Common Stock and accompanying Warrant to purchase one share of Common Stock was $1.385, and the public offering price for each Pre-Funded Warrant and accompanying Warrant to purchase
one share of Common Stock was $1.375.
The Offering is expected to close on March 2, 2022, subject to the satisfaction of customary closing conditions.
The net proceeds of the Offering, after deducting the placement agent’s fees and expenses and other estimated Offering expenses payable by the Company and
excluding the net proceeds, if any, from the exercise of the Warrants, are expected to be approximately $8.1 million. The Company intends to use the net proceeds from the Offering to pay a portion of the cash purchase price for its acquisition of
First Wave Bio, Inc. and for other general corporate purposes, which may include product manufacturing, clinical development and/or increases in working capital.
In the Purchase Agreement, the Company has 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 contain 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.
The form of the Purchase Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K. The foregoing summary of the terms of the Purchase
Agreement is subject to, and qualified in its entirety by the form of such document, which is incorporated herein by reference.
Terms of the Pre-Funded Warrants
The Pre-Funded Warrants are exercisable for one share of Common Stock at an exercise price of $0.01 per share and will expire when exercised in full. The
Company is prohibited from effecting an exercise of any Pre-Funded Warrants to the extent that such exercise would result in the number of shares of Common Stock beneficially owned by such holder and its affiliates exceeding 9.99% of the total number
of shares of Common Stock outstanding immediately after giving effect to the exercise, which percentage may be increased or decreased at the holder’s election not to exceed 9.99%.
The form of the Pre-funded Warrants is filed as Exhibit 4.1 to this Current Report on Form 8-K. The foregoing summary of the terms of the Pre-funded
Warrants is subject to, and qualified in its entirety by, the form of such document, which is incorporated herein by reference.
Terms of the Warrants
The Warrants are exercisable for one share of Common Stock at an exercise price of $1.26 per share. The Warrants will expire five years from the date of
issuance. The Warrants may only be exercised on a cashless basis if there is no registration statement registering, or the prospectus contained therein in not available for, the issuance or resale of shares of common stock underlying the Warrants to
or by the holder. The Company is prohibited from effecting an exercise of any Warrants to the extent that such exercise would result in the number of shares of Common Stock beneficially owned by such holder and its affiliates exceeding 4.99% of the
total number of shares of Common Stock outstanding immediately after giving effect to the exercise, which percentage may be increased or decreased at the holder’s election not to exceed 9.99%. In the event of certain fundamental transactions, holders
of the Warrants will have the right to receive the Black Scholes Value of their Warrant calculated pursuant to a formula set forth in the Warrant, payable either in cash or in the same type or form of consideration that is being offered and being
paid to the holders of Common Stock.
The form of the Warrant is filed as Exhibit 4.2 to this Current Report on Form 8-K. The foregoing summary of the terms of the Warrants is subject to, and
qualified in its entirety by, the form of such document, which is incorporated herein by reference.
Placement Agent Compensation
H.C. Wainwright & Co., LLC (the “Placement Agent”) acted as exclusive placement agent for the Offering. The Company has agreed to pay the Placement
Agent a cash fee equal to 7.0% of the gross proceeds of the Offering, and to reimburse the Placement Agent for a non-accountable expense allowance of $50,000, $150,000 in legal fees and $15,950 for clearing expenses. The Placement Agent will also
receive a cash fee of 7.0% of the Cash Consideration (as defined below) paid in connection with the Warrant Amendment Agreement described below. Additionally, as partial compensation for the Placement Agent’s services in the Offering, the Company has
agreed to issue to the Placement Agent (or its designees) warrants to purchase 389,891 shares of Common Stock equal to 6.0% of the aggregate number of shares of Common Stock and Pre-Funded Warrants placed in the Offering (the “Placement Agent
Warrants”). The Placement Agent Warrants have a term of five (5) years from the date of the prospectus supplement relating to the Offering and an exercise price of $1.73 per share (equal to 125% of the effective purchase price per share of Common
Stock and the related Warrant sold in the Offering).
The form of the Placement Agent Warrant is filed as Exhibit 4.3 to this Current Report on Form 8-K. The foregoing summary of the terms of the Placement
Agent Warrants is subject to, and qualified in its entirety by, the form of such document, which is incorporated herein by reference.
Warrant Amendment
In connection with the Offering, the Company entered into a warrant amendment agreement (the “Warrant Amendment Agreement”) with an investor pursuant to which the Company agreed to amend the investor’s existing warrants to purchase up to
1,066,666 shares of the Company’s Common Stock at an exercise price of $8.00 per share issued in January 2021 and warrants to purchase up to 392,927 shares of the Company’s Common stock at an exercise price of $12.10 per share issued in March 2021
(the “Existing Warrants”), in consideration for such investor’s purchase of $9.0 million of securities in the Offering (the “Purchase Commitment”) and payment of $0.0281 per share for each share of common stock issuable upon exercise of the
Existing Warrants (the “Cash Consideration”), to (i) lower the exercise price of the Existing Warrants to $1.26 per share and (ii) extend the termination date of the existing Warrants to March 2, 2027, effective upon the consummation of the
Offering, the payment of the Cash Consideration and confirmation by the Placement Agent of the Offering that the investor has satisfied the Purchase Commitment.
The form of the Warrant Amendment Agreement is filed as Exhibit 4.4 to this Current Report on Form 8-K. The foregoing summary of the terms of the Warrant Amendment Agreement is subject to, and qualified in its entirety by, the form of such
document, which is incorporated herein by reference.
The offering of the securities described above was made pursuant to the Company’s effective Registration Statement on Form S-3 (Registration No.
333-256476), including a prospectus contained therein dated June 2, 2021, as supplemented by a prospectus supplement, dated February 27, 2022, relating to the Offering.
Opinion
The opinion of the Company’s counsel regarding the validity of the securities issued in the Offering is attached as Exhibit 5.1 hereto.