Delaware | | | 2834 | | | 46-4993860 |
(State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification Code Number) | | | (I.R.S. Employer Identification Number) |
Large accelerated filer | | | ☐ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☒ | | | Smaller reporting company | | | ☒ |
| | | | Emerging growth company | | | ☐ |
Title of each class of securities to be registered | Amount to be Registered | Proposed Maximum Offering Price Per Unit | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
Common Stock, par value $0.0001 per share | (1) | (2) | (2) | $— |
Warrants | (1) | (2) | (2) | — |
Units | (1) | (2) | (2) | — |
Total | (1) | (2) | $10,000,000 | $1,245.00(3) |
Title of each class of securities to be registered | | | Amount to be registered(1) | | | Proposed maximum offering price per share | | | Proposed maximum aggregate offering price | | | Amount of registration fee |
Common stock, par value $0.0001 per share | | | 624,025 | | | $1.37(2) | | | $854,914 | | | $80 |
(1) | Includes an indeterminable number of additional shares of common stock, pursuant to Rule 416 under the Securities Act of 1933, as amended, that may be issued to prevent dilution from stock splits, stock dividends or similar transactions that could affect the shares to be offered by the selling stockholders. |
(2) | Pursuant to Rule 457(c) of the Securities Act of 1933, as amended, calculated on the basis of the average of the high and low prices per share of the registrant’s common stock as reported by The Nasdaq Capital Market on January 18, 2022. |
PRELIMINARY PROSPECTUS | | | SUBJECT TO COMPLETION | | | DATED |
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Name of Selling Stockholder | | | Shares Beneficially Owned Prior to Offering(1)(2)(3) | | | Maximum Number of Shares Being Offered Pursuant to this Prospectus | | | Shares Beneficially Owned After this Offering(3) | |||
| Number(3) | | | Percent(4) | ||||||||
Amy McGovern | | | 1,951 | | | 1,951 | | | — | | | * |
Anthony Opipari(5) | | | 18,261 | | | 18,261 | | | — | | | * |
Anthony Palmieri | | | 968 | | | 968 | | | — | | | * |
Brian Sanchez | | | 1,291 | | | 1,291 | | | — | | | * |
David Hoffman | | | 80,222 | | | 80,222 | | | — | | | * |
Deborah Drachman | | | 3,227 | | | 3,227 | | | — | | | * |
Doug Martin | | | 15 | | | 15 | | | — | | | * |
Douglas M. Evans | | | 8,066 | | | 8,066 | | | — | | | * |
Elissa J Sheppard Trust Under Agreement Dated 7/14/2000 | | | 3,227 | | | 3,227 | | | — | | | * |
Equity Trust Company Custodian FBO Howard Oremland IRA | | | 968 | | | 968 | | | — | | | * |
Equity Trust Company Custodian FBO Leonard Oremland IRA | | | 6,453 | | | 6,453 | | | — | | | * |
Gary D. Glick | | | 86,545 | | | 86,545 | | | — | | | * |
Geraldine J. Heeney-Phelps | | | 645 | | | 645 | | | — | | | * |
H. Martin Seidel | | | 8,354 | | | 8,354 | | | — | | | * |
Howard Oremland and Cari Oremland Trust | | | 1,613 | | | 1,613 | | | — | | | * |
Jay Feigus | | | 9,680 | | | 9,680 | | | — | | | * |
Jeannie Clemens and Blake Clemens, as JTWROS | | | 6,453 | | | 6,453 | | | — | | | * |
Jeffrey M. Factor | | | 3,227 | | | 3,227 | | | — | | | * |
John A. Leupp and Kara A. Leupp, as JTWRS | | | 12,906 | | | 12,906 | | | — | | | * |
Joseph Campisi | | | 53 | | | 53 | | | — | | | * |
Kelly Carbone | | | 3,227 | | | 3,227 | | | — | | | * |
Kenneth Breslauer | | | 3,227 | | | 3,227 | | | — | | | * |
Kenneth Leet | | | 8,408 | | | 8,408 | | | — | | | * |
Leonard & Robin Oremland, as JTWROS | | | 24,535 | | | 24,535 | | | — | | | * |
Leonard Oremland | | | 1,986 | | | 1,986 | | | — | | | * |
Luigi Franchi | | | 31,528 | | | 31,528 | | | — | | | * |
May 2013 Trust | | | 40,345 | | | 40,345 | | | — | | | * |
Meythaler Investment Partners, L.C.(6) | | | 44,390 | | | 44,390 | | | — | | | * |
Michael Hill | | | 43,325 | | | 43,325 | | | — | | | * |
Mike Kozminski and Linda Kozminski, tenancy by the entirety | | | 32,266 | | | 32,266 | | | — | | | * |
New Direction IRA, Inc. FBO Tim Mayleben Roth IRA | | | 3,227 | | | 3,227 | | | — | | | * |
Pavel Guguchev | | | 8,066 | | | 8,066 | | | — | | | * |
PharMI Holdings, LLC(7) | | | 1,449 | | | 1,449 | | | — | | | * |
Robert Blackwell | | | 5,845 | | | 5,845 | | | — | |
Name of Selling Stockholder | | | Shares Beneficially Owned Prior to Offering(1)(2)(3) | | | Maximum Number of Shares Being Offered Pursuant to this Prospectus | | | Shares Beneficially Owned After this Offering(3) | |||
| Number(3) | | | Percent(4) | ||||||||
Robert Heine | | | 9,680 | | | 9,680 | | | — | | | * |
Rubi Opportunity LLC(8) | | | 8,066 | | | 8,066 | | | — | | | * |
Stephen Davis | | | 1,613 | | | 1,613 | | | — | | | * |
Xtra Alpha LLC(9) | | | 98,717 | | | 98,717 | | | — | | | * |
* | Less than 1% |
(1) | Except as noted below, beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or investment power with respect to securities. All entries exclude beneficial ownership of shares issuable pursuant to warrants, options or other derivative securities that have not vested or that are not otherwise exercisable as of the date hereof or which will not become vested or exercisable within 60 days of January 19, 2022. |
(2) | Based upon the internal books and records of the Company. |
(3) | Includes shares of common stock which are not being offered pursuant to this prospectus. |
(4) | All percentage calculations are based on 14,855,848 shares of common stock outstanding as of January 19, 2022 and are rounded to the nearest tenth of a percent. Warrants, options or other derivative securities that are presently exercisable or exercisable within 60 days are deemed to be beneficially owned by the person holding such securities for the purpose of calculating the percentage ownership of that person, but are not treated as outstanding for the purpose of calculating the percentage ownership of any other person. |
(5) | Anthony Opipari joined the Company's Scientific Advisory Board effective October 12, 2021. |
(6) | As Managing Shareholder of Meythaler Investment Partners, L.C., Charles Meythaler holds sole voting and dispositive power over the shares held by such entity. |
(7) | As Manager of PharMI Holdings, LLC, Steven K. Duddy holds sole voting and dispositive power over the shares held by such entity. |
(8) | As Member of Rubi Opportunity LLC, Barry Rubinfield holds sole voting and dispositive power over the shares held by such entity. |
(9) | As Managing Member of Xtra Alpha LLC, David Hoffman holds sole voting and dispositive power over the shares held by such entity. |
• | our Annual Report on Form 10-K for the year ended December 31, 2020, filed on March 31, 2021; |
• | our Quarterly Report on Form 10-Q for the periods ended March 31, 2021, June 30, 2021 and September 30, 2021 filed on May 24, 2021, August 16, 2021, and November 15, 2021 (as amended on November 16, 2021), respectively; |
• | our Current Report on Form 8-K, filed on January 4, 2021 (as amended on January 13, 2021), January 5, 2021, January 8, 2021, February 16, 2021, February 25, 2021, March 10, 2021, June 17, 2021, July 2, 2021, July 9, 2021, July 27, 2021, August 16, 2021, September 10, 2021, September 13, 2021, September 21, 2021, September 28, 2021, November 9, 2021, November 10, 2021, November 16, 2021, November 29, 2021, December 6, 2021, and January 14, 2022 (other than any portions thereof deemed furnished and not filed); |
• | our definitive proxy statement on Schedule 14A, filed on November 19, 2021 (as supplemented by the Definitive Additional Materials filed on December 6, 2021, December 13, 2021, December 14, 2021, December 17, 2021, December 21, 2021, and January 7, 2022); and |
• | 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, 2020, filed on March 31, 2021, including any amendment or reports filed for the purposes of updating this description. |
Item 14. | Other Expenses of Issuance and Distribution. |
| | Amount | |
SEC | | | $ |
Legal Fees and Expenses | | | |
Accounting Fees and Expenses | | | 15,000 |
Transfer Agent and Registrar fees and expenses | | | 2,000 |
Miscellaneous Expenses | | | 2,000 |
Total expenses | | | |
$ 34,080 |
Item 15. | Indemnification of Directors and Officers. |
Exhibit No. | |||
Description | |||
| Amended and Restated Certificate of | ||
| | Certificate of Amendment to the Certificate of Incorporation of the Registration (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the SEC on January 14, 2022). | |
| | Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the SEC on August 5, 2020). | |
| | Form of Common Stock Certificate (incorporated by reference from Exhibit 4.1 filed with Amendment No 1. to Registration Statement on Form S-1, filed July 29, 2016). | |
| | Opinion of Lowenstein Sandler LLP (filed herewith). | |
| | Consent of | |
| | Consent of Independent Registered Public Accounting Firm – Mazars USA LLP (filed herewith). | |
| | Consent of Independent Registered Public Accounting Firm – Plante & Moran, PLLC (filed herewith). | |
| | Power of Attorney |
* | Filed herewith. |
Item 17. | Undertakings |
(1) | To |
(a) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, |
(b) | 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement, |
(c) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective |
(3) | 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. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(a) | If the registrant is relying on Rule 430B: |
(i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 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 effective date, 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 effective date. |
(b) | If the registrant is subject to Rule 430C, 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 a 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. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the registrant undertakes that in a primary offering of securities of the 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 registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(a) | Any preliminary prospectus or prospectus of the registrant relating to the offering required to be filed pursuant to Rule 424; |
(b) | Any free writing prospectus relating to the offering prepared by or on behalf of the registrant or used or referred to by the registrant; |
(c) | The portion of any other free writing prospectus relating to the offering containing material information about the registrant or its securities provided by or on behalf of the registrant; and |
(d) | Any other communication that is an offer in the offering made by a registrant to the purchaser. |
(6) | That, for purposes of determining any liability under the Securities Act of 1933, each filing of the |
(7) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the forgoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue. |
| FIRST WAVE BIOPHARMA, INC. | |||||||||
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| By: | | | /s/ | James Sapirstein | |||||
| | | Name: | | | James Sapirstein | ||||
| | | | Title: | | | President, (Principal Executive Officer) |
Signature | | Title | | | Date | |
/s/ | | | President, Chief Executive Officer and Chairman of the Board (Principal Executive Officer) | | January 21, 2022 | |
James Sapirstein | | |||||
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/s/ | | | Chief Financial Officer (Principal Financial Officer and | | January 21, 2022 | |
Daniel Schneiderman | | |||||
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/s/ Edward J. Borkowski | | Director | | January 21, 2022 | ||
Edward J. Borkowski | | |||||
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/s/ Charles Casamento | | | Director | | | January 21, 2022 |
Charles Casamento | | |||||
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/s/ Alastair Riddell | | Director | | January 21, 2022 | ||
Alastair Riddell | | |||||
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/s/ | | Director | | January 21, 2022 | ||
Gregory Oaks | | |||||
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/s/ Terry Coelho | | | Director | | | January 21, 2022 |
Terry Coelho | |