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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):
September 14, 2023
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First Wave BioPharma, Inc. |
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(Exact name of registrant as specified in its charter) |
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Delaware |
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001-37853 |
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46-4993860 |
(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
777 Yamato Road, Suite 502
Boca Raton, Florida |
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33431 |
(Address of principal executive offices) |
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(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 |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common Stock, par value $0.0001 per share |
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FWBI |
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The 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 September 14, 2023, First
Wave BioPharma, Inc., a Delaware corporation (the “Company”), entered into warrant exercise inducement offer letters (the
“Inducement Letters”) with certain holders (the “Holders”) of warrants to purchase shares of the Company’s
common stock (the “Existing Warrants”) pursuant to which the Holders agreed to exercise for cash their Existing Warrants to
purchase 5,882,036 shares of the Company’s common stock, in the aggregate, at a reduced exercised price of $0.43 per share, in exchange
for the Company’s agreement to issue new warrants (the “Inducement Warrants”) on substantially the same terms as the
Existing Warrants as described below, to purchase up to 11,764,072 shares of the Company’s common stock (the “Inducement Warrant
Shares”) and a cash payment of $0.125 per Inducement Warrant Share which was paid in full upon the exercise of the Existing Warrants.
The Company received aggregate gross proceeds of approximately $4.0 million from the exercise of the Existing Warrants by the Holders
and the sale of the Inducement Warrants. The Company engaged Roth Capital Partners, LLC (“Roth”) to act as its financial advisor
in connection with the transactions summarized above and will pay Roth $220,000 for its services, in addition to reimbursement for certain
expenses.
The shares of the Company’s
common stock issuable upon exercise of the Existing Warrants are registered pursuant to existing registration statements declared effective
by the Securities and Exchange Commission (the “SEC”).
The Company also agreed to
file a registration statement on Form S-3 covering the resale of the Inducement Warrant Shares issued or issuable upon the exercise of
the Inducement Warrants (the “Resale Registration Statement”) by September 24, 2023. In the Inducement Letters, the Company
agreed not to issue any shares of common stock or common stock equivalents or to file any other registration statement with the SEC (in
each case, subject to certain exceptions) for a period ending on the later of (i) October 30, 2023 or (ii) the date the Resale Registration
Statement is declared effective by the SEC. The Company also agreed not to effect or agree to effect any variable rate transaction (as
defined in the Inducement Letters) until September 14, 2024.
Inducement Warrant Terms
The following summary of certain
terms and provisions of the Inducement Warrants is not complete and is subject to, and qualified in its entirety by, the provisions of
the Inducement Warrants, the form of which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The following description of the Inducement Warrants is qualified in its entirety by reference to such exhibit.
Duration and Exercise Price
Each Inducement Warrant will
have an exercise price equal to $0.43 per share. The Inducement Warrants will be immediately exercisable and may be exercised until the
fifth anniversary of the initial exercise date. The exercise price and number of shares of common stock issuable upon exercise is subject
to appropriate adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting our common stock
and the exercise price. The Inducement Warrants will be issued in certificated form only.
Exercisability
The Inducement Warrants will
be exercisable, at the option of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by
payment in full for the number of shares of our common stock purchased upon such exercise (except in the case of a cashless exercise as
discussed below). A holder (together with its affiliates) may not exercise any portion of such holder’s Inducement Warrants to the
extent that the holder would own more than 4.99% of the outstanding common stock immediately after exercise, except that upon at least
61 days’ prior notice from the holder to us, the holder may increase the amount of ownership of outstanding stock after exercising
the holder’s Inducement Warrants up to 9.99% of the number of shares of our common stock outstanding immediately after giving effect
to the exercise, as such percentage ownership is determined in accordance with the terms of the Inducement Warrants.
Cashless Exercise
If, at the time a holder exercises
its Inducement Warrants, a registration statement registering the issuance of the shares of common stock underlying the Inducement Warrants
under the Securities Act is not then effective or available for the issuance of such shares, then in lieu of making the cash payment otherwise
contemplated to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon
such exercise (either in whole or in part) the net number of shares of common stock determined according to a formula set forth in the
Inducement Warrant.
Fundamental Transactions
In the event of any fundamental
transaction, as described in the Inducement Warrants and generally including any merger with or into another entity, sale of all or substantially
all of our assets, tender offer or exchange offer, or reclassification of our common stock, then upon any subsequent exercise of an Inducement
Warrant, the holder will have the right to receive as alternative consideration, for each share of our common stock that would have been
issuable upon such exercise immediately prior to the occurrence of such fundamental transaction, the number of shares of common stock
of the successor or acquiring corporation or of our company, if it is the surviving corporation, and any additional consideration receivable
upon or as a result of such transaction by a holder of the number of shares of our common stock for which the Inducement Warrant is exercisable
immediately prior to such event. Notwithstanding the foregoing, in the event of a fundamental transaction, the holders of the Inducement
Warrants have the right to require us or a successor entity to redeem the Inducement Warrants for cash in the amount of the Black-Scholes
Value (as defined in each Inducement Warrant) of the unexercised portion of the Inducement Warrants concurrently with or within 30 days
following the consummation of a fundamental transaction.
However, in the event of a
fundamental transaction which is not in our control, including a fundamental transaction not approved by our board of directors, the holders
of the Inducement Warrants will only be entitled to receive from us or our successor entity, as of the date of consummation of such fundamental
transaction the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion
of the Inducement Warrant that is being offered and paid to the holders of our common stock in connection with the fundamental transaction,
whether that consideration is in the form of cash, stock or any combination of cash and stock, or whether the holders of our common stock
are given the choice to receive alternative forms of consideration in connection with the fundamental transaction.
Transferability
Subject to applicable laws,
an Inducement Warrant may be transferred at the option of the holder upon surrender of the Inducement Warrant to us together with the
appropriate instruments of transfer.
Fractional Shares
No fractional shares of common
stock will be issued upon the exercise of the Inducement Warrants. Rather, the number of shares of common stock to be issued will, at
our election, either be rounded up to the next whole share or we will pay a cash adjustment in respect of such final fraction in an amount
equal to such fraction multiplied by the exercise price.
Trading Market
There is no established trading
market for the Inducement Warrants, and we do not expect an active trading market to develop. We do not intend to apply to list the Inducement
Warrants on any securities exchange or other trading market. Without a trading market, the liquidity of the Inducement Warrants will be
extremely limited.
Right as a Stockholder
Except as otherwise provided
in the Inducement Warrants or by virtue of the holder’s ownership of shares of our common stock, such holder of Inducement Warrants
does not have the rights or privileges of a holder of our common stock, including any voting rights, until such holder exercises such
holder’s Inducement Warrants. The Inducement Warrants will provide that the holders of the Inducement Warrants have the right to
participate in distributions or dividends paid on our shares of common stock.
Waivers and Amendments
The Inducement Warrant may
be modified or amended or the provisions of the Inducement Warrant waived with our and the holder’s written consent.
The forms of Inducement Letter
and Inducement Warrant are attached as Exhibits 10.1 and 4.1, respectively. The description of the terms of the Inducement Letter and
the Inducement Warrant is not intended to be complete and is qualified in its entirety by reference to such exhibits. The Inducement Letters
contain customary representations, warranties and covenants by the Company which 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.
On September 14, 2023, the
Company issued a press release disclosing the transactions described herein, a copy of which is filed as Exhibit 99.1 to this Current
Report on Form 8-K.
Item 3.02 |
Unregistered Sales of Equity Securities. |
The Company issued the Inducement
Warrants pursuant to the exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities
Act”), available under Section 4(a)(2) and/or Rule 506(b) of Regulation D promulgated thereunder and intends to issue the Inducement
Warrant Shares pursuant to the same exemption or pursuant to the exemption provided by Section 3(a)(9) of the Securities Act. The description
of the Inducement Warrants under Item 1.01 of this Form 8-K is incorporated by reference herein. The form of the Inducement Warrant has
been filed as an exhibit to this Form 8-K and is incorporated by reference herein.
Item 3.03 |
Material Modifications to Rights of Security Holders. |
The disclosure set forth under
Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference into this Item 3.03 in its entirety.
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.
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First Wave BioPharma, Inc. |
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September 15, 2023 |
By: |
/s/ James Sapirstein |
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Name: |
James Sapirstein |
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Title: |
Chief Executive Officer |
Exhibit 4.1
NEITHER THIS SECURITY NOR THE
SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
FIRST
WAVE BIOPHARMA, InC.
Warrant Shares: ________ |
Initial Exercise Date: September __, 2023 |
THIS COMMON STOCK PURCHASE
WARRANT (the “Warrant”) certifies that, for value received, or its assigns (the “Holder”) is entitled,
upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time at any time on or after
September __ 2023 (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on September __,
2028 (the “Termination Date”) but not thereafter, to subscribe for and purchase from First Wave BioPharma, Inc., a
Delaware corporation (the “Company”), up to _____ shares (as subject to adjustment hereunder, the “Warrant
Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise
Price, as defined in Section 2(b).
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the reasonable
fees and expenses of which shall be paid by the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which banking institutions in the State of New York are authorized or required by law or other governmental action to close; provided,
however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay
at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions
or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer
systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Letter
Agreement” means the Reprice and Reload Offer Letter Agreement, dated as of September __, 2023, between the Company and the
Holder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading
Day” means a day on which the Common Stock is traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock
Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means Colonial Stock Transfer Company, Inc.,
the current transfer agent of the Company, with a mailing address of 66 Exchange Place, 1st Floor, Salt Lake City, Utah 84111, and any
successor transfer agent of the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the reasonable
fees and expenses of which shall be paid by the Company.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or
after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form attached hereto as Annex A (the “Notice of Exercise”).
Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the
Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank,
in either case in immediately available funds, unless the cashless exercise procedure specified in Section 2(c) below is specified in
the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other
type of guarantee or notarization) of any Notice of Exercise be required. The Company shall have no obligation to inquire with respect
to or otherwise confirm the authenticity of the signature(s) contained on any Notice of Exercise nor the authority of the person so executing
such Notice of Exercise. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this
Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised
in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the
date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a
portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
b)
Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $____, subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the resale of the Warrant Shares by the Holder, then this Warrant may also be exercised, in whole
or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) |
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s
execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours”
on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular
trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of
Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant
to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
|
|
|
(B) |
= |
the Exercise Price of this Warrant,
as adjusted hereunder; and |
|
|
|
(X) |
= |
the number of Warrant Shares
that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means
of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant
Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary
to this Section 2(c).
d)
Mechanics of Exercise.
| i. | Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased
hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s
balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if
the Company’s transfer agent is then a participant in such system and either (A) there is an effective registration statement permitting
the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale
by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise
by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for
the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice
of Exercise by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise,
(ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising
the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery
Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder
of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant
Shares, provided that the Company shall have received payment of the aggregate Exercise Price (other than in the case of a cashless exercise)
is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period
following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject
to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay, beginning one Trading Day after the Warrant Share Delivery
Date, to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based
on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading
Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date
until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant
in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of the delivery of the Notice of Exercise. |
ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares remaining available under this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise by delivering written
notice to the Company at any time prior to the delivery of such Warrant Shares (in which case any liquidated damages payable under Section
2(d)(i) shall no longer be payable.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares
of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such
exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including reasonable and customary brokerage commissions, if any) for the shares of Common Stock so purchased exceeds
(y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection
with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at
the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise
was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock
that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares
of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding
sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts
payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall
limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common
Stock upon exercise of the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the
Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;
provided, however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this
Warrant when surrendered for exercise shall be accompanied by the assignment form attached hereto as Annex B (the “Assignment
Form”) duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse
it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice
of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required
for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Beneficial Ownership Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have
the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such
issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and
any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of
the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties
shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is
being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section
2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance
with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith
and the calculations required under this Section 2(e). To the extent that the limitation contained in this Section 2(e) applies, the determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice
of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities
owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each
case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such
determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A)
the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock
outstanding. Upon the written request of a Holder, the Company shall within one (1) Trading Day confirm orally and in writing to
the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock
shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder
or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The
“Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company,
may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation
in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares
of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any
increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to
the Company. The provisions of this Section 2(e) shall be construed and implemented in a manner otherwise than in strict conformity with
the terms of this Section 2(e) to correct this Section 2(e) (or any portion hereof) which may be defective or inconsistent with the intended
Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such
limitation. The limitations contained in this Section 2(e) shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable
in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise
of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares
of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the
number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this
Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time while this Warrant
is outstanding the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other
property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard
to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date
on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which
the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided,
however, that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent
(or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to
such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding
the Beneficial Ownership Limitation); provided, that such Purchase Right shall terminate on, and shall not be held in abeyance for any
period subsequent to the Termination Date.
c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any
dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return
of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way
of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that to the extent that the Holder's right to participate in any such Distribution would result in the Holder exceeding
the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the
beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation); provided, that such Purchase Right shall terminate on, and shall not be held in abeyance
for any period subsequent to the Termination Date.
d)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company (and all of its Subsidiaries,
taken as a whole), directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with
or into another Person (other than for the purpose of changing the Company’s name and/or the jurisdiction of incorporation of the
Company or a holding company for the Company), (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment,
transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii)
any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant
to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has
been accepted by the holders of 50% or more of the outstanding shares of Common Stock, (iv) the Company, directly or indirectly, in one
or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v)
the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another
Person or group of Persons whereby such other Person or group acquires securities representing more than 50% of the aggregate voting power,
including the power to vote on the election of directors of the Company, of the issued and outstanding equity securities of the Company
(not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with
the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental
Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant
Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option
of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock
of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the
“Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares
of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation
in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of
one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration
in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be
given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction.
Notwithstanding anything to the contrary, in the event of a Fundamental Transaction (other than (x) any stock split or reverse stock split,
(y) any transaction effected solely for the purpose of changing the jurisdiction of incorporation of the Company, or (z) any holding company
reorganization or parent-subsidiary merger not requiring stockholder approval pursuant to Sections 251(g) or 253 of the Delaware General
Corporation Law (or any successor provisions thereof)), the Company or any Successor Entity (as defined below) shall, at the Holder’s
option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later,
the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the
Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the
date of the consummation of such Fundamental Transaction; provided, however, if the Fundamental Transaction is not within the Company's
control, including not approved by the Company's Board of Directors, Holder shall only be entitled to receive from the Company or any
Successor Entity, as of the date of consummation of such Fundamental Transaction, the same type or form of consideration (and in the same
proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common
Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination
thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection
with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration
in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which
Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value”
means the value of this Warrant based on the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg
determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free
interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the
applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the 100 day volatility obtained from
the HVT function on Bloomberg (determined utilizing a 365-day annualization factor) as of the Trading Day immediately following the public
announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater
of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered
in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the announcement
of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the
Trading Day of the Holder’s request pursuant to this Section 3(d) and (D) a remaining option time equal to the time between the
date of the public announcement of the applicable Fundamental Transaction and the Termination Date. The payment of the Black Scholes Value
will be made by wire transfer of immediately available funds within five (5) Trading Days of the Holder’s election (or, if later,
on the effective date of the Fundamental Transaction). The Company shall require any successor entity in a Fundamental Transaction
in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the
Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written
agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to
such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of
the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and
be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction
Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power
of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the
same effect as if such Successor Entity had been named as the Company herein.
e)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share,
as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given
date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form)
on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with
any reclassification of the Common Stock, any consolidation or merger to which the Company (and all of its Subsidiaries, taken as a whole)
is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the
Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder
at its last email or other address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the
applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of
the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y)
the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close,
and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common
Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange;
provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the
corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains,
material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with
the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing
on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer
of Warrant.
a)
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d)
hereof, and to the provisions of Section (f) of Annex A to the Letter Agreement, this Warrant and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office
of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto
duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall
issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender
this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers a duly executed Assignment Form to
the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new
holder for the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed
by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Exercise Date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat
the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
d)
Transfer Restrictions. If, at the time
of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i)
registered pursuant to an effective registration statement under the Securities Act
and under applicable state securities or blue sky laws or (ii) eligible for resale without volume
or manner-of-sale restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition
of allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, provides to the Company an opinion of counsel,
the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that the transfer of this Warrant
does not require registration under the Securities Act.
e)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to
or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a)
No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting
rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except
as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company
be required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding
Trading Day.
d)
Authorized Shares.
The Company covenants
that during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of
issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take such reasonable
action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law
or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all
Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase
rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than
taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take such action as may be necessary or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to
obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e)
Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. The Company and, by accepting this Warrant, the Holder each agrees that all legal proceedings concerning
the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether brought against the Company or
the Holder or their respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New York. The Company and, by accepting this Warrant, the Holder each
hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of
Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such
proceeding. The Company and, by accepting this Warrant, the Holder each hereby irrevocably waives personal service of process and consents
to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight
delivery (with evidence of delivery) to it at the address in effect for notices to it under this Warrant and agrees that such service
shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any other manner permitted by law. If the Company or the Holder shall commence an action, suit or proceeding
to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party
for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such action or proceeding.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other
provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in
any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses
including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by email or sent by a nationally recognized overnight
courier service, addressed to the Company, at 777 Yamato Road, Suite 502, Boca Raton, Florida 33431, Attention: Sarah Romano, Chief Financial
Officer, email address: sromano@firstwavebio.com, or such other email address or address as the Company may specify for such purposes
by notice to the Holder. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in
writing and delivered personally, by email, or sent by a nationally recognized overnight courier service addressed to the Holder at the
email address or address of the Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder
shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via
email at the email address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after
the time of transmission, if such notice or communication is delivered via email at the email address set forth in this Section on a
day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following
the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom
such notice is required to be given. To the extent that any notice provided by the Company hereunder constitutes, or contains, material,
non-public information regarding the Company or any subsidiaries, the Company shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K.
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by such Holder.
l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company
and the Holder.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
o) Electronic Signatures. Electronically scanned and transmitted signatures, including by email attachment, shall be deemed
originals for all purposes of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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First wave biopharma, inc. |
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Name: James Sapirstein |
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Title: Chief Executive Officer |
Annex A
NOTICE OF EXERCISE
To: First
wave biopharma, inc.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant
(only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes,
if any.
(2)
Payment shall take the form of (check applicable box):
¨ in lawful money
of the United States; or
¨ if permitted
the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise
this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in
subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the
following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4) Accredited Investor.
The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name of Investing Entity: _____________________________________________________________________________________________________
Signature of Authorized Signatory of Investing
Entity: ______________________________________________________________________________
Name of Authorized Signatory: _________________________________________________________________________________________________
Title of Authorized Signatory: __________________________________________________________________________________________________
Date: _____________________________________________________________________________________________________________________
Annex B
ASSIGNMENT FORM
(To assign the foregoing
Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the
foregoing Warrant and all rights evidenced thereby are hereby assigned to
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Exhibit 10.1
September 14, 2023
[Name and address of warrant holder]
Re: Reprice
and Reload Offer of Common Stock Purchase Warrants
To Whom It May Concern:
First Wave BioPharma, Inc.
(the “Company”) is pleased to offer to you the opportunity to receive new Common Stock purchase warrants of the Company
in consideration for the exercise of the Common Stock purchase warrants issued to you on or about March 15, 2023 (the “March
Warrants”) and the exercise of the Common Stock purchase warrants issued to you on or about July 21, 2023 (the “July
Warrants and together with the March Warrant, the “Existing Warrants”) currently held by you (the “Holder”).
The shares of common stock, par value $0.0001 (“Common Stock”), underlying March Warrants (the “March Warrant
Shares”) have been registered for resale pursuant to a registration statement on Form S-3 (File No. 333-270723)(the “March
Registration Statement”) and the shares of Common Stock underlying the July Warrants (the “July Warrant Shares”
and together with the March Warrant Shares, the “Existing Warrant Shares”) have been registered pursuant to a registration
statement on Form S-1 (File No. 333-272404)(the “July Registration Statement” and together with the March Registration
Statement, the ”Registration Statements”). The Registration Statements are currently effective and, upon exercise of
the Existing Warrants, will, to the Company’s knowledge, be effective for the issuance of the Existing Warrant Shares. Capitalized
terms not otherwise defined herein shall have the meanings set forth in the Existing Warrants.
The Company desires to reduce
the Exercise Price of the Existing Warrants set forth on your signature page attached hereto to $0.43 (the “Reduced Exercise
Price”). In consideration for cash exercising of the Existing Warrants held by you and being exercised on the date hereof (the
“Warrant Exercise”) on or before 11:00 a.m. (New York City time) on September 14, 2023 (the “Offer Expiration
Time”) , the Company hereby offers to sell you or your designees a new Common Stock Purchase Warrant (the “New Warrants”)
to purchase up to a number of shares of Common Stock equal to 200% of the number of Existing Warrant Shares issued pursuant to each Warrant
Exercise that occurs from and after the date hereof and prior to the Offer Expiration Time, which New Warrant (as defined below) shall
be substantially in the form of the Existing Warrants. For the purposes of clarification, the portion of the Existing Warrants held by
you after the date hereof will not have the Exercise Price reduced to the Reduced Exercise Price. The purchase price of the New Warrant
shall equal the $0.125 times the number of shares underlying the New Warrant. The new Common Stock Purchase Warrants will be immediately
exercisable, expire five years from the Offer Expiration Time, and have an exercise price equal to $0.43, and will be in the form
set forth on Annex B hereto. The original New Warrant certificates will be delivered within two Business Days following the Offer
Expiration Time. Notwithstanding anything herein to the contrary, in the event the Warrant Exercise would otherwise cause the Holder to
exceed the beneficial ownership limitations (“Beneficial Ownership Limitation”) set forth in Section 1(f) of the Existing
Warrants, the Company shall only issue such number of Warrant Shares to the Holder that would not cause the Holder to exceed the maximum
number of Warrant Shares permitted thereunder with the balance to be held in abeyance until notice from the Holder that the balance (or
portion thereof) may be issued in compliance with such limitations, which abeyance shall be evidenced through the Existing Warrant which
shall be deemed prepaid thereafter, and exercised pursuant to a Notice of Exercise in the Existing Warrant (provided no additional exercise
price shall be payable).
The Holder may accept this
offer by signing this letter below, with such acceptance constituting the Holder’s exercise of the number of Existing Warrants as
set forth on the Holder's signature page attached hereto for an aggregate exercise price as set forth on the Holder’s signature
page hereto (the “Aggregate Exercise Price”) on or before the Offer Expiration Time.
Additionally, the Company
agrees to the representations, warranties and covenants set forth on Annex A attached hereto. Holder represents and warrants that,
as of the date hereof it is, and on each date on which it exercises any New Warrants it will be, an “accredited investor”
as defined in Rule 501 of the Securities Act, and agrees that the New Warrants will contain restrictive legends when issued, and neither
the New Warrants nor the shares of Common Stock issuable upon exercise of the New Warrants will be registered under the Securities Act,
except as provided in Annex A attached hereto.
If this offer is accepted
and this letter agreement is executed and delivered to the Company on or before the Offer Expiration Time, the Company shall issue a press
release disclosing the material terms of the transactions contemplated hereby (the “Press Release”) on or before 11:00
a.m. (New York City time) on September 14, 2023 and (ii) file a Current Report on Form 8-K with the Securities and Exchange Commission
disclosing all material terms of the transactions contemplated hereunder, including this letter agreement as an exhibit thereto with the
Commission within the time required by the Exchange Act. From and after the issuance of the Press Release, the Company represents to the
Holder that it shall have publicly disclosed all material, non-public information delivered to the Holder by the Company or any of its
officers, directors, employees or agents in connection with the transactions contemplated hereby. In addition, effective upon the issuance
of the Press Release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement,
whether written or oral, between the Company or any of its officers, directors, agents, employees or Affiliates on the one hand, and the
Holder or any of its Affiliates on the other hand, shall terminate. From and after the issuance of the Press Release, the Company represents
to the Holder that none of the Company’s directors, officers, employees or agents will provide the Holder with any material, nonpublic
information that is not disclosed in the Press Release.
The Company represents, warrants
and covenants that, upon acceptance of this offer, all of the Existing Warrant Shares being exercised shall be delivered electronically
through the Depository Trust Company within one (1) Trading Day of the date the Company receives the Aggregate Exercise Price (or, with
respect to shares of Common Stock that would otherwise be in excess of the Beneficial Ownership Limitation, within one (1) Business Day
of the date the Company is notified by Holder that its ownership is less than the Beneficial Ownership Limitation). Except as set forth
herein, the terms of the Existing Warrants, including but not limited to the obligations to deliver the Existing Warrant Shares, shall
remain in effect as if the acceptance of this offer was a formal exercise notice under the Existing Warrants.
Each party shall pay the fees
and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this letter agreement. The Company shall pay all transfer agent fees,
stamp taxes and other taxes and duties levied in connection with the delivery of any Existing Warrant Shares. This letter agreement shall
be governed by the laws of the State of New York without regard to the principles of conflicts of law thereof.
***************
To accept this offer and to
provide written consent to reduce the Exercise Price of the Existing Warrants, Holder must counter execute this letter agreement and return
the fully executed letter agreement to the Company at e-mail: ___________, attention: _________, on or before the Offer Expiration Time.
Please do not hesitate to
call me if you have any questions.
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Sincerely yours, |
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FIRST WAVE BIOPHARMA, INC. |
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Title: |
Accepted and Agreed to:
Name of Holder: ________________________________________________________
Signature of Authorized Signatory of Holder:
_________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
March Warrant Shares being exercised:____________
July Warrant Shares being exercised: ___________________
Aggregate Exercise Price of the Existing Warrants
at the Reduced Exercise Price being exercised contemporaneously with signing this letter: $___________________
New Warrant Shares: _________________
New Warrant Purchase Price: ______________
Beneficial Ownership Limitation New Warrant: 4.99%/9.99%
Address for Delivery of New Warrant: _________________________
DTC Instructions:
The Existing Warrant Shares
shall be delivered to the following DWAC Account Number:
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Annex A – Representations and Warranties
Representations, Warranties and Covenants of
the Company. The Company hereby makes the following representations and warranties to the Holder:
(a) Registration Statements. The March Warrant Shares been registered for resale pursuant to the March Registration Statement
and the July Warrant Shares have been registered pursuant to the July Registration Statement and the Company knows of no reason why the
Registration Statements shall not remain effective for the foreseeable future. The Company shall use commercially reasonable efforts to
keep the Registration Statements effective and available for use by the Holder until all Existing Warrant Shares underlying the Existing
Warrants are sold by the Holder.
(b)
Authorization; Enforcement. The Company will have the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this letter agreement and otherwise to carry out its obligations hereunder and thereunder. The execution
and delivery of this letter agreement by the Company and the consummation by the Company of the transactions contemplated hereby will
be duly authorized by all necessary action on the part of the Company and no further action is required by the Company, its board of directors
or its stockholders in connection therewith. This letter agreement has been duly executed by the Company and, when delivered in accordance
with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with
its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(c)
No Conflicts. The execution, delivery and performance of this letter agreement by the Company and the consummation by the
Company of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Company’s
certificate of incorporation, bylaws or other organizational or charter documents; or (ii) conflict with, or constitute a default (or
an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties
or assets of the Company in connection with, or give to others any rights of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of, any material agreement, credit facility, debt or other material instrument (evidencing Company
debt or otherwise) or other material understanding to which such Company is a party or by which any property or asset of the Company is
bound or affected, other than for which a waiver has been obtained by the Company; or (iii) subject to Section (d) below, conflict with
or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company is subject (including federal and state securities laws and regulations), or by which any property or asset
of the Company is bound or affected.
(d)
Nasdaq Corporate Governance. To the Company’s knowledge, the transactions contemplated under this letter agreement,
comply with all rules of Nasdaq.
(e)
Issuance of the New Warrant. The issuance of the New Warrants will be duly authorized and, upon the execution of this letter
agreement by the undersigned, will be duly and validly issued, fully paid and nonassessable, free and clear of all liens imposed by the
Company, and the shares issuable upon exercise of the New Warrant (the “New Warrant Shares”), when issued in accordance
with the terms of the New Warrant, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Company will reserve from its duly authorized capital stock a number of shares of Common Stock for issuance of the New Warrant Shares
in full.
(f)
Legends and Transfer Restrictions.
(i) The New Warrant and New Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection
with any transfer of New Warrant or New Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the
Company or to an Affiliate of the undersigned or in connection with a pledge, the Company may require the transferor thereof to provide
to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which
opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred
New Warrant and New Warrant Shares under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to
be bound by the terms of this letter agreement.
(ii)
The undersigned agrees to the imprinting, so long as is required by this Section (i), of a legend on any of the New Warrant and
New Warrant Shares in the following form:
NEITHER THIS SECURITY NOR THE SECURITIES
FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF
ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The Company
acknowledges and agrees that the undersigned may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer
or grant a security interest in some or all of the New Warrant to a financial institution that is an “accredited investor”
as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this letter agreement and, if required
under the terms of such arrangement, the undersigned may transfer pledged or secured New Warrant to the pledgees or secured parties. Such
a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party
or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate undersigned’s
expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of New Warrant may reasonably
request in connection with a pledge or transfer of the New Warrant or New Warrant Shares.
(iii) Certificates
evidencing the New Warrant Shares shall not contain any legend (including the legend set forth in Section (f)(ii) hereof), (i) while
a registration statement covering the resale of such security is effective under the Securities Act, (ii) following any sale of such
New Warrant Shares pursuant to Rule 144, or (iii) if such New Warrant Shares are eligible for sale under Rule 144. The Company shall
cause its counsel to issue a legal opinion to its transfer agent (if required by the transfer agent) and the undersigned (if requested
by the undersigned) in connection with the removal of the legend hereunder. If all or any portion of a New Warrant is exercised at a
time when there is an effective registration statement to cover the resale of the New Warrant Shares, or if such New Warrant Shares may
be sold under Rule 144, then such New Warrant Shares shall be issued free of all legends. The Company agrees that following such time
as such legend is no longer required under this clause (iii), it will, no later than the earlier of (i) two (2) Trading Days and (ii)
the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the
Company or the Transfer Agent of a certificate representing Warrant Shares, as applicable, issued with a restrictive legend (such date,
the “Legend Removal Date”), deliver or cause to be delivered to the undersigned a certificate representing such shares that
is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the transfer
agent that enlarge the restrictions on transfer set forth in this Section (f). Certificates for New Warrant Shares subject to legend
removal hereunder shall be transmitted by the transfer agent to the undersigned by crediting the account of the undersigned’s prime
broker with the Depository Trust Company System as directed by the undersigned. “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock
as in effect on the date of delivery of a certificate representing Warrant Shares issued with a restrictive legend.
(iv) In addition to such undersigned’s other available remedies, the Company shall pay to the undersigned, in cash, (i) as partial
liquidated damages and not as a penalty, for each $1,000 of New Warrant Shares (based on the VWAP of the Common Stock on the date such
Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section (f)(iii), $10 per
Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after
the Legend Removal Date until such certificate is delivered without a legend and (ii) if the Company fails to (a) issue and deliver (or
cause to be delivered) to the undersigned by the Legend Removal Date a certificate representing the Securities so delivered to the Company
by such undersigned that is free from all restrictive and other legends and (b) if after the Legend Removal Date such undersigned purchases
(in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such undersigned of all or
any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the
number of shares of Common Stock that such undersigned anticipated receiving from the Company without any restrictive legend, then, an
amount equal to the excess of such undersigned’s total purchase price (including brokerage commissions and other out-of-pocket expenses,
if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In
Price”) over the product of (A) such number of New Warrant Shares that the Company was required to deliver to such undersigned
by the Legend Removal Date multiplied by (B) the lowest closing sale price of the Common Stock on any Trading Day during the period commencing
on the date of the delivery by such undersigned to the Company of the applicable New Warrant Shares (as the case may be) and ending on
the date of such delivery and payment under this clause (ii).
(g)
Public Information Failure. At any time during the period commencing from the six (6) month anniversary of the date hereof
and ending at such time that all of the New Warrant Shares may be sold without the requirement for the Company to be in compliance with
Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if there is no effective registration statement covering
the resale of all of the New Warrant Shares and the Company (i) shall fail for any reason to satisfy the current public information requirement
under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall
fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to the
undersigned’s other available remedies, the Company shall pay to the undersigned, in cash, as partial liquidated damages and not
as a penalty, by reason of any such delay in or reduction of its ability to sell the New Warrant Shares, an amount in cash equal to two
percent (2.0%) of the aggregate Exercise Price of the undersigned’s New Warrant on the day of a Public Information Failure and on
every thirtieth (30th) day (pro-rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public
Information Failure is cured and (b) such time that such public information is no longer required for the undersigned to transfer the
New Warrant Shares pursuant to Rule 144. The payments to which the undersigned shall be entitled pursuant to this Section (g) are referred
to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i)
the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business
Day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make
Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5%
per month (prorated for partial months) until paid in full. Nothing herein shall limit the undersigned’s right to pursue actual
damages for the Public Information Failure, and the undersigned shall have the right to pursue all remedies available to it at law or
in equity including, without limitation, a decree of specific performance and/or injunctive relief.
(h)
Listing of Common Stock. The Company shall apply to list or quote all of the New Warrant Shares on Nasdaq and promptly secure
the listing of all of the New Warrant Shares on Nasdaq.
(i)
Registration Statement. As soon as practicable (and in any event within ten (10) calendar days of the date of this Agreement),
the Company shall file a registration statement on Form S-3 (or other appropriate form if the Company is not then S-3 eligible) providing
for the resale by the Holders of the New Warrant Shares issued and issuable upon exercise of the New Warrants. The Company shall
use commercially reasonable efforts to cause such registration to become effective on or prior to the 30th calendar day after
the initial filing date and to keep such registration statement effective at all times until no Holder owns any New Warrants or New Warrant
Shares issuable upon exercise thereof.
(j)
Subsequent Equity Sales. From the date hereof until 45 days following the date hereof, neither the Company nor any Subsidiary
shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common
Stock Equivalents or (ii) file any registration statement or any amendment or supplement thereto, in each case other than the registration
statement registering the New Warrant Shares or a registration statement on Form S-8. Notwithstanding the foregoing, this Section (j)
shall not apply in respect of an Exempt Issuance. As used herein, “Exempt Issuance” means the issuance of (a) shares of Common
Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose
by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors
established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or
other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this
Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities
or to decrease the exercise price, exchange price or conversion price of such securities (except for such decreases in exercise, exchange
or conversion price in accordance with the terms of such securities) or to extend the term of such securities, (c) upon the exercise or
exchange of or conversion of any securities issued pursuant to such agreement, provided that such securities have not been amended since
the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price
of such securities (except for such decreases in exercise, exchange or conversion price in accordance with the terms of such securities)
or to extend the term of such securities, and (d) securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith
until the registration statement registering all of the New Warrant Shares is declared effective, and provided that any such issuance
shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or
an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in
addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the
purpose of raising capital or to an entity whose primary business is investing in securities.
(k) From the date hereof until the one-year anniversary of the date hereof, the Company shall be prohibited from effecting or entering
into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination
of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the
Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right
to receive, additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is
based upon, and/or varies with, the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance
of such debt or equity securities or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date
after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement,
including, but not limited to, an equity line of credit or an “at-the-market offering,” whereby the Company may issue securities
at a future determined price, regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether
such agreement is subsequently canceled; provided, however, that, after the six month anniversary of the Closing Date, the
entry into and/or issuance of shares of Common Stock in an “at the market” offering shall not be deemed a Variable Rate Transaction.
The Holder shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition
to any right to collect damages.
Annex B – Form of New Warrant
Exhibit 99.1
First
Wave BioPharma Announces Exercise of Warrants and Issuance of New Warrants in a Private Placement for $4.0 Million Gross Proceeds Priced
At-the-Market
BOCA RATON,
Fla., September 14, 2023 (GLOBE NEWSWIRE) -- First Wave BioPharma, Inc. (“First Wave BioPharma” or the “Company”)
(NASDAQ: FWBI), a clinical-stage biopharmaceutical company specializing in the development of targeted, non-systemic therapies for gastrointestinal
(GI) diseases, today announced it has entered into agreements with certain holders of its existing warrants exercisable for 5,882,036
shares of its common stock, in the aggregate, to exercise their warrants at a reduced exercise price of $0.43 per share, in exchange
for new warrants as described below. The aggregate gross proceeds from the exercise of the existing warrants is expected to total approximately
$4.0 million, before deducting financial advisory fees. The reduction in the exercise price of the existing warrants and the issuance
of the new warrants was structured as an at-market transaction under Nasdaq rules.
Roth
Capital Partners is acting as the Company’s financial advisor for this transaction.
The
shares of common stock issuable upon exercise of the warrants are registered pursuant to a registration statement on Form S-3 (File No.
333-270723) which was declared by the Securities and Exchange Commission (SEC) on March 27, 2023 and a registration statement on Form
S-1 (File No. 333-272404) which was declared effective by the SEC on July 17, 2023.
In
consideration for the immediate exercise of the warrants for cash and the payment of $0.125 per share underlying the new warrants, the
exercising holders will receive new warrants to purchase shares of common stock in a private placement pursuant to Section 4(a)(2) of
the Securities Act of 1933, as amended (the “1933 Act”). The new warrants will be exercisable into an aggregate of up to
11,764,072 shares of common stock, at an exercise price of $0.43 per share and have a term of exercise equal to five years. The securities
offered in the private placement have not been registered under the Securities Act of 1933, as amended, or applicable under state securities
laws. Accordingly, the securities may not be offered or sold in the United States except pursuant to an effective registration statement
or an applicable exemption from the registration requirements of the Securities Act and such applicable state securities laws. As part
of the transaction, the Company has agreed to file a resale registration statement on Form S-3 with the Securities and Exchange Commission
within 10 days of the closing to register the resale of the shares of common stock underlying the new warrants issued in the private
placement.
This
press release does not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be any sale
of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification
under the securities laws of any such jurisdiction.
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
– Capeserod, a selective 5-HT4 receptor partial agonist which First Wave will pursue for gastrointestinal (GI) indications; 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; 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
Statement
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
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First Wave BioPharma (NASDAQ:FWBI)
過去 株価チャート
から 4 2024 まで 5 2024
First Wave BioPharma (NASDAQ:FWBI)
過去 株価チャート
から 5 2023 まで 5 2024