Attached files
file | filename |
---|---|
EX-23.1 - CONSENTS OF EXPERTS AND COUNSEL - AzurRx BioPharma, Inc. | ex23-1.htm |
As filed with the Securities and Exchange Commission on July 20,
2017
Registration
No. 333-_________
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AZURRX BIOPHARMA, INC.
(Exact
name of registrant as specified in its charter)
Delaware
|
2834
|
46-4993860
|
(State
or other jurisdiction of
incorporation
or organization)
|
(Primary
standard industrial
classification
code number)
|
(I.R.S.
employer
identification
number)
|
760 Parkside Avenue
Downstate Biotechnology Incubator, Suite 304
Brooklyn, New York 11226
(646) 699-7855
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive
offices)
Johan M. (Thijs) Spoor, President and Chief Executive
Officer
AzurRx BioPharma, Inc.
760 Parkside Avenue
Downstate Biotechnology Incubator, Suite 304
Brooklyn, New York 11226
(646) 699-7855
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies of all communications to:
|
Johan M. (Thijs) Spoor
President and Chief Executive Officer
AzurRx BioPharma, Inc.
760 Parkside Avenue
Downstate Biotechnology Incubator, Suite 304
Brooklyn, New York 11226
(646) 699-7855
|
|
|
|
|
|
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group,
a Professional Corporation
600 West Broadway, Suite 700
San Diego, California 92101
Tel: (619) 272-7050
Fax: (619) 330-2101
|
|
Approximate date of commencement of proposed
sale to the public: As soon as practicable after the
effective date of this registration statement.
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 check the following box. ☐
If this
Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering.☐
If this
Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this
Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
Indicate by check
mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company” and
“emerging
growth company” in Rule 12b-2 of the Exchange
Act.
Large
accelerated filer [ ]
|
Accelerated
filer [ ]
|
Non-accelerated
filer [ ]
|
Smaller
reporting company [ ]
|
|
Emerging
growth company [X]
|
(Do not
check if a smaller reporting 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
Section 7(a)(2)(B) of the Securities Act. [ ]
___________________________
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
|
|
Amount to
be Registered(1)
|
|
|
Proposed Maximum Aggregate
Offering Price
|
|
Amount of
Registration Fee
|
||
|
|
|
|
|
|
|
|
|
|
Common stock, par value $0.0001 per share
|
|
5,895,535
|
(2) |
|
$
|
19,278,399
|
(3)
|
$
|
2,234.37
|
(1)
In accordance with Rule 416 under the Securities
Act of 1933, as amended (the "Securities Act"), the common stock
offered hereby shall also be deemed to cover additional securities
to be offered or issued to prevent dilution resulting from stock
splits, stock dividends, or similar
transactions.
(2)
Represents (i) 1,542,858 shares of common stock
currently outstanding and held by the selling stockholders
identified herein, (ii) 3,979,710 shares of common stock issuable
upon exercise of common stock purchase warrants currently held by
the selling stockholders identified herein, (iii) 289,257 shares of
common stock issuable upon conversion of an outstanding debenture,
and (iv) 83,710 shares of common stock issuable upon exercise of
common stock purchase warrants by the placement agent identified
herein. Pursuant to Rule 416
under the Securities Act, there is also being registered such
indeterminable additional securities as may be issued to prevent
dilution as a result of stock splits, stock dividends or similar
transactions.
(3)
Pursuant to Rule 457(o) under the Securities
Act, calculated on the basis of
the average high and low prices per share of the registrant’s
common stock reported on The NASDAQ Capital Market on July 18,
2017.
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The
information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective.
This prospectus is not an offer to sell these securities and it is
not soliciting an offer to buy these securities in any state where
the offer or sale is not permitted.
|
PRELIMINARY PROSPECTUS
|
SUBJECT TO COMPLETION
|
DATED JULY 20, 2017
|
5,895,535
Shares
Common
Stock
This prospectus relates to the sale of up to
5,895,535 shares of our common stock by the selling stockholders
identified in this prospectus, which amount includes 289,257 shares
that may be issued upon conversion of an outstanding
12% Senior Secured
Original Issue Discount Convertible Debenture, 4,063,420 shares that may be issued upon exercise
of common stock purchase warrants currently held by the selling
stockholders identified herein, and 164,256 shares issuable upon
exercise of a common stock purchase warrant currently held in
escrow on behalf of Lincoln Park Capital Fund, LLC
(“LPC”). The warrant held in escrow will be
delivered to LPC upon satisfaction of certain conditions described
in this prospectus. The prices at which the selling stockholders
may sell the shares will be determined by the prevailing market
price for the shares or in negotiated
transactions.
We are registering the shares to provide the
selling stockholders with freely tradable securities. This
prospectus does not necessarily mean that the selling stockholders
will offer or sell those shares. Up to 4,490,425 shares may be sold
from time to time after the effectiveness of the registration
statement, of which this prospectus forms a part, and up to
1,405,110 shares may be sold from time to time, beginning on
December 2, 2017, which is the date certain warrants become
exercisable, or, in the case of the warrant currently held in
escrow on behalf of LPC, when the conditions for issuance have been
satisfied. See “Description of Private
Placement”
on page 6 below for more information.
We
will not receive proceeds from the sale of the shares by the
selling stockholders. However, we may receive proceeds of up to
approximately $21.75 million from the exercise of the common stock
purchase warrants by the selling stockholders, once the
registration statement, of which this prospectus is a part, is
declared effective. We will pay the expenses of registering these
shares, but all selling and other expenses incurred by the selling
stockholder will be paid by the selling stockholder.
Our common stock is listed on The NASDAQ Capital
Market under the ticker symbol “AZRX.” On July 20,
2017, the last reported sale price per share of our common stock
was $3.40 per
share.
You should read this prospectus and any prospectus
supplement, together with additional information described under
the headings “Incorporation of Certain
Information by Reference”
and “Where You Can Find More
Information,” carefully
before you invest in any of our securities.
Investing in our securities involves a high degree of risk. See
“Risk Factors” on page 4 of this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is
,
2017
TABLE OF
CONTENTS
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
|
|
1
|
|
|
|
|
4
|
|
|
|
|
5
|
|
|
|
|
6
|
|
|
|
|
8
|
|
|
|
|
9
|
|
|
|
|
11
|
|
|
|
|
13
|
|
|
|
|
13
|
|
|
|
|
13
|
|
|
|
|
14
|
|
|
This prospectus is part of a registration
statement on Form S-1 that we filed with the United States
Securities and Exchange Commission (the “SEC”). Under this registration statement, the
selling stockholders may offer and resell up to 5,895,535 shares of
our common stock, which includes 289,257 shares that may be issued
upon conversion of an outstanding 12% Senior Secured
Original Issue Discount Convertible Debenture, and 4,063,420 shares that may be issued upon the
exercise of warrants, in one or more offerings. The exhibits to the
registration statement contain the full text of certain contracts
and other important documents we have summarized in this
prospectus. Since these summaries may not contain all the
information that you may find important in deciding whether to
purchase our common stock, you should review the full text of these
documents. The registration statement and the exhibits can be
obtained from the SEC as indicated under the sections entitled
“Incorporation of Certain
Information by Reference”
and “Where You Can Find More
Information.”
You
should rely only on the information provided or incorporated by
reference in this prospectus or any applicable prospectus
supplement. Neither we nor the selling stockholders have authorized
anyone to provide you with different or additional information.
Neither we nor the selling stockholders are making an offer to sell
our common stock in any jurisdiction where the offer or sale
thereof is not permitted. You should not assume that the
information appearing in this prospectus or any applicable
prospectus supplement or the documents incorporated by reference
herein or therein is accurate as of any date other than their
respective dates. Our business, financial condition, results of
operations and prospects may have changed since those dates. You
should read carefully the entirety of this prospectus and any
applicable prospectus supplement, as well as the documents
incorporated by reference in this prospectus and any applicable
prospectus supplement, before making an investment
decision.
In this prospectus, unless otherwise specified or
the context requires otherwise, we use the terms
“Company,” “we,” “us” and “our” to refer to AzurRx BioPharma, Inc., a
Delaware corporation.
PROSPECTUS SUMMARY
The following summary highlights information contained or
incorporated by reference elsewhere in this prospectus and does not
contain all of the information that you should consider in making
your investment decision. Before investing in our common stock, you
should carefully read this entire prospectus, including our
financial statements and the related notes and other documents
incorporated by reference in this prospectus, as well as the
information under the caption “Risk Factors” herein and
under similar headings in the other documents that are incorporated
by reference into this prospectus.
In this prospectus, unless otherwise stated or the context
otherwise requires, references to “AzurRx,”
“Company,” “we,” “us,”
“our,” or similar references mean AzurRx BioPharma,
Inc. and its subsidiaries on a consolidated basis. References to
“AzurRx BioPharma” refer to AzurRx BioPharma, Inc. on
an unconsolidated basis. References to “AzurRx SAS”
refer to AzurRx BioPharma SAS, AzurRx BioPharma’s
wholly-owned subsidiary through which we conduct our European
operations.
Overview
We
are engaged in the research and development of non-systemic
biologics for the treatment of patients with gastrointestinal
disorders. Non-systemic biologics are non-absorbable drugs that act
locally without reaching the systemic circulation, i.e. the
intestinal lumen, skin or mucosa. Our current product
pipeline consists of two therapeutic proteins under
development:
●
MS1819 - an
autologous (from the same organism) yeast recombinant lipase for
exocrine pancreatic insufficiency (“EPI”) associated with chronic
pancreatitis (“CP”) and cystic fibrosis
(“CF”). A
recombinant lipase is an enzyme that breaks up fat molecules, which
is created from new combinations of genetic material in
yeast.
●
AZX1101 - a
recombinant b-lactamase combination of bacterial origin for the
prevention of hospital-acquired infections by resistant bacterial
strains induced by parenteral administration of b-lactam
antibiotics, as well as prevention of antibiotic-associated
diarrhea (“AAD”). A recombinant b-lactamase
is an enzyme that breaks up molecules with a beta-lactam ring as is
often seen in antibiotics, which is created from new combinations
of genetic material in yeast.
Recent Developments
Lincoln Park Financing. On April 11,
2017, we entered into a Securities Purchase Agreement (the
“Purchase
Agreement”) with Lincoln Park Capital Fund, LLC
(“LPC”),
pursuant to which LPC was issued a 12% Senior Secured Original
Issue Discount Convertible Debenture in the principal amount of
$1,000,000 with an original issue discount of $120,000 (the
“Debenture”). The principal
and original issue discount of $1,120,000 due under the terms of
the Debenture are due on the earlier to occur of (i) November 10,
2017 or (ii) on the fifth business day following the receipt by the
Company or our wholly-owned subsidiary, AzurRx Europe SAS (“AES”), of certain tax credits that we
are expected to receive prior to November 10, 2017 (the
“Tax Credit”)
(the “Maturity
Date”). We have the option to extend the Maturity Date
to July 11, 2018, conditioned on the receipt of the Tax Credit by
the Company or AES prior to November 10, 2017 (“Extension Option”).
The
principal amount of the Debenture is convertible into shares of the
our common stock at LPC’s option, at a conversion price equal
to $3.872 (“Conversion
Price”). Provided certain conditions are
satisfied, we may, at our option, force conversion of the
Debentures for an amount equal to 100% of the principal and
original issue discount of the Debenture.
In
connection with the issuance of the Debenture, we issued to LPC
warrants giving LPC the right to purchase 164,256 shares of the our
common stock at an exercise price of $4.2592 per share (the
“LPC Warrants”). In the event we
exercise our Extension Option, we are obligated to issue additional
LPC Warrants to LPC to purchase 164,256 shares of the
Company’s common stock; provided that the exercise price of
such additional LPC Warrants shall be equal to 110% of
the average closing price of the Company’s Common Stock
for the ten consecutive trading days prior to the date of
issuance. All LPC Warrants will terminate five years after the
date of issuance.
The
obligations under the Debenture are guaranteed by AES, as well as a
security agreement providing LPC with a secured interest in the Tax
Credit.
We also
entered into a Registration Rights Agreement granting LPC certain
registration rights with respect to the shares of Common Stock
issuable upon conversion of the Debenture, and upon exercise of the
LPC Warrants.
June 2017 Private Placement.
Beginning on June 5, 2017, we entered
into Securities Purchase Agreements (the “Purchase
Agreements”) with certain
accredited investors, pursuant to which the Company issued an
aggregate of 1,428,571 units for $3.50 per unit, with each unit
consisting of one share of common stock, one Series A Warrant to
purchase 0.25 shares of common stock at $4.00 per share exercisable
immediately through December 31, 2017, and one Series A-1 Warrant
to purchase 0.75 shares of common stock at $5.50 per share
exercisable beginning six months from the date of issuance through
June 5, 2022 (together, “Units”) (the "Private
Placement"). On June 5, 2017,
we issued Units resulting in the issuance of an aggregate of
1,428,571 shares of Common Stock, Series A Warrants to purchase up
to 357,144 shares of Common Stock, and Series A-1 Warrants to
purchase up to 1,071,431 shares of Common Stock, resulting in gross
proceeds of $5.0 million.
Placement agent fees of $376,695 were paid to
Alexander Capital L.P. (“Alexander
Capital”), based on 9% of
the aggregate principal amount of the Units issued to certain
investors identified by Alexander Capital
(“Alexander
Investors”), which amount
includes both an 8% success fee and a 1% expense fee, and Series
A-1 Warrants to purchase 77,950 shares of common stock were issued
to Alexander Capital (the “Placement Agent
Warrants”), reflecting
warrants for that number of shares of common stock equal to 7% of
the aggregate number of shares of common stock purchased by
Alexander Investors. The Placement Agent Warrants are exercisable
beginning December 2, 2017 at a fixed price of $6.05 per share,
through June 5, 2022.
We
also entered into a Registration Rights Agreement granting each
investor certain registration rights with respect to the shares of
common stock issued in connection with the Private Placement, as
well as the shares of common stock issuable upon exercise of the
Series A Warrants and Series A-1 Warrants.
On June 20, 2017, the investors executed an
amendment to the Purchase Agreements authorizing the issuance of up
to $400,000 in additional Units, and on July 5, 2017, the Company
issued additional Units resulting in gross proceeds of $400,000
(“Subsequent
Closing”). Placement
agent fees of $25,920 were paid to Alexander Capital, as well as
additional Placement Agent Warrants to purchase 5,760 shares of
common stock. In connection with the Subsequent Closing, we issued
an additional 114,287 shares of common stock, Series A and A-1
Warrants to purchase 28,570 and 85,713 shares,
respectively.
The Offering
Common
stock offered by the selling stockholders
|
Up to
5,895,535 shares
|
Common
stock outstanding
|
11,232,446 shares (1)
|
Use
of proceeds
|
The
selling stockholders will receive all of the proceeds from the sale
of the shares offered for sale under this prospectus. We will not
receive proceeds from the sale of the shares by the selling
stockholders. However, we may receive up to approximately $21.75
million in proceeds from the exercise of common stock purchase
warrants described below. Proceeds that we receive under these
warrants will be used to advance our research and development
activities and for working capital and general corporate
purposes.
|
NASDAQ
Capital Market Symbol
|
AZRX
|
Risk
Factors
|
Investing in our
securities involves a high degree of risk. You should carefully
review and consider the “Risk Factors” section of this
prospectus beginning on page 4 for a discussion of factors to
consider before deciding to invest in shares of our common
stock.
|
(1)
The number of shares of our common stock
outstanding is based on an aggregate of 11,232,446
sharesoutstanding as of July
19, 2017 and excludes:
●
4,063,420 shares
of common stock issuable upon the exercise of common stock purchase
warrants issued in connection with the private placement
transaction described below
●
190,000 shares of
common stock issuable upon the exercise of options outstanding as
of July 19, 2017 at a weighted average exercise price of $4.48 per
share;
●
933,245 shares of
common stock reserved for future issuance under the Amended and
Restated 2014 Omnibus Equity Incentive Plan as of July 19, 2017;
and
●
289,257 shares of
common stock issuable to LPC upon conversion of the
Debenture.
Our Corporate Information
We were
incorporated on January 30, 2014 in the State of Delaware. In June
2014, we acquired 100% of the issued and outstanding capital stock
of AzurRx BioPharma SAS (formerly ProteaBio Europe
SAS), a company incorporated in October 2008 under the laws of
France that had been a wholly-owned subsidiary of Protea
Biosciences, Inc., or Protea Sub, in turn a wholly-owned subsidiary
of Protea Biosciences Group, Inc., a publicly-traded
company. Our principal executive offices are located at
760 Parkside Avenue, Downstate Biotechnology Incubator, Suite 304,
Brooklyn, NY 11226. Our telephone number is 646-699-7855. We
maintain a website at www.azurrx.com. The information contained on
our website is not, and should not be interpreted to be, a part of
this prospectus.
RISK FACTORS
Investing in our common stock involves a high
degree of risk. Before deciding whether to purchase shares of our
common stock, you should carefully consider the risks and
uncertainties described under “Risk
Factors” in our Annual
Report on Form 10-K for the fiscal year ended
December 31, 2016, any subsequent Quarterly Report on
Form 10-Q and our other filings with the SEC, all of which are
incorporated by reference herein. If any of these risks actually
occur, our business, financial condition and results of operations
could be materially and adversely affected and we may not be able
to achieve our goals, the value of our securities could decline and
you could lose some or all of your investment. Additional risks not
presently known to us or that we currently deem immaterial may also
impair our business operations. If any of these risks occur, the
trading price of our common stock could decline materially and you
could lose all or part of your investment.
CAUTIONARY NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by
reference herein contain forward-looking statements that involve
substantial risks and uncertainties. All statements, other than
statements of historical facts, contained in this
prospectus and the documents incorporated by reference herein,
including statements regarding our strategy, future operations, future financial
position, future revenue, projected costs, prospects, plans,
objectives of management and expected market growth, are
forward-looking statements. These statements involve known and
unknown risks, uncertainties and other important factors that may
cause our actual results, performance or achievements to be
materially different from any future results, performance or
achievements expressed or implied by the forward-looking
statements.
The
words “anticipate,” “believe,”
“estimate,” “expect,” “intend,”
“may,” “plan,” “predict,”
“project,” “target,”
“potential,” “will,” “would,”
“could,” “should,” “continue,”
and similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain
these identifying words. These forward-looking statements include,
among other things, statements about:
●
the
availability of capital to satisfy our working capital
requirements;
●
the
accuracy of our estimates regarding expenses, future revenues and
capital requirements;
●
our
ability to continue operating as a going concern;
●
our
plans to develop and commercialize our principal product
candidates, consisting of MS1819 and AZX1101;
●
our
ability to initiate and complete our clinical trials and to advance
our principal product candidates into additional clinical trials,
including pivotal clinical trials, and successfully complete such
clinical trials;
●
regulatory
developments in the U.S. and foreign countries;
●
the
performance of our third-party contract manufacturer(s), contract
research organization(s) and other third-party non-clinical and
clinical development collaborators and regulatory service
providers;
●
our
ability to obtain and maintain intellectual property protection for
our core assets;
●
the
size of the potential markets for our product candidates and our
ability to serve those markets;
●
the
rate and degree of market acceptance of our product candidates for
any indication once approved;
●
the
success of competing products and product candidates in development
by others that are or become available for the indications that we
are pursuing;
●
the
loss of key scientific, clinical and nonclinical development,
and/or management personnel, internally or from one of our
third-party collaborators; and
●
other
risks and uncertainties, including those listed in the
“Risk Factors
” section of this prospectus and the documents
incorporated by reference herein.
These forward-looking statements are only
predictions and we may not actually achieve the plans, intentions
or expectations disclosed in our forward-looking statements, so you
should not place undue reliance on our forward-looking statements.
Actual results or events could differ materially from the plans,
intentions and expectations disclosed in the forward-looking
statements we make. We have based these forward-looking statements
largely on our current expectations and projections about future
events and trends that we believe may affect our business,
financial condition and operating results. We have included
important factors in the cautionary statements included in this
prospectus, particularly in the “Risk
Factors” section in this
prospectus and the documents incorporated by reference herein, that
we believe could cause actual results or events to differ
materially from the forward-looking statements that we make.
Our forward-looking statements do not
reflect the potential impact of any future acquisitions, mergers,
dispositions, joint ventures or investments we may
make.
You should read this prospectus, the documents incorporated by
reference herein and the documents that we have filed as exhibits
to the registration statement of which this prospectus is a part
completely and with the understanding that our actual future
results may be materially different from what we expect. We qualify
all of the forward-looking statements in this prospectus and the
documents incorporated by reference herein by these cautionary
statements. Except as required by law, we undertake no obligation
to publicly update any forward-looking statements, whether as a
result of new information, future events or otherwise.
DESCRIPTION OF PRIVATE
PLACEMENT TRANSACTIONS
Issuance of Lock-Up Warrants
and Underwriter Warrants.
On October 14, 2016, we completed an initial public offering
(“IPO”) of 960,000 shares of common stock at a
price of $5.50 per share and received gross proceeds of $5,280,000.
Concurrent with the IPO, the Company issued certain securities,
including (i) 717,540 warrants with a five-year life to certain
original issuance discount (“OID”) noteholders in exchange for their
agreement not to sell their shares for six months following the IPO
with an exercise price equal to the IPO price (the
“Lock-Up
Warrants”), and (iii) the
grant of 48,000 warrants with a five-year life to the underwriters
at 120% of the IPO price (the “Underwriter
Warrants”). Both the
Lock-up Warrants and the Underwriter Warrants provide the holders
thereof with certain piggyback registration rights for the shares
of common stock issuable upon exercise of the
warrants.
Issuance of OID
Warrants. Commencing on October
10, 2014, through a series of transactions, we issued original
issue discounted convertible notes to several investors at 85% of
the principal amount of the notes. The notes did not otherwise bear
interest. The notes were voluntarily convertible into shares of the
Company’s common stock at the principal amount divided by the
conversion price, which was the lesser of $6.45 per share or the
per share price of the common stock representing the pre-money
valuation immediately prior to any shares sold in the IPO,
multiplied by 80% (the “Convertible
Shares”).
Additionally, separate warrants to purchase shares
of common stock equal to 50% of the number of Convertible Shares at
the lesser of $7.37 per share or at a 20% discount to our pre-money
IPO valuation were issued in conjunction with these notes. These
warrants are exercisable for five years beginning six months after
the issue date, and grant to the holders thereof certain
registration rights (the “OID
Warrants”).
These
notes had nine-month terms with principal and interest due starting
July 10, 2015. The holders of these notes could have demanded
payment in cash before the maturity date within thirty (30) trading
days of out IPO. However, the terms of these notes were revised on
March 31, 2016 as per below.
On
March 31, 2016, the holders of all but $300,000 in principal of the
above notes signed exchange agreements nullifying the default
provisions and rolling the principal amount into new original issue
discounted convertible notes at 92% of the principal amount of the
notes due on November 4, 2016, modifying the conversion price to
$4.65 per share, and modifying the strike price of the OID Warrants
down to $5.58 per share. The notes were voluntarily convertible
into that number of shares of common stock as is equal to the
aggregate principal amount of the notes plus any accrued but unpaid
interest divided by $4.65.
Under
the mandatory conversion feature, the aggregate principal amounts
of the notes plus any accrued but unpaid interest automatically
converted into that number of shares of common stock equal to the
aggregate principal amount of the notes plus any accrued but unpaid
interest multiplied by 1.25 divided by $4.65 per share. On the date
of the IPO, these notes converted into 2,642,160 shares of common
stock.
Lincoln Park Financing. As previously
discussed above, under the heading “Recent Developments”, on April
11, 2017, we entered into a Purchase Agreement with LPC, pursuant
to which LPC was issued a Debenture in the principal amount of
$1,000,000 with an original issue discount of $120,000. The
principal and original issue discount of $1,120,000 due under the
terms of the Debenture are due on the earlier to occur of (i)
November 10, 2017 or (ii) on the fifth business day following the
receipt by the Company or AES of certain Tax Credits that we are
expected to receive prior to November 10, 2017. The principal
amount of the Debenture is convertible into shares of the our
common stock at LPC’s option, at the Conversion Price of
$3.872. Provided certain conditions are satisfied, we may, at
our option, force conversion of the Debentures for an amount equal
to 100% of the principal and original issue discount of the
Debenture.
In
connection with the issuance of the Debenture, we issued to LPC
Warrants to purchase 164,256 shares of the our common stock at an
exercise price of $4.2592 per share. In the event we exercise our
Extension Option, we are obligated to issue additional LPC Warrants
to LPC to purchase 164,256 shares of the Company’s common
stock; provided that the exercise price of such additional LPC
Warrants shall be equal to 110% of the average closing price
of the Company’s Common Stock for the ten consecutive trading
days prior to the date of issuance. All LPC Warrants will
terminate five years after the date of issuance.
The
obligations under the Debenture are guaranteed by AES, as well as a
security agreement providing LPC with a secured interest in the Tax
Credit.
We also
entered into a Registration Rights Agreement granting LPC certain
registration rights with respect to the shares of Common Stock
issuable upon conversion of the Debenture, and upon exercise of the
LPC Warrants
June 2017 Private Placement.
Beginning on June 5, 2017, we entered
into Purchase Agreements with certain accredited investors,
pursuant to which we issued an aggregate of 1,428,571 units for
$3.50 per Unit, with each unit consisting of one share of common
stock, one Series A Warrant to purchase 0.25 shares of common stock
at $4.00 per share exercisable immediately through December 31,
2017, and one Series A-1 Warrant to purchase 0.75 shares of common
stock at $5.50 per share exercisable beginning six months from the
date of issuance through June 5, 2022. On June 20, 2017, the
investors executed an amendment to the Purchase Agreements
authorizing the issuance of up to $400,000 in additional Units, and
on July 5, 2017, the Company issued additional Units resulting in
gross proceeds of $400,000. At final closing of the Private
Placement on July 5, 2017, we had issued Units resulting in the
issuance of an aggregate of 1,542,858 shares of Common Stock,
Series A Warrants to purchase up to 385,714 shares of Common Stock,
and Series A-1 Warrants to purchase up to 1,157,144 shares of
Common Stock, resulting in gross proceeds of $5.4
million.
Placement agent fees of $376,695 were paid to
Alexander Capital L.P. (“Alexander
Capital”), based on 9% of
the aggregate principal amount of the Units issued to certain
investors identified by Alexander Capital
(“Alexander
Investors”), which amount
includes both an 8% success fee and a 1% expense fee, and Placement
Agent Warrants to purchase 83,710 shares of common stock were
issued to Alexander Capital, reflecting warrants for that number of
shares of common stock equal to 7% of the aggregate number of
shares of common stock purchased by Alexander Investors. The
Placement Agent Warrants are exercisable beginning December 2, 2017
at a fixed price of $6.05 per share, through June 5,
2022.
We
also entered into a Registration Rights Agreement granting each
investor certain registration rights with respect to the shares of
common stock issued in connection with the Private Placement, as
well as the shares of common stock issuable upon exercise of the
Series A Warrants and Series A-1 Warrants.
Warrants Issued to Consultants
and for Other Services. Between
September 2016 and May 2017, we issued warrants to certain
consultants and service providers to purchase an aggregate total of
up to 250,000 shares of our common stock (the
“Service
Warrants”). The Service
Warrants have terms substantially similar to the Lock-Up Warrants,
including providing the holders thereof with certain registration
rights, and have an average exercise price of $5.18 per
share.
USE OF PROCEEDS
The common stock to be offered and sold using this
prospectus will be offered and sold by the selling stockholders
named in this prospectus. Accordingly, we will not receive any
proceeds from any sale of shares of our common stock in this
offering. A portion of the shares covered by this prospectus
may be issued upon exercise of the LPC Warrants, the Series A
Warrants, Series A-1 Warrants, OID Warrants, and Lock-Up Warrants
(collectively, the “Purchaser
Warrants”) and/or the
Placement Agent Warrants and Underwriter Warrants. Upon
any exercise of Purchaser Warrants, the Placement Agent Warrants or
the Underwriter Warrants, the selling stockholders will pay us the
applicable exercise price, and any such proceeds would be used
primarily for working capital and general corporate
purposes. We will pay all of the fees and expenses
incurred by us in connection with this registration. We will not be
responsible for fees and expenses incurred by the selling
stockholders or any underwriting discounts or agent’s
commissions.
SELLING
STOCKHOLDERS
The selling stockholders may from time to time
offer and sell any or all of the shares of our common stock set
forth below pursuant to this prospectus, which includes (i)
1,542,858 shares of common stock issued in the Private Placement,
(ii) 385,714 shares of common stock issuable upon exercise of
Series A Warrants, (iii) 1,157,144 shares of common stock issuable
upon exercise of Series A-1 Warrants, (iv) 289,257 shares of common
stock issuable upon conversion of the Debentures, (v) 164,256
shares of common stock issuable upon exercise of warrants currently
held by LPC, (vi) 164,256 shares of common stock issuable upon
exercise of warrants currently held in escrow on behalf of LPC, to
be issued in the event those events described above, under the
heading “Lincoln Park
Financing” occur, (vii)
83,710 shares of common stock issuable upon exercise of Placement
Agent Warrants, (viii) 1,092,800 shares of common stock issuable
upon exercise of the OID Warrants, (ix) 717,540 shares of common
stock issuable upon exercise of the Lock-Up Warrants, (x) 48,000
shares of common stock issuable upon exercise of the Underwriter
Warrants, (xi) 250,000 shares of common stock issuable upon
exercise of the Service Warrants, (xii) 289,257 shares of common
stock issuable upon conversion of the Debenture. When we refer to
the “selling stockholders” in this prospectus, we mean
the persons and entities listed in the table below, and their
respective pledgees, donees, permitted transferees, assignees,
successors and others who later come to hold any of the selling
stockholders’ interests in shares of our common stock other
than through a public sale.
The
following table sets forth, as of the date of this prospectus, the
name of the selling stockholders for whom we are registering shares
for sale to the public, the number of shares of common stock
beneficially owned by the selling stockholders prior to this
offering, the total number of shares of common stock that the
selling stockholder may offer pursuant to this prospectus and the
number of shares of common stock that the selling stockholders will
beneficially own after this offering. Except as noted below, the
selling stockholders do not have, or within the past three years
has not had, any material relationship with us or any of our
predecessors or affiliates and the selling stockholders are not or
were not affiliated with registered broker-dealers.
Based on the information provided to us by the
selling stockholders, assuming that the selling stockholders sell
all of the shares of our common stock beneficially owned by them
that have been registered by us and do not acquire any additional
shares during the offering, the selling stockholders will not own
any shares, as reflected in the column entitled
“Beneficial Ownership After
This Offering.” We cannot
advise you as to whether the selling stockholders will in fact sell
any or all of such shares of common stock. In addition, the selling
stockholders may have sold, transferred or otherwise disposed of,
or may sell, transfer or otherwise dispose of, at any time and from
time to time, the shares of our common stock in transactions exempt
from the registration requirements of the Securities Act after the
date on which it provided the information set forth in the table
below.
|
|
Shares
|
|
Maximum Number of Shares Being Offered
Pursuant to this Prospectus
|
Shares
|
||||||||||
|
|
Beneficially
Owned
|
|
|
|
Warrants
|
|
Warrants
Exercisable
|
|
Debenture
|
|
Beneficially
Owned After |
|||
Name of Selling
|
|
Prior to
|
|
Common
|
|
Currently
|
|
on a Later
|
|
Conversion
|
Offering (1)
|
||||
Securityholder
|
|
Offering
|
|
Stock
|
|
Exercisable
|
|
Date
|
|
Shares
|
|
Number
|
|
|
Percent*
|
2010 Jennings Family Revocable Trust
|
|
-
|
|
-
|
|
23,315
|
|
-
|
|
-
|
|
-
|
|
|
-
|
ADEC Private Equity Investments, LLC
|
|
-
|
|
-
|
|
699,461
|
|
-
|
|
-
|
|
-
|
(2)
|
|
-
|
Alexander Capital, LP
|
|
-
|
|
-
|
|
50,000
|
|
83,710
|
|
-
|
|
-
|
(3)
|
|
-
|
Amory Ross
|
|
-
|
|
78,571
|
|
19,643
|
|
58,929
|
|
-
|
|
-
|
|
|
-
|
Andrea Ross
|
|
-
|
|
28,573
|
|
7,143
|
|
21,430
|
|
-
|
|
-
|
|
|
-
|
Andrew Sanford
|
|
-
|
|
8,000
|
|
2,000
|
|
6,000
|
|
-
|
|
-
|
|
|
-
|
Brian Herman
|
|
-
|
|
-
|
|
10,600
|
|
-
|
|
-
|
|
-
|
(4)
|
|
-
|
Brian Thebault
|
|
-
|
|
85,714
|
|
21,429
|
|
64,286
|
|
-
|
|
-
|
|
|
-
|
Bruce Conway
|
|
-
|
|
185,000
|
|
82,809
|
|
138,750
|
|
-
|
|
-
|
|
|
-
|
Bryan McShaine
|
|
-
|
|
-
|
|
46,631
|
|
-
|
|
-
|
|
-
|
|
|
-
|
BTR Partners
|
|
-
|
|
142,857
|
|
35,714
|
|
107,143
|
|
-
|
|
-
|
(5)
|
|
-
|
Catherine and Raymond Marzulli
|
|
-
|
|
-
|
|
10,944
|
|
-
|
|
-
|
|
-
|
|
|
-
|
CEDA Investments, LLC
|
|
-
|
|
28,572
|
|
7,143
|
|
21,429
|
|
-
|
|
-
|
(2)
|
|
-
|
Charlotte Ross
|
|
-
|
|
28,572
|
|
7,143
|
|
21,429
|
|
-
|
|
-
|
|
|
-
|
Christopher Laffey
|
|
-
|
|
5,569
|
|
1,392
|
|
4,177
|
|
-
|
|
-
|
(6)
|
|
-
|
Cross River Partners LP
|
|
-
|
|
71,429
|
|
17,857
|
|
53,571
|
|
-
|
|
-
|
(7)
|
|
-
|
Dana Ross
|
|
-
|
|
28,572
|
|
7,143
|
|
21,429
|
|
-
|
|
-
|
|
|
-
|
Daniel and Agatha Tis
|
|
-
|
|
-
|
|
19,869
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Daniel and Beth Erlanger
|
|
-
|
|
-
|
|
32,832
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Daniel Erlanger
|
|
-
|
|
-
|
|
37,114
|
|
-
|
|
-
|
|
-
|
|
|
-
|
David Graham
|
|
-
|
|
14,286
|
|
3,571
|
|
10,714
|
|
-
|
|
-
|
|
|
-
|
David Ide
|
|
-
|
|
-
|
|
46,631
|
|
-
|
|
-
|
|
-
|
|
|
-
|
David Miedzygorski
|
|
-
|
|
-
|
|
2,332
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Davis Family Trust
|
|
-
|
|
-
|
|
138,560
|
|
-
|
|
-
|
|
-
|
(8)
|
|
-
|
Deborah L. Millar Revocable Trust
|
|
-
|
|
-
|
|
29,145
|
|
-
|
|
-
|
|
-
|
(9)
|
|
-
|
Doug Aguililla
|
|
-
|
|
-
|
|
4,000
|
|
-
|
|
-
|
|
-
|
(10)
|
|
-
|
EBR Ventures, LLC
|
|
500,000
|
|
100,000
|
|
25,000
|
|
75,000
|
|
-
|
|
500,000
|
(2)
|
|
|
Edward Borkowski
|
|
-
|
|
-
|
|
53,530
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Edward Borkowski and Nancy McCormick
|
|
-
|
|
-
|
|
16,416
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Edwin W. Laffey
|
|
-
|
|
3,000
|
|
750
|
|
2,250
|
|
-
|
|
-
|
|
|
-
|
Eugene Markowitz
|
|
-
|
|
-
|
|
14,902
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Fred Tedori
|
|
-
|
|
-
|
|
27,907
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Gene Humphreys
|
|
-
|
|
-
|
|
3,498
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Glenn Harnish
|
|
-
|
|
7,000
|
|
1,750
|
|
5,250
|
|
-
|
|
-
|
|
|
-
|
Greg and Catherine Salkind
|
|
-
|
|
-
|
|
94,378
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Greg and Madeline Sheldon
|
|
-
|
|
-
|
|
16,416
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Greg Sheldon
|
|
-
|
|
-
|
|
18,557
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Hammermeister Revocable Familty Trust
|
|
-
|
|
-
|
|
34,973
|
|
-
|
|
-
|
|
-
|
(11)
|
|
-
|
Hans Tommy Wilhelmsen
|
|
-
|
|
-
|
|
4,664
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Harbor Watch Partners, LP
|
|
-
|
|
92,857
|
|
23,214
|
|
69,643
|
|
-
|
|
-
|
(12)
|
|
-
|
Ike McEntire
|
|
-
|
|
-
|
|
11,657
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Invictus Resources
|
|
-
|
|
-
|
|
150,000
|
|
-
|
|
-
|
|
-
|
(13)
|
|
-
|
JABCO LP
|
|
-
|
|
57,143
|
|
35,878
|
|
42,857
|
|
-
|
|
-
|
(14)
|
|
-
|
Jason Adelman
|
|
-
|
|
-
|
|
32,237
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Joseph Arvay
|
|
-
|
|
14,286
|
|
3,571
|
|
10,714
|
|
-
|
|
-
|
|
|
-
|
Joseph Kerrissey
|
|
-
|
|
7,143
|
|
1,786
|
|
5,357
|
|
-
|
|
-
|
|
|
-
|
Joseph M. Ahearn
|
|
-
|
|
-
|
|
23,315
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Joseph M. and Pamela Longo
|
|
-
|
|
28,571
|
|
7,143
|
|
21,429
|
|
-
|
|
-
|
|
|
-
|
Kathryn M. Parsons Revocable Trust
|
|
-
|
|
28,571
|
|
17,078
|
|
21,429
|
|
-
|
|
-
|
(15)
|
|
-
|
KC Scott Family Limited Partnership
|
|
-
|
|
25,000
|
|
6,250
|
|
18,750
|
|
-
|
|
-
|
(16)
|
|
-
|
Lee Becker
|
|
-
|
|
18,571
|
|
4,643
|
|
13,929
|
|
-
|
|
-
|
|
|
-
|
Lincoln Park Capital Fund, LLC
|
|
-
|
|
-
|
|
164,256
|
|
164,256
|
|
289,257
|
|
-
|
(17)
|
|
-
|
Lucy Shurtleff
|
|
-
|
|
11,429
|
|
14,514
|
|
8,571
|
|
-
|
|
-
|
|
|
-
|
Mario Wagner Okuno
|
|
-
|
|
-
|
|
6,994
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Mark and Phyllis Waxman
|
|
-
|
|
-
|
|
19,869
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Michael Slobodow
|
|
-
|
|
-
|
|
5,829
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Molly Hsu
|
|
-
|
|
-
|
|
79,477
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Netgain Financial
|
|
-
|
|
-
|
|
50,000
|
|
-
|
|
-
|
|
-
|
(18)
|
|
-
|
Network 1 Financial Services, Inc.
|
|
-
|
|
-
|
|
10,131
|
|
-
|
|
-
|
|
-
|
(19)
|
|
-
|
Olivia Lutz Trust 2014
|
|
-
|
|
57,143
|
|
14,286
|
|
42,857
|
|
-
|
|
-
|
(20)
|
|
-
|
Peter Cella
|
|
-
|
|
-
|
|
11,657
|
|
-
|
|
-
|
|
-
|
|
|
-
|
PRK Partners, LP
|
|
-
|
|
100,000
|
|
25,000
|
|
75,000
|
|
-
|
|
-
|
(21)
|
|
-
|
Renee Markowitz
|
|
-
|
|
-
|
|
24,836
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Russell W. Rice
|
|
-
|
|
-
|
|
5,829
|
|
-
|
|
-
|
|
-
|
|
|
-
|
S. Clarke Moody
|
|
-
|
|
57,143
|
|
54,024
|
|
42,857
|
|
-
|
|
-
|
|
|
-
|
Shane Cobb
|
|
-
|
|
-
|
|
6,136
|
|
-
|
|
-
|
|
-
|
|
|
-
|
Steven Montal
|
|
-
|
|
-
|
|
32,659
|
|
-
|
|
-
|
|
-
|
|
|
-
|
The Burke E Ross Jr. GST Investment Trust 2014
|
|
-
|
|
215,000
|
|
53,750
|
|
161,250
|
|
-
|
|
-
|
(2)
|
|
-
|
Trident Partners, LTD.
|
|
-
|
|
-
|
|
804
|
|
-
|
|
-
|
|
-
|
(22)
|
|
-
|
ViewTrade Securities, Inc.
|
|
-
|
|
-
|
|
3,650
|
|
-
|
|
-
|
|
-
|
(23)
|
|
-
|
WallachBeth Capital, LLC
|
|
-
|
|
-
|
|
18,815
|
|
-
|
|
-
|
|
-
|
(24)
|
|
-
|
William Curtis
|
|
-
|
|
14,286
|
|
3,571
|
|
10,714
|
|
-
|
|
-
|
|
|
-
|
William S. Goodman
|
|
-
|
|
-
|
|
58,289
|
|
-
|
|
-
|
|
-
|
|
|
-
|
*
Beneficial
ownership assumes the exercise of any warrant shares held by the
Selling Stockholder.
**
Less
than 1%.
(1)
Information
concerning other Selling Stockholders will be set forth in one or
more amendments to the registration statement, of which this
prospectus forms a poasrt, and/or prospectus supplements from time
to time, as required.
(2)
As
manager of each of CEDA Investments, LLC, The Burke E. Ross Jr. GST
Investment Trust 2014, EBR Ventures, LLC, and ADEC Private Equity
Investments, Edmond Burke Ross, Jr. holds sole voting and
dispositive power over the shares held by each entity. 28,572
shares of common stock and warrants to purchase 28,572 shares of
common stock are held by CEDA Investments, LLC, 215,000 shares of
common stock and warrants to purchase 215,000 shares of common
stock are held by The Burke E Ross Jr. GST Investment Trust 2014,
100,000 shares of common stock and warrants to purchase 100,000
shares of common stock are held by EBR Ventures, LLC, and warrants
to purchase 699,461 shares of common stock are held by ADEC Private
Equity Investments.
(3)
As Managing
Director of Alexander Capital, LP (“Alexander Capital”), Jonathan
Gazdak holds voting and dispositive power over the shares held by
such entity. Alexander Capital is a broker-dealer and has advised the Company
that the securities were received solely as an investment and not
with a view to or for resale or distribution.
(4)
Mr. Herman has advised the Company that he is affiliated with
ViewTrade Securities (defined below), a broker-dealer, and that the
securities were received solely as an investment and not with a
view to or for resale or distribution.
(5)
As General Partner
of BTR Partners, Ben Ross
holds sole voting and dispositive power over the shares held by
such entity.
(6)
Mr. Laffey has advised the Company that he is affiliated with
Alexander Capital, a broker-dealer, and that the securities were
received solely as an investment and not with a view to or for
resale or distribution.
(7)
The reported
securities are directly owned by Cross River Partners LP (the
"Partnership"), a limited
partnership whose general partner is Cross River Capital Management
LLC (the "General
Partner"), and may be deemed indirectly beneficially owned
by the General Partner and by Cross River Management LLC, as the
investment manager of the Partnership (the "Investment Manager"). The reported
securities may also be deemed indirectly beneficially owned by
Richard Murphy, as Managing Member of both the General Partner and
the Investment Manager.
(8)
As
Trustee of Davis Family Trust, Gary B. Davis holds sole voting and
dispositive power over the shares held by such entity.
(9)
As
Trustee of Deborah L. Millar Revocable Trust, Deborah L. Millar
holds sole voting and dispositive power over the shares held by
such entity.
(10)
Mr. Aguililla has
advised the Company that he is affiliated with ViewTrade Securities
(defined below), a broker-dealer, and that the securities were
received solely as an investment and not with a view to or for
resale or distribution.
(11)
As
Trustee of Hammermeister Revocable Family Trust, James
Hammermeister holds sole voting and dispositive power over the
shares held by such entity.
(12)
As
General Partner of Harbor Watch Partners, LP, Amory Ross holds sole
voting and dispositive power over the shares held by such
entity.
(13)
As
[________] of Invictus
Resources, [________] holds sole voting and dispositive power over
the shares held by such entity.
(14)
As
General Partner of JABCO LP, J. Geddes Parsons holds sole voting
and dispositive power over the shares held by such
entity.
(15)
As
Trustee of Kathryn M. Parsons Rev. Trust, Kathryn M. Parsons holds
sole voting and dispositive power over the shares held by such
entity.
(16)
As
Partner of the KC Scott Family Limited Partnership, Shane A. Scott
holds sole voting and dispositive power over the shares held by
such entity.
(17)
Josh
Scheinfeld and Jonathan Cope, the principals of Lincoln Park, may
be deemed to be beneficial owners of all of the shares of common
stock owned by Lincoln Park subject to a 4.99% ownership blocker
contained within certain securities held by Lincoln Park. Messrs.
Scheinfeld and Cope have shared voting and dispositive power over
the shares being offered.
(18)
As
[________] of Netgain
Financial, [________] holds sole voting and dispositive power over
the shares held by such entity.
(19)
As
[________] of Network 1 Financial Securities, Inc. ("Network 1"), [___________] holds voting
and dispositive power over the shares held by such entity. Network
1 is a broker-dealer and has advised the Company
that the securities were received solely as an investment and not
with a view to or for resale or distribution.
(20)
As full
Trustee of the Olivia Lutz Trust 2014, Peter C. Lacaillade holds
sole voting and dispositive power over the shares held by such
entity. The principal business address of the Olivia Lutz Insurance
Trust 2014 is c/o ADEC Private Equity Investments LLC, 172 S. Ocean
Blvd., Palm Beach, FL 33480.
(21)
As a
principal of PRK Partners, LP, Parthenia Ross Kiersted holds sole
voting and dispositive power over the shares held by such
entity
(22)
As [________] of
Trident Partners, LTD (“Trident Partners”), [___________]
holds voting and dispositive power over the shares held by such
entity. Trident Partners is a broker-dealer and has advised the Company
that the securities were received solely as an investment and not
with a view to or for resale or distribution.
(23)
As [________] of
ViewTrade Securities, Inc. (“ViewTrade Securities”),
[___________] holds voting and dispositive power over the shares
held by such entity. ViewTrade Securities is a broker-dealer and
has advised
the Company that the securities were received solely as an
investment and not with a view to or for resale or
distribution.
(24)
As
[________] of WallachBeth Capital, LLC (“WallachBeth”), [___________]
holds voting and dispositive power over the shares held by such
entity. WallachBeth is a broker-dealer and has advised the Company
that the securities were received solely as an investment and not
with a view to or for resale or distribution.
PLAN OF DISTRIBUTION
Each
Selling Stockholder (the “Selling Stockholders”) of the
securities and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of
their securities covered hereby on the principal Trading Market or
any other stock exchange, market or trading facility on which the
securities are traded or in private transactions. These sales may
be at fixed or negotiated prices. A Selling Stockholder may use any
one or more of the following methods when selling
securities:
●
ordinary brokerage
transactions and transactions in which the broker-dealer solicits
purchasers;
●
block trades in
which the broker-dealer will attempt to sell the securities as
agent but may position and resell a portion of the block as
principal to facilitate the transaction;
●
purchases by a
broker-dealer as principal and resale by the broker-dealer for its
account;
●
an exchange
distribution in accordance with the rules of the applicable
exchange;
●
privately
negotiated transactions;
●
settlement of short
sales;
●
in transactions
through broker-dealers that agree with the Selling Stockholders to
sell a specified number of such securities at a stipulated price
per security;
●
through the writing
or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
●
a combination of
any such methods of sale; or
●
any other method
permitted pursuant to applicable law.
The
Selling Stockholders may also sell securities under Rule 144 or any
other exemption from registration under the Securities Act of 1933,
as amended (the “Securities
Act”), if available, rather than under this
prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any
broker-dealer acts as agent for the purchaser of securities, from
the purchaser) in amounts to be negotiated, but, except as set
forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2440; and in the case of a principal
transaction a markup or markdown in compliance with FINRA
IM-2440.
In
connection with the sale of the securities or interests therein,
the Selling Stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the securities in the course of hedging
the positions they assume. The Selling Stockholders may also sell
securities short and deliver these securities to close out their
short positions, or loan or pledge the securities to broker-dealers
that in turn may sell these securities. The Selling Stockholders
may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or
more derivative securities which require the delivery to such
broker-dealer or other financial institution of securities offered
by this prospectus, which securities such broker-dealer or other
financial institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are
involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities Act
in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the
resale of the securities purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
Each Selling Stockholder has informed the Company that it does not
have any written or oral agreement or understanding, directly or
indirectly, with any person to distribute the
securities.
The
Company is required to pay certain fees and expenses incurred by
the Company incident to the registration of the securities. The
Company has agreed to indemnify the Selling Stockholders against
certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i)
the date on which the securities may be resold by the Selling
Stockholders without registration and without regard to any volume
or manner-of-sale limitations by reason of Rule 144, without the
requirement for the Company to be in compliance with the current
public information under Rule 144 under the Securities Act or any
other rule of similar effect or (ii) all of the securities have
been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
securities will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In
addition, in certain states, the resale securities covered hereby
may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied
with.
Under
applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to
the common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In
addition, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of
purchases and sales of the common stock by the Selling Stockholders
or any other person. We will make copies of this prospectus
available to the Selling Stockholders and have informed them of the
need to deliver a copy of this prospectus to each purchaser at or
prior to the time of the sale (including by compliance with Rule
172 under the Securities Act).
LEGAL MATTERS
The
validity of the securities offered hereby is being passed upon for
us by Disclosure Law Group, a Professional Corporation, of San
Diego, California.
EXPERTS
Mazars USA
LLP, our independent registered
public accounting firm, has audited our consolidated financial
statements included in our Annual Report on Form 10-K for the year
ended December 31, 2016, as set forth in their report, which
is incorporated by reference in this prospectus. Our financial
statements are incorporated by reference in reliance on
Mazars
USA LLP’s report, given
on their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE
INFORMATION
We
have filed with the SEC a registration statement on Form S-1 under
the Securities Act, with respect to the securities being offered by
this prospectus. This prospectus does not contain all of the
information in the registration statement and its exhibits. For
further information with respect to us and the securities offered
by this prospectus, we refer you to the registration statement and
its exhibits. Statements contained in this prospectus as to the
contents of any contract or any other document referred to are not
necessarily complete, and in each instance, we refer you to the
copy of the contract or other document filed as an exhibit to the
registration statement. Each of these statements is qualified in
all respects by this reference.
We are subject to the information and periodic
reporting requirements of the Exchange Act, and we file periodic
reports and other information with the SEC. You can read our SEC
filings, including the registration statement, over the Internet at
the SEC’s website at www.sec.gov. You may also read and copy
any document we file with the SEC at its public reference
facilities at 100 F Street NE, Washington, D.C. 20549. You may also
obtain copies of these documents at prescribed rates by writing to
the Public Reference Section of the SEC at 100 F Street NE,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the operation of the public reference
facilities. You may also request a copy of these filings, at no
cost, by writing us at 760 Parkside Avenue, Downtown Biotechnology
Incubator, Suite 304, Brooklyn, New York 11226 or telephoning us at
(646) 699-7855. We also maintain a website
at www.azurrx.com, at
which you may access these materials free of charge after they are
electronically filed with, or furnished to, the SEC. The
information contained in, or that can be accessed through, our
website is not incorporated by reference in, and is not part of,
this prospectus.
INCORPORATION OF
CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” information
from other documents that we file with it, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered
to be part of this prospectus.
We
incorporate by reference into this prospectus and the registration
statement of which this prospectus form a part the information or
documents listed below that we have filed with the SEC, and any
future filings we will make with the SEC under Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act after the date of the
initial filing of the registration statement of which this
prospectus is a part and prior to effectiveness of such
registration statement, and until the termination of the offering
of the shares covered by this prospectus (other than information
furnished under Item 2.02 or Item 7.01 of Form
8-K):
●
our
Annual Report on Form 10-K for the year ended December 31, 2016
filed on March 31, 2017;
●
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2017
filed on May 15, 2017;
●
our
Current Report on Form 8-K, filed on March 9, 2017;
●
our
Current Report on Form 8-K, filed on April 12, 2017;
●
our
Current Report on Form 8-K, filed on June 9, 2017; and
●
the
description of our common stock which is registered under Section
12 of the Exchange Act, in our registration statement on Form 8-A,
filed on August 8, 2016, including any amendment or reports filed
for the purposes of updating this description.
Any
statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference into this
prospectus will be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in this
prospectus or any other subsequently filed document that is deemed
to be incorporated by reference into this prospectus modifies or
supersedes the statement. Any statements so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We
will furnish without charge to you, on written or oral request, a
copy of any or all of the documents incorporated by reference in
this prospectus, including exhibits to these documents. You should
direct any requests for documents to 760 Parkside Avenue, Downtown
Biotechnology Incubator, Suite 304, Brooklyn, New York 11226 or
telephoning us at (646) 699-7855.
You also may access these filings on our website
at www.azurrx.com.
We do not incorporate the information on our website into this
prospectus or any supplement to this prospectus and you should not
consider any information on, or that can be accessed through, our
website as part of this prospectus or any supplement to this
prospectus (other than those filings with the SEC that we
specifically incorporate by reference into this
prospectus).
DISCLOSURE OF COMMISSION
POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITY
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers, and controlling
persons, we have been advised that in the opinion of the SEC this
indemnification is against public policy as expressed in the
Securities Act and is therefore, unenforceable.
5,895,535
Shares
Common Stock
PROSPECTUS
[______________], 2017
PART
II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The
following table sets forth the various expenses, all of which will
be borne by the registrant, in connection with the sale and
distribution of the securities being registered, other than the
underwriting discounts and commissions. All amounts shown are
estimates except for the SEC registration fee.
SEC registration
fee
|
$2,234
|
Accounting fees and
expenses
|
$15,000
|
Legal fees and
expenses
|
$30,000
|
Miscellaneous
|
$5,000
|
Total
|
$52,234
|
Item 14. Indemnification of Directors and Officers.
Amended and Restated Bylaws
Pursuant to our
bylaws, our directors and officers will be indemnified to the
fullest extent allowed under the laws of the State of Delaware for
their actions in their capacity as our directors and
officers.
We must
indemnify any person made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (“Proceeding”) by reason of the
fact that he is or was a director, against judgments, penalties,
fines, settlements and reasonable expenses (including
attorney’s fees) (“Expenses”) actually and
reasonably incurred by him in connection with such Proceeding if:
(a) he conducted himself in good faith, and: (i) in the case of
conduct in his own official capacity with us, he reasonably
believed his conduct to be in our best interests, or (ii) in all
other cases, he reasonably believes his conduct to be at least not
opposed to our best interests; and (b) in the case of any criminal
Proceeding, he had no reasonable cause to believe his conduct was
unlawful.
We must
indemnify any person made a party to any Proceeding by or in the
right of us, by reason of the fact that he is or was a director,
against reasonable expenses actually incurred by him in connection
with such proceeding if he conducted himself in good faith, and:
(a) in the case of conduct in his official capacity with us, he
reasonably believed his conduct to be in our best interests; or (b)
in all other cases, he reasonably believed his conduct to be at
least not opposed to our best interests; provided that no such
indemnification may be made in respect of any proceeding in which
such person shall have been adjudged to be liable to
us.
No
indemnification will be made by unless authorized in the specific
case after a determination that indemnification of the director is
permissible in the circumstances because he has met the applicable
standard of conduct.
Reasonable expenses
incurred by a director who is party to a proceeding may be paid or
reimbursed by us in advance of the final disposition of such
Proceeding in certain cases.
We have
the power to purchase and maintain insurance on behalf of any
person who is or was our director, officer, employee, or agent or
is or was serving at our request as an officer, employee or agent
of another corporation, partnership, joint venture, trust, other
enterprise, or employee benefit plan against any liability asserted
against him and incurred by him in any such capacity or arising out
of his status as such, whether or not we would have the power to
indemnify him against such liability under the provisions of the
amended and restated bylaws.
Delaware Law
We are
incorporated under the laws of the State of Delaware. Section 145
of the Delaware General Corporation Law provides that a Delaware
corporation may indemnify any persons who are, or are threatened to
be made, parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an
officer, director, employee or agent of such corporation, or is or
was serving at the request of such person as an officer, director,
employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith
and in a manner he or she reasonably believed to be in or not
opposed to the corporation’s best interests and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe that his or her conduct was illegal. A Delaware corporation
may indemnify any persons who are, or are threatened to be made, a
party to any threatened, pending or completed action or suit by or
in the right of the corporation by reason of the fact that such
person was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys’ fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such
action or suit provided such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
corporation’s best interests except that no indemnification
is permitted without judicial approval if the officer or director
is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of
any action referred to above, the corporation must indemnify him or
her against the expenses which such officer or director has
actually and reasonably incurred. Our amended and restated
certificate of incorporation and amended and restated bylaws
provide for the indemnification of our directors and officers to
the fullest extent permitted under the Delaware General Corporation
Law.
Section
102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duties as a director, except for liability for
any:
●
transaction from
which the director derives an improper personal
benefit;
●
act or omission not
in good faith or that involves intentional misconduct or a knowing
violation of law;
●
unlawful payment of
dividends or redemption of shares; or
●
breach of a
director’s duty of loyalty to the corporation or its
stockholders.
Our
amended and restated certificate of incorporation and amended and
restated bylaws include such a provision. Expenses incurred by any
officer or director in defending any such action, suit or
proceeding in advance of its final disposition shall be paid by us
upon delivery to us of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not
entitled to be indemnified by us.
Section
174 of the Delaware General Corporation Law provides, among other
things, that a director who willfully or negligently approves of an
unlawful payment of dividends or an unlawful stock purchase or
redemption may be held liable for such actions. A director who was
either absent when the unlawful actions were approved, or dissented
at the time, may avoid liability by causing his or her dissent to
such actions to be entered in the books containing minutes of the
meetings of the board of directors at the time such action occurred
or immediately after such absent director receives notice of the
unlawful acts.
Indemnification Agreements
As
permitted by the Delaware General Corporation Law, we have entered,
and intend to continue to enter, into separate indemnification
agreements with each of our directors and executive officers, that
require us to indemnify such persons against any and all expenses
(including attorneys’ fees), witness fees, damages,
judgments, fines, settlements and other amounts incurred (including
expenses of a derivative action) in connection with any action,
suit or proceeding, whether actual or threatened, to which any such
person may be made a party by reason of the fact that such person
is or was a director, an officer or an employee of us or any of our
affiliated enterprises, provided that such person acted in good
faith and in a manner such person reasonably believed to be in or
not opposed to our best interests and, with respect to any criminal
proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for
indemnification thereunder.
At
present, there is no pending litigation or proceeding involving any
of our directors or executive officers as to which indemnification
is required or permitted, and we are not aware of any threatened
litigation or preceding that may result in a claim for
indemnification.
We have
an insurance policy covering its officers and directors with
respect to certain liabilities, including liabilities arising under
the Securities Act or otherwise.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers or controlling persons,
we have been advised that in the opinion of the SEC this
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Item
15. Recent Sales of Unregistered Securities.
The
information below lists all of the securities sold by us during the
past three years which were not registered under the Securities Act
and are not otherwise described in the accompanying
prospectus:
Between
January 30, 2014 and September 2015, we sold 100 shares of Series A
Convertible Preferred Stock and 3,584,321 shares of common
stock.
Commencing on July
22, 2014, the Company, through a series of transactions with
various investors, raised $896,000 through the issuance and sale of
its promissory notes.
Commencing on
October 10, 2014, the Company, through a series of transactions
with various investors, raised $9,162,526 through the issuance and
sale of its original issue discounted convertible notes and
warrants to purchase an aggregate of 2,128,683 shares of common
stock.
In July
2016, the Company issued an aggregate of 105,000 shares of
restricted stock to the Company’s non-executive members of
its board of directors.
These
securities were issued pursuant to the exemption from registration
provided by Section 4(a)(2) of the Securities Act of 1933, as
amended, and Rule 506 of Regulation D promulgated thereunder, in
reliance on the recipient’s status as an “accredited
investor” as defined in Rule 501(a) of Regulation D, except
for the restricted stock grants which were issued pursuant to Rule
701 or Rule 506.
Item 16. Exhibits and Financial Statement Schedules.
(a)
The following
exhibits are filed as part of this Registration
Statement:
1.1
|
|
Form of
Underwriting Agreement (Incorporated by reference from Exhibit 1.1
to Amendment No. 6 to the Registrant’s registration statement
on Form S-1, filed with the Securities and Exchange Commission on
October 5, 2016)
|
|
|
|
3.1
|
|
Amended
and Restated Certificate of Incorporation of the Registrant
(Incorporated by reference from Exhibit 3.1 to the
Registrant’s registration statement on Form S-1, filed with
the Securities and Exchange Commission on July 13,
2016)
|
|
|
|
3.2
|
|
Amended
and Restated Bylaws of the Registrant (Incorporated by reference
from Exhibit 3.2 to the Registrant’s registration statement
on Form S-1, filed with the Securities and Exchange Commission on
July 13, 2016)
|
|
|
|
4.1
|
|
Form of
Common Stock Certificate (Incorporated by reference from Exhibit
4.1 to Amendment No. 1 to the Registrant’s registration
statement on Form S-1, filed with the Securities and Exchange
Commission on July 29, 2016)
|
|
|
|
4.2
|
|
Form of
Investor Warrant (Incorporated by reference from Exhibit 4.2 to the
Registrant’s registration statement on Form S-1, filed with
the Securities and Exchange Commission on July 13,
2016)
|
|
|
|
4.3
|
|
Form of
Underwriter Warrant (Incorporated by reference from Exhibit 4.3 to
Amendment No. 2 to the Registrant’s registration statement on
Form S-1, filed with the Securities and Exchange Commission on
August 5, 2016)
|
|
|
|
5.1
|
|
Opinion
of Disclosure Law Group, a Professional Corporation, regarding
legality*
|
|
|
|
10.1
|
|
Stock
Purchase Agreement dated May 21, 2014 between the Registrant,
Protea Biosciences Group, Inc. and its wholly-owned subsidiary,
Protea Biosciences, Inc. (Incorporated by reference from Exhibit
10.1 to the Registrant’s registration statement on Form S-1,
filed with the Securities and Exchange Commission on July 13,
2016)
|
|
|
|
10.2
|
|
Amended
and Restated Joint Research and Development Agreement dated January
1, 2014 between the Registrant and Mayoly (Incorporated by
reference from Exhibit 10.2 to the Registrant’s registration
statement on Form S-1, filed with the Securities and Exchange
Commission on July 13, 2016)
|
|
|
|
10.3
|
|
Amended
and Restated AzurRx BioPharma, Inc. 2014 Omnibus Equity Incentive
Plan (Incorporated by reference from Exhibit 10.3 to the
Registrant’s registration statement on Form S-1, filed with
the Securities and Exchange Commission on July 13,
2016)
|
|
|
|
10.4
|
|
Employment Agreement
between the Registrant and Mr. Spoor (Incorporated by reference
from Exhibit 10.4 to the Registrant’s registration statement
on Form S-1, filed with the Securities and Exchange Commission on
July 13, 2016)
|
|
|
|
10.5
|
|
Securities
Purchase Agreement, dated April 11, 2017 (Incorporated by reference
from Exhibit 10.1 to the Registrant’s current report on Form
8-K, filed with the Securities and Exchange Commission on April 12,
2017)
|
|
|
|
10.6
|
|
12%
Senior Secured Original Issue Discount Convertible Debenture
(Incorporated by reference from Exhibit 10.2 to the
Registrant’s current report on Form 8-K, filed with the
Securities and Exchange Commission on April 12, 2017)
|
|
|
|
10.7
|
|
Warrant,
dated April 11, 2017 (Incorporated by reference from Exhibit 10.3
to the Registrant’s current report on Form 8-K, filed with
the Securities and Exchange Commission on April 12,
2017)
|
|
|
|
10.8
|
|
Registration
Rights Agreement, dated April 11, 2017 (Incorporated by reference
from Exhibit 10.4 to the Registrant’s current report on Form
8-K, filed with the Securities and Exchange Commission on April 12,
2017)
|
|
|
|
10.9
|
|
Form of
Securitas Purchase Agreement, dated June 5, 2017 (Incorporated by
reference from Exhibit 10.1 to the Registrant’s current
report on Form 8-K, filed with the Securities and Exchange
Commission on June 9, 2017)
|
|
|
|
10.10
|
|
Form of
Registration Rights Agreement, dated June 5, 2017 (Incorporated by
reference from Exhibit 10.2 to the Registrant’s current
report on Form 8-K, filed with the Securities and Exchange
Commission on June 9, 2017)
|
|
|
|
10.11
|
|
Form of
Series A Warrant, dated June 5, 2017 (Incorporated by reference
from Exhibit 10.3 to the Registrant’s current report on Form
8-K, filed with the Securities and Exchange Commission on June 9,
2017)
|
|
|
|
10.12
|
|
Form of
Series A-1 Warrant, dated June 5, 2017 (Incorporated by reference
from Exhibit 10.4 to the Registrant’s current report on Form
8-K, filed with the Securities and Exchange Commission on June 9,
2017)
|
|
|
|
14.1
|
|
Code of
Ethics of AzurRx BioPharma, Inc. Applicable To Directors, Officers
And Employees (Incorporated by reference from Exhibit 14.1 to the
Registrant’s registration statement on Form S-1, filed with
the Securities and Exchange Commission on July 13,
2016)
|
|
|
|
21.1
|
|
Subsidiaries
of the Registrant (Incorporated by reference from Exhibit 21.1 to
the Registrant’s registration statement on Form S-1, filed
with the Securities and Exchange Commission on July 13,
2016)
|
|
|
|
|
Consent
of Mazars USA LLP, independent
registered public accounting firm
|
|
|
|
|
23.2
|
|
Consent
of Disclosure Law Group, a Professional Corporation (to be included
in Exhibit 5.1)*
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature page)
|
* To be
filed by amendment.
Item 17. Undertakings
(a)
The
undersigned registrant hereby undertakes:
(1)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i)
To
include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii)
To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii)
To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
(2)
That,
for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof;
and
(3)
To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4)
That,
for the purpose of determining liability under the Securities Act
of 1933 to any purchaser, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other
than prospectuses filed in reliance on Rule 430A, shall be deemed
to be part of and included in the registration statement as of the
date it is first used after effectiveness; provided, however, that
no statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such
document immediately prior to such date of first use.
(b)
The
undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or
Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3
of Regulation S-X are not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is
sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim
financial information.
(c)
Insofar as
indemnification for liabilities arising under the Securities Act of
1933 may be permitted for our directors, officers and controlling
persons of the Registrant pursuant to our Articles of Incorporation
or Amended and Restated Bylaws, or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by
a director, officer, or controlling person in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by the registrant is against
public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-1 and has duly caused
this registration statement or amendment thereto to be signed on
its behalf by the undersigned, thereunto duly authorized,
in the City of Brooklyn, New York, on July 20,
2017.
|
AZURRX BIOPHARMA,
INC.
|
|
By:
/s/ Johan M. (Thijs)
Spoor
Name:
Johan M. (Thijs) Spoor
Title:
President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below constitutes and
appoints Johan M.
(Thijs) Spoor, and his or her
true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his or her name,
place, and stead, in any and all capacities, to (i) act on,
sign and file with the Securities and Exchange Commission any and
all amendments (including post-effective amendments) to this
registration statement together with all schedules and exhibits
thereto and any subsequent registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, together
with all schedules and exhibits thereto, (ii) act on, sign and
file such certificates, instruments, agreements and other documents
as may be necessary or appropriate in connection therewith,
(iii) act on and file any supplement to any prospectus
included in this registration statement or any such amendment or
any subsequent registration statement filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended, and (iv) take
any and all actions which may be necessary or appropriate to be
done, as fully for all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in
the capacities indicated on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Johan M.
(Thijs) Spoor
|
|
President,
Chief Executive Officer and Director
|
|
July
20, 2017
|
Johan
M. (Thijs) Spoor
|
|
(principal
executive officer and principal financial and accounting
officer)
|
|
|
|
|
|
|
|
/s/ Edward J.
Borkowski
|
|
Chairman
of the Board of Directors
|
|
July
20, 2017
|
Edward
J. Borkowski
|
|
|
|
|
|
|
|
|
|
/s/ Alastair
Riddell
|
|
Director
|
|
July
20, 2017
|
Alastair
Riddell
|
|
|
|
|
|
|
|
|
|
/s/ Maged
Shenouda
|
|
Director
|
|
July
20, 2017
|
Maged
Shenouda
|
|
|
|
|
|
|
|
|
|
/s/ Charles
Casamento
|
|
Director
|
|
July
20, 2017
|
Charles
Casamento
|
|
|
|
|
|
||||
|
II-8