Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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): December 20,
2019
AZURRX BIOPHARMA, INC.
(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
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(Commission
File Number)
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(I.R.S.
Employer
Identification
No.)
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760 Parkside Avenue
Downstate Biotechnology Incubator,
Suite 304
Brooklyn, New York
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11226
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code: (646)
699-7855
(Name,
address, including zip code, and telephone number, including area
code, of agent for service of process)
NOT APPLICABLE
(Former
Name or Former Address, if Changes Since Last Report)
Check
the appropriate box below if the Form 8-K 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:
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Title
of each class
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Trading
Symbol(s)
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Name of
each exchange on which registered
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Common
Stock, par value $0.0001 per share
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AZRX
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Nasdaq
Capital Market
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Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (17 CFR
230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17
CFR 240.12b-2)
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 December 20, 2019, AzurRx BioPharma, Inc. (the
“Company”) began an offering of (i) Senior
Convertible Promissory Notes (each a “Note,” and together, the
“Notes”) in the principal amount of up to $8.0
million to certain accredited investors (the
“Investors”), and (ii) warrants
(“Warrants”) to purchase shares of the Company’s
common stock, par value $0.001 per share
(“Common
Stock”), each pursuant to
Note Purchase Agreements entered into by and between the Company
and each of the Investors (the “NPAs”) (the “Note
Offering”).
On December 20, 2019 and December 24, 2019, the
Company issued Notes to the Investors in the aggregate principal
amount of $3,018,100. Each Note has a maturity date that is nine
months from the date of issuance, accrues interest at a rate of 9%
per annum, and is convertible, at the option of the holder, into
shares of the Company’s Common Stock at a price of $0.97 per
share (the “Conversion
Shares”). As additional
consideration for the execution of the NPA, each Investor also
received Warrants to purchase that number of shares of the
Company’s Common Stock equal to one-half of the Conversion
Shares issuable upon conversion of the Notes (the
“Warrant
Shares”). The Warrants
have an exercise price of $1.07 per share and expire three years
from the date of issuance. The Company and each Investor executed a
Registration Rights Agreement (the “RRA”), pursuant to which the Company agreed to
file a registration statement with the Securities and Exchange
Commission no later than 30 days after the beginning of the Note
Offering, on behalf of Investors, to register the Conversion Shares
and Warrant Shares.
Placement agent fees of $271,629 were paid to
Alexander Capital L.P., who acted as placement agent for the Note
Offering, which fees were based on 9% of the aggregate principal
amount of the Notes issued to the Investors. In addition, Alexander
Capital L.P. (i) was issued warrants, containing substantially the
same terms and conditions as the Warrants, to purchase 217,801
shares of Common Stock (the “Placement Agent
Warrants”), representing
7% of the Conversion Shares issuable upon conversion of the Notes
issued to the Investors, and (ii) was paid a non-accountable
expense allowance of 1% of the gross proceeds from the Notes
Offering. The Placement Agent Warrants have an exercise price of
$1.21 per share and expire three years from the date of
issuance.
The Company intends to use the proceeds from the
Note Offering for general working capital purposes, and to repay
certain amounts due and payable to ADEC Private Equity Investments,
LLC (“ADEC”) pursuant to certain outstanding Senior
Convertible Notes issued to ADEC in the aggregate principal amount
of $2.0 million (each an “ADEC Note” and together the
“ADEC
Notes”), as more
particularly described below in Item 8.01 of this Current Report on
Form 8-K.
The
issuance of the Notes, Warrants and the Placement Agent Warrants
was exempt from the registration requirements of the Securities Act
of 1933, as amended, in accordance with Section 4(a)(2) and/or
Regulation 506 promulgated thereunder, as a transaction by an
issuer not involving a public offering.
The
foregoing description of the NPA, the Notes, the Warrants and the
RRA do not purport to be complete, and are qualified in their
entirety by reference to the same, attached hereto as Exhibits
10.1, 10.2, 10.3 and 10.4, respectively, each of which are
incorporated by reference herein.
Item 2.03 Creation of a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement
of a Registrant.
See
Item 1.01.
Item 3.02 Unregistered Sales of Equity
Securities.
See
Item 1.01.
Item 5.03 Amendments to Articles of Incorporation or
Bylaws.
On December 20, 2019, the Company filed an
amendment to its Amended and Restated Certificate of Incorporation
(the “Charter
Amendment”) with the
Secretary of State of the State of Delaware to increase the number
of authorized shares of Common Stock by 50,000,000 shares to
150,000,000 shares, which Charter Amendment was effective
immediately upon acceptance by the Secretary of State of the State
of Delaware. The Charter Amendment was approved by stockholders at
the Company’s annual meeting of stockholders held December
19, 2019.
Item 8.01 Other Events.
In connection with the Note Offering, ADEC
consented to (i) the issuance of the Notes in the Note Offering,
and (ii) the extension of the maturity date of an ADEC Note
currently due and payable on December 31, 2019 in the principal
amount of $1.0 million (“Note A”) to January 20, 2020, and the Company
agreed to, among other agreements, use 50% of the initial $1.2
million in proceeds received from the Note Offering to reduce the
principal due and payable ADEC under the ADEC Note maturing on
December 31, 2020 (“Note B”). As of the date of this Current Report on
Form 8-K, the Company has repaid $550,000 in principal due and
owing ADEC under Note B.
Item 9.01. Financial Statements and
Exhibits.
(d)
Exhibits.
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Exhibit Number
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Description
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Certificate of Amendment to the
Certificate of Incorporation
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Form of Note Purchase
Agreement
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Form of Senior Convertible
Promissory Note
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Form of Warrant
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Form of Registration Rights
Agreement
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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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AzurRx BioPharma, Inc.
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Date:
December 30, 2019
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By:
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/s/ James
Sapirstein
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Name: James Sapirstein
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Title: President and Chief Executive Officer
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Exhibit Index
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Exhibit Number
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Description
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Certificate of Amendment
to the Certificate of Incorporation
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Form of Note Purchase
Agreement
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Form of Senior Convertible
Promissory Note
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Form of Warrant
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Form of Registration Rights
Agreement
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