Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): March 7,
2021
AzurRx BioPharma, Inc.
(Exact Name of Registrant as Specified in
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)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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1615 South Congress Avenue, Suite 103
Delray Beach, Florida 33445
(Address of Principal Executive Offices, and Zip Code)
(646) 699-7855
Registrant’s Telephone Number, Including Area
Code
Not Applicable
(Former Name or Former Address, if Changed Since Last
Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2.
below):
[
] Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
[
] Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
[
] Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
[
] Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the
Act:
Title of each class
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Trading Symbol(s)
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Name of each exchange on which
registered
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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 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2 of this
chapter).
Emerging growth company [X]
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 Definitive Material Agreement.
The Offering
On March 7, 2021, AzurRx BioPharma, Inc. (the
“Company”) entered into a securities purchase agreement
(the “Purchase Agreement”) with single institutional
investor, pursuant to which the Company agreed to sell, in a
registered direct offering (the “Offering”) priced at
the market under Nasdaq rules, (i) 5,800,000 shares of the
Company’s common stock, par value $0.0001 (the “Common
Stock”), (ii) pre-funded warrants (the “Pre-Funded
Warrants”) to purchase up to 2,058,548 shares of Common
Stock, with an exercise price of $0.01 per share and no expiration
term and (iii) warrants (the “Warrants”) to purchase an
aggregate of 3,929,274 shares of Common Stock with an exercise
price of $1.21 per share and an expiration term of five years from
the date of issuance. The price per share and accompanying warrants
was $1.2725.
The aggregate gross proceeds from the Offering, excluding the net
proceeds, if any, from the exercise of the Warrants will be
approximately $10.0 million, and the closing is expected to occur
on March 10, 2021 (the “Closing Date”).
The net proceeds to the Company from the Offering, after deducting
the placement agent’s fees and expenses and estimated
offering expenses, are expected to be approximately $9.1 million.
The Company intends to use the net proceeds to initiate its two
niclosamide clinical programs in the first half of 2021, a Phase 2
clinical trial for COVID-19 GI infections and a Phase 1b/2a trial
for immune checkpoint inhibitor induced colitis, respectively, and
for other general corporate purposes.
The offering of the securities described above is being made
pursuant to the Company’s effective shelf registration
statement on Form S-3 (Registration No. 333-231954) filed with
the Securities and Exchange Commission (the “SEC”) on
June 21, 2019, and declared effective on June 25, 2019. The Company
will file a prospectus supplement with the SEC in connection with
the sale of such securities.
In the Purchase Agreement, the Company has agreed not to issue,
enter into any agreement to issue or announce the issuance or
proposed issuance of, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for shares of
Common Stock or file any registration statement or prospectus, or
any amendment or supplement thereto for 50 days after the Closing
Date. In addition, the Company has agreed not to effect or enter
into an agreement to effect any issuance of Common Stock or any
securities convertible into or exercisable or exchangeable for
shares of Common Stock involving a variable rate transaction (as
defined in the Purchase Agreement) until the one-year anniversary
of the date of the Purchase Agreement, subject to certain
exceptions.
The Purchase Agreement contains customary representations,
warranties and agreements by the Company, customary conditions to
closing, indemnification obligations of the Company and the
purchaser, including for liabilities arising under the Securities
Act, other obligations of the parties and termination provisions.
The representations, warranties and covenants contained in the
Purchase Agreement were made only for the purposes of such
agreement and as of specific dates, were solely for the benefit of
the parties to such agreement, and may be subject to limitations
agreed upon by the contracting parties.
The form of the Purchase Agreement is filed as Exhibit 10.1 to this
Current Report on Form 8-K. The summaries of the terms of this
document herein is subject to, and qualified in its entirety by
such document which is incorporated herein by
reference.
Placement Agent Compensation
H.C. Wainwright & Co., LLC (“Wainwright”) acted as
exclusive placement agent for the Offering. The Company has agreed
to pay Wainwright a cash fee equal to 8.0% of the aggregate gross
proceeds received by the Company in the Offering, or approximately
$800,000. The Company also agreed to issue to Wainwright or its
designees warrants (the “Wainwright Warrants”)
exercisable for up to 550,099 shares of Common Stock, which is
equal to 7.0% of the aggregate number of shares of Common Stock
placed in the Offering. The Wainwright Warrants will have
substantially the same terms as the Warrants, except with an
exercise price of $1.5906, or 125% of the effective purchase price
per share of Common Stock and accompanying Warrant issued in the
Offering. The Company will also reimburse Wainwright $35,000 for
non-accountable expenses, up to $50,000 for legal fees and expenses
and other out-of-pocket expenses and $15,950 for clearing
fees.
Terms of the Pre-Funded Warrants
The Pre-Funded Warrants are exercisable at a price of $0.01 per
share and are not subject to expiration. The Company is prohibited
from effecting an exercise of any Pre-funded Warrants to the extent
that such exercise would result in the number of shares of Common
Stock beneficially owned by such holder and its affiliates
exceeding 4.99% of the total number of shares of Common Stock
outstanding immediately after giving effect to the exercise, which
percentage may be increased or decreased at the holder’s
election not to exceed 9.99%.
The form of the Pre-funded Warrants is filed as Exhibit 4.1 to this
Current Report on Form 8-K. The foregoing summary of the terms of
the Pre-funded Warrants is subject to, and qualified in its
entirety by, the form of such document, which is incorporated
herein by reference.
Terms of the Warrants
The Warrants are exercisable at a price of $1.21 per share for
3,929,274 shares of Common Stock (the “Warrant
Shares”). The Warrants expire on March 10, 2026. The holders
of the Warrants may exercise the Warrants on a cashless basis,
solely to the extent no registration statement is available at the
time of exercise. The Company is prohibited from effecting an
exercise of any Warrants to the extent that such exercise would
result in the number of shares of Common Stock beneficially owned
by such holder and its affiliates exceeding 4.99% of the total
number of shares of Common Stock outstanding immediately after
giving effect to the exercise, which percentage may be increased or
decreased at the holder’s election not to exceed 9.99%.
The Warrants provide for a Black-Scholes payout upon certain
fundamental change transactions relating to the Company, as
specified therein.
The form of the Warrant is filed as Exhibit 4.2 to this Current
Report on Form 8-K. The foregoing summary of the terms of the
Warrants is subject to, and qualified in its entirety by, the form
of such document, which is incorporated herein by
reference.
Item 7.01. Regulation FD Disclosure
On March 8, 2021, the Company issued a press release announcing the
Offering. A copy of the press release is furnished as Exhibits
99.1.
Item 9.01. Financial Statements and Exhibits.
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(d)
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Exhibits.
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Exhibit No.
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Description
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Form of
Pre-Funded Warrant
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Form of
Warrant
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Form of
Wainwright Warrant
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Opinion
of Lowenstein Sandler LLP
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Form of
Purchase Agreement
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Consent
of Lowenstein Sandler LLP (contained in Exhibit 5.1)
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Press
Release dated March 8, 2021
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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.
March
10, 2021
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AzurRx BioPharma, Inc.
By:
/s/
James Sapirstein
Name:
James Sapirstein
Title:
President and Chief Executive Officer
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