AzurRx BioPharma, Inc. filed SEC Form 8-K: Entry into a Material Definitive Agreement, Unregistered Sales of Equity Securities, Other Events
$AZRX
Major Pharmaceuticals
Health Care
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): July 22,
2021
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)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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777 Yamato Road, Suite 502
Boca Raton, Florida
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33431
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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:
(561) 589-7020
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
[
] Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
[
] Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
[
] Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
[
] Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the
Act:
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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 of this chapter).
Emerging
growth company ☒
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange
Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On July 22, 2021, AzurRx BioPharma, Inc. (the
“Company”) entered into an underwriting agreement with
H.C. Wainwright & Co., LLC (“Wainwright”) (as
amended and restated, the “Underwriting Agreement”).
Pursuant to the Underwriting
Agreement, the Company agreed to sell, in an upsized firm
commitment offering, 9,090,910 shares (the “Shares”) of
the Company’s common stock, $0.0001 par value per share (the
“Common Stock”), to Wainwright at an offering price to
the public of $0.55 per share, less underwriting discounts and
commissions. On July 27, 2021, pursuant to the terms of the
Underwriting Agreement, Wainwright exercised its 30-day
over-allotment option in full to purchase an additional 1,363,636
shares of Common Stock at the same offering price to the public,
less underwriting discounts and commissions. The offering closed on
July 27, 2021.
The Company received net proceeds from the sale of the Shares,
including proceeds received upon exercise of the over-allotment
option and after deducting underwriting discounts and commissions
and other offering expenses payable by the Company, of
approximately $5.1 million. The Company intends to use the net
proceeds from the offering for milestone payments due under the
Company’s license agreements and for other general corporate
purposes, which may include product manufacturing, clinical
development, acquisitions or investments in complementary
businesses, products or technologies, and/or increases in working
capital.
Wainwright acted as the sole book-running manager for the offering.
The Company paid Wainwright an underwriting discount equal to 8.0%
of the gross proceeds of the offering, and reimbursed Wainwright
for a non-accountable expense allowance of $35,000, $125,000 in
legal fees and $15,950 for clearing expenses. Additionally, as
partial compensation for Wainwright’s services as underwriter
in the offering, the Company issued to Wainwright (or its
designees) warrants to purchase 731,819 shares of Common Stock
equal to 7.0% of the aggregate number of shares of Common Stock
sold in the offering (the “Wainwright Warrants”). The
Wainwright Warrants have a term of five (5) years from the date of
the Underwriting Agreement and an exercise price of $0.6875 per
share (equal to 125% of the offering price per share), subject to
adjustments as provided in the terms of the Wainwright Warrants.
The Wainwright Warrants provide for liquidated damages and
compensation for buy-ins, if the Company fails to timely deliver
the underlying Common Stock within specified timeframes from
exercise. The Wainwright Warrants do not provide for any Black
Scholes payout in the event of a fundamental transaction relating
to the Company.
The sale of the Shares and the issuance of the Wainwright Warrants
(and the shares of Common Stock issuable upon exercise of the
Wainwright Warrants) were made pursuant to the Company’s
effective Registration Statement on Form S-3 (Registration No.
333-256476), including a prospectus contained therein dated June 2,
2021, as supplemented by a prospectus supplement, dated July 22,
2021, relating to the offering.
The Underwriting Agreement contains customary representations,
warranties, and covenants of the Company and also provides for
customary indemnification by each of the Company and Wainwright
against certain liabilities and customary contribution provisions
in respect of those liabilities.
A copy of the opinion of Lowenstein Sandler LLP relating to the
legality of the issuance and sale of the Shares and the issuance of
the Wainwright Warrants is attached as Exhibit 5.1
hereto.
The foregoing descriptions of the terms and conditions of the
Underwriting Agreement and the form of Wainwright Warrant are
qualified in their entirety by reference to the full text of the
Underwriting Agreement and the form of Wainwright Warrant, copies
of which are attached hereto as Exhibits 1.1 and 4.1, respectively,
and which are incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
As previously reported, under the Certificate of Designations of
the Company’s issued and outstanding Series B Convertible
Preferred Stock, each holder of the Company’s Series B
Convertible Preferred Stock, par value $0.0001 per share (the
“Series B Preferred Stock”), has the right to exchange
the stated value, plus accrued and unpaid dividends, of the Series
B Preferred Stock on a dollar-for-dollar basis into subsequent
offerings by the Company for cash of Common Stock or Common Stock
equivalents. The Series B Preferred Stock exchange right was
previously implicated by the Company’s registered direct
offering and private placement in January 2021 (the “January
2021 Offering”).
As a result of this offering of Common Stock at $0.55 per share, an
aggregate of 676.05 shares of Series B Preferred Stock that are
currently outstanding are now exchangeable, at the holder’s
option, into either: (i) up to an aggregate of approximately
9,929,114 shares of Common Stock at a price of $0.55 per share,
with no warrants, as a result of this offering; or (ii) up to an
aggregate of approximately 7,281,336 shares of Common Stock
issuable upon conversion of the Company’s Series C Preferred
Stock, par value $0.0001 per share, at a conversion price of $0.75
per share, together with warrants to purchase an aggregate of up to
7,281,336 shares of Common Stock at an exercise price of $0.80 per
share, as a result of the January 2021 Offering.
Any shares of Common Stock issued pursuant to this exchange right
are anticipated to be made pursuant to exemptions provided by
Section 3(a)(9) under the Securities Act of 1933 (the
“Securities Act”), or another applicable exemption
therefrom, and accordingly will be freely transferable without
restriction upon issuance pursuant to the exemption provided by
Rule 144 under the Securities Act.
Item 8.01 Other Events.
On July 22, 2021, the Company issued press releases announcing the
pricing and upsizing of the offering. On July 27, 2021, the Company
issued a press release announcing the closing of the offering.
Copies of these press releases are attached hereto as Exhibits
99.1, 99.2 and 99.3, respectively, and are each incorporated herein
by reference.
Exhibit 9.01 Financial Statements and Exhibits.
(d)
Exhibits.
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Exhibit No.
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Description
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Amended
and Restated Underwriting Agreement, dated July 22, 2021, between
AzurRx BioPharma, Inc. and H.C. Wainwright & Co.,
LLC
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Form of
Wainwright Warrant
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Opinion
of Lowenstein Sandler LLP
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Consent
of Lowenstein Sandler LLP (included in Exhibit 5.1)
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Press
Release dated July 22, 2021 (announcing pricing of
offering)
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Press
Release dated July 22, 2021 (announcing upsizing of
offering)
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| 99.3 |
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Press Release
dated July 27, 2021 (announcing closing of
offering)
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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:
July 27, 2021
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By:
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/s/
Daniel Schneiderman
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Name: Daniel Schneiderman
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Title: Chief Financial Officer
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