As filed with the Securities and Exchange Commission on October 11,
2017
Registration No. 333-_______
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AZURRX BIOPHARMA, INC.
(Exact Name Of Registrant As Specified In Its Charter)
Delaware
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46-4993860
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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AzurRx BioPharma, Inc.
760 Parkside Avenue
Downstate Biotechnology Incubator, Suite 304
Brooklyn, New York 11226
(646) 699-7855
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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
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(Address, including zip code, and telephone number,
including area code of Registrant’s principal executive
offices),
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(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
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From time to time after the effective date of this Registration
Statement
(Approximate date of commencement of proposed sale to
public)
Copies of all communications, including all communications sent to
the agent for service, should be sent 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
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
of the Securities Act of 1933, other than securities offered only
in connection with dividend or interest reinvestment plans, check
the following box. [X]
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. [
]
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, please check the following
box. [ ]
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, please check the
following box. [ ]
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 [ ]
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Accelerated filer [ ]
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Non-accelerated filer [ ]
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Smaller reporting company [ ]
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Emerging growth company [X]
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(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
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Proposed
Maximum Offering Price Per Unit
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Proposed Maximum Aggregate
Offering
Price
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Amount of
Registration
Fee
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Common
Stock, par value $0.0001 per share
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(1
)
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(2
)
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(2
)
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$
—
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Warrants
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(1
)
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(2
)
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(2
)
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—
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Units
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(1
)
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(2
)
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(2
)
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—
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Total
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(1
)
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(2
)
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$
10,000,000
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$
1,245.00
(3)
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(1)
There are being registered hereunder such
indeterminate number of shares of common stock and such
indeterminate number of warrants and units as shall have an
aggregate offering price not to exceed $10,000,000. Any securities
registered hereunder may be sold separately or as units with other
securities registered hereunder. The securities registered also
include such indeterminate number of shares of common stock as may
be issued upon exercise of warrants or pursuant to the
anti-dilution provisions of any such securities. In addition,
pursuant to Rule 416 under the Securities Act of 1933, as amended
(the
“Securities
Act
”), the shares
being registered hereunder include such indeterminate number of
shares of common stock as may be issuable with respect to the
shares being registered hereunder as a result of stock splits,
stock dividends or similar transactions.
(2)
The proposed maximum aggregate offering price per class of security
will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities
registered hereunder and is not specified as to each class of
security.
(3)
Calculated pursuant to Rule 457(o) under the Securities
Act.
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.
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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
jurisdiction where the offer or sale is not permitted.
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PRELIMINARY
PROSPECTUS
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SUBJECT TO COMPLETION
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DATED OCTOBER 11, 2017
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$10,000,000
Common Stock
Warrants
Units
From time to time, we may offer and sell, in one or more offerings,
up to $10,000,000 of any combination of the securities described in
this prospectus. We may also offer securities as may be issuable
upon conversion, repurchase, exchange or exercise of any securities
registered hereunder, including any applicable anti-dilution
provisions.
This prospectus provides a general description of the securities we
may offer from time to time. Each time we offer securities, we will
provide specific terms of the securities offered in a supplement to
this prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with an offering.
The prospectus supplement and any related free writing prospectus
may also add, update or change information contained in this
prospectus. You should carefully read this prospectus, the
applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference,
before you invest in any of the securities being
offered.
Our common stock is listed on The NASDAQ Capital Market under the
ticker symbol “AZRX.” On October 10, 2017, the last
reported sale price per share of our common stock was $3.58 per
share.
We may offer and sell our securities to or through one or more
agents, underwriters, dealers or other third parties or directly to
one or more purchasers on a continuous or delayed basis. If agents,
underwriters or dealers are used to sell our securities, we will
name them and describe their compensation in a prospectus
supplement. The price to the public of our securities and the net
proceeds we expect to receive from the sale of such securities will
also be set forth in a prospectus supplement. For additional
information on the methods of sale, you should refer to the section
entitled “
Plan of
Distribution
” in this
prospectus.
As of October 10, 2017, the aggregate market value of our
outstanding common stock held by non-affiliates was approximately
$34.6 million, which was calculated based on 7,213,821 shares of
outstanding common stock held by non-affiliates, at a price per
share of $4.80. Pursuant to General Instruction I.B.6 of Form S-3,
in no event will we sell the securities described in this
prospectus in a public primary offering with a value exceeding more
than one-third (1/3) of the aggregate market value of our common
stock held by non-affiliates in any twelve (12)-month period, so
long as the aggregate market value of our outstanding common stock
held by non-affiliates remains below $75 million. During the twelve
(12) calendar months prior to and including the date of this
prospectus, we have not offered or sold any securities pursuant to
General Instruction I.B.6 of Form S-3.
Our business and investing in our
securities involves significant risks. You should review carefully
the risks and uncertainties referenced under the heading
“
Risk
Factors
” on page 3 of
this prospectus, as well as those contained in the applicable
prospectus supplement and any related free writing prospectus, and
in the other documents that are incorporated by reference into this
prospectus or the applicable prospectus
supplement.
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
AZURRX BIOPHARMA, INC.
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This prospectus is part of a registration statement filed with the
Securities and Exchange Commission
(the “
SEC
”), using a “shelf” registration
process. Under this shelf registration process, we may
sell the securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities which may be offered. Each
time we offer securities for sale, we will provide a prospectus
supplement that contains information about the specific terms of
that offering. Any prospectus supplement may also add or update
information contained in this prospectus. You should
read both this prospectus and any prospectus supplement together
with additional information described below under
“
Where You Can Find More
Information
” and
“
Incorporation of Certain
Information by Reference
.”
You should rely only on the information contained or incorporated
by reference in this prospectus, and in any prospectus
supplement. We have not authorized any other person to
provide you with different information. If anyone
provides you with different or inconsistent information, you should
not rely on it. We are not making offers to sell or
solicitations to buy the securities described in this prospectus in
any jurisdiction in which an offer or solicitation is not
authorized, or in which the person making that offer or
solicitation is not qualified to do so or to anyone to whom it is
unlawful to make an offer or solicitation. You should
not assume that the information in this prospectus or any
prospectus supplement, as well as the information we file or
previously filed with the SEC that we incorporate by reference in
this prospectus or any prospectus supplement, is accurate as of any
date other than its respective date. Our business,
financial condition, results of operations and prospects may have
changed since those dates.
This prospectus contains summaries of certain provisions contained
in some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading “
Where You Can Find More
Information.
”
This summary highlights information contained elsewhere in this
prospectus. This summary does not contain all the information you
should consider before buying our common stock. You should read the
following summary together with the more detailed information
appearing in this prospectus, including the section titled
“Risk Factors” on page 3, before deciding whether to
purchase our securities.
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, i.e. the intestinal lumen, skin or mucosa, without
reaching an individual’s systemic circulation. Our
current product pipeline consists of two therapeutic proteins under
development:
●
MS1819 - a yeast derived recombinant lipase for
exocrine pancreatic insufficiency (“
EPI
”) associated with chronic pancreatitis
(“
CP
”) and cystic fibrosis
(“
CF
”). A lipase is an enzyme that breaks up fat
molecules. MS1819 is considered recombinant since it was created
from new combinations of genetic material in yeast. MS1819 is
currently in Phase II clinical development in Australia and New
Zealand, with topline results expected in the first quarter of
2018.
●
AZX1101 - an enzymatic combination of bacterial
origin for the prevention of hospital-acquired infections and
antibiotic-associated diarrhea (“
AAD
”) by resistant bacterial strains induced by
parenteral administration of several antibiotic classes, including
the b-lactams. AZX1101 is composed of a molecular backbone linked
to several distinct enzymes that break up individual classes of
antibiotic molecules. We currently expect to continue with
pre-clinical development of AZX1101 through
2017.
Risk Factors
Our business is subject to substantial risk. Please carefully
consider the section titled “
Risk
Factors
” on page 3 of
this prospectus for a discussion of the factors you should
carefully consider before deciding to purchase securities that may
be offered by this prospectus.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also impair our business
operations. You should be able to bear a complete loss of your
investment.
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 and was 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.
Investing in our securities involves a high degree of risk. Before
deciding whether to purchase any of our securities, 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 NO
T
ES 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.
Unless otherwise provided in the applicable prospectus supplement,
we intend to use the net proceeds from the sale of
the securities under this prospectus primarily for for general
corporate purposes, including research and development,
working capital and capital expenditures. We may use a portion
of the net proceeds to continue clinical development and testing of
MS1819, advance our preclinical program for AZX1101. However, we
have no current commitments or obligations to do so. We may set
forth additional information on the use of proceeds from the
sale or the securities we offer under this prospectus in a
prospectus supplement relating to the specific offering. We
cannot currently allocate specific percentages of the net
proceeds that we may use for the purposes specified above. As a
result, our management will have broad discretion in the
allocation of the net proceeds. Pending the application of the net
proceeds, we intend to invest the net proceeds in short- and
intermediate-term, interest-bearing obligations, investment-grade
instruments, certificates of deposit or direct or guaranteed
obligations of the U.S. government.
DESCRIPTION O
F
O
UR CAPITAL
STOCK
General
Our amended and restated certificate of incorporation (our
“
Charter
”) authorizes the issuance of up to
100,000,000 shares of common stock, par value $0.0001 per share,
and 10,000,000 shares of preferred stock, par value $0.0001 per
share.
Common Stock
As of October 10, 2017, there were 11,470,896 shares of common
stock outstanding, which were held by approximately 148
stockholders of record, 3,897,414 shares of common stock subject to
outstanding warrants and 100,000 shares subject to certain
outstanding convertible debentures. Each holder of common stock is
entitled to one vote for each share of common stock held on all
matters submitted to a vote of the stockholders, including the
election of directors. Our Charter and Bylaws do not provide for
cumulative voting rights.
Holders of our common stock have no preemptive, conversion or
subscription rights, and there are no redemption or sinking fund
provisions applicable to the common stock. The rights, preferences
and privileges of the holders of common stock are subject to, and
may be adversely affected by, the rights of the holders of shares
of any series of our preferred stock that we may designate and
issue in the future.
Preferred Stock
Our Board of Directors is empowered, without stockholder approval,
to issue shares of preferred stock with dividend, liquidation,
redemption, voting or other rights which could adversely affect the
voting power or other rights of the holders of common stock. In
addition, the preferred stock could be utilized as a method of
discouraging, delaying or preventing a change in control of us.
Although we do not currently intend to issue any shares of
preferred stock, we cannot assure you that we will not do so in the
future.
Options
We currently do not have any outstanding options to purchase shares
of our common stock or other securities.
Transfer Agent
The transfer agent for our common stock is Transhare Corporation,
4626 South Broadway, Englewood, Colorado 80113, Tel: (303)
662-1112.
DESC
R
IPTION OF WA
RRANTS
The following description, together with the additional information
we include in any applicable prospectus supplements or free writing
prospectus, summarizes the material terms and provisions of the
warrants that we may offer under this prospectus. Warrants may be
offered independently or together with common stock offered by any
prospectus supplement or free writing prospectus, and may be
attached to or separate from those securities. While the terms we
have summarized below will generally apply to any future warrants
we may offer under this prospectus, we will describe the particular
terms of any warrants that we may offer in more detail in the
applicable prospectus supplement or free writing prospectus. The
terms of any warrants we offer under a prospectus supplement or
free writing prospectus may differ from the terms we describe
below.
In the event that we issue warrants, we will issue the warrants
under a warrant agreement which we will enter into with a warrant
agent to be selected by us. Forms of these warrant agreements and
forms of the warrant certificates representing the warrants, and
the complete warrant agreements and forms of warrant certificates
containing the terms of the warrants being offered, will be filed
as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we
file with the SEC. We use the term “warrant agreement”
to refer to any of these warrant agreements. We use the term
“warrant agent” to refer to the warrant agent under any
of these warrant agreements. The warrant agent will act solely as
an agent of ours in connection with the warrants and will not act
as an agent for the holders or beneficial owners of the
warrants.
The following summaries of material provisions of the warrants and
the warrant agreements are subject to, and qualified in their
entirety by reference to, all the provisions of the warrant
agreement applicable to a particular series of warrants. We urge
you to read the applicable prospectus supplements or free writing
prospectus related to the warrants that we sell under this
prospectus, as well as the complete warrant agreements that contain
the terms of the warrants.
General
We will describe in the applicable prospectus supplement or free
writing prospectus the terms relating to a series of warrants. If
warrants for the purchase of common stock are offered, the
prospectus supplement or free writing prospectus will describe the
following terms, to the extent applicable:
●
the offering price and the aggregate number of warrants
offered;
●
the total number of shares that can be purchased if a holder of the
warrants exercises them;
●
the date on and after which the holder of the warrants can transfer
them separately from the related common stock;
●
the number of shares of common stock that can be purchased if a
holder exercises the warrant and the price at which such common
stock may be purchased upon exercise, including, if applicable, any
provisions for changes to or adjustments in the exercise price and
in the securities or other property receivable upon
exercise;
●
the
terms of any rights to redeem or call, or accelerate the expiration
of, the warrants;
●
the
date on which the right to exercise the warrants begins and the
date on which that right expires;
●
federal income tax consequences of holding or exercising the
warrants; and
●
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the warrants.
Exercise of Warrants
Each holder of a warrant is entitled to purchase the number of
shares of common stock at the exercise price described in the
applicable prospectus supplement or free writing prospectus. After
the close of business on the day when the right to exercise
terminates (or a later date if we extend the time for exercise),
unexercised warrants will become void.
A holder of warrants may exercise them by following the general
procedure outlined below:
●
delivering to the warrant agent the payment required by the
applicable prospectus supplement or free writing prospectus to
purchase the underlying security;
●
properly
completing and signing the reverse side of the warrant certificate
representing the warrants; and
●
delivering the warrant certificate representing the warrants to the
warrant agent within five business days of the warrant agent
receiving payment of the exercise price.
If you comply with the procedures described above, your warrants
will be considered to have been exercised when the warrant agent
receives payment of the exercise price, subject to the transfer
books for the securities issuable upon exercise of the warrant not
being closed on such date. After you have completed those
procedures and subject to the foregoing, we will, as soon as
practicable, issue and deliver to you the common stock that you
purchased upon exercise. If you exercise fewer than all of the
warrants represented by a warrant certificate, a new warrant
certificate will be issued to you for the unexercised amount of
warrants. Holders of warrants will be required to pay any tax or
governmental charge that may be imposed in connection with
transferring the underlying securities in connection with the
exercise of the warrants.
Amendments and Supplements to the Warrant Agreements
We may amend or supplement a warrant agreement without the consent
of the holders of the applicable warrants to cure ambiguities in
the warrant agreement, to cure or correct a defective provision in
the warrant agreement, or to provide for other matters under the
warrant agreement that we and the warrant agent deem necessary or
desirable, so long as, in each case, such amendments or supplements
do not materially adversely affect the interests of the holders of
the warrants.
Warrant Adjustments
Unless the applicable prospectus supplement or free writing
prospectus states otherwise, the exercise price of, and the number
of securities covered by, a common stock warrant will be adjusted
proportionately if we subdivide or combine our common stock. In
addition, unless the prospectus supplement or free writing
prospectus states otherwise, if we, without receiving
payment:
●
issue capital stock or other securities convertible into or
exchangeable for common stock, or any rights to subscribe for,
purchase or otherwise acquire any of the foregoing, as a dividend
or distribution to holders of our common stock;
●
pay any cash to holders of our common stock other than a cash
dividend paid out of our current or retained earnings;
●
issue any evidence of our indebtedness or rights to subscribe for
or purchase our indebtedness to holders of our common stock;
or
●
issue common stock or additional stock or other securities or
property to holders of our common stock by way of spinoff,
split-up, reclassification, combination of shares or similar
corporate rearrangement,
then the holders of common stock warrants will be entitled to
receive upon exercise of the warrants, in addition to the
securities otherwise receivable upon exercise of the warrants and
without paying any additional consideration, the amount of stock
and other securities and property such holders would have been
entitled to receive had they held the common stock issuable under
the warrants on the dates on which holders of those securities
received or became entitled to receive such additional stock and
other securities and property.
Except as stated above or as otherwise set forth in the applicable
prospectus supplement or free writing prospectus, the exercise
price and number of securities covered by a common stock warrant,
and the amounts of other securities or property to be received, if
any, upon exercise of such warrant, will not be adjusted or
provided for if we issue those securities or any securities
convertible into or exchangeable for those securities, or
securities carrying the right to purchase those securities or
securities convertible into or exchangeable for those
securities.
Holders of common stock warrants may have additional rights under
the following circumstances:
●
certain reclassifications, capital reorganizations or changes of
the common stock;
●
certain share exchanges, mergers, or similar transactions involving
us and which result in changes of the common stock; or
●
certain sales or dispositions to another entity of all or
substantially all of our property and assets.
If one of the above transactions occurs and holders of our common
stock are entitled to receive stock, securities or other property
with respect to or in exchange for their securities, the holders of
the common stock warrants then outstanding will be entitled to
receive upon exercise of their warrants the kind and amount of
shares of stock and other securities or property that they would
have received upon the applicable transaction if they had exercised
their warrants immediately before the transaction.
DESCRIPTIO
N
OF OUR
UNITS
This section outlines some of the provisions of the units and the
unit agreements. This information may not be complete in all
respects and is qualified entirely by reference to the unit
agreement with respect to the units of any particular series. The
specific terms of any series of units will be described in the
applicable prospectus supplement or free writing prospectus. If so
described in a particular prospectus supplement or free writing
prospectus, the specific terms of any series of units may differ
from the general description of terms presented below.
As specified in the applicable prospectus supplement, we may issue
units consisting of one or more shares of common stock and
warrants.
The applicable prospectus supplement will specify the following
terms of any units in respect of which this prospectus is being
delivered:
●
the terms of the units and of any of the shares of common stock or
warrants comprising the units, including whether and under what
circumstances the securities comprising the units may be traded
separately;
●
a
description of the terms of any unit agreement governing the
units;
●
if
appropriate, a discussion of material U.S. federal income tax
considerations; and
●
a
description of the provisions for the payment, settlement, transfer
or exchange of the units.
DESCRIPTIO
N OF CERTA
I
N PROVISIONS OF DELAWARE LAW
AND
OUR CERTIFICATE OF INCORPORATION AND BYLAWS
Certain provisions of Delaware law, our Charter and Bylaws
discussed below may have the effect of making more difficult or
discouraging a tender offer, proxy contest or other takeover
attempt. These provisions are expected to encourage persons seeking
to acquire control of our company to first negotiate with our Board
of Directors. We believe that the benefits of increasing our
ability to negotiate with the proponent of an unfriendly or
unsolicited proposal to acquire or restructure our company outweigh
the disadvantages of discouraging these proposals because
negotiation of these proposals could result in an improvement of
their terms.
Delaware Anti-Takeover Law.
We are subject to Section 203 of the Delaware General
Corporation Law. Section 203 generally prohibits a public
Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for
a period of three years after the date of the transaction in which
the person became an interested stockholder, unless:
●
prior
to the date of the transaction, the Board of Directors of the
corporation approved either the business combination or the
transaction which resulted in the stockholder becoming an
interested stockholder;
●
upon
consummation of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding
specified shares; or
●
at
or subsequent to the date of the transaction, the business
combination is approved by the Board of Directors and authorized at
an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 66 2/3% of the
outstanding voting stock which is not owned by the interested
stockholder.
Section 203 defines a “business combination” to
include:
●
any
merger or consolidation involving the corporation and the
interested stockholder;
●
any
sale, lease, exchange, mortgage, pledge, transfer or other
disposition of 10% or more of the assets of the corporation to or
with the interested stockholder;
●
subject
to exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
●
subject
to exceptions, any transaction involving the corporation that has
the effect of increasing the proportionate share of the stock of
any class or series of the corporation beneficially owned by the
interested stockholder; or
●
the
receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided
by or through the corporation.
In general, Section 203 defines an “interested
stockholder” as any person that is:
●
the
owner of 15% or more of the outstanding voting stock of the
corporation;
●
an
affiliate or associate of the corporation who was the owner of 15%
or more of the outstanding voting stock of the corporation at any
time within three years immediately prior to the relevant date;
or
●
the
affiliates and associates of the above.
Under specific circumstances, Section 203 makes it more
difficult for an “interested stockholder” to effect
various business combinations with a corporation for a three-year
period, although the stockholders may, by adopting an amendment to
the corporation’s certificate of incorporation or bylaws,
elect not to be governed by this section, effective 12 months after
adoption.
Our Charter and Bylaws do not exclude us from the restrictions of
Section 203. We anticipate that the provisions of
Section 203 might encourage companies interested in acquiring
us to negotiate in advance with our Board of Directors since the
stockholder approval requirement would be avoided if a majority of
the directors then in office approve either the business
combination or the transaction that resulted in the stockholder
becoming an interested stockholder.
Certificate of Incorporation and Bylaws.
Provisions of our Charter and Bylaws may delay or discourage
transactions involving an actual or potential change of control or
change in our management, including transactions in which
stockholders might otherwise receive a premium for their shares, or
transactions that our stockholders might otherwise deem to be in
their best interests. Therefore, these provisions could adversely
affect the price of our common stock.
We may sell the securities described in this prospectus to or
through underwriters or dealers, through agents, or directly to one
or more purchasers. A prospectus supplement or supplements (and any
related free writing prospectus that we may authorize to be
provided to you) will describe the terms of the offering of the
securities, including, to the extent applicable:
●
the
name or names of any underwriters or agents, if
applicable;
●
the purchase price of the securities and the proceeds we will
receive from the sale;
●
any over-allotment options under which underwriters may purchase
additional securities from us;
●
any agency fees or underwriting discounts and other items
constituting agents’ or underwriters’
compensation;
●
any public offering price;
●
any
discounts or concessions allowed or reallowed or paid to dealers;
and
●
any securities exchange or market on which the securities may be
listed.
Only underwriters named in a prospectus supplement are underwriters
of the securities offered by the prospectus
supplement.
If underwriters are used in the sale, they will acquire the
securities for their own account and may resell the securities from
time to time in one or more transactions at a fixed public offering
price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions,
the underwriters will be obligated to purchase all of the
securities offered by the prospectus supplement. Any public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time. We may
use underwriters with whom we have a material relationship. We will
describe in the prospectus supplement that names the underwriter,
the nature of any such relationship.
We may sell securities directly or through agents we designate from
time to time. We will name any agent involved in the offering and
sale of securities, and we will describe any commissions we will
pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts
basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by
certain types of institutional investors to purchase securities
from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. We will
describe the conditions to these contracts and the commissions we
must pay for solicitation of these contracts in the prospectus
supplement.
We may provide agents and underwriters with indemnification against
civil liabilities related to this offering, including liabilities
under the Securities Act of 1933, as amended
(the “
Securities
Act
”), or contribution
with respect to payments that the agents or underwriters may make
with respect to these liabilities. Agents and underwriters may
engage in transactions with, or perform services for, us in the
ordinary course of business.
Any underwriter may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids in
accordance with Regulation M under the Securities Exchange Act of
1934, as amended (the “
Exchange
Act
”). Overallotment
involves sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of
the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the
securities originally sold by the dealer are purchased in a
covering transaction to cover short positions. Those activities may
cause the price of the securities to be higher than it would
otherwise be. If commenced, the underwriters may discontinue any of
the activities at any time.
Any underwriters who are qualified market makers on the NASDAQ
Capital Market may engage in passive market making transactions in
accordance with Rule 103 of Regulation M during the business day
prior to the pricing of the offering, before the commencement of
offers or sales of the securities. Passive market makers must
comply with applicable volume and price limitations and must be
identified as passive market makers. In general, a passive market
maker must display its bid at a price not in excess of the highest
independent bid for such security; if all independent bids are
lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain
purchase limits are exceeded.
The validity of the securities offered hereby is being passed upon
for us by Disclosure Law Group, a Professional Corporation, of San
Diego, California.
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. The report for AzurRx BioPharma, Inc.
includes an explanatory paragraph about the existence of
substantial doubt concerning its ability to continue as a going
concern. 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 Y
OU CAN F
I
ND
MORE INFORMATION
We are a public company and file annual, quarterly and special
reports, proxy statements and other information with the SEC. You
may read and copy any document we file at the SEC’s public
reference room at 100 F Street, NE, Washington, D.C. 20549. You can
request copies of these documents by writing to the SEC and paying
a fee for the copying cost. Please call the SEC at 1-800-SEC-0330
for more information about the operation of the public reference
room. Our SEC filings are also available, at no charge, to the
public at the SEC’s website at
http://www.sec.gov.
INCORPORATION
OF C
ER
T
AIN INFORMATION BY
REFERENCE
The following documents filed by us with the SEC are incorporated
by reference in this prospectus:
●
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
Quarterly Report on Form 10-Q for the quarter ended June 30, 2017,
filed on August 14, 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 April 12, 2017;
●
our
Current Report on Form 8-K, filed on June 9, 2017;
●
our
Current Report on Form 8-K, filed on August 11, 2017;
●
our
Current Report on Form 8-K, filed on September 28,
2017;
●
our
Current Report on Form 8-K, filed on October 2, 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.
We also incorporate by reference all documents we file pursuant to
Section 13(a), 13(c), 14 or 15 of the Exchange Act (other than any
portions of filings that are furnished rather than filed pursuant
to Items 2.02 and 7.01 of a Current Report on Form 8-K) after the
date of the initial registration statement of which this prospectus
is a part and prior to effectiveness of such registration
statement. All documents we file in the future pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this prospectus and prior to the termination of the offering are
also incorporated by reference and are an important part of this
prospectus.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this registration statement.
We will provide to each person, including any beneficial owner, to
whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in the
prospectus but not delivered with the prospectus. You may request a
copy of these filings, excluding the exhibits to such filings which
we have not specifically incorporated by reference in such filings,
at no cost, by writing to or calling us at:
AzurRx Biopharma, Inc.
760 Parkside Avenue
Downtown Biotechnology Incubator, Suite 304
Brooklyn, New York 11226
(646) 699-7855.
This prospectus is part of a registration statement we filed with
the SEC. You should only rely on the information or representations
contained in this prospectus and any accompanying prospectus
supplement. We have not authorized anyone to provide information
other than that provided in this prospectus and any accompanying
prospectus supplement. We are not making an offer of the securities
in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any accompanying
prospectus supplement is accurate as of any date other than the
date on the front of the document.
PROSPECTUS
$ 10,000,000
Common Stock
Warrants
Units
[______________], 2017
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
The following table sets forth an estimate of the fees and
expenses, other than the underwriting discounts and commissions,
payable by us in connection with the issuance and distribution of
the securities being registered. All the amounts shown are
estimates, except for the SEC and FINRA registration
fees.
|
|
SEC
registration fee
|
$
1,245
|
FINRA
registration fee
|
2,000
|
Legal
fees and expenses
|
150,000
|
Accounting
fees and expenses
|
100,000
|
Printing
and miscellaneous fees and expenses
|
10,000
|
Total
|
$
263,245
|
ITEM 15. INDEMNIFICATION OF OFFICERS AND
DIRECTORS
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 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 our 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 16. EXHIBITS
1.1*
|
Form of Underwriting Agreement
|
1.2*
|
Form of Placement Agent Agreement
|
4.2*
|
Form of any warrant agreement with respect to each particular
series of warrants issued hereunder
|
4.3*
|
Form of any unit agreement with respect to any unit issued
hereunder
|
|
Opinion of Disclosure Law Group, a Professional
Corporation
|
|
Consent of Disclosure Law Group, a Professional Corporation
(included in Exhibit 5.1)
|
|
Consent of Independent Registered Public Accounting Firm
– Mazars USA LLP
|
24
|
Power of Attorney (located on signature page)
|
*
|
To be filed, if necessary, subsequent to the effectiveness of this
registration by an amendment to this registration statement or
incorporation by reference pursuant to a Current Report on
Form 8-K in connection with an offering of
securities.
|
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 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement.
(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;
provided, however
, that paragraphs (i),
(ii) and (iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of 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.
(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:
(i) If
the Registrant is relying on Rule 430B:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. 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 effective
date, 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 effective date; or
(ii) If
the registrant is subject to Rule 430C, 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.
(5) That,
for the purpose of determining liability of the registrant under
the Securities Act of 1933 to any purchaser in the initial
distribution of the securities: The undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
(ii) Any
free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of each Registrant pursuant to the foregoing
provisions, or otherwise, each Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
a Registrant of expenses incurred or paid by a director, officer or
controlling person of a Registrant 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, that 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 it is against public policy as expressed in
the Securities 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-3 and has
duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
Brooklyn, New York, on October 11, 2017.
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AZURRX BIOPHARMA, INC.
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By:
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/s/ Johan M. (Thijs) Spoor
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Johan M. (Thijs) Spoor
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President and Chief Executive Officer
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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
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Title
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Date
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/s/ Johan M. (Thijs) Spoor
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President, Chief Executive Officer and Director
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October 11, 2017
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Johan M. (Thijs) Spoor
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(principal executive officer)
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/s/ Maged Shenouda
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Chief Financial Officer and Director
(principal financial and accounting officer)
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October 11, 2017
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Maged Shenouda
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/s/ Edward J. Borkowski
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Chairman of the Board of Directors
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October 11, 2017
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Edward J. Borkowski
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/s/ Alastair Riddell
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Director
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October 11, 2017
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Alastair Riddell
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/s/ Charles Casamento
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Director
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October 11, 2017
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Charles Casamento
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