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.