Item 1.01 Entry
into a Definitive Material Agreement.
Registered Direct Offering and Concurrent Private
Placement
As previously disclosed on the Company’s Current Report on
Form 8-K filed with the SEC on January 4, 2021 (the “Prior
8-K”), on December 31, 2020, AzurRx BioPharma, Inc. (the
“Company”) entered into a securities purchase agreement
(the “Investor Purchase Agreement”) with a single
institutional investor relating to the purchase and sale, in a
registered direct offering (the “Registered Direct
Offering”) and concurrent private placement (the
“Private Placement” and, together with the Registered
Direct Offering, the “Offerings”), of an aggregate of
10,666.6666 shares of Series C 9.00% Convertible Junior Preferred
Stock, par value $0.0001 per share (the “Series C Preferred
Stock”), initially convertible into up to 10,666,668 shares
of common stock, par value $0.0001 per share (the “Common
Stock”) at a conversion price of $0.75 per share, together
with related warrants to purchase up to 10,666,668 shares of Common
Stock at an exercise price of $0.80 per share. The combined
purchase price in the Offerings for one share of Series C Preferred
Stock and related warrants was $750.00.
The terms and conditions of the Offerings are described in greater
detail in the Prior 8-K, which is incorporated herein by reference.
Capitalized terms used but not defined herein have the meanings
ascribed to such terms in the Prior 8-K.
On January 6, 2021, the Offerings closed. In connection with the
closings, the investor converted all of its Series C Preferred
Stock issued in the Registered Direct Offering into 3,400,000
shares of Common Stock and Pre-funded Warrants (as defined in the
Prior 8-K) to purchase up to 1,933,334 shares of Common Stock.
Accordingly, following the closings, 853,632 shares of Common Stock
currently remain available for issuance below the Issuable Maximum
(as defined in the Prior 8-K), prior to obtaining the Stockholder
Approval (as defined in the Prior 8-K).
On January 6, 2021, the Company also issued to H.C. Wainwright
& Co., LLC and its designees certain warrants to purchase up to
746,667 shares of Common Stock, at an exercise price of $0.9375 per
share, as compensation for services as placement agent in the
Offerings. The terms and conditions of the warrants were previously
disclosed in the Prior Form 8-K and are incorporated herein by
reference. The summary of the placement agent’s
warrants is subject to, and qualified in their entirety by, the
form of such warrants, which is filed as Exhibit 4.1 hereto and
incorporated herein by reference.
Securities Purchase Agreement with First Wave Bio
On January 8, 2021, pursuant to the License Agreement by and
between the Company and First Wave Bio, Inc. (“First
Wave”), a privately-held Delaware corporation, the Company
entered into a securities purchase agreement with First Wave (the
“First Wave Purchase Agreement”). The terms and
conditions of the License Agreement are described in greater detail
in the Prior 8-K.
Pursuant to the First Wave Purchase Agreement, on January 8, 2021,
the Company issued First Wave 3,290.1960 shares of Series C
Preferred Stock, initially convertible into an aggregate of
3,290,196 shares of Common Stock, at an initial stated value of
$750.00 per share and a conversion price of $0.75 per share. The
First Wave Purchase Agreement contains demand and piggyback
registration rights with respect to the Common Stock issuable upon
conversion, subject to certain clear-market restrictions, as set
forth in the Investor Purchase Agreement and described in the Prior
Form 8-K, for a period ending at the later of (a) 30 days after the
effectiveness of a resale registration covering the securities sold
to that investor or (b) the day of the Stockholder Approval. The
issuance of the Series C Preferred Stock to First Wave occurred
simultaneously with the entrance into the First Wave Purchase
Agreement on January 8, 2021.
The First Wave Purchase Agreement contains customary
representations, warranties and agreements by the Company,
customary conditions to closing and termination provisions. The
representations, warranties and covenants contained in the First
Wave 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 Series C Preferred Stock being issued pursuant to the First
Wave Purchase Agreement, together with any Common Stock issuable
upon conversion, are being issued without registration under the
Securities Act in reliance on the exemptions provided by Section
4(a)(2) of the Securities Act as transactions not involving a
public offering, and in reliance on similar exemptions under
applicable state laws.