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.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth above in Item 1.01 above and in the Prior 8-K is
hereby incorporated by reference into this Item 3.02.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
In connection with the closings of the Offerings described in Item 1.01 above,
on January 4, 2021, the Company filed with the Secretary of State of the State
of Delaware a certificate of designations relating to the Series C Preferred
Stock, which became immediately effective.
The terms and conditions of the Series C Preferred Stock were previously
disclosed in the Prior Form 8-K and are incorporated herein by reference. This
summary is subject to, and qualified in their entirety by, the certificate of
designations of the Series C Preferred Stock, which is filed as Exhibit 3.1
hereto and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
3.1 Certificate of the Designations, Powers, Preferences and Rights of
Series C 9.00% Convertible Junior Preferred Stock
4.1 Form of Wainwright Warrant
10.1 First Wave Purchase Agreement
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