Filed Pursuant to Rule 424(b)(3)
Registration No. 333-256476
PROSPECTUS SUPPLEMENT
(To Prospectus Dated June 2, 2021)
AzurRx BioPharma, Inc.
Up to $50,000,000
Common Stock
We have
entered into an At The Market Offering Agreement, or the sales
agreement, with H.C. Wainwright & Co., LLC, or Wainwright,
dated May 26, 2021, relating to the sale of shares of our common
stock, par value $0.0001 per share, having an aggregate offering
price of up to $50,000,000 from time to time through Wainwright,
acting as sales agent or principal.
Sales
of our common stock, if any, under this prospectus supplement and
the accompanying prospectus will be made by any method permitted
that is deemed an “at the market” offering as defined
in Rule 415 under the Securities Act of 1933, as amended, or the
Securities Act, including sales made directly on or through the
Nasdaq Capital Market or any other existing trading market in the
United States for our common stock, sales made to or through a
market maker other than on an exchange or otherwise, directly to
Wainwright as principal, in negotiated transactions at market
prices prevailing at the time of sale or at prices related to such
prevailing market prices and/or in any other method permitted by
law. If we and Wainwright agree on any method of distribution other
than sales of shares of our common stock on or through the Nasdaq
Capital Market or another existing trading market in the United
States at market prices, we will file a further prospectus
supplement providing all information about such offering as
required by Rule 424(b) under the Securities Act. Under the sales
agreement, Wainwright is not required to sell any specific number
or dollar amount of securities, but Wainwright will act as our
sales agent using commercially reasonable efforts consistent with
its normal trading and sales practices. There is no arrangement for
funds to be received in any escrow, trust or similar
arrangement.
Wainwright will be
entitled to compensation at a commission rate of 3.0% of the gross
sales price per share sold under the sales agreement. See
“Plan of Distribution” beginning on page S-10 for
additional information regarding the compensation to be paid to
Wainwright. In connection with the sale of the shares of common
stock on our behalf, Wainwright will be deemed to be an
“underwriter” within the meaning of the Securities Act,
and the compensation of Wainwright will be deemed to be
underwriting commissions or discounts. We have also agreed to
provide indemnification and contribution to Wainwright with respect
to certain liabilities, including liabilities under the Securities
Act.
We are an “emerging growth company” as defined in
Section 2(a) of the Securities Act, and we have elected to
comply with certain reduced public company reporting
requirements.
Our
common stock is listed on the Nasdaq Capital Market under the
symbol “AZRX.” On June 1, 2021, the last reported sale
price of our common stock on the Nasdaq Capital Market was $0.86
per share.
Investing in our securities involves a high degree of risk. See
“Risk Factors” beginning on page S-3 of this prospectus
supplement and the documents incorporated by reference into this
prospectus supplement and the accompanying prospectus for a
discussion of the risks that you should consider in connection with
an investment in our securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
H.C. Wainwright & Co.
The date of this prospectus supplement is June 2,
2021.
TABLE OF CONTENTS
PROSPECTUS
SUPPLEMENT
|
|
Page
|
|
|
|
|
|
S-ii
|
|
|
S-1
|
|
|
S-2
|
|
|
S-3
|
|
|
S-5
|
|
|
S-7
|
|
|
S-8
|
|
|
S-10
|
|
|
S-11
|
|
|
S-12
|
|
|
S-13
|
|
|
S-14
|
PROSPECTUS
|
|
ii
|
|
|
1
|
|
|
2
|
|
|
3
|
|
|
4
|
|
|
5
|
|
|
6
|
|
|
12
|
|
|
13
|
|
|
14
|
|
|
15
|
|
|
17
|
|
|
21
|
|
|
22
|
|
|
23
|
|
|
24
|
|
|
25
|
ABOUT THIS PROSPECTUS SUPPLEMENT
This
prospectus supplement and the accompanying prospectus are part of
registration statement on Form S-3 that we have filed with the
Securities and Exchange Commission, or the SEC, using a
“shelf” registration process. This prospectus
supplement and the accompanying prospectus relate to the offer by
us of shares of our common stock to certain investors. Under the
shelf registration process, we may offer shares of our common stock
having an aggregate offering price of up to $50,000,000 from time
to time under this prospectus supplement and the accompanying
prospectus at prices and on terms to be determined by market
conditions at the time of the offering.
We
provide information to you about this offering of shares of our
common stock in in two separate documents that are bound together:
(1) this sales agreement prospectus supplement, which describes the
specific details regarding this offering, and (2) the accompanying
prospectus, which provides general information, some of which may
not apply to this offering. Generally, when we refer to this
“prospectus,” we are referring to both documents
combined. If information in this sales agreement prospectus
supplement is inconsistent with the accompanying prospectus, you
should rely on this sales agreement prospectus supplement. In
addition, to the extent there is a conflict between the information
contained in this sales agreement prospectus supplement, on the one
hand, and the information contained in any document incorporated by
reference that was filed with the SEC before the date of this
prospectus supplement, on the other hand, you should rely on the
information in this sales agreement prospectus supplement. If any
statement in one of these documents is inconsistent with a
statement in another document having a later date — for
example, a document incorporated by reference in this prospectus
supplement — the statement in the document having the later
date modifies or supersedes the earlier statement.
We have
not authorized anyone to provide you with information different
from or inconsistent with the information contained in or
incorporated by reference in this prospectus supplement. We take no
responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. You
should assume that the information appearing in this prospectus
supplement and the documents incorporated by reference in this
prospectus supplement is accurate only as of the date of those
respective documents, regardless of the time of delivery of those
respective documents. Our business, financial condition, results of
operations and prospects may have changed since those dates. You
should read this prospectus supplement and the documents
incorporated by reference in this prospectus supplement in their
entirety before making an investment decision. You should also read
and consider the information in the documents to which we have
referred you in the sections of this prospectus supplement entitled
“Where You Can Find More Information” and
“Incorporation of Certain Information by
Reference.” These documents contain important
information that you should consider when making your investment
decision.
We are
offering to sell, and seeking offers to buy, shares of our common
stock only in jurisdictions where offers and sales are permitted.
The distribution of this prospectus supplement and the offering of
our common stock in certain jurisdictions may be restricted by law.
Persons outside the United States who come into possession of this
prospectus supplement must inform themselves about, and observe any
restrictions relating to, the offering of our common stock and the
distribution of this prospectus supplement outside the United
States. This prospectus supplement does not constitute, and may not
be used in connection with, an offer to sell, or a solicitation of
an offer to buy, any securities offered by this prospectus
supplement by any person in any jurisdiction in which it is
unlawful for such person to make such an offer or
solicitation.
All
references in this prospectus supplement to “AzurRx,”
the “Company,” “we,” “us,” or
“our” mean AzurRx BioPharma, Inc. and its subsidiaries
unless we state otherwise, or the context otherwise indicates. This
prospectus supplement and the information incorporated herein by
reference contain references to trademarks, service marks and trade
names owned by us or other companies. Solely for convenience,
trademarks, service marks and trade names referred to in this
prospectus supplement and the information incorporated herein,
including logos, artwork, and other visual displays, may appear
without the ® or ™
symbols, but such references are not intended to indicate, in any
way, that we will not assert, to the fullest extent under
applicable law, our rights or the rights of the applicable licensor
to these trademarks, service marks and trade names. We do not
intend our use or display of other companies’ trade names,
service marks or trademarks to imply a relationship with, or
endorsement or sponsorship of us by, any other companies. Other
trademarks, trade names and service marks appearing in this
prospectus supplement are the property of their respective
owners.
|
|
|
|
|
|
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights information contained elsewhere in this
prospectus supplement and in the accompanying prospectus. This
summary does not contain all of the information that you should
consider before deciding to invest in our securities. You should
read this entire prospectus supplement and the accompanying
prospectus carefully, including the “Risk Factors”
section in this prospectus supplement, the accompanying prospectus
and under similar captions in the documents incorporated by
reference into this prospectus supplement and the accompanying
prospectus. In this prospectus supplement, 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 SAS, AzurRx
BioPharma’s wholly-owned subsidiary through which we conduct
our European operations.
Overview
We are engaged in the research and development of
targeted, non-systemic therapies for the treatment of patients with
gastrointestinal (“GI”) diseases. Non-systemic therapies are
non-absorbable drugs that act locally, i.e. in the intestinal
lumen, skin or mucosa, without reaching an individual’s
systemic circulation. We are focused on
developing our pipeline of gut-restricted GI clinical drug
candidates, including MS1819 and niclosamide.
Our lead drug candidate
is MS1819, a recombinant lipase for the treatment of exocrine
pancreatic insufficiency (“EPI”)
in patients with cystic
fibrosis (“CF”) and chronic pancreatitis
(“CP”), currently in two
Phase 2 CF clinical trials. In March 2021, we announced topline results from
our Phase 2b OPTION 2 monotherapy trial, and in May 2021, we
announced positive interim results from the first 18 patients in
our Phase 2 Combination trial in Europe.
In 2021, we intend to
launch two new clinical programs using proprietary formulations of
niclosamide, a small molecule
with anti-helminthic, anti-viral and anti-inflammatory
properties; FW-1022, for
Severe Acute Respiratory Syndrome Coronavirus 2
(“COVID-19”)
gastrointestinal infections, and FW-420, for Grade 1 and Grade 2
Immune Checkpoint Inhibitor-Associated Colitis
(“ICI-AC”)
and diarrhea in advanced stage oncology patients.
We initiated our Phase 2 RESERVOIR
clinical trial using a proprietary oral immediate-release tablet
formulation of micronized niclosamide (FW-1022) for the treatment
of COVID-19 related GI infections in April 2021, and we are
preparing to initiate our Phase 1b/2a PASSPORT ICI-AC trial using
both an oral immediate-release tablet and a topical rectal enema
foam formulations of niclosamide (FW-420) in the first half of
2021.
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 SAS. Our principal
executive offices are located at 1615 South Congress Avenue, Suite
103, Delray Beach, Florida 33445. 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 supplement or the accompanying
prospectus.
|
|
|
|
|
|
|
Common
stock offered by us
|
|
Shares
of our common stock having an aggregate offering price of up to
$50,000,000.
|
|
Common
stock to be outstanding after the offering
|
|
Up
to
134,754,906 shares, assuming a sales price of $0.89 per share,
which was the closing price of our common stock on the Nasdaq
Capital Market on May 21, 2021. The actual number of shares issued
will vary depending on the sales price at which shares may be sold
from time to time during this offering.
|
|
|
|
|
|
Plan of
Distribution
|
|
“At
the market offering” as defined in Rule 415(a)(4) under the
Securities Act, that may be made from time to time on the Nasdaq
Capital Market, the existing trading market for our common stock,
through Wainwright, as agent or principal. See section titled
“Plan of Distribution” on page S-10 of this prospectus
supplement.
|
|
Use of
proceeds
|
|
We
intend to use the net proceeds from this offering for general
corporate purposes, which may include funding research, development
and product manufacturing, clinical trials, acquisitions or
investments in businesses, products or technologies that are
complementary to our own, increasing our working capital, reducing
indebtedness, and capital expenditures. Please see “Use of
Proceeds” on page S-7.
|
|
Risk
factors
|
|
Investing
in our common stock involves a high degree of risk. See “Risk
Factors” beginning on page S-3 of this prospectus supplement
and under similar headings in the other documents that are filed
after the date hereof and incorporated by reference in this
prospectus supplement for a discussion of factors to consider
before deciding to purchase shares of our common
stock.
|
|
Nasdaq
Capital Market symbol
|
|
AZRX
|
The
above discussion is based on 78,575,131 shares of our common stock
outstanding as of May 21, 2021 and excludes as of such
date:
●
3,915,506 shares of common stock issuable upon exercise of stock
options, with a weighted average exercise price of $1.20 per share,
under our Amended and Restated 2014 Omnibus Equity Incentive Plan
(the “2014 Plan”);
●
387,000 shares of awarded but unissued restricted stock and
restricted stock units under our 2014 Plan;
●
389,685 shares of common stock issuable upon exercise of stock
options, with a weighted average exercise price of $0.99 per share,
under our Amended and Restated 2020 Omnibus Equity Incentive Plan
(the “2020 Plan”);
●
9,610,315 shares of common stock available for future issuance
under our 2020 Plan;
●
52,484,255 shares of common stock issuable upon exercise of
outstanding warrants, with a weighted average exercise price of
$1.03 per share;
●
9,243,620 shares of common stock issuable upon conversion of 893.52
shares of Series B Preferred Stock, including accrued and unpaid
dividends thereon of approximately $238,000;
●
246,539 shares of common stock issuable upon conversion of Series C
Preferred Stock that may be issued pursuant to an exchange right,
in excess of amounts currently underlying Series B Preferred Stock;
and
●
9,490,159 shares of common stock issuable upon exercise of warrants
that may be issued pursuant to an exchange right.
An investment in our common stock involves a high degree of risk.
Before deciding whether to invest in our common stock, you should
carefully consider the risks and uncertainties described below,
together with the information under the heading “Risk
Factors” in our most recent Annual Report on Form 10-K for
the fiscal year ended December 31, 2020 and our most recent
Quarterly Report on Form 10-Q for the quarterly period ended March
31, 2021, all of which are incorporated herein by reference, as
updated or superseded by the risks and uncertainties described
under similar headings in the other documents that are filed after
the date hereof and incorporated by reference into this prospectus
supplement and the accompanying prospectus, together with all of
the other information contained or incorporated by reference in
this prospectus supplement and the accompanying prospectus, and any
free writing prospectus that we have authorized for use in
connection with this offering before you make a decision to invest
in our common stock.. The risks and uncertainties we have described
are not the only ones we face. Additional risks and uncertainties
not presently known to us or that we currently deem immaterial may
also affect our operations. Past financial performance may not be a
reliable indicator of future performance, and historical trends
should not be used to anticipate results or trends in future
periods. If any of these risks actually occurs, our business,
business prospects, financial condition or results of operations
could be seriously harmed. This could cause the trading price of
our common stock to decline, resulting in a loss of all or part of
your investment. Please also read carefully the section below
entitled “Cautionary Note Regarding Forward-Looking
Statements.”
Risks Related to this Offering
We will have broad discretion in how we use the net proceeds of
this offering. We may not use these proceeds effectively, which
could affect our results of operations and cause our stock price to
decline.
We will
have considerable discretion in the application of the net proceeds
of this offering, including for any of the purposes described in
the section titled “Use of Proceeds.” We intend to use
the net proceeds received by us from this offering for general
corporate purposes, which may include funding research, development
and product manufacturing, clinical trials, acquisitions or
investments in businesses, products or technologies that are
complementary to our own, increasing our working capital, reducing
indebtedness, and capital expenditures. We may use the net proceeds
for purposes that do not yield a significant return or any return
at all for our stockholders. In addition, pending their use, we may
invest the net proceeds from this offering in a manner that does
not produce income or that loses value.
Resales of our common stock in the public market during this
offering by our stockholders may cause the market price of our
common stock to fall.
We may
issue shares of common stock from time to time in connection with
this offering. The issuance from time to time of these new shares
of common stock, or our ability to issue new shares of common stock
in this offering, could result in resales of our shares of common
stock by our current stockholders concerned about the potential
dilution of their holdings. In turn, these resales could have the
effect of depressing the market price for our common
stock.
Purchasers in this offering will likely experience immediate and
substantial dilution in the book value of their
investment.
The
shares of common stock sold in this offering, if any, will be sold
from time to time at various prices. However, the expected offering
price per share of common stock may be substantially higher than
the net tangible book value per share of common stock. Therefore,
if you purchase shares of our common stock in this offering, your
interest will be diluted to the extent of the difference between
the price per share you pay and the net tangible book value per
share of common stock. Assuming that the sale of an aggregate
amount of $50,000,000 of shares of our common stock in this
offering at an assumed offering price of $0.89 per share, which was
the last reported sale price of our common stock on the Nasdaq
Capital Market on May 21, 2021, and based on our net tangible book
value as of March 31, 2021, if you purchase shares of common stock
in this offering you will suffer substantial and immediate dilution
of $0.45 per share in the net tangible book value of the share
common stock. The future exercise of outstanding options or
warrants and other instruments that are convertible or exercisable
into common stock, if any, will result in further dilution of your
investment. See the section entitled “Dilution” below
for a more detailed discussion of the dilution you will incur if
you purchase shares of our common stock in this
offering.
Sales of a substantial number of shares of our common stock, or the
perception that such sales may occur, may adversely impact the
price of our common stock.
Sales
of a substantial number of shares of our common stock in the public
markets could depress the market price of our common stock and
impair our ability to raise capital through the sale of additional
equity securities. We cannot predict the effect that future sales
of our common stock would have on the market price of our common
stock.
The common stock offered hereby will be sold in “at the
market” offerings, and investors who buy shares at different
times will likely pay different prices.
Investors who
purchase shares in this offering at different times will likely pay
different prices, and so may experience different outcomes in their
investment results. We will have discretion, subject to market
demand, to vary the timing, prices, and numbers of shares sold, and
there is no minimum or maximum sales price. Investors may
experience a decline in the value of their shares as a result of
share sales made at prices lower than the prices they
paid.
The actual number of shares we will issue under the sales
agreement, at any one time or in total, is uncertain.
Subject
to certain limitations in the sales agreement and compliance with
applicable law, we have the discretion to deliver placement notices
to Wainwright at any time throughout the term of the sales
agreement. The number of shares that are sold by Wainwright after
delivering a placement notice will fluctuate based on the market
price of the common stock during the sales period and limits we set
with Wainwright. Because the price per share of each share sold
will fluctuate based on the market price of our common stock during
the sales period, it is not possible at this stage to predict the
number of shares that will be ultimately issued.
You may experience future dilution as a result of future equity
offerings.
To
raise additional capital, we may in the future offer additional
shares of common stock or other securities convertible into or
exchangeable for our common stock at prices that may not be the
same as the price per share in this offering. We may sell common
stock or other securities in any other offering at a price per
share that is less than the price per share paid by investors in
this offering, and investors purchasing shares or other securities
in the future could have rights superior to existing stockholders.
The price per share at which we sell additional shares of common
stock, or securities convertible or exchangeable into common stock,
in future transactions may be higher or lower than the price per
share paid by investors in this offering.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This
prospectus supplement, the accompanying prospectus and any
documents we incorporate by reference, contain certain
forward-looking statements that involve substantial risks and
uncertainties. All statements contained in this prospectus
supplement, the accompanying prospectus and any documents we
incorporate by reference, other than statements of historical
facts, are forward-looking statements including statements
regarding our strategy, future operations, future financial
position, future revenue, projected costs, prospects, plans,
objectives of management and expected market growth. 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:
●
statements regarding the impact of the COVID-19 pandemic and its
effects on our operations, access to capital, research and
development and clinical trials and potential disruption in the
operations and business of third-party vendors, contract research
organizations (“CROs”), contract development and
manufacturing organizations (“CDMOs”), other service providers,
and collaborators with whom we conduct business;
●
availability of capital to satisfy our working capital
requirements;
●
our current and future capital requirements and our ability to
raise additional funds to satisfy our capital
needs;
●
the accuracy of our estimates regarding expense, future revenue and
capital requirements;
●
ability to continue operating as a going concern;
●
our plans to develop and commercialize our drug candidates,
including MS1819 and niclosamide;
●
our ability to initiate and complete our clinical trials and to
advance our principal drug 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 vendor(s), CROs, CDMOs 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;
●
other risks and uncertainties, including those listed in the
“Risk Factors”
section of this prospectus supplement, the accompanying prospectus
and the documents incorporated by reference herein;
and
●
our use of proceeds from this offering.
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 supplement and
the accompanying prospectus, as well as certain information
incorporated by reference into this prospectus supplement and the
accompanying prospectus, that could cause actual future 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.
Discussions
containing these forward-looking statements may be found, among
other places, in the sections titled “Business,”
“Risk Factors” and “Management’s Discussion
and Analysis of Financial Condition and Results of
Operations” incorporated by reference from our most recent
Annual Report on Form 10-K for the fiscal year ended December 31,
2020 and our most recent Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2021, as well as any amendments
thereto, filed with the SEC. Additional factors are discussed under
the caption “Risk Factors” in this prospectus
supplement, the accompanying prospectus and any free writing
prospectus and under similar headings in the other documents that
are incorporated by reference into this prospectus supplement. New
risks and uncertainties arise from time to time, and it is
impossible for us to predict these events or how they may affect
us. We disclaim any intention or obligation to update or revise any
forward-looking statements, whether as a result of new information,
future events or otherwise, except as may be required by
law.
You
should read this prospectus supplement and the accompanying
prospectus with the understanding that our actual future results
may be materially different from what we expect. We do not assume
any obligation to update any forward-looking statements whether as
a result of new information, future events or otherwise, except as
required by applicable law.
We may
issue and sell shares of common stock having aggregate sales
proceeds of up to $50,000,000 from time to time, before deducting
sales agent commissions and expenses. The amount of proceeds from
this offering will depend upon the number of shares of our common
stock sold and the market price at which they are sold. There can
be no assurance that we will be able to sell any shares under or
fully utilize the sales agreement with Wainwright.
We
currently intend to use the net proceeds from the sale of the
shares offered by us pursuant to this prospectus supplement for
general corporate purposes, which may include funding research,
development and product manufacturing, clinical trials,
acquisitions or investments in businesses, products or technologies
that are complementary to our own, increasing our working capital,
reducing indebtedness, and capital expenditures.
Investors are
cautioned, however, that expenditures may vary substantially from
these uses. Investors will be relying on the judgment of our
management, who will have broad discretion regarding the
application of the proceeds of this offering. The amounts and
timing of our actual expenditures may vary significantly depending
upon numerous factors, including the amount of cash generated by
our operations and other operational factors, the progress of our
development efforts, the status of and results from clinical
trials, as well as any collaborations that we may enter into with
third parties for our product candidates and any unforeseen cash
needs. We may find it necessary or advisable to use portions of the
proceeds from this offering for other purposes.
Pending
other uses, we intend to invest the proceeds to us in
investment-grade, interest-bearing securities such as money market
funds, certificates of deposit, or direct or guaranteed obligations
of the U.S. government, or hold as cash. We cannot predict whether
the proceeds invested will yield a favorable, or any,
return.
If you
invest in our common stock in this offering, your interest will be
diluted to the extent of the difference between the price per share
you pay in this offering and the net tangible book value per share
of common stock immediately after this offering. The net tangible
book value of our common stock as of March 31, 2021, was
approximately $9.7 million, or approximately $0.13 per share of
common stock based on 74,926,902 shares of common stock outstanding
at that time. “Net tangible book value” is total assets
minus the sum of liabilities and intangible assets. “Net
tangible book value per share” is net tangible book value
divided by the total number of shares outstanding.
After
giving effect to the sale of our common stock in the aggregate
amount of $50,000,000 in this offering at an assumed offering price
of $0.89 per share, the last reported sale price of our common
stock on the Nasdaq Capital Market on May 21, 2021, and after
deducting the commissions and estimated offering expenses payable
by us, our net tangible book value as of March 31, 2021, would have
been approximately $58.0 million, or approximately $0.44 per share
of our common stock. This represents an immediate increase in net
tangible book value of $0.31 per share to our existing stockholders
and an immediate dilution of approximately $0.45 per share to new
investors participating in this offering, as illustrated by the
following table:
|
Assumed offering
price per share of common stock
|
|
$0.89
|
|
Net tangible book
value per share of common stock as of March 31, 2021
|
$0.13
|
|
Increase in net
tangible book value per share of common stock attributable to this
offering
|
$0.31
|
|
As adjusted net
tangible book value per share of common stock as of March 31, 2021
after giving effect to this offering
|
|
$0.44
|
|
Dilution in net
tangible book value per share of common stock to new investors in
the offering
|
|
$0.45
|
To the
extent that outstanding options or warrants are exercised, or our
convertible preferred stock is converted into common stock, you
will experience further dilution. In addition, we may choose to
offer securities in other offerings due to market conditions or
strategic considerations. To the extent that we raise additional
capital through the sale of common stock or securities exercisable
for or convertible into common stock, the issuance of such
securities may result in further dilution of our
stockholders.
The as
adjusted information is illustrative only and will adjust based on
the actual price to the public, the actual number of shares sold
and other terms of the offering determined at the time common stock
is sold pursuant to this prospectus supplement and the accompanying
prospectus. The as adjusted information assumes that all of our
common stock in the aggregate amount of $50,000,000 is sold at the
assumed offering price of $0.89 per share, the last reported sale
price of our common stock on the Nasdaq Capital Market on May 21,
2021. The shares sold in this offering, if any, will be sold from
time to time at various prices.
A $0.50
increase or decrease in the assumed offering price of $0.89 per
share, based on the last reported sale price of our common stock on
the Nasdaq Capital Market on May 21, 2021, would increase or
decrease the as adjusted net tangible book value after this
offering by $0.08, or $(0.15) per share, and the dilution per share
to investors participating in this offering by $(0.08), or $0.15
per share, assuming that all of our common stock in the aggregate
amount of $50,000,000 is sold and after deducting sales agent fees
and estimated offering expenses payable by us.
We may
also sell less than $50,000,000 of shares of common stock. A
decrease of $5,000,000 in the amount of shares of common stock
offered by us, based on the assumed offering price of $0.89 per
share, the last reported sale price of our common stock on the
Nasdaq Capital Market on May 21, 2021, would decrease our as
adjusted net tangible book value per share by approximately $0.02
and increase the dilution per share to investors participating in
this offering by $0.02 after deducting sales agent fees and
estimated offering expenses payable by us.
The
discussion and table above are based on 74,926,902 shares of common
stock outstanding as of March 31, 2021, and excludes the following
securities as of that date:
●
3,924,770 shares of common stock issuable upon exercise of stock
options, with a weighted average exercise price of $1.20 per share,
under our Amended and Restated 2014 Omnibus Equity Incentive Plan
(the “2014 Plan”);
●
387,000 shares of awarded but unissued restricted stock and
restricted stock units under our 2014 Plan;
●
353,685 shares of common stock issuable upon exercise of stock
options, with a weighted average exercise price of $1.00 per share,
under our Amended and Restated 2020 Omnibus Equity Incentive Plan
(the “2020 Plan”);
●
9,646,315 shares of common stock available for future issuance
under our 2020 Plan;
●
49,392,676 shares of common stock issuable upon exercise of
outstanding warrants, with a weighted average exercise price of
$1.04 per share;
●
12,360,554 shares of common stock issuable upon conversion of
1,209.52 shares of Series B Preferred Stock, including in respect
of accrued and unpaid dividends of approximately
$205,000;
●
329,608 shares of common stock issued upon conversion of Series C
Preferred Stock that was issued pursuant to an exchange right, in
excess of amounts currently underlying Series B Preferred Stock;
and
●
12,690,204 shares of common stock issuable upon exercise of
warrants that may be issued pursuant to an exchange
right.
We have
entered into a sales agreement with Wainwright, pursuant to which
we may issue and sell from time to time shares of our common stock
having an aggregate offering price of not more than $50,000,000
through Wainwright as our sales agent. Sales of the common stock,
if any, will be made by any method permitted by law deemed to be an
“at the market offering” as defined in Rule 415
promulgated under the Securities Act. If we and Wainwright agree on
any method of distribution other than sales of shares of our common
stock on or through the Nasdaq Capital Market or another existing
trading market in the United States at market prices, we will file
a further prospectus supplement providing all information about
such offering as required by Rule 424(b) under the Securities
Act.
Wainwright will
offer our common stock at prevailing market prices subject to the
terms and conditions of the sales agreement as agreed upon by us
and Wainwright. We will designate the number of shares which we
desire to sell, the time period during which sales are requested to
be made, any limitation on the number of shares that may be sold in
one day and any minimum price below which sales may not be made.
Subject to the terms and conditions of the sales agreement,
Wainwright will use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell on our behalf
all of the shares of common stock requested to be sold by us. We or
Wainwright may suspend the offering of the common stock being made
through Wainwright under the sales agreement upon proper notice to
the other party.
Settlement for
sales of common stock will occur on the second business day or such
shorter settlement cycle as may be in effect under Exchange Act
Rule 15c6-1 from time to time, following the date on which any
sales are made, or on some other date that is agreed upon by us and
Wainwright in connection with a particular transaction, in return
for payment of the net proceeds to us. Sales of our common stock as
contemplated in this prospectus supplement and the accompanying
prospectus will be settled through the facilities of The Depository
Trust Company or by such other means as we and Wainwright may agree
upon. There is no arrangement for funds to be received in an
escrow, trust or similar arrangement.
We will
pay Wainwright in cash, upon each sale of our shares of common
stock pursuant to the sales agreement, a commission of 3.0% of the
gross proceeds from each sale of shares of our common stock.
Because there is no minimum offering amount required as a condition
to this offering, the actual total public offering amount,
commissions and proceeds to us, if any, are not determinable at
this time. Pursuant to the terms of the sales agreement, we agreed
to reimburse Wainwright for the documented fees and costs of its
legal counsel reasonably incurred in connection with entering into
the transactions contemplated by the sales agreement in an amount
not to exceed $50,000 in the aggregate, in addition to up to $2,500
per due diligence update session for Wainwright’s
counsel’s fees and any incidental expenses to be reimbursed
by us. We will report at least quarterly the number of shares of
common stock sold through Wainwright under the sales agreement, the
net proceeds to us and the compensation paid by us to Wainwright in
connection with the sales of common stock.
In
connection with the sales of common stock on our behalf, Wainwright
will be deemed to be an “underwriter” within the
meaning of the Securities Act, and the compensation paid to
Wainwright will be deemed to be underwriting commissions or
discounts. We have agreed in the sales agreement to provide
indemnification and contribution to Wainwright against certain
liabilities, including liabilities under the Securities
Act.
The
offering of our shares of common stock pursuant to the sales
agreement will terminate upon the earlier of the sale of all of our
shares of common stock provided for in this prospectus supplement
or termination of the sales agreement as permitted
therein.
To the
extent required by Regulation M, Wainwright will not engage in
any market making activities involving our shares of common stock
while the offering is ongoing under this prospectus
supplement.
Wainwright and its
affiliates may in the future provide various investment banking and
other financial services for us and our affiliates, for which
services they may in the future receive customary
fees.
This
prospectus supplement and the accompanying prospectus may be made
available in electronic format on a website maintained by
Wainwright, and Wainwright may distribute this prospectus
supplement and the accompanying prospectus
electronically.
The
validity of the securities offered hereby will be passed upon for
us by Lowenstein Sandler LLP, New York, New York. Haynes and Boone,
LLP, New York, New York, is counsel for Wainwright in connection
with this offering.
The audited annual consolidated
financial statements of AzurRx BioPharma, Inc. incorporated by
reference in this prospectus supplement and elsewhere in the registration
statement have been incorporated by reference in reliance upon the
report of Mazars USA LLP, independent registered public accounting
firm, upon the authority of said firm as experts in accounting and
auditing. The 2020 and 2019 audited annual consolidated financial
statements of AzurRx BioPharma, Inc., as of and for the years ended
December 31, 2020 and 2019, have been audited by Mazars USA LLP,
independent registered public accounting firm. The audit report
dated March 31, 2021 for the 2020 audited annual consolidated
financial statements includes an explanatory paragraph which states
that certain circumstances raise substantial doubt about our
ability to continue as a going concern.
WHERE YOU CAN FIND MORE
INFORMATION
We are
subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith file
annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. The
Securities and Exchange Commission maintains a website that
contains reports, proxy and information statements and other
information regarding registrants that file electronically with the
Securities and Exchange Commission. The address of the Securities
and Exchange Commission’s website is
www.sec.gov.
We make
available free of charge on or through our website our Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q,
Current Reports on Form 8-K and amendments to those reports
filed or furnished pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, as soon as reasonably
practicable after we electronically file such material with or
otherwise furnish it to the Securities and Exchange
Commission.
We have
filed with the Securities and Exchange Commission a registration
statement under the Securities Act, relating to the offering of
these securities. The registration statement, including the
attached exhibits, contains additional relevant information about
us and the securities. This prospectus supplement and the
accompanying prospectus do not contain all of the information set
forth in the registration statement. You can obtain a copy of the
registration statement for free at www.sec.gov. The registration
statement and the documents referred to below under
“Incorporation of Certain Information By Reference” are
also available on our website, www.azurrx.com/investors/regulatory-filings.
We have
not incorporated by reference into this prospectus supplement or
the accompanying prospectus the information on our website, and you
should not consider it to be a part of this prospectus supplement
or the accompanying prospectus.
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
The following documents filed with the
SEC are incorporated by reference into this prospectus
supplement:
● our Annual Report on Form 10-K for the year ended December
31, 2020, filed with the SEC on March 31, 2021;
● our Quarterly Report on Form 10-Q for the period ended
March 31, 2021, filed with the SEC on May 24, 2021;
● our Current Reports on Form
8-K, filed with the SEC on January 4, 2021 (as amended on January
13, 2021), January 5, 2021, January 8, 2021, February 16, 2021,
February 25, 2021 and March 10, 2021 (other than any portion thereof deemed
furnished and not filed);
● 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 with the SEC on August 8, 2016, including any
amendment or reports filed for the purposes of updating this
description, including Exhibit 4.1 to our Annual Report on Form
10-K for the year ended December 31, 2020, filed with the SEC on
March 31, 2021.
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 supplement 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 supplement and prior to the termination of the
offering are also incorporated by reference and are an important
part of this prospectus supplement.
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.
AzurRx BioPharma, Inc.
$150,000,000
Common Stock
Preferred Stock
Warrants
Subscription Rights
Units
We may offer, issue and sell from time to time together or
separately, in one or more offerings, any combination of (i) our
common stock, (ii) our preferred stock, which we may issue in one
or more series, (iii) warrants, (iv) subscription rights and (v)
units. The preferred stock, warrants and subscription rights may be
convertible into, or exercisable or exchangeable for, common or
preferred stock or other securities of ours. The units may consist
of any combination of the securities listed above.
The aggregate public offering price of
the securities that we may offer will not exceed
$150,000,000. We
will offer the securities in an amount and on terms that market
conditions will determine at the time of the offering. Our common
stock is listed on the Nasdaq Capital Market under the symbol
“AZRX.” The last reported sale price for our common
stock on May 21, 2021 as quoted on the Nasdaq Capital Market was
$0.89 per share. You are urged to obtain current market quotations
of our common stock. We have no preferred stock, warrants,
subscription rights or units listed on any market. Each prospectus
supplement will indicate if the securities offered thereby will be
listed on any securities exchange.
Should we offer any of the securities described in this prospectus,
we will provide you with the specific terms of the particular
securities being offered in supplements to this prospectus. You
should read this prospectus and any supplement, together with
additional information described under the headings “Where
You Can Find More Information” and “Incorporation of
Certain Information by Reference” carefully before you
invest. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement.
We may sell these securities directly to our stockholders or to
other purchasers or through agents on our behalf or through
underwriters or dealers as designated from time to time. If any
agents or underwriters are involved in the sale of any of these
securities, the applicable prospectus supplement will provide the
names of the agents or underwriters and any applicable fees,
commissions or discounts.
We are an “emerging growth company” as defined in
Section 2(a) of the Securities Act of 1933, as amended the
(“Securities Act”), and we have elected to comply with
certain reduced public company reporting requirements.
Investing in our securities involves a high degree of risk. See
“Risk Factors” beginning on page 2 of this prospectus
and the documents incorporated by reference into this prospectus
for a discussion of the risks that you should consider in
connection with an investment in our securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is June 2, 2021.
TABLE OF CONTENTS
|
|
ii
|
|
|
1
|
|
|
2
|
|
|
3
|
|
|
4
|
|
|
5
|
|
|
6
|
|
|
12
|
|
|
13
|
|
|
14
|
|
|
15
|
|
|
17
|
|
|
21
|
|
|
22
|
|
|
23
|
|
|
24
|
|
|
25
|
AzurRx
BioPharma, Inc. is referred to herein as “AzurRx,”
“the Company,” “we,” “us,” and
“our,” unless the context indicates
otherwise.
You may
only rely on the information contained in this prospectus and any
accompanying prospectus supplement or that we have referred you to.
We have not authorized anyone to provide you with different
information. This prospectus and any prospectus supplement do not
constitute an offer to sell or a solicitation of an offer to buy
any securities other than the securities offered by this prospectus
and the prospectus supplement. This prospectus and any prospectus
supplement do not constitute an offer to sell or a solicitation of
an offer to buy any securities in any circumstances in which such
offer or solicitation is unlawful. Neither the delivery of this
prospectus or any prospectus supplement nor any sale made hereunder
shall, under any circumstances, create any implication that there
has been no change in our affairs since the date of this prospectus
or such prospectus supplement or that the information contained by
reference to this prospectus or any prospectus supplement is
correct as of any time after its date.
This
prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or SEC, using a
“shelf” registration process. Under this shelf
registration process, we may from time to time offer and sell, in
one or more offerings, any or all of the securities described in
this prospectus, separately or together, up to an aggregate
offering price of $150,000,000. This prospectus provides you with a
general description of our securities being offered. When we issue
the securities being offered by this prospectus, we will provide a
prospectus supplement (which term includes, as applicable, the
at-the-market sales agreement prospectus supplement filed with the
registration statement of which this prospectus forms a part) that
will contain specific information about the terms of that offering.
The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional
information described under the heading “Where You Can Find
More Information” and “Incorporation of Certain
Information By Reference.”
The
following summary highlights some information from this prospectus.
It is not complete and does not contain all of the information that
you should consider before making an investment decision. You
should read this entire prospectus, including the “Risk
Factors” section on page 2 and the disclosures to which that
section refers you, the financial statements and related notes and
the other more detailed information appearing elsewhere or
incorporated by reference into this prospectus before investing in
any of the securities described in this prospectus.
Overview
We are engaged in the research and development of
targeted, non-systemic therapies for the treatment of patients with
gastrointestinal (“GI”) diseases. Non-systemic therapies are
non-absorbable drugs that act locally, i.e. in the intestinal
lumen, skin or mucosa, without reaching an individual’s
systemic circulation. We are focused on
developing our pipeline of gut-restricted GI clinical drug
candidates, including MS1819 and niclosamide.
Our lead drug candidate
is MS1819, a recombinant lipase for the treatment of exocrine
pancreatic insufficiency (“EPI”)
in patients with cystic
fibrosis (“CF”) and chronic pancreatitis
(“CP”), currently in two
Phase 2 CF clinical trials. In March 2021, we announced topline results from
our Phase 2b OPTION 2 monotherapy trial, and in May 2021, we
announced positive interim results from the first 18 patients in
our Phase 2 Combination trial in Europe.
In 2021, we intend to
launch two new clinical programs using proprietary formulations of
niclosamide, a small molecule
with anti-helminthic, anti-viral and anti-inflammatory
properties; FW-1022, for
Severe Acute Respiratory Syndrome Coronavirus 2
(“COVID-19”)
gastrointestinal infections, and FW-420, for Grade 1 and Grade 2
Immune Checkpoint Inhibitor-Associated Colitis
(“ICI-AC”)
and diarrhea in advanced stage oncology patients.
We initiated our Phase 2 RESERVOIR
clinical trial using a proprietary oral immediate-release tablet
formulation of micronized niclosamide (FW-1022) for the treatment
of COVID-19 related GI infections in April 2021, and we are
preparing to initiate our Phase 1b/2a PASSPORT ICI-AC trial using
both an oral immediate-release tablet and a topical rectal enema
foam formulations of niclosamide (FW-420) in the first half of
2021.
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 SAS. Our principal
executive offices are located at 1615 South Congress Avenue, Suite
103, Delray Beach, Florida 33445. 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.
Before
purchasing any of the securities you should carefully consider the
risk factors incorporated by reference in this prospectus from our
Annual Report on Form 10-K for the fiscal year ended December 31,
2020 and any subsequent updates described in our Quarterly Reports
on Form 10-Q and Current Reports on Form 8-K, as well as the risks,
uncertainties and additional information set forth in any
prospectus supplement, in our SEC reports on Forms 10-K, 10-Q and
8-K and in the other documents incorporated by reference in this
prospectus. For a description of these reports and documents, and
information about where you can find them, see “Where You Can
Find More Information” and “Incorporation of Certain
Information By Reference.” Additional risks not presently
known or that we presently consider to be immaterial could
subsequently materially and adversely affect our financial
condition, results of operations, business and
prospects.
FORWARD-LOOKING
STATEMENTS
This
prospectus, including the documents that we incorporate by
reference, contains forward-looking statements as that term is
defined in the federal securities laws. The events described in
forward-looking statements contained in this prospectus, including
the documents that we incorporate by reference, may not occur.
Generally, these statements relate to our business plans or
strategies, projected or anticipated benefits or other consequences
of our plans or strategies, financing plans, projected or
anticipated benefits from acquisitions that we may make, or
projections involving anticipated revenues, earnings or other
aspects of our operating results or financial position, and the
outcome of any contingencies. Any such forward-looking statements
are based on current expectations, estimates and projections of
management. We intend for these forward-looking statements to be
covered by the safe-harbor provisions for forward-looking
statements. Words such as “may,” “expect,”
“believe,” “anticipate,”
“project,” “plan,” “intend,”
“estimate,” and “continue,” and their
opposites and similar expressions are intended to identify
forward-looking statements. We caution you that these statements
are not guarantees of future performance or events and are subject
to a number of uncertainties, risks and other influences, many of
which are beyond our control that may influence the accuracy of the
statements and the projections upon which the statements are based.
Factors that may cause our results to materially differ from those
expressed or implied by forward-looking statements include, but are
not limited to, the risks and uncertainties discussed in the
“Risk Factors” section on page 2 of this prospectus, in
any prospectus supplement, in our Annual Report on Form 10-K for
the fiscal year ended December 31, 2020 or in other reports we file
with the SEC.
Any one
or more of these uncertainties, risks and other influences could
materially affect our results of operations and whether
forward-looking statements made by us ultimately prove to be
accurate. Our actual results, performance and achievements could
differ materially from those expressed or implied in these
forward-looking statements. We undertake no obligation to publicly
update or revise any forward-looking statements, whether from new
information, future events or otherwise.
You
should rely only on the information in this prospectus. 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 upon it.
Unless
we inform you otherwise in the prospectus supplement relating to a
particular offering of securities, we will use the net proceeds
from the sale of the securities offered by this prospectus and the
exercise price from the exercise of any convertible securities, if
any, for general corporate purposes, which may include funding
research, development and product manufacturing, clinical trials,
acquisitions or investments in businesses, products or technologies
that are complementary to our own, increasing our working capital,
reducing indebtedness, and capital expenditures.
When
particular securities are offered, the prospectus supplement
relating to that offering will set forth our intended use of the
net proceeds received from the sale of those securities we sell.
Pending the application of the net proceeds for these purposes, we
expect to invest the proceeds in short-term, interest-bearing
instruments or other investment-grade securities.
THE
SECURITIES WE MAY OFFER
General
The
descriptions of the securities contained in this prospectus,
together with the applicable prospectus supplements, summarize all
of the material terms and provisions of the various types of
securities that we may offer. We will describe in the applicable
prospectus supplement relating to any securities the particular
terms of the securities offered by that prospectus supplement. If
we indicate in the applicable prospectus supplement, the terms of
the securities may differ from the terms we have summarized below.
We may also include in the prospectus supplement information about
material United States federal income tax considerations relating
to the securities, and the securities exchange, if any, on which
the securities will be listed.
We may
sell from time to time, in one or more offerings:
●
common stock;
●
preferred stock;
●
subscription rights to purchase shares of common stock or preferred
stock;
●
warrants to purchase shares of common stock or preferred stock;
and
●
units consisting of any combination of the securities listed
above.
In this
prospectus, we refer to the common stock, preferred stock,
subscription rights, warrants and units collectively as
“securities.” The total dollar amount of all securities
that we may sell pursuant to this prospectus will not exceed
$150,000,000.
This
prospectus may not be used to consummate a sale of securities
unless it is accompanied by a prospectus supplement.
DESCRIPTION
OF CAPITAL STOCK
The following summary of the rights of our capital stock is not
complete and is subject to and qualified in its entirety by
reference to our certificate of incorporation and bylaws, copies of
which are filed as exhibits to our Annual Report on Form 10-K for
the year ended December 31, 2020, filed with the SEC on March 31,
2021, and the Certificate of Designations and forms of securities,
copies of which are filed as exhibits to the registration statement
of which this prospectus forms a part , which are incorporated by
reference herein.
General
Our authorized capital stock consists of:
●
250,000,000 shares of common stock, par value $0.0001 per share;
and
●
10,000,000 shares of preferred stock, par value
$0.0001.
As of May 21, 2021, there were
250,000,000 shares of common stock, and 10,000,000 shares of
preferred stock, of which a series of 5,194.81 shares of Series B
Convertible Preferred Stock (the “Series B Preferred
Stock”) and a
series of 75,000 shares of Series C 9.00% Convertible Junior
Preferred Stock (the “Series C Preferred
Stock”) have
been designated.
As of May 21, 2021, there were 78,575,131 shares of common stock
issued and outstanding, 893.52 shares of Series B Preferred Stock
issued and outstanding and 0 shares of Series C Preferred Stock
issued and outstanding.
The
additional shares of our authorized capital stock available for
issuance may be issued at times and under circumstances so as to
have a dilutive effect on earnings per share and on the equity
ownership of the holders of our common stock. The ability of our
board of directors to issue additional shares of stock could
enhance the board’s ability to negotiate on behalf of the
stockholders in a takeover situation but could also be used by the
board to make a change of control more difficult, thereby denying
stockholders the potential to sell their shares at a premium and
entrenching current management. The following description is a
summary of the material provisions of our capital stock. You should
refer to our certificate of incorporation, as amended (the
“Charter”), and
our bylaws, as amended and restated (the “Bylaws”), both of which are on
file with the SEC as exhibits to previous SEC filings, for
additional information. The summary below is qualified by
provisions of applicable law.
Common Stock
Holders of our common stock are entitled to one
vote for each share held of record on all matters on which the
holders are entitled to vote (or consent pursuant to written
consent). Directors are elected by a plurality of the votes present
in person or represented by proxy and entitled to
vote. Our Charter and Bylaws,
do not provide for cumulative voting rights.
Holders
of our common stock are entitled to receive, ratably, dividends
only if, when and as declared by our board of directors out of
funds legally available therefor and after provision is made for
each class of capital stock having preference over the common
stock.
In
the event of our liquidation, dissolution or winding-up, the
holders of common stock are entitled to share, ratably, in all
assets remaining available for distribution after payment of all
liabilities and after provision is made for each class of capital
stock having preference over the common stock.
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.
Transfer Agent
The transfer agent and registrar for our common stock is Colonial
Stock Transfer, 66 Exchange Place, 1st Floor, Salt Lake City, Utah
84111, Tel: (801) 355-5740.
Preferred Stock
We currently have up to 10,000,000 shares of preferred stock, par
value $0.0001 per share, authorized and available for issuance in
one or more series. Our board of directors is authorized to divide
the preferred stock into any number of series, fix the designation
and number of each such series, and determine or change the
designation, relative rights, preferences, and limitations of any
series of preferred stock. The board of may increase or decrease
the number of shares initially fixed for any series, but no
decrease may reduce the number below the shares then outstanding
and duly reserved for issuance. As of May 21, 2021, 5,194.81 shares
were designated as Series B Preferred Stock, of which 893.52 were
issued and outstanding, and 75,000 were designated as Series C
Preferred Stock, of which none were issued and outstanding. This
leaves 9,919,805.19 shares of preferred stock authorized but
undesignated.
If we
offer a specific series of preferred stock under this prospectus,
we will describe the terms of the preferred stock in the prospectus
supplement for such offering and will file a copy of the
certificate establishing the terms of the preferred stock with the
SEC. To the extent required, this description will
include:
●
the title and stated value;
●
the number of shares offered, the liquidation preference per share
and the purchase price;
●
the dividend rate(s), period(s) and/or payment date(s), or
method(s) of calculation for such dividends;
●
whether dividends will be cumulative or non-cumulative and, if
cumulative, the date from which dividends will
accumulate;
●
the procedures for any auction and remarketing, if
any;
●
the provisions for a sinking fund, if any;
●
the provisions for redemption, if applicable;
●
any listing of the preferred stock on any securities exchange or
market;
●
whether the preferred stock will be convertible into our common
stock, and, if applicable, the conversion price (or how it will be
calculated) and conversion period;
●
voting rights, if any, of the preferred stock;
●
a discussion of any material and/or special U.S. federal income tax
considerations applicable to the preferred stock;
●
the relative ranking and preferences of the preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding
up of our affairs; and
●
any material limitations on issuance of any class or series of
preferred stock ranking senior to or on a parity with the series of
preferred stock as to dividend rights and rights upon liquidation,
dissolution or winding up of our affairs.
Series B Preferred Stock
Under the Certificate
of Designations for the Series B Preferred Stock (the
“Series
B Certificate of Designations”), each share of
Series B Preferred Stock will be convertible, at the holder’s
option at any time, into our common stock at a conversion rate
equal to the quotient of (i) the $7,700 stated value (the
“Series
B Stated Value”) divided by
(ii) the initial conversion price of $0.77, subject to specified
adjustments for stock splits, cash or stock dividends,
reorganizations, reclassifications other similar events as set
forth in the Series B Certificate of Designations. In
addition, if at any time after January 16, 2021, the six month
anniversary of the date of the closing of our private placement
transaction on July 16, 2020, the closing sale price per share of
our common stock exceeds 250% of the initial conversion price, or
$1.925, for 20 consecutive trading days, then all of the
outstanding shares of Series B Preferred Stock will automatically
convert (the “Automatic Conversion”) into such number
of shares of our common stock as is obtained by multiplying the
number of shares of Series B Preferred Stock to be so converted,
plus the amount of any accrued and unpaid dividends thereon, by the
Series B Stated Value per share and dividing the result by the then
applicable conversion price.
The Series B Preferred Stock contains limitations that prevent the
holder thereof from acquiring shares of our common stock upon
conversion (including pursuant to the Automatic Conversion) that
would result in the number of shares beneficially owned by such
holder and its affiliates exceeding 9.99% of the total number of
shares of our common stock outstanding immediately after giving
effect to the conversion, which percentage may be increased or
decreased at the holder’s election not to
exceed 19.99%.
Each holder of shares
of Series B Preferred Stock, in preference and priority to the
holders of all other classes or series of our stock, is entitled to
receive dividends, commencing from the date of issuance. Such
dividends may be paid by us only when, as and if declared by our
board of directors, out of assets legally available therefore,
semiannually in arrears on the last day of June and December in
each year, commencing December 31, 2020, at the dividend rate of
9.0% per year, which is cumulative and continues to accrue on a
daily basis whether or not declared and whether or not we have
assets legally available therefore. We may pay such dividends at
our sole option either in cash or in kind in additional shares of
Series B Preferred Stock (rounded down to the nearest whole share),
provided we must pay in cash the fair value of any such fractional
shares in excess of $100.00. Under the Series B Certificate of
Designations, to the extent that applicable law or any of our
existing contractual restrictions prohibit any required issuance of
additional shares of Series B Preferred Stock as in-kind dividends
or otherwise (“Additional
Shares”), then
appropriate adjustment to the conversion price of the Series B
Preferred Stock shall be made so that the resulting number of
conversion shares includes the aggregate number of shares of our
common stock into which such Additional Shares would otherwise be
convertible.
Under the Series B
Certificate of Designations, each share of Series B Preferred Stock
carries a liquidation preference equal to the Series B Stated Value
(as adjusted thereunder) plus accrued and unpaid dividends thereon
(the “Series
B Liquidation Preference”).
In the event we effect
any issuance of common stock or common stock equivalents for cash
consideration, or a combination of units thereof (a
“Subsequent
Financing”), each holder
of the Series B Preferred Stock has the right, subject to certain
exceptions set forth in the Series B Certificate of Designations,
at its option, to exchange (in lieu of cash subscription payments)
all or some of the Series B Preferred Stock then held (with a value
per share of Series B Preferred Stock equal to the Series B
Liquidation Preference) for any securities or units issued in a
Subsequent Financing on dollar-for-dollar basis. As a result, we
may currently be required to issue additional shares of Series C
Preferred Stock to any holders of Series B Preferred Stock who
elect to exercise this right. Any shares of Series C Preferred
Stock to be issued pursuant to this right would, upon issuance, be
immediately converted into underlying shares of our common
stock.
The holders of the Series B Preferred Stock, voting as a separate
class, will have customary consent rights with respect to certain
corporate actions by us. We may not take the following actions
without the prior consent of the holders of at least a majority of
the Series B Preferred Stock then outstanding: (a) authorize,
create, designate, establish, issue or sell an increased number of
shares of Series B Preferred Stock or any other class or series of
capital stock ranking senior to or on parity with the Series B
Preferred Stock as to dividends or upon liquidation; (b) reclassify
any shares of common stock or any other class or series of capital
stock into shares having any preference or priority as to dividends
or upon liquidation superior to or on parity with any such
preference or priority of Series B Preferred Stock; (c) amend,
alter or repeal our Charter or Bylaws and the powers, preferences,
privileges, relative, participating, optional and other special
rights and qualifications, limitations and restrictions thereof,
which would adversely affect any right, preference, privilege or
voting power of the Series B Preferred Stock; (d) issue any
indebtedness or debt security, other than trade accounts payable,
insurance premium financings and/or letters of credit, performance
bonds or other similar credit support incurred in the ordinary
course of business, or amend, renew, increase, or otherwise alter
in any material respect the terms of any such indebtedness existing
as of the date of first issuance of shares of Series B Preferred
Stock; (e) redeem, purchase, or otherwise acquire or pay or declare
any dividend or other distribution on (or pay into or set aside for
a sinking fund for any such purpose) any of our capital stock; (f)
declare bankruptcy, dissolve, liquidate, or wind up our affairs;
(g) effect, or enter into any agreement to effect, a Change of
Control (as defined in the Series B Certificate of Designations);
or (h) materially modify or change the nature of our
business.
Series C Preferred Stock
Under the Certificate
of Designations for the Series C Preferred Stock (the
“Series
C Certificate of Designations”), each share of
Series C Preferred Stock will be convertible, at either the
holder’s option or at our option at any time, into common
stock at a conversion rate equal to the quotient of (i) the Series
C Stated Value of $750 plus all accrued and accumulated and unpaid
dividends on such share of Series C Preferred Stock divided by (ii)
the initial conversion price of $0.75, subject to specified
adjustments for stock splits, cash or stock dividends,
reorganizations, reclassifications other similar events as set
forth in the Series C Certificate of
Designations.
The
Series C Preferred Stock contains limitations that prevent the
holders thereof from acquiring shares of our common stock upon
conversion that would result in the number of shares beneficially
owned by any such holder and its affiliates exceeding 9.99% of the
total number of shares of our common stock outstanding immediately
after giving effect to the conversion. As a result, the Series C
Certificate of Designations provides for the issuance of pre-funded
warrants to purchase shares of our common stock, with an exercise
price of $0.001 per share and with no expiration date, if necessary
to comply with this limitation.
Each
holder of shares of Series C Preferred Stock, subject to the
preference and priority to the holders of our Series B Preferred
Stock, is entitled to receive dividends, commencing from the date
of issuance of the Series C Preferred Stock. Such dividends may be
paid only when, as and if declared by our board of directors, out
of assets legally available therefore, quarterly in arrears on the
last day of March, June, September and December in each year,
commencing on the date of issuance, at the dividend rate of 9.0%
per year. Such dividends are cumulative and continue to accrue on a
daily basis whether or not declared and whether or not we have
assets legally available therefore.
Under
the Series C Certificate of Designations, each share of Series C
Preferred Stock carries a liquidation preference equal to the
Series C Stated Value plus accrued and unpaid dividends thereon and
any other fees or liquidated damages then due and owing
thereon.
The holders of the Series C Preferred Stock have
no voting rights. We may not take the following actions without the
prior consent of the holders of at least a majority of the Series C
Preferred Stock then outstanding: (a) alter or change adversely the
powers, preferences or rights given to the Series C Preferred Stock
or alter or amend the Series C Certificate of Designations, (b)
authorize or create any class of stock ranking as to dividends,
redemption or distribution of assets upon a Liquidation (as defined
in the Series C Certificate of Designations) senior to, or
otherwise pari passu with,
the Series C Preferred Stock, (c) amend our Charter or other
charter documents in any manner that adversely affects any rights
of the holders of the Series C Preferred Stock, (d) increase the
number of authorized shares of Series C Preferred Stock, or (e)
enter into any agreement with respect to any of the
foregoing.
Transfer Agent and Registrar for Preferred Stock
The
transfer agent and registrar for any series or class of preferred
stock will be set forth in each applicable prospectus
supplement.
Anti-Takeover Effects of Certain Provisions of Delaware Law and of
Our Charter 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 (the
“DGCL”).
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.
Charter 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.
Stockholder Action by Written Consent
Our
Bylaws provide that our stockholders may take action by written
consent or electronic transmission, setting forth the action so
taken, signed or e-mailed by the holders of outstanding stock
having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting for such
purpose.
Potential Effects of Authorized but Unissued Stock
We have
shares of common stock and preferred stock available for future
issuance without stockholder approval. We may utilize these
additional shares for a variety of corporate purposes, including
future public offerings to raise additional capital, to facilitate
corporate acquisitions or payment as a dividend on the capital
stock.
The
existence of unissued and unreserved common stock and preferred
stock may enable our board of directors to issue shares to persons
friendly to current management or to issue preferred stock with
terms that could render more difficult or discourage a third-party
attempt to obtain control of us by means of a merger, tender offer,
proxy contest or otherwise, thereby protecting the continuity of
our management. In addition, the board of directors has the
discretion to determine designations, rights, preferences,
privileges and restrictions, including voting rights, dividend
rights, conversion rights, redemption privileges and liquidation
preferences of each series of preferred stock, all to the fullest
extent permissible under the DGCL and subject to any limitations
set forth in our Charter. The purpose of authorizing the board of
directors to issue preferred stock and to determine the rights and
preferences applicable to such preferred stock is to eliminate
delays associated with a stockholder vote on specific issuances.
The issuance of preferred stock, while providing desirable
flexibility in connection with possible financings, acquisitions
and other corporate purposes, could have the effect of making it
more difficult for a third party to acquire, or could discourage a
third party from acquiring, a majority of our outstanding voting
stock.
We
summarize below some of the provisions that will apply to the
warrants unless the applicable prospectus supplement provides
otherwise. This summary may not contain all information that is
important to you. The complete terms of the warrants will be
contained in the applicable warrant certificate and warrant
agreement. These documents have been or will be included or
incorporated by reference as exhibits to the registration statement
of which this prospectus is a part. You should read the warrant
certificate and the warrant agreement. You should also read the
prospectus supplement, which will contain additional information
and which may update or change some of the information
below.
General
We may
issue, together with common or preferred stock as units or
separately, warrants for the purchase of shares of our common or
preferred stock. The terms of each warrant will be discussed in the
applicable prospectus supplement relating to the particular series
of warrants. The form(s) of certificate representing the warrants
and/or the warrant agreement will be, in each case, filed with the
SEC as an exhibit to a document incorporated by reference in the
registration statement of which this prospectus is a part on or
prior to the date of any prospectus supplement relating to an
offering of the particular warrant. The following summary 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 and warrant certificate
applicable to a particular series of warrants.
The
prospectus supplement relating to any series of warrants that are
offered by this prospectus will describe, among other things, the
following terms to the extent they are applicable to that series of
warrants:
●
the procedures and conditions relating to the exercise of the
warrants;
●
the number of shares of our common or preferred stock, if any,
issued with the warrants;
●
the date, if any, on and after which the warrants and any related
shares of our common or preferred stock will be separately
transferable;
●
the offering price of the warrants, if any;
●
the number of shares of our common or preferred stock which may be
purchased upon exercise of the warrants and the price or prices at
which the shares may be purchased upon exercise;
●
the date on which the right to exercise the warrants will begin and
the date on which the right will expire;
●
a discussion of the material United States federal income tax
considerations applicable to the exercise of the
warrants;
●
anti-dilution provisions of the warrants, if any;
●
call provisions of the warrants, if any; and
●
any other material terms of the warrants.
Each
warrant may entitle the holder to purchase for cash, or, in limited
circumstances, by effecting a cashless exercise for, the number of
shares of our common or preferred stock at the exercise price that
is described in the applicable prospectus supplement. Warrants will
be exercisable during the period of time described in the
applicable prospectus supplement. After that period, unexercised
warrants will be void. Warrants may be exercised in the manner
described in the applicable prospectus supplement.
A
holder of a warrant will not have any of the rights of a holder of
our common or preferred stock before the stock is purchased upon
exercise of the warrant. Therefore, before a warrant is exercised,
the holder of the warrant will not be entitled to receive any
dividend payments or exercise any voting or other rights associated
with shares of our common or preferred stock which may be purchased
when the warrant is exercised.
Transfer Agent and Registrar
The
transfer agent and registrar, if any, for any warrants will be set
forth in the applicable prospectus supplement.
DESCRIPTION OF SUBSCRIPTION
RIGHTS
We may
issue subscription rights to purchase our common stock. These
subscription rights may be offered independently or together with
any other security offered hereby and may or may not be
transferable by the stockholder receiving the subscription rights
in such offering. In connection with any offering of subscription
rights, we may enter into a standby arrangement with one or more
underwriters or other purchasers pursuant to which the underwriters
or other purchasers may be required to purchase any securities
remaining unsubscribed for after such offering.
The
prospectus supplement relating to any subscription rights we offer,
if any, will, to the extent applicable, include specific terms
relating to the offering, including some or all of the
following:
●
the price, if any, for the subscription rights;
●
the exercise price payable for our common stock upon the exercise
of the subscription rights;
●
the number of subscription rights to be issued to each
stockholder;
●
the number and terms of our common stock which may be purchased per
each subscription right;
●
the extent to which the subscription rights are
transferable;
●
any other terms of the subscription rights, including the terms,
procedures and limitations relating to the exchange and exercise of
the subscription rights;
●
the date on which the right to exercise the subscription rights
shall commence, and the date on which the subscription rights shall
expire;
●
the extent to which the subscription rights may include an
over-subscription privilege with respect to unsubscribed securities
or an over-allotment privilege to the extent the securities are
fully subscribed; and
●
if applicable, the material terms of any standby underwriting or
purchase arrangement which may be entered into by us in connection
with the offering of subscription rights.
We may
issue units comprised of one or more of the other securities
described in this prospectus in any combination. Each unit will be
issued so that the holder of the unit is also the holder of each
security included in the unit. Thus, the holder of a unit will have
the rights and obligations of a holder of each included security
(but, to the extent convertible securities are included in the
units, the holder of the units will be deemed the holder of the
convertible securities and not the holder of the underlying
securities). The unit agreement under which a unit is issued, if
any, may provide that the securities included in the unit may not
be held or transferred separately, at any time or at any time
before a specified date. The applicable prospectus supplement may
describe:
●
the designation and terms of the units and of the securities
comprising the units, including whether and under what
circumstances those securities may be held or transferred
separately;
●
any provisions for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the
units;
●
the terms of the unit agreement governing the units;
●
United States federal income tax considerations relevant to the
units; and
●
whether the units will be issued in fully registered global
form.
This
summary of certain general terms of units and any summary
description of units in the applicable prospectus supplement do not
purport to be complete and are qualified in their entirety by
reference to all provisions of the applicable unit agreement and,
if applicable, collateral arrangements and depositary arrangements
relating to such units. The forms of the unit agreements and other
documents relating to a particular issue of units will be filed
with the SEC each time we issue units, and you should read those
documents for provisions that may be important to you.
To the
extent applicable, each warrant, subscription right and unit, will
be represented either by a certificate issued in definitive form to
a particular investor or by one or more global securities
representing the entire issuance of securities. Certificated
securities in definitive form and global securities will be issued
in registered form. Definitive securities name you or your nominee
as the owner of the security, and in order to transfer or exchange
these securities or to receive payments other than interest or
other interim payments, you or your nominee must physically deliver
the securities to the trustee, registrar, paying agent or other
agent, as applicable. Global securities name a depositary or its
nominee as the owner of warrants represented by these global
securities. The depositary maintains a computerized system that
will reflect each investor’s beneficial ownership of the
securities through an account maintained by the investor with its
broker/dealer, bank, trust company or other representative, as we
explain more fully below.
Global Securities
Registered Global Securities. We may
issue, to the extent applicable, warrants, subscription rights and
units, in the form of one or more fully registered global
securities that will be deposited with a depositary or its nominee
identified in the applicable prospectus supplement and registered
in the name of that depositary or nominee. In those cases, one or
more registered global securities will be issued in a denomination
or aggregate denominations equal to the portion of the aggregate
principal or face amount of the securities to be represented by
registered global securities. Unless and until it is exchanged in
whole for securities in definitive registered form, a registered
global security may not be transferred except as a whole by and
among the depositary for the registered global security, the
nominees of the depositary or any successors of the depositary or
those nominees.
If not
described below, any specific terms of the depositary arrangement
with respect to any securities to be represented by a registered
global security will be described in the prospectus supplement
relating to those securities. We anticipate that the following
provisions will apply to all depositary arrangements.
Ownership of
beneficial interests in a registered global security will be
limited to persons, called participants, that have accounts with
the depositary or persons that may hold interests through
participants. Upon the issuance of a registered global security,
the depositary will credit, on its book-entry registration and
transfer system, the participants’ accounts with the
respective principal or face amounts of the securities beneficially
owned by the participants. Any dealers, underwriters or agents
participating in the distribution of the securities will designate
the accounts to be credited. Ownership of beneficial interests in a
registered global security will be shown on, and the transfer of
ownership interests will be effected only through, records
maintained by the depositary, with respect to interests of
participants, and on the records of participants, with respect to
interests of persons holding through participants. The laws of some
states may require that some purchasers of securities take physical
delivery of these securities in definitive form. These laws may
impair your ability to own, transfer or pledge beneficial interests
in registered global securities.
So long
as the depositary, or its nominee, is the registered owner of a
registered global security, that depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the
securities represented by the registered global security for all
purposes under the applicable indenture or warrant agreement.
Except as described below, owners of beneficial interests in a
registered global security will not be entitled to have the
securities represented by the registered global security registered
in their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be
considered the owners or holders of the securities under the
applicable indenture or warrant agreement. Accordingly, each person
owning a beneficial interest in a registered global security must
rely on the procedures of the depositary for that registered global
security and, if that person is not a participant, on the
procedures of the participant through which the person owns its
interest, to exercise any rights of a holder under the applicable
indenture or warrant agreement. We understand that under existing
industry practices, if we request any action of holders or if an
owner of a beneficial interest in a registered global security
desires to give or take any action that a holder is entitled to
give or take under the applicable indenture or warrant agreement,
the depositary for the registered global security would authorize
the participants holding the relevant beneficial interests to give
or take that action, and the participants would authorize
beneficial owners owning through them to give or take that action
or would otherwise act upon the instructions of beneficial owners
holding through them.
Any
payments to holders with respect to warrants represented by a
registered global security registered in the name of a depositary
or its nominee will be made to the depositary or its nominee, as
the case may be, as the registered owner of the registered global
security. None of the Company, the trustees, the warrant agents or
any other agent of the Company, the trustees or the warrant agents
will have any responsibility or liability for any aspect of the
records relating to payments made on account of beneficial
ownership interests in the registered global security or for
maintaining, supervising or reviewing any records relating to those
beneficial ownership interests.
We
expect that the depositary for any of the securities represented by
a registered global security, upon receipt of any payment of
principal, premium, interest or other distribution of underlying
securities or other property to holders on that registered global
security, will immediately credit participants’ accounts in
amounts proportionate to their respective beneficial interests in
that registered global security as shown on the records of the
depositary. We also expect that payments by participants to owners
of beneficial interests in a registered global security held
through participants will be governed by standing customer
instructions and customary practices, as is now the case with the
securities held for the accounts of customers in bearer form or
registered in “street name,” and will be the
responsibility of those participants.
If the
depositary for any of these securities represented by a registered
global security is at any time unwilling or unable to continue as
depositary or ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or the Exchange Act,
and a successor depositary registered as a clearing agency under
the Exchange Act is not appointed by us within 90 days, we will
issue securities in definitive form in exchange for the registered
global security that had been held by the depositary. Any
securities issued in definitive form in exchange for a registered
global security will be registered in the name or names that the
depositary gives to the relevant trustee or warrant agent or other
relevant agent of ours or theirs. It is expected that the
depositary’s instructions will be based upon directions
received by the depositary from participants with respect to
ownership of beneficial interests in the registered global security
that had been held by the depositary.
Initial Offering and Sale of Securities
Unless
otherwise set forth in a prospectus supplement accompanying this
prospectus, we may sell the securities being offered hereby, from
time to time, by one or more of the following methods:
●
to or through underwriting syndicates represented by managing
underwriters;
●
through one or more underwriters without a syndicate for them to
offer and sell to the public;
●
through dealers or agents; and
●
to investors directly in negotiated sales or in competitively bid
transactions.
Offerings of
securities covered by this prospectus also may be made into an
existing trading market for those securities in transactions at
other than a fixed price, either:
●
on or through the facilities of the Nasdaq Capital Market or any
other securities exchange or quotation or trading service on which
those securities may be listed, quoted, or traded at the time of
sale; and/or
●
to or through a market maker other than on the securities exchanges
or quotation or trading services set forth above.
Those
at-the-market offerings, if any, will be conducted by underwriters
acting as principal or agent of the Company, who may also be
third-party sellers of securities as described above. The
prospectus supplement with respect to the offered securities will
set forth the terms of the offering of the offered securities,
including:
●
the name or names of any underwriters, dealers or
agents;
●
the purchase price of the offered securities and the proceeds to us
from such sale;
●
any underwriting discounts and commissions or agency fees and other
items constituting underwriters’ or agents’
compensation;
●
any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers;
●
any securities exchange on which such offered securities may be
listed; and
●
any underwriter, agent or dealer involved in the offer and sale of
any series of the securities.
The
distribution of the securities may be effected from time to time in
one or more transactions:
●
at fixed prices, which may be changed;
●
at market prices prevailing at the time of the sale;
●
at varying prices determined at the time of sale; or
●
at negotiated prices.
Each
prospectus supplement will set forth the manner and terms of an
offering of securities including:
●
whether that offering is being made to underwriters, through agents
or directly to the public;
●
the rules and procedures for any auction or bidding process, if
used;
●
the securities’ purchase price or initial public offering
price; and
●
the proceeds we anticipate from the sale of the securities, if
any.
In
addition, we may enter into derivative or hedging transactions with
third parties, or sell securities not covered by this prospectus to
third parties in privately negotiated transactions. The applicable
prospectus supplement may indicate, in connection with such a
transaction, that the third parties may sell securities covered by
and pursuant to this prospectus and an applicable prospectus
supplement. If so, the third party may use securities pledged by us
or borrowed from us or others to settle such sales and may use
securities received from us to close out any related short
positions. We may also loan or pledge securities covered by this
prospectus and an applicable prospectus supplement to third
parties, who may sell the loaned securities or, in an event of
default in the case of a pledge, sell the pledged securities
pursuant to this prospectus and the applicable prospectus
supplement.
Sales Through Underwriters
If
underwriters are used in the sale of some or all of the securities
covered by this prospectus, the underwriters will acquire the
securities for their own account. The underwriters may resell the
securities, either directly to the public or to securities dealers,
at various times in one or more transactions, including negotiated
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 certain conditions.
Unless indicated otherwise in a prospectus supplement, the
underwriters will be obligated to purchase all the securities of
the series offered if any of the securities are
purchased.
Any
initial public offering price and any concessions allowed or
reallowed to dealers may be changed intermittently.
Sales Through Agents
Unless
otherwise indicated in the applicable prospectus supplement, when
securities are sold through an agent, the designated agent will
agree, for the period of its appointment as agent, to use specified
efforts to sell the securities for our account and will receive
commissions from us as will be set forth in the applicable
prospectus supplement.
Securities bought
in accordance with a redemption or repayment under their terms also
may be offered and sold, if so indicated in the applicable
prospectus supplement, in connection with a remarketing by one or
more firms acting as principals for their own accounts or as agents
for us. Any remarketing firm will be identified and the terms of
its agreement, if any, with us and its compensation will be
described in the prospectus supplement. Remarketing firms may be
deemed to be underwriters in connection with the securities
remarketed by them.
If so
indicated in the applicable prospectus supplement, we may authorize
agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase securities at a price set forth
in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a future date specified in
the prospectus supplement. These contracts will be subject only to
those conditions set forth in the applicable prospectus supplement,
and the prospectus supplement will set forth the commissions
payable for solicitation of these contracts.
Direct Sales
We may
also sell offered securities directly to institutional investors or
others. In this case, no underwriters or agents would be involved.
The terms of such sales will be described in the applicable
prospectus supplement.
General Information
Broker-dealers,
agents or underwriters may receive compensation in the form of
discounts, concessions or commissions from us and/or the purchasers
of securities for whom such broker-dealers, agents or underwriters
may act as agents or to whom they sell as principal, or both. This
compensation to a particular broker-dealer might be in excess of
customary commissions.
Underwriters,
dealers and agents that participate in any distribution of the
offered securities may be deemed “underwriters” within
the meaning of the Securities Act , so any discounts or commissions
they receive in connection with the distribution may be deemed to
be underwriting compensation. Those underwriters and agents may be
entitled, under their agreements with us, to indemnification by us
against certain civil liabilities, including liabilities under the
Securities Act, or to contribution by us to payments that they may
be required to make in respect of those civil liabilities. Certain
of those underwriters or agents may be customers of, engage in
transactions with, or perform services for, us or our affiliates in
the ordinary course of business. We will identify any underwriters
or agents, and describe their compensation, in a prospectus
supplement. Any institutional investors or others that purchase
offered securities directly, and then resell the securities, may be
deemed to be underwriters, and any discounts or commissions
received by them from us and any profit on the resale of the
securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act.
We will
file a supplement to this prospectus, if required, pursuant to Rule
424(b) under the Securities Act, if we enter into any material
arrangement with a broker, dealer, agent or underwriter for the
sale of securities through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a
broker or dealer. Such prospectus supplement will
disclose:
●
the name of any participating broker, dealer, agent or
underwriter;
●
the number and type of securities involved;
●
the price at which such securities were sold;
●
any securities exchanges on which such securities may be
listed;
●
the commissions paid, or discounts or concessions allowed, to any
such broker, dealer, agent or underwriter, where applicable;
and
●
other facts material to the transaction.
In
order to facilitate the offering of certain securities under this
prospectus or an applicable prospectus supplement, certain persons
participating in the offering of those securities may engage in
transactions that stabilize, maintain or otherwise affect the price
of those securities during and after the offering of those
securities. Specifically, if the applicable prospectus supplement
permits, the underwriters of those securities may over-allot or
otherwise create a short position in those securities for their own
account by selling more of those securities than have been sold to
them by us and may elect to cover any such short position by
purchasing those securities in the open market.
In
addition, the underwriters may stabilize or maintain the price of
those securities by bidding for or purchasing those securities in
the open market and may impose penalty bids, under which selling
concessions allowed to syndicate members or other broker-dealers
participating in the offering are reclaimed if securities
previously distributed in the offering are repurchased in
connection with stabilization transactions or otherwise. The effect
of these transactions may be to stabilize or maintain the market
price of the securities at a level above that which might otherwise
prevail in the open market. The imposition of a penalty bid may
also affect the price of securities to the extent that it
discourages resales of the securities. No representation is made as
to the magnitude or effect of any such stabilization or other
transactions. Such transactions, if commenced, may be discontinued
at any time.
In
order to comply with the securities laws of certain states, if
applicable, the securities must be sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in
certain states the securities may not be sold unless they have been
registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is
available and is complied with.
Rule
15c6-1 under the Exchange Act generally requires that trades in the
secondary market settle in two business days, unless the parties to
any such trade expressly agree otherwise. Your prospectus
supplement may provide that the original issue date for your
securities may be more than two scheduled business days after the
trade date for your securities. Accordingly, in such a case, if you
wish to trade securities on any date prior to the second business
day before the original issue date for your securities, you will be
required, by virtue of the fact that your securities initially are
expected to settle in more than two scheduled business days after
the trade date for your securities, to make alternative settlement
arrangements to prevent a failed settlement.
This
prospectus, any applicable prospectus supplement and any applicable
pricing supplement in electronic format may be made available on
the Internet sites of, or through other online services maintained
by, us and/or one or more of the agents and/or dealers
participating in an offering of securities, or by their affiliates.
In those cases, prospective investors may be able to view offering
terms online and, depending upon the particular agent or dealer,
prospective investors may be allowed to place orders
online.
Other
than this prospectus, any applicable prospectus supplement and any
applicable pricing supplement in electronic format, the information
on our website or the website of any agent or dealer, and any
information contained in any other website maintained by any agent
or dealer:
●
is not part of this prospectus, any applicable prospectus
supplement or any applicable pricing supplement or the registration
statement of which they form a part;
●
has not been approved or endorsed by us or by any agent or dealer
in its capacity as an agent or dealer, except, in each case, with
respect to the respective website maintained by such entity;
and
●
should not be relied upon by investors.
There
can be no assurance that we will sell all or any of the securities
offered by this prospectus.
This
prospectus may also be used in connection with any issuance of
common stock or preferred stock upon exercise of a warrant if such
issuance is not exempt from the registration requirements of the
Securities Act.
In
addition, we may issue the securities as a dividend or distribution
or in a subscription rights offering to our existing
securityholders. In some cases, we or dealers acting with us or on
our behalf may also purchase securities and reoffer them to the
public by one or more of the methods described above. This
prospectus may be used in connection with any offering of our
securities through any of these methods or other methods described
in the applicable prospectus supplement.
Unless
otherwise indicated in the applicable prospectus supplement, the
validity of the securities offered hereby will be passed upon for
us by Lowenstein Sandler LLP, New York, New York. If the validity
of the securities offered hereby in connection with offerings made
pursuant to this prospectus are passed upon by counsel for the
underwriters, dealers or agents, if any, such counsel will be named
in the prospectus supplement relating to such
offering.
The audited annual consolidated financial statements of AzurRx
BioPharma, Inc. incorporated by reference in this prospectus and
elsewhere in the registration statement have been incorporated by
reference in reliance upon the report of Mazars USA LLP,
independent registered public accounting firm, upon the authority
of said firm as experts in accounting and auditing. The 2020 and
2019 audited annual consolidated financial statements of AzurRx
BioPharma, Inc., as of and for the years ended December 31, 2020
and 2019, have been audited by Mazars USA LLP, independent
registered public accounting firm. The audit report dated March 31,
2021 for the 2020 audited annual consolidated financial statements
includes an explanatory paragraph which states that certain
circumstances raise substantial doubt about our ability to continue
as a going concern.
DISCLOSURE OF
COMMISSION POSITION
ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section
145 of the DGCL provides that we may indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal or investigative (other than an action by
us or in our right) by reason of the fact that he is or was our
director, officer, employee or agent, or is or was serving at our
request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or
proceeding if he acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to our best interests,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
Section 145 further provides that we similarly may indemnify any
such person serving in any such capacity who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by is or in our right to procure judgment
in our favor, against expenses actually and reasonably incurred in
connection with the defense or settlement of such action or suit if
he or she acted in good faith and in a manner he reasonably
believed to be in or not opposed to our best interests and except
that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to
be liable to us unless and only to the extent that the Delaware
Court of Chancery or such other court in which such action or suit
was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Our
Charter limits the liability of our directors to the fullest extent
permitted by Delaware law. In addition, we have entered into
indemnification agreements with certain of our directors and
officers whereby we have agreed to indemnify those directors and
officers to the fullest extent permitted by law, including
indemnification against expenses and liabilities incurred in legal
proceedings to which the director or officer was, or is threatened
to be made, a party by reason of the fact that such director or
officer is or was a director, officer, employee or agent of the
Company, provided that such director or officer acted in good faith
and in a manner that the director or officer reasonably believed to
be in, or not opposed to, the best interests of the
Company.
We have
director and officer liability insurance to cover liabilities our
directors and officers may incur in connection with their services
to us, including matters arising under the Securities Act. Our
Charter and Bylaws also provide that we will indemnify our
directors and officers who, by reason of the fact that he or she is
one of our officers or directors of our company, is involved in any
action, suit or proceeding, whether civil, criminal, administrative
or investigative, related to their board role with the
company.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been
advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the 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, we will, unless in the opinion of our counsel the
matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such
indemnification by us is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of
such issue.
WHERE YOU CAN FIND MORE
INFORMATION
We are
subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith file
annual, quarterly and current reports, proxy statements and other
information with the SEC. The SEC maintains a website that contains
reports, proxy and information statements and other information
regarding registrants that file electronically with the SEC. The
address of the SEC’s website is www.sec.gov.
We make
available free of charge on or through our website at
www.pioneerpowersolutions.com, our Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and
amendments to those reports filed or furnished pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended,
as soon as reasonably practicable after we electronically file such
material with or otherwise furnish it to the SEC.
We have
filed with the SEC a registration statement under the Securities
Act, relating to the offering of these securities. The registration
statement, including the attached exhibits, contains additional
relevant information about us and the securities. This prospectus
does not contain all of the information set forth in the
registration statement. You can obtain a copy of the registration
statement for free at www.sec.gov. The registration statement and
the documents referred to below under “Incorporation of
Certain Information By Reference” are also available on our
website, www.azurrx.com.
We have
not incorporated by reference into this prospectus the information
on our website, and you should not consider it to be a part of this
prospectus.
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
The following documents filed with the SEC are incorporated by
reference into this prospectus:
● our Annual Report on Form 10-K for the year ended December
31, 2020, filed with the SEC on March 31, 2021;
● our Quarterly Report on Form 10-Q for the period ended
March 31, 2021, filed with the SEC on May 24, 2021;
● our Current Report on Form 8-K, filed with the SEC on
January 4, 2021 (as amended on January 13, 2021), January 5, 2021,
January 8, 2021, February 16, 2021, February 25, 2021 and March 10,
2021 (other than any portion thereof deemed furnished and not
filed);
● 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 with the SEC on August 8, 2016, including any
amendment or reports filed for the purposes of updating this
description, including Exhibit 4.1 to our Annual Report on Form
10-K for the year ended December 31, 2020, filed with the SEC on
March 31, 2021.
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.
Up to $50,000,000
COMMON STOCK
AzurRx BioPharma, Inc.
PROSPECTUS SUPPLEMENT
H.C. Wainwright & Co.
June 2, 2021
AzurRx BioPharma (NASDAQ:AZRX)
Historical Stock Chart
From Mar 2024 to Apr 2024
AzurRx BioPharma (NASDAQ:AZRX)
Historical Stock Chart
From Apr 2023 to Apr 2024
