As filed with the Securities and Exchange Commission on October 3,
2017
Registration
No. 333- _______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AZURRX BIOPHARMA, INC.
(Exact name of registrant as specified in its charter)
|
|
|
|
|
Delaware
|
|
46-4993860
|
|
(State or Other Jurisdiction of
|
|
(I.R.S. Employer
|
|
Incorporation or Organization)
|
|
Identification No.)
|
760 Parkside Avenue
Downstate Biotechnology Incubator, Suite 304
Brooklyn, New York 11226
(Address of Principal Executive Offices)
Amended and Restated 2014 Omnibus Equity Incentive
Plan
(Full title of the plan)
Johan M. (Thijs) Spoor, President and Chief Executive
Officer
AzurRx BioPharma, Inc.
760 Parkside Avenue
Downstate Biotechnology Incubator, Suite 304
Brooklyn, New York 11226
(Name and address of agent for service)
(646) 699-7855
(Telephone number, including area code, of agent for
service)
Copies to:
Daniel W. Rumsey, Esq.
Jessica R. Sudweeks, Esq.
Disclosure Law Group,
a Professional Corporation
600 West Broadway, Suite 700
San Diego, California 92101
Tel: (619) 272-7050
Fax: (619) 330-2101
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2
of the Exchange Act.
|
Large
accelerated filer [ ]
|
Accelerated
filer [ ]
|
|
Non-accelerated
filer [ ]
|
Smaller
reporting company [ ]
|
|
|
Emerging
growth company [X]
|
(Do not check if a smaller reporting company)
If
an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION OF REGISTRATION FEE
|
Title
of Securities to be Registered
|
Amount
to be Registered
(1)
|
Proposed
Maximum Offering Price per Share
|
Proposed
Maximum Aggregate Offering Price
|
Amount
of Registration Fee
|
|
Common Stock, $0.0001 par value per share, issuable
pursuant to
|
|
|
|
|
|
the Amended and
Restated 2014 Omnibus Equity Incentive Plan
|
1,542,087
|
$
3.745
(2)
|
$
5,775,115.82
(2)
|
$
719.00
|
|
(1)
|
In
accordance with Rule 416 under the Securities Act of 1933, as
amended, this registration statement shall also be deemed to cover
any additional securities that may from time to time be offered or
issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
|
|
(2)
|
Estimated
solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and (h) under the
Securities Act of 1933, as amended.
|
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
AzurRx BioPharma, Inc.
(the “
Registrant
”)
files this Registration Statement on Form S-8 in connection with
the Registrant’s Amended and Restated 2014 Omnibus Equity
Incentive Plan (the “
Plan
”).
The documents containing the information specified in Part I of
Form S-8 will be sent or given to each participant in the Plan as
specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the “
Securities
Act
”). These
documents and the documents incorporated by reference herein
pursuant to Item 3 of Part II hereof, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act. Such documents are not filed as part of this
Registration Statement in accordance with the Note to Part I of the
Form S-8 Registration Statement
.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation of Documents by Reference
The following
documents, which have been previously filed by the Registrant with
the Securities and Exchange Commission (the
“
SEC
”),
are hereby incorporated by reference in this Registration
Statement:
|
(a)
|
The
Registrant’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2016, as filed with the SEC on March 31,
2017;
|
|
(b)
|
The
Registrant’s Quarterly Report on Form 10-Q for the quarter
ended March 31, 2017, as filed with the SEC on May 15,
2017;
|
|
(c)
|
The
Registrant’s Quarterly Report on Form 10-Q for the quarter
ended June 30, 2017, as filed with the SEC on August 14,
2017;
|
|
(d)
(e)
(f)
(g)
(h)
|
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on March 2, 2017;
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on March 9, 2017;
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on April 12, 2017;
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on April 12, 2017;
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on May 2, 2017;
|
|
(i)
(j)
(k)
(l)
(m)
(n)
|
The
Registrant’s
Current Report on Form 8-K, as filed with the SEC on June 9,
2017;
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on June 15, 2017;
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on August 11, 2017;
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on September 28, 2017;
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on October 2, 2017; and
The
description of the Company’s Common Stock contained in the
Company’s Registration Statement on Form 8-A (File No.
001-37853), filed with the SEC on August 8, 2016.
|
Until such time that a post-effective amendment to
this Registration Statement has been filed which indicates that all
securities offered hereby have been sold or which deregisters all
securities remaining unsold at the time of such amendment, all
documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the “
Exchange
Act
”), shall be deemed to
be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any
statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any
subsequently filed document which is also deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this
Registration Statement.
Item 4.
Description of Securities
Not
applicable.
Item 5.
Interests of Named Experts and Counsel
Not
applicable.
Item 6.
Indemnification of Directors and Officers
The Registrant’s Amended and Restated
Certificate of Incorporation (the “
Certificate of
Incorporation
”) provides,
to the fullest extent permitted by the Section 145 of the
Delaware General Corporation Law, that the Registrant’s
directors or officers shall not be personally liable to either to
the Registrant or its shareholders for damages for breach of such
director’s or officer’s fiduciary duty. The effect of
this provision of the Certificate of Incorporation is to eliminate
the rights of the Registrant and its shareholders (through
shareholders’ derivative suits on behalf of the Registrant)
to recover damages against a director or officer for breach of the
fiduciary duty of care as a director or officer (including breaches
resulting from negligent or grossly negligent behavior), except
under certain situations defined by statute. The Registrant
believes that the indemnification provisions in the Certificate of
Incorporation are necessary to attract and retain qualified persons
as directors and officers.
The Registrant’s Bylaws also provide that
its Board of Directors (the “
Board
”) may also authorize the indemnification
our employees or agents, and to advance the reasonable expenses of
such persons, to the same extent, following the same
determinations, and upon the same conditions as are required for
the indemnification of, and advancement of, expenses to the
Registrant’s directors and officers. As of the date of this
Registration Statement, the Board has not extended indemnification
rights to persons other than directors and
officers.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, employees or other persons
controlling the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has 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.
Item 7.
Exemption from Registration Claimed
Not
applicable.
Item 8.
Exhibits
|
Exhibit
No.
|
|
Document Description
|
|
Incorporation by Reference
|
|
|
|
Opinion
and Consent of Disclosure Law Group, a Professional
Corporation
|
|
Filed
herewith.
|
|
|
|
|
|
|
|
Consent
of
Mazars USA LLP
|
|
Filed
herewith.
|
|
|
|
|
|
|
|
|
|
Consent
of Disclosure Law Group, a Professional Corporation (included as
part of Exhibit 5.1)
|
|
Filed
herewith.
|
|
|
|
|
|
|
|
Amended
and Restated 2014 Omnibus Equity Incentive Plan
|
|
Incorporated
by reference from Exhibit 10.3 to the Company’s Registration
Statement on Form S-1, filed July 13, 2016.
|
Item 9.
Undertakings
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the
Securities Act; and
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) To
include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement; and
(2) That,
for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof; and
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has 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, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Brooklyn,
State of New York, on October 3, 2017.
|
|
|
AzurRx BioPharma, Inc.
|
|
|
|
By:
/s/ Johan M. (Thijs)
Spoor
|
|
Name:
Johan M. (Thijs) Spoor
|
|
Title:
Chief Executive Officer
|
Pursuant
to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title(s)
|
|
Date
|
|
|
|
|
|
/s/ Johan M.
(Thijs) Spoor
Johan
M. (Thijs) Spoor
|
|
President, Chief
Executive Officer and Director
|
|
October 3,
2017
|
|
|
|
|
|
/s/ Maged
Shenouda
Maged
Shenouda
|
|
Director, Chief
Financial Officer
|
|
October 3,
2017
|
|
|
|
|
|
/s/ Edward J.
Borkowski
Edward
J. Borkowski
|
|
Chairman of the
Board of Directors
|
|
October 3,
2017
|
|
|
|
|
|
/s/ Alastair
Riddell
Alastair
Riddell
|
|
Director
|
|
October 3,
2017
|
|
|
|
|
|
/s/ Charles
Casamento
Charles
Casamento
|
|
Director
|
|
October 3,
2017
|
|
|
|
|
|
|
|
/s/ Vern
Schramm
Vern
Schramm
|
|
Director
|
|
October 3,
2017
|
Exhibit
5.1
OPINION AND CONSENT OF DISCLOSURE LAW GROUP, A PROFESSIONAL
CORPORATION
October 3, 2017
AzurRx
BioPharma Inc.
760 Parkside Ave.
Downstate Biotechnology Incubator, Suite 304
Brooklyn, NY 11226
|
|
Re:
|
Registration
Statement on Form S-8 for AzurRx BioPharma Inc.
|
Ladies and Gentlemen:
We have acted as counsel to
AzurRx
BioPharma Inc
., a Delaware corporation
(the “
Company
”), in connection with the Form S-8
Registration Statement (the “
Registration
Statement
”) filed by the
Company with the Securities and Exchange Commission (the
“
Commission
”) registering under the Securities Act of
1933, as amended (the “
Act
”), 1,542,087 shares of the Company’s
common stock, par value $0.0001 per share (the
“
Common
Stock
”), to be issued
pursuant to the Company’s Amended and Restated 2014 Omnibus
Equity Incentive Plan (the “
Plan
”).
We
have examined copies of such corporate records and made such
inquiries as we have deemed necessary for purposes of rendering the
opinion set forth below.
Based
upon the foregoing, in our opinion, the shares of Common Stock to
be issued by the Company when issued in the manner contemplated by
the Plan will be, legally issued, fully paid and
non-assessable.
In
rendering the opinion set forth above, we express no opinion as to
the laws of any jurisdiction other than Delaware’s General
Corporation Law and the federal laws of the United States of
America.
We
hereby consent to the filing of a copy of this opinion with the
Commission as an exhibit to the Registration
Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of
the Commission thereunder.
|
|
|
|
|
Very
truly yours,
|
|
|
|
|
|
/s/
Disclosure Law Group
|
|
|
Disclosure Law
Group, a Professional Corporation
|