As filed with the Securities and Exchange Commission on October 10,
2017
Registration No. 333-220781
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST
EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AZURRX BIOPHARMA, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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46-4993860
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(State or Other Jurisdiction of
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(I.R.S. Employer
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Incorporation or Organization)
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Identification No.)
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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.
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Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [ ]
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Smaller
reporting company [ ]
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Emerging
growth company [X]
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(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
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Title
of Securities to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum Offering Price per Share
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Proposed
Maximum Aggregate Offering Price
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Amount
of
Registration
Fee
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Common Stock, $0.0001 par value per share, issuable
pursuant to
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the Amended and
Restated 2014 Omnibus Equity Incentive Plan
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1,542,087
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$
3.745
(2)
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$
5,775,115.82
(2)
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$
719.00
(3)
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(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 Amendment No. 1 to the Registrant's Registration
Statement on Form S-8 (
“
Amended
Registration Statement
”
)
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
Amended Registration Statement in accordance with the Note to Part
I of this Amended 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 Amended Registration
Statement:
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(a)
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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;
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(b)
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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;
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(c)
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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;
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(d)
(e)
(f)
(g)
(h)
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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;
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(i)
(j)
(k)
(l)
(m)
(n)
(o)
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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;
The
Registrant’s Current Report on Form 8-K, as filed with the
SEC on October 6, 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.
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Until such time that a post-effective amendment to
this Amended 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
Amended
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
Amended
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
Amended
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
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Exhibit
No.
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Document Description
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Incorporation by Reference
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Opinion and Consent of Disclosure Law Group, a Professional
Corporation
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Previously Filed
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Consent of Mazars USA LLP
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Filed herewith.
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Consent of Disclosure Law Group, a Professional Corporation
(included as part of Exhibit 5.1)
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Previously Filed
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Amended and Restated 2014 Omnibus Equity Incentive
Plan
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Incorporated by reference from Exhibit 10.3 to the Company’s
Registration Statement on Form S-1, filed July 13,
2016.
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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 10, 2017.
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AzurRx BioPharma, Inc.
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By:
/s/ Johan M. (Thijs)
Spoor
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Name:
Johan M. (Thijs) Spoor
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Title:
Chief Executive Officer
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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.
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Signature
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Title(s)
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Date
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/s/ Johan M.
(Thijs) Spoor
Johan
M. (Thijs) Spoor
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President, Chief
Executive Officer and Director
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October 10,
2017
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/s/ Maged
Shenouda
Maged
Shenouda
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Director, Chief
Financial Officer
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October 10,
2017
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/s/ Edward J.
Borkowski
Edward
J. Borkowski
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Chairman of the
Board of Directors
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October 10,
2017
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/s/ Alastair
Riddell
Alastair
Riddell
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Director
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October 10,
2017
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/s/ Charles
Casamento
Charles
Casamento
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Director
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October 10,
2017
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