UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
 
FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
 
Date of report (Date of earliest event reported):  December 31, 2020
 
Commission File Number: 001-37853
 
AzurRx BioPharma, Inc.
(Exact name of registrant as specified in its charter.)
 
Delaware
(State or other jurisdiction of incorporation or organization)
 
46-4993860
(IRS Employer Identification No.)
 
1615 South Congress Avenue, Suite 103
Delray Beach, Florida 33445
 (Address of principal executive offices)
 
646-699-7855
(Registrant's Telephone number)
 
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR 240.12b-2)
Emerging growth company [X]
 
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 pursuant to Section 13(a) of the Exchange Act. [ ]
 
Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class
Trading Symbol(s)
Name of exchange on which registered
Common Stock, par value $0.0001 per share
AZRX
Nasdaq Capital Market
 
 

 
 
 
Item 8.01. Other Events
 
Reference is made to the Form 8-K filed by AzurRx BioPharma, Inc. (the “Company”) on January 4, 2021, which is incorporated herein by reference (the “Prior 8-K”), relating to the issuance, in a Registered Direct Offering and concurrent Private Placement, of certain shares of Series C Preferred Stock, together with certain Private Placement Warrants, at a combined price per share of Series C Preferred Stock and related Private Placement Warrants of $750.00. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Prior 8-K.
 
The securities issued in the Registered Direct Offering were issued pursuant to a prospectus supplement, dated December 31, 2020, filed by the Company on January 5, 2021, to the registration statement on Form S-3 (File No. 333-231954) that the Company filed with the Securities and Exchange Commission on June 21, 2019 and that was declared effective on June 25, 2019, and a base prospectus thereunder (the “Registration Statement”). The Company is filing herewith the legal opinion of Lowenstein Sandler LLP relating to the legality of the issuance and sale of the securities in the Registered Direct Offering attached as Exhibit 5.1 to this Current Report on Form 8-K as an exhibit to the Registration Statement.
 
Item 9.01. Financial Statements and Exhibits.
 
 
(d)
Exhibits.
 
Exhibit No.
Description
5.1
Opinion of Lowenstein Sandler LLP.
Consent of Lowenstein Sandler LLP (contained in Exhibit 5.1) 
 
 
 
 
 
 
 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
AzurRx BioPharma, Inc.
Date:   January 5, 2021
By:
/s/ James Sapirstein
Name: James Sapirstein
Title: President and Chief Executive Officer
 
 
 
 
 
 Exhibit 5.1
December 31, 2020
 
AzurRx BioPharma, Inc.
1615 South Congress Avenue, Suite 103
Delray Beach, Florida 33445
 
Ladies and Gentlemen:
 
We have acted as counsel to AzurRx BioPharma, Inc., a Delaware corporation (the “Company”), in connection with (i) the preparation and filing of the Registration Statement on Form S-3 (Registration No. 333-231954) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), (as so filed and as amended, the “Registration Statement”) and the related prospectus contained in the Registration Statement (the “Base Prospectus”) and (ii) the preparation and filing of the prospectus supplement, dated December 31, 2020 (the “Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”) relating to the issuance and sale by the Company of (i) 5,333.3333 shares (the “Preferred Shares”) of Series C 9.00% Convertible Junior Preferred Stock, par value $0.0001, of the Company (the “Series C Preferred Stock”), (ii) up to 5,333,334 shares (the “Conversion Shares”) of common stock, par value $0.0001, of the Company (the Common Stock”), which may be issued upon conversion of the Preferred Stock, (iii) pre-funded warrants to purchase up to 5,333,334 shares of Common Stock (each a “Pre-Funded Warrant,” and each share of Common Stock underlying a Pre-Funded Warrant, a “Pre-Funded Warrant Share”), which may be issued in lieu of Common Stock upon conversion of the Preferred Shares in the circumstances described in the Registration Statement and Prospectus.
 
The Preferred Shares, the Conversion Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares are to be issued and sold by the Company pursuant to the Securities Purchase Agreement, dated as of December 31, 2020 (the “Purchase Agreement”), between the Company and the purchaser signatory thereto, the form of which will be filed with the Commission as Exhibit 10.1 to the Company’s Current Report on Form 8-K, to be filed in connection with the transactions effected by the Purchase Agreement.
 
In connection with this opinion, we have (i) investigated such questions of law, (ii) examined originals or certified, conformed or reproduction copies of such agreements, instruments, documents and records of the Company, such certificates of public officials and such other documents and (iii) received such information from officers and representatives of the Company as we have deemed necessary or appropriate for the purposes of this opinion
 
In all such examinations, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of original and certified documents and the conformity to original or certified documents of all copies submitted to us as conformed or reproduction copies. As to various questions of fact relevant to the opinion expressed herein, we have relied upon, and assume the accuracy of, the representations and warranties set forth in the Purchase Agreement, and certificates and oral or written statements and other information of or from public officials and officers and representatives of the Company.
 
Based on the foregoing, and subject to the assumptions, limitations and qualifications stated herein, we are of the opinion that (i) the Preferred Shares have been duly authorized and, when issued and paid for in accordance with the terms of the Purchase Agreement, will be validly issued, fully paid and non-assessable, (ii) the Conversion Shares have been duly authorized and, when issued upon conversion of the Preferred Shares in accordance with the terms thereof, will be validly issued, fully paid and non-assessable, (iii) the Pre-Funded Warrants have been duly authorized and, when executed and delivered by the Company upon conversion of the Preferred Shares in accordance with the terms thereof, will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency or other similar laws affecting creditors’ rights and to general equitable principles, and (iv) the Pre-Funded Warrant Shares have been duly authorized and, when issued and paid for upon exercise of the Pre-Funded Warrants in accordance with the terms thereof, will be validly issued, fully paid and non-assessable.
 
The opinion expressed herein is limited to the General Corporation Law of the State of Delaware (including reported judicial decisions interpreting the General Corporation Law of the State of Delaware) and the applicable laws of the State of New York.
 
The opinion expressed herein is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated herein. We undertake no obligation to supplement this letter if any applicable laws change after the date hereof or if we become aware of any facts that might change the opinion expressed herein after that date or for any other reason.
 
We hereby consent to the inclusion of this opinion as an exhibit to a Current Report on Form 8-K to be filed by the Company with the Commission, which Current Report on Form 8-K will be incorporated by reference into the Registration Statement, and to the references to our firm under the caption “Legal Matters” in the Prospectus Supplement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
 
 
 
Very truly yours,
 
/s/ Lowenstein Sandler LLP
Lowenstein Sandler LLP