Exhibit 10.2





 






  
Exhibit
10.2


 




 


December ___,
2017


 


[Holders’
names and addresses]


 



Re:           


Reprice Offer of Common Stock Purchase Warrants






 


To Whom
It May Concern:


 


AzurRx
BioPharma, Inc. (the “Company”) is pleased to offer to
you the opportunity to reprice the exercise of the common stock
purchase warrants set forth on the signature page hereto (the
“Reprice
Warrants”), which represents at least one-half of the
common stock purchase warrants to purchase shares of the
Company’s common stock, par value $0.0001 per share
(“Common
Stock”), currently held by you (the
“Holder”),
which Reprice Warrants may include Common Stock purchase warrants
first issued on or about June 5, 2017 that have an exercise price
of $4.00 per share and are set to expire on December 31, 2017 (the
“$4.00
Warrants”). The Reprice Warrants, the Remaining
Warrants (defined below) and the shares of common stock, par value
$0.0001 per share (“Common
Stock”), underlying the Reprice Warrants and the
Remaining Warrants (“Warrant
Shares”) have been registered pursuant to registration statement on
Form S-1 (File No. 333-219385) (the “Registration Statement”). The
Registration Statement is currently effective and, upon exercise of
the Reprice Warrants and the Remaining Warrants, will be effective
for the issuance of the Warrant Shares. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Warrant Agreement, dated
as of ________, 20__, between the Company and the Holder
(“Warrant
Agreement”), pursuant
to which the Company issued warrants (the
“Warrants”),
including the Reprice Warrants and the Remaining
Warrants.


 


In
consideration for the exercise of the Reprice Warrants (each, a
“Warrant
Exercise”), the Company hereby offers you a reduced
exercise price of the Reprice Warrants to $2.50 (the “Reduced Price”) from the date
hereof until January 7, 2018 (such period, the “Exercise Period”); provided, however, the Exercise Period will not
extend the expiration date of the $4.00 Warrants past December 31,
2017. The Holder may exercise the Reprice Warrants at any time and
from time to time during the Exercise Period, or, in the case of
the $4.00 Warrants, on or before December 31, 2017, but the Holder
is under no obligation to exercise any of the Reprice Warrants. By
executing this letter agreement, the Holders acknowledges that the
Company is only offering the Reduced Exercise Price in
consideration for exercising at least one-half of the Common Stock
purchase warrants currently held by the Holder.


 


In
addition, the Company hereby offers to amend each of your Common
Stock purchase warrants that are not Reprice Warrants (the
“Remaining
Warrants”), to reduce the applicable exercise price
thereof to $3.25 per share. A list of the Remaining Warrants is set
forth on the signature page hereto.


 


In
connection with the transactions described herein, the Company
agrees to the representations, warranties and covenants set forth
on Annex A attached
hereto.


 


If this
Offer is accepted and this letter agreement is executed on or
before 8:00 a.m. (New York City time) on January 7, 2018 and the
aggregate Exercise Price for all Reprice Warrants is received by
the Company, then the Company shall file a Current Report on Form
8-K with the Securities and Exchange Commission within four (4)
trading days of receiving such funds disclosing all material terms
of the transactions contemplated hereunder, including a form of
this agreement as an exhibit thereto (“8-K Filing”). The Company shall
file a prospectus supplement to the Registration Statement with the
Securities and Exchange Commission disclosing the Reduced Price of
the Reprice Warrants and the amendment of the Remaining Warrants
within one (1) trading day following the 8-K Filing. From and after
the issuance of the 8-K Filing, the Company represents to the
Holder that it shall not be in possession of any material,
nonpublic information received from the Company, any of its
Subsidiaries or any of their respective officers, directors,
employees or agents that is not disclosed in the 8-K Filing. The
Company represents, warrants and covenants that, upon each Warrant
Exercise, all of the Warrant Shares shall be delivered
electronically through the Depository Trust Company within ten (10)
business day of the date the Company receives the aggregate
Exercise Price (or, with respect to shares of Common Stock that
would otherwise be in excess of the Beneficial Ownership
Limitation, within ten (10) business day of the date the Company is
notified by Holder that its ownership is less than the Beneficial
Ownership Limitation). Except as set forth herein, the terms of the
Reprice Warrants and the Remaining Warrants, including but not
limited to the obligations to deliver the Warrant Shares, shall
remain in effect. In the event any conflicts between this letter
agreement and the terms and conditions set forth in any Reprice
Warrant or Remaining Warrant arise, the terms and conditions set
forth in this letter agreement shall control.


 


The
Company acknowledges and agrees that the obligations of the Holder
under this letter agreement are several and not joint with the
obligations of any other holder of Common Stock purchase Warrants
of the Company (each, an “Other Holder”) under any other
agreement related to the exercise of such Warrants
(“Other Warrant Exercise
Agreement”), and the Holder shall not be responsible
in any way for the performance of the obligations of any Other
Holder or under any such Other Warrant Exercise Agreement. Nothing
contained in this letter agreement, and no action taken by the
Holder pursuant hereto, shall be deemed to constitute the Holder
and the Other Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that
the Holder and the Other Holders are in any way acting in concert
or as a group with respect to such obligations or the transactions
contemplated by this letter agreement and the Company acknowledges
that the Holder and the Other Holders are not acting in concert or
as a group with respect to such obligations or the transactions
contemplated by this letter agreement or any Other Warrant Exercise
Agreement. The Company and the Holder confirm that the Holder has
independently participated in the negotiation of the transactions
contemplated hereby with the advice of its own counsel and
advisors. The Holder shall be entitled to independently protect and
enforce its rights, including, without limitation, the rights
arising out of this letter agreement, and it shall not be necessary
for any Other Holder to be joined as an additional party in any
proceeding for such purpose.


 


 


 



***************


 

 





760 Parkside Avenue Downstate Biotechnology Incubator Suite 304
Brooklyn, NY 11226



646-699-7855 info@azurrx.com


 

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To
accept this offer, Holder must counter execute this letter
agreement and return the fully executed agreement to the Company at
e-mail: ________, attention: _______, on or before 8:00 am (New
York City time) on _________, 20__.


 


Please
do not hesitate to call me if you have any questions.


 


Sincerely
yours,


 


AZURRX
BIOPHARMA, INC.


 


By:
______________________


Name:
Johan M. (Thijs) Spoor


Title:
President and Chief Executive Officer


 


 


Accepted
and Agreed to:


 


Name of
Holder:
________________________________________________________


Signature of Authorized Signatory of
Holder: _________________________________


Name of
Authorized Signatory:
_______________________________________________


Title
of Authorized Signatory:
________________________________________________


Aggregate
Exercise Price to be delivered to the Company:
__________________________


 


DTC
Instructions:


 


 


 


 



Reprice Warrants:


 


	

Warrant
No.

	
 

	

Issuance
Date

	
 

	

Expiration
Date

	
 

	

No. of
Warrant Shares

	
 

	

Original
Exercise Price


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 







 


 


 


 


 



Remaining Warrants:


 


	

Warrant
No.

	
 

	

Issuance
Date

	
 

	

Expiration
Date

	
 

	

No. of
Warrant Shares

	
 

	

Original
Exercise Price


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 

	
 







 


 


 



 

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Annex A


 


Representations, Warranties and
Covenants of the Company. The Company hereby makes the
following representations and warranties to the
Holder:


 


(a) Registration
Statement. The Warrant Shares
are registered for issuance on a Registration Statement on Form S-1
(File No. 333-219385) (the “Registration
Statement”) and the
Company knows of no reasons why such registration statement shall
not remain available for the issuance and resale of such Warrant
Shares for the foreseeable future. The Company shall use
commercially reasonable efforts to keep the Registration Statement
effective and available for use by the Holder until all Warrant
Shares underlying the Reprice Warrants and the Remaining Warrants
are sold by the Holder.

 



(b)            Authorization;
Enforcement. The Company has
the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by this letter agreement
and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this letter agreement by
the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required
by the Company, its board of directors or its stockholders in
connection therewith. This letter agreement has been duly executed
by the Company and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally; (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or
other equitable remedies; and (iii) insofar as indemnification and
contribution provisions may be limited by applicable
law.

 



(c)            No
Conflicts. The execution,
delivery and performance of this letter agreement by the Company
and the consummation by the Company of the transactions
contemplated hereby do not and will not: (i) conflict with or
violate any provision of the Company’s certificate of
incorporation, bylaws or other organizational or charter documents;
or (ii) conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or
assets of the Company in connection with, or give to others any
rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any material
agreement, credit facility, debt or other material instrument
(evidencing Company debt or otherwise) or other material
understanding to which such Company is a party or by which any
property or asset of the Company is bound or affected; or (iii)
conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the
Company is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company is
bound or affected.

 



(d)            Nasdaq
Corporate Governance. The
transactions contemplated under this letter agreement, comply with
all rules of the Nasdaq Stock Market.

 


 


 





760 Parkside Avenue Downstate Biotechnology Incubator Suite 304
Brooklyn, NY 11226



646-699-7855 info@azurrx.com


 

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