Ex 10-1





 







Exhibit 10.1


 



MODIFICATION
TO



12% SENIOR SECURED ORIGINAL ISSUE DISCOUNT CONVERTIBLE
DEBENTURE


 

               
This MODIFICATION TO 12% SENIOR SECURED ORIGINAL ISSUE DISCOUNT
CONVERTIBLE DEBENTURE (“Modification”) is dated as of
this 10th
day of November, 2017, which Modification changes that certain
Senior Secured Original Issue Discount Convertible Debenture (this
“Debenture”) of
AzurRx BioPharma, Inc., a Delaware corporation, (the
“Company”),
dated as of April 11, 2017, issued to Lincoln Park Capital Fund,
LLC (“Holder”),
pursuant to that certain Securities Purchase Agreement, dated April
11, 2017, by and between the Company and Holder (the
“Purchase
Agreement”). Unless otherwise defined herein, defined
terms set forth in this Modification shall have the meanings set
forth in the Debenture.


 


For
good and valuable consideration, the receipt and suffiency of which
is hereby acknowledged, the Company and Holder agree as
follows:


 

1. Maturity Date. For and in
consideration for the issuance to Holder of 30,000 shares of the
Company’s common stock, $0.001 par value (“Shares”), which Shares shall be
issued to Holder on or before five (5) days from the date
hereof:


 

2.1 The definition of
the Maturity Date as set forth in the Debenture shall be November
29, 2017; and

 

2.2 Section 6 of
the Debenture shall be replaced in its entirety as
follows:


 


Section
6.                      Acceleration
and Extension of Maturity Date. The Maturity Date shall be
November 29, 2017, unless extended, at the election of the Company
to July 11, 2018, by written notice to the Holder on or before
November 27, 2017 (the “Extension Notice Date”),
together with the deliverables set forth in Section 2.2(b) of the
Purchase Agreement and so long as (A) the Company is not in default
under the terms of any of the Transaction Documents after receipt
of notice from the Holder of the same (subject to any cure
periods), and (B) subject to and in accordance with the terms
herein and in the Purchase Agreement.


 

2. Miscellaneous. The provisions
of the Debenture, as modified herein, shall remain in full force
and effect in accordance with its terms. The parties do not in any
way waive each party’s respective obligations to comply with
any of the provisions, covenants and terms of the Debenture (as
modified hereby), the Purchase Agreement, and the other agreements
referred to in the Debenture and the Purchase Agreement. To the
extent of any conflict between the Debenture and/or the Purchase
Agreement, and this Modification, the terms of this Modification
shall control. The Company hereby confirms that the Registration
Statement (File No. 333-219385) is effective and current and
available for use and sale by the Holder with respect to all of the
Holder’s Registerable Securities as defined in the
Registration Rights Agreement between the parties. The Company
agrees that it shall immediately notify Holder in the event the
Registration Statement is not current and available for use. In the
event that the Registration Statement is not current and available
for use by Holder for any 30 consecutive day period at any time
between the date hereof and July 31, 2018, and the Registerable
Securities are not otherwise freely tradable by Holder, then the
Company shall pay the Holder in cash on or before July 31, 2018, an
amount equal to 1.5% of the outstanding principal and interest owed
to Holder for each day that the Registerable securities are not
freely tradable by Holder. The Company shall file a current report
on Form 8-K with respect to this Modification within one business
day from the date hereof. This Modification shall be governed by
the laws of the State of Illinois without regard to the conflict of
laws provisions thereof.


 


 


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


 



(Signature Pages Follow)

 




 








 






 


IN
WITNESS WHEREOF, the parties have caused this Modification to be
duly executed as of day and year first above written.


 


	
 

	
 AZURRX
BIOPHARMA, INC.


	
 

	
 


	
 

	
 By:_/s/ Johan M.
Spoor________


	
 

	
 Name: Johan M.
Spoor


	
 

	
 Title: Chief
Executive Officer


	
 

	
 


	
 

	
 


	
 

	
 LINCOLN
PARK CAPITAL FUND, LLC


	
 

	
  


	
 

	
 BY:
LINCOLN PARK CAPITAL, LLC


	
 

	
 BY:ROCKLEDGECAPITAL
CORPORATION


	
 

	
 


	
 

	
 By:_/s/ Josh
Scheinfeld________


	
 

	
 Name: Josh
Scheinfeld


	
 

	
 Title:
President