S-3MEF

As filed with the Securities and Exchange Commission on May 1, 2018

Registration No. 333-               

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form S-3

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 ofincorporation or organization)	(I.R.S. EmployerIdentification No.)

AzurRx BioPharma, Inc. 760 Parkside Avenue Downstate Biotechnology Incubator, Suite 304 Brooklyn, New York 11226 (646) 699-7855	Johan M. (Thijs) Spoor President and Chief Executive Officer AzurRx BioPharma, Inc. 760 Parkside Avenue Downstate Biotechnology Incubator, Suite 304 Brooklyn, New York 11226 (646) 699-7855
(Address, including zip code, and telephone number, including area code of Registrant’s principal executive offices),	(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies of all communications, including all communications sent to the agent for service, should be sent to:

Johan M. (Thijs) Spoor

President and Chief Executive Officer

AzurRx BioPharma, Inc.

760 Parkside Avenue

Downstate Biotechnology Incubator, Suite 304

Brooklyn, New York 11226

(646) 699-7855

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

Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☒   File No. 333-221275

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐

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	☐
(Do not check if a smaller reporting company)
		Emerging growth 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 pursuant to Section 7(a)(2)(B) of the Securities Act.			☐

CALCULATION OF REGISTRATION FEE

Title of each class ofsecurities to be registered	Proposed maximum aggregate offering price(1)	Amount of registration fee(2)
Common Stock, par value $0.0001 per share
Total	$400,000.00	$49.80

(1)

The Registrant previously registered the securities at an aggregate initial offering price not to exceed $10,000,000 on Registration Statement Form S-3 (File No. 333-221275), which was declared effective on November 17, 2017. In accordance with Rule 462(b) promulgated under the Securities Act of 1933, as amended, and certain interpretations by the U.S. Securities and Exchange Commission, an additional amount of securities $400,000 having a proposed maximum aggregate offering price of no more than 20% of the remaining amount $10,000,000 of the offering price of the securities eligible to be sold under the above referenced Registration Statement is hereby registered.

(2)

The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act.

This registration statement shall become effective upon filing with the U.S. Securities and Exchange Commission in accordance with Rule 462(b) under the Securities Act.

EXPLANATORY NOTE

This registration statement is being filed pursuant to Rule 462(b) and General Instruction IV to Form S-3, both as promulgated under the Securities Act of 1933, as amended, to register additional shares of our common stock, par value $0.0001 per share, with an aggregate public offering price not to exceed $400,000. This registration statement relates to our registration statement on Form S-3 (File No. 333-221275), which was originally filed with the Securities and Exchange Commission on November 1, 2017, and declared effective by the Securities and Exchange Commission on November 17, 2017. In accordance with Rule 462(b), this registration statement incorporates by reference the contents of our registration statement on Form S-3 (File No. 333-221275), including all amendments, supplements and exhibits thereto and all information incorporated by reference therein, other than the exhibits included herein.  The required opinion and consents are listed on the Exhibit Index attached to and filed with this registration statement.

EXHIBIT INDEX

ExhibitNo.	Description
5.1*	Opinion of Disclosure Law Group, a Professional Corporation
23.1*	Consent of Independent Registered Public Accounting Firm – Mazars USA LLP
23.2*	Consent of Disclosure Law Group, a Professional Corporation (included in Exhibit 5.1)
24.1**	Power of Attorney (included on signature page to the Company’s Registration Statement on Form S-3 filed with the Securities and Exchange Commission on November 1, 2017 (File No. 333-221275)).

*     Filed herewith.

**   Previously filed with the Registration Statement on Form S-3 (File No. 333-221275) filed with the Securities and Exchange Commission on November 1, 2017.

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-3 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 May 1, 2018.

AZURRX BIOPHARMA, INC.
By:	/s/ Johan M. (Thijs) Spoor
	Johan M. (Thijs) Spoor
	President and 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 date indicated.

s/ Johan M. (Thijs) Spoor	President, Chief Executive Officer and Director	May 1, 2018
Johan M. (Thijs) Spoor	(principal executive officer)
/s/ Maged Shenouda	Chief Financial Officer and Director	May 1, 2018
Maged Shenouda	(principal financial and accounting officer)
/s/ *	Chairman of the Board of Directors	May 1, 2018
Edward J. Borkowski
/s/ *	Director	May 1, 2018
Alastair Riddell
/s/ *	Director	May 1, 2018
Charles Casamento
/s/ *	Director	May 1, 2018
Vern Lee Schramm

By:	/s/ Johan M. (Thijs) Spoor
Johan M. (Thijs) Spoor Attorney-in-Fact

EX-5.1

  Exhibit 5.1

May 1, 2018

AzurRx BioPharma, Inc.

760 Parkside Avenue

Downtown Biotechnology Incubator, Suite 304

Brooklyn, NY 11226

Re:    Registration Statement on Form S-3

Ladies and Gentlemen:

We have acted as counsel to AzurRx BioPharma, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-3 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 462(b) of Regulation C promulgated under the Securities Act of 1933, as amended (the “Securities Act”), relating to an aggregate of $400,000 of shares of common stock, par value $0.0001 per share (“Common Stock”), of the Company (the “Shares”).  The Registration Statement incorporates by reference the Registration Statement on Form S-3 (No. 333-221275), which was filed with the Commission on November 1, 2017 and was declared effective on November 17, 2017, including the prospectus which forms a part of such Registration Statement (the “Prospectus”), as supplemented from time to time by one or more prospectus supplements.

In connection with this opinion, we have examined and relied upon the Registration Statement and the Prospectus, the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect, and originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below.  As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought independently to verify such matters.

In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies thereof; and the accuracy, completeness and authenticity of certificates of public officials.

Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware. Our opinion is based on these laws as in effect on the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. We express no opinion as to whether the laws of any particular jurisdiction apply, and no opinion to the extent that any law other than that identified above is applicable to the subject matter hereof. We express no opinion to the extent that the laws of any other jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold in accordance with the Registration Statement and the Prospectus, will be validly issued, fully paid and nonassessable.

We consent to the reference to our firm under the caption “Legal Matters” in the Prospectus and to the filing of this opinion as an exhibit to the Registration Statement.

Very truly yours,

/s/ Disclosure Law Group

Disclosure Law Group, a Professional Corporation

EX-23.1

  Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 filed pursuant to Rule 462(b) under the Securities Act of 1933 of the reference to our firm under the caption “Experts” and to the incorporation by reference of our report dated March 16, 2018, related to the consolidated financial statements of AzurRx BioPharma, Inc. as of December 31, 2017 and 2016 and for the years then ended, which appears in the Annual Report on Form 10-K of AzurRx BioPharma, Inc. for the year ended December 31, 2017. The report for AzurRx BioPharma, Inc. includes an explanatory paragraph about the existence of substantial doubt concerning its ability to continue as a going concern.

/s/ Mazars USA LLP

New York, New York

May 1, 2018