As filed with the U.S. Securities and Exchange
Commission on January 10, 2025
Registration No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
OS THERAPIES INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware |
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82-5118368 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
| |
|
|
|
115 Pullman Crossing Road, Suite 103
Grasonville, Maryland |
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21638 |
| (Address of Principal Executive Offices) |
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(Zip Code) |
2023 Incentive Compensation Plan
(Full title of the plan)
Paul A. Romness, MPH
President and Chief Executive Officer
OS Therapies Incorporated
115 Pullman Crossing Road, Suite #103
Grasonville, Maryland 21638
(410) 297-7793
(Name, address, including zip code, and telephone number, including area code, of agent for service)
________________________
Copies to:
Spencer G. Feldman, Esq.
Olshan Frome Wolosky LLP
1325 Avenue of the Americas, 15th Floor
New York, New York 10019
(212) 451-2300
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
☐ |
Accelerated filer |
☐ |
| Non-accelerated filer |
☒ |
Smaller reporting company |
☒ |
| |
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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. ☐
EXPLANATORY NOTE
OS Therapies Incorporated (the “Registrant”)
adopted its 2023 Incentive Compensation Plan in April 2023. The maximum number of shares of common stock of the Registrant that are available
for issuance under the 2023 Incentive Compensation Plan is 4,000,000 shares. This registration statement on Form S-8 is being filed with
the Securities and Exchange Commission (the “SEC”) for the purpose of registering the maximum number of shares of the Registrant’s
common stock that may be issued under its 2023 Incentive Compensation Plan.
PART I. INFORMATION REQUIRED
IN THE SECTION 10(a) PROSPECTUS
The information specified by Items 1 and 2 of Part
I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 of the Securities Act of 1933, as amended (the
“Securities Act”), and the introductory Note to Part I of Form S-8.
The documents containing the information specified
in Part I of Form S-8 will be sent or given to participating employees as specified by Rule 428(b) of the Securities Act. Such 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.
PART II. INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The Registrant is subject to the informational
and reporting requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and in accordance therewith files reports and other information with the SEC. The following documents, which are on file with the SEC,
are incorporated in this Registration Statement by reference:
| (a) | The Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2024, filed with the SEC on May 20, 2024,
the fiscal quarter ended June 30, 2024, filed with the SEC on August 14, 2024, and the fiscal quarter ended September 30, 2024, filed
with the SEC on November 15, 2024; |
| (c) | The description of the Registrant’s common stock contained in the prospectus that forms a part of the Registrant’s Registration
Statement on Form S-1 (File No. 333-279839) initially filed with the SEC on May 30, 2024. |
All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (other than documents or information deemed to have
been “furnished” and not “filed”), after the date hereof and before the filing of a post-effective amendment that
indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold shall be deemed to
be incorporated by reference herein and to be part hereof from the date of filing those documents.
Any statement contained in any document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained herein or in any subsequently filed document which is or is deemed to be incorporated by reference
herein modifies or supersedes the statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this 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. |
Section 145 of the Delaware General Corporation
Law (the “DGCL”) authorizes a corporation to indemnify its directors and officers against liabilities arising out of actions,
suits and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served or are currently
serving as a director or officer to a corporation. The indemnity may cover expenses (including attorneys’ fees) judgments, fines
and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with any such action, suit or
proceeding. Section 145 permits corporations to pay expenses (including attorneys’ fees) incurred by directors and officers in advance
of the final disposition of such action, suit or proceeding. In addition, Section 145 provides that a corporation has the power to purchase
and maintain insurance on behalf of its directors and officers against any liability asserted against them and incurred by them in their
capacity as a director or officer, or arising out of their status as such, whether or not the corporation would have the power to indemnify
the director or officer against such liability under Section 145.
We have adopted provisions in our certificate of
incorporation and bylaws that limit or eliminate the personal liability of our directors to the fullest extent permitted by the DGCL,
as it now exists or may in the future be amended. Consequently, a director will not be personally liable to us or our stockholders for
monetary damages or breach of fiduciary duty as a director, except for liability for:
| ● | any breach of the director’s duty of loyalty to us or our stockholders; |
| ● | any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
| ● | any unlawful payments related to dividends or unlawful stock purchases, redemptions or other distributions; or |
| ● | any transaction from which the director derived an improper personal benefit. |
These limitations of liability do not alter director
liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.
In addition, our bylaws provide that:
| ● | we will indemnify our directors, officers and, in the discretion of our board of directors, certain employees to the fullest extent
permitted by the DGCL, as it now exists or may in the future be amended; and |
| ● | we will advance reasonable expenses, including attorneys’ fees, to our directors and, in the discretion
of our board of directors, to our officers and certain employees, in connection with legal proceedings relating to their service for or
on behalf of us, subject to limited exceptions |
We intend to enter into separate indemnification
agreements with each of our directors and executive officers. These agreements provide that we will indemnify each of our directors, our
executive officers and, at times, their affiliates to the fullest extent permitted by Delaware law. We will advance expenses, including
attorneys’ fees (but excluding judgments, fines and settlement amounts), to each indemnified director, executive officer or affiliate
in connection with any proceeding in which indemnification is available and we will indemnify our directors and officers for any action
or proceeding arising out of that person’s services as a director or officer brought on behalf of us or in furtherance of our rights.
Additionally, certain of our directors or officers may have certain rights to indemnification, advancement of expenses or insurance provided
by their affiliates or other third parties, which indemnification relates to and might apply to the same proceedings arising out of such
director’s or officer’s services as a director referenced herein. Nonetheless, we will agree in the indemnification agreements
that our obligations to those same directors or officers are primary and any obligation of such affiliates or other third parties to advance
expenses or to provide indemnification for the expenses or liabilities incurred by those directors are secondary.
We also maintain general liability insurance which
covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors
or officers, including liabilities under the Securities Act.
The underwriting agreement to be filed as an exhibit
to this registration statement is expected to provide for indemnification of us and our directors and officers by the underwriters against
certain liabilities under the Securities Act and the Exchange Act.
Delaware Law
Section 102 of the DGCL permits a corporation
to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach
of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate
law or obtained an improper personal benefit.
Section 145 of the DGCL provides that a corporation
has the power to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the request of the corporation
for another corporation, partnership, joint venture, trust or other enterprise in related capacities against expenses, including attorneys’
fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit
or proceeding to which he was or is a party or is threatened to be made a party to any threatened, ending or completed action, suit or
proceeding by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was
unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification will be made with respect
to any claim, issue or matter as to which such person will have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or
such other court will deem proper.
Third Amended and Restated Certificate of Incorporation
Our third amended and restated certificate of incorporation
provides that we are authorized to provide indemnification and advancement of expenses to our directors, officers and certain other covered
persons to the fullest extent permitted by the DGCL. Our certificate of incorporation limits the personal liability of directors
for breach of fiduciary duty to the maximum extent permitted by the DGCL and provides that no director will have personal liability to
us or to our stockholders for monetary damages for breach of fiduciary duty or other duty as a director. However, these provisions will
not eliminate or limit the liability of any of our directors for:
| ● | for any breach of the director’s duty of loyalty to us or our stockholders; |
| ● | for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
| ● | for voting for or assenting to unlawful payments of dividends, stock repurchases or other distributions; or |
| ● | for any transaction from which the director derived an improper personal benefit. |
In addition, our third amended and restated certificate
of incorporation provides that we will indemnify each person who was or is a party or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, other than an action by or in the right of us, by reason of the fact that such person
is or was a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee, general
partner, agent or fiduciary of another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred
to as an “Indemnitee”), against all expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or proceeding, if such Indemnitee acted in good faith and in a manner
he or she reasonably believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding,
he or she had no reasonable cause to believe his or her conduct was unlawful.
Indemnification Agreements
We intend to enter into separate indemnification
agreements with each of our directors and executive officers. These indemnification agreements may require us, among other things, to
indemnify our directors and officers for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred
by a director or officer in any action or proceeding arising out of his or her service as one of our directors or officers, or any of
our subsidiaries or any other company or enterprise to which the person provides services at our request.
We intend to apply for a general liability insurance
policy that covers certain liabilities of our directors and officers arising out of claims based on their acts or omissions committed
in their capacities as directors or officers.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| (1) | Incorporated herein by reference to the Registrant’s
Registration Statement on Form S-1 filed May 30, 2024 (File No. 333-279839). |
| (2) | Incorporated herein by reference to Amendment No. 1 to the
Registrant’s Registration Statement on Form S-1 filed June 7, 2024 (File No. 333-279839). |
| (3) | Incorporated herein by reference to Amendment No. 2 to the
Registrant’s Registration Statement on Form S-1 filed June 13, 2024 (File No. 333-279839). |
| * | Filed herewith. |
Unless otherwise
indicated, exhibit has been previously filed.
| (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; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing
Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the effective 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; |
provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this registration statement.
(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.
(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 the
purpose of determining any liability under the Act, each filing of the registrant’s annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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 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 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 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 Rockville, Maryland, on this 10th day of January, 2025.
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OS THERAPIES INCORPORATED |
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|
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By: |
/s/ Paul A. Romness, MPH |
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Paul A. Romness, MPH |
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President and Chief Executive Officer |
POWER OF ATTORNEY
We, the undersigned officers and directors of OS
Therapies Incorporated hereby severally constitute and appoint Paul A. Romness, MPH and Christopher P. Acevedo, and each of them, as his
or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any
and all amendments to this registration statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact,
proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection
therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact, proxy and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
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.
| Signature |
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Title |
|
Date |
| |
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| /s/ Paul A. Romness, MPH |
|
Chairman, President and Chief Executive Officer |
|
January 10, 2025 |
| Paul A. Romness, MPH |
|
(principal executive officer) |
|
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| /s/ Christopher P. Acevedo |
|
Chief Financial Officer |
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January 10, 2025 |
| Christopher P. Acevedo |
|
(principal financial officer and principal accounting officer) |
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| /s/ John Ciccio |
|
Director |
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January 10, 2025 |
| John Ciccio |
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| /s/ Avril McKean Dieser |
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Director |
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January 10, 2025 |
| Avril McKean Dieser |
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| /s/ Olivier R. Jarry |
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Director |
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January 10, 2025 |
| Olivier R. Jarry |
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| /s/ Theodore F. Search, Pharm.D. |
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Director |
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January 10, 2025 |
| Theodore F. Search, Pharm.D. |
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EXHIBIT
5.1
Olshan Frome Wolosky LLP
1325 Avenue of the Americas, 15th Floor
New York, New York 10019
January 10, 2025
OS Therapies Incorporated
115 Pullman Crossing Road, Suite 103
Grasonville, Maryland 21638
| Re: | Shares to be issued under the OS Therapies Incorporated 2023 Incentive Compensation Plan |
Ladies and Gentlemen:
We have assisted in the preparation of a Registration
Statement on Form S-8 (the “Registration Statement”) to be filed with the U.S. Securities and Exchange Commission (the “SEC”)
under the Securities Act of 1933, as amended (the “Securities Act”), relating to 4,000,000 shares
(the “Shares”) of common stock, par value $0.001 per share (the “Common Stock”), of OS Therapies Incorporated,
a Delaware corporation (the “Company”), that may be issued under the OS Therapies Incorporated 2023 Incentive Compensation
Plan (the “Plan”).
We have examined the Third Amended and Restated
Certificate of Incorporation and By-laws of the Company, each as amended to date, and originals, or copies certified to our satisfaction,
of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents
relating to the Company as we have deemed material for the purposes of this opinion.
In our examination of the foregoing documents,
we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents
and the legal competence of all signatories to such documents.
We assume that the appropriate action will be taken,
prior to the offer and sale of the Shares in accordance with the Plan, to register and qualify the Shares for sale under all applicable
state securities or “blue sky” laws.
It is understood that this opinion is to be used
only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the
matters expressly set forth herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, we are of the opinion that
the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions
of the Plan, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion
with the SEC in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under
the Securities Act. In giving such consent, we do not hereby 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 of the SEC.
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Very truly yours, |
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/s/ Olshan Frome Wolosky LLP |
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|
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OLSHAN FROME WOLOSKY LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference
in this Registration Statement on Form S-8 of our report dated May 13, 2024, except Note 9 which is dated June 13, 2024, with respect
to the audited financial statements of OS Therapies Incorporated for the years ended December 31, 2023 and 2022. Our report contains an
explanatory paragraph regarding the Company’s ability to continue as a going concern.
We also consent to the references to
us under the heading “Experts” in such Registration Statement.
/s/ MaloneBailey, LLP
www.malonebailey.com
Houston, Texas
January 10, 2025
Exhibit 107
Calculation
of Filing Fee Table
Form S-8
(Form Type)
OS Therapies Incorporated
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type | |
Security Class Title | |
Fee
Calculation
Rule | |
Amount
Registered | | |
Proposed
Maximum
Offering
Price Per
Share | | |
Maximum
Aggregate
Offering Price | | |
Fee
Rate | | |
Amount
of
Registration Fee | |
| Equity | |
Common Stock,
par value $0.001 per share | |
457(c) and 457(h) | |
| 4,000,000 | (1) | |
$ | 5.25 | (2) | |
$ | 21,000,000
| (2) | |
| 0.00015310 | | |
$ | 3,215.10 | |
| Total Offering Amounts | |
| |
| | | |
| | | |
$ | 21,000,000
| | |
| | | |
$ | 3,215.10 | |
| Total Fee Offsets | |
| |
| | | |
| | | |
| | | |
| | | |
| — | |
| Net Fee Due | |
| |
| | | |
| | | |
| | | |
| | | |
$ | 3,215.10 | |
| (1) | This Registration Statement covers 4,000,000 shares of the Registrant’s common stock that may be offered or sold from time to
time pursuant to the Registrant’s 2023 Incentive Compensation Plan. This Registration Statement shall also cover any additional
shares of common stock that become issuable under the Plan or by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which results in an increase in the number of outstanding shares of
the Registrant’s common stock. |
| (2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and 457(h) of the Securities Act
of 1933, as amended. The price per share and aggregate offering price are calculated on the basis of the average of the high and low prices
of the Registrant’s common stock as traded on NYSE American on January 8, 2025, in accordance with Rule 457(c) under the Securities
Act of 1933, as amended. |
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