As filed with the Securities and Exchange Commission on
December 5, 2022
Registration No. 333-267294
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THERIVA BIOLOGICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
|
Nevada
(State or Other Jurisdiction of
Incorporation or Organization)
|
13-3808303
(I.R.S. Employer
Identification Number)
|
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
(734) 332-7800
(Address, Including Zip Code, and Telephone
Number, Including Area Code, of Registrant’s Principal
Executive Offices)
Steven A. Shallcross
Chief Executive Officer and Chief Financial
Officer
Theriva Biologics, Inc.
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
(734) 332-7800
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code of Agent for Service)
With copies to:
Leslie Marlow, Esq.
Patrick J. Egan, Esq.
Hank Gracin, Esq.
Blank Rome LLP
1271 Avenue of the Americas
New York, New York 10020
Telephone: (212) 885-5000
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. x
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. ¨
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 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 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 x |
Smaller
reporting company x
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 to
Section 7(a)(2)(B) of the Securities Act. ¨
The Registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall
become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 1 is being filed solely for the purposes of
filing an updated Exhibit 23.2 to the Registration Statement
on Form S-3 (Registration Statement No. 333-267294),
originally filed with the Securities and Exchange Commission on
September 6, 2022, and will become effective upon filing
pursuant to Rule 462(d) under the Securities Act of 1933,
as amended. This Amendment No. 1 does not reflect events
occurring after the original filing date of the Registration
Statement on Form S-3, or modify or update the disclosures
therein in any way other than as required to reflect the amendment
described above. Accordingly, this Amendment No. 1 consists
only of the facing page, this explanatory note, Part II of the
Registration Statement, and an updated Exhibit 23.2. The
prospectus is unchanged and has been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
Item
14. |
Other Expenses of Issuance and Distribution. |
The following sets forth the estimated costs and expenses, all of
which shall be borne by the Registrant, in connection with the
offering of the securities pursuant to this Registration
Statement:
| |
|
Amount |
|
|
SEC registration fee |
|
$ |
324 |
|
| Legal
fees and expenses |
|
|
20,000 |
|
|
Accountant’s fees and expenses |
|
|
5,000 |
|
|
Printing and engraving expenses |
|
|
2,000 |
|
|
Miscellaneous |
|
|
2,676 |
|
|
Total |
|
$ |
30,000 |
|
| Item 15. |
Indemnification of Directors and Officers. |
Section 78.138 of the Nevada Revised Statute provides that a
director or officer is not individually liable to the corporation
or its stockholders or creditors for any damages as a result of any
act or failure to act in his capacity as a director or officer
unless it is proven that (1) his act or failure to act
constituted a breach of his fiduciary duties as a director or
officer and (2) his breach of those duties involved
intentional misconduct, fraud or a knowing violation of law.
This provision is intended to afford directors and officers
protection against and to limit their potential liability for
monetary damages resulting from suits alleging a breach of the duty
of care by a director or officer. As a consequence of this
provision, stockholders of our company will be unable to recover
monetary damages against directors or officers for action taken by
them that may constitute negligence or gross negligence in
performance of their duties unless such conduct falls within one of
the foregoing exceptions. The provision, however, does not alter
the applicable standards governing a director’s or officer’s
fiduciary duty and does not eliminate or limit the right of our
company or any stockholder to obtain an injunction or any other
type of non-monetary relief in the event of a breach of fiduciary
duty.
The Registrant’s Articles of Incorporation, as amended, and amended
and restated bylaws provide for indemnification of directors,
officers, employees or agents of the Registrant to the fullest
extent permitted by Nevada law (as amended from time to time).
Section 78.7502 of the Nevada Revised Statute provides that
such indemnification may only be provided if the person acted in
good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interest of the Registrant and, with
respect to any criminal action or proceeding, had no reasonable
cause to behave his conduct was unlawful.
(a) Exhibits.
The following exhibits are either filed as part of this
Post-Effective Amendment No. 1 to the Registration Statement
on Form S-3 or are incorporated herein by reference:
|
Exhibit
Number
|
Description |
| |
|
| 3.1 |
Certificate
of Incorporation, as amended (Incorporated by reference to (i)
Exhibit 3.1 of the Registrant’s Current Report
on Form 8-K filed October 16, 2008, File
No. 001-12584, (ii) Exhibit 3.1 of the Registrant’s Quarterly Report
on Form 10-Q for the quarterly period ended June 30, 2001
filed August 14, 2001, File No. 001-12584; and
(iii) Exhibits 3.1, 4.1 and 4.2 of the
Registrant’s Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1998 filed August 14, 1998, File
No. 001-12584.) |
| |
|
| 3.2 |
Articles of Merger (Incorporated by reference to Exhibit 3.1
of the Registrant’s Current Report on Form 8-K filed
October 19, 2009, File No. 001-12584.) |
| |
|
| 3.3 |
Certificate of Merger filed with the Secretary of State of Delaware
(Incorporated by reference to Exhibit 3.2 of the Registrant’s
Current Report on Form 8-K filed October 19, 2009, File
No. 001-12584.) |
| 3.6 |
Certificate of Amendment to Articles of Incorporation (Incorporated
by reference to Exhibit 3.1 of the Registrant’s Current Report
on Form 8-K filed February 16, 2012, File
No. 001-12584.) |
| |
|
| 3.7 |
Certificate of Amendment to Certificate of Incorporation.
(Incorporated by reference to Exhibit 3.1 of the Registrant’s
Current Report on Form 8-K filed May 18, 2015, File
No. 001-12584.) |
| |
|
| 3.8 |
Certificate of Amendment to Certificate of Incorporation.
(Incorporated by reference to Exhibit 3.1 of the Registrant’s
Current Report on Form 8-K filed September 8, 2017, File
No. 001-12584.) |
| |
|
| 3.9 |
Certificate of Designations for Series A Preferred Stock to
Certificate of Incorporation (Incorporated by reference to
Exhibit 3.1 of the Registrant’s Current Report on
Form 8-K filed September 12, 2017, File
No. 001-12584.) |
| |
|
| 3.10 |
Certificate of Change Pursuant to NRS 78. 209 (Incorporated by
reference to Exhibit 3.1 of the Registrant’s Current Report on
Form 8-K filed August 13, 2018, File
No. 001-12584.) |
| |
|
| 3.11 |
Certificate of Amendment to Articles of Incorporation (Incorporated
by reference to Exhibit 3.1 of the Registrant’s Current Report
on Form 8-K filed September 26, 2018, File
No. 001-12584.) |
| |
|
| 3.12 |
Certificate of Designations for Series B Preferred Stock to
Certificate of Incorporation (Incorporated by reference to
Exhibit 3.1 of the Registrant’s Current Report on
Form 8-K filed October 15, 2018, File
No. 001-12584.) |
| 3.13 |
Certificate of Amendment to Certificate of Designations for
Series B Preferred Stock to Certificate of Incorporation
(Incorporated by reference to Exhibit 3.2 of the Registrant’s
Current Report on Form 8-K filed October 15, 2018, File
No. 001-12584.) |
| |
|
| 3.14 |
Certificate of Amendment to the Certificate of Designation for the
Series A Convertible Preferred Stock (Incorporated by
reference to Exhibit 3.1 of the Registrant’s Current Report on
Form 8-K/A filed on February 1, 2021 File
No. 001-12584.) |
| |
|
| 3.15 |
Certificate of Designations of Series C Convertible Preferred
Stock (Incorporated by reference to Exhibit 3.1 of the
Registrant’s Current Report on Form 8-K filed July 29,
2022, File No. 001-12584.) |
| |
|
| 3.16 |
Certificate of Designations of Series D Convertible Preferred
Stock (Incorporated by reference to Exhibit 3.2 of the
Registrant’s Current Report on Form 8-K filed July 29,
2022, File No. 001-12584.) |
| |
|
| 4.1 |
Specimen Stock Certificate (Incorporated by reference to
Exhibit 4.1 to the Registrant’s Registration Statement on
Form S-3 filed on July 3, 2013, File
No. 333-189794.) |
| |
|
| 4.2 |
Form of Warrant for Purchasers of Units (Incorporated by
reference to Exhibit 4.1 to the Registrant’s Current Report on
Form 8-K filed on October 10, 2014, File
No. 001-12584.) |
| |
|
| 4.3 |
Form of Series B Warrant to Purchase Common Stock issued
November 18, 2016 (Incorporated by reference to
Exhibit 4.2 of the Registrant’s Current Report on
Form 8-K filed on November 15, 2016, File
No. 001-12584.) |
| |
|
| 4.4 |
Form of Warrant Agreement, dated November 18, 2016
between Theriva Biologics, Inc. and Corporate Stock
Transfer, Inc. (Incorporated by reference to Exhibit 4.3
of the Registrant’s Current Report on Form 8-K filed on
November 15, 2016, File No. 001-12584.) |
| |
|
| 4.5 |
Form of Warrant issued December 26, 2017 to InSite
Communications (Incorporated by reference to Exhibit 4.1 of
the Registrant’s Current Report on Form 10-Q filed May 5,
2018, File No. 001-12584.) |
| |
|
| 4.6 |
Warrant Agency Agreement, dated October 15, 2018, by and
between Theriva Biologics, Inc. and Corporate Stock
Transfer, Inc. (including the form of warrant certificate)
(Incorporated by reference to Exhibit 4.1 of the Registrant’s
Current Report on Form 8-K filed October 15, 2018, File
No. 001-12584.) |
| |
|
| 4.7 |
Description of Securities of Theriva Biologics, Inc.
(Incorporated by reference to Exhibit 4.7 of the Registrant’s
Annual Report on Form 10-K for the fiscal year ended
December 31, 2020 filed March 4, 2021, File
No. 001-12584.) |
| |
|
| 4.8 |
Securities Purchase Agreement between Theriva Biologics, Inc.
and MSD Credit Opportunity Master Fund L.P. dated July 28,
2022 (Incorporated by reference to Exhibit 10.1 of the
Registrant’s Current Report on Form 8-K filed July 29,
2022, File No. 001-12584.) |
| |
|
| 4.9 |
Amendment No. 1 dated as of August 9, 2022 to
Securities Purchase Agreement between Theriva Biologics Inc. and
MSD Credit Opportunity Master Fund, L.P., dated as of July 28,
2022 (Incorporated by reference to Exhibit 10.2 of the
Registrant’s Quarterly Report on Form 10-Q filed
August 11, 2022, File No. 001-12584.) |
|
*
**
|
Previously filed
Filed herewith.
|
Item 17. Undertakings
(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 of 1933;
(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 a 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of
Registration Fee” table 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
the undertakings set forth in paragraphs (1)(i), (1)(ii) and
(1)(iii) above 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 Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement or is
contained in a form of prospectus filed pursuant to
Rule 424(b) that is a part of the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
(4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed to
be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made
in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date; and
(iii) Each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on
Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness; provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such
document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the
initial distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used or
referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf
of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, 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 Securities Act of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 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 Securities Act
of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Rockville, State of Maryland, December 5,
2022.
| |
THERIVA
BIOLOGICS, INC. |
| |
|
|
| |
By: |
/s/
Steven A. Shallcross |
| |
|
Chief Executive Officer,
Chief Financial Officer and Director
|
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment No. 1 to the
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Steven A. Shallcross |
|
Chief
Executive Officer, |
|
December 5,
2022 |
| Steven
A. Shallcross |
|
Chief Financial Officer and Director
(Principal Executive Officer, Principal Financial Officer and
Principal Accounting Officer)
|
|
|
| |
|
|
|
|
| * |
|
Chairman |
|
December 5,
2022 |
| Jeffrey
J. Kraws |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
December 5,
2022 |
| Jeffrey
Wolf |
|
|
|
|
| |
|
|
|
|
| * |
|
Director |
|
December 5,
2022 |
| John
Monahan, Ph.D. |
|
|
|
|
|
*By: /s/ Steven A. Shallcross
|
|
| Steven
A. Shallcross, Attorney-in-Fact |
|
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