As filed with the Securities and Exchange
Commission on September 11, 2024
Registration Statement No. 333-279077
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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 |
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2834 |
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13-3808303 |
(State or other jurisdiction of
incorporation or organization) |
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(Primary Standard Industrial
Classification Code Number) |
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(I.R.S. Employer
Identification No.) |
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
(301) 417-4364
(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
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
(301) 417-4364
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Leslie Marlow, Esq.
Patrick J. Egan, Esq.
Blank Rome LLP
1271 Avenue of the Americas
New York, New York 10020
Telephone: (212) 885-5000
Facsimile: (212) 885-5001
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement,
as determined by market conditions.
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 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 |
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Accelerated filer |
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Non-accelerated filer |
x |
Smaller reporting company |
x |
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Emerging growth company |
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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 that
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
The information contained in this
prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion, Dated
September 11, 2024
PROSPECTUS
$200,000,000
![](https://www.sec.gov/Archives/edgar/data/894158/000110465924098796/tm2423995d1_s3aimg001.jpg)
THERIVA BIOLOGICS, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may, from time to time, offer and sell up to
$200,000,000 of any combination of our common stock, par value $0.001 (the “common stock”), preferred stock, par value $0.001
(the “preferred stock”), debt securities, warrants or units described in this prospectus, either individually or in combination
with other securities, at prices and on terms described in one or more supplements to this prospectus. We may also offer common stock
or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock, or common stock, preferred stock,
or debt securities upon the exercise of warrants.
This prospectus provides you with a general description
of the securities that we may offer. Each time we offer and sell securities, we will provide a supplement
to this prospectus that contains specific information about the offering and the amounts, prices and terms of the securities. We
may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement
and any related free writing prospectus may also add, update or change information contained in this prospectus. You should carefully
read this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as the documents incorporated
by reference, before buying any of the securities being offered.
Securities may be sold by us to or through underwriters
or dealers, directly to purchasers or through agents designated from time to time. For additional information on the methods of sale,
you should refer to the section entitled “Plan of Distribution” in this prospectus and in the applicable prospectus supplement.
If any underwriters, dealers or agents are involved in the sale of any of the securities, their
names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable
from the information set forth, in the applicable prospectus supplement. The price to the public of such securities and the net
proceeds we expect to receive from such sale will also be set forth in a prospectus supplement. No
securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of
the offering of such securities.
Our common stock is listed on the NYSE American
LLC under the symbol “TOVX.” On September 6, 2024, the last reported sale price of our common stock on the NYSE American
LLC was $4.37 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if
any, on any securities market or other exchange of the specific security covered by such prospectus supplement.
As of the date of this prospectus, the aggregate
market value of our outstanding common stock held by non-affiliates is approximately $9,806,578, which is calculated based on 1,353,565
shares of our outstanding common stock held by non-affiliates and a price of $7.245 per share, the closing price of our common stock
on July 24, 2024, which is the highest closing sale price of our common stock on the NYSE American LLC within the prior 60 days
of this prospectus. During the prior twelve calendar month period that ends on and includes the date hereof, we have offered and sold
approximately $ 3,738,514 of shares of our common stock pursuant to General Instruction I.B.6 to Form S-3.
Investing in our securities involves a
high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” beginning
on page 6 of this prospectus and contained in the applicable prospectus supplement and in any free writing prospectuses we have
authorized for use in connection with a specific offering, and under similar headings in the other documents that are incorporated by
reference into this prospectus.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration
process. Under this shelf registration statement, we may sell from time to time in one or more offerings up to a total dollar amount of
$200,000,000 of shares of common stock, preferred stock, various series of debt securities and/or warrants to purchase any of such securities,
either individually or as units in combination with other securities as described in this prospectus. Each time we sell any type or series
of securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the terms
of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information
relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to
you may also add, update or change any of the information contained in this prospectus or in the documents we have incorporated by reference
into this prospectus. To the extent that any statement that we make in a prospectus supplement is inconsistent with statements made in
this prospectus, the statements made in this prospectus will be deemed modified or superseded by those made in a prospectus supplement.
You should carefully read both this prospectus and the applicable prospectus supplement and any related free writing prospectus, together
with the additional information described under “Where You Can Find More Information,” before buying any of the securities
being offered.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE
A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT
Neither we, nor any agent, underwriter or dealer
has authorized any person to give any information or to make any representation other than those contained or incorporated by reference
in this prospectus, any applicable prospectus supplement or any related free writing prospectus prepared by or on behalf of us or to which
we have referred you. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus, any
applicable supplement to this prospectus or any related free writing prospectus does not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the registered securities to which they relate, nor does this prospectus, any applicable
supplement to this prospectus or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy
securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained
in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to
the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent
to the date of the document incorporated by reference, even though this prospectus, any applicable prospectus supplement or any related
free writing prospectus is delivered, or securities are sold, on a later date.
This prospectus contains summaries of certain
provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information.
All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have
been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus is a
part, and you may obtain copies of those documents as described below under the section entitled “Where You Can Find More Information.”
Except as otherwise indicated herein or as the
context otherwise requires, references in this prospectus to “Theriva,” “the Company,” “we,” “us,”
“our” and similar references refer to Theriva Biologics, Inc., an entity incorporated under the laws of the State of
Nevada, and where appropriate our consolidated subsidiaries.
This prospectus and the information incorporated
herein by reference include trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and
trade names included or incorporated by reference into this prospectus, any applicable prospectus supplement or any related free writing
prospectus are the property of their respective owners.
PROSPECTUS SUMMARY
The following summary highlights information
contained elsewhere in this prospectus or incorporated by reference herein and does not contain all the information that may be important
to purchasers of our securities. Prospective purchasers of our securities should carefully read the entire prospectus, the applicable
prospectus supplement and any related free writing prospectus, including the risks of investing in our securities discussed under the
heading “Risk Factors” contained in this prospectus, the applicable prospectus supplement and any related free writing prospectus,
and under similar headings in the other documents that are incorporated by reference into this prospectus. Prospective purchasers of our
securities should also carefully read the information incorporated by reference into this prospectus, including our financial statements,
and the exhibits to the registration statement of which this prospectus is a part.
Overview
We are a diversified clinical-stage company
developing therapeutics designed to treat cancer and related diseases in areas of high unmet need. As a result of the acquisition in
March 2022 (the “Acquisition”) of Theriva Biologics, S.L. (“VCN”, formerly named VCN Biosciences, S.L.),
we began transitioning our strategic focus to oncology, which is now our primary focus, through the development of VCN’s new oncolytic
adenovirus platform designed for intravenous and intravitreal delivery to trigger tumor cell death, to improve access of co-administered
cancer therapies to the tumor, and to promote a robust and sustained anti-tumor response by the patient’s immune system. Our lead
product candidate, VCN-01, a clinical stage oncolytic human adenovirus that is modified for tumor-selective replication and to express
an enzyme, PH20 hyaluronidase, is currently being evaluated in a Phase 2 clinical study for the treatment of pancreatic cancer (“Virage”),
and has recently been used to treat patients in a Phase 1 clinical study for the treatment of retinoblastoma, and Phase 1 clinical studies
for the treatment of other solid tumors including head and neck squamous cell carcinoma.
Prior to the Acquisition, our focus was on
developing therapeutics designed to treat gastrointestinal (GI) diseases which included our clinical development candidates: (1) SYN-004
(ribaxamase) which is designed to degrade certain commonly used intravenous (IV) beta-lactam antibiotics within the GI tract to
prevent microbiome damage, thereby preventing overgrowth and infection by pathogenic organisms such Clostridioides difficile infection
(CDI) and vancomycin resistant Enterococci (VRE), and reducing the incidence and severity of acute graft-versus-host-disease (aGVHD)
in allogeneic hematopoietic cell transplant (HCT) recipients, and (2) SYN-020, a recombinant oral formulation of the enzyme intestinal
alkaline phosphatase (IAP) produced under cGMP conditions and intended to treat both local GI and systemic diseases. As part of our strategic
transformation into an oncology focused company, we are exploring value creation options for our SYN-004 and SYN-020 assets, including
out-licensing or partnering.
Our Current Product Pipeline
![](https://www.sec.gov/Archives/edgar/data/894158/000110465924098796/tm2423995d1_s3aimg002.jpg)
*Based on management’s current beliefs and expectations
allo-HCT allogeneic
hematopoietic cell transplant. CPI immune checkpoint inhibitor. CSR clinical study report. FTD Fast
Track Designation. HNSCC head and neck squamous cell carcinoma. IV intravenous. IVit intravitreal. ODD Orphan
Drug Designation. For other abbreviations see the text.
¹ Additional products with preclinical
proof-of-concept include SYN-006 (carbapenemase) to prevent aGVHD and infection by carbapenem resistant enterococci and SYN-007 (ribaxamase)
DR to prevent antibiotic associated diarrhea with oral β-lactam antibiotics.
² Depending on funding/partnership. SYN-004 may enter an FDA-agreed
Phase 3 clinical trial for the treatment of CDI.
Recent Developments
Reverse
Stock Split
On
August 26, 2024, we effected a reverse stock split of our authorized, issued and outstanding shares of common stock at a ratio of
one (1) share of common stock for every twenty-five (25) shares of common stock (the “Reverse Stock Split”) and the
common stock began trading on the NYSE American on a post-split basis when the market opened on August 26, 2024.
As
a result of the Reverse Stock Split, each twenty-five (25) shares of common stock outstanding automatically combined into one (1) new
share of common stock without any action on the part of the holders, and the number of outstanding shares common stock was reduced from
25,131,230 shares to 1,005,249 shares (subject to rounding of fractional shares).
No
fractional shares were issued in connection with the Reverse Stock Split. Stockholders who otherwise would be entitled to receive fractional
shares because they hold a number of pre-Reverse Stock Split shares of common stock not evenly divisible by 25 ware, in lieu of a fractional
share, automatically be entitled to receive an additional fractional share of the common stock to round up to the next whole number.
The
Reverse Stock Split was effected to meet the per share price requirements of the NYSE American, the securities exchange on which the
common stock is listed.
After
the Reverse Stock Split, the trading symbol for the common stock continued to be “TOVX.” The new CUSIP number for the common
stock following the Reverse Stock Split is 87164U 508.
Corporate Information
Our predecessor,
Sheffield Pharmaceuticals, Inc., was incorporated in 1986, and in 2006 engaged in a reverse merger with Pipex Therapeutics, Inc.,
a publicly-traded Delaware corporation formed in 2001. After the reverse merger, we changed our name to Pipex Pharmaceuticals, Inc.,
and in October 2008 we changed our name to Adeona Pharmaceuticals, Inc. On October 15, 2009, we engaged in a merger with
a wholly owned subsidiary for the purpose of reincorporating in the State of Nevada. On February 15, 2012, we changed our name to
Synthetic Biologics, Inc. On August 10, 2018, we effected a one for thirty-five reverse stock split of our authorized, issued
and outstanding common stock. On July 15, 2022, we effected a one for ten reverse stock split of our authorized, issued and outstanding
common stock. On October 12, 2022, we changed our name to Theriva Biologics, Inc. On August 26, 2024, we effected the
Reverse Stock Split.
Our principal executive offices are located
at 9605 Medical Center Drive, Suite 270, Rockville, Maryland 20850, and our telephone number is (301) 417 - 4367. Our website
address is www.therivabio.com. Information contained on our website is intended for
informational purposes only and is not incorporated by reference into this prospectus, and it should not be considered to be part of
this prospectus or the registration statement of which this prospectus forms a part. The SEC maintains an internet site that
contains reports, proxy and information statements, and other information regarding issuers like us that file documents
electronically with the SEC. The address of the SEC website is www.sec.gov.
Smaller Reporting
Company
We are a “smaller reporting company”
as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As a result, we may take advantage of
certain reduced disclosure obligations available to smaller reporting companies, including the exemption from compliance with the auditor
attestation requirements pursuant to the Sarbanes-Oxley Act of 2022, reduced disclosure about our executive compensation arrangements
and the requirements to provide only two years of audited financial statements in our annual reports and registration statements. We will
continue to be a “smaller reporting company” as long as (1) we have a public float (i.e., the market value of our common
stock held by non-affiliates) less than $250 million calculated as of the last business day of our most recently completed second fiscal
quarter, or (2) our annual revenues are less than $100 million for our previous fiscal year and we have either no public float or
a public float of less than $700 million as of the end of that fiscal year’s second fiscal quarter. Decreased disclosures in our
SEC filings due to our status as a “smaller reporting company” may make it harder for investors to analyze our results of
operations and financial prospects.
Risks Associated with our Business
Our business is subject to numerous risks, as
described under the heading “Risk Factors” contained in the applicable prospectus supplement and in any free writing prospectuses
we have authorized for use in connection with a specific offering, and under similar headings in the documents that are incorporated by
reference into this prospectus.
The Securities We May Offer
We may offer shares of our common stock, preferred
stock, various series of debt securities and/or warrants to purchase any of such securities, either individually or as units in combination
with other securities, with a total value of up to $200,000,000 from time to time under this prospectus at prices and on terms to be determined
at the time of any offering. This prospectus provides you with a general description of the securities we may offer. Each time we offer
a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe the specific amounts,
prices and other important terms of the securities, including, to the extent applicable:
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designation or classification; |
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aggregate principal amount or aggregate offering price; |
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original issue discount; |
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rates and times of payment of interest or dividends; |
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redemption, conversion, exercise, exchange or sinking fund terms; |
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voting or other rights; |
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conversion or exchange prices or rates and,
if applicable, any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or
other property receivable upon conversion or exchange; and |
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a discussion of material United States federal income tax considerations, if any. |
The prospectus supplement and any related free
writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus
or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will offer a security
that is not registered and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus
is a part.
We may sell the securities directly to investors
or to or through agents, underwriters or dealers. We, and our agents, underwriters or dealers reserve the right to accept or reject all
or part of any proposed purchase of securities. If we do offer securities to or through agents, underwriters or dealers, we will include
in the applicable prospectus supplement:
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the names of those agents, underwriters, or dealers; |
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applicable fees, discounts and commissions to be paid to them; |
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details regarding over-allotment options, if any; and |
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the net proceeds to us. |
The following is a summary of the securities we
may offer with this prospectus.
Common Stock
We may issue shares of our common stock from time
to time. Each holder of our common stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders,
including the election of directors. Under our articles of incorporation, as amended (the “Articles of Incorporation”) and
second amended and restated bylaws (the “Bylaws”), our stockholders do not have cumulative voting rights. Subject to preferences
that may be applicable to any then-outstanding preferred stock, holders of common stock are entitled to receive ratably those dividends,
if any, as may be declared from time to time by the board of directors out of legally available funds. In the event of our liquidation,
dissolution or winding up, holders of common stock are entitled to share ratably in the net assets legally available for distribution
to stockholders after the payment of all of our debts and other liabilities and the satisfaction of any liquidation preference granted
to the holders of any then-outstanding shares of preferred stock. Holders of shares of our common stock do not have preemptive, subscription,
redemption, or conversion rights and there are no redemption or sinking fund provisions applicable to the common stock. The rights, preferences
and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares of
any series of preferred stock that we may designate in the future.
Preferred Stock
We may issue shares of our preferred stock from
time to time, in one or more series. Our board of directors will determine the designations, voting powers, preferences and rights of
the preferred stock, as well as the qualifications, limitations or restrictions thereof, including dividend rights, conversion rights,
preemptive rights, terms of redemption or repurchase, liquidation preferences, sinking fund terms and the number of shares constituting
any series or the designation of any series. Convertible preferred stock will be convertible into our common stock or exchangeable for
other securities. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates. If we sell
any series of preferred stock under this prospectus, we will fix the designations, voting powers, preferences and rights of such series
of preferred stock, as well as the qualifications, limitations or restrictions thereof, in the certificate of designation relating to
that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred
stock that we are offering before the issuance of the related series of preferred stock.
We urge you to read the applicable prospectus
supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of preferred stock being
offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt Securities
We may issue debt securities from time to time,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities
will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in
right of payment, to the extent and in the manner described in the instrument governing the debt, to all of our senior indebtedness. Convertible
debt securities will be convertible into or exchangeable for our common stock or other securities. Conversion may be mandatory or at your
option and would be at prescribed conversion rates.
Any debt securities issued under this prospectus
will be issued under one or more documents called indentures, which are contracts between us and a national banking association or other
eligible party, as trustee. In this prospectus, we have summarized certain general features of the debt securities. We urge you, however,
to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to
the series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities. A form
of indenture has been filed as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures
and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement
of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
Warrants
We may issue warrants for the purchase of common
stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or as units in combination with
common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities. In this prospectus,
we have summarized certain general features of the warrants.
We urge you, however, to read the applicable prospectus
supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of warrants being offered,
as well as any warrant agreements and warrant certificates that contain the terms of the warrants. We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant
and/or the warrant agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are
offering, and any supplemental agreements, before the issuance of such warrants.
Any warrants issued under this prospectus may
be evidenced by warrant certificates. Warrants also may be issued under an applicable warrant agreement that we enter into with a warrant
agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular
series of warrants being offered.
Units
We may issue units consisting of any combination
of the other types of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates
that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or
trust company that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating
to a particular series of units.
In this prospectus, we have summarized certain
general features of the units under “Description of Units.” We urge you, however, to read the applicable prospectus supplement
(and any related free writing prospectus that we may authorize to be provided to you) related to the series of units being offered, as
well as the complete unit agreement that contains the terms of the units. We will file as exhibits to the registration statement of which
this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the specific unit agreement that contains
the terms of the particular series of units we are offering, before the issuance of such units.
RISK FACTORS
Investing in our securities involves a high
degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks and uncertainties described
under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus,
and discussed under the section entitled “Risk Factors” contained in our most recent Annual Report on Form 10-K, our
most recent Quarterly Reports on Form 10-Q, as such filings may be updated by subsequent annual, quarterly and other reports that
are incorporated by reference into this prospectus in their entirety. The risks described in these documents are not the only ones we
face, but those that we consider to be material. There may be other unknown or unpredictable economic, business, competitive, regulatory
or other factors that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator
of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of these risks
actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the
trading price of our common stock to decline, resulting in a loss of all or part of your investment. Please also read carefully the section
below entitled “Forward-Looking Statements.”
FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that
we incorporate by reference herein, contains, and any applicable prospectus supplement or free writing prospectus including the documents
we incorporate by reference therein may contain, forward-looking statements within the meaning of Section 27A of the Securities Act
of 1933, as amended (the “Securities Act”) and Section 21E of the Exchange Act, including statements regarding our future
financial condition, business strategy and plans and objectives of management for future operations. Forward-looking statements include
all statements that are not historical facts. In some cases, you can identify forward-looking statements by terminology such as “believe,”
“will,” “may,” “estimate,” “continue,” “anticipate,” “intend,”
“should,” “plan,” “might,” “approximately,” “expect,” “predict,”
“could,” “potentially” or the negative of these terms or other similar expressions. Forward-looking statements
include statements regarding our intentions, beliefs, projections, outlook, analyses or current expectations.
Discussions containing these forward-looking statements
may be found, among other places, in the sections entitled “Business,” “Risk Factors” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” contained in the documents incorporated by reference herein,
including our most recent Annual Report on Form 10-K and our Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K,
as well as any amendments thereto.
These statements relate to future events or our
future financial performance and involve known and unknown risks, uncertainties and other factors that could cause our actual results,
levels of activity, performance or achievement to differ materially from those expressed or implied by these forward-looking statements.
We discuss in greater detail, and incorporate by reference into this prospectus in their entirety, many of these risks and uncertainties
under the heading “Risk Factors” contained in the applicable prospectus supplement, in any free writing prospectus we may
authorize for use in connection with a specific offering, and in the documents incorporated by reference herein. These statements reflect
our current views with respect to future events and are based on assumptions and subject to risks and uncertainties. We undertake no obligation
to revise or publicly release the results of any revision to these forward-looking statements, except as required by law. Given these
risks and uncertainties, readers are cautioned not to place undue reliance on such forward-looking statements. All forward-looking statements
are qualified in their entirety by this cautionary statement.
USE OF PROCEEDS
We will retain broad discretion over the use of
the net proceeds from the sale of the securities offered hereby. Except as described in any prospectus supplement or in any related free
writing prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the sale of the securities
offered by us hereunder primarily for working capital and general corporate purposes. We will set forth in the applicable prospectus supplement
or free writing prospectus our intended use for the net proceeds received from the sale of any securities sold pursuant to the prospectus
supplement or free writing prospectus.
DESCRIPTION OF CAPITAL STOCK
The following is a description of the material
terms of our capital stock. This is a summary only and does not purport to be complete. It is subject to and qualified in its entirety
by reference to our Articles of Incorporation and our Bylaws, each of which are incorporated by reference as an exhibit to the registration
statement of which this prospectus forms a part. We encourage you to read our Certificate of Incorporation, our Bylaws and the applicable
provisions of the Nevada Revised Statute (the “NRS”), for additional information.
Our authorized capital stock consists of:
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14,000,000 shares of
common stock, par value $0.001 per share; and |
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10,000,000 shares of preferred stock, par value $0.001 per share. |
Common Stock
Outstanding
Shares. As of September 9, 2024, there were 1,353,565 shares of our common stock outstanding.
Voting
Rights. The holders of the common stock are entitled to one vote for each share held of record on all matters submitted to
a vote of the stockholders, including the election of directors, and do not have cumulative voting rights. Accordingly, the holders of
a majority of the shares of the common stock entitled to vote in any election of directors can elect all of the directors standing for
election.
Dividend
Rights. Subject to preferences that may be applicable to any then outstanding preferred stock, the holders of common stock
are entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of legally available funds.
Liquidation
Rights. In the event of our liquidation, dissolution or winding up, holders of the common stock will be entitled to share ratably
in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject
to the satisfaction of any liquidation preference granted to the holders of any then outstanding shares of preferred stock.
Other
Rights and Preferences. The holders of the common stock have no preemptive, conversion or subscription rights, and there are
no redemption or sinking fund provisions applicable to the common stock. The rights, preferences and privileges of the holders of the
common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of our preferred stock
that we may designate and issue in the future.
Fully
Paid and Nonassessable. All of our outstanding shares of common stock are fully paid and nonassessable.
Preferred Stock
The following summary of terms of our preferred
stock is not complete. We will file as an exhibit to the registration statement of which this prospectus is a part or will incorporate
by reference from reports that we file with the SEC, the form of any certificate of designation that describes the terms of the series
of preferred stock that we are offering before the issuance of the related series of preferred stock. We urge you to read the applicable
prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the series of preferred
stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred
stock.
Our board of directors may, without further action
by our stockholders, fix the rights, preferences, privileges and restrictions of up to an aggregate of 10,000,000 shares of preferred
stock in one or more series and authorize their issuance. There are no shares of preferred stock designated or outstanding. These rights,
preferences and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences,
sinking fund terms and the number of shares constituting any series or the designation of such series, any or all of which may be greater
than the rights of our common stock.
Our board of directors will fix the designations,
voting powers, preferences and rights of the preferred stock of each series we issue under this prospectus, as well as the qualifications,
limitations or restrictions thereof, in the certificate of designation relating to that series. We will describe in the applicable prospectus
supplement the terms of the series of preferred stock being offered, including, to the extent applicable:
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the title and stated value; |
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the number of shares we are offering; |
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the liquidation preference per share; |
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the dividend rate, period and payment date and method of calculation for dividends; |
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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the procedures for any auction and remarketing; |
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the provisions for a sinking fund; |
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights; |
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any listing of the preferred stock on any securities exchange or market; |
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whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated, and the conversion period; |
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated, and the exchange period; |
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voting rights of the preferred stock; |
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restrictions on transfer, sale or other assignment; |
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whether interests in the preferred stock will be represented by depositary shares; |
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a discussion of material United States federal income tax considerations applicable to the preferred stock; |
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; |
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any limitations on the issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
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any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock. |
Anti-Takeover Effects of Nevada Law
The provisions of NRS, our Articles of Incorporation
and our Bylaws described below may have the effect of delaying, deferring or discouraging another party from acquiring control of us.
Business Combinations
The “business combination” provisions
of Sections 78.411 to 78.444, inclusive, of the NRS generally prohibit a Nevada corporation with at least 200 stockholders from engaging
in various “combination” transactions with any interested stockholder for a period of two years after the date of the transaction
in which the person became an interested stockholder, unless the transaction is approved by the board of directors prior to the date the
interested stockholder obtained such status or the combination is approved by the board of directors and thereafter is approved at a meeting
of the stockholders by the affirmative vote of stockholders representing at least 60% of the outstanding voting power held by disinterested
stockholders, and extends beyond the expiration of the two-year period, unless:
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the combination was approved by the board of directors prior to the person becoming an interested stockholder or the transaction by which the person first became an interested stockholder was approved by the board of directors before the person became an interested stockholder or the combination is later approved by a majority of the voting power held by disinterested stockholders; or |
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if the consideration to be paid by the interested stockholder is at least equal to the highest of: (a) the highest price per share paid by the interested stockholder within the two years immediately preceding the date of the announcement of the combination or in the transaction in which it became an interested stockholder, whichever is higher, (b) the market value per share of common stock on the date of announcement of the combination and the date the interested stockholder acquired the shares, whichever is higher, or (c) for holders of preferred stock, the highest liquidation value of the preferred stock, if it is higher. |
A “combination” is generally defined
to include mergers or consolidations or any sale, lease exchange, mortgage, pledge, transfer, or other disposition, in one transaction
or a series of transactions, with an “interested stockholder” having: (a) an aggregate market value equal to 5% or more
of the aggregate market value of the assets of the corporation, (b) an aggregate market value equal to 5% or more of the aggregate
market value of all outstanding shares of the corporation, (c) 10% or more of the earning power or net income of the corporation,
and (d) certain other transactions with an interested stockholder or an affiliate or associate of an interested stockholder.
In general, an “interested stockholder”
is a person who, together with affiliates and associates, owns (or within two years, did own) 10% or more of a corporation’s voting
stock. The statute could prohibit or delay mergers or other takeover or change in control attempts and, accordingly, may discourage attempts
to acquire our company even though such a transaction may offer our stockholders the opportunity to sell their stock at a price above
the prevailing market price.
Control Share Acquisitions
The “control share” provisions of
Sections 78.378 to 78.3793, inclusive, of the NRS apply to “issuing corporations” that are Nevada corporations with at least
200 stockholders, including at least 100 stockholders of record who are Nevada residents, and that conduct business directly or indirectly
in Nevada. The control share statute prohibits an acquirer, under certain circumstances, from voting its shares of a target corporation’s
stock after crossing certain ownership threshold percentages, unless the acquirer obtains approval of the target corporation’s disinterested
stockholders. The statute specifies three thresholds: one-fifth or more but less than one-third, one-third but less than a majority, and
a majority or more, of the outstanding voting power. Generally, once an acquirer crosses one of the above thresholds, those shares in
an offer or acquisition and acquired within 90 days thereof become “control shares” and such control shares are deprived of
the right to vote until disinterested stockholders restore the right. These provisions also provide that if control shares are accorded
full voting rights and the acquiring person has acquired a majority or more of all voting power, all other stockholders who do not vote
in favor of authorizing voting rights to the control shares are entitled to demand payment for the fair value of their shares in accordance
with statutory procedures established for dissenters’ rights.
A corporation may elect to not be governed by,
or “opt out” of, the control share provisions by making an election in its articles of incorporation or bylaws, provided that
the opt-out election must be in place on the 10th day following the date an acquiring person has acquired a controlling interest, that
is, crossing any of the three thresholds described above. We have not opted out of the control share statutes, and will be subject to
these statutes if we are an “issuing corporation” as defined in such statutes.
The effect of the Nevada control share statutes
is that the acquiring person, and those acting in association with the acquiring person, will obtain only such voting rights in the control
shares as are conferred by a resolution of the stockholders at an annual or special meeting. The Nevada control share law, if applicable,
could have the effect of discouraging takeovers of our company.
Articles of Incorporation and Bylaws
Our Articles of Incorporation and Bylaws provide
that:
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the authorized number of directors is determined by our board of directors; |
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directors may be removed only by the affirmative vote of the holders of at least a majority of our voting stock, whether for cause or without cause; |
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our Bylaws may be amended or repealed by our board of directors or by the affirmative vote of our stockholders; |
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special meetings of the stockholders may be called by Chairman of the board, if any, the Vice Chairman of the board, if any, or the President or upon request of stockholders owning a majority of the outstanding shares |
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our board of directors may fill vacancies on the board of directors; |
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our board of directors will be authorized to issue, without stockholder approval, preferred stock, the rights of which will be determined at the discretion of the board of directors and that, if issued, could operate as a “poison pill” to dilute the stock ownership of a potential hostile acquirer to prevent an acquisition that our board of directors does not approve; |
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our stockholders do not have cumulative voting rights, and therefore our stockholders holding a majority of the shares of common stock outstanding will be able to elect all of our directors; and |
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our stockholders must comply with advance notice provisions to bring business before or nominate directors for election at a stockholder meeting. |
Potential Effects of Authorized but Unissued
Stock
We have shares of common stock available for future
issuance without stockholder approval. We may utilize these additional shares for a variety of corporate purposes, including future public
offerings to raise additional capital, to facilitate corporate acquisitions or payment as a dividend on the capital stock.
The existence of unissued and unreserved common
stock may enable our board of directors to issue shares to persons friendly to current management.
Limitations of Director Liability and Indemnification
of Directors, Officers and Employees
NRS 78.138 provides that directors of a corporation
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 or her capacity as a director or officer unless: (a) the presumption that directors and officers acted in good faith on an
informed basis with a view toward the best interest of the corporation has been rebutted and (b) it is proven that:
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The director’s or officer’s act or failure to act constituted a breach of his or her fiduciary duties as a director or officer; and |
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such breach involved intentional misconduct, fraud or a knowing violation of law. |
Our Articles of Incorporation and Bylaws provide
that we will indemnify our directors and officers to the fullest extent permitted by law and may indemnify employees and other agents.
Our Articles of Incorporation also provide that we are obligated to advance expenses incurred by a director or officer in advance of the
final disposition of any action or proceeding.
We have obtained a policy of directors’
and officers’ liability insurance.
We have entered into separate
indemnification agreements with our directors and officers. These agreements, among other things, require us to indemnify our
directors and officers for any and all expenses (including reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by such directors or
officers or on his or her behalf in connection with any action or proceeding arising out of their services 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
provided that such person follows the procedures for determining entitlement to indemnification and advancement of expenses set
forth in the indemnification agreement. We believe that these bylaw provisions and indemnification agreements are necessary to
attract and retain qualified persons as directors and officers.
The limitation of liability and indemnification
provisions in our Articles of Incorporation and Bylaws may discourage stockholders from bringing a lawsuit against directors for breach
of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, even though an
action, if successful, might provide a benefit to us and our stockholders. Our results of operations and financial condition may be harmed
to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or persons controlling us, we have been informed that, in the opinion
of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
At present, there is no pending litigation or proceeding involving
any of our directors or officers as to which indemnification is required or permitted, and we are not aware of any threatened litigation
or proceeding that may result in a claim for indemnification.
Listing of the Common Stock on the NYSE American
LLC
Our common stock is listed for trading on the
NYSE American LLC under the symbol “TOVX.”
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is Equiniti Trust Company.
Stock Options
As of September 9, 2024, we had options
outstanding to purchase an aggregate of 175,191 shares of common stock that were issued under our equity compensation plans. As of September 9,
2024, there were 112,640 shares of common stock reserved for future issuance under our equity incentive plan.
Preferred Stock
As of September 9, 2024, there are no
shares of preferred stock outstanding.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time,
in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized
below will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any
debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under
a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indenture,
we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.
We will issue the debt securities under the indenture
that we will enter into with the trustee named in the indenture. The indenture will be qualified under the Trust Indenture Act of 1939,
as amended (the “Trust Indenture Act”). We have filed the form of indenture as an exhibit to the registration statement of
which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities
being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference
from reports that we file with the SEC.
The following summary of material provisions of
the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of the indenture
applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplement and any related free writing
prospectus related to the debt securities that we may offer under this prospectus, as well as the complete indenture that contains the
terms of the debt securities.
General
The indenture will not limit the amount of debt
securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and may be
in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially
all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to
give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.
We may issue the debt securities issued under
the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These
debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,”
or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material
U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable
prospectus supplement.
We will describe in the applicable prospectus
supplement the terms of the series of debt securities being offered, including:
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the title of the series of debt securities; |
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any limit upon the aggregate principal amount that may be issued; |
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the maturity date or dates; |
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the form of the debt securities of the series; |
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the applicability of any guarantees; |
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination; |
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if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another security or the method by which any such portion shall be determined; |
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the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; |
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our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions; |
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the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable; |
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; |
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any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt securities of that series; |
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any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt securities of that series; |
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any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt securities of that series; |
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whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities; and the depositary for such global security or securities; |
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if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange; |
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if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall be payable upon declaration of acceleration of the maturity thereof; |
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additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or sale covenant; |
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additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable; |
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additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
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additions to or changes in the provisions relating to satisfaction and discharge of the indenture; |
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additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture; |
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the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; |
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whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election may be made; |
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the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes; |
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any restrictions on transfer, sale or assignment of the debt securities of the series; and |
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities.
We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at the option
of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock or our other securities
that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our ability
to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as an entirety.
However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under the indenture
or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect
to any series of debt securities that we may issue:
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if we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this purpose; |
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if we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any; |
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if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
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if specified events of bankruptcy, insolvency or reorganization occur. |
If an event of default with respect to debt securities
of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders
of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the
trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and
payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of
and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action
on the part of the trustee or any holder.
The holders of a majority in principal amount
of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its
consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured
the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture, if an event
of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or
powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such
holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
A holder of the debt securities of any series
will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other remedies only
if:
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the holder has given written notice to the trustee of a continuing event of default with respect to that series; |
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, |
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such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by the trustee in compliance with the request; and |
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the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These limitations do not apply to a suit instituted
by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the
trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture without
the consent of any holders with respect to specific matters:
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to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
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to comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale;” |
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
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to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred upon us in the indenture; |
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to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture; |
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to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect; |
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to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above under “Description of Debt Securities—General” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities; |
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to evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or |
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to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In addition, under the indenture, the rights of
holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority
in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we provide otherwise
in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make the following changes only
with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of any debt securities of any series; |
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any series of any debt securities; or |
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each indenture provides that we can elect to be
discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations
to:
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provide for payment; |
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register the transfer or exchange of debt securities of the series; |
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replace stolen, lost or mutilated debt securities of the series; |
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pay principal of and premium and interest on any debt securities of the series; |
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maintain paying agencies; |
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hold monies for payment in trust; |
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recover excess money held by the trustee; |
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compensate and indemnify the trustee; and |
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appoint any successor trustee. |
In order to exercise our rights to be discharged,
we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest
on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series
only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement, in denominations
of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series in temporary or permanent
global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company, or DTC, or another
depositary named by us and identified in the applicable prospectus supplement with respect to that series. To the extent the debt securities
of a series are issued in global form and as book-entry, a description of terms relating such securities will be set forth in the applicable
prospectus supplement.
At the option of the holder, subject to the terms
of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of
the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination
and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and the
limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present
the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed
if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated
by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will impose
no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement
the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities.
We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt
securities of each series.
If we elect to redeem the debt securities of any
series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or |
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part. |
Information Concerning the Trustee
The trustee, other than during the occurrence
and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the
applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation to exercise any
of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose
name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for
the interest.
We will pay principal of and any premium and interest
on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement, we will make interest payments by check that we will mail to the holder or by wire transfer to
certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate the corporate trust office of
the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus
supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying
agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the trustee
for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after
such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may
look only to us for payment thereof.
Governing Law
The indenture and the debt securities will be
governed by and construed in accordance with the internal laws of the State of New York, except to the extent that the Trust Indenture
Act is applicable.
DESCRIPTION OF WARRANTS
The following description, together with the additional
information we may include in any applicable prospectus supplement and in any related free writing prospectus, summarizes the material
terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to purchase common stock,
preferred stock or debt securities and may be issued in one or more series. Warrants may be offered independently or in combination with
common stock, preferred stock or debt securities offered by any prospectus supplement. While the terms we have summarized below will apply
generally to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants in
more detail in the applicable prospectus supplement. The following description of warrants will apply to the warrants offered by this
prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus supplement for a particular
series of warrants may specify different or additional terms.
We have filed or will file forms of the warrant
agreements and forms of warrant certificates containing the terms of the warrants that may be offered as exhibits to the registration
statement of which this prospectus is a part. We will file as exhibits to the registration statement of which this prospectus is a part,
or will incorporate by reference from reports that we file with the SEC, the form of warrant and/or the warrant agreement and warrant
certificate, as applicable, that contain the terms of the particular series of warrants we are offering, and any supplemental agreements,
before the issuance of such warrants. The following summaries of material terms and provisions of the warrants are subject to, and qualified
in their entirety by reference to, all the provisions of the form of warrant and/or the warrant agreement and warrant certificate, as
applicable, and any supplemental agreements applicable to a particular series of warrants that we may offer under this prospectus. We
urge you to read the applicable prospectus supplement related to the particular series of warrants that we may offer under this prospectus,
as well as any related free writing prospectus, and the complete form of warrant and/or the warrant agreement and warrant certificate,
as applicable, and any supplemental agreements, that contain the terms of the warrants.
General
We will describe in the applicable prospectus
supplement the terms of the series of warrants being offered, including, to the extent applicable:
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the offering price and aggregate number of warrants offered; |
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the currency for which the warrants may be purchased; |
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the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security; |
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the date on and after which the warrants and the related securities will be separately transferable; |
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
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the terms of any rights to redeem or call the warrants; |
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the dates on which the right to exercise the warrants will commence and expire; |
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the manner
in which the warrant agreements and warrants may be modified; |
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a discussion of material
United States federal income tax consequences of holding or exercising the warrants; |
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the terms of the securities issuable upon exercise of the warrants; and |
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before exercising their warrants, holders of warrants
will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any; or |
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in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture. |
Exercise of Warrants
Each warrant will entitle the holder to purchase
the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus
supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at
any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of
business on the expiration date, unexercised warrants will become void.
Unless we otherwise specify in the applicable
prospectus supplement, holders of the warrants may exercise the warrants by delivering the warrant or warrant certificate representing
the warrants to be exercised together with specified information, and paying the required amount to the warrant agent, if applicable,
in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of any warrant
certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to
any warrant agent in connection with the exercise of the warrant.
Upon receipt of payment and the warrant or warrant
certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent, if any, or any other
office, including ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants (or the warrants represented by such warrant certificate) are exercised, a new warrant
or a new warrant certificate, as applicable, will be issued for the remaining warrants.
Governing Law
Unless we provide otherwise in the applicable
prospectus supplement, the warrants and warrant agreements, and any claim, controversy or dispute arising under or related to the warrants
or warrant agreements, will be governed by and construed in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent, if any, will act solely as
our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder
of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have
no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the
related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities
purchasable upon exercise of, its warrants.
DESCRIPTION OF UNITS
The following description, together with the additional
information we may include in any applicable prospectus supplement and related free writing prospectus, summarizes the material terms
and provisions of the units that we may offer under this prospectus. We may issue units consisting of any combination of the other types
of securities offered under this prospectus in one or more series. We will issue each unit so that the holder of the unit is also the
holder of each security included in the unit. As a result, the holder of a unit will have the rights and obligations of a holder of each
included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held
or transferred separately, at any time or at any time before a specified date. We may evidence each series of units by unit certificates
that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or
trust company that we select. We will indicate the name and address of any unit agent in the applicable prospectus supplement relating
to a particular series of units. The summary below and that contained in any prospectus supplement is qualified in its entirety by reference
to all of the provisions of the unit agreement and/or unit certificate, and depositary arrangements, if applicable. We urge you to read
the applicable prospectus supplements and any related free writing prospectuses related to the units that we may offer under this prospectus,
as well as the complete unit agreement and/or unit certificate, and depositary arrangements, as applicable, that contain the terms of
the units.
We will file as exhibits to the registration statement
of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit agreement
and/or unit certificate, and depositary arrangements, as applicable, that contain the terms of the particular series of units we are offering,
and any supplemental agreements, before the issuance of such units.
We will describe in the applicable prospectus
supplement the terms of the series of units being offered, including:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
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any provisions for the issuance, payment, settlement, transfer, or exchange of the units or of the securities composing the units; |
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whether the units will be issued in fully registered or global form; and |
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any other terms of the units. |
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or
in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have
securities registered in their own names on the books that we or any applicable trustee, depositary or warrant agent maintain for this
purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons
who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect
holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in
book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only,
as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities
registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate
in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial
interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered
is recognized as the holder of that security. Global securities will be registered in the name of the depositary or its participants.
Consequently, for global securities, we will recognize only the depositary as the holder of the securities, and we will make all payments
on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the
payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have
made with one another or with their customers; they are not obligated to do so under the terms of the securities.
As a result, investors in a global security will
not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities
are issued in global form, investors will be indirect holders, and not legal holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities
that are not issued in global form. In these cases, investors may choose to hold their securities in their own names or in “street
name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution
that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains
at that institution.
For securities held in street name, we or any
applicable trustee or depositary will recognize only the intermediary banks, brokers and other financial institutions in whose names the
securities are registered as the holders of those securities, and we or any such trustee or depositary will make all payments on those
securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only
because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities
in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of
any applicable trustee or third party employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations
to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case
whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global
form.
For example, once we make a payment or give a
notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with
its participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain
the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with
a particular provision of an indenture, or for other purposes. In such an event, we would seek approval only from the legal holders, and
not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders is up to the legal holders.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker
or other financial institution, either in book-entry form because the securities are represented by one or more global securities or in
street name, you should check with your own institution to find out:
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how it handles securities payments and notices; |
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whether it imposes fees or charges; |
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how it would handle a request for the holders’ consent, if ever required; |
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whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future; |
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how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and |
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if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global Securities
A global security is a security that represents
one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities
will have the same terms.
Each security issued in book-entry form will be
represented by a global security that we issue to, deposit with and register in the name of a financial institution or its nominee that
we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable
prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all securities issued
in book-entry form.
A global security may not be transferred to or
registered in the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations
arise. We describe those situations below under “—Special Situations When a Global Security Will Be Terminated.” As
a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and legal holder of all securities represented
by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must
be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with
another institution that does. Thus, an investor whose security is represented by a global security will not be a legal holder of the
security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular
security indicates that the security will be issued in global form only, then the security will be represented by a global security at
all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry
clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect holder, an investor’s rights
relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary,
as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead
deal only with the depositary that holds the global security.
If securities are issued only as global securities,
an investor should be aware of the following:
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an investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below; |
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an investor
will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or
her legal rights relating to the securities, as we describe above; |
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an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; |
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an investor may not be able to pledge his or her interest in the global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
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the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in the global security; |
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we and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in the global security, nor will we or any applicable trustee supervise the depositary in any way; |
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the depositary may, and we understand that DTC will, require that those who purchase and sell interests in the global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and |
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financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in the global security, may also have their own policies affecting payments, notices and other matters relating to the securities. |
There may be more than one financial intermediary
in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When a Global Security Will
Be Terminated
In a few special situations described below, a
global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that
exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their
own banks or brokers to find out how to have their interests in securities transferred to their own names, so that they will be direct
holders. We have described the rights of holders and street name investors above.
Unless we provide otherwise in the applicable
prospectus supplement, a global security will terminate when the following special situations occur:
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if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days; |
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if we notify any applicable trustee that we wish to terminate that global security; or |
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if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
The applicable prospectus supplement may also
list additional situations for terminating a global security that would apply only to the particular series of securities covered by the
applicable prospectus supplement. When a global security terminates, the depositary, and neither we nor any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities from time to time pursuant
to underwritten public offerings, direct sales to the public, “at the market” offerings, negotiated transactions, block trades
or a combination of these methods. We may sell the securities to or through one or more underwriters or dealers (acting as principal or
agent), through agents, or directly to one or more purchasers. We may distribute securities from time to time in one or more transactions:
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at a fixed price or prices, which may be changed; |
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at market prices prevailing at the time of sale; |
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at prices related to such prevailing market prices; or |
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at negotiated prices. |
A prospectus supplement or supplements (and any
related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the securities,
including, to the extent applicable:
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the name or names of the underwriters, dealers, agents or other purchasers, if any; |
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the purchase price of the securities or other consideration therefor, and the proceeds we will receive from the sale; |
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any option to purchase additional shares or other options under which underwriters, dealers, agents or other purchasers may purchase additional securities from us; |
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any agency fees or underwriting discounts to be allowed or paid to the agent or underwriters and other items constituting agents’ or underwriters’ compensation; |
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any public offering price; |
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any discounts or concessions allowed or reallowed or paid to dealers; and |
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any securities exchange or market on which the securities may be listed. |
Only underwriters named in the prospectus supplement
will be underwriters of the securities offered by the prospectus supplement. Dealers and agents participating in the distribution of the
securities may be deemed to be underwriters, and compensation received by them on resale of the securities may be deemed to be underwriting
discounts. If such dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities
Act.
If underwriters are used in the sale, they will
acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public
offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase the securities will
be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters
will be obligated to purchase all of the securities offered by the prospectus supplement other than securities covered by any option to
purchase additional shares or other option. If a dealer is used in the sale of securities, we, or an underwriter, will sell the securities
to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer
at the time of resale. To the extent required, we will set forth in the prospectus supplement the name of the dealer and the terms of
the transaction. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time
to time. We may use underwriters, dealers or agents with whom we have a material relationship. We will describe in the prospectus supplement,
naming the underwriter, dealer or agent, the nature of any such relationship.
We may sell securities directly or through agents
we designate from time to time. We will name any agent involved in the offering and sale of securities, and we will describe any commissions
we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, the agent will act on a best-efforts
basis for the period of its appointment.
We may authorize agents or underwriters to solicit
offers by certain types of institutional investors to purchase securities from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe
the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
We may provide agents, dealers and underwriters
with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution with respect to payments
that the agents, dealers or underwriters may make with respect to these liabilities. Agents, dealers and underwriters or their affiliates
may engage in transactions with, or perform services for, us in the ordinary course of business.
All securities we may offer, other than common
stock, will be new issues of securities with no established trading market. Any underwriters may make a market in these securities, but
will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity of
the trading markets for any securities.
Any underwriter may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids. Overallotment involves sales in excess of the offering size, which create
a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed
a specified maximum price. Syndicate covering or other short-covering transactions involve purchases of the securities, either through
exercise of the option to purchase additional shares or in the open market after the distribution is completed, to cover short positions.
Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the
dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the securities
to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time. These transactions
may be effected on any exchange or over-the-counter market or otherwise.
Any underwriters, dealers or agents that are qualified
market makers on the NYSE American LLC may engage in passive market making transactions in our common stock on the NYSE American LLC in
accordance Regulation M under the Exchange Act, during the business day prior to the pricing of the offering, before the commencement
of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations and must be identified
as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent
bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s
bid must then be lowered when certain purchase limits are exceeded. Passive market making may stabilize the market price of the securities
at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued at any time.
The specific terms of any lock-up provisions in respect of any given
offering will be described in the applicable prospectus supplement.
The anticipated date of delivery of offered securities
will be set forth in the applicable prospectus supplement relating to each offer.
LEGAL MATTERS
The
validity of the shares of common stock being offered by this prospectus is being passed upon by Parsons Behle & Latimer,
Reno, Nevada. Blank Rome LLP, New York, New York has acted as securities counsel to Theriva Biologics, Inc. Additional legal
matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
A partner of Blank Rome LLP has options to purchase shares of stock of Theriva Biologics, Inc. that represent less than 1% of the
outstanding shares of common stock of Theriva Biologics, Inc.
EXPERTS
The consolidated financial statements of Theriva
Biologics, Inc. as of December 31, 2023 and 2022 and for each of the two years in the period ended December 31, 2023 incorporated
by reference in this prospectus and in the registration statement of which this prospectus forms a part have been so incorporated in reliance
on the report of BDO USA, P.C, an independent registered public accounting firm, given on the authority of said firm as experts in auditing
and accounting. The report on the consolidated financial statements contains an explanatory paragraph regarding the Company's ability
to continue as a going concern.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement
we filed with the SEC. This prospectus does not contain all of the information set forth in the registration statement and the exhibits
to the registration statement. For further information with respect to us and the securities we are offering under this prospectus, we
refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement. Neither we nor any
agent, underwriter or dealer has authorized any person to provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as
of any date other than the date on the front page of this prospectus, regardless of the time of delivery of this prospectus or any
sale of the securities offered by this prospectus.
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public at the SEC’s website at www.sec.gov.
Our SEC filings are also available on our website, www.therivabio.com under the heading “Investor Relations—SEC Filings.”
The reference to our website is an inactive textual reference only, the information contained in, and that can be accessed through our
website, is not incorporated into and is not a part of this prospectus. We make available on our website our SEC filings as soon as reasonably
practicable after those reports are filed with the SEC.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
information from other documents that we file with it, which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered to be part of this prospectus. Information in this prospectus
supersedes information incorporated by reference that we filed with the SEC prior to the date of this prospectus.
We incorporate by reference into this prospectus
and the registration statement of which this prospectus is a part the information or documents listed below that we have filed with the
SEC (Commission File No. 001-12584):
|
● |
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 filed with the SEC on March 25, 2024; |
|
|
|
|
● |
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2024 filed with the SEC on May 7, 2024; |
|
|
|
|
● |
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2024 filed with the SEC on August 13, 2024; |
|
|
|
|
● |
Our Current Reports on
Form 8-K filed with the SEC on February 7,
2024, April 22, 2024 (other than as set forth therein), April 23,
2024 (other than as set forth therein) and May 2,
2024, May 16,
2024, May 23,
2024, (other than as set forth therein)July 31,
2024 (other than as set forth therein), August 16,
2024, August 26,
2024 and September 9, 2024; and |
|
|
|
|
● |
The description of our
common stock set forth in (i) our registration statements on Form 8-A12B,
filed with the SEC on June 20, 2007 (File No. 001-12584) and (ii) Exhibit 4.3—Description
of Securities to our Annual Report on Form 10-K for the fiscal year ended December 31, 2023. |
We also incorporate by reference any future
filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are
related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act, including those made (i) on or after the date of the filing of the registration statement
of which this prospectus forms a part and prior to effectiveness of such registration statement, and (ii) on or after the date of
this prospectus but prior to the termination of the offering (i.e., until the earlier of the date on which all of the securities registered
hereunder have been sold or the registration statement of which this prospectus forms a part has been withdrawn). Information in such
future filings updates and supplements the information provided in this prospectus. Any statements in any such future filings will automatically
be deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to
be incorporated herein by reference to the extent that statements in the later filed document modify or replace such earlier statements.
We will furnish without charge to each person, including any beneficial
owner, to whom a prospectus is delivered, upon written or oral request, a copy of any or all of the documents incorporated by reference
into this prospectus but not delivered with the prospectus, including exhibits that are specifically incorporated by reference into such
documents. You should direct any requests for documents to:
Theriva Biologics, Inc.
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
Telephone (301) 417-4364
Attention: Corporate Secretary
You may also access these documents, free of charge,
on the SEC’s website at www.sec.gov or on our website at https://ir.therivabio.com/sec-filings. The information contained
in, or that can be accessed through, our website is not incorporated by reference in, and is not part of, this prospectus or any accompanying
prospectus supplement.
In accordance with Rule 412 of the Securities
Act, any statement contained in a document incorporated by reference herein shall be deemed modified or superseded to the extent that
a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
You should rely only on information contained
in, or incorporated by reference into, this prospectus and any prospectus supplement. We have not authorized anyone to provide you with
information different from that contained in this prospectus or incorporated by reference into this prospectus. We are not making offers
to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such
offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such an offer or solicitation.
PART II
INFORMATION NOT REQUIRED IN THE 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 Theriva Biologics, Inc. (the “Registrant”), in connection
with the offering of the securities pursuant to this registration statement.
SEC registration fee | |
$ | * | |
FINRA filing fee | |
| 30,500 | |
Transfer agent and registrar expenses | |
| | (1) |
Accounting fees and expenses | |
| | (1) |
Legal fees and expenses | |
| | (1) |
Printing and engraving expenses | |
| | (1) |
Miscellaneous | |
$ | | (1) |
Total | |
$ | | (1) |
(1) |
These fees are calculated based on the securities offered and the number of issuances and, accordingly, cannot be estimated at this time. An estimate of the aggregate expenses in connection with the sale and distribution of securities being offered will be included in the applicable prospectus supplement. |
|
|
* |
Excludes the registration fee previously paid in connection with unsold securities pursuant to Rule 415(a)(6). |
Item 15. Indemnification of Directors and Officers.
Section 78.138 of the Nevada Revised Statute
provides that, subject to certain exceptions, 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 the presumption
that the director or officer acted in good faith, on an informed basis and with a view to the interest of the corporation is rebutted
and 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 a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right
of the corporation, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise or as a manager of a limited-liability company, against expenses, including attorneys’ fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding
if the person is not liable as provided above and acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interest of a company and, with respect to any criminal action or proceeding, had no reasonable cause to behave
his conduct was unlawful.
The registrant has entered into separate indemnification
agreements with each of the registrant’s directors and certain of the registrant’s officers which require the registrant,
among other things, to indemnify them against certain liabilities which may arise by reason of their status as directors or officers.
The Registrant has an insurance policy in place
that covers its officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or
otherwise.
Any underwriting agreement, agency agreement,
equity distribution agreement or similar agreement that the Registrant may enter into will likely provide for indemnification by any underwriters
or agents of the Registrant, its directors, its officers who sign the registration statement and the Registrant’s controlling persons
for some liabilities, including liabilities arising under the Securities Act.
Item 16. Exhibits.
The exhibits
to this registration statement are listed in the Exhibit Index to this registration statement, which immediately precedes the Signature
Page and which Exhibit Index is hereby incorporated by reference.
Item 17. Undertakings.
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 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, as amended, or the Exchange
Act, that are incorporated by reference in this registration statement or are contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of 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. |
|
(4) |
That, for the purpose of determining liability under the Securities Act 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 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. |
|
(5) |
That, for the purpose of determining liability of the registrant under the Securities Act 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. |
|
(6) |
That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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. |
|
(7) |
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act. |
|
(8) |
Insofar as indemnification for liabilities arising under the Securities 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue. |
EXHIBIT INDEX
Exhibit Number |
|
Description |
1.1 |
|
Amended
and Restated At Market Issuance Sales Agreement, dated February 9, 2021, by and among Synthetic Biologics, Inc., B. Riley
Securities, Inc. and A.G.P./Alliance Global Partners (Incorporated by reference to Exhibit 1.1 of the Registrant’s
Current Report on Form 8-K filed February 9, 2021, File No. 001-12584.) |
|
|
|
1.2 |
|
Amendment
No. 1 to the Amended and Restated At Market Issuance Sales Agreement (Incorporated by reference to Exhibit 1.1 of the Registrant’s
Current Report on Form 8-K filed May 3, 2021, File No. 001-12584.) |
|
|
|
1.3 |
|
Amendment
No. 2 to the Amended and Restated At Market Issuance Sales Agreement (Incorporated by reference to Exhibit 10.3 of the
Registrant’s Current Report on Form 8-K filed May 2, 2024, File No. 001-12584.) |
|
|
|
1.4** |
|
Form of Underwriting
Agreement |
|
|
|
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.) |
|
|
|
3.4 |
|
Articles
of Incorporation filed with the Nevada Secretary of State (Incorporated by reference to Exhibit 3.3 of the Registrant’s
Current Report on Form 8-K filed October 19, 2009, File No. 001-12584.) |
|
|
|
3.5 |
|
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.) |
|
|
|
3.6 |
|
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.) |
|
|
|
3.7 |
|
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 September 8, 2017, File No. 001-12584.) |
|
|
|
3.8 |
|
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.) |
|
|
|
3.9 |
|
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.) |
|
|
|
3.10 |
|
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.) |
|
|
|
3.11 |
|
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.) |
3.12 |
|
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.) |
|
|
|
3.13 |
|
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.) |
|
|
|
3.14 |
|
Certificate
of Change filed with the Secretary of State of the State of Nevada on July 21, 2022 (effective as of July 25, 2022) (Incorporated
by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on July 25, 2022 (File No. 001-12584.) |
|
|
|
3.15 |
|
Form of
Certificate of Designation of Series C Convertible Preferred Stock (Incorporated by reference to Exhibit 3.1 of the Registrant’s
Current Report on Form 8-K filed on July 29, 2022 (File No. 001-12584.) |
|
|
|
3.16 |
|
Form of
Certificate of Designation of Series D Convertible Preferred Stock (Incorporated by reference to Exhibit 3.2 of the Registrant’s
Current Report on Form 8-K filed on July 29, 2022 (File No. 001-12584.) |
|
|
|
3.17 |
|
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 on October 12, 2022 (File No. 001-12584.) |
|
|
|
3.18 |
|
Certificate
of Change to Articles of Incorporation (Incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on
Form 8-K filed on October 12, 2022 (File No. 001-12584.) |
|
|
|
3.19 |
|
Amended
and Restated By-Laws Synthetic Biologics, Inc. Adopted and Effective October 12, 2022 (Incorporated by reference to Exhibit 3.3
of the Registrant’s Current Report on Form 8-K filed on October 12, 2022 (File No. 001-12584.) |
|
|
|
3.20 |
|
Second
Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K
filed August 11, 2023, File No. 001-12584.) |
|
|
|
3.21 |
|
Certificate of Change
filed with the Secretary of State if Nevada on August 22, 2024 (effective as of August 26, 2024) (Incorporated by reference
to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed August 26, 2024, File No. 001-12584.) |
|
|
|
4.1 |
|
Specimen
Common Stock Certificate (incorporated by reference to Exhibit 4.8 to the Registration Statement on Form S-1 with the Securities
and Exchange Commission on May 6, 2013 (File No. 333-188365) |
|
|
|
4.2** |
|
Specimen Preferred Stock
Certificate and Form of Certificate of Designation of Preferred Stock |
|
|
|
4.3+ |
|
Form of
Indenture |
|
|
|
4.4** |
|
Form of Debt Securities |
|
|
|
4.5** |
|
Form of Common Stock
Warrant Agreement and Warrant Certificate |
|
|
|
4.6** |
|
Form of Preferred
Stock Warrant Agreement and Warrant Certificate |
|
|
|
4.7** |
|
Form of Debt Securities
Warrant Agreement and Warrant Certificate |
|
|
|
4.8** |
|
Form of Unit Agreement |
+ |
Previously
filed |
* |
Filed herewith. |
** |
To be filed, if applicable, by amendment or by a report filed under the Exchange Act and incorporated herein by reference. |
*** |
To be filed separately, if applicable, in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 as amended, and the appropriate rules and regulations thereunder. |
|
|
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 this Amendment No. 1 to the Registration Statement on Form S-3 and has duly caused this Amendment No. 1 to the
Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rockville,
State of Maryland, on the 11th day of September, 2024.
|
THERIVA BIOLOGICS, INC. |
|
|
|
By: |
/s/ Steven A. Shallcross |
|
Name: |
Steven A. Shallcross |
|
Title: |
Chief Executive Officer and Chief Financial Officer |
Pursuant to the requirements of the Securities
Act of 1933, this Amendment No. 1 to the Registration Statement on Form S-3 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,
Chief Financial Officer |
|
|
Steven A. Shallcross |
|
(Principal Executive Officer, Principal Financial
Officer and Principal Accounting Officer) and Member of the Board of Directors |
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September 11, 2024 |
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* |
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Member of the Board of Directors |
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September 11, 2024 |
Jeffrey J. Kraws |
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* |
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Member of the Board of Directors |
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September 11, 2024 |
Jeffrey Wolf |
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* |
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Member of the Board of Directors |
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September 11, 2024 |
John Monahan, Ph.D. |
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*By: |
/s/
Steven A. Shallcross |
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Steven A.
Shallcross |
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Attorney-in-Fact |
Exhibit 5.1(a)
![](https://www.sec.gov/Archives/edgar/data/894158/000110465924098796/tm2423559d1_ex5-1aimg001.jpg)
The Board of Directors
Theriva Biologics, Inc.
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
Re: Registration
Statement on Form S-3
Gentlemen:
We have acted as special Nevada
counsel to Theriva Biologics, Inc., a Nevada corporation (the “Company”), in connection with its filing
on the date hereof with the Securities and Exchange Commission (the “Commission”) of a registration statement
on Form S-3 (as amended, the “Registration Statement”), including a base prospectus (the “Base
Prospectus”), which provides that it will be supplemented by one or more prospectus supplements (each such prospectus supplement,
together with the Base Prospectus, a “Prospectus ”), under the Securities Act of 1933, as amended (the
“Act”), relating to the registration for issue and sale by the Company of up to $200,000,000 offering price
of (i) shares of common stock, par value $0.001 per share (“Common Stock”), including shares of Common
Stock as may from time to time be issued upon conversion or exchange of Debt Securities or Preferred Stock (each as defined below) or
the exercise of Warrants or Units (each as defined below); (ii) shares of preferred stock, par value $0.001 per share (“Preferred
Stock”), in one or more series; (iii) debt securities, in one or more series (the “Debt Securities”),
which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of the Debt Securities thereunder,
by and between a trustee to be selected by the Company (the “Trustee”) and the Company, and one or more indentures
supplemental thereto with respect to any particular series of Debt Securities (the “Indenture”); (iv) warrants
for the purchase of Common Stock, Preferred Stock or Debt Securities (“Warrants”) pursuant to one or more warrant
agreements (each, a “Warrant Agreement”) proposed to be entered into between the Company and one or more warrant
agents to be named in the applicable Warrant Agreement (each, a “Warrant Agent”) in the forms to be filed as
Exhibits 4.5, 4.6 and 4.7 to the Registration Statement; and (v) units consisting of one or more of the Company’s Common Stock,
Preferred Stock, Debt Securities or Warrants, or any combination of those securities (“Units”), pursuant to
one or more unit agreements (each, a “Unit Agreement”) proposed to be entered into between the Company and one
or more unit agents to be named in the applicable Unit Agreement (each, a “Unit Agent”). The Common Stock, Preferred
Stock, Debt Securities, Warrants and Units are collectively referred to herein as the “Securities.”
As such counsel, we have examined
such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied
upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified
such factual matters (“Reliance Documents”). We are opining herein as to the Nevada Revised Statutes (the “NRS”),
and we express no opinion with respect to the applicability thereto, or the effect thereon, of the federal securities laws, the laws of
any other jurisdiction or, in the case of Nevada, any other laws, or as to any matters of municipal law or the laws of any local agencies
within any state.
In connection with this opinion
letter, we have examined and relied upon the representations and warranties as to factual matters contained in and made pursuant to the
Reliance Documents, Registration Statement, and upon such other documents as in our judgment are necessary or appropriate to enable us
to render the opinions expressed herein.
The Board of Directors
Theriva Biologics, Inc.
September 11, 2024
Page 2
Our knowledge of the Company
and its legal and other affairs is limited by the scope of our engagement, which scope includes the delivery of this opinion letter. We
do not represent the Company with respect to all legal matters or issues. The Company may employ other independent counsel and, to our
knowledge, handles certain matters and issues without the assistance of independent counsel.
In our examination of the
foregoing, we have assumed, without independent investigation or verification: (i) the genuineness of all signatures on all agreements,
instruments and other documents submitted to us; (ii) the legal capacity and authority of all persons or entities executing all agreements,
instruments and other documents submitted to us; (iii) the authenticity and completeness of all agreements, instruments, corporate
records, certificates and other documents submitted to us as originals; (iv) that all agreements, instruments, corporate records,
certificate and other documents submitted to us as certified, electronic, facsimile, conformed, photostatic or other copies conform to
authentic originals thereof, and that such originals are authentic and complete; (v) the due authorization, execution and delivery
of all instruments, agreements, and other documents by the parties thereto; (vi) that the statements contained in the certificates
and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for
the purposes of this letter are true and correct; and (vii) that the officers and directors of the Company have properly exercised
their fiduciary duties. We have assumed that the issuance and sale of the Securities by the Company will not, in each case, violate or
constitute a default or breach under (i) any agreement or instrument to which the Company is subject, (ii) any law, rule or
regulation to which the Company is subject, (iii) any judicial or regulatory order or decree of any governmental authority, or (iv) any
consent, approval, license, authorization or validation of, or filing, recording or registration with any governmental authority.
We have further assumed that:
(i) the Registration Statement and any amendments thereto will have become effective under the Securities Act and comply with all
applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement; (ii) an appropriate
prospectus supplement, free writing prospectus or term sheet relating to the Securities offered thereby will be prepared and filed with
the Commission in compliance with the Act and will comply with all applicable laws at the time the Securities are offered or issued as
contemplated by the Registration Statement; (iii) all Securities will be issued and sold in compliance with the applicable provisions
of the Act and the Securities or Blue Sky Laws of various states and in the manner stated in the Registration Statement and the applicable
prospectus supplement; (iv) any purchase, underwriting, warrant, deposit, unit or similar agreement (collectively the “Securities
Agreements”) relating to the Securities being offered will be duly authorized, executed and delivered by the Company and
other parties thereto; (v) the terms of any Warrants and Units included in any Securities offered and issued as executed and delivered
are as described in the Registration Statement; and (vi) the number of shares of Common Stock offered pursuant to the Registration
Statement does not exceed, at the time of issuance, the authorized but unissued shares of Common Stock.
Opinions
Subject to the foregoing and
the other matters set forth herein, it is our opinion that, as of the date hereof:
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1. |
When an issuance of Common Stock has been duly authorized by all necessary corporate action of the Company, upon issuance, delivery and payment therefor in an amount not less than the par value thereof in the manner contemplated by the applicable Prospectus and by such corporate action, such shares of Common Stock will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the NRS. |
The Board of Directors
Theriva Biologics, Inc.
September 11, 2024
Page 3
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2. |
With respect to the shares of any series of Preferred Stock offered by the Company (the “Offered Preferred Stock”), when (i) a Certificate of Designations for the Offered Preferred Stock in accordance with the applicable provisions of Nevada corporate law (the “Certificate of Designations”) has been filed with, and accepted for record by, the Secretary of State of the State of Nevada, in the form to be filed as an exhibit to a post-effective amendment to the Registration Statement or as an exhibit to a Current Report on Form 8-K or other applicable report under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in the manner contemplated in the Registration Statement or any prospectus supplement relating thereto; (ii) the terms of the Offered Preferred Stock and of their issuance and sale have been duly established and are then in conformity with the Articles of Incorporation, including the Certificate of Designations relating to the Offered Preferred Stock, and the Bylaws so as not to violate any applicable law, the Articles of Incorporation or the Bylaws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or other governmental authority having jurisdiction over the Company; (iii) if the Offered Preferred Stock is to be certificated, certificates in the form required under Nevada corporate law representing the shares of Offered Preferred Stock have been duly executed and countersigned and (iv) the shares of Offered Preferred Stock are registered in the Company’s share registry and delivered upon payment of the agreed-upon consideration therefor, the shares of Offered Preferred Stock, when issued and sold or otherwise distributed in accordance with the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding agreement, will be duly authorized, validly issued, fully paid and non-assessable, provided that the consideration therefor is not less than $0.001 per share of Preferred Stock. |
This opinion is given as of
the date hereof. We assume no obligation to advise you of changes in law or facts that may hereafter be brought to our attention.
This opinion letter is for
your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant
to the applicable provisions of the Act. We consent to your filing this opinion letter as an exhibit to the Registration Statement and
to the reference to our firm contained in each of the Prospectus under the heading “Legal Matters.” We further consent to
the incorporation by reference of this letter and consent into any registration statement or post-effective amendment to the Registration
Statement filed pursuant to Rule 462(b) under the Act with respect to the Securities. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations
of the Commission thereunder.
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Very truly yours, |
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/s/ PARSONS BEHLE & LATIMER |
Exhibit 5.1(b)
![](https://www.sec.gov/Archives/edgar/data/894158/000110465924098796/tm2423559d1_ex5-1bimg001.jpg)
1271 Avenue of the Americas |New
York, NY 10020
blankrome.com
September 11, 2024
The Board of Directors
Theriva Biologics, Inc.
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
Re: |
Theriva Biologics, Inc. |
Ladies and Gentlemen:
We have acted as counsel to
Theriva Biologics, Inc., a Nevada corporation (the “Company”), in connection with its filing on the date
hereof with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-3
(as amended, the “Registration Statement”), including a base prospectus (the “Base Prospectus”),
which provides that it will be supplemented by one or more prospectus supplements (each such prospectus supplement, together with the
Base Prospectus, a “Prospectus”), under the Securities Act of 1933, as amended (the “Securities
Act”). The Registration Statement relates to, among other things, the offer and sale from time to time, pursuant to Rule 415
of the General Rules and Regulations promulgated under the Securities Act, of up to $200,000,000 of any combination of the following
securities of the Company (the “Registered Securities”): (i) shares of common stock, par value $0.001 per
share (“Common Stock”), including shares of Common Stock as may from time to time be issued upon conversion
or exchange of Preferred Stock or Debt Securities (each as defined below) or the exercise of Warrants or Units (each as defined below);
(ii) shares of preferred stock, par value $0.001 per share (“Preferred Stock”), in one or more series;
(iii) debt securities, in one or more series (the “Debt Securities”), which may be issued pursuant to an
indenture to be dated on or about the date of the first issuance of the Debt Securities thereunder, by and between a trustee to be selected
by the Company (the “Trustee”) and the Company, in the form filed as Exhibit 4.3 to the Registration Statement
and one or more indentures supplemental thereto with respect to any particular series of Debt Securities (the “Indenture”);
(iv) warrants for the purchase of Common Stock, Preferred Stock or Debt Securities (“Warrants”) pursuant
to one or more warrant agreements (each, a “Warrant Agreement”) proposed to be entered into between the Company
and one or more warrant agents to be named in the applicable Warrant Agreement (each, a “Warrant Agent”) in
the forms to be filed as Exhibits 4.5, 4.6 and 4.7 to the Registration Statement; and (v) units consisting of one or more of the
Company’s Common Stock, Preferred Stock, Debt Securities or Warrants, or any combination of those securities (“Units”),
pursuant to one or more unit agreements (each, a “Unit Agreement”) proposed to be entered into between the Company
and one or more unit agents to be named in the applicable Unit Agreement (each, a “Unit Agent”). The Common
Stock, Preferred Stock, Debt Securities, Warrants and Units are collectively referred to herein as the “Securities.”
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering this opinion,
we have assumed, without inquiry, (i) the authenticity of all documents submitted to us as originals; (ii) the conformity to
the original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity
of the originals of such copies; (iii) the legal capacity of all natural persons and the genuineness of all signatures on the Registration
Statement and all documents submitted to us; and (iv) that the books and records of the Company are maintained in accordance with
proper corporate procedures.
Theriva Biologics, Inc.
September 11, 2024
Page 2
In making our examination
of executed documents or documents to be executed, we have assumed that the parties thereto had or will have the power, corporate or other,
to enter into and perform all obligations thereunder and we have also assumed the due authorization by all requisite action, corporate
or other, and execution and delivery by such parties of such documents and (except to the extent we have opined on such matters below)
the validity and binding effect on such parties. In addition, we have assumed that (i) a purchase, underwriting or similar agreement
with respect to any Registered Securities will have been duly authorized and validly executed and delivered by the Company and the other
parties thereto; (ii) the Registration Statement and any amendments thereto will have become effective and comply with all applicable
laws at the time the Registered Securities are offered or issued as contemplated by the Registration Statement and no stop order suspending
its effectiveness will have been issued and remain in effect; (iii) all Registered Securities will be issued and sold in compliance
with applicable federal and state securities laws and in the manner stated in the Registration Statement and the applicable prospectus
supplement; (iv) a prospectus supplement or term sheet will have been prepared and filed with the Commission describing the Registered
Securities offered thereby and will comply at all relevant times with all applicable laws; (v) the Company will have obtained any
legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities necessary
(x) to issue and sell the Registered Securities being offered, and (y) to execute and deliver the applicable purchase, underwriting
or similar agreement, or other applicable operative document; (vi) any securities issuable upon conversion, exchange, redemption
or exercise of any Registered Securities being offered will be duly authorized, created and, if appropriate, reserved for issuance upon
such conversion, exchange, redemption or exercise and, with respect to shares of Common Stock or Preferred Stock offered, there will be
sufficient shares of Common Stock or Preferred Stock, as applicable, authorized under the Company’s Articles of Incorporation, as
amended (the “Articles of Incorporation”), and not otherwise reserved for issuance; (vii) at the time of
issuance of the Registered Securities, the Company validly exists and is duly qualified and in good standing under the laws of its jurisdiction
of incorporation, and has the necessary corporate power for such issuance; (viii) at the time of issuance of the Registered Securities,
the Articles of Incorporation and then-operative by-laws, including the current Amended and Restated By-Laws (the “By-Laws”)
of the Company are in full force and effect and have not been amended, restated, supplemented or otherwise altered, and there has been
no authorization of any such amendment, restatement, supplement or other alteration, in either case since the date hereof; and (ix) the
terms, execution and delivery of the Registered Securities (x) do not result in breaches of, or defaults under, agreements or instruments
to which the Company is bound or violations of applicable statutes, rules, regulations or court or governmental orders, and (y) comply
with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company. As to any
facts material to the opinions expressed herein that we have not independently established or verified, we have relied upon, and assumed
the accuracy of, statements and representations of officers and other representatives of the Company and others.
Based upon the foregoing and
subject to the limitations, qualifications, exceptions and assumptions stated herein, we are of the opinion that:
1. With respect to any
series of Debt Securities offered by the Company (the “Offered Debt Securities”), when (i) the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”); (ii) the
terms of the Offered Debt Securities and of their issuance and sale have been duly established in conformity with the Indenture and
any supplemental indenture relating to such Offered Debt Securities so as not to violate any applicable law, the Articles of
Incorporation or the By-laws, or result in a default under or breach of any agreement or instrument binding upon the Company and so
as to comply with any requirement or restriction imposed by any court or other governmental authority having jurisdiction over the
Company and (iii) the Offered Debt Securities, in a form compliant with the Indenture and any supplemental indenture relating
to such Offered Debt Securities and to be filed as an exhibit to a post-effective amendment to the Registration Statement or as an
exhibit to a Current Report on Form 8-K or other applicable report under the Exchange Act in the manner contemplated in the
Registration Statement or any prospectus supplement relating thereto, have been duly executed and authenticated in accordance with
the provisions of the Indenture and any supplemental indenture relating to such Offered Debt Securities and delivered to the
purchasers thereof upon payment of the agreed-upon consideration therefor, the Offered Debt Securities, when issued and sold or
otherwise distributed in accordance with the Indenture and any supplemental indenture relating to such Offered Debt Securities and
the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding agreement,
will be valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms
under the laws of the State of New York.
Theriva Biologics, Inc.
September 11, 2024
Page 3
2. With respect to any series
of Warrants offered by the Company (the “Offered Warrants”), when (i) a Warrant Agreement relating to the
Offered Warrants has been duly authorized, executed and delivered by the Company and the other parties thereto; (ii) the terms of
the Offered Warrants and their issuance and sale have been duly established and are then in conformity with the applicable Warrant Agreement
so as not to violate any applicable law, the Articles of Incorporation or the By-Laws or result in a default under or breach of any agreement
or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company and (iii) the Offered Warrants have been duly executed, delivered, countersigned, issued and
sold in accordance with the provisions of the applicable Warrant Agreement to be filed as an exhibit to a post-effective amendment to
the Registration Statement or as an exhibit to a Current Report on Form 8-K or other applicable report under the Exchange Act in
the manner contemplated in the Registration Statement or any prospectus supplement relating thereto, the Offered Warrants, when issued
and sold or otherwise distributed in accordance with the applicable Warrant Agreement and the applicable underwriting agreement, if any,
or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be valid and binding obligations
of the Company, enforceable against the Company in accordance with their respective terms under the laws of the State of New York.
3. With respect to any Units
offered by the Company (the “Offered Units”), when (i) a Unit Agreement relating to the Offered Units has
been duly authorized, executed and delivered by the Company and the other parties thereto; (ii) the terms of the Offered Units and
of their issuance and sale have been duly established and are then in conformity with the applicable Unit Agreement of which the Offered
Units are a component so as not to violate any applicable law, the Articles of Incorporation or the By-Laws, or result in a default under
or breach of any agreement or instrument binding upon the Company, and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company and (iii) the Offered Units have been duly executed, delivered,
countersigned, issued and sold in accordance with the provisions of the applicable Unit Agreement to be filed as an exhibit to a post-effective
amendment to the Registration Statement or as an exhibit to a Current Report on Form 8-K or other applicable report under the Exchange
Act in the manner contemplated in the Registration Statement or any prospectus supplement relating thereto, the Offered Units, when issued
and sold or otherwise distributed in accordance with the applicable Unit Agreement and the applicable underwriting agreement, if any,
or any other duly authorized, executed and delivered valid and binding agreement, will be duly authorized and validly issued and will
be valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms under the laws
of the State of New York.
In addition to the assumptions,
comments, qualifications, limitations and exceptions set forth above, the opinions set forth herein are further limited by, subject to
and based upon the following:
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a) |
Our opinions herein are expressed solely with respect to the applicable laws of the State of New York that, in our experience, are normally applicable to transactions of the type contemplated by the Registration Statement. The opinion set forth herein related to the Offered Units assumes that such Offered Units are governed by New York law. The opinions set forth herein are made as of the date hereof and are subject to, and may be limited by, future changes in the factual matters set forth herein, and we undertake no duty to advise you of the same that may occur after the Registration Statement becomes effective. The opinions expressed herein are based upon the law in effect (and published or otherwise generally available) on the date hereof, which laws are subject to change with possible retroactive effect, and we assume no obligation to revise or supplement these opinions should such law be changed by legislative action, judicial decision or otherwise after the Registration Statement becomes effective. In rendering our opinions, we have not considered, and hereby disclaim any opinion as to, the application or impact of any laws, cases, decisions, rules or regulations of any other jurisdiction, court or administrative agency. |
Theriva Biologics, Inc.
September 11, 2024
Page 4
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b) |
Our opinions set forth above are subject to and may be limited by (i) applicable bankruptcy, reorganization, insolvency, conservatorship, moratorium, fraudulent conveyance, debtor and creditor, and similar laws which relate to or affect creditors’ rights generally, and (ii) general principles of equity (including, without limitation, concepts of materiality, reasonableness, impossibility of performance, good faith and fair dealing) regardless of whether considered in a proceeding in equity or at law. |
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c) |
Our opinions are subject to the qualification that the availability of specific performance, an injunction or other equitable remedies is subject to the discretion of the court before which the request is brought. |
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d) |
You have informed us that you intend to issue the Registered Securities from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof. We understand that prior to issuing any Registered Securities you will afford us an opportunity to review the operative documents pursuant to which such Registered Securities are to be issued (including the applicable prospectus supplement) and will file such supplement or amendment to this opinion (if any) as we may reasonably consider necessary or appropriate by reason of the terms of such Registered Securities. |
We consent to the use of this
opinion as an exhibit to the Registration Statement. We also consent to any and all references to us in the prospectus which is part of
said Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent
is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. This
opinion is strictly limited to the matters stated herein and no other or more extensive opinion is intended, implied or to be inferred
beyond the matters expressly stated herein. This opinion letter is not a guaranty nor may one be inferred or implied.
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Very truly yours, |
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/s/ BLANK ROME |
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BLANK ROME LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the use in the Prospectus
constituting a part of this Registration Statement on Form S-3 (File No. 333-279077) of our report dated March 25, 2024,
relating to the consolidated financial statements of Theriva Biologics, Inc. (the Company), which is contained in that Prospectus.
Our report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.
We also consent to the reference to us under the
caption “Experts” in the Prospectus.
/s/ BDO USA, P.C.
Raleigh, North Carolina
September 11, 2024
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