Filed Pursuant to Rule 424(b)(5)
| PROSPECTUS |
Reg. No. 333-282024 |
918,600 Shares of Common Stock
1,428,600 Common Warrants to Purchase
Up to 1,428,600 Shares of Common Stock
510,000 Pre-Funded Warrants to Purchase Up
to 510,000 Shares of Common Stock
Up to 1,938,600 Shares of Common Stock Underlying
the Common Warrants and Pre-Funded Warrants
We are offering on a best efforts basis 918,600 shares of our common stock, par value $0.001 (the “Common
Stock”), and 510,000 pre-funded warrants (the “Pre-Funded Warrants”) to purchase up to 510,000 shares of Common Stock,
together with accompanying warrants to purchase up to 1,428,600 shares of our Common Stock. Each share of Common Stock, or a pre-funded
warrant in lieu thereof, is being sold together with a common warrant to purchase one share of Common Stock (the “Common Warrant”).
The shares of Common Stock and Common Warrants are immediately separable and will be issued separately in this offering, but must be purchased
together in this offering. The public offering price for each share of Common Stock and accompanying Common Warrant is $1.75. Each Common
Warrant will have an exercise price per share of $2.00 and will be immediately exercisable. The Common Warrants will expire on the 5-year anniversary of the original issuance
date.
We are also offering Pre-Funded Warrants to each purchaser whose purchase
of shares of Common Stock in this offering would otherwise result in the purchaser, together with its affiliates and certain related parties,
beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding Common Stock immediately following
the consummation of this offering, in lieu of shares of Common Stock that would otherwise result in such purchaser’s beneficial
ownership exceeding 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding Common Stock. The public offering price of
each Pre-Funded Warrant and accompanying Common Warrant is $1.7499, which is equal to the price of one share of Common Stock and accompanying
Common Warrant in this offering, minus $0.0001, and the exercise price of each Pre-Funded Warrant will be $0.0001 per share. The Pre-Funded
Warrants will be immediately exercisable and may be exercised at any time until all of the Pre-Funded Warrants are exercised in full.
The Pre-Funded Warrants and Common Warrants are immediately separable and will be issued separately in this offering, but must be purchased
together in this offering.
We have engaged A.G.P./Alliance Global Partners
(“A.G.P.” or the “Placement Agent”), to act as our sole placement agent, to use its reasonable best efforts to
arrange for the sale of the securities offered by this prospectus. The Placement Agent is not purchasing or selling any of the securities
we are offering, and the Placement Agent is not required to arrange the purchase or sale of any specific number or dollar amount of securities.
The securities will be offered at a fixed
price and are expected to be issued in a single closing. The offering will terminate on October 15, 2024, unless (i) the
closing occurs prior thereto or (ii) we decide to terminate the offering prior thereto (which we may do at any time in our
discretion). Investors purchasing securities offered hereby will have the option to execute a securities purchase agreement with us.
We expect that the closing of the offering will occur on or about September 27, 2024 but no later than one trading day after
we price the securities offered hereby. When we price the securities, we
will simultaneously enter into securities purchase agreements relating to the offering with those investors who so choose. The
offering will settle delivery versus payment (“DVP”)/receipt versus payment (“RVP”). That is, on the closing
date, we will issue the shares of Common Stock directly to the account(s) at the Placement Agent identified by each purchaser;
upon receipt of such shares, the Placement Agent shall promptly electronically deliver such shares to the applicable purchaser, and
payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to us.
Since we will deliver the securities to be issued
in this offering upon our receipt of investor funds, we and the Placement Agent have not made any arrangements to place investor funds
in an escrow account or trust account. Because this is a best-efforts offering, the Placement Agent does not have an obligation to purchase
any securities, and, as a result, there is a possibility that we may not be able to sell the securities. There is no minimum offering
requirement as a condition of closing of this offering. Because there is no minimum offering amount required as a condition to closing
this offering, we may sell fewer than all of the securities offered hereby, which may significantly reduce the amount of proceeds received
by us, and investors in this offering will not receive a refund in the event that we do not sell an amount of securities sufficient to
pursue our business goals described in this prospectus. In addition, because there is no escrow account and no minimum offering amount,
investors could be in a position where they have invested in our company, but we are unable to fulfill all of our contemplated objectives
due to a lack of interest in this offering. Further, any proceeds from the sale of securities offered by us will be available for our
immediate use, despite uncertainty about whether we would be able to use such funds to effectively implement our business plan. See the
section entitled “Risk Factors” for more information.
Our Common Stock is listed on the NYSE American
under the symbol “TOVX.” On September 25, 2024, the last reported sale price of our Common Stock
on the NYSE American was $2.37 per share. The public offering price per share of Common Stock and accompanying Common Warrant is $1.75,
and per Pre-Funded Warrant and accompanying Common Warrant is $1.7499. There is no established public trading market for the Common Warrants and the Pre-Funded Warrants, and we
do not expect such a market to develop. Without an active trading market, the liquidity of the Common Warrants and the Pre-Funded Warrants
will be limited. In addition, we do not intend to list the Common Warrants and the Pre-Funded Warrants on NYSE American, any other national
securities exchange or any other trading system.
On August 26, 2024, we effected a reverse stock split of
our Common Stock at a ratio of one-for-twenty five. Unless otherwise indicated, all financial information, share numbers, option numbers,
warrant numbers, other derivative security numbers and exercise prices appearing in this registration statement have been adjusted to
give effect to the reverse stock split.
Investing
in our securities involves risks. You should review carefully the risks and uncertainties described under the heading “Risk
Factors” contained in this prospectus and under similar headings in the other documents that are incorporated by reference
into this prospectus, as described beginning on page 6 of this prospectus.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of the securities to be issued under this prospectus or determined if
this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
| | |
Per Share of
Common Stock
and
Accompanying
Common
Warrant | | |
Per Pre-Funded
Warrant and
Accompanying
Common
Warrant | | |
Total | |
| Public offering price(1) | |
$ | 1.75 | | |
$ | 1.7499 | | |
$ | 2,499,999 | |
| Placement agent fees(2) | |
$ | 0.1225 | | |
$ | 0.1225 | | |
$ | 175,000 | |
| Proceeds to us, before expenses(3) | |
$ | 1.6275 | | |
$ | 1.6274 | | |
$ | 2,324,999 | |
| (1) |
The
combined public offering price is $1.75 per share of Common Stock and accompanying Common Warrant and $1.7499 per Pre-Funded Warrant
and accompanying Common Warrant. |
| |
|
| (2) |
Represents a cash fee equal
to 7.0% of the aggregate purchase price paid by investors in this offering. See “Plan of Distribution” for additional
disclosure regarding compensation payable to the Placement Agent. |
| |
|
| (3) |
Does not include proceeds
from the exercise of the Common Warrants and/or Pre-Funded Warrants in cash, if any. |
Delivery of the securities is expected to be made on or about September
27, 2024.
Sole Placement Agent
A.G.P.
The date of this prospectus is September 25, 2024
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
You should rely only on the information that
we have provided or incorporated by reference in this prospectus. We have not authorized anyone to provide you with different or additional
information. If anyone provides you with different or additional information, you should not rely on it. You should assume that the information
in this prospectus is accurate only as of the date on the cover of the document and that any information we have incorporated by reference
is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any
sale of a security. Our business, financial condition, results of operations and prospects may have changed since those dates.
We urge you to carefully read this prospectus,
together with the information incorporated herein by reference as described under the heading “Where You Can Find Additional
Information.”
In this prospectus, unless otherwise specified
or the context requires otherwise, we use the terms “Theriva,” “Company,” “we,” “us”
and “our” or similar references to refer to Theriva Biologics, Inc., a Nevada corporation, together with its consolidated
subsidiaries.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference into this prospectus include forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act
of 1934, as amended, or the Exchange Act, that relate to future events or our future financial performance and involve known and unknown
risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ materially
from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Words
such as, but not limited to, “anticipate,” “aim,” “believe,” “contemplate,” “continue,”
“could,” “design,” “estimate,” “expect,” “intend,” “may,” “might,”
“plan,” “predict,” “poise,” “project,” “potential,” “suggest,”
“should,” “strategy,” “target,” “will,” “would,” and similar expressions
or phrases, or the negative of those expressions or phrases, are intended to identify forward-looking statements, although not all forward-looking
statements contain these identifying words. Although we believe that we have a reasonable basis for each forward-looking statement contained
in this prospectus and incorporated by reference into this prospectus, we caution you that these statements are based on our projections
of the future that are subject to known and unknown risks and uncertainties and other factors that may cause our actual results, level
of activity, performance or achievements expressed or implied by these forward-looking statements, to differ. The section in this prospectus
entitled “Risk Factors” and the sections in our periodic reports, including the Annual
Report on Form 10-K for the year ended December 31, 2023 filed with the Securities and Exchange Commission( the “SEC”),
on March 25, 2024 entitled “Business,” “Risk Factors” and “Management’s Discussion and Analysis
of Financial Condition and Results of Operations,” and the Quarterly
Report on Form 10-Q for the quarter ended June 30, 2024 filed with the SEC on August 13, 2024 as well as other sections
in this prospectus and the documents or reports incorporated by reference into this prospectus, discuss some of the factors that could
contribute to these differences.
Please consider our
forward-looking statements in light of those risks as you read this prospectus and the documents incorporated by reference into this
prospectus. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or
the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any
forward-looking statements we may make. Given these uncertainties, you should not place undue reliance on these forward-looking statements.
You should not assume
that the information contained in this prospectus is accurate as of any date other than as of the date of this prospectus, or that any
information incorporated by reference into this prospectus is accurate as of any date other than the date of the document so incorporated
by reference. Except as required by law, we assume no obligation to update these forward-looking statements publicly, or to update the
reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes
available in the future. Thus, you should not assume that our silence over time means that actual events are bearing out as expressed
or implied in such forward-looking statements.
If one or more of these
or other risks or uncertainties materializes, or if our underlying assumptions prove to be incorrect, actual results may vary materially
from what we anticipate. All subsequent written and oral forward-looking statements attributable to us or individuals acting on our behalf
are expressly qualified in their entirety by this Note. Before purchasing any securities, you should consider carefully all of the factors
set forth or referred to in this prospectus and the documents incorporated by reference that could cause actual results to differ.
We may not actually achieve the plans, intentions
or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements.
Forward-looking statements should be regarded solely as our current plans, estimates and beliefs. We have included important factors
in the cautionary statements included in this document, particularly in the section entitled “Risk Factors” of this
prospectus that we believe could cause actual results or events to differ materially from the forward-looking statements that we make.
Moreover, we operate in a very competitive and rapidly changing environment. New risks emerge from time to time. It is not possible for
our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or
combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make.
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. Our forward-looking statements do not reflect the potential
impact of any future acquisitions, mergers, dispositions, joint ventures or investments we may make. You should read this prospectus
and the documents that we have filed as exhibits to this prospectus and incorporated by reference herein completely and with the understanding
that our actual future results may be materially different from the plans, intentions and expectations disclosed in the forward-looking
statements we make. The forward-looking statements contained in this prospectus are made as of the date of this prospectus and we do
not assume any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise,
except as required by applicable law.
PROSPECTUS SUMMARY
This summary contains basic information about
us and this offering. Because it is a summary, it does not contain all of the information that you should consider before deciding to
invest in our securities. Before you decide to invest in our securities, you should read this entire prospectus carefully and the documents
incorporated by reference herein, including the information included under the heading titled “Risk Factors.” Unless we specify
otherwise, all references in this prospectus to “Theriva,” “we,” “our,” “us” and “our
company” refer to Theriva Biologics, Inc.
The Company
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
of Theriva Biologics, S.L. (“VCN”, formerly named VCN Biosciences, S.L.), described in more detail below (the “Acquisition”),
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
*Based on management’s current beliefs and expectations
Defined
terms. allo-HCT allogeneic hematopoietic cell transplant. CSR clinical study report. HNSCC head and neck squamous
cell carcinoma. IV intravenous. IVit intravitreal. For other abbreviations see the text.
¹Additional 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.
²Depending on funding/partnership. SYN-004 may enter an FDA-agreed
Phase 3 clinical trial for the treatment of CDI.
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 a one for twenty-five reverse stock split
of our authorized, issued and outstanding Common Stock.
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.
THE OFFERING
All share information presented herein reflects
a 1-for-25 reverse stock split of our Common Stock, which was effected on August 26, 2024.
| Securities offered by us: |
918,600 shares of Common Stock and accompanying Common Warrants to purchase up to
918,600 shares of Common Stock and Pre-Funded Warrants to purchase up to 510,000 shares of Common Stock, together with accompanying
Common Warrants to purchase up to 1,428,600 shares of Common Stock on a reasonable “best efforts” basis. The shares of
Common Stock or the Pre-Funded Warrants, and accompanying Common Warrants are immediately separable and will be issued separately in
this offering, but must initially be purchased together in this offering. The Common Warrants are exercisable immediately, have an
exercise price of $2.00 per share, and will expire five years after the date of issuance. This prospectus also relates to the offering
of the shares of Common Stock issuable upon exercise of the Common Warrants and Pre-Funded Warrants. For more information regarding
the Common Warrants and Pre-Funded Warrants, you should carefully read the section titled “Description of Securities to be
Registered” in this prospectus. |
| |
|
| Pre-funded warrants offered by us in this offering |
We are also offering Pre-Funded Warrants to each purchaser whose purchase
of shares of Common Stock in this offering would otherwise result in the purchaser, together with its affiliates and certain related parties,
beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our outstanding Common Stock immediately following
the consummation of this offering in lieu of shares of Common Stock that would otherwise result in the purchaser’s beneficial ownership
exceeding 4.99% of our outstanding Common Stock (or, at the election of the purchaser, 9.99%). The Pre-Funded Warrants and accompanying
Common Warrants are immediately separable and will be issued separately in this offering, but must initially be purchased together in
this offering. The purchase price of each Pre-Funded Warrant and accompanying Common Warrant is $1.7499, which is equal to the price of
one share of Common Stock and accompanying Common Warrant in this offering, minus $0.0001. The Pre-Funded Warrants will be exercisable
immediately, have an exercise price of $0.0001 per share, and may be exercised at any time until all of the Pre-Funded Warrants are exercised
in full. For more information regarding the Pre-Funded Warrants, you should carefully read the section titled “Description of
Securities to be Registered” in this prospectus. |
| |
|
| Reasonable Best Efforts Offering |
We have agreed to issue and sell the securities offered hereby to the purchasers through the Placement Agent. The Placement Agent is not required to buy or sell any specific number or dollar amount of the securities offered hereby, but will use its reasonable best efforts to solicit offers to purchase the securities offered by this prospectus. See “Plan of Distribution” beginning on page 23 of this prospectus. |
| |
|
| Common stock to be outstanding after this offering |
2,272,462 shares (assuming no exercise of the Pre-Funded Warrants or
Common Warrants issued in this offering). |
| |
|
| Use of proceeds |
We estimate that we will receive approximately
$1.98 million in net proceeds from this offering, after deducting the estimated placement agent fees and estimated offering expenses.
We currently intend to use the net proceeds from this offering primarily for working capital and general corporate purposes, including for research and development and manufacturing scale-up. We may also use a portion of the net proceeds to invest in or acquire other products, businesses or technologies, although we have no commitments or agreements with respect to any such investments or acquisitions as of the date of this prospectus. See “Use of Proceeds” for additional information. |
| Lock-Up |
Our directors and
officers have agreed with the Placement Agent, subject to certain exceptions, not to sell, transfer or dispose
of, directly or indirectly, any of the Common Stock or securities convertible into or exercisable or exchangeable
for the Common Stock for a period of 90 days after the completion of this offering. See “Plan of
Distribution” for more information.
|
| Risk Factors |
You should carefully read
and consider the information set forth under “Risk Factors,” together with all of the other information set forth
in this prospectus, before deciding to invest in shares of the Common Stock. |
| |
|
| NYSE American symbol |
Our Common Stock is listed
on the NYSE American under the symbol “TOVX” |
Except as otherwise indicated, the number of
shares of Common Stock to be outstanding immediately after this offering is based on 1,353,862 shares of our Common Stock outstanding
as of September 25, 2024 and excludes:
| |
· |
175,191 shares of the Common Stock
issuable upon the exercise of outstanding stock options with a weighted average exercise price of $41.63 per share; and |
| |
· |
112,640 additional shares
of the Common Stock reserved for future issuance under our equity incentive plans. |
RISK FACTORS
Our business, results of operations and financial
condition and the industry in which we operate are subject to various risks. Accordingly, investing in our securities involves a high
degree of risk. This prospectus does not describe all of those risks. You should consider the risk factors described in this prospectus
below, as well as those described under the caption “Risk Factors” in the documents incorporated by reference herein, including
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2023 and our
Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2024 and June 30,
2024, together with the other information contained or incorporated by reference in this prospectus.
We have described below and in the documents
incorporated by reference herein the most significant risk factors applicable to us, but they do not constitute all of the risks that
may be applicable to us. New risks may emerge from time to time, and it is not possible for us to predict all potential risks or to assess
the likely impact of all risks. Before making an investment decision, you should carefully consider these risks as well as other information
we include or incorporate by reference in this prospectus. This prospectus also contains forward-looking statements that involve risks
and uncertainties. Our actual results could differ materially from those anticipated in the forward-looking statements as a result of
a number of factors, including the risks described below. See the section titled “Special Note Regarding Forward-Looking Statements.”
Risks Related to this Offering
We have broad
discretion in the use of the net proceeds from this offering and may not use them effectively.
We will have broad discretion
in the application of the net proceeds from this offering and could spend the proceeds in ways that do not improve our results of operations
or enhance the value of the Common Stock. Our failure to apply these funds effectively could result in financial losses that could have
a material adverse effect on our business, cause the price of our shares of Common Stock to decline and delay the development of our
product candidates. Pending their use, we may invest the net proceeds from this offering in a manner that does not produce income or
that loses value.
This is a reasonable best efforts offering,
with no minimum amount of securities required to be sold, and we may sell fewer than all of the securities offered hereby.
The Placement Agent has agreed to use its reasonable
best efforts to solicit offers to purchase the securities in this offering. The Placement Agent has no obligation to buy any of the securities
from us or to arrange for the purchase or sale of any specific number or dollar amount of the securities. There is no required minimum
number of securities that must be sold as a condition to completion of this offering, and there can be no assurance that the offering
contemplated hereby will ultimately be consummated. Even if we sell securities offered hereby, because there is no minimum offering amount
required as a condition to closing of this offering, the actual offering amount is not presently determinable and may be substantially
less than the maximum amount set forth on the cover page of this prospectus. We may sell fewer than all of the securities offered
hereby, which may significantly reduce the amount of proceeds received by us. Thus, we may not raise the amount of capital we believe
is required for our operations in the short-term and may need to raise additional funds, which may not be available or available on terms
acceptable to us.
Because there is no minimum required for
the offering to close, investors in this offering will not receive a refund in the event that we do not sell an amount of securities
sufficient to pursue the business goals outlined in this prospectus.
We have not specified a minimum offering amount
nor have or will we establish an escrow account in connection with this offering. Because there is no escrow account and no minimum offering
amount, investors could be in a position where they have invested in our company, but we are unable to fulfill our objectives due to
a lack of interest in this offering. Further, because there is no escrow account in operation and no minimum investment amount, any proceeds
from the sale of securities offered by us will be available for our immediate use, despite uncertainty about whether we would be able
to use such funds to effectively implement our business plan. Investor funds will not be returned under any circumstances whether during
or after the offering.
If the price of the Common Stock fluctuates
significantly, your investment could lose value.
Although the Common Stock is listed on the NYSE
American, we cannot assure you that an active public market will continue for the Common Stock. If an active public market for the Common
Stock does not continue, the trading price and liquidity of the Common Stock will be materially and adversely affected. If there is a
thin trading market or “float” for our stock, the market price for the Common Stock may fluctuate significantly more than
the stock market as a whole. Without a large float, the Common Stock would be less liquid than the stock of companies with broader public
ownership and, as a result, the trading prices of the Common Stock may be more volatile. In addition, in the absence of an active public
trading market, investors may be unable to liquidate their investment in us. Furthermore, the stock market is subject to significant
price and volume fluctuations, and the price of the Common Stock could fluctuate widely in response to several factors, including:
| · |
our quarterly or annual
operating results; |
| · |
changes in our earnings
estimates; |
| · |
investment recommendations
by securities analysts following our business or our industry; |
| · |
additions or departures
of key personnel; |
| · |
our failure to achieve operating results
consistent with securities analysts’ projections; |
| · | results
of our clinical trials; and |
| · |
changes in industry, general
market or economic conditions. |
The stock market has experienced extreme price
and volume fluctuations in recent years that have significantly affected the quoted prices of the securities of many companies, including
companies in our industry. The changes often appear to occur without regard to specific operating performance. The price of the Common
Stock could fluctuate based upon factors that have little or nothing to do with our company and these fluctuations could materially reduce
our stock price.
We do not intend to pay dividends on the
Common Stock, so any returns will be limited to increases, if any, in the Common Stock’s value. Your ability to achieve a return
on your investment will depend on appreciation, if any, in the price of the Common Stock.
We currently anticipate that we will retain future
earnings for the development, operation and expansion of our business and do not anticipate declaring or paying any cash dividends for
the foreseeable future. Any future determination to declare dividends will be made at the discretion of our board of directors and will
depend on, among other factors, our financial condition, operating results, capital requirements, general business conditions and other
factors that our board of directors may deem relevant. Any return to stockholders will therefore be limited to the appreciation in the
value of their stock, if any.
There is no public market for the Common
Warrants or Pre-Funded Warrants to purchase shares of the Common Stock being offered by us in this offering.
There is no established public trading market
for the Common Warrants or Pre-Funded Warrants to purchase shares of the Common Stock that are being offered as part of this offering,
and we do not expect a market to develop. In addition, we do not intend to apply to list the Common Warrants or Pre-Funded Warrants on
any national securities exchange or other nationally recognized trading system, including the NYSE American. Without an active market,
the liquidity of the Common Warrants and Pre-Funded Warrants will be limited.
The Common Warrants and Pre-Funded Warrants
are speculative in nature.
The Common Warrants and Pre-Funded Warrants offered
hereby do not confer any rights of Common Stock ownership on their holders, such as voting rights, but rather merely represent the right
to acquire shares of the Common Stock at a fixed price. Specifically, commencing on the date of issuance, holders of the Common Warrants
and Pre-Funded Warrants may exercise their right to acquire the shares of the Common Stock upon the payment of an exercise price of $2.00
per share in the case of Common Warrants and an exercise price of $0.0001 per share in the case of Pre-Funded Warrants. Moreover, following
this offering, the market value of the Common Warrants and Pre-Funded Warrants is uncertain and there can be no assurance that the market
value of the Common Warrants or Pre-Funded Warrants will equal or exceed their imputed public offering prices. Furthermore, each Common
Warrant will expire five years from the original issuance date and each Pre-Funded Warrant will not expire until it has been exercised
in full. In the event the price of the Common Stock does not exceed the exercise price of the Common Warrants during the period when
such Common Warrants are exercisable, the Common Warrants may not have any value. There is no established public trading market for the
Common Warrants and Pre-Funded Warrants being offered in this offering, and we do not expect a market to develop. In addition, we do
not intend to apply to list the Common Warrants or Pre-Funded Warrants on any securities exchange or nationally recognized trading system,
including NYSE American. Without an active market, the liquidity of the Common Warrants and Pre-Funded Warrants will be limited.
Holders of the Common Warrants and Pre-Funded
Warrants will have no rights as a common stockholder until they acquire shares of the Common Stock.
The Common Warrants and Pre-Funded Warrants in
this offering do not confer any rights of share ownership on their holders, but rather merely represent the right to acquire shares of
the Common Stock at a fixed price. Until holders of the Common Warrants and Pre-Funded Warrants acquire shares of the Common Stock upon
exercise of the Common Warrants and Pre-Funded Warrants, as applicable, holders of Common Warrants and Pre-Funded Warrants will have
no rights with respect to our shares of Common Stock underlying such Common Warrants and Pre-Funded Warrants.
Provisions of the Common Warrants and Pre-Funded
Warrants offered by this prospectus could discourage an acquisition of us by a third party.
In addition to the provisions of our articles
of incorporation, as amended and our second amended and restated bylaws, certain provisions of the Common Warrants and Pre-Funded Warrants
offered by this prospectus could make it more difficult or expensive for a third party to acquire us. The Common Warrants and Pre-Funded
Warrants prohibit us from engaging in certain transactions constituting “fundamental transactions” unless, among other things,
the surviving entity assumes our obligations under the Common Warrants or Pre-Funded Warrants, as applicable. These and other provisions
of the Common Warrants and Pre-Funded Warrants offered by this prospectus could prevent or deter a third party from acquiring us even
where the acquisition could be beneficial to you.
We may not receive
any additional funds upon the exercise of the Common Warrants or Pre-Funded Warrants.
Each Common Warrant
and each Pre-Funded Warrant may be exercised by way of a cashless exercise under certain circumstances, meaning that the holder may not
pay a cash purchase price upon exercise, but instead would receive upon such exercise the net number of shares of Common Stock determined
according to the formula set forth in the Common Warrant or Pre-Funded Warrant, respectively. Accordingly, we may not receive any additional
funds upon the exercise of the Common Warrants or Pre-Funded Warrants.
If we sell Common Stock or preferred stock
in the future, stockholders may experience immediate dilution and, as a result, our stock price may decline.
We may from time-to-time issue additional shares
of Common Stock or preferred stock at a discount from the current trading price of the Common Stock. As a result, our stockholders could
experience immediate dilution upon the purchase of any shares sold at such discount. In addition, as opportunities present themselves,
we may enter into financing or similar arrangements in the future, including the issuance of debt securities, Common Stock or preferred
stock. If we issue Common Stock or securities convertible into Common Stock, the holders of the Common Stock could experience additional
dilution and, as a result, our stock price may decline.
In addition, to the extent that any Common Warrants,
Pre-Funded Warrants or options are exercised, new options or restricted stock units are issued under our equity incentive plans, or we
otherwise issue additional shares of Common Stock in the future, at a price less than the public offering price, our stockholders could
experience dilution.
Purchasers who
purchase our securities in this offering pursuant to a securities purchase agreement may have rights not available to purchasers that
purchase without the benefit of a securities purchase agreement.
In addition to rights
and remedies available to all purchasers in this offering under federal securities and state law, the purchasers that enter into a securities
purchase agreement will also be able to bring claims of breach of contract against us. The ability to pursue a claim for breach of contract
provides those investors with the means to enforce the covenants uniquely available to them under the securities purchase agreement including,
but not limited to: (i) timely delivery of securities; (ii) agreement to not enter into any financings for 60 days from closing;
and (iii) indemnification for breach of contract.
Even though the 1-for-25 reverse stock split increased the market
price of our Common Stock, there can be no assurance that our increased stock price will remain at a price that will be sufficient in
order to continue to meet any requirements and policies of the NYSE American or that resulting market price will attract new investors.
There can be no assurance that the increased
stock price resulting from the 1-for-25 reverse stock split that we effected on August 26, 2024 will be sufficient in order to allow
us to continue to meet any requirements and policies of the NYSE American or that our Common Stock will remain listed on the NYSE American.
Although we believe that the higher market price of our Common Stock resulting from the reverse stock split may help generate greater
or broader investor interest, there can be no assurance that the resulting share price will attract new investors, including institutional
investors. In addition, there can be no assurance that the market price of our Common Stock will satisfy the investing requirements of
those investors. As a result, the trading liquidity of our Common Stock may not necessarily improve.
USE OF PROCEEDS
We estimate that we will receive net proceeds
from this offering of approximately $1.98 million, after deducting the estimated Placement Agent fees and estimated offering expenses
payable by us and assuming no exercise of the Pre-Funded Warrants or Common Warrants.
We currently intend to use the net proceeds from
this offering primarily for working capital and general corporate purposes, including for research and development and manufacturing
scale-up. We may also use a portion of the net proceeds to invest in or acquire other products, businesses or technologies, although
we have no commitments or agreements with respect to any such investments or acquisitions as of the date of this prospectus.
These estimates exclude the proceeds, if any,
from the exercise of Common Warrants offered hereby. If all of the Common Warrants offered hereby were to be exercised in cash at the
exercise price of $2.00 per share, we would receive additional proceeds of approximately $2.9 million. We cannot predict when or if
these Common Warrants will be exercised. It is possible that these Common Warrants may expire and may never be exercised. Additionally,
these Common Warrants contain a cashless exercise provision that permit exercise of such Common Warrants on a cashless basis at any time
when there is no effective registration statement under the Securities Act covering the issuance of the underlying shares.
The amounts and timing of any expenditures will
vary depending on the amount of cash generated by our operations, and the rate of growth, if any, of our business, and our plans and
business conditions. The foregoing represents our intentions as of the date of this prospectus based upon our current plans and business
conditions to use and allocate the net proceeds of the offering. However, our management will have significant flexibility and discretion
in the timing and application of the net proceeds of the offering. Unforeseen events or changed business conditions may result in application
of the proceeds of the offering in a manner other than as described in this prospectus.
To the extent that the net proceeds we receive
from the offering are not immediately applied for the above purposes, we plan to invest the net proceeds in short-term, investment-grade,
interest-bearing instruments and U.S. government securities.
DIVIDEND POLICY
We have never declared or paid any cash dividends
on the Common Stock and we do not currently intend to pay any cash dividends on the Common Stock in the foreseeable future. We expect
to retain all available funds and future earnings, if any, to fund the development and growth of our business. Any future determination
to pay dividends, if any, on the Common Stock will be at the discretion of our board of directors and will depend on, among other factors,
the terms of any outstanding preferred stock, our results of operations, financial condition, capital requirements and contractual restrictions.
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 Articles 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 25,
2024, there were 1,353,862 shares of 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
Our Board of Directors has the authority, without
action by our stockholders, to designate and issue up to 10,000,000 shares of preferred stock in one or more series or classes and to
designate the rights, preferences and privileges of each series or class, which may be greater than the rights of the Common Stock. It
is not possible to state the actual effect of the issuance of any shares of preferred stock upon the rights of holders of the Common
Stock until our Board of Directors determines the specific rights of the holders of the preferred stock. However, the effects might include:
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restricting dividends on
the Common Stock; |
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diluting the voting power
of the Common Stock; |
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impairing liquidation rights of the Common Stock; or |
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delaying or preventing a change in control of us without further action by our stockholders. |
The Board of Directors’ authority to issue
preferred stock without stockholder approval could make it more difficult for a third-party to acquire control of our company and could
discourage such attempt. We have 120,000 shares of preferred stock designated as Series A Convertible Preferred Stock, 15,723 shares
of preferred stock designated as Series B Convertible Preferred Stock, 275,000 shares of preferred stock designated as Series C
Convertible Preferred Stock, and 100,000 shares of preferred stock designated as Series D Convertible Preferred Stock. We currently
do not have any shares of preferred stock outstanding and have no present plans to issue any shares of 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 by any two directors; |
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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
The 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 the Common
Stock is Equiniti Trust Company.
Stock Options
As of September 25, 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 25,
2024, there were 112,640 shares of Common Stock reserved for future issuance under our equity incentive plan.
DESCRIPTION OF SECURITIES
TO BE REGISTERED
We are offering 918,600 shares of Common
Stock, Pre-Funded Warrants to purchase up to 510,000 shares of Common Stock, along with Common Warrants to purchase up to 1,428,600
shares of Common Stock. Each share of Common Stock or Pre-Funded Warrant is being sold together with a Common Warrant to purchase
one share of Common Stock. The shares of Common Stock or Pre-Funded Warrants and accompanying Common Warrants will be issued
separately. We are also registering the shares of Common Stock issuable from time to time upon exercise of the Pre-Funded Warrants
offered hereby and the Common Warrants offered hereby.
Common
Stock. See the description above under “Description of Capital Stock- Common Stock”
Common Warrants to
be Issued in this Offering
The following summary of certain terms and
provisions of the Common Warrants included with the Common Stock that are being offered hereby is not complete and is subject to, and
qualified in its entirety by, the provisions of the Common Warrants, the form of which is filed as an exhibit to our registration statement
of which this prospectus forms a part.
Duration and Exercise Price
Each Common Warrant offered hereby will be a warrant to purchase one share of Common
Stock and will have an initial exercise price equal to $2.00 per share. The Common Warrants will be exercisable immediately upon issuance and will expire five years from the date of issuance. The exercise price
and number of shares of Common Stock issuable upon exercise is subject to appropriate adjustment in the event of share dividends, share
splits, reorganizations or similar events affecting the Common Stock and the exercise price. Subject to the rules and regulations
of the applicable trading market, we may at any time during the term of the Common Warrant, subject to the prior written consent of the
holders, reduce the then current exercise price to any amount and for any period of time deemed appropriate by our board of directors.
The Common Warrants will be issued separately from the shares of Common Stock, or the Pre-Funded Warrants, as the case may be.
Exercisability
The Common Warrants will be exercisable, at the
option of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full for the
number of shares of Common Stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). A holder
(together with its affiliates) may not exercise any portion of the Common Warrant to the extent that the holder would own more than 4.99%
of the outstanding shares of our common warrant immediately after exercise, except that upon at least 61 days’ prior notice from
the holder to us, the holder may increase the amount of beneficial ownership of outstanding shares after exercising the holder’s
Common Warrants up to 9.99% of the number of our shares of Common Stock outstanding immediately after giving effect to the exercise,
as such percentage ownership is determined in accordance with the terms of the Common Warrants. Purchasers of Common Warrants in this
offering may also elect prior to the issuance of the Common Warrants to have the initial exercise limitation set at 9.99% of our outstanding
shares.
Cashless Exercise
If, at the time a holder exercises its Common
Warrants, a registration statement registering the issuance of the shares of Common Stock underlying the Common Warrants under the Securities
Act is not then effective or available for the issuance of such shares, then in lieu of making the cash payment otherwise contemplated
to be made to us upon such exercise in payment of the aggregate exercise price and subject to the nominal value of the shares being paid
up as described below, the holder may elect instead to receive upon such exercise (either in whole or in part) the net number of shares
determined according to a formula set forth in the Common Warrants.
Fractional Shares
No fractional shares of Common Stock or scrip
representing fractional shares will be issued upon the exercise of the Common Warrants. Rather, the number of shares of Common Stock
to be issued will, at our election, either be rounded up to the next whole share or we will pay a cash adjustment in respect of such
final fraction in an amount equal to such fraction multiplied by the exercise price.
Transferability
Subject to applicable laws, a Common Warrant
may be transferred at the option of the holder upon surrender of the Common Warrant to us together with the appropriate instruments of
transfer and funds sufficient to pay any transfer taxes payable upon such transfer.
Trading Market
There is no trading market available for the
Common Warrants on any securities exchange or nationally recognized trading system, and we do not expect a trading market to develop.
We do not intend to list the Common Warrants on any securities exchange or nationally recognized trading market. Without a trading market,
the liquidity of the Common Warrants will be extremely limited. The shares of Common Stock issuable upon exercise of the Common Warrants
are currently traded on the NYSE American.
Right as a Stockholder
Except as otherwise provided in the Common Warrants
or by virtue of such holder’s ownership of Common Stock, the holders of the Common Warrants do not have the rights or privileges
of holders of shares of Common Stock, including any voting rights, until they exercise their Common Warrants. The Common Warrants will
provide that holders have the right to participate in distributions or dividends paid on Common Stock.
Fundamental Transaction
In the event of a fundamental transaction, as
described in the Common Warrants and generally including (i) our merger or consolidation with or into another person, (ii) the
sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of our assets, (iii) any
purchase offer, tender offer or exchange offer pursuant to which holders of our Common Stock are permitted to sell, tender or exchange
their shares for other securities, cash or property and has been accepted by the holders of 50% or more of our outstanding Common Stock
or 50% or more of the voting power of our common equity, (iv) any reclassification, reorganization or recapitalization of our shares
of Common Stock or any compulsory share exchange or (v) any stock or share purchase agreement or other business combination with
another person or group of persons whereby such other person or group acquires 50% or more of our outstanding shares of Common Stock
or 50% or more of the voting power of our common equity, the holders will be entitled to receive the number of shares of the Common Stock
for which the Common Warrant is exercisable immediately prior to the occurrence of such fundamental transaction on a net exercise basis.
Notwithstanding the foregoing, in the event of a fundamental transaction, the holders of the Common Warrants have the right to require
us or a successor entity to redeem the Common Warrants for cash in the amount of the Black Scholes Value (as defined in each warrant)
of the unexercised portion of the Common Warrants concurrently with or within 30 days following the consummation of a fundamental transaction.
However, in the event of a fundamental transaction
which is not in our control, including a fundamental transaction not approved by our board of directors, the holders of the Common Warrants
will only be entitled to receive from us or our successor entity, as of the date of consummation of such fundamental transaction the
same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of the Common
Warrant that is being offered and paid to the holders of the Common Stock in connection with the fundamental transaction, whether that
consideration is in the form of cash, stock or any combination of cash and stock, or whether the holders of the Common Stock are given
the choice to receive alternative forms of consideration in connection with the fundamental transaction.
Pre-Funded Warrants to be Issued in this Offering
The following summary of certain terms and
provisions of the Pre-Funded Warrants that are being offered hereby is not complete and is subject to, and qualified in its entirety
by, the provisions of the Pre-Funded Warrant, the form of which is filed as an exhibit to our registration statement of which this prospectus
forms a part. Prospective investors should carefully review the terms and provisions of the form of Pre-Funded Warrant for a complete
description of the terms and conditions of the Pre-Funded Warrants.
Duration and Exercise Price
Each Pre-Funded Warrant offered hereby will have
an initial exercise price per share equal to $0.0001. The Pre-Funded Warrants will be immediately exercisable and will expire when exercised
in full. The exercise price and number of shares of Common Stock issuable upon exercise is subject to appropriate adjustment in the event
of share dividends, share splits, reorganizations or similar events affecting our shares of Common Stock and the exercise price. Subject
to the rules and regulations of the applicable trading market, we may at any time during the term of the Pre-Funded Warrant, subject
to the prior written consent of the holders, reduce the then current exercise price to any amount and for any period of time deemed appropriate
by our board of directors. The Pre-Funded Warrants will be issued separately from the common warrants.
Exercisability
The Pre-Funded Warrants will be exercisable,
at the option of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full
for the number of shares of Common Stock purchased upon such exercise (except in the case of a cashless exercise as discussed below).
A holder (together with its affiliates) may not exercise any portion of the Pre-Funded Warrant to the extent that the holder would own
more than 4.99% of the outstanding shares of the Common Stock immediately after exercise, except that upon at least 61 days’ prior
notice from the holder to us, the holder may increase the amount of beneficial ownership of outstanding shares after exercising the holder’s
Pre-Funded Warrants up to 9.99% of the number of our shares outstanding immediately after giving effect to the exercise, as such percentage
ownership is determined in accordance with the terms of the Pre-Funded Warrants. Purchasers of Pre-Funded Warrants in this offering may
also elect prior to the issuance of the Pre-Funded Warrants to have the initial exercise limitation set at 9.99% of our outstanding shares
of Common Stock.
Cashless Exercise
In lieu of making the cash payment otherwise contemplated
to be made to us upon such exercise of the Pre-Funded Warrants in payment of the aggregate exercise price, the holder may elect instead
to exercise its Pre-Funded Warrants (either in whole or in part), at such time by means of a cashless exercise in which the holder shall
be entitled to receive upon such exercise (either in whole or in part) the net number of shares of Common Stock determined according to
a formula set forth in the Pre-Funded Warrants.
Fractional Shares
No fractional shares of Common Stock or scrip
representing fractional shares will be issued upon the exercise of the Pre-Funded Warrants. Rather, the number of shares of Common Stock
to be issued will, at our election, either be rounded up to the next whole share or we will pay a cash adjustment in respect of such
final fraction in an amount equal to such fraction multiplied by the exercise price.
Transferability
Subject to applicable laws, a Pre-Funded Warrant
may be transferred at the option of the holder upon surrender of the Pre-Funded Warrant to us together with the appropriate instruments
of transfer and funds sufficient to pay any transfer taxes payable upon such transfer.
Trading Market
There is no trading market available for the
Pre-Funded Warrants on any securities exchange or nationally recognized trading system, and we do not expect a trading market to develop.
We do not intend to list the Pre-Funded Warrants on any securities exchange or nationally recognized trading market. Without a trading
market, the liquidity of Pre-Funded Warrants will be extremely limited. The shares of Common Stock issuable upon exercise of the Pre-Funded
Warrants are currently traded on the NYSE American.
Right as a Stockholder
Except as otherwise provided in the Pre-Funded
Warrants or by virtue of such holder’s ownership of Common Stock, the holders of the Pre-Funded Warrants do not have the rights
or privileges of holders of the Common Stock, including any voting rights, until they exercise their Pre-Funded Warrants. The Pre-Funded
Warrants will provide that holders have the right to participate in distributions or dividends paid on Common Stock.
Fundamental Transaction
In the event of a fundamental transaction, as
described in the Pre-Funded Warrants and generally including (i) our merger or consolidation with or into another person, (ii) the
sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of our assets, (iii) any
purchase offer, tender offer or exchange offer pursuant to which holders of the Common Stock are permitted to sell, tender or exchange
their shares for other securities, cash or property and has been accepted by the holders of 50% or more of our outstanding Common Stock
or 50% or more of the voting power of our common equity, (iv) any reclassification, reorganization or recapitalization of our shares
of Common Stock or any compulsory share exchange or (v) any stock or share purchase agreement or other business combination with
another person or group of persons whereby such other person or group acquires 50% or more of our outstanding shares of Common Stock
or 50% or more of the voting power of our common equity, the holders of the Pre-Funded Warrants will be entitled to receive upon exercise
of the Pre-Funded Warrants the kind and amount of securities, cash or other property that the holders would have received had they exercised
the Pre-Funded Warrants immediately prior to such fundamental transaction on a net exercise basis.
MATERIAL UNITED STATES
FEDERAL INCOME TAX CONSIDERATIONS
The following discussion
describes the material U.S. federal income tax consequences of the acquisition, ownership and disposition of the Common Stock, Pre-Funded
Warrants and Common Warrants acquired in this offering. This discussion is based on the current provisions of the Internal Revenue Code
of 1986, as amended, referred to as the Code, existing and proposed U.S. Treasury regulations promulgated thereunder, and administrative
rulings and court decisions in effect as of the date hereof, all of which are subject to change at any time, possibly with retroactive
effect. No ruling has been or will be sought from the Internal Revenue Service, or IRS, with respect to the matters discussed below,
and there can be no assurance the IRS will not take a contrary position regarding the tax consequences of the acquisition, ownership
or disposition of the Common Stock, Pre-Funded Warrants or Common Warrants, or that any such contrary position would not be sustained
by a court.
We assume in this discussion
that the shares of Common Stock, Pre-Funded Warrants and Common Warrants will be held as capital assets (generally, property held for
investment). This discussion does not address all aspects of U.S. federal income taxes, does not discuss the potential application of
the Medicare contribution tax or the alternative minimum tax and does not address state or local taxes or U.S. federal gift and estate
tax laws, except as specifically provided below with respect to non-U.S. holders, or any non-U.S. tax consequences that may be relevant
to holders in light of their particular circumstances. This discussion also does not address the special tax rules applicable to
particular holders, such as:
| · |
persons who acquired the
Common Stock, Pre-Funded Warrants or Common Warrants s as compensation for services; |
| · |
traders in securities that
elect to use a mark-to-market method of accounting for their securities holdings; |
| · |
persons that own, or are
deemed to own, more than 5% of the Common Stock (except to the extent specifically set forth below); |
| · |
persons required for U.S.
federal income tax purposes to conform the timing of income accruals to their financial statements under Section 451(b) of
the Code (except to the extent specifically set forth below); |
| · |
persons for whom the Common
Stock constitutes “qualified small business stock” within the meaning of Section 1202 of the Code or “Section 1244
stock” for purposes of Section 1244 of the Code; |
| · |
persons deemed to sell
the Common Stock, Pre-Funded Warrants or Common Warrants under the constructive sale provisions of the Code; |
| · |
banks or other financial
institutions; |
| · |
brokers or dealers in securities
or currencies; |
| · |
tax-exempt organizations
or tax-qualified retirement plans; |
| · |
regulated investment companies
or real estate investment trusts; |
| · |
persons that hold the Common
Stock, Pre-Funded Warrants or Common Warrants as part of a straddle, hedge, conversion transaction, synthetic security or other integrated
investment; |
| · |
controlled foreign corporations,
passive foreign investment companies, or corporations that accumulate earnings to avoid U.S. federal income tax; and |
| · |
certain U.S. expatriates,
former citizens, or long-term residents of the United States. |
In addition, this discussion
does not address the tax treatment of partnerships (including any entity or arrangement classified as a partnership for U.S. federal
income tax purposes) or other pass-through entities or persons who hold shares of Common Stock, Pre-Funded Warrants or Common Warrants
through such partnerships or other entities which are pass-through entities for U.S. federal income tax purposes. If such a partnership
or other pass-through entity holds shares of Common Stock, Pre-Funded Warrants or Common Warrants, the treatment of a partner in such
partnership or investor in such other pass-through entity generally will depend on the status of the partner or investor and upon the
activities of the partnership or other pass-through entity. A partner in such a partnership and an investor in such other pass-through
entity that will hold shares of Common Stock, Pre-Funded Warrants or Common Warrants should consult his, her or its own tax advisor regarding
the tax consequences of the ownership and disposition of shares of Common Stock, Pre-Funded Warrants or Common Warrants through such
partnership or other pass-through entity, as applicable.
This discussion of
U.S. federal income tax considerations is for general information purposes only and is not tax advice. Prospective investors should consult
their own tax advisors regarding the U.S. federal, state, local and non-U.S. income and other tax considerations of acquiring, holding
and disposing of the Common Stock, Pre-Funded Warrants and Common Warrants.
For the purposes of
this discussion, a “U.S. Holder” means a beneficial owner of shares of Common Stock, Pre-Funded Warrants or Common Warrants
that is for U.S. federal income tax purposes (a) an individual citizen or resident of the United States, (b) a corporation
(or other entity taxable as a corporation for U.S. federal income tax purposes), created or organized in or under the laws of the United
States, any state thereof or the District of Columbia, (c) an estate the income of which is subject to U.S. federal income taxation
regardless of its source, or (d) a trust if it (1) is subject to the primary supervision of a court within the United States
and one or more U.S. persons (within the meaning of Section 7701(a)(30) of the Code) has the authority to control all substantial
decisions of the trust or (2) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a domestic
trust. A “Non-U.S. Holder” is, for U.S. federal income tax purposes, a beneficial owner of shares of Common Stock, Pre-Funded
Warrants or Common Warrants that is not a U.S. Holder or a partnership for U.S. federal income tax purposes.
Potential Acceleration
of Income
Under tax legislation
signed into law in December 2017 commonly known as the Tax Cuts and Jobs Act of 2017, U.S. Holders that use an accrual method of
accounting for tax purposes and have certain financial statements generally will be required to include certain amounts in income no
later than the time such amounts are taken into account as revenue in such financial statements.
In addition, under the
Inflation Reduction Act signed into law on August 16, 2022, certain large corporations (generally, corporations reporting at least
$1 billion average adjusted pre-tax net income on their consolidated financial statements) are potentially subject to a 15% alternative
minimum tax on the “adjusted financial statement income” of such large corporations for tax years beginning after December 31,
2022. The U.S. Treasury Department, the IRS, and other standard-setting bodies are expected to issue guidance on how the alternative
minimum tax provisions of the Inflation Reduction Act will be applied or otherwise administered.
The application of these
rules thus may require the accrual of income earlier than would be the case under the general tax rules described below, although
the precise application of these rules is unclear at this time. U.S. Holders that use an accrual method of accounting should consult
with their tax advisors regarding the potential applicability of this legislation to their particular situation.
Treatment of Pre-Funded
Warrants
Although it is not entirely
free from doubt, a Pre-Funded Warrants should be treated as a share of Common Stock for U.S. federal income tax purposes and a holder
of Pre-Funded Warrants should generally be taxed in the same manner as a holder of Common Stock, as described below. Accordingly, no
gain or loss should be recognized upon the exercise of a Pre-Funded Warrant and, upon exercise, the holding period of a Pre-Funded Warrant
should carry over to the share of Common Stock received. Similarly, the tax basis of the Pre-Funded Warrant should carry over to the
share of Common Stock received upon exercise, increased by the exercise price of $0.0001 per share. Each holder should consult his, her
or its own tax advisor regarding the risks associated with the acquisition of Pre-Funded Warrants pursuant to this offering (including
potential alternative characterizations). The balance of this discussion generally assumes that the characterization described above
is respected for U.S. federal income tax purposes.
Allocation of Purchase Price
For U.S. federal income
tax purposes, each share of Common Stock (or, in lieu of Common Stock, each Pre-Funded Warrant t) and the accompanying Common Warrants
issued pursuant to this offering will be treated as an “investment unit” each of which consisting of one share of Common
Stock or one Pre-Funded Warrant (which, as described above, should generally be treated as a share of Common Stock for U.S. federal income
tax purposes), as applicable and the accompanying Common Warrant to acquire one share of Common Stock. The purchase price for each investment
unit will be allocated between these components in proportion to their relative fair market values at the time the unit is purchased
by the holder. This allocation of the purchase price for each unit will establish the holder’s initial tax basis for U.S. federal
income tax purposes in the share of Common Stock (or, in lieu of Common Stock, Pre-Funded Warrant) and the common warrant included in
each unit. The separation of the share of Common Stock (or, in lieu of Common Stock, Pre-Funded Warrant) and the Common Warrant included
in a unit should not be a taxable event for U.S. federal income tax purposes. Each holder should consult his, her or its own tax advisor
regarding the allocation of the purchase price between the Common Stock (or, in lieu of Common Stock, Pre-Funded Warrants) and the Common
Warrants.
Tax Considerations
Applicable to U.S. Holders
Exercise and Expiration
of Common Warrants
Except as discussed
below with respect to the cashless exercise of a Common Warrant, a U.S. Holder generally will not recognize gain or loss for U.S. federal
income tax purposes upon exercise of a Common Warrant. The U.S. Holder will take a tax basis in the shares acquired on the exercise of
a Common Warrant equal to the exercise price of the Common Warrant, increased by the U.S. Holder’s adjusted tax basis in the Common
Warrant exercised (as determined pursuant to the rules discussed above). The U.S. Holder’s holding period in the shares of
Common Stock acquired on the exercise of a Common Warrant will begin on the date of exercise or possibly the day after such exercise,
and will not include any period for which the U.S. Holder held the Common Warrant.
The lapse or expiration
of a Common Warrant will be treated as if the U.S. Holder sold or exchanged the Common Warrant and recognized a capital loss equal to
the U.S. Holder’s tax basis in the Common Warrant. The deductibility of capital losses is subject to limitations.
The tax consequences
of a cashless exercise of a Common Warrant are not clear under current tax law. A cashless exercise may be tax-free, either because the
exercise is not a realization event or because the exercise is treated as a recapitalization for U.S. federal income tax purposes. In
either tax-free situation, a U.S. Holder’s tax basis in the Common Stock received generally would equal the U.S. Holder’s
tax basis in the Common Warrants. If the cashless exercise was not a realization event, it is unclear whether a U.S. Holder’s holding
period for the Common Stock would be treated as commencing on the date of exercise of the Common Warrant or the day following the date
of exercise of the Common Warrant. If the cashless exercise were treated as a recapitalization, the holding period of the Common Stock
would include the holding period of the Common Warrants.
It is also possible
that a cashless exercise could be treated as a taxable exchange in which gain or loss would be recognized. In such event, a U.S. Holder
could be deemed to have surrendered Common Warrants having an aggregate fair market value equal to the exercise price for the total number
of Common Warrants to be exercised. The U.S. Holder would recognize capital gain or loss in an amount equal to the difference between
the fair market value of the Common Stock received in respect of the Common Warrants deemed surrendered and the U.S. Holder’s tax
basis in such Common Warrants. Such gain or loss would be long-term or short-term, depending on the U.S. Holder’s holding period
in the Common Warrants deemed surrendered. In this case, a U.S. Holder’s tax basis in the Common Stock received would equal the
sum of the U.S. Holder’s initial investment in the exercised Common Warrants (i.e., the portion of the U.S. Holder’s purchase
price for the investment unit that is allocated to the common warrants, as described above under “Allocation of Purchase Price”)
and the exercise price of such Common Warrants. It is unclear whether a U.S. Holder’s holding period for the Common Stock would
commence on the date of exercise of the Common Warrant or the day following the date of exercise of the Common Warrant. There may also
be alternative characterizations of any such taxable exchange that would result in similar tax consequences, except that a U.S. Holder’s
gain or loss would be short-term.
Due to the absence of
authority on the U.S. federal income tax treatment of a cashless exercise, there can be no assurance which, if any, of the alternative
tax consequences and holding periods described above would be adopted by the IRS or a court of law. Accordingly, U.S. Holders should
consult their tax advisors regarding the tax consequences of a cashless exercise of the Common Warrants.
Distributions
As discussed above,
we currently anticipate that we will retain future earnings, if any, to finance the growth and development of our business and do not
intend to pay cash dividends in respect of shares of Common Stock in the foreseeable future. In the event that we do make distributions
on the Common Stock to a U.S. Holder, those distributions generally will constitute dividends for U.S. tax purposes to the extent paid
out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles). Distributions in excess
of our current and accumulated earnings and profits will constitute a return of capital that is applied against and reduces, but not
below zero, a U.S. Holder’s adjusted tax basis in the Common Stock. Any remaining excess will be treated as gain realized on the
sale or exchange of shares of Common Stock as described below under the section titled “—Disposition of Common Stock, Pre-Funded
Warrants or Common Warrants.”
Certain Adjustments
to Pre-Funded Warrants or Common Warrants
The number of shares
of Common Stock issued upon the exercise of the Pre-Funded Warrants or Common Warrants and the exercise price of Pre-Funded Warrants
or Common Warrants are subject to adjustment in certain circumstances. Adjustments (or failure to make adjustments) that have the effect
of increasing a U.S. Holder’s proportionate interest in our assets or earnings and profits may, in some circumstances, result in
a constructive distribution to the U.S. Holder. Adjustments to the conversion rate made pursuant to a bona fide reasonable adjustment
formula which has the effect of preventing the dilution of the interest of the holders of Pre-Funded Warrants or Common Warrants generally
should not be deemed to result in a constructive distribution. If an adjustment is made that does not qualify as being made pursuant
to a bona fide reasonable adjustment formula, a U.S. Holder of Pre-Funded Warrants or Common Warrants may be deemed to have received
a constructive distribution from us, even though such U.S. Holder has not received any cash or property as a result of such adjustment.
The tax consequences of the receipt of a distribution from us are described above under “Distributions.”
Disposition of
Common Stock, Pre-Funded Warrants or Common Warrants
Upon a sale or other
taxable disposition (other than a redemption treated as a distribution, which will be taxed as described above under “Distributions”)
of shares of Common Stock, Pre-Funded Warrants or Common Warrants, a U.S. Holder generally will recognize capital gain or loss in an
amount equal to the difference between the amount realized and the U.S. Holder’s adjusted tax basis in the Common Stock, Pre-Funded
Warrants or Common Warrants sold. Capital gain or loss will constitute long-term capital gain or loss if the U.S. Holder’s holding
period for the Common Stock, Pre-Funded Warrants or Common Warrants exceeds one year. The deductibility of capital losses is subject
to certain limitations. U.S. Holders who recognize losses with respect to a disposition of shares of Common Stock, Pre-Funded Warrants
or Common Warrants should consult their own tax advisors regarding the tax treatment of such losses.
Information Reporting
and Backup Reporting
Information reporting
requirements generally will apply to payments of distributions (including constructive distributions) on the Common Stock, Pre-Funded
Warrants and Common Warrants and to the proceeds of a sale or other disposition of Common Stock, Pre-Funded Warrants and Common Warrants
paid by us to a U.S. Holder unless such U.S. Holder is an exempt recipient, such as a corporation. Backup withholding will apply to those
payments if the U.S. Holder fails to provide the holder’s taxpayer identification number, or certification of exempt status, or
if the holder otherwise fails to comply with applicable requirements to establish an exemption.
Backup withholding is
not an additional tax. Rather, any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against
the U.S. Holder’s U.S. federal income tax liability provided the required information is timely furnished to the IRS. U.S. Holders
should consult their own tax advisors regarding their qualification for exemption from information reporting and backup withholding and
the procedure for obtaining such exemption.
Tax Considerations
Applicable to Non-U.S. Holders
Exercise and Expiration
of Common Warrants
In general, a Non-U.S.
Holder will not recognize gain or loss for U.S. federal income tax purposes upon the exercise of Common Warrants into shares of Common
Stock, however, to the extent a cashless exercise results in a taxable exchange, the consequences would be similar to those described
in the discussion below under “Disposition of Common Stock, Pre-Funded Warrants or Common Warrants”.
The expiration of a
Common Warrant will be treated as if the Non-U.S. Holder sold or exchanged Common Warrant and recognized a capital loss equal to the
Non-U.S. Holder’s tax basis in the common warrants. However, a Non-U.S. Holder will not be able to utilize a loss recognized upon
expiration of a Common Warrant against the Non-U.S. Holder’s U.S. federal income tax liability unless the loss is effectively connected
with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if an income tax treaty applies, is attributable
to a permanent establishment or fixed base in the United States) or is treated as a U.S.-source loss and the Non-U.S. Holder is present
183 days or more in the taxable year of disposition and certain other conditions are met.
Certain Adjustments
to Warrants
As described under “—U.S.
Holders—Certain Adjustments to Pre-Funded Warrants or Common Warrants,” an adjustment to the Pre-Funded Warrants or Common
Warrants could result in a constructive distribution to a Non-U.S. Holder, which would be treated as described under “Distributions”
below. Any resulting withholding tax attributable to deemed dividends would be collected from other amounts payable or distributable
to the Non-U.S. Holder. Non-U.S. Holders should consult their tax advisors regarding the proper treatment of any adjustments to the Pre-Funded
Warrants or Common Warrants.
In addition, regulations
governing “dividend equivalents” under Section 871(m) of the Code may apply to the Pre-Funded Warrants. Under those
regulations, an implicit or explicit payment under Pre-Funded Warrants that references a dividend distribution on the Common Stock would
possibly be taxable to a Non-U.S. Holder as described under “Distributions” below. Such dividend equivalent amount would
be taxable and subject to withholding whether or not there is actual payment of cash or other property, and the Company may satisfy any
withholding obligations it has in respect of the Pre-Funded Warrants by withholding from other amounts due to the Non-U.S. Holder. Non-U.S.
Holders are encouraged to consult their own tax advisors regarding the application of Section 871(m) of the Code to the Pre-Funded
Warrants.
Distributions
As discussed above,
we currently anticipate that we will retain future earnings, if any, to finance the growth and development of our business and do not
intend to pay cash dividends in respect of the Common Stock in the foreseeable future. In the event that we do make distributions on
the Common Stock to a Non-U.S. Holder, those distributions generally will constitute dividends for U.S. federal income tax purposes as
described in “—U.S. Holders—Distributions.” To the extent those distributions do not constitute dividends for
U.S. federal income tax purposes (i.e., the amount of such distributions exceeds both our current and our accumulated earnings and profits),
they will constitute a return of capital and will first reduce a Non-U.S. Holder's basis in the Common Stock (determined separately with
respect to each share of Common Stock), but not below zero, and then will be treated as gain from the sale of that share Common Stock
as described below under the section titled “—Disposition of Common Stock, Pre-Funded Warrants or Common Warrants.”
Any distribution (including
constructive distributions) on shares of Common Stock that is treated as a dividend paid to a Non-U.S. Holder that is not effectively
connected with the holder’s conduct of a trade or business in the United States will generally be subject to withholding tax at
a 30% rate or such lower rate as may be specified by an applicable income tax treaty between the United States and the Non-U.S. Holder’s
country of residence. To obtain a reduced rate of withholding under a treaty, a Non-U.S. Holder generally will be required to provide
the applicable withholding agent with a properly executed IRS Form W-8BEN, IRS Form W-8BEN-E or other appropriate form,
certifying the Non-U.S. Holder’s entitlement to benefits under that treaty. Such form must be provided prior to the payment of
dividends and must be updated periodically. If a Non-U.S. Holder holds stock through a financial institution or other agent acting on
the holder’s behalf, the holder will be required to provide appropriate documentation to such agent. The holder’s agent may
then be required to provide certification to the applicable withholding agent, either directly or through other intermediaries. If you
are eligible for a reduced rate of U.S. withholding tax under an income tax treaty, you should consult with your own tax advisor to determine
if you are able to obtain a refund or credit of any excess amounts withheld by timely filing an appropriate claim for a refund with the
IRS.
We generally are not
required to withhold tax on dividends paid (or constructive dividends deemed paid) to a Non-U.S. Holder that are effectively connected
with the holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty,
are attributable to a permanent establishment or fixed base that the holder maintains in the United States) if a properly executed IRS
Form W-8ECI, stating that the dividends are so connected, is furnished to us (or, if stock is held through a financial institution
or other agent, to the applicable withholding agent). In general, such effectively connected dividends will be subject to U.S. federal
income tax on a net income basis at the regular tax rates applicable to U.S. persons. A corporate Non-U.S. Holder receiving effectively
connected dividends may also be subject to an additional “branch profits tax,” which is imposed, under certain circumstances,
at a rate of 30% (or such lower rate as may be specified by an applicable treaty) on the corporate Non-U.S. Holder’s effectively
connected earnings and profits, subject to certain adjustments.
See also the sections
below titled “—Backup Withholding and Information Reporting” and “—Foreign Accounts” for additional
withholding rules that may apply to dividends paid to certain foreign financial institutions or non-financial foreign entities.
Disposition of
Common Stock, Pre-Funded Warrants or Common Warrants
Subject to the discussions
below under the sections titled “—Backup Withholding and Information Reporting” and “—Foreign Accounts,”
a Non-U.S. Holder generally will not be subject to U.S. federal income or withholding tax with respect to gain recognized on a sale or
other disposition (other than a redemption treated as a distribution, which will be taxable as described above under “Distributions”)
of shares of Common Stock, Pre-Funded Warrants or Common Warrants unless:
| · |
the gain is effectively
connected with the Non-U.S. Holder’s conduct of a trade or business in the United States, and if an applicable income tax treaty
so provides, the gain is attributable to a permanent establishment or fixed base maintained by the Non-U.S. Holder in the United
States; in these cases, the Non-U.S. Holder will be taxed on a net income basis at the regular tax rates and in the manner applicable
to U.S. persons, and if the Non-U.S. Holder is a corporation, an additional branch profits tax at a rate of 30%, or a lower rate
as may be specified by an applicable income tax treaty, may also apply; |
| · |
the Non-U.S. Holder is
a nonresident alien present in the United States for 183 days or more in the taxable year of the disposition and certain other requirements
are met, in which case the Non-U.S. Holder will be subject to a 30% tax (or such lower rate as may be specified by an applicable
income tax treaty between the United States and such holder’s country of residence) on the net gain derived from the disposition,
which may be offset by certain U.S.-source capital losses of the Non-U.S. Holder, if any; or |
| · |
the Common Stock constitutes
a U.S. real property interest because we are, or have been at any time during the five-year period preceding such disposition (or
the Non-U.S. Holder’s holding period of the Common Stock, Pre-Funded Warrants or Common Warrants, if shorter), a “U.S.
real property holding corporation,” unless the Common Stock is regularly traded on an established securities market, as defined
by applicable Treasury Regulations, and the Non-U.S. Holder held no more than 5% of our outstanding Common Stock, directly or indirectly,
during the shorter of the five-year period ending on the date of the disposition or the period that the Non-U.S. Holder held the
Common Stock. Special rules may apply to the determination of the 5% threshold in the case of a holder of Pre-Funded Warrants
or Common Warrants. Non-U.S. Holders are urged to consult their own tax advisors regarding the effect of holding Pre-Funded Warrants
or Common Warrants on the calculation of such 5% threshold. Generally, a corporation is a “U.S. real property holding corporation”
if the fair market value of its “U.S. real property interests” (as defined in the Code and applicable regulations) equals
or exceeds 50% of the sum of the fair market value of its worldwide real property interests plus its other assets used or held for
use in a trade or business. Although there can be no assurance, we believe that we are not currently, and we do not anticipate becoming,
a “U.S. real property holding corporation” for U.S. federal income tax purposes. No assurance can be provided that the
Common Stock will be regularly traded on an established securities market for purposes of the rules described above. Non-U.S.
Holders are urged to consult their own tax advisors regarding the U.S. federal income tax considerations that could result if we
are, or become a “U.S. real property holding corporation.” |
See the sections titled
“—Backup Withholding and Information Reporting” and “—Foreign Accounts” for additional information
regarding withholding rules that may apply to proceeds of a disposition of the Common Stock, Pre-Funded Warrants or Common Warrants
paid to foreign financial institutions or non-financial foreign entities.
Backup Withholding
and Information Reporting
We must report annually
to the IRS and to each Non-U.S. Holder the gross amount of the distributions (including constructive distributions) on the Common Stock,
pre-funded warrants or common warrants paid to such holder and the tax withheld, if any, with respect to such distributions. Non-U.S.
Holders may have to comply with specific certification procedures to establish that the holder is not a U.S. person (as defined in the
Code) in order to avoid backup withholding at the applicable rate, currently 24%, with respect to dividends (or constructive dividends)
on the Common Stock, Pre-Funded Warrants or Common Warrants. Generally, a holder will comply with such procedures if it provides a properly
executed IRS Form W-8BEN (or other applicable Form W-8) or otherwise meets documentary evidence requirements for establishing
that it is a Non-U.S. Holder, or otherwise establishes an exemption. Dividends paid to Non-U.S. Holders subject to withholding of U.S.
federal income tax, as described above under the heading “Distributions,” will generally be exempt from U.S. backup
withholding.
Information reporting
and backup withholding generally will apply to the proceeds of a disposition of the Common Stock, pre-funded warrants or common warrants
by a Non-U.S. Holder effected by or through the U.S. office of any broker, U.S. or foreign, unless the holder certifies its status as
a Non-U.S. Holder and satisfies certain other requirements, or otherwise establishes an exemption. Generally, information reporting and
backup withholding will not apply to a payment of disposition proceeds to a Non-U.S. Holder where the transaction is effected outside
the United States through a non-U.S. office of a broker. However, for information reporting purposes, dispositions effected through a
non-U.S. office of a broker with substantial U.S. ownership or operations generally will be treated in a manner similar to dispositions
effected through a U.S. office of a broker. Non-U.S. Holders should consult their own tax advisors regarding the application of the information
reporting and backup withholding rules to them.
Copies of information
returns may be made available to the tax authorities of the country in which the Non-U.S. Holder resides or is incorporated under the
provisions of a specific treaty or agreement.
Backup withholding is
not an additional tax. Any amounts withheld under the backup withholding rules from a payment to a Non-U.S. Holder can be refunded
or credited against the Non-U.S. Holder’s U.S. federal income tax liability, if any, provided that an appropriate claim is timely
filed with the IRS.
Foreign Accounts
The Foreign Account
Tax Compliance Act, or FATCA, generally imposes a 30% withholding tax on dividends (including constructive dividends) on the Common Stock,
pre-funded warrants and common warrants if paid to a non-U.S. entity unless (i) if the non-U.S. entity is a “foreign financial
institution,” the non-U.S. entity undertakes certain due diligence, reporting, withholding, and certification obligations, (ii) if
the non-U.S. entity is not a “foreign financial institution,” the non-U.S. entity identifies certain of its U.S. investors,
if any, or (iii) the non-U.S. entity is otherwise exempt under FATCA.
Withholding under FATCA
generally will apply to payments of dividends (including constructive dividends) on the Common Stock, Pre-Funded Warrants and Common
Warrants. While withholding under FATCA would have also applied to payments of gross proceeds from a sale or other disposition of the
Common Stock, pre-funded warrants or common warrants, under proposed U.S. Treasury Regulations withholding on payments of gross proceeds
is not required. Although such regulations are not final, applicable withholding agents may rely on the proposed regulations until final
regulations are issued.
An intergovernmental
agreement between the United States and an applicable foreign country may modify the requirements described in this section. Under certain
circumstances, a holder may be eligible for refunds or credits of the tax. Holders should consult their own tax advisors regarding the
possible implications of FATCA on their investment in the Common Stock, Pre-Funded Warrants or Common Warrants.
Federal Estate
Tax
Common Stock owned or
treated as owned by an individual who is not a citizen or resident of the United States (as specially defined for U.S. federal estate
tax purposes) at the time of death will be included in the individual’s gross estate for U.S. federal estate tax purposes and,
therefore, may be subject to U.S. federal estate tax, unless an applicable estate tax or other treaty provides otherwise. The foregoing
may also apply to common warrants and pre-funded warrants. A Non-U.S. Holder should consult his, her, or its own tax advisor regarding
the U.S. federal estate tax consequences of the ownership or disposition of shares of the Common Stock, Pre-Funded Warrants and Common
Warrants.
The preceding discussion
of material U.S. federal tax considerations is for information only. It is not tax advice. Prospective investors should consult their
own tax advisors regarding the particular U.S. federal, state, local and non-U.S. tax consequences of purchasing, holding and disposing
of the Common Stock, Pre-Funded Warrants or Common Warrants, including the consequences of any proposed changes in applicable laws.
PLAN OF DISTRIBUTION
A.G.P./Alliance
Global Partners has agreed to act as our sole Placement Agent in connection with this offering
subject to the terms and conditions of the placement agency agreement dated September 26, 2024.
The Placement Agent is not purchasing or selling any of the securities offered by this prospectus,
nor is it required to arrange for the purchase and sale of any specific number or dollar
amount of such securities, other than to use its reasonable “best efforts” to
arrange for the sale of such securities by us. Therefore, we may not sell all of the securities
being offered pursuant to this prospectus. The securities will be offered at a fixed price
and are expected to be issued in a single closing. We will enter into a securities purchase
agreement directly with certain investors, at the investor’s option, who purchase our
securities in this offering. Each purchaser with whom we enter into a securities purchase
agreement agrees that for a one-year period from the date of the securities purchase agreement
it shall vote all shares of our common stock over which such purchaser has voting control
at such time in favor of any and all proposals and/or resolutions presented by us to our
stockholders at a meeting of stockholders and any proposal to adjourn any meeting of stockholders
called. Investors who do not enter into a securities purchase agreement shall rely solely
on this prospectus in connection with the purchase of our securities in this offering.
We will deliver the securities being issued to
the investors upon receipt of investor funds for the purchase of the securities offered pursuant to this prospectus. We expect to deliver
the securities being offered pursuant to this prospectus on or about September 27, 2024.
Fees and Expenses
We have agreed to pay the Placement Agent an
aggregate fee equal to 7.0% of the purchase price paid by all purchasers in this offering. In addition, we have agreed to reimburse the
Placement Agent for its legal fees in an amount up to $85,000 and non-accountable expenses of up to $15,000.
We estimate the total expenses of this offering
paid or payable by us, exclusive of the placement agent fee, will be approximately $350,000. After deducting the fees due to the Placement
Agent and our estimated expenses in connection with this offering, we expect the net proceeds from this offering will be approximately
$1.98 million.
The following table shows the per share and total
cash fees we will pay to the Placement Agent in connection with the sale of the securities pursuant to this prospectus.
| | |
Per Share of
Common
Stock
and
Accompanying
Common
Warrant | | |
Per Pre-
Funded
Warrant and
Accompanying
Common
Warrant | | |
Total | |
| Offering price (1) | |
$ | 1.75 | | |
$ | 1.7499 | | |
$ | 2,499,999 | |
| Placement agent fees | |
$ | 0.1225 | | |
$ | 0.1225 | | |
$ | 175,000 | |
| Proceeds before expenses to us (2) | |
$ | 1.6275 | | |
$ | 1.6274 | | |
$ | 2,324,999 | |
| (1) |
The combined public offering price is $1.75 per share of Common Stock and accompanying
Common Warrant and $1.7499 per Pre-Funded Warrant and accompanying Common Warrant. |
| (2) |
Does not include proceeds
from the exercise of the Pre-Funded Warrants or Common Warrants in cash, if any. |
Indemnification
We have agreed to indemnify the Placement Agent
and specified other persons against specified liabilities, including liabilities under the Securities Act, and to contribute to payments
the Placement Agent may be required to make in respect thereof.
Lock-Up Agreements
Our directors and officers have entered into
lock-up agreements. Under these agreements, these individuals agreed, subject to specified exceptions, not to sell or transfer any shares
of Common Stock or securities convertible into, or exchangeable or exercisable for, Common Stock during a period ending 90 days after
the completion of this offering, without first obtaining the written consent of the Placement Agent. Specifically, these individuals
agreed, in part, subject to certain exceptions, not to:
| |
· |
offer for sale,
sell, pledge, or otherwise transfer or dispose of (or enter into any transaction or device that is designed to, or could be expected
to, result in the transfer or disposition by any person at any time in the future of) any shares of Common Stock or securities convertible
into or exercisable or exchangeable for Common Stock; |
| |
· |
enter into
any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of
ownership of shares of Common Stock; or |
| |
· |
make any demand
for or exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to the registration
of any of our securities. |
No Sales of Similar Securities
We have agreed, subject to certain exceptions,
not to issue, enter into any agreement to issue or announce the issuance or proposed issuance of, any shares of Common Stock (or securities
convertible into or exercisable for Common Stock) or, subject to certain exceptions, file any registration statement, including any amendments
or supplements thereto (other than the registration statement or amendment to the registration statement relating to the securities offered
hereunder and a registration statement on Form S-8), until 60 days after the completion of this offering. We have also agreed, subject to certain exceptions, not
to enter into a variable rate transaction (as defined in the securities purchase agreement) for six months after the completion of this
offering.
Regulation M
The Placement Agent may be deemed to be an underwriter
within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any profit realized on the resale
of the shares sold by it while acting as principal might be deemed to be underwriting discounts or commissions under the Securities Act.
As an underwriter, the Placement Agent would be required to comply with the requirements of the Securities Act and the Exchange Act,
including, without limitation, Rule 415(a)(4) under the Securities Act and Rule 10b-5 and Regulation M under the Exchange Act. These
rules and regulations may limit the timing of purchases and sales of shares by the Placement Agent acting as principal. Under these rules
and regulations, the placement agents:
| · | may
not engage in any stabilization activity in connection with our securities; and |
| · | may
not bid for or purchase any of our securities or attempt to induce any person to purchase
any of our securities, other than as permitted under the Exchange Act, until it has completed
its participation in the distribution. |
Discretionary Accounts
The Placement Agent does not intend to confirm
sales of the securities offered hereby to any accounts over which it has discretionary authority.
Other Activities and Relationships
The Placement Agent and certain of its affiliates
are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment
banking, financial advisory, investment management, investment research, principal investment, hedging, financing and brokerage activities.
The Placement Agent and certain of its affiliates have, from time to time, performed, and may in the future perform, various commercial
and investment banking and financial advisory services for us and our affiliates, for which they received or will receive customary fees
and expenses. For example, A.G.P./Alliance Global Partners is the sales agent under an Amended and Restated Sales Agreement, dated May
2, 2024, with us. Under the Amended and Restated Sales Agreement, we may offer and sell, from time to time, shares of Common Stock through
A.G.P./Alliance Global Partners in an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act.
In the ordinary course of its various business
activities, the Placement Agent and certain of its affiliates may make or hold a broad array of investments and actively trade debt and
equity securities (or related derivative securities) and financial instruments (including bank loans) for its own account and for the
accounts of its customers, and such investment and securities activities may involve securities and/or instruments issued by us and our
affiliates. If the Placement Agent or its affiliates have a lending relationship with us, they routinely hedge their credit exposure
to us consistent with their customary risk management policies. The Placement Agent and its affiliates may hedge such exposure by entering
into transactions that consist of either the purchase of credit default swaps or the creation of short positions in our securities or
the securities of our affiliates, including potentially the Common Stock offered hereby. Any such short positions could adversely affect
future trading prices of the Common Stock offered hereby. The Placement Agent and certain of its affiliates may also communicate independent
investment recommendations, market color or trading ideas and/or publish or express independent research views in respect of such securities
or instruments and may at any time hold, or recommend to clients that they acquire, long and/or short positions in such securities and
instruments.
LEGAL MATTERS
Blank Rome LLP, New York, New York will pass upon
certain legal matters relating to the sale of the Common Warrants and Pre-Funded Warrants, offered hereby on our behalf and Parsons Behle &
Latimer, Reno, Nevada will pass on certain legal matters related to the issuance of the Common Stock, Common Warrants and Pre-Funded Warrants
offered hereby on our behalf.
Thompson Hine LLP, New York, New York, is acting
as counsel to the Placement Agent in connection with certain legal matters related to this offering.
As of the date of this prospectus, an attorney
of Blank Rome LLP beneficially owns securities exercisable to purchase shares of the Common Stock that represent less than 1% of our
outstanding shares of Common Stock.
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 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 ADDITIONAL
INFORMATION
We have filed with the SEC a registration statement
under the Securities Act for the securities offered by this prospectus. This prospectus, which constitutes a part of the registration
statement, does not contain all of the information set forth in the registration statement or the exhibits and schedules filed therewith.
For further information about us and the securities offered hereby, we refer you to the registration statement and the exhibits and schedules
filed thereto. Any statements made in this prospectus concerning legal documents are not necessarily complete and you should read the
documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding
of the document or matter.
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.
We are subject to the information and periodic reporting requirements of the Exchange Act, and we file periodic reports, proxy statements
and other information with the SEC. These periodic reports, proxy statements and other information are available at the website of the
SEC referred to above. We maintain a website at https://ir.therivabiologics.com/sec-filings. You may access our Annual Reports
on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished
pursuant to Section 13(a) or 15(d) of the Exchange Act with the SEC free of charge at our website as soon as reasonably
practicable after such material is electronically filed with, or furnished to, the SEC. 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.
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 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), 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, September
9, 2024, September
16, 2024 (other than as set forth therein) and September
23, 2024 (other than as set forth therein); |
| |
|
|
| |
· |
Our
Preliminary Proxy Statement on Schedule 14A filed with the SEC on September 18, 2024; and |
| |
|
|
| |
· |
The description of the
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 initial 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.
918,600 Shares of Common Stock
1,428,600 Common Warrants to Purchase Up to
1,428,600 Shares of Common Stock
510,000 Pre-Funded Warrants to Purchase Up to
510,000 Shares of Common Stock
1,938,600 Shares of Common Stock Underlying
the Common Warrants and Pre-Funded Warrants
PROSPECTUS
Sole Placement Agent
A.G.P.
September 25,
2024
Theriva Biologics (AMEX:TOVX)
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