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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 2, 2024
THERIVA BIOLOGICS, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 001-12584 | 13-3808303 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File No.) |
(IRS Employer Identification No.) |
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
(Address of principal executive offices and zip code)
(301) 417-4364
Registrant’s telephone number, including area code
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
| Common stock, par value $0.001 per share | TOVX | NYSE American |
Indicate by check mark whether the registrant is an emerging growth company as defined in in Rule 405 of the Securities Act of 1933 (17 CFR §230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01. | Entry into a Material Definitive Agreement. |
On May 2, 2024, Theriva Biologics, Inc. (the “Company”) and A.G.P./Alliance Global Partners entered into Amendment No. 2 (“Amendment No. 2”) to that certain Amended and Restated Sales Agreement dated as of February 9, 2021, as amended by Amendment No. 1 thereto dated May 3, 2021 (the “Sales Agreement”), pursuant to which the Company may offer and sell, from time to time, at its option, shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), through A.G.P./Alliance Global Partners, as sales agent, in an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended (the “Securities Act”). Sales in the “at the market offering” may occur under the Company’s current effective registration statement on Form S-3 (File No. 333-255726) utilizing a prior prospectus and related prospectus supplements thereto or a newly filed registration statement on Form S-3 once it has been declared effective under the Securities Act.
The description of the Sales Agreement, including Amendment No. 1 thereto and Amendment No. 2 does not purport to be complete and is qualified in its entirety by reference to the full text of the Sales Agreement, Amendment No. 1 and Amendment No. 2, copies of which are included herewith as Exhibits 10.1. 10.2 and 10.3, and are incorporated herein by reference.
In addition, on May 1, 2024, the Company and B. Riley Securities, Inc. mutually agreed to enter into into a notice of termination whereby B. Riley Securities, Inc. would no longer be a party to the Sales Agreement.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: May 2, 2024 | THERIVA BIOLOGICS, INC. | ||
| By: | /s/ Steven A. Shallcross | ||
| Name: | Steven A. Shallcross | ||
| Title: | Chief Executive Officer and Chief Financial Officer | ||
Exhibit 10.3
AMENDMENT NO. 2
TO
AMENDED AND RESTATED AT MARKET ISSUANCE SALES AGREEMENT
MAY 2, 2024
A.G.P./Alliance Global Partners
590 Madison Ave.
New York, NY 10022
Ladies and Gentlemen:
Theriva Biologics, Inc. (formerly known as Synthetic Biologics, Inc.) (the “Company”) and A.G.P./Alliance Global Partners (the “Agent”) are parties to that certain Amended and Restated At Market Issuance Sales Agreement dated February 9, 2021, as amended by Amendment No. 1 thereto dated May 3, 2021 (together, the “Original Agreement”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The parties, intending to be legally bound, hereby amend the Original Agreement as follows:
1. With respect to issuances of Placement Shares that occur on or after the date this amendment becomes effective, reference to the “Registration Statement” in the Original Agreement shall refer to the shelf registration statement on Form S-3, originally filed with the Securities and Exchange Commission on May 2, 2024, or any subsequent registration statement on Form S-3 filed pursuant to Rule 415 under the Securities Act by the Company to cover any Placement Shares, once it is declared effective under the Securities Act by the Securities and Exchange Commission (as the same may be amended from time to time, “New Registration Statement”).
2. All references to “February 9, 2021” set forth in Schedule 1 of the Original Agreement are revised to read “February 9, 2021 (as amended by Amendment No. 1 to Amended and Restated At Market Issuance Sales Agreement, dated May 3, 2021 and Amendment No. 2 to Amended and Restated At Market Issuance Sales Agreement, dated May 2, 2024)”.
3. Except as specifically set forth herein, all other provisions of the Original Agreement shall remain in full force and effect.
4. Entire Agreement; Amendment; Severability. This Amendment No. 2 to the Original Agreement together with the Original Agreement (including all schedules and exhibits attached hereto and thereto and Placement Notices issued pursuant hereto and thereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. All references in the Original Agreement to the “Agreement” shall mean the Original Agreement as amended by this Amendment No. 2; provided, however, that all references to “date of this Agreement” in the Original Agreement shall continue to refer to the date of the Original Agreement.
5. Applicable Law; Consent to Jurisdiction. This amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address in effect for notices to it under this amendment and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
6. Waiver of Jury Trial. The Company and the Agent each hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this amendment or any transaction contemplated hereby.
7. Counterparts. This amendment may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. Delivery of an executed amendment by one party to the other may be made by facsimile transmission.
[Remainder of Page Intentionally Blank]
If the foregoing correctly sets forth the understanding among the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding amendment to the Original Agreement between the Company and the Agent.
| Very truly yours, | |
| THERIVA BIOLOGICS, INC. |
| By: | /s/ Steven A. Shallcross | |
| Name: | Steven A. Shallcross | |
| Title: | Chief Executive Officer and Chief Financial Officer |
| A.G.P./ALLIANCE GLOBAL PARTNERS | ||
| By: | /s/ Thomas J. Higgins | |
| Name: | Thomas J. Higgins | |
| Title: | Managing Director | |
[Signature page to Amendment No. 2 to At Market Issuance Sales Agreement]