As filed with the Securities and Exchange Commission
on October 6, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THERIVA BIOLOGICS, INC.
(Exact name of registrant as specified in its
charter)
| Nevada |
13-3808303 |
|
(State or other jurisdiction
of incorporation or organization) |
(I.R.S. Employer
Identification Number) |
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
(301) 417-4364
(Address, including ZIP code, and telephone
number, including
area code, of registrant's principal executive
office)
THERIVA
Biologics, Inc. 2020 STOCK INCENTIVE PLAN
(Full title of the Plan)
Steven A. Shallcross
Chief Executive Officer and Chief Financial
Officer
9605 Medical Center Drive, Suite 270
Rockville, Maryland 20850
(301) 417-4364
(Name, address and telephone number of agent
for service)
with copies to:
Leslie Marlow, Esq.
Patrick J. Egan, Esq.
Blank Rome LLP
1271 Avenue of the Americas
New York, New York 10020
(212) 885-5000
(Name, address and telephone number)
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer” “smaller reporting company” and “emerging growth
company” in Rule 12b-2 of the Exchange Act.
| |
|
| Large accelerated filer ¨ |
Accelerated filer ¨ |
| Non-accelerated filer x |
Smaller reporting company x |
| |
Emerging growth company ¨ |
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
EXPLANATORY NOTE
Theriva Biologics, Inc. (the
“Registrant” or the “Company”) previously filed with the Securities and Exchange Commission (the “Commission”)
the following registration statements for the purpose of registering shares of its common stock, par value $0.001 per share (the “Common
Stock”), to be offered and sold under the Registrant’s 2020 Equity Incentive Plan (hereinafter referred to as the “Plan”):
| · | A Registration Statement on Form S-8 (Registration
No. 333-249712) filed on October 28, 2020 registering 4,000,000 shares of Common Stock (400,000 shares after adjusting to give effect
to the reverse stock split, effected by the Company on July 25, 2022, of its outstanding shares of Common Stock at a ratio of 1-for-10
(the “2022 Reverse Stock Split”)); |
| · | A Registration Statement
on Form S-8 (Registration No. 333-267910) filed on October 17, 2022 registering
an additional 6,600,000 shares of Common Stock (264,000 shares after adjusting to give effect to the reverse stock split, effected by
the Company on October 26, 2024, of its outstanding shares of Common Stock at a ratio of 1-for-25 (the “2024 Reverse Stock Split”),
such that the aggregate number of shares of Common Stock available to be issued under the Plan, as amended, after adoption of Amendment
No. 1 to the Plan, was 280,000 shares); and |
| · | A Registration Statement
on Form S-8 (Registration No. 333-283363) filed on November 20, 2024 registering an additional 2,220,000 shares of Common Stock, such
that the aggregate number of shares of Common Stock available to be issued under the Plan, as amended, after adoption of Amendment No.
2 to the Plan, was 2,500,000 shares; |
Pursuant to General Instruction
E to Form S-8, the contents of the aforementioned registration statements are incorporated into this Registration Statement on Form S-8
by reference.
The Registrant is filing
this Registration Statement on Form S-8 (the “Registration Statement”) to register an additional 2,000,000 shares of Common
Stock that were added to the Plan by a vote of the Registrant’s Board of Directors and the Registrant’s stockholders at the
Registrant’s 2025 Annual Meeting of Stockholders, which was held on August 29, 2025. These additional 2,000,000 shares of Common
Stock, were added pursuant to the adoption of Amendment No. 3 to the Plan, dated August 29, 2025. The aggregate number of shares of Common
Stock that may be issued under the Plan, as amended, after the adoption of Amendment No. 3 to the Plan, is 4,500,000 shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified
in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 is omitted from this filing in accordance with the provisions
of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form
S-8. The documents containing the information specified in Part I will be delivered to the participants in the Plan as required by Rule
428. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. |
Incorporation of Documents By Reference. |
The following documents filed by the Registrant
with the Commission are incorporated herein by reference:
| |
· |
The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2024 filed with the Commission on March 6, 2025 (File No. 001-12584); |
| |
· |
The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2025 filed with the Commission on May 14, 2025 (File No. 001-12584); |
| |
· |
The Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2025 filed with the Commission on August 11, 2025 (File No. 001-12584); |
| |
· |
The
Registrant’s Current Reports on Form 8-K filed with the Commission on March
31, 2025 (other than as set forth therein), May
7, 2025 (other than as set forth therein), May
8, 2025, June
2, 2025 (other than as set forth therein), June
20, 2025, June
25, 2025, September
4, 2025, October
2, 2025 and October
6, 2025 (other than as set forth therein) (File No. 001-12584); |
| |
· |
The Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on July 9, 2025 (File No. 001-12584); and |
| |
· |
The description of the Registrant’s Common Stock set forth in its (i) registration statement on Form 8-A12B, filed with the Commission on June 20, 2007 (File No. 001-12584), and (ii) Exhibit 4.2—Description of Securities of Theriva Biologics, Inc. to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2024 filed with the Commission on March 6, 2025. |
All other reports and documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished
on such form that relate to such items) shall be deemed to be incorporated by reference in this Registration Statement and to be a part
of this Registration Statement from the respective date of filing of each of those reports or documents until the filing of a post-effective
amendment to this Registration Statement which indicates either that all securities offered by this Registration Statement have been sold
or which deregisters all of the securities under this Registration Statement then remaining unsold.
Any statement contained in
this Registration Statement or in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall
be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration
Statement or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration
Statement modifies or supersedes that statement. Any statement so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
| Item 4. |
Description of Securities. |
Not applicable
| Item 5. |
Interests of Named Experts and Counsel. |
Not applicable.
| Item
6. | Indemnification
of Directors and Officers. |
Section 78.138 of the Nevada
Revised Statutes provides that a director or officer is not individually liable to the Registrant or its stockholders or creditors for
any damages as a result of any act or failure to act in his capacity as a director or officer unless it is proven that (1) his act or
failure to act constituted a breach of his fiduciary duties as a director or officer and (2) his breach of those duties involved intentional
misconduct, fraud or a knowing violation of law.
This provision is intended
to afford directors and officers protection against and to limit their potential liability for monetary damages resulting from suits alleging
a breach of the duty of care by a director or officer. As a consequence of this provision, the Registrant’s stockholders will be
unable to recover monetary damages against directors or officers for actions taken by them that may constitute negligence or gross negligence
in performance of their duties unless such conduct falls within one of the foregoing exceptions. The provision, however, does not alter
the applicable standards governing a director’s or officer’s fiduciary duty and does not eliminate or limit the right of the
Registrant or any of its stockholders to obtain an injunction or any other type of non-monetary relief in the event of a breach of fiduciary
duty.
The Registrant’s Articles
of Incorporation, as amended, and amended and restated bylaws provide for indemnification of directors, officers, employees or agents
of the Registrant to the fullest extent permitted by Nevada law (as amended from time to time). Section 78.7502 of the Nevada
Revised Statutes provides that such indemnification may only be provided if the person acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interest of the Registrant and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
| Item 7. |
Exemption from Registration Claimed |
Not applicable.
| Item 8. |
Exhibits
The Exhibits to this Registration
Statement are listed in the Exhibit Index and incorporated herein by reference. |
| |
|
| Item 9. |
Undertakings |
| |
(a) |
The undersigned Registrant hereby undertakes: |
(1) To file, during any period
in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include
any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect
in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration
statement;
(iii) To include
any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in this registration statement;
Provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities
Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose
of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purposes of
determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(5) Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant
to existing provisions or arrangements whereby the Registrant may indemnify a trustee, officer or controlling person of the Registrant
against liabilities arising under the Securities Act, or otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or
paid by a trustee, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted
by such trustee, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of
such issue.
INDEX TO EXHIBITS
Exhibit
Number |
|
Exhibit Title |
| 4.1 |
|
Certificate of Incorporation, as amended (Incorporated by reference to (i) Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed October 16, 2008, File No. 001-12584, (ii) Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2001 filed August 14, 2001, File No. 001-12584; and (iii) Exhibits 3.1, 4.1 and 4.2 of the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 1998 filed August 14, 1998, File No. 001-12584) |
| |
|
|
| 4.2 |
|
Articles of Merger (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed October 19, 2009, File No. 001-12584) |
| |
|
|
| 4.3 |
|
Certificate of Merger filed with the Secretary of State of Delaware (Incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K filed October 19, 2009, File No. 001-12584) |
| |
|
|
| 4.4 |
|
Articles of Incorporation filed with the Nevada Secretary of State (Incorporated by reference to Exhibit 3.3 of the Registrant’s Current Report on Form 8-K filed October 19, 2009, File No. 001-12584) |
| |
|
|
| 4.5 |
|
Amended and Restated Bylaws Adopted and Effective October 31, 2011 (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed November 2, 2011, File No. 001-12584) |
| |
|
|
| 4.6 |
|
Second Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed August 11, 2023, File No. 001-12584) |
| |
|
|
| 4.7 |
|
Certificate of Amendment to Articles of Incorporation (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed February 16, 2012, File No. 001-12584) |
| |
|
|
| 4.8 |
|
Certificate of Amendment to Certificate of Incorporation. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed May 18, 2015, File No. 001-12584) |
| |
|
|
| 4.9 |
|
Certificate of Amendment to Certificate of Incorporation. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed September 8, 2017, File No. 001-12584) |
| |
|
|
| 4.10 |
|
Certificate of Change Pursuant to NRS 78. 209 (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed August 13, 2018, File No. 001-12584) |
| |
|
|
| 4.11 |
|
Certificate of Amendment to Articles of Incorporation (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed September 26, 2018, File No. 001-12584) |
| |
|
|
| 4.12 |
|
Certificate of Change Pursuant to NRS 78.209 (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed July 25, 2022, File No. 001-12584) |
| |
|
|
| 4.13 |
|
Form of Certificate of Designation of Series C Convertible Preferred Stock (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on July 29, 2022 (File No. 001-12584) |
| |
|
|
| 4.14 |
|
Form of Certificate of Designation of Series D Convertible Preferred Stock (Incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K filed on July 29, 2022 (File No. 001-12584) |
| |
|
|
| 4.15 |
|
Certificate of Amendment to Articles of Incorporation (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on October 12, 2022 (File No. 001-12584) |
| |
|
|
| 4.16 |
|
Certificate of Change to Articles of Incorporation (Incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K filed on October 12, 2022 (File No. 001-12584) |
| |
|
|
| 4.17 |
|
Certificate of Change of Articles of Incorporation (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on August 26, 2024 (File No. 001-12584) |
| |
|
|
| 4.18 |
|
Theriva
Biologics, Inc. 2020 Stock Incentive Plan (Incorporated by reference to Appendix A to the Registrant’s Definitive Proxy
Statement on Schedule 14A filed with the Securities and Exchange Commission on August 4, 2020). |
| |
|
|
| 4.19 |
|
Form of Incentive Stock Option Grant Agreement (Incorporated by reference to Exhibit 4.11 of the Registrant’s Registration Statement on Form S-8 (File No. 333-249712) filed October 28, 2022) |
| |
|
|
| 4.20 |
|
Form of Nonqualified Stock Option Grant Agreement (Incorporated by reference to Exhibit 4.12 of the Registrant’s Registration Statement on Form S-8 (File No. 333-249712) filed October 28, 2022) |
| |
|
|
| 4.21 |
|
Form of Restricted Stock Unit Award Agreement (Incorporated by reference to Exhibit 4.13 of the Registrant’s Registration Statement on Form S-8 (File No. 333-249712) filed October 28, 2022) |
| |
|
|
| 4.22 |
|
Amendment
No. 1 to the Theriva Biologics, Inc. 2020 Stock Incentive Plan (incorporated by reference to Appendix
C to the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on August 16,
2022) |
| |
|
|
| 4.23 |
|
Amendment
No. 2 to the Theriva Biologics, Inc. 2020 Stock Incentive Plan (incorporated by reference to Appendix
A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on September
30, 2024) |
| |
|
|
| 4.24 |
|
Certificate of Change to Articles of Incorporation (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on November 1, 2024 (File No. 001-12584) |
| |
|
|
| 4.25 |
|
Amendment No. 3 to the Theriva Biologics, Inc. 2020 Stock Incentive Plan (incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on July 9, 2025) |
| 5.1* |
|
Opinion of Parsons Behle & Latimer regarding the legality of the shares of common stock being registered |
| |
|
|
| 23.1* |
|
Consent of BDO USA, P.C., the Registrant’s independent registered public accounting firm |
| |
|
|
| 23.2* |
|
Consent of Parsons Behle & Latimer (included in Exhibit 5.1 hereof) |
| |
|
|
| 107* |
|
Calculation of Filing Fee Table |
*Filed herewith
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rockville and State of Maryland, on the 6th day of October, 2025.
| |
THERIVA BIOLOGICS, INC. |
| |
|
| |
|
| |
By: |
/s/ Steven A. Shallcross |
| |
|
Name: |
Steven A. Shallcross |
| |
|
Title: |
Chief Executive Officer and Chief Financial Officer |
POWER OF ATTORNEY
Each of the undersigned,
whose signature appears below, hereby constitutes and appoints Steven A. Shallcross as his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign any or
all amendments to this Registration Statement, whether pre-effective or post-effective, and to file the same with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent,
or his substitute full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect
to this Registration Statement or any amendments hereto in the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, or any of them,
may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements
of the Securities Act, this Registration Statement on Form S-8 has been signed below by the following persons, in the capacities and on
the date or dates indicated:
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Steven A. Shallcross |
|
Chief
Executive Officer and Chief Financial Officer |
|
October
6, 2025 |
| Steven A. Shallcross |
|
(Principal Executive Officer
and Principal Financial and Accounting Officer) Director |
|
|
| |
|
|
|
|
| /s/
Jeffrey J. Kraws |
|
Chairman
of the Board of Directors |
|
October
6, 2025 |
| Jeffrey J. Kraws |
|
|
|
|
| |
|
|
|
|
| /s/
Jeffrey Wolf |
|
Director |
|
October
6, 2025 |
| Jeffrey Wolf |
|
|
|
|
| |
|
|
|
|
| /s/
John Monahan, Ph.D. |
|
Director |
|
October
6, 2025 |
| John Monahan, Ph.D. |
|
|
|
|
