Theriva Biologics Inc (TOVX)

[BooDog]

We have entered into an At Market Issuance Sales Agreement, dated August 5, 2016, with B. Riley Securities, Inc. (formerly known as B. Riley FBR, Inc.) or B. Riley, as amended by amendment no. 1, dated May 7, 2018, to the At Market Issuance Sales Agreement (as so amended, the “sales agreement”) relating to the sale of shares of our common stock offered by this prospectus supplement and the accompanying base prospectus. In accordance with the terms of the sales agreement, under this prospectus supplement and accompanying base prospectus we may offer and sell shares of our common stock, having an aggregate offering price of up to $8,841,386 from time to time through or directly to B. Riley, acting as sales agent or principal. As of the date of this prospectus supplement, we have sold an aggregate of 12,802,366 shares of our common stock (on a post 2018 split basis) having an aggregate offering price of $15,942,452 under the sales agreement with B. Riley.



On January 5, 2021, the last reported sale price of our common stock on the NYSE American LLC was $1.00 per share.



Sales of our common stock, if any, under this prospectus supplement will be made by any method permitted that is deemed an “at the market offering” as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”). B. Riley is not required to sell any specific amount, but will act as our sales agent using commercially reasonable efforts consistent with its normal trading and sales practices. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.



B. Riley will be entitled to compensation at a commission rate equal to up to 3.0% of the gross sales price per share sold. In connection with the sale of the common stock on our behalf, B. Riley will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of B. Riley will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to B. Riley with respect to certain liabilities, including liabilities under the Securities Act.



As of the date of this prospectus supplement, the aggregate market value of our common stock held by non-affiliates pursuant to General Instruction I.B.6 of Form S-3 is $36,898,172, which is calculated based on 36,898,172 shares of our common stock outstanding held by non-affiliates and a price of $1.00 per share, the closing price of our common stock on January 5, 2020, which is the highest closing sale price of our common stock on the NYSE American LLC within the prior 60 days of this prospectus supplement. During the prior 12 calendar month period that ends on and includes the date hereof, we have offered and sold 9,256,535shares of our common stock pursuant to General Instruction I.B.6 to Form S-3 stock having an aggregate offering price of approximately $3,445,705 under the sales agreement with B. Riley.



As a result of the limitations set forth in General Instruction I.B.6 to Form S-3 and the current public float of our common stock, and in accordance with the terms of the sales agreement, we may offer and sell additional shares of our common stock having an aggregate offering price of up to $8,841,386 (which is one-third of $36,898,172 minus sales of $3,445,705 during the prior 12 month period) from time to time through B. Riley. If our public float increases such that we may sell additional amounts under the sales agreement and the registration statement of which this prospectus is a part, we will file a prospectus supplement prior to making additional sales. In no event will we sell securities in public primary offerings on Form S-3 with a value exceeding more than one-third of our public float (as defined by General Instruction I.B.6) in any 12 calendar month period so long as our public float remains below $75 million.


https://www.sec.gov/Archives/edgar/data/894158/000110465921001620/tm211793-2_424b5.htm

Figured something like this was coming.