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Item 9A. Controls and Procedures

2024-03-25 compared with 2023-03-30 · 144 added, 200 removed, 560 unchanged (38% of the section changed)

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Evaluation of Disclosure Controls and Procedures

The Company has adopted and maintains disclosure controls and procedures that are designed to provide reasonable assurance that information required to be disclosed in the reports filed under the Exchange Act, such as this Annual Report on Form 10-K, is collected, recorded, processed, summarized and reported within the time periods specified under the rules of the SEC.

The Company’s disclosure controls and procedures are also designed to ensure that such information is accumulated and communicated to management to allow timely decisions regarding required disclosure.

As required under Exchange Act Rule 13a-15, the Company’s management, including the Chief Executive Officer who also serves as its Chief Financial Officer, evaluated the effectiveness of disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) as of the end of the period covered by this Annual Report on Form 10-K.

Due to the material weaknesses in internal control over financial reporting as described below, our Chief Executive Officer who also serves as its Chief Financial Officer concluded that, as of the end of the period covered by this report, our disclosure controls and procedures were not effective.

We adopted and maintaindisclosure controls and procedures that are designed to provide reasonable assurance that information required to be disclosed in the reports filed under the Exchange Act, such as this Annual Report on Form 10-K, is collected, recorded, processed, summarized and reported within the time periods specified under the rules of the SEC.

Our disclosure controls and procedures are also designed to ensure that such information is accumulated and communicated to management to allow timely decisions regarding required disclosure.

As required under Exchange Act Rule 13a-15, our management, including the Chief Executive Officer who also serves as our Chief Financial Officer, evaluated the effectiveness of disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) as of the end of the period covered by this Annual Report on Form 10-K.

Due to the material weaknesses in internal control over financial reporting as described below, our Chief Executive Officer who also serves as our Chief Financial Officer concluded that, as of the end of the period covered by this report, our disclosure controls and procedures were not effective.

Management’s Annual Report on Internal Control Over Financial Reporting

The Company’s management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Exchange Act Rule 13a-15.

Internal control over financial reporting is defined in Rule 13a-15(f) and 15(d)-15(f) under the Exchange Act as a process designed to provide reasonable assurance to the Company’s management and Board of Directors regarding the preparation and fair presentation of published financial statements.

Management conducted an assessment of the Company’s internal control over financial reporting as of December 31, 2022 based on the framework and criteria established by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control-Integrated Framework (2013).

Based on the assessment, due to the material weaknesses in internal control over financial reporting as described below management concluded that, as of December 31, 2022, the Company’s internal control over financial reporting was not effective.

The Company’s management, including its Chief Executive Officer who is also its Chief Financial Officer, does not expect that the Company’s disclosure controls and procedures and its internal control processes will prevent all errors or fraud.

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Exchange Act Rule 13a-15.

Internal control over financial reporting is defined in Rule 13a-15(f) and 15(d)-15(f) under the Exchange Act as a process designed to provide reasonable assurance to our management and Board of Directors regarding the preparation and fair presentation of published financial statements.

Management conducted an assessment of our internal control over financial reporting as of December 31, 2023 based on the framework and criteria established by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control-Integrated Framework (2013).

Based on the assessment, management concluded that, as of December 31, 2023, our internal control over financial reporting was not effective.

Our management, including our Chief Executive Officer who is also our Chief Financial Officer, does not expect that our disclosure controls and procedures and our internal control processes will prevent all errors or fraud.

A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met.

Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs.

Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of error or fraud, if any, within the Company have been detected.

These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake.

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Therefore, it is possible to design into the process safeguards to reduce, though not eliminate, this risk.

On March 10, 2022 we completed the acquisition of VCN Biosciences, S.L.

In conjunction with the acquisition of VCN, we are currently in the process of integrating VCN’s policies, processes, people, technology, and operations into the consolidated company, and integrating VCN’s operations into our system of internal control over financial reporting.

As permitted by the Securities and Exchange Commission, we have elected to exclude the internal controls of this acquisition that has not been integrated into our existing processes and controls from our assessment of the effectiveness of internal control over financial reporting as of December 31, 2022.

The excluded aggregate financial position of VCN represented less than 40% of our total assets as of December 31, 2022, and less than 31% of our total operating costs for the year then ended.

We will include the internal controls of VCN in our assessment of the effectiveness of our internal control over financial reporting as of December 31, 2023.

Material Weakness over Non-Routine Transactions

During the course of the preparation of our interim consolidated financial statements for 2022, we identified a material weakness in our controls relating to accounting and disclosure controls for non-routine transactions.

Specifically, the controls related to the review of internally and externally prepared reports and analysis used in the financial reporting process and the related income tax implication of non-routine transactions.

Additionally, during the preparation of our annual consolidated financial statements, we determined that our reported interim income tax provision for the interim periods ended June 30, 2022 and September 30, 2022 contained errors, which resulted in the restatement of our consolidated financial statements for the periods then ended.

Specifically, our controls over the review of the interim tax provisions did not properly identify the need to record a deferred tax asset and resulting deferred tax benefit for our VCN subsidiary’s indefinite-lived net operating loss carryforward created during those interim periods.

In addition, our controls related to the review of the business combination transaction in 2022 failed to identify the incorrect application of certain assumptions in calculating the valuation of certain intangibles, contingent consideration, and the related tax implications.

Remediation Plan

In order to remediate these material weaknesses, we plan to implement the following steps to improve the overall processes of identifying and reviewing non-routine transactions and preparing interim financial statements:

● Perform additional internal review processes to ensure the appropriate accounting and disclosure of non-routine transactions.

● Engage a third-party tax specialist to assist us in the preparation and review of interim tax provisions.

Should additional changes to the remediation plan be warranted, management will modify the planned measures accordingly.

Material Weakness over Information Technology General Controls

During the preparation of our annual consolidated financial statements for 2022, we identified a material weakness in our controls relating to general information technology controls over logical access and program change management for certain of our key information systems used to support the financial reporting process.

Specifically, management did not maintain effective controls to ensure proper segregation of duties related to implementing program changes in certain information systems.

Further, management did not have adequate controls over user administration and did not perform effective periodic user access reviews in a timely manner to ensure proper permissions were granted, resulting in segregation of duties conflicts within certain business processes.

Remediation Plan

Management will ensure proper segregation of duties over all IT functions ensuring IT personnel are properly trained as to the importance of and specifics over the internal controls for which they are responsible, including consistent, repeatable performance of such controls.

Management will also evaluate the responsibilities of its control owners to ensure that proper segregation of duties exists within the process level controls that are dependent upon information produced by IT systems affected by segregation of duties conflicts.

Further, management will ensure IT personnel do not have conflicting responsibilities with respect to program changes, administration and user access controls, or that additional controls are implemented to perform an effective review of program changes, administration and user access.

Material Weakness over Evidence of Control Performance

During the preparation of our annual consolidated financial statements for 2022, we identified a material weakness relating to the ineffective design and execution of management’s review of controls, particularly with regard to the precision of the review, evidence of review procedures performed, and the evaluation of the completeness and accuracy of information utilized in the performance of the control.

Remediation Plan

Management will ensure all personnel are properly trained as to the importance of properly documenting and evidencing the performance of controls.

When fully implemented, the Company believes that the measures described above will appropriately remediate the identified material weaknesses, although management may determine that taking additional measures to remediate the material weaknesses may be necessary.

A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the company’s annual or interim financial statements will not be prevented or detected on a timely basis.

Based on its assessment, management has concluded that the Company did not maintain effective internal control over financial reporting as of December 31, 2023, due to the following previously reported material weaknesses that continued to exist:

● Management did not design and maintain effective review controls at a sufficient level of precision with certain financial statement areas and over unusual transactions involving complex accounting and related disclosure requirements.

● Management did not maintain effective information technology general controls over user access, program change management, and segregation of duties, within certain key information systems supporting the Company’s accounting and financial reporting processes.

Additionally, many of the Company’s business process controls dependent upon the information derived from these information systems were also ineffective, as management did not design and implement controls to validate the completeness and accuracy of underlying data utilized in the operation of those controls.

Management’s Plan for Remediation

In response to the material weaknesses, management, with oversight of the Audit Committee of the Board of Directors, has identified and begun to implement steps to remediate the material weaknesses.

The company hired an third party consultant during 2023 to assist with the remediation efforts.

While the Company has made progress during 2023, the remediation efforts are ongoing, as additional time is needed to complete the remediation and allow for the internal controls to be tested by management.

Our continued internal control remediation efforts include the following:

● Enhancing existing policies and procedures to facilitate more efficient operations and improve the timely execution of key controls by company personnel.

● Enhancing program change management, user access provisioning, and monitoring controls to ensure changes to key applications are appropriately reviewed and approved and to enforce appropriate system access and segregation of duties.

● Improving the design of key controls to ensure reports used in the performance of such controls are complete and accurate as part of the controls execution.

We are committed to ensuring that our internal controls over financial reporting are designed and operating effectively.

Management believes the efforts taken to date and the planned remediation will improve the effectiveness of our internal control over financial reporting.

While these remediation efforts are ongoing, the controls must be operating effectively for a sufficient period of time and be tested by management in order to consider them remediated and conclude that the design is effective to address the risks of material misstatement.

Changes in Internal Control Over Financial Reporting

Except for the material weaknesses described above, there has been no change in the Company’s internal control over financial reporting during the Company’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

Except for the material weaknesses described above, there has been no change in the Company’s internal control over financial reporting during the Company’s most recent quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

Other Information .

During the three months ended December 31, 2023, no director or officer of the Company adopted or terminated a “ Rule 10b5-1 trading arrangement” or “ nonRule 10b5-1 trading arrangement,” as each term is defined in Item 408(a) of Regulation S-K.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections .

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Chief Executive Officer, Chief Financial Officer and Director

Chief Operating Officer

Jeffrey Wolf, J.D.

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Shallcross has served on the board of directors of Elys Game Technology, Corp.

a Nasdaq listed international, vertically

integrated commercial-stage company engaged in various aspects of the leisure gaming industry and from April 2021 until June 2022, he served on the board of directors of TwinVee Powercats, Co.

a Nasdaq listed international, vertically integrated commercial-stage company engaged in various aspects of the leisure gaming industry and from April 2021 until June 2022, he served on the board of directors of TwinVee Powercats, Co.

VEEE), a designer, manufacturer and marketer of recreational and commercial power catamaran boats.

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Through his services as our Chief Executive Officer and Chief Financial Officer, he has developed extensive knowledge of our business.

Frank Tufaro .

Tufaro served as President of Opa Therapeutics Inc.

from May 2020 until March 2022.

Opa Therapeutics is a privately held biologics company.

From January 2010 through December 2019, Dr.

Tufaro served as Chief Executive Officer of DNAtrix.DNAtrix is a privately held biotech company developing virus-driven immunotherapies to treat cancer.

Tufaro received a Ph.D.

in Molecular Biology and a Bachelor of Science in Biology from McGill University.

Kraws has been a member of the Company’s Board of Directors since January of 2006, and was appointed independent, non-executive Chairman of the Board in May 2012.

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Since November 9, 2021, Mr.

Kraws has served as the Chief Executive Officer of GridIron Bionutrients, Inc.

Kraws serves as the Chief Executive Officer of GridIron Bionutrients, Inc.

From August 2016 through January 2021, Mr.

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Kraws is a partner of PDK Healthcare Innovations LLC.

Kraws also serves as Chief Financial Officer of Syncromune, Inc.

He also consults and assists in management of private companies through his private practice.

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Kraws served as our Vice President of Business Development, on a part-time basis.

Since December 2013, Mr.

Kraws serves on the board of directors of Avivagen Inc.

Since December 2013 until April 2023, Mr.

Kraws served on the board of directors of Avivagen Inc.

(TSX:VIV) and from 2013 until 2020 served on the board of directors of Saleen Automotive, Inc.

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Monahan has been a member of the Company's Board of Directors since November 11, 2020.

Monahan has served on the board of directors of NightHawk Biosciences, Inc.

(formerly known as Heat Biologics, Inc.), a biopharmaceutical company primarily engaged in the development of immune therapies and vaccines, since November 2009, and from August 2016 until May 2021 also served on the board of directors of the biotech company Anixa Biosciences, Inc.

Monahan has served on the board of directors of Scorpius Holdings, Inc.

(formerly known as NightHawk Biosciences, Inc.

and), a contract development and manufacturing organization since November 2009, and from August 2016 until May 2021 also served on the board of directors of Anixa Biosciences, Inc.

(formerly known as ITUS Corporation), a biotechnology company focused on using the body's immune system to diagnose, treat and prevent cancer.

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From 1989-1992, he was Vice President of Research & Development at Somatix Therapy Corp., Alameda, CA and from 1985-1989 he was Director of Molecular & Cell Biology at Triton Biosciences Inc., Alameda, CA.

Prior to that from 1982-1985, he was Research Group Chief, Department of Molecular Genetics, Hoffmann-LaRoche,

Prior to that from 1982-1985, he was Research Group Chief, Department of Molecular Genetics, Hoffmann-LaRoche, Inc.

Nutley, NJ, and from 1975 to 1977 he was an Instructor at Baylor College of Medicine, Houston TX.

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In August 2008, Mr.

Wolf founded NightHawk Biosciences, Inc.

NHWK), a publicly traded company engaged in research and development of drugs focused on modulating the immune system.

Wolf founded Scorpius Holdings, Inc.

(formerly known as NightHawk Biosciences, Inc.), a publicly traded contract development and manufacturing organization company.

Since April 2010, Mr.

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Prior to founding NightHawk, from June 1997 to March 2011, Mr.

Wolf has served as managing director at Seed-One Ventures, LLC a venture firm focused on launching and growing exceptional healthcare companies from the ground up.

Wolf served as managing director at Seed-One Ventures, LLC a venture firm focused on launching and growing exceptional healthcare companies from the ground up.

Wolf has also founded and run several biomedical companies.

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and Elusys Therapeutics, a company focused on the development of ANTHIM, an FDA approved antitoxin against anthrax, which is currently a subsidiary of NightHawk.

Wolf received his MBA.

from Stanford Business School, his J.D.

Wolf received his MBA from Stanford Business School, his J.D.

from New York University School of Law and his B.A.

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Our Nominations Committee charter is located on our website www.therivabio.com .

Delinquent Section 16(a) Reports

Section 16(a) of the Exchange Act requires our executive officers, directors and persons who beneficially own more than 10 percent of a registered class of the Theriva Biologics’ equity securities to file with the SEC initial reports of ownership and reports of changes in ownership of our common stock.

Such officers, directors and persons are required by SEC regulation to furnish us with copies of all Section 16(a) forms that they file with the SEC.

Based solely on a review of the copies of such forms that were received by us, or written representations from certain reporting persons that no Forms 5 were required for those persons, we are not aware of any failures to file reports or report transactions in a timely manner during the year ended December 31, 2022.

Code of Ethics

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Each of these codes is posted on our website at www.therivabio.com .

Insider Trading Policy

We have adopted an insider trading policy (the “Trading Policy”) that is designed to promote compliance with federal securities laws, rules and regulations, as well as the rules and regulations of NYSE American.

The Trading Policy was implemented to assure compliance with the securities laws prohibiting insider trading in our securities and disclosure of material, non-public information to outsiders.

It prohibits the purchase and sale of our securities by our directors, officers, and employees, as well as members of their households, while in possession of material, non-public information until the third business day after such information is made available to the public.

Additionally, our Trading Policy imposes special additional trading restrictions, including requiring pre-clearance of any transaction and prohibiting the purchase or sale of options to sell or buy our securities and short sales.

The Trading Policy is annexed to this Annual Report as an exhibit.

Executive Compensation .

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Although the rules allow us to provide less detail about our executive compensation program, the Compensation Committee is committed to providing the information necessary to help stockholders understand its executive compensation-related decisions.

Accordingly, this section includes supplemental narratives that describe the 2022 executive compensation program for our Named Executive Officer.

Accordingly, this section includes supplemental narratives that describe the 2023 executive compensation program for our Named Executive Officers.

The following table summarizes all compensation awarded to, earned by or paid to our Named Executive Officers, Steven A.

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Steven Shallcross

1,190,663 (5)

Chief Executive Officer

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Chief Operating Officer (6)

Shallcross was appointed as our Chief Executive Officer on December 6, 2018.

Shallcross' annual salary was $550,000 commencing December 6, 2018, increased to $565,000 on December 5, 2019, and increased to $585,00 on December 30, 2020.

Tufaro was appointed our Chief Operating Officer on March 22, 2022.

Tufaro annual salary was $375,000 commencing March 22.

Shallcross' annual salary was $585,000 commencing January 1, 2022 and $614,250 commencing January 1, 2023.

Tufaro was appointed our Chief Operating Officer on March 22, 2022 and separated from the Company on May 10, 2023.

Tufaro’s annual salary was $375,000 commencing March 22, 2022.

(2) Amounts represent annual cash bonuses earned for the applicable fiscal year.

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In December 2022 and December 2023, Mr.

Shallcross was issued an option to purchase 65,000 (as adjusted to reflect the stock split effected in 2022) and 475,000 shares of common stock, respectively;

the awards vest monthly over 36 months.

Shallcross was issued options to purchase 475,000 and 700,000 shares of common stock, respectively, Dr.

Tufaro was issued 100,000 options in December 2022, and each of these awards vest monthly over 36 months.

(4) The all other compensation column is comprised of vacation accrual paid, and the portion of medical, dental and vision premiums paid by us on behalf of our Named Executive Officers.

These benefits are offered to all Theriva Biologics’ employees who work at least 17.5 hours per week.

All other compensation for Mr.

Tufaro includes pursuant to his separation agreement the payment of a total of $196,875 for a period of six months, and reimbursement of COBRA coverage for himself, his spouse and other eligible dependents for six months.

(5) Amount excludes compensation paid to the wife of Mr.

Shallcross disclosed under the "Related Party Transactions"

Tufaro was appointed as our Chief Operating officer on March 22, 2022.

Shallcross disclosed under the "Related Party Transactions"

Tufaro was appointed as our Chief Operating officer on March 22, 2022 and separated from the Company on May 10, 2023.

Narrative Disclosure to Summary Compensation Table

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Pursuant to the terms of its charter, the Compensation Committee is responsible for the review of all aspects of our executive compensation program and makes decisions regarding the compensation of the Named Executive Officers.

Our Named Executive Officers for the year ended December 31, 2022 were Steven Shallcross, our Chief Executive Officer who also serves as our Chief Financial Officer and Frank Tufaro, who serves as our Chief Operating Officer.

Our Named Executive Officers for the year ended December 31, 2023 were Steven Shallcross, our Chief Executive Officer who also serves as our Chief Financial Officer, and Frank Tufaro, who served as our Chief Operating Officer until his separation on May 10, 2023.

The Compensation Committee’s responsibilities include but are not limited to the following:

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Of the performance based variable compensation 52% was equity-based compensation and 49% was his target cash bonus.

During 2022, the salary for our Chief Operating Officer was 66% of his annualized target compensation package and performance based variable compensation comprised 34% of his target compensation.

Of the performance based variable compensation 21% was equity-based compensation and 79% was his target cash bonus.

During 2023, our Chief Operating Officer Officer’s salary was 71% of his target annual compensation package and performance based variable compensation comprised 29% of his target annual compensation.

Because he served only until May 10, 2023, our Chief Operating Officer received only a pro-rated amount of his base salary, was not paid a cash bonus and did not receive equity-based compensation in 2023.

Compensation Review Process

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While the Compensation Committee does take into consideration the data it reviewed, the Committee does not attempt to benchmark our executive compensation against any specific level, range, or percentile of compensation paid at any other companies, does not apply any specific measures of internal or external pay equity in reaching its conclusions, and does not employ tally sheets, wealth accumulation, or similar tools in its analysis.

Rather, the Compensation Committee reviews compensation data from the survey and report mentioned above, as reference points in making executive compensation decisions especially in light of the fact that our Chief Executive Officer is also performing the role of Chief Financial Officer.

Rather, the Compensation Committee reviews compensation data from the report mentioned above as reference points in making executive compensation decisions especially in light of the fact that our Chief Executive Officer is also performing the role of Chief Financial Officer.

The Compensation Committee’s general aim is for our compensation to remain competitive with the market, falling above or below the median of the market data as appropriate based on corporate and individual executive performance, and other factors deemed to be appropriate.

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The base salaries are targeted to be competitive with other similar biotechnology companies.

Base salaries for the Named Executive Officers are set by their respective employment contracts and are reviewed annually by the Compensation Committee.

Based on the analysis of the executive compensation benchmarking report provided by Meridian peer group and other comparative research performed by the Committee, the Committee was able to compare the base salary for the Chief Executive Officer who also serves as our Chief Financial Officer, including base salary, long-term incentives and bonuses.

Upon the appointment of Mr.

Shallcross to serve as our Chief Executive Officer in December 2018 and in light of the fact that he also serves as our Chief Financial Officer, it was determined that his overall compensation levels were not competitive with the peer group and therefore his annual base salary was increased to $550,000, which was the same annual base salary as that of our prior Chief Executive Officer.

Shallcross’ employment agreement, dated December 6, 2018, was amended on December 5, 2019 to reflect a 3% merit adjustment to Mr.

Shallcross’ base salary, increasing his annual base salary to $565,000 and further amended on December 31, 2020 to reflect a 3.5% merit adjustment to Mr.

Shallcross’ base salary, increasing his annual base salary to $585,000 and further amended on December 15, 2022 to increase his base salary to $614,250.

On December 15, 2022, the Company entered into an Amendment to Dr.

Tufaro’s Employment Agreement to increase his base salary to $393,750.

The table below shows the 2022 base salary level for each of our Named Executive Officers, including a comparison with our 2021 for our Chief Executive Officer who also serves as our Chief Financial Officer.

Our Chief Operating Officer was hired in 2022.

Base salaries for the Named Executive Officers are set by their respective employment contracts and are reviewed annually by the Compensation Committee referencing an executive compensation benchmarking report provided by Meridian.

Shallcross’ base salary was $585,000 for the year ended December 31, 2022.

Shallcross received a 5% merit increase to $614,250 for the year ended December 31, 2023, and on December 14, 2023 received a 5% merit increase to $644,963.

Our former Chief Operating Officer, Dr.

Tufaro, received a base salary of $375,000 for the year ended December 31, 2022.

Tufaro received a 5% merit increase to $393,750 for the year ended December 31, 2023.

The table below shows the 2023 annualized base salary levels for our our Named Executive Officers, including a comparison with 2022.

Named Executive Officer

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The Compensation Committee also used information from the Meridian executive compensation benchmarking report in determining bonus amounts.

Although the Compensation Committee does not use any fixed formula in determining bonuses, it does link bonuses to

objectives the Compensation Committee deems important such as for 2022, effective M&A strategy and implementation, financings, and achievement of clinical milestones.

Although the Compensation Committee does not use any fixed formula in determining bonuses, it does link bonuses to objectives the Compensation Committee deems important such as for 2023, effective M&A strategy and implementation, financings, and achievement of clinical milestones.

Shallcross’ employment agreement provided that he was eligible for a target bonus of up to fifty percent (50%) of his base salary in cash.

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Tufaro’s employment agreement provided that he was eligible for a target bonus of up to forty percent (40%) of his base salary in cash.

After considering Dr.

Tufaro’s achievement relative to performance goals in 2022, the Compensation Committee approved a $85,000 cash bonus, or 72% of his target, pro-rated for the number of days he provided service to us in 2022.

● The Comepnsation Committee also approved and an option grant to purchase 475,000 shares of our common stock for Mr.

Shallcross and $85,000 cash bonus and an option grant to purchase 100,000 shares of our common stock for Dr.

Because he served only until May 10, 2023, Dr.

Tufaro did not receive a cash bonus for 2023.

Long-Term Incentives

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● provide competitive levels of total compensation.

In 2022, the Compensation Committee approved grants of options exercisable for 475,000 and 100,000 shares to Mr.

Shallcross and Dr.

Tufaro in 2022, respectively.

In 2023, the Compensation Committee approved grants of options exercisable for 700,000 shares to Mr.

The options had a grant date of December 14, 2023, an exercise price of $0.59, vest pro rata on a monthly basis over 36 months and expire seven years from date of grant.

Because he served only until May 10, 2023, Dr.

Tufaro did not receive any equity-based compensation in 2023.

The Compensation Committee reviews the performance, potential burn rates and dilution levels to create an option pool that may be awarded to employee participants.

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The table below reflects all outstanding equity awards made to each of the Named Executive Officers that are outstanding at December 31, 2023.

We currently grant stock-based awards pursuant to our 2020 Stock Incentive Plan (the “2020 Stock Plan”) and have outstanding awards under our 2001 Stock Incentive Plan (the “2001 Stock Plan”), 2007 Stock Incentive Plan (the “2007 Stock Plan”) and 2010 Stock Incentive Plan (the “2010 Stock Plan”).

We currently grant stock-based awards pursuant to our 2020 Stock Incentive Plan (the “2020 Stock Plan”) and have outstanding awards to Mr.

Shallcross under our 2010 Stock Incentive Plan (the “2010 Stock Plan”).

Grant Date (1)

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(1) Options will vest pro rata, on a monthly basis, over 36 months.

Tufaro resigned from the Company effective May 10, 2023.

All or Dr Tufaro’s option awards expired before December 31, 2023.

Employment Agreements

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On January 3, 2022, we entered into a three-year employment agreement with Mr.

Shallcross (the “2022 Shallcross Employment Agreement”), to serve as the Chief Executive Officer and to continue to serve as our Chief Financial Officer.

Shallcross has served as our Chief Financial Officer since June 1, 2015, initially pursuant to the terms of a two year employment agreement that we entered with him on April 28, 2015 (the “Initial Shallcross Employment Agreement”) and then pursuant an employment agreement we entered into with him on December 6, 2018, which replaced the Initial Shallcross Agreement (the “Amended Shallcross Employment Agreement”) Mr.

Shallcross was appointed as a director of the Company.

Shallcross does not receive additional compensation for service as our director.

The material terms of the 2022 Shallcross Employment Agreement and Amended Shallcross Agreement are set forth below.

Pursuant to the Amended Shallcross Employment Agreement, as amended, Mr.

Shallcross is entitled to an annual base salary of $614,250 and an annual performance bonus targeted at fifty percent (50%) of his annual base salary.

The annual bonus will be based upon the assessment of the Board of Mr.

Shallcross’s performance.

The Amended Shallcross Employment Agreement also includes confidentiality obligations and inventions assignments by Mr.

Shallcross and non-solicitation and non-competition provisions.

The Amended Shallcross Employment Agreement has a stated term of three years but may be terminated earlier pursuant to its terms.

Shallcross’s employment is terminated for any reason, he or his estate as the case may be, will be entitled to receive the accrued base salary, vacation pay, expense reimbursement and any other entitlements accrued by him to the extent not previously paid (the “Accrued Obligations”);

provided, however, that if his employment is terminated (i) by us without Cause or by Mr.

Shallcross for Good Reason (as each is defined in the Shallcross Employment Agreement) then in addition to paying the Accrued Obligations, (a) we will continue to pay his then current base salary and continue to provide benefits at least equal to those that were provided at the time of termination for a period of twelve (12) months and (b) he shall have the right to exercise any vested equity awards until the earlier of six (6) months after termination or the remaining term of the awards;

or (ii) by reason of his death or Disability (as defined in the Shallcross Employment Agreement), then in addition to paying the Accrued Obligations, Mr.

Shallcross would have the right to exercise any vested options until the earlier of six (6) months after termination or the remaining term of the awards.

In such event, if Mr.

Shallcross commenced employment with another employer and becomes eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits to be provided by us as described herein would terminate.

The Amended Shallcross Employment Agreement provides that upon the closing of a “Change in Control” (as defined in the Shallcross Employment Agreement), all unvested options shall immediately vest and the time period that Mr.

Shallcross will have to exercise all vested stock options and other awards that Mr.

Shallcross may have will be equal to the shorter of:

(i) six (6) months after termination, or (ii) the remaining term of the award(s).

If within one (1) year after the occurrence of a Change in Control, Mr.

Shallcross terminates his employment for “Good Reason” or we terminate Mr.

Shallcross’s employment for any reason other than death, disability or Cause, Mr.

Shallcross will be entitled to receive:

(i) the portion of his base salary for periods prior to the effective date of termination accrued but unpaid (if any);

(ii) all unreimbursed expenses (if any);

(iii) an aggregate amount (the “Change in Control Severance Amount”) equal to two (2) times the sum of his base salary plus an amount equal to the bonus that would be payable if the “target” level performance were achieved under the Company’s annual bonus plan (if any) in respect of the fiscal year during which the termination occurs (or the prior fiscal year if bonus levels have not yet been established for the year of termination);

and (iv) the payment or provision of any other benefits.

If within two (2) years after the occurrence of a Change in Control, Mr.

Shallcross terminates his employment for “Good Reason” or we terminate Mr.

Shallcross’s employment for any reason other than death, disability or Cause, Mr.

Shallcross will be entitled to also receive for the period of two (2) consecutive years commencing on the date of such termination of his employment, medical, dental, life and disability insurance coverage for him and the members of his family that are not less favorable to him than the group medical, dental, life and disability insurance coverage carried by us for him.

The Change in Control Severance Amount is to be paid in a lump sum if the Change in Control event constitutes a “change in the ownership” or a “change in the effective control” of the Company or a “change in the ownership of a substantial portion of a corporation’s assets” (each within the meaning of Section 409A of the Internal Revenue Code (“Rule 409A”)), or in 48 substantially equal payments, if the Change in Control event does not so comply with Section 409A.

On January 3, 2022, we entered into a three-year employment agreement with Steven A.

Shallcross (the “2022 Employment Agreement”), The 2022 Employment Agreement replaced the prior employment agreement with the us that Mr.

Shallcross (the “2022 Shallcross Employment Agreement”), to serve as our Chief Executive Officer and to continue to serve as our Chief Financial Officer.

The 2022 Employment Agreement replaced the prior employment agreement with us that Mr.

Shallcross entered into on December 6, 2018, as amended December 5, 2019 (the “Amended Employment Agreement”).

The material terms of the Employment Agreement are set forth below.

Shallcross has served as our Chief Financial Officer since June 1, 2015, initially pursuant to the terms of a two year employment agreement that we entered with him on April 28, 2015 (the “Initial Shallcross Employment Agreement”) and then pursuant to an employment agreement we entered into with him on December 6, 2018, which replaced the Initial Shallcross Agreement (the “Amended Shallcross Employment Agreement”).

Shallcross does not receive additional compensation for service as our director.

The material terms of the 2022 Shallcross Employment Agreement are set forth below.

Pursuant to the 2022 Employment Agreement, Mr.

Shallcross is entitled to an annual base salary of $585,000 and an annual cash performance bonus targeted at fifty percent (50%) of his annual base salary as well as discretionary annual equity awards pursuant to the Company’s incentive plans.

Shallcross was initially entitled to an annual base salary of $585,000 which was increased to $614,250 for the year ended December 31, 2023 and increased on December 14, 2023 to $644,963 to reflect a 5% merit increase.

Shallcross is also eligible to recieve an annual cash performance bonus targeted at fifty percent (50%) of his annual base salary as well as discretionary annual equity awards pursuant to the Company’s incentive plans.

The annual bonus will be based upon the assessment of the Board of Mr.

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Frank Tufaro, Chief Operating Officer,

On March 22, 2022, we entered into an employment agreement with Frank Tufaro, as amended on December 15, 2022 (the “Employment Agreement”) to serve as the Chief Operating Officer of the Company.

Frank Tufaro, Former Chief Operating Officer,

On March 22, 2022, we entered into an employment agreement with Dr.

Tufaro, as amended on December 15, 2022 (the “Employment Agreement”) to serve as the Chief Operating Officer of the Company, which agreement terminated on May 10, 2023.

The material terms of the Employment Agreement are set forth below.

Pursuant to the Employment Agreement, as amended Dr.

Tufaro will receive an annual base salary of $393,750 and is eligible to earn an annual performance bonus targeted at forty percent (40%) of his annual base salary.

The annual bonus will be based upon the assessment of the Company’s Board of Dr.

Tufaro was to receive an annual base salary of $393,750 and was eligible to earn an annual performance bonus targeted at forty percent (40%) of his annual base salary.

The annual bonus was to be based upon the assessment of the Company’s Board of Dr.

Tufaro’s performance and the Company’s attainment of targeted goals set by the Board.

In addition, Dr.

Tufaro will also be eligible to receive annual equity awards pursuant to the Company’s incentive equity plans, such awards (including the number and type of awards), if any, will be in the sole discretion of the Board.

The Employment Agreement also includes confidentiality obligations and inventions assignments by Dr.

Tufaro was eligible to receive annual equity awards pursuant to the Company’s incentive equity plans:

such awards (including the number and type of awards), if any, were at the sole discretion of the Board.

The Employment Agreement also included confidentiality obligations and inventions assignments by Dr.

Tufaro and non-solicitation and non-competition provisions.

The Employment Agreement has a stated term of three (3) years but may be terminated earlier pursuant to its terms.

Tufaro’s employment is terminated for any reason, he or his estate as the case may be, will be entitled to receive the accrued base salary, any unpaid annual bonus earned with respect to any calendar year ending on or preceding the date of termination, vacation pay, expense reimbursement and any other entitlements accrued by him to the extent not previously paid (the “Accrued Obligations”);

provided, however, that if his employment is terminated (i) by the Company without Cause or by Dr.

Tufaro for Good Reason (as each is defined in the Employment Agreement) then in addition to paying the Accrued Obligations, (a) the Company will continue to pay his then current base salary and continue to provide benefits at least equal to those that were provided at the time of termination for a period of six (6) months and (b) all unvested stock options and other equity awards will immediately vest and he will be entitled to exercise any vested equity awards until the earlier of six (6) months after termination or the remaining term of the awards;

The Employment Agreement had a stated term of three (3) years but could be terminated earlier pursuant to its terms.

Tufaro’s employment was terminated for any reason, he or his estate as the case may be, would be entitled to receive the accrued base salary, any unpaid annual bonus earned with respect to any calendar year ending on or preceding the date of termination, vacation pay, expense reimbursement and any other entitlements accrued by him to the extent not previously paid (the “Accrued Obligations”);

provided, however, that if his employment was terminated (i) by the Company without Cause or by Dr.

Tufaro for Good Reason (as each was defined in the Employment Agreement) then in addition to paying the Accrued Obligations, (a) the Company would continue to pay his then current base salary and continue to provide benefits at least equal to those that were provided at the time of termination for a period of six (6) months and (b) all unvested stock options and other equity awards would immediately vest and he would be entitled to exercise any vested equity awards until the earlier of six (6) months after termination or the remaining term of the awards;

or (ii) by reason of his death or Disability (as defined in the Employment Agreement), then in addition to paying the Accrued Obligations, Dr.

Tufaro, or his estate as the case may be, would have the right to exercise any vested options until the earlier of six (6) months after termination or the remaining term of the awards.

Tufaro commenced employment with another employer and becomes eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits to be provided by the Company as described herein would terminate.

The Employment Agreement provides that upon the closing of a “Change in Control” (as defined in the Employment Agreement), all unvested stock options and other equity awards will immediately vest and the time period that Dr.

Tufaro will have to exercise all vested stock options and other awards that Dr.

Tufaro may have will be equal to the shorter of:

(i) eighteen (18) months after termination, or (ii) the remaining term of the award(s).

If within one (1) year after the occurrence of a Change in Control, Dr.

Tufaro terminates his employment for “Good Reason” or the Company terminates Dr.

Tufaro’s employment for any reason other than death, Disability or Cause, Dr.

Tufaro will be entitled to receive:

(a) the portion of his base salary for periods prior to the effective date of termination accrued but unpaid (if any);

(b) all unreimbursed expenses (if any);

and (c) an aggregate amount (the “Change in Control Severance Amount”) equal to two (2) times the sum of his base salary plus an amount equal to the bonus that would be payable if the “target” level performance were achieved under the Company’s annual bonus plan (if any) in respect of the fiscal year during which the termination occurs (or the prior fiscal year if bonus levels have not yet been established for the year of termination).

If within two (2) years after the occurrence of a Change in Control, Dr.

Tufaro terminates his employment for “Good Reason” or the Company terminates Dr.

Tufaro’s employment for any reason other than death, Disability or Cause, Dr.

Tufaro will be entitled to also receive for the period of two (2) consecutive years commencing on the date of such termination of his employment, medical, dental, life and disability insurance coverage for him and the members of his family that are not less favorable to him than the group medical, dental, life and disability insurance coverage carried by the Company for him.

Tufaro commenced employment with another employer and became eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits to be provided by the Company as described herein would terminate.

Effective May 10, 2023, the Company entered into a Separation Agreement and Release (the “Separation Agreement”) and a consulting agreement (the “Consulting Agreement”) with Dr.

Tufaro had entered into the Employment Agreement with the Company on March 22, 2022 to serve as our Chief Operating Officer.

In accordance with the terms of the Employment Agreement, the Separation Agreement provides for (i) the payment to Mr.

Tufaro of a total of $196,875, paid in bi-monthly installments, less applicable withholding, for a period of six months, (ii) reimbursement of COBRA coverage for himself, his spouse and other eligible dependents for the lesser of:

six months or until he commences new employment or substantial self-employment, (iii) acceleration of the vesting of his outstanding stock options (the “Option Awards”) and (iv) the extension of the period of time for which Mr.

Tufaro has the right to exercise any vested shares subject to options until the earlier of (a) the expiration date of the Option Awards, or (b) six (6) months from the separation date.

The Separation Agreement contains mutual general releases of claims and non-disparagement provisions.

The Consulting Agreement has a term of six months unless sooner terminated.

Either party may terminate the Consulting Agreement without cause at any time upon thirty days’ prior written notice or with cause immediately.

Tufaro will be compensated a set daily rate for each full day that he provides consulting services, pro-rated for any days services are provided less than eight hours.

Clawback Policy

The Board has adopted a clawback policy which allows us to recover performance-based compensation, whether cash or equity, from a current or former executive officer in the event of an Accounting Restatement.

The clawback policy defines an Accounting Restatement as an accounting restatement of our financial statements due to our material noncompliance with any financial reporting requirement under the securities laws.

Under such policy, we may recoup incentive-based compensation previously received by an executive officer that exceeds the amount of incentive-based compensation that otherwise would have been received had it been determined based on the restated amounts in the Accounting Restatement.

The Board has the sole discretion to determine the form and timing of the recovery, which may include repayment, forfeiture and/or an adjustment to future performance-based compensation payouts or awards.

The remedies under the clawback policy are in addition to, and not in lieu of, any legal and equitable claims available to the Company.

The clawback policy is annexed to this Annual Report as an exhibit.

Compensation of Directors

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Awards (1)(2)

John Monahan (5)

(1) The amounts in the “Option Awards” column reflect the dollar amounts of the grant date fair value for the financial statement reporting purposes for stock options for the fiscal year ended December 31, 2023 in accordance with ASC 718.

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In addition, each non-employee member of the Board of Directors was issued an option exercisable for 110,000 shares of our common stock, for a term of seven years, vesting monthly over one year of the date of grant.

In setting 2022 and 2021 compensation for directors, the Compensation Committee relied on a report from Meridian Compensation Partners, LLC.

Based on an analysis of director compensation set forth in the report, our financial performance, general market conditions and the interests of stockholders, it was determined that the annual cash retainer for serving on the board and the committee retainers would remain for 2023 the same as they were in 2022 and 2021.

Kraws was appointed as our independent, non-executive Chairman of the Board of Directors in May 2012.

Pursuant to his agreement Mr.

Kraws receives an annual retainer of $150,000 for serving as our Chairman.

In setting 2023 compensation for directors, the Compensation Committee relied on a report from Meridian Compensation Partners, LLC.

Compensation Committee Interlocks

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(ii) each of our directors and our named executive officers named in the Summary Compensation Table;

and (iii) all of our directors and our executive officer as a group.

and (iii) all of our directors and our current executive officer as a group.

Shares Owned (1)

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John Monahan (7)

Frank Tufaro (8)

All current officers and directors as a group (4 persons)

Frank Tufaro (8)

represents less than 1% of our common stock

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Does not include an additional 64,167 shares issuable upon exercise of options held by Mr.

Kraws that are not exercisable within the 60-day period following May 26, 2023.

Kraws that are not exercisable within the 60-day period following March 25, 2024.

(5) Includes 488,037 shares issuable upon exercise of options held by Mr.

Shallcross a nd 8,028 shares of Common Stock issuable upon exercise of options held by Mrs.

Shallcross and 36,111 shares of Common Stock issuable upon exercise of options held by Mrs.

Shallcross (Mr.

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Monahan that are not exercisable within the 60-day period following March 25, 2024.

(8) Includes 13,888 shares issuable upon exercise of options held by Dr.

Tufaro that are exercisable within the 60-day period following March 30 , 2023.

Does not include an additional 86,112 shares issuable upon exercise of options held by Dr.

Tufaro that are not exercisable within the 60-day period following March 30 , 2023.

(8) Includes 80,645 shares of Common Stock owned by Dr.

Tufaro was appointed as our Chief Operating officer on March 22, 2022 and resigned from the Company effective May 10, 2023.

Equity Compensation Plan Information

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For purposes of the Audit Committee Charter, “Related Party Transactions” shall mean those transactions required to be disclosed pursuant to SEC Regulation S-K, Item 404.

The Board of Directors undertook a review of the independence of the members of the Board of Directors and considered whether any director has a material relationship with our company that could compromise his or her ability to exercise independent judgment in carrying out his or her responsibilities.

Based upon information requested from and provided by each director concerning their background, employment and affiliations, including family relationships, the Board of Directors has determined that Mr.

Monahan and Mr.

Wolf are independent directors.

Except as disclosed under “Executive Compensation,” and below there were no related party transactions during the two years ended December 31, 2023 or the current year.

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Shallcross had been performing services for us during 2022 for total compensation of less than $120,000.

See Part III–Item 10 under the heading “Directors, Executive Officers and Corporate Governance” of this Annual Report for information related to director independence.

On December 14, 2023, Ms.

Shallcross’ salary was increased to $152,000, earned a bonus of $70,000 and was granted 75,000 option to purchase Common Stock with a value of $30,000.

Director Independence

Monahan and Mr.

Wolf are “independent” as that term is defined under the rules of NYSE American.

See Part III–Item 10 under the heading “Directors, Executive Officers and Corporate Governance” of this Annual Report for additional information related to director independence.

Principal Accountant Fees and Services .

Independent Registered Public Accounting Firm Fees and Services

The following table sets forth the aggregate fees including expenses billed to us for the years ended December 31, 2022 and 2021 by BDO USA, LLP.

Audit-Related fees

The following table sets forth the aggregate fees including expenses billed to us for the years ended December 31, 2023 and 2022 by BDO USA, P.C.

Total Fees (1)

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Adopted and Effective October 12, 2022 (Incorporated by reference to Exhibit 3.3 of the Registrant’s Current Report on Form 8-K filed on October 12, 2022 (File No.

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.

Specimen Stock Certificate (Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3 filed on July 3, 2013, File No.

Form of Warrant issued December 26, 2017 to InSite Communications (Incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 10-Q filed May 5, 2018, File No.

Warrant Agency Agreement, dated October 15, 2018, by and between Theriva Biologics, Inc.

and Corporate Stock Transfer, Inc.

(including the form of warrant certificate) (Incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 8-K filed October 15, 2018, File No.

Description of Securities of Theriva Biologics, Inc.

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and The University of Texas at Austin (Incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed December 21, 2012, File No.

Sponsored Research Agreement dated December 19, 2012 between Theriva Biologics, Inc.

and The University of Texas at Austin (Incorporated by reference to Exhibit 10.2 of the Registrant’s Current Report on Form 8-K filed December 21, 2012, File No.

Amended and Restated 2010 Stock Incentive Plan (Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-8 filed on November 15, 2013, File No.

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(Incorporated by reference to Exhibit B to the Definitive Proxy Statement filed on April 13, 2015, File No.

Lease dated April 14, 2015 between Registrant.

and MCC3, LLC (1)

Theriva Biologics, Inc.

7 unchanged sentences

Amended and Restated 2010 Stock Incentive Plan (Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-8 filed on September 8, 2017, File No.

Fifth Amendment dated August 22, 2017 to Sponsored Research Agreement dated December 19, 2012 between Theriva Biologics, Inc.

and The University of Texas at Austin (Incorporated by reference to Exhibit 10.54 of the Registrant’s Annual Report on Form 10-K filed on February 22, 2018, File No.

Theriva Biologics, Inc.

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Form of Restricted Stock Unit Award Agreement (Incorporated by reference to Exhibit 4.13 to the Registration Statement on Form S-8 filed on October 28, 2020, File No.

Termination of Exclusive License Agreement, effective November 9, 2020, by and among Cedars- Sinai Medical Center, Theriva Biologics, Inc.

and Synthetic Biomics, Inc.

(Incorporated by Reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, filed on November 10, 2020 File No.

Second Amendment to Lease dated May 6, 2021 by and between Registrant and ARE-Maryland No.

Employment Agreement with Steven Shallcross dated January 3, 2022 (Incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed on January 4, 2022, File No.

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Employment Agreement with Frank Tufaro dated March 22, 2022 (Incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed on March 23, 2022, File No.

Employment Agreement with Mary Ann Shallcross dated April 8, 2022 (1)

Securities Purchase Agreement between Synthetic Biologics Inc.

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and certain selling stockholders (Incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed on December 23, 2022, File No.

Separation Agreement, dated as of May 8, 2023, between Theriva Biologics, Inc.

and Frank Tufaro (Incorporated by reference to Exhibit 10.1 of the Registrant’s Quarterly Report on Form 10-Q filed on May 11, 2023, File No.

Consulting Agreement, dated as of May 8, 2023, between Theriva Biologics, Inc.

and Frank Tufaro (Incorporated by reference to Exhibit 10.2 of the Registrant’s Quarterly Report on Form 10-Q filed on May 11, 2023, File No.

Insider Trading Policy (1)

List of Subsidiaries (1)

Consent of Independent Registered Public Accounting Firm (BDO USA, LLP) (1)

Consent of Independent Registered Public Accounting Firm (BDO USA, P.C.) (1)

Certification of Steven A.

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Shallcross, Chief Financial Officer pursuant to Section 1350 of the Sarbanes-Oxley Act of 2002 (1)

Clawback Policy (1)

Inline XBRL Instance Document (1)

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Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures