Bio-Path Holdings, Inc S-1/A, filed Jan 23, 2024

Bio-Path Holdings, Inc. (BPTH)

S-1/A 2024-01-23

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Added on October 27, 2026

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	Large accelerated filer ☐			Accelerated filer ☐
	Non-accelerated filer ☒			Smaller reporting company ☒
	Emerging growth company ☐

	PROSPECTUS SUMMARY					1
	RISK FACTORS					7
	SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS					11
	USE OF PROCEEDS					13
	DILUTION					14
	DESCRIPTION OF CAPITAL STOCK					16
	DESCRIPTION OF SECURITIES WE ARE OFFERING					18
	EXECUTIVE COMPENSATION					21
	PLAN OF DISTRIBUTION					30
	LEGAL MATTERS					36
	EXPERTS					36
	WHERE YOU CAN FIND MORE INFORMATION					36
	INFORMATION INCORPORATED BY REFERENCE					36

Assumed combined offering price per share and Common Warrant (assuming no sale of Pre-Funded Warrants)			$	0.41
Historical net tangible book value per share as of September 30, 2023	$	0.22
Increase in net tangible book value per share attributable to new investors	$	0.10
As adjusted net tangible book value per share after this offering			$	0.32
Dilution per share to new investors			$	0.09

Element			Form of Compensation			Purpose, Basis and Performance Criteria
Base Salary			Cash			• Base salary is intended to provide a market competitive level of fixed compensation in recognition of responsibilities, skills, capabilities, experience and leadership. • Base salary is not generally performance based, but reflective of competencies and experience.

Element	Form of Compensation	Purpose, Basis and Performance Criteria
Annual Performance Incentive Awards (considered “at-risk” compensation)	Cash	• Annual cash performance incentive awards are intended to motivate and reward performance achievement. • Payments are discretionary and approved annually by the Compensation Committee.
Long-Term Incentive Awards (considered “at-risk” compensation)	Stock Options	• Long-term incentive awards are intended to recognize and reward the achievement of long-term corporate goals and objectives, recognize promotions, motivate retention of our leadership talent and align executives’ interests with our stockholders. • The Compensation Committee determines the amount of long-term incentive awards to be granted to each NEO. The Compensation Committee also may make isolated awards to recognize promotions, new hires or individual performance achievements. • In 2023, the long-term incentive awards included time-vested equity awards that vest over a four-year period. • The Compensation Committee provides time-vested long-term incentives (i) to build a consistent ownership stake and retention incentive, (ii) to create a meaningful tie to the Company’s relative long-term stockholder returns and (iii) to motivate consistent improvement over a longer-term horizon.
Change of Control Severance	Eligible to receive severance payments and post-termination health benefits in connection with involuntary termination within three months before or twelve months after a change of control	• Employment agreements are intended to provide financial security and an industry-competitive compensation package for NEOs. This additional security helps ensure that NEOs remain focused on our performance and the continued creation of stockholder value throughout any change of control transaction rather than on the potential uncertainties associated with their own employment.

Name and Principal Position	Year		Salary ($)			Bonus ($)			Option Awards ($)(1)			All Other Compensation ($)			Total ($)
Peter H. Nielsen, CEO,		2023		$	575,000(2)		$	110,000(3)		$	130,880		$	11,237(4)		$	827,117
CFO, President, Chairman, Director		2022		$	555,000		$	150,000		$	288,669		$	17,678(5)		$	1,011,347

Name	Number of Securities Underlying Unexercised Options Exercisable (#)		Number of Securities Underlying Unexercised Options Unexercisable (#)		Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#)		Option Exercise Price ($)			Option Expiration Date
Mr. Nielsen(1)		2,761		—		—		$	550.00	April 2026
Mr. Nielsen(1)		6,500		—		—		$	36.80	April 2028
Mr. Nielsen(1)		15,000		—		—		$	18.40	March 2029
Mr. Nielsen(2)		14,063		937		—		$	3.25	March 2030
Mr. Nielsen(3)		74,375		10,625		—		$	5.21	June 2030
Mr. Nielsen(4)		68,750		31,250		—		$	7.02	March 2031
Mr. Nielsen(5)		39,375		50,625		—		$	3.61	March 2032
Mr. Nielsen(6)		—		105,000		—		$	1.39	May 2033

		Triggering Event
Name	Benefit	Termination without Cause or Resignation for Good Reason ($)			Termination without Cause or Resignation for Good Reason within 3 Months Before or 12 Months Following a Change in Control ($)
Peter H. Nielsen	Market Value of Stock Vesting		$	—		$	—(1)
	Accrued Vacation Days			36,923			36,923
	Three Months’ Base Salary			100,000			100,000
	Continuation of Benefits			1,667			3,334
	Total		$	138,590		$	140,257

Name	Fees Earned or Paid in Cash			Option Awards			All Other Compensation			Total
Heath W. Cleaver		$	73,000(1)		$	12,306(2)		$	—		$	85,306
Paul D. Aubert		$	61,500(1)		$	12,306(2)		$	—		$	73,806
Aline B. Sherwood		$	64,500(1)		$	12,306(2)		$	—		$	76,806
Douglas P. Morris(3)		$	—		$	16,235(4)		$	73,744(5)		$	89,979

Director	Number of shares underlying outstanding options
Heath W. Cleaver		42,500
Paul D. Aubert		42,000
Aline B. Sherwood		20,000
Douglas P. Morris(1)		52,375

	AMOUNT
SEC registration fee		$	3,505.50
FINRA Filing Fee		$	5,000
Printing and related expenses		$	2,500
Legal fees and expenses		$	80,000
Transfer agent and registrar fees and expenses		$	10,000
Accounting fees and expenses		$	10,000
Miscellaneous expenses		$	1,000
Total		$	112,005.50

	Exhibit Number			Exhibit
	2.1			Agreement and Plan of Merger and Reorganization dated September 27, 2007, by and among the Company, Biopath Acquisition Corp., a Utah corporation and wholly owned subsidiary of the registrant, and Bio-Path, Inc., a Utah corporation (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on September 27, 2007).
	3.1			Certificate of Incorporation (incorporated by reference to Exhibit 3.3 to the Company’s Current Report on Form 8-K filed on January 6, 2015).
	3.2			Certificate of Amendment to the Certificate of Incorporation of Bio-Path Holdings, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on February 9, 2018).
	3.3			Certificate of Amendment to the Certificate of Incorporation of Bio-Path Holdings, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on January 16, 2019).
	3.4			First Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on June 7, 2017).

	Exhibit Number			Exhibit
	3.5			Amendment No. 1 to First Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on December 8, 2023).
	4.1			Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Company’s Annual Report on Form 10-K filed on March 16, 2015).
	4.2			Form of Warrant issued to Maxim Group LLC, Sabby Healthcare Volatility Master Fund, Ltd. and Sabby Volatility Warrant Master Fund, Ltd. (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K on January 21, 2014).
	4.3			Form of Warrant issued to certain investors (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on June 29, 2016).
	4.4			Form of Warrant issued to H.C. Wainwright & Co., LLC and certain of its designees (incorporated by reference to Exhibit 4.5 to the Company’s Quarterly Report on Form 10-Q filed on August 9, 2016).
	4.5			Form of New Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on May 22, 2017).
	4.6			Form of Warrant Amendment (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on June 19, 2017).
	4.7			Form of Warrant issued to certain investors (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on November 6, 2017).
	4.8			Form of Warrant issued to Roth Capital Partners, LLC (incorporated by reference to Exhibit 4.9 to the Company’s Annual Report on Form 10-K filed on April 2, 2018).
	4.9			Form of Series A Warrant issued to certain investors (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on September 21, 2018).
	4.10			Form of Warrant issued to H.C. Wainwright & Co., LLC and certain of its designees (incorporated by reference to Exhibit 4.3 to the Company’s Quarterly Report on Form 10-Q filed on November 14, 2018).
	4.11			Form of Underwriter Warrant issued to H.C. Wainwright & Co., LLC and certain of its designees (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on January 16, 2019).
	4.12			Form of Series A Warrant issued to certain investors (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on January 22, 2019).
	4.13			Form of Warrant issued to H.C. Wainwright & Co., LLC and certain of its designees (incorporated by reference to Exhibit 4.15 to the Company’s Annual Report on Form 10-K filed on March 19, 2019).
	4.14			Form of Warrant issued to H.C. Wainwright & Co., LLC and certain of its designees (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on March 13, 2019).
	4.15			Form of Warrant issued to certain investors (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on November 22, 2019).
	4.16			Form of Warrant issued to H.C. Wainwright & Co., LLC and certain of its designees (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on November 22, 2019).
	4.17			Description of Bio-Path Holdings, Inc.’s Securities Registered under Section 12 of the Securities Exchange Act of 1934 (incorporated by reference to Exhibit 4.17 to the Company’s Annual Report on Form 10-K filed on March 5, 2020).
	4.18			Form of Common Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on November 9, 2022).
	4.19			Form of Common Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on August 7, 2023).

	Exhibit Number			Exhibit
	4.20			Warrant Agency Agreement, dated as of August 7, 2023, by and between Bio-Path Holdings, Inc. and Equinity Trust Company, LLC (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed on August 7, 2023).
	4.21*			Form of Common Warrant.
	4.22*			Form of Pre-Funded Warrant.
	4.23*			Form of Warrant Agency Agreement.
	5.1*			Opinion of Winstead PC.
	10.1+			Employment Agreement — Peter H. Nielsen (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on February 19, 2008).
	10.2+			Amended 2007 Stock Incentive Plan (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-8 filed on December 10, 2008).
	10.3+			First Amendment to First Amended 2007 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on August 14, 2013).
	10.4			Form of Securities Purchase Agreement by and between the Company, Sabby Healthcare Volatility Master Fund, Ltd. and Sabby Volatility Warrant Master Fund, Ltd. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on January 21, 2014).
	10.5			Form of Waiver, Consent and Amendment to that certain Securities Purchase Agreement by and between Sabby Healthcare Volatility Master Fund, Ltd. and Sabby Volatility Warrant Master Fund, Ltd. (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K on January 21, 2014).
	10.6+			First Amendment to Employment Agreement, dated March 26, 2014 — Peter H. Nielsen (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 26, 2014).
	10.7			Lease Agreement dated April 16, 2014 by and between the Company and Pin Oak North Parcel TT, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on April 18, 2014).
	10.8			Form of Indemnification Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on April 16, 2015).
	10.9			Controlled Equity OfferingSM Sales Agreement, dated June 24, 2015, by and between the Company and Cantor Fitzgerald & Co. (incorporated by reference to Exhibit 1.1 to the Company’s Current Report on Form 8-K filed on June 25, 2015).
	10.10			Form of Securities Purchase Agreement by and between the Company and certain investors (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on June 29, 2016).
	10.11			Form of Warrant Exercise Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on May 22, 2017).
	10.12			Form of Securities Purchase Agreement by and between the Company and certain investors (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on November 6, 2017).
	10.13			Form of Leak-Out Agreement by and between the Company and certain investors (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on November 6, 2017).
	10.14+			Bio-Path Holdings, Inc. 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 27, 2017).
	10.15			Form of Incentive Stock Option Award Agreement under 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on December 27, 2017).

	Exhibit Number			Exhibit
	10.16			Form of Non-Qualified Stock Option Award Agreement under 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on December 27, 2017).
	10.17			Form of Restricted Share Unit Award Agreement (Time-Vested) under 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on December 27, 2017).
	10.18			Form of Restricted Share Unit Award Agreement (Performance-Based) under 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed on December 27, 2017).
	10.19			Form of Restricted Share Award Agreement under 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.6 to the Company’s Current Report on Form 8-K filed on December 27, 2017).
	10.20			Form of Stock Appreciation Right Award Agreement under 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.7 to the Company’s Current Report on Form 8-K filed on December 27, 2017).
	10.21			Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on September 21, 2018).
	10.22			Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on January 22, 2019).
	10.23			Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 13, 2019).
	10.24			First Amendment to Lease Agreement dated April 16, 2014 by and between the Company and Pin Oak North Parcel TT, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on June 4, 2019).
	10.25			Form of Securities Purchase Agreement by and between the Company and certain investors (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on November 22, 2019).
	10.26+			First Amendment to Bio-Path Holdings, Inc. 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 23, 2019).
	10.27+			Second Amendment to Bio-Path Holdings, Inc. 2017 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on May 16, 2022).
	10.28			Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on November 9, 2022).
	10.29+			Bio-Path Holdings, Inc. 2022 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 20, 2022).
	10.30			Form of Incentive Stock Option Award Agreement under 2022 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on December 20, 2022).
	10.31			Form of Non-Qualified Stock Option Award Agreement under 2022 Stock Incentive Plan (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on December 20, 2022).
	10.32			Form of Restricted Share Unit Award Agreement (Time-Vested) under 2022 Stock Incentive Plan (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on December 20, 2022).

	BIO-PATH HOLDINGS, INC.

	By:
	Name:	Peter H. Nielsen
	Title:	President and Chief Executive Officer

Name:
			(Please Print)
Address:
			(Please Print)
Phone Number:
Email Address:
Dated:
Holder’s Signature:
Holder’s Address:

	BIO-PATH HOLDINGS, INC.

	By:
		Name:
		Title:

	¨ in lawful money of the United States; or

	¨ if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).

	Exhibit Number			Exhibit
	10.33			Form of Restricted Share Unit Award Agreement (Performance-Based) under 2022 Stock Incentive Plan (incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed on December 20, 2022).
	10.34			Form of Restricted Share Award Agreement under 2022 Stock Incentive Plan (incorporated by reference to Exhibit 10.6 to the Company’s Current Report on Form 8-K filed on December 20, 2022).
	10.35			Form of Stock Appreciation Right Award Agreement under 2022 Stock Incentive Plan (incorporated by reference to Exhibit 10.7 to the Company’s Current Report on Form 8-K filed on December 20, 2022).
	10.36			Placement Agency Agreement, dated as of August 3, 2023, by and between Bio-Path Holdings, Inc. and Roth Capital Partners, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on August 7, 2023).
	10.37			Form of Securities Purchase Agreement, dated as of August 3, 2023, by and between Bio-Path Holdings, Inc. and certain purchasers (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on August 7, 2023).
	10.38			Form of Warrant Amendment Agreement, dated as of August 3, 2023, by and between Bio-Path Holdings, Inc. and certain warrant holders (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on August 7, 2023).
	10.39*			Form of Placement Agency Agreement.
	10.40*			Form of Securities Purchase Agreement.
	21.1			Subsidiaries of Bio-Path Holdings, Inc. (incorporated by reference to Exhibit 21.1 to the Company’s Annual Report on Form 10-K filed on March 5, 2020).
	23.1*			Consent of Ernst & Young LLP.
	23.2*			Consent of Winstead PC (included in Exhibit 5.1).
	107*			Filing Fee Table.

	/s/ Peter H. Nielsen Peter H. Nielsen President, Chief Executive Officer (Principal Executive Officer), Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) and Director			January 23, 2024
	* Heath W. Cleaver Director			January 23, 2024
	* Paul D. Aubert Director			January 23, 2024
	* Aline Sherwood Director			January 23, 2024
	* Douglas P. Morris Director and Secretary			January 23, 2024
	*By: /s/ Peter H. Nielsen Peter H. Nielsen, Attorney-In-Fact

Name of Investing Entity:

Signature of Authorized Signatory of Investing

	BIO-PATH HOLDINGS, INC.

	By:
		Name: Peter H. Nielsen
		Title: Chief Executive Officer

	EQUINITI TRUST COMPANY, LLC

	By:
		Name:
		Title:

Name of Authorized Signatory:
Title of Authorized Signatory:
Date:

	Very truly yours,

	Bio-Path Holdings, inc.

	By:
		Name: Peter Nielsen
		Title: President and Chief Executive Officer

BIO-PATH HOLDINGS, inc.		Address for Notice:

By:
	Name:	E-Mail:
	Title:

With a copy to (which shall not constitute notice):