Item 1.01 Entry into a Material Definitive
Agreement.
On July 13, 2020, Bio-Path
Holdings, Inc. (the “Company”) entered into an At-The-Market Offering Agreement (the “ATM Agreement”)
with H.C. Wainwright & Co., LLC, (“Wainwright”), as sales agent, pursuant to which the Company may offer and sell,
from time to time, through Wainwright shares of its common stock, $0.001 par value per share.
The Company is not
obligated to sell any shares under the ATM Agreement. Subject to the terms and conditions of the ATM Agreement, Wainwright will
use commercially reasonable efforts consistent with its normal trading and sales practices, applicable state and federal law, rules
and regulations and the rules of the Nasdaq Capital Market to sell shares from time to time based upon the Company’s instructions,
including any price, time or size limits specified by the Company. Under the ATM Agreement, Wainwright may sell shares by any method
deemed to be an “at the market” offering as defined in Rule 415 under the U.S. Securities Act of 1933, as amended,
or any other method permitted by law, including in privately negotiated transactions. Wainwright’s obligations to sell shares
under the ATM Agreement are subject to satisfaction of certain conditions, including customary closing conditions for transactions
of this nature. The Company will pay Wainwright a commission of up to 3% of the aggregate gross proceeds from each sale of shares
and has agreed to provide Wainwright with customary indemnification and contribution rights. The Company has also agreed to reimburse
Wainwright for certain specified expenses.
Sales of shares of
common stock under the ATM Agreement will be made pursuant to the registration statement on Form S-3 (File No. 333-231537), which
was declared effective by the U.S. Securities and Exchange Commission (the “SEC”) on June 5, 2019, and a related Prospectus
Supplement filed with the SEC on July 13, 2020, for an aggregate offering price of up to $7,000,000.
The foregoing summary
of the ATM Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the ATM
Agreement, which is filed herewith as Exhibit 10.1.
This Current Report
on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any shares under the ATM Agreement, nor
shall there be any sale of such shares in any state in which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such state.
A copy of the opinion
of Winstead PC relating to the legality of the issuance and sale of shares, is attached hereto as as Exhibit 5.1 to this Current
Report on Form 8-K.