As filed with the Securities and Exchange Commission
on September 29, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
FORTRESS BIOTECH, INC.
(Exact name of registrant as specified in its charter)
Delaware |
20-5157386 |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
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1111 Kane Concourse, Suite 301
Bay Harbor Islands, FL |
33154 |
(Address of Principal Executive Offices) |
(Zip Code) |
Fortress Biotech, Inc. 2013 Stock Incentive
Plan, as amended
(Full title of the plan)
Lindsay A. Rosenwald, M.D.
Executive Chairman, |
Chief Executive Officer and President
1111 Kane Concourse, Suite 301
Bay Harbor Islands, FL 33154
(781) 652-4500 |
(Name, address, and telephone number of agent for
service)
Copy to:
Rakesh Gopalan
McGuireWoods LLP
201 North Tryon Street, Suite 3000
Charlotte, North Carolina 28202
(704) 373-2275 |
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 |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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x |
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Emerging growth company |
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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 7(a)(2)(B) of the Securities Act. |
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INCORPORATION
by reference of contents
of registration
statement on form s-8
This Registration Statement
is being filed by Fortress Biotech, Inc. (the “Registrant”) for the purpose of registering an additional 7,465,250 shares
of common stock, $0.001 par value per share (the “Common Stock”) that are issuable pursuant to the Registrant’s 2013
Stock Incentive Plan, as amended (the “Plan”), which amount consists of (i) 7,000,000 shares of Common Stock that have become
reserved and available for issuance under the Plan, plus (ii) 465,250 shares of Common Stock that may be issued in accordance with the
“recycling” provisions of the Plan. These additional shares of Common Stock are securities of the same class as other securities
for which a Registration Statement on Form S-8 of the Registrant relating to the same stock incentive plan is effective. The Registrant
previously registered shares of Common Stock for issuance under the Plan under a Registration Statement on Form S-8 filed with the
Securities and Exchange Commission (the “Commission”) on March 14, 2014 (File No. 333-194588), as amended by a Registration
Statement on Form S-8, filed with the Commission on August 28, 2015 (File No. 333-206645), as amended by a Registration Statement
on Form S-8, filed with the Commission on November 9, 2020 (File No. 333-249985), and a Registration Statement on Form S-8, filed with
the Commission on October 21, 2022 (File No. 333-267977). Pursuant to General Instruction E to Form S-8, this Registration Statement
hereby incorporates by reference the contents of the Registration Statements referenced above.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The following exhibits are
filed as part of this registration statement:
Number |
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Description |
4.1 |
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Coronado Biosciences, Inc. 2013 Stock Incentive Plan (incorporated by reference to Exhibit 10.49 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed with SEC on June 21, 2013). |
4.2 |
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Fortress Biotech, Inc. 2013 Stock Incentive Plan, as amended (incorporated by reference to the Registrant’s 2015 Proxy Statement on Schedule 14A (file No. 001-35366) filed with SEC on June 4, 2015). |
4.3 |
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Amendment to the Fortress Biotech, Inc. 2013 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed with SEC on June 6, 2019). |
4.4 |
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Amendment to the Fortress Biotech, Inc. 2013 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed with SEC on June 27, 2022). |
4.5 |
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Amendment to the Fortress Biotech, Inc. 2013 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed with SEC on June 23, 2023). |
5.1* |
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Opinion of McGuireWoods LLP |
23.1* |
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Consent of McGuireWoods LLP (included in the Opinion filed as Exhibit 5.1) |
23.2* |
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Consent of KPMG LLP |
24.1* |
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Powers of Attorney (included on the signature pages to this registration statement) |
107* |
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Filing Fee Table |
* Filed herewith.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, 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 Bay Harbor Islands, State of Florida, on September 29, 2023.
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FORTRESS BIOTECH, INC. |
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By: |
/s/ Lindsay A. Rosenwald, M.D. |
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Name: Lindsay A. Rosenwald, M.D. |
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Title: Chairman, President and Chief Executive Officer |
POWERS OF ATTORNEY
Each person whose signature
appears below constitutes and appoints Lindsay A. Rosenwald, M.D. his or her true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration Statement, 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
full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises,
as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all said attorney-in-fact
and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities
indicated on September 29, 2023.
Signature |
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Capacity |
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Date |
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/s/ Lindsay A. Rosenwald, M.D. |
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Chairman of the Board of Directors, |
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September 29, 2023 |
Lindsay A. Rosenwald, M.D. |
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President and Chief Executive Officer
(Principal Executive Officer) |
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/s/ David Jin |
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Chief Financial Officer |
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September 29, 2023 |
David Jin |
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(Principal Financial Officer) |
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/s/ Eric K. Rowinsky, M.D. |
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Co-Vice Chairman of the Board of |
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September 29, 2023 |
Eric K. Rowinsky, M.D. |
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Directors and Director |
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/s/ Michael S. Weiss |
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Executive Vice Chairman, Strategic |
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September 29, 2023 |
Michael S. Weiss |
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Development and Director |
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/s/ Jimmie Harvey, Jr., M.D. |
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Director |
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September 29, 2023 |
Jimmie Harvey, Jr., M.D. |
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/s/ Malcolm Hoenlein |
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Director |
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September 29, 2023 |
Malcolm Hoenlein |
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/s/ Dov Klein |
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Director |
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September 29, 2023 |
Dov Klein |
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/s/ J. Jay Lobell |
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Director |
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September 29, 2023 |
J. Jay Lobell |
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/s/ Kevin L. Lorenz, J.D. |
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Director |
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September 29, 2023 |
Kevin L. Lorenz, J.D. |
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/s/ Lucy Lu, M.D. |
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Director |
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September 29, 2023 |
Lucy Lu, M.D. |
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Exhibit 5.1
September 29, 2023
Fortress Biotech, Inc.
1111 Kane Concourse, Suite 301
Bay Harbor Islands, FL 33154
| RE: | Registration Statement on Form S-8: 7,465,250 Shares of Common Stock of Fortress Biotech, Inc. to be issued pursuant to the Fortress Biotech,
Inc. 2013 Stock Incentive Plan Stock and that may be issued in accordance with the “recycling” provisions of the Plan (as
defined below). |
Ladies and Gentlemen:
We have acted as counsel to Fortress Biotech, Inc., a Delaware corporation (the “Company”), in connection with the Company’s
Registration Statement on Form S-8 (the “Registration Statement”) that is being filed on the date hereof with the Securities
and Exchange Commission (“SEC”), pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating
to the registration of the issuance of 7,465,250 shares (the “Shares”) of the Company’s common stock, par value $0.001
per share (the “Common Stock”), from time to time pursuant to the Fortress Biotech, Inc. 2013 Stock Incentive Plan, as amended
(the “Plan”), the Amendment to the Plan (the “Amendment”), and in accordance with the recycling feature of the
Plan. For purposes of clarification, the Shares exclude shares of the Company’s Common Stock previously authorized under the Plan.
This opinion letter is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K
promulgated under the Securities Act.
In connection with this opinion
letter, we have examined the Registration Statement, including the exhibits being filed therewith or incorporated by reference. In addition,
we have examined and relied upon the following:
(i)
a certificate from an officer of the Company certifying as to (A) true and correct copies of the Amended and Restated Certificate
of Incorporation of the Company and Third Amended and Restated Bylaws of the Company, each as in effect the date hereof and as amended
to date, and (B) the resolutions of the Board of Directors of the Company with respect to the Plan, the Amendment, and the Registration
Statement;
(ii)
a certificate dated September 29, 2023 issued by the Secretary of State of the State of Delaware, attesting to the corporate status
of the Company in the State of Delaware; and
(iii)
originals, or copies identified to our satisfaction as being true copies, of such other records, documents and instruments as we
have deemed necessary for the purposes of this opinion letter.
McGuireWoods LLP
| www.mcguirewoods.com
Atlanta | Austin
| Baltimore | Charlotte | Charlottesville | Chicago | Dallas | Houston | Jacksonville | London | Los Angeles - Century City
Los Angeles - Downtown
| New York | Norfolk | Pittsburgh | Raleigh | Richmond | San Francisco | Tysons | Washington, D.C.
Fortress Biotech, Inc.
September 29, 2023
Page 2
For all purposes of the opinions
expressed herein, we have assumed, without independent investigation, the following: (a) to the extent that we have reviewed and relied
upon certificates of the Company or authorized representatives thereof and certificates and assurances from public officials, all of such
certificates and assurances are accurate with regard to factual matters; (b) all documents submitted to us as originals are authentic,
complete and accurate, and all documents submitted to us as copies conform to authentic original documents; (c) the genuineness of all
signatures; and (d) the Registration Statement will be effective under the Securities Act.
Based on and subject to the
foregoing and the exclusions, qualifications, limitations and other assumptions set forth in this opinion letter, we are of the opinion
that the Shares have been duly authorized, and, when issued and paid for in accordance with the terms and upon the terms and conditions
of the Plan, will be validly issued, fully paid and non-assessable.
The foregoing opinion is limited
to the Delaware General Corporation Law (including statutory provisions, all applicable provisions of the Delaware Constitution and reported
judicial decisions interpreting the foregoing), as in effect on the date hereof, and we do not express any opinion concerning any other
law.
The foregoing opinion is being
furnished only for the purpose referred to in the first paragraph of this opinion letter. We hereby consent to the filing of this opinion
as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose
consent is required by Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.
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Very truly yours, |
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/s/ McGuireWoods LLP |
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McGuireWoods LLP |
Exhibit 23.2
Consent of Independent Registered Public Accounting
Firm
We consent to the use of our report dated March 31, 2023, with respect
to the consolidated financial statements of Fortress Biotech, Inc., incorporated herein by reference.
/s/ KPMG LLP
Short Hills, New Jersey
September 29, 2023
Exhibit 107.1
Calculation of Filing Fee Tables
Form
S-8
(Form Type)
Fortress
Biotech, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security Type | |
Security Class Title | |
Fee Calculation
Rule(1) | |
Amount Registered(2) | | |
Proposed Maximum Offering
Price Per Unit(1) | | |
Maximum Aggregate Offering
Price(1) | | |
Fee Rate | | |
Amount of Registration
Fee | |
Equity | |
Common Stock, par value $0.001 per share | |
Other | |
| 7,465,250 | | |
$ | 0.30 | (2) | |
$ | 2,239,575 | | |
| 0.00011020 | | |
$ | 246.80 | |
Total Offering Amounts | |
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$ | 2,239,575 | | |
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$ | 246.80 | |
Total Fee Offsets | |
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| — | |
Net Fee Due | |
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$ | 246.80 | |
(1) Pursuant to Rules 457(c) and 457(h) under the Securities Act, and solely for the purpose of calculating the registration fee, the
proposed maximum offering price per share is the average of the high and low prices reported for the registrant’s Common Stock quoted
on The Nasdaq Capital Market LLC on September 26, 2023.
(2) Represents 7,465,250 additional shares reserved for issuance under the Fortress Biotech, Inc. 2013 Stock Incentive Plan, as amended
(the “Plan”). Pursuant to Rule 416(a) under the Securities Act, this registration statement also covers an indeterminate number
of additional shares as may be necessary to account for adjustment provisions under the Plan as a result of stock splits, stock dividends
or similar transactions.
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