As
filed with the Securities and Exchange Commission on May 29, 2024
Registration Statement No. 333-279516
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
FORTRESS BIOTECH, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization) |
20-5157386
(I.R.S. Employer
Identification No.) |
1111 Kane Concourse, Suite 301
Bay Harbor Islands, Florida 33154
(781) 652-4500
(Address, including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
Lindsay A. Rosenwald, M.D.
Executive Chairman,
Chief Executive Officer and President
1111 Kane Concourse, Suite 301
Bay Harbor Islands, Florida 33154
(781) 652-4500
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With a copy to:
Rakesh Gopalan
David S. Wolpa
Troutman Pepper Hamilton Sanders LLP
301 S. College Street, 34th Floor
Charlotte, NC 28202
(704) 998-4050
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box:¨
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a
registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
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 ¨ |
Accelerated filer ¨ |
Non-accelerated filer x |
Smaller reporting company x |
Emerging growth company ¨ |
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. ¨
The Registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant
to said Section 8(a), may determine.
EXPLANATORY NOTE
Fortress Biotech, Inc. is filing this Amendment
No. 1 to its registration statement on Form S-1 (File No. 333-279516) (the “Registration Statement”) as an exhibits-only
filing. Accordingly, this amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement, the
signature page to the Registration Statement and the filed exhibits. The remainder of this Registration Statement is unchanged and has
therefore been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth
the estimated costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the offering of
the securities being registered. All the amounts shown are estimates, except for the SEC registration fee.
| SEC registration fee | |
$ | 7,380 | |
| Accounting fees and expenses | |
| * | |
| Legal fees and expenses | |
| * | |
| Transfer agent fees and expenses | |
| * | |
| Trustee fees and expenses | |
| * | |
| Printing and miscellaneous expenses | |
| * | |
| Total | |
$ | * | |
* These fees are calculated based on the securities
offered and the number of issuances and accordingly cannot be estimated at this time. The applicable prospectus supplement will set forth
the aggregate amount of expenses payable in respect of any offering of securities.
Item 15. Indemnification of Directors and Officers
Under the DGCL, a corporation
may include provisions in its certificate of incorporation that will relieve its directors of monetary liability for breaches of their
fiduciary duty to the corporation, except under certain circumstances, including a breach of the director’s duty of loyalty, acts
or omissions of the director not in good faith or which involve intentional misconduct or a knowing violation of law, the approval of
an improper payment of a dividend or an improper purchase by the corporation of stock or any transaction from which the director derived
an improper personal benefit. The Company’s Third Amended and Restated Certificate of Incorporation, as amended, eliminates the
personal liability of directors to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director with
certain limited exceptions set forth in the DGCL.
Section 145 of the DGCL
grants to corporations the power to indemnify each officer and director against liabilities and expenses incurred by reason of the fact
that he or she is or was an officer or director of the corporation if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was unlawful. The Company’s Third Amended and Restated Certificate of Incorporation,
as amended, and Second Amended and Restated Bylaws, as amended, provide for indemnification of each officer and director of the Company
to the fullest extent permitted by the DGCL. Section 145 of the DGCL also empowers corporations to purchase and maintain insurance
on behalf of any person who is or was an officer or director of the corporation against liability asserted against or incurred by him
in any such capacity, whether or not the corporation would have the power to indemnify such officer or director against such liability
under the provisions of Section 145 of the DGCL.
Item 16. Exhibits and Financial Statement Schedules
| Exhibit |
|
Description of Exhibit |
| 1.1* |
|
Form of Underwriting Agreement. |
| |
|
|
| 3.1 |
|
Amended
and Restated Certificate of Incorporation of Fortress Biotech, Inc. (formerly Coronado Biosciences, Inc.) dated April 21, 2010 (incorporated
by reference to Exhibit 3.1 of the Registrant’s Form 10 (file No. 000-54463) filed with the SEC on July 15, 2011). |
| |
|
|
| 3.2 |
|
First
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Fortress Biotech, Inc. dated May 20, 2011 (incorporated
by reference to Exhibit 3.2 of the Registrant’s Form 10 (file No. 000-54463) filed with SEC on July 15, 2011). |
| |
|
|
| 3.3 |
|
Second
Certificate of Amendment to Amended and Restated Certificate of Incorporation, as amended, of Fortress Biotech, Inc. dated October
1, 2013 (incorporated by reference to Exhibit 3.8 of the Registrant’s Annual Report on Form 10-K (file No. 001-35366) filed
with the SEC on March 14, 2014). |
| |
|
|
| 3.4 |
|
Third
Certificate of Amendment to Amended and Restated Certificate of Incorporation, as amended, of Fortress Biotech, Inc. dated April
22, 2015 (incorporated by reference to Exhibit 3.9 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed
with the SEC on April 27, 2015). |
| |
|
|
| 3.5 |
|
Certificate
of Amendment to the Amended and Restated Certificate of Incorporation of Fortress Biotech, Inc. dated June 18, 2020 (incorporated
by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed with the SEC on June
19, 2020). |
| |
|
|
| 3.6 |
|
Certificate
of Amendment to the Amended and Restated Certificate of Incorporation of Fortress Biotech, Inc. dated June 23, 2021 (incorporated
by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed with the SEC on June
23, 2021). |
| |
|
|
| 3.7 |
|
Certificate
of Amendment to the Amended and Restated Certificate of Incorporation of Fortress Biotech, Inc. dated July 8, 2022, (incorporated
by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed with the SEC on July
11, 2022). |
| |
|
|
| 3.8 |
|
Certificate
of Amendment to the Amended and Restated Certificate of Incorporation of Fortress Biotech, Inc. dated October 9, 2023 (incorporated
by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed with the SEC on October
10, 2023). |
| |
|
|
| 3.9 |
|
Third
Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report
on Form 8-K (file No. 001-35366) filed with the SEC on August 14, 2023. |
| |
|
|
| 4.1 |
|
Form of
Common Stock Certificate (incorporated by reference to Exhibit 4.1 of the Registrant’s Form 10 (file No. 000-54463) filed with
the SEC on July 15, 2011). |
| |
|
|
| 4.2 |
|
Certificate
of Designation of Rights and Preferences of the Fortress Biotech, Inc. 9.375% Series A Cumulative Redeemable Perpetual Preferred
Stock (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed with
the SEC on November 7, 2017). |
| |
|
|
| 4.3 |
|
Certificate
of Amendment to the Certificate of Designations of Rights and Preferences of the Fortress Biotech, Inc. 9.375% Series A Cumulative
Redeemable Perpetual Preferred Stock under the Amended and Restated Certificate of Incorporation of Fortress Biotech, Inc. dated
June 18, 2020 (incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K (file No. 001-35366)
filed with the SEC on June 19, 2020). |
| |
|
|
| 4.4 |
|
Form
of Amended and Restated Warrant (incorporated by reference to Exhibit 4.1 of the Registrant’s Current Report on Form 8-K (file
No. 001-35366) filed with the SEC on June 16, 2023). |
* To be filed by amendment or by a report filed
under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference, if applicable.
** Previously filed.
‡ To be filed pursuant to Section 305(b)(2) of
the Trust Indenture Act of 1939 under the electronic form type “305B2” and in accordance with the requirements of Item 601(b)(25)
of Regulation S-K.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period
in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus
any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the SEC by registrant pursuant to Section 13 and Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act to any purchaser:
(A) Each prospectus filed by the
registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(B) Each prospectus required to be
filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede
or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made
in any such document immediately prior to such effective date.
(5) That, for the purpose of determining
liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to
such purchaser:
(i) Any preliminary prospectus or
prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other
free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that
is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant
hereby undertakes that:
(1) For purposes of determining any
liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining
any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e) The undersigned registrant
hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of
section 310 of the Securities Act in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of
the Securities Act.
SIGNATURES
Pursuant to the requirements
of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in Bay Harbor Islands, Florida, on May 29, 2024.
| |
Fortress Biotech, Inc. |
| |
|
|
| |
By: |
/s/ David Jin |
| |
|
David Jin |
| |
|
Chief Financial Officer |
| |
|
(Principal Financial Officer) |
Pursuant to the requirements of the Securities
Act, this registration statement has been signed by the following persons in the capacities and on May 29, 2024.
| Signature |
|
Title |
| |
|
|
| * |
|
Chairman of the Board of Directors, President and Chief Executive Officer |
| Lindsay A. Rosenwald, M.D. |
|
(Principal Executive Officer) |
| |
|
|
| /s/ David Jin |
|
Chief Financial Officer |
| David Jin |
|
(Principal Financial Officer and Principal Accounting Officer) |
| |
|
|
| * |
|
Executive Vice Chairman, Strategic Development and Director |
| Michael S. Weiss |
|
|
| |
|
|
| * |
|
Director |
| Jimmie Harvey, Jr., M.D. |
|
|
| |
|
|
| * |
|
Director |
| Malcolm Hoenlein |
|
|
| |
|
|
| * |
|
Director |
| Dov Klein |
|
|
| |
|
|
| * |
|
Director |
| J. Jay Lobell |
|
|
| |
|
|
| * |
|
Director |
| Kevin L. Lorenz, J.D. |
|
|
| |
|
|
| * |
|
Director |
| Lucy Lu, M.D. |
|
|
| *By: | /s/ David Jin | |
| | David Jin, Attorney-in-fact | |
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Fortress Biotech, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
| |
Security Type |
Security Class
Title |
Fee
Calculation or
Carry Forward
Rule |
Amount
Registered (1) |
Proposed
Maximum
Offering
Price Per
Unit (2) |
Maximum
Aggregate Offering
Price |
Fee Rate |
Amount of
Registration Fee |
| Newly Registered Securities |
| Fees to Be Paid |
Equity |
Common stock,
par value
$0.001 per
share (4)(5) |
457(o) |
|
|
|
|
|
| |
Equity |
Preferred stock,
par value
$0.001 per
share (4) |
457(o) |
|
|
|
|
|
| |
Debt |
Debt Securities |
457(o) |
|
|
|
|
|
| |
Other |
Warrants (6) |
457(o) |
|
|
|
|
|
| |
Other |
Units (7) |
457(o) |
|
|
|
|
|
| |
Unallocated (Universal) Shelf |
Unallocated
(Universal)
Shelf |
457(o) |
|
|
$50,000,000(1)(2) |
$0.00014760 |
$7,380 |
| |
Total Offering Amounts |
|
$50,000,000 |
|
$7,380 |
| |
Total Fees Previously Paid |
|
|
|
- |
| |
Total Fee Offsets |
|
|
|
- |
| |
Net Fee Due |
|
|
|
$7,380 |
| (1) | There are being registered hereunder, an indeterminate number or amount, as the case may be, of common stock, preferred stock, debt
securities, warrants and/or units, as may be offered by the registrant from time to time, which together shall have an aggregate initial
offering price not to exceed $50,000,000. If any debt securities are issued at an original issue discount, then the principal amount
of such debt securities shall be in such greater amount as shall result in an aggregate initial offering price not to exceed $50,000,000,
less the aggregate dollar amount of all securities previously issued hereunder. The securities included hereunder may be sold separately
or with other securities registered hereunder. The securities included hereunder also include an indeterminate number of securities as
may be issued upon conversion of or exchange for preferred stock, debt securities or units that provide for conversion or exchange, upon
exercise of warrants, or pursuant to the anti-dilution provisions of any of such securities. In addition, pursuant to Rule 416 of the
Securities Act of 1933, as amended, or the Securities Act, this registration statement also covers any additional securities that may
be offered or issued in connection with any stock splits, stock dividends or similar transactions. Includes rights to acquire common stock
or preferred stock of the registrant under any shareholder rights plan then in effect, if applicable under the terms of any such plan. |
| | | |
| (2) | The proposed maximum offering price per security will be determined from time to time by the registrant in connection with the issuance
of the securities registered by this registration statement. The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee. In no event will the aggregate maximum offering price of all securities issued under
this registration statement exceed $50,000,000 and the amount of securities sold pursuant to this registration statement will not exceed
the limit in Instruction I.B.6.(a) of Form S-3, as applicable. The amount registered is not specified as to each class of securities to
be registered hereunder pursuant to Instruction 2.A.iii.b. of Item 16(b) of Form S-3 under the Securities Act. |
| | | |
| (3) | Calculated in accordance with Rule 457(o) under the Securities Act based on the maximum aggregate offering price. |
| (4) | Shares of preferred stock or common stock may be issuable upon conversion of debt securities registered hereunder. No separate consideration
will be received for such preferred stock, depositary shares or common stock. |
| | | |
| (5) | Shares of common stock may be issuable upon conversion of shares of preferred stock registered hereunder. No separate consideration
will be received for such shares of common stock. |
| | | |
| (6) | Warrants will represent rights to purchase debt securities, common stock or preferred stock registered hereby. Because the warrants
will provide a right only to purchase such securities offered hereunder, no additional registration fee is required. |
| | | |
| (7) | Units may be purchased under a unit agreement and will represent an interest in one or more securities registered under the registration
statement including shares of common stock or preferred stock, debt securities or warrants, in any combination, which may or may not be
separable from one another. |
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