As filed with the Securities and Exchange Commission
on May 31, 2024
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. 2012 Employee Stock
Purchase 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
David S. Wolpa
Troutman Pepper Hamilton Sanders LLP
301 S. College Street, 34th Floor
Charlotte, North Carolina 28202
(704) 998-4050 |
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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x |
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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 1,000,000 shares
of common stock, $0.001 par value per share (the “Common Stock”) that are issuable pursuant to the Registrant’s 2012
Employee Stock Purchase Plan, as amended (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 October 26, 2012 (File No. 333-184616),
as amended by a Registration Statement on Form S-8, filed with the Commission on November 9, 2017 (File No. 333-221485),
a Registration Statement on Form S-8, filed with the Commission on August 9, 2019 (File No. 333-233195), and a Registration
Statement on Form S-8, filed with the Commission on September 29, 2023 (File No. 333-274781). 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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Fortress Biotech, Inc. 2012 Employee Stock Purchase Plan (incorporated by reference to Annex A of the Registrant’s Schedule 14A (file No. 001-35366) filed with the SEC on July 13, 2012). |
4.2 |
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Fortress Biotech, Inc. 2012 Employee Stock Purchase Plan, as amended (incorporated by reference to Exhibit 10.38 of the Registrant’s Current Report on Form 8-K (file No. 001-35366) filed with the SEC on June 12, 2017). |
4.3 |
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Amendment to Fortress Biotech, Inc. 2012 Employee Stock Purchase Plan (incorporated by reference to Exhibit A of the Registrant’s Schedule 14A (file No. 001-35366) filed with the SEC on April 30, 2018). |
4.4 |
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Second Amendment to the Fortress Biotech, Inc. 2012 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.2 of the Registrant’s Current Report on Form 8-K (File No. 001-35366) filed with the SEC on June 23, 2023). |
4.5 |
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Third Amendment to the Fortress Biotech, Inc. 2012 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.2 of the Registrant’s Current Report on Form 8-K (File No. 001-35366) filed with the SEC on May 29, 2024). |
5.1* |
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Opinion of Troutman Pepper Hamilton Sanders LLP |
23.1* |
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Consent of Troutman Pepper Hamilton Sanders 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 May 31, 2024.
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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., and David Jin, acting alone or together with another attorney-in-fact,
as 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 May 31, 2024.
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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May 31, 2024 |
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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May 31, 2024 |
David Jin |
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(Principal Financial Officer and Principal Accounting Officer) |
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/s/ Michael S. Weiss |
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Executive Vice Chairman, Strategic |
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May 31, 2024 |
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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May 31, 2024 |
Jimmie Harvey, Jr., M.D. |
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/s/ Malcolm Hoenlein |
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Director |
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May 31, 2024 |
Malcolm Hoenlein |
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/s/ Dov Klein |
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Director |
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May 31, 2024 |
Dov Klein |
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/s/ J. Jay Lobell |
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Director |
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May 31, 2024 |
J. Jay Lobell |
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/s/ Kevin L. Lorenz, J.D. |
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Director |
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May 31, 2024 |
Kevin L. Lorenz, J.D. |
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/s/ Lucy Lu, M.D. |
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Director |
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May 31, 2024 |
Lucy Lu, M.D. |
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Exhibit 5.1
Troutman Pepper Hamilton Sanders LLP
301 S College Street, Suite 3400
Charlotte, NC 28202
troutman.com
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![](https://www.sec.gov/Archives/edgar/data/1429260/000110465924067215/image_001.jpg) |
May 31, 2024
Fortress Biotech, Inc.
1111 Kane Concourse, Suite 301
Bay Harbor Islands, FL 33154 |
| Re: | Registration Statement on Form S-8: 1,000,000 Shares of Common
Stock of Fortress Biotech, Inc. to be issued pursuant to the Fortress Biotech, Inc. 2012 Employee Stock Purchase Plan |
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”), filed on the date hereof, with the U.S. Securities and Exchange
Commission (the “Commission”), under the Securities Act of 1933, as amended (the “Securities Act”).
The Registration Statement relates to the registration of the offer, sale and issuance of 1,000,000 shares (the “Shares”)
of the Company’s common stock, par value $0.001 per share (the “Common Stock”), from time to time pursuant to
Fortress Biotech, Inc. 2012 Employee Stock Purchase Plan, as amended (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. Capitalized terms used and not defined herein shall have the meanings assigned to them in the Registration Statement.
In connection with this opinion,
we have reviewed the corporate proceedings taken by the Company with respect to the offer and sale of the Shares under the Plan, and the
registration thereof under the Securities Act. We have also examined and relied upon originals or copies of such corporate records, documents,
agreements or other instruments of the Company, and such certificates and records of public officials, and such other documents, as we
have deemed necessary or appropriate in connection herewith, including, but not limited to, the Company’s Amended and Restated Certificate
of Incorporation, the Company’s Third Amended and Restated Bylaws and the Plan pursuant to which the Shares are issuable. As to
all matters of fact (including, without limitation, factual conclusions and characterizations and descriptions of purpose, intention or
other state of mind) we have relied entirely upon a certificate of an officer of the Company, and have assumed, without independent inquiry,
the accuracy of that certificate.
In rendering this opinion, we
have assumed the genuineness and authenticity of all signatures on the original documents; the legal capacity of all natural persons;
the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as certified
or photocopies; the accuracy and completeness of all documents and records reviewed by us; the accuracy, completeness and authenticity
of certificates issued by any governmental official, office or agency and the absence of change in the information contained therein from
the effective date of any such certificate; and the due authorization, execution and delivery of all documents where authorization, execution
and delivery are prerequisites to the effectiveness of such documents, except that we make no such assumption with respect to the Company.
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![](https://www.sec.gov/Archives/edgar/data/1429260/000110465924067215/image_001.jpg) |
Our opinion is expressed
only with respect to the General Corporation Law of the State of Delaware. We are not opining as to the applicability thereto, or the
effect thereon, of the laws of any other jurisdiction or, in the case of Delaware, any other laws, or as to matters of municipal law or
the laws of any local agencies within any states (including “blue sky” or other state securities laws).
Based upon the foregoing, we
are of the opinion that, as of the date hereof, 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.
We assume no obligation to supplement
this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed
herein after the date hereof.
We hereby consent to the filing
of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission. Except as otherwise
set forth herein, this opinion may not be used, circulated, quoted or otherwise referred to for any purpose or relied upon by any other
person without the express written permission of this firm.
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Very truly yours, |
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/s/ Troutman Pepper Hamilton Sanders LLP |
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Troutman Pepper Hamilton Sanders LLP |
Exhibit 23.2
![](https://www.sec.gov/Archives/edgar/data/1429260/000110465924067215/tm2416014d1_ex23-2img001.jpg) |
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KPMG LLP
Suite 4000 150 John F. Kennedy Parkway Short Hills, NJ 07078-2702 |
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated March 28, 2024,
with respect to the consolidated financial statements of Fortress Biotech, Inc., incorporated herein by reference.
![](https://www.sec.gov/Archives/edgar/data/1429260/000110465924067215/tm2416014d1_ex23-2img002.jpg)
Short Hills, New Jersey
May 31, 2024
KPMG LLP, a Delaware limited liability partnership and a member firm of
the KPMG global organization of
independent member firms affiliated with
KPMG International Limited, a private English company limited by guarantee.
Exhibit 107
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 |
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Security
Class
Title |
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Fee
Calculation
Rule(1) |
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Amount
Registered(2) |
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Proposed
Maximum
Offering
Price
Per Unit(1) |
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Maximum
Aggregate
Offering
Price(1) |
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Fee Rate |
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Amount of
Registration
Fee |
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Equity |
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Common Stock, par value $0.001 per share |
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Other |
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1,000,000 |
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$ |
1.745 |
(2) |
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$ |
1,745,000 |
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0.00014760 |
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$ |
257.56 |
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Total Offering Amounts |
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$ |
1,745,000 |
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$ |
257.56 |
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Total Fee Offsets |
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— |
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Net Fee Due |
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$ |
257.56 |
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(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 May 29, 2024.
(2) Represents 1,000,000 additional shares
reserved for issuance under the Fortress Biotech, Inc. 2012 Employee Stock Purchase 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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