As filed with the Securities and Exchange Commission on August 28, 2015
Registration Statement 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 | (I.R.S. Employer Identification No.) | |
| of Incorporation or Organization) |
3 Columbus Circle, 15 th Floor
New York, New York 10019
(Address, including zip code, of registrant's principal executive offices)
Fortress Biotech, Inc. 2013 Stock Incentive Plan, as amended
(Full title of the plan)
Lindsay A. Rosenwald, M.D., Chairman of the Board of Directors,
President and Chief Executive Officer
3 Columbus Circle, 15 th Floor
New York, New York 10019
Telephone: (781) 652-4500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
COPIES TO:
W. David Mannheim, Esq.
S. Halle Vakani, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
Telephone: (919) 781-4000
Facsimile: (919) 781-4865
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check one):
| Large accelerated filer ¨ | Accelerated filer x | ||
| Non-accelerated filer ¨ | (Do not check if smaller reporting company) | Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
|
Title of securities to
be registered |
Amount to be
registered (1)(2) |
Proposed
maximum
|
Proposed maximum
aggregate offering price (3) |
Amount of
registration fee |
||||||||||||
|
Common Stock,
$0.001 par value per share |
7,360,000 shares | $2.18 | $16,044,800 | $1,864.41 | ||||||||||||
(1) Consists of 7,360,000 additional shares reserved for issuance under the Fortress Biotech, Inc. 2013 Stock Incentive Plan, as amended (the “Plan”). The remaining 1,396,720 shares under the Plan were registered under Registration Statement No. 333-194588.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this Registration Statement also covers any additional shares Registrant’s common stock that become issuable under the Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction that results in an increase in the number of outstanding shares of the Registrant’s common stock.
(3) Estimated solely for the purpose of calculating the registration fee, based upon the average of the high and low prices of the Registrant’s common stock on the NASDAQ Capital Market on August 24, 2015 in accordance with Rule 457(c).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
| Item 1. | Plan Information. |
The information required by Item 1 is included in documents sent or given by Fortress Biotech, Inc. (the “Registrant”) to participants in the Fortress Biotech, Inc. 2013 Stock Incentive Plan, as amended (the “Plan”) covered by this Registration Statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
| Item 2. | Registrant Information and Employee Plan Annual Information. |
The written statement required by Item 2 is included in documents sent or given by the Registrant to participants in the Plan covered by this Registration Statement pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents previously filed by the Registrant with the Commission are incorporated herein by reference:
(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed with the Commission on March 16, 2015, as amended on Form 10-K/A filed with the Commission on April 30, 2015, pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
(b) The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2015 and June 30, 2015 filed with the Commission on May 11, 2015 and August 10, 2015, respectively, pursuant to Section 13 of the Exchange Act;
(c) The Registrant’s Current Reports on Form 8-K filed pursuant to Section 13 of the Exchange Act on March 5 and 18, April 20 and 27, July 17, and August 4, 2015 (except Items 2.02 and Exhibit 99.1 of Item 9.01); and
(d) The description of the Registrant’s common stock contained in its Registration Statement on Form 10 filed with the Commission pursuant to Section 12(g) of the Exchange Act on July 15, 2011, including any amendment or report for the purpose of updating such description.
All documents filed, but not furnished, by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment that indicates that all securities offered under this Registration Statement have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. In no event, however, will any of the information, including exhibits, that the Registrant discloses under Item 2.02 and Item 7.01 of any report on Form 8-K that has been or may, from time to time, be furnished to the Commission be incorporated by reference into or otherwise become a part of this Registration Statement.
Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.
| Item 4. | Description of Securities. |
Not applicable. The class of securities to be offered is registered under Section 12 of the Exchange Act.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
The Registrant is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of such corporation) by reason of the fact that such person was an officer, director, employee, or agent of such corporation, or is or was serving at the request of such person as an officer, director, employee, or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify persons who are, or are threatened to be made, a party to any threatened, pending, or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee, or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee, or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred. The Registrant’s Amended and Restated Certificate of Incorporation, as amended, and its Second Amended and Restated Bylaws provide for the indemnification of its directors and officers to the fullest extent permitted under the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:
| · | breach of a director’s duty of loyalty to the corporation or its stockholders; |
| · | act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
| · | unlawful payment of dividends or redemption of shares; or |
| · | transaction from which the director derives an improper personal benefit. |
The Registrant’s Amended and Restated Certificate of Incorporation, as amended, includes such a provision. Pursuant to the Registrant’s Second Amended and Restated Bylaws, expenses incurred by any officer or director in defending any such action, suit, or proceeding in advance of its final disposition shall be paid by the Registrant upon delivery to the Registrant of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Registrant.
Section 174 of the Delaware General Corporation Law provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
As permitted by the Delaware General Corporation Law, the Registrant has entered, and intends to continue to enter, into separate indemnification agreements with each of the Registrant’s directors and executive officers, that require the Registrant to indemnify such persons against any and all expenses (including attorneys’ fees), witness fees, damages, judgments, fines, settlements and other amounts incurred (including expenses of a derivative action) in connection with any action, suit or proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director, an officer or an employee of the Registrant or any of the Registrant’s affiliated enterprises, provided that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the Registrant’s best interests and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. The Registrant also has an insurance policy covering its officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise.
| Item 7. | Exemption From Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
The following exhibits are filed as part of this Registration Statement:
| Exhibit No. | Description | |
| 5.1 | Opinion of Wyrick Robbins Yates & Ponton LLP. | |
| 10.68 | Fortress Biotech, Inc. 2013 Stock Incentive Plan, as amended. (1) | |
| 23.1 | Consent of EisnerAmper LLP, Independent Registered Public Accounting Firm. | |
| 23.2 | Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. | |
| 23.3 | Consent of Wyrick Robbins Yates & Ponton LLP (contained in Exhibit 5.1). | |
| 24.1 | Power of Attorney (included on the signature page of this Form S-8). |
| (1) | Incorporated by reference to Appendix A of the Registrant’s definitive proxy statement filed with the Commission on June 4, 2015. |
| Item 9. | Undertakings. |
| (a) | The undersigned Registrant hereby undertakes as follows: |
(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 this 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 this 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; |
| (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) and (a)(1)(ii) of this section 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 Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in 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.
(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 Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement related to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof.
(h) 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 Commission 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.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 New York, State of New York, on the 28th day of August 2015.
| FORTRESS BIOTECH, INC. | |||
| By: | /s/ Lucy Lu, M.D. | ||
| Lucy Lu, M.D., | |||
| Executive Vice President and Chief Financial Officer | |||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Lucy Lu, 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 that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Capacity | Date | ||
| /s/ Lindsay A. Rosenwald, M.D. | Chairman of the Board of Directors, | August 28, 2015 | ||
| Lindsay A. Rosenwald, M.D. | President and Chief Executive Officer (Principal Executive Officer) | |||
| /s/ Lucy Lu, M.D. | Executive Vice President and Chief | August 28, 2015 | ||
| Lucy Lu, M.D. | Financial Officer (Principal Financial Officer) | |||
| /s/ Eric K. Rowinsky, M.D. | Co-Vice Chairman of the Board of Directors and Director | August 28, 2015 | ||
| Eric K. Rowinsky, M.D. | ||||
| /s/ Jimmie Harvey, Jr., M.D. | Director | August 28, 2015 | ||
| Jimmie Harvey, Jr., M.D. | ||||
| /s/ Malcolm Hoenlein | Director | August 28, 2015 | ||
| Malcolm Hoenlein | ||||
| /s/ Dov Klein | Director | August 28, 2015 | ||
| Dov Klein | ||||
| /s/ J. Jay Lobell | Director | August 28, 2015 | ||
| J. Jay Lobell | ||||
| /s/ Michael S. Weiss | Executive Vice Chairman, Strategic Development and Director | August 28, 2015 | ||
| Michael S. Weiss |
Exhibit 5.1
WYRICK ROBBINS YATES & PONTON LLP
Attorneys at Law
The Summit
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607-7506
August 28, 2015
Fortress Biotech, Inc.
3 Columbus Circle, 5 th Floor
New York, New York 10019
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 filed on or about the date hereof by Fortress Biotech, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Registration Statement”), in connection with the registration under the Securities Act of 1933, as amended, of 7,360,000 shares of the Company’s common stock, $0.001 par value per share (the “Shares”). We understand the Shares are to be issued pursuant to the Company’s 2013 Stock Incentive Plan, as amended (the “Plan”).
In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the original of all documents submitted to us as copies thereof. As your legal counsel, we have examined the proceedings taken, and are familiar with the proceedings proposed to be taken, in connection with the sale of the Shares.
It is our opinion that, upon completion of the proceedings being taken or contemplated by us, as your counsel, to be taken prior to the issuance of the Shares, the Shares when issued in the manner referred to in the Registration Statement and in accordance with the Plan, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement, including the Prospectus constituting a part thereof, and any amendments thereto.
This opinion is limited to the laws of the State of Delaware and no opinion is expressed as to the laws of any other jurisdiction. This opinion does not extend to compliance with federal or state securities laws relating to the offer or sale of the Shares.
This opinion is intended for use in connection with issuance and sale of the Shares subject to the Registration Statement and is not to be relied upon for any other purpose. This opinion is rendered as of the date first written above and based solely on our understanding of facts in existence as of such date after the aforementioned examination. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify any of the opinions expressed herein.
| Very truly yours, | |
| /s/ Wyrick Robbins Yates & Ponton LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement of Fortress Biotech, Inc. on Form S-8 (No. 333-xxxxxx ) to be filed on or about August 28, 2015 of our reports dated March 16, 2015 on our audits of the consolidated financial statements of Fortress Biotech, Inc. (formerly known as Coronado Biosciences, Inc.) as of December 31, 2014 and for the year then ended, and the effectiveness of internal control over financial reporting as of December 31, 2014, which reports were included in the Annual Report on Form 10-K filed March 16, 2015.
/s/ EisnerAmper LLP
| New York, New York |
| August 28, 2015 |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 14, 2014 relating to the financial statements, which appears in Fortress Biotech, Inc.’s (formerly known as Coronado Biosciences, Inc.) Annual Report on Form 10-K for the year ended December 31, 2014.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
August 28, 2015