Securities Registration: Employee Benefit Plan (s-8)
November 30 2017 - 9:23AM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on November 30, 2017.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MUSTANG BIO, INC.
(Exact name of registrant as specified in
its charter)
Delaware
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47-3828760
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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2 Gansevoort Street, 9th Floor
New York, New York 10014
(Address, including Zip Code, of Principal
Executive Offices)
Mustang Bio, Inc. 2016 Incentive Plan
(Full title of the plan)
Manuel Litchman, M.D.
President and Chief Executive Officer
Mustang Bio, Inc.
2 Gansevoort Street, 9
th
Floor
New York, New York 10014
(781) 652-4500
(Name, address and telephone number of agent
for service)
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Copy to:
Mark McElreath
Alston & Bird LLP
90 Park Avenue, 12
th
Floor
New York, NY 10016
(212) 210-9595
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Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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:
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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Emerging growth company
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x
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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.
x
CALCULATION OF REGISTRATION FEE
Title of securities
to be registered
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Amount to
be registered
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Proposed
maximum
offering price
per share
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Common Stock, $0.0001 par value
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2,000,000
(1)
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$9.66
(2)
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$20,000,000
(2)
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$2,490.00
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(1)
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Amount to be registered consists of an aggregate of 2,000,000 shares of Mustang
Bio, Inc. Common Stock, par value $0.0001 per share (the “Common Stock”), including any additional shares that may become
issuable in accordance with the adjustment and anti-dilution provisions of the Mustang Bio, Inc. 2016 Incentive Plan.
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(2)
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Determined in accordance with Rule 457(h) under the Securities Act of
1933, as amended, the registration fee calculation for these shares is based on the average of the high and low prices of the
Common Stock, reported on the Nasdaq Global Market on November 28, 2017.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
(a) The
documents constituting Part I of this registration statement on Form S-8 (this “Registration Statement”) will be delivered
to participants in the Mustang Bio, Inc. 2016 Incentive Plan (the “Plan”) as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the “Securities Act”). These documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
(b) Upon
written or oral request, Mustang Bio, Inc. (the “Company”) will provide, without charge, the documents incorporated
by reference in Item 3 of Part II of this Registration Statement. The documents are incorporated by reference in the Section 10(a)
prospectus. The Company will also provide, without charge, upon written or oral request, other documents required to be delivered
to employees pursuant to Rule 428(b). Requests for the above mentioned information should be directed to Mustang Bio, Inc., Attn:
Investor Relations, 2 Gansevoort Street, 9th Floor, New York, New York 10014, (781) 652-4500 (
ir@mustangbio.com
).
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents,
filed with the Securities and Exchange Commission (the “Commission”) by the Company, are incorporated herein by reference:
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a)
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The Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2016;
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b)
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The Company’s Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2017, June 30, 2017 and September 30, 2017;
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c)
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The Company’s Quarterly Report on Form 10-Q/A for the quarterly period ended June 30,
2017, as filed
on November 14, 2017;
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d)
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The Company’s Current Reports on Form 8-K filed with the SEC on January 3, 2017,
January 6, 2017, February 6, 2017, February 24, 2017, March 23, 2017, April 24, 2017, June 6, 2017, June 9, 2017, June 13,
2017, October 30, 2017 and November 14, 2017 (excluding any information furnished pursuant to Item 2.02 or Item 9.01);
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e)
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The description of the Company’s Common Stock contained
in the Form 10-12G/A filed with the Commission on October 18, 2016, and any amendment or report
filed for the purpose of updating such description;
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f)
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The description of the Common Stock as included under the caption “Description of
Registrant’s Securities to be Registered” in the Company’s Registration Statement on Form
10-12G, as amended, originally filed with the Commission on July 28, 2016, and the Company’s Registration Statement
on Form 8-A12B filed with the Commission on August 21, 2017, and any amendment
or report filed for the purpose of further updating such description.
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All reports and other
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities that
remain unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
Any statement contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests
of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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The Company has adopted
provisions in its certificate of incorporation that limit the liability of its directors for monetary damages for breach of their
fiduciary duties, except for liability that cannot be eliminated under the Delaware General Corporation Law (“DGCL”).
Delaware law provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary
duties as directors, except liability for any of the following:
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any breach of their duty of loyalty to the corporation or the stockholder;
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acts or omissions not in good faith or that involve intentional misconduct or a knowing violation
of law;
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unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section
174 of the DGCL; or
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any transaction from which the director derived an improper personal benefit.
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This limitation of liability does not apply
to liabilities arising under the federal securities laws and does not affect the availability of equitable remedies such as injunctive
relief or rescission.
Under provisions of
the Company’s amended and restated certificate of incorporation and bylaws, the Company will indemnify its directors and
executive officers and may indemnify other officers and employees and other agents to the fullest extent permitted by law. This
indemnification covers at least negligence and gross negligence on the part of indemnified parties. The bylaws also permit the
Company to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or
her actions in this capacity, regardless of whether the bylaws would permit indemnification. The Company has secured such insurance.
The Company has entered
into separate indemnification agreements with its directors and executive officers, in addition to indemnification provided for
in its charter documents. These agreements, among other things, provide for indemnification of directors and executive officers
for expenses, judgments, fines and settlement amounts incurred by each of these persons in any action or proceeding arising out
of his or her services as a director or executive officer or at the Company’s request. The Company believes that these provisions
and agreements are necessary to attract and retain qualified persons as directors and executive officers.
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Item 7.
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Exemption
from Registration Claimed.
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Not applicable.
See the Exhibit Index,
which is incorporated herein by reference.
(a) The
Company 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 of 1933;
(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.
(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
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(A)
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Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement
is on Form S-8, and 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 Securities Exchange Act
of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement;
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(2)
That, for the purpose of determining any liability under the Securities Act of 1933, 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; and
(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 Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the Company’s annual report pursuant to Section 13(a) or 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 of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of
expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Act and
will be governed by the final adjudication of such issue.
(Signatures on following page)
SIGNATURES
The
Registrant
. Pursuant to the requirements of the Securities Act of 1933, the Company 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 this November 30, 2017.
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Mustang Bio, Inc.
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By:
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/s/ Manuel Litchman, M.D.
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Manuel Litchman, M.D.
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW BY ALL MEN
BY THESE PRESENT,
that each person whose signature appears below constitutes and appoints Michael S. Weiss as true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his name, place and stead, in any and all capacities,
to sign any 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, hereby ratifying and confirming
all that said attorney-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
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
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Title
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Date
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/s/
Michael S. Weiss
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Michael
S. Weiss
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Executive
Chairman of the Board
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November 30, 2017
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/s/
Manuel Litchman, M.D.
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President,
Chief Executive Officer and Director
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Manuel
Litchman, M.D.
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(Principal
Executive Officer)
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November 30, 2017
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/s/
Brian K. Achenbach
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Vice
President of Finance
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Brian K. Achenbach
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(Principal
Financial Officer)
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November 30, 2017
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/s/
Lindsay A. Rosenwald, M.D.
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Lindsay
A. Rosenwald, M.D.
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Director
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November 30, 2017
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/s/
Neil Herskowitz
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Neil
Herskowitz
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Director
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November 30, 2017
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/s/
Adam J. Chill
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Adam
J. Chill
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Director
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November 30, 2017
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/s/
Michael J. Zelefsky
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Michael
J. Zelefsky
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Director
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November 30, 2017
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
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