As filed with the Securities
and Exchange Commission on October 6, 2021.
Registration No. 333-255185
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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FORM S-3
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Amendment No. 2
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REGISTRATION STATEMENT
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UNDER
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THE SECURITIES ACT OF 1933
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FORTRESS BIOTECH, INC.
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(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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2834
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47-3828760
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(State or Other Jurisdiction of
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(Primary Standard Industrial
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(I.R.S. Employer
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Incorporation or Organization)
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Classification Code Number)
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Identification Number)
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2 Gansevoort Street, 9th Floor
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New York, New York 10014
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(781) 652-4500
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(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
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Lindsay A. Rosenwald, M.D.
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Executive Chairman,
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Chief Executive Officer and President
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2 Gansevoort Street, 9th Floor
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New York, New York 10014
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(781) 652-4500
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(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
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Copies to:
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Mark McElreath
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Alston & Bird LLP
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90 Park Avenue
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New York, NY 10016
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(212) 210-9400
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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, 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, 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 definition 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 x
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Smaller reporting company 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 Securities Act. ☐
CALCULATION OF
REGISTRATION FEE
Title of Each Class of Securities to be Registered
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Amount to be Registered(1)
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Proposed
Maximum Offering Price per Unit(2)
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Proposed Maximum
Offering
Aggregate Offering Price(2)
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Amount of Registration
Fee
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Common Stock, par value $0.001 per share
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600,000
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$
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4.24
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$
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2,544,000
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$
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277.55
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(3)
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(1)
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The Registrant is hereby registering for resale from time to
time by the selling stockholders named herein of up to 600,000 shares of common stock, all of which were initially granted in connection
with a Dividend Payment and Exchange Agreement, dated as of March 31, 2021, executed by Fortress Biotech Inc. in favor of the holders
of Journey Medical Corporation’s 8% Cumulative Convertible Class A Preferred Stock. Pursuant to Rule 416(a) under the Securities
Act of 1933, as amended, or the Securities Act, this registration statement also covers such additional number of shares of common stock
that may be issued as a result of stock splits, stock dividends, anti-dilution issuances, or similar transactions.
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(2)
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Estimated solely for purposes of determining the registration
fee pursuant to Rule 457(c) under the Securities Act. The proposed maximum offering price per share and proposed maximum aggregate offering
price shown are based on the average of the high and low sale prices of the Registrant’s common stock on April 7, 2021 as reported
on The Nasdaq Capital Market.
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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 which specifically states that this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 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: This Amendment to the Registration Statement 333-255185,
is being undertaken for the sole purpose of adding additional selling stockholders to the registration statement and prospectus.
THE SELLING STOCKHOLDERS
We have prepared this prospectus
to allow the selling stockholders or their pledgees, donees, transferees or other successors in interest, to sell or otherwise dispose
of, from time to time, Securities issuable as dividends pursuant to the terms of the Journey Preferred Stock and the Dividend Agreement.
On March 31, 2021, we entered
the Dividend Agreement for the benefit of the holders of Journey Preferred Stock, pursuant to which we agreed to pay cumulative dividends
on the Journey Preferred Stock in Securities. In connection with certain registration rights that we granted to the selling stockholders
pursuant to the Registration Rights Agreement, we filed with the SEC a registration statement on Form S-3, of which this prospectus forms
a part, with respect to the resale or other disposition of the Securities offered by this prospectus from time to time on Nasdaq, in privately
negotiated transactions or otherwise. We have agreed to prepare and file amendments and supplements to the registration statement to the
extent necessary to keep the registration statement effective for the period of time required under our agreement with the selling stockholders.
The following table sets forth
the names of additional selling stockholders since the date of the last amendment to the registration statement. Should there be additional
sales of Journey Preferred Stock, we will file further post-effective amendments to the registration statement to add such purchasers
as additional selling stockholders. The aggregate number of Securities that the selling stockholders may offer and sell pursuant to this
prospectus is as yet undetermined. We will file a post-effective amendments to the registration statement to add such aggregate number
of Securities each selling stockholder may offer and sell as such dividends are paid. The selling stockholders may sell some, all or none
of the Securities. We do not know how long the selling stockholders will hold the Securities before selling them, and we currently have
no agreements, arrangements or understandings with any selling stockholder regarding the sale or other disposition of any of the Securities.
The Securities may be offered and sold from time to time by the selling stockholders pursuant to this prospectus.
Investor Information:
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Selling Stockholders(1)
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Shares of Common Stock
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Alan J Young Profit Sharing Plan
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320
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Alejandro J Messmacher
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480
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Alpesh Shah & Hina Shah
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640
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Andreas Ammelounx Living Trust
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640
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Applebaum Family LTD Partnership
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224
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Barry Lynn Coffee & Leslie Louise Coffee
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160
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Bishop Family Properties Ltd
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640
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Brian M Rubel
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192
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Brian Sundberg
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1,602
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Claude Roussel
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320
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Daniel Phillips & Linda Horne
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224
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Decompression LLC
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320
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Douglas Brody
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160
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Dyke Rogers
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1,281
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DZB LLC
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6,408
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Edmond P Brady & Kathleen M Brady
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320
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Eliezer Lubitch
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640
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Eric G Helt
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160
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Ernest J Mattei & Michele M Mattei
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320
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Fermo Jaeckle
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320
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Fred Harris
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160
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George Gomez Quintero
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256
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George J Strickler
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320
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Giuseppe Biasco
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320
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Glenn E Phillips
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160
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Gregory G Konsor
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736
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Gregory J Dovolis
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320
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Guillermo Bodnar
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128
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Holroyd Family Revocable Trust
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320
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James Diemert
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320
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James Robert Fowler
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320
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Jeffrey K Warmann
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640
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Jeffrey Tunis
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640
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Joann Marie Fiore Borlack Alan Borlack JTWROS
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480
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Joann Zlotkin
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640
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Jodi A Richard
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320
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John D Merriam
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160
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John E. Bishop
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320
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John F Herbert & Jane E Herbert Revocable Trust
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640
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John M Gasidlo & Elizabeth Shimei
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480
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John O Dunkin
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961
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John Paul Todd
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640
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John T Kennedy
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320
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John Tobias
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320
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KBA Holdings LLC
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961
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Keith Family Trust
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801
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Keith R Schroeder
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480
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Kevin Paige
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320
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Kevin Paul McCarthy Revocable Trust
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320
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Kevin Seaman
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160
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Kevin Stein
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640
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Kiat Tze Goh
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1,281
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Lucy Lu
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320
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Marc L Goldstein
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160
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Mark Harrison
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160
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Marlin Capital Resources LLC
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1,922
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Matthew Budine
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320
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Michael J Cowell
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1,281
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Michael K Robson & Ida Robson
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224
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Morris A Arnston Family Trust
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640
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MSB Family Trust
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1,602
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Nathaniel Marmur
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640
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Neel B Ackerman & Martha N Ackerman
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3,204
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Ouachita Capital LLC
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1,281
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Paule E Hoyle
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320
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Perry Sutaria
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320
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Praful Desai
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320
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Raj M Sutaria
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320
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Ramachandra C Reddy
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320
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Randy L Burns
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640
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Raymond Joseph Tesi
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3,204
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Richard K Hursey
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320
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Richard S. Simms
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320
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Robert C Ackerman
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640
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Robert D Priday
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640
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Robert J Calabro
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640
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Robert Singer
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160
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Roberto Mendez & Eliana Cardenas JTWROS
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269
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Ronald Finestone
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160
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Rong Zheng
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160
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Ruchir Gupta
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160
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S 2 Yachts, Inc.
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6,408
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S Alan Lisenby Sr. & Patricia Lisenby
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320
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Scott A Brody
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160
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Sharon M Crowder DDS
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640
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Shiloh Produce
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3,204
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Steve R Cruse
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961
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Steven A Waters & Jenger H Waters
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640
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Steven Zaloga
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640
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Stormy Adams & Zachary L Adams
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961
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Tanju Obut & Tina S Obut
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640
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The David G Franz Family Trust
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961
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THE KEVIN R MACK REVOCABLE TRUST
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320
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The Temkin Family Legacy Trust No.2
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224
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Thomas Gemellaro
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160
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Tim Montgomery
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961
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Venuti Family Trust
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640
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Vernon L Simpson Revocable Living Trust 2
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640
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VGNT Holdings LLC
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320
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Wade D Hutchings & Galadriel Hutchings
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320
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William Silver
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1,602
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Wing Real Estate LLC
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640
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Winterset Associates, GP
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640
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Wuethrich Investments, LLC
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320
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James J Peters
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640
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David Porter & Linda Porter
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640
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John Roth
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640
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J & C Resources LLC
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1,281
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Rivki Davidowitz Rosenwald
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3,844
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Ian Milne
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640
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Christopher Ulcak
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160
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Peter Anderson
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480
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Dov Klein
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480
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Gerald A Tomsic 1995 Trust
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640
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The Marianne Higgins Revoc Trust
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320
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Tom McBride
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160
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Mark Greenwald
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160
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Robert Forst
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640
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Suresh A. Patel
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480
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KT Investments II LLC
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320
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Evergreen Capital Management LLC
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1,602
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Mr. and Mrs. Samuel Oschin Foundation
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3,204
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John Wirtz III
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224
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The Bruce Jeffrey Schwartz & Kathryn Diane Goller LIV Trust
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160
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Guy & Sue Harper
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224
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Ali Khan
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640
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Devesh Pathak
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320
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DESIIPO21
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384
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John & Andrea Foote
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256
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Jordan Family LLC
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542
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R. Douglas Armstrong
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542
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Keith Family Trust (2)
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135
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Lindsay A. Rosenwald, M.D.
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8,133
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Peter Anderson (2)
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189
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DAK Investments (US) Corp.
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5,422
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Bruce C. Conway
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542
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Gary Baddeley
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271
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Harris Lydon
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271
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Josiah T. Austin
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1,084
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Laurence Lytton
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1,084
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Peter J. Crowley
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1,626
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YJP International Limited
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1,626
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Klaus Kretschmer
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813
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RRSJ Associates
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1,355
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Malcolm I. Hoenlein
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406
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Eldgarn Family Trust
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1,042
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Total
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116,866
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(1)
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The principal business address
and address for notice to the selling stockholders will be the address set forth in our books and records.
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Relationship with the Selling Stockholders
Dividend Payment and Exchange Agreement
On March 31, 2021, we executed
the Dividend Agreement for the benefit of the holders of the Journey Preferred Stock, pursuant to which we agreed to pay cumulative dividends
on the Journey Preferred Stock in Securities.
Registration Rights Agreement
Pursuant to the Registration
Rights Agreement with the selling stockholders, we agreed to prepare and file with the SEC the registration statement, of which this prospectus
forms a part, that permits the resale of the Securities and, subject to certain exceptions, to use reasonable best efforts to keep such
registration statement effective under the Securities Act until (i) all Securities registered by the registration statement have been
sold, transferred or otherwise disposed of by the selling stockholders, (ii) the Securities are sold, transferred or otherwise disposed
of pursuant to Rule 144 of the Securities Act, or (iii) the Securities have become eligible for sale by the selling stockholders pursuant
to Rule 144 without any restriction on the volume or manner of such sale and all restrictive legends and stop transfer instructions have
been removed with respect to all book entries representing the Securities.
We have also agreed, among
other things, to indemnify the selling stockholders and their officers, directors, members, employees and agents, successors and assigns,
and any person who controls either of the selling stockholders (within the meaning of the Securities Act or the Exchange Act) from all
losses and liabilities arising out of or relating to any untrue statement or alleged untrue statement or omission or alleged omission
of material fact relating to the Securities in this prospectus or the registration statement of which this prospectus forms a part.
Except as described above,
neither the selling stockholders nor any persons having control over such selling stockholders have held any position or office with us
or our affiliates within the last three years or has had a material relationship with us or any of our predecessors or affiliates within
the past three years, other than as a result of the ownership of shares of our common stock or other securities.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
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FORTRESS BIOTECH INC.
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October 6, 2021
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By:
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/s/ Lindsay A. Rosenwald, M.D.
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Lindsay A. Rosenwald, M.D.
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Chairman, President and Chief Executive Officer (Principal Executive Officer)
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Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated as of July 23,
2021.
Signature
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Title
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Date
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/s/ Lindsay A. Rosenwald, M.D.
Lindsay A. Rosenwald, M.D.
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Chairman of the Board of Directors,
President and Chief Executive Officer
(Principal Executive Officer)
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October 6, 2021
|
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/s/ Robyn M. Hunter
Robyn M. Hunter
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Chief Financial Officer
(Principal Financial Officer)
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October 6, 2021
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*
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Vice Chairman of the Board of Directors
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October 6, 2021
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Eric K. Rowinsky, M.D.
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*
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Executive Vice Chairman, Strategic
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October 6, 2021
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Michael S. Weiss
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Development and Director
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*
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Director
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October 6, 2021
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Jimmie Harvey, Jr., M.D.
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*
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Director
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October 6, 2021
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Malcolm Hoenlein
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*
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Director
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October 6, 2021
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Dov Klein
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*
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Director
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October 6, 2021
|
J. Jay Lobell
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*
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Director
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October 6, 2021
|
Kevin L.
Lorenz, J.D.
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*/s/ Lindsay A. Rosenwald, M.D.
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|
Attorney-in-fact
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