As filed with the Securities and Exchange
Commission on April 7, 2023
Registration No. 333-269687
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
FORTRESS BIOTECH, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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, including zip code, and telephone number,
including area code, of registrant’s principal executive offices) |
(Zip Code) |
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, including zip code, and telephone
number,
including area code, of agent for service)
Copy to:
Rakesh Gopalan
McGuireWoods LLP
201 North Tryon Street, Suite 3000
Charlotte, North Carolina 28202
(704) 373-2275 |
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 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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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.
The information in this prospectus
is not complete and may be changed. The selling stockholders named in this prospectus may not sell these securities until the registration
statement becomes effective. This prospectus is not an offer to sell these securities, and the selling stockholders named in this prospectus
are not soliciting offers to buy these securities in any jurisdiction where the offer for sale is not permitted.
Subject To Completion, Dated
April 7, 2023
PROSPECTUS
![](https://content.edgar-online.com/edgar_conv_img/2023/04/07/0001104659-23-043152_tm2310970d1_s3-img01.jpg)
647,000 Shares of Common Stock
This prospectus relates to the resale by the
selling stockholders (the “Selling Stockholders”) identified in this prospectus under the section “The Selling Stockholders,”
or their pledgees, donees, transferees or other successors in interest, from time to time, of up to 647,000 shares of our Common Stock,
par value $0.001 per share (the “Common Stock”), issuable in connection with the Dividend Payment and Exchange Agreement
dated as of December 27, 2022 (the “Dividend Agreement”) executed by Fortress Biotech, Inc. for the benefit of
the holders of the 8% Cumulative Redeemable Perpetual Class B Preferred Stock (the “Urica Preferred Stock”) of Urica
Therapeutics, Inc. (“Urica”), one of our subsidiaries, and pursuant to the terms of the Urica Preferred Stock. We are registering
the Common Stock on behalf of the Selling Stockholders, to be offered and sold from time to time, to satisfy certain registration rights
that we have granted to the Selling Stockholders.
The Selling Stockholders may resell or dispose
of the Common Stock, or interests therein, at fixed prices, at prevailing market prices at the time of sale or at prices negotiated with
purchasers, to or through underwriters, broker-dealers, agents, or through any other means described in the section of this prospectus
entitled “Plan of Distribution”. The Selling Stockholders will each bear their respective commissions and discounts, if any,
attributable to the sale or disposition of the Common Stock, or interests therein, held by such Selling Stockholder. Urica will bear
all costs, expenses and fees in connection with the registration of the Common Stock. Neither we nor Urica will receive any of the proceeds
from the sale of the Common Stock by the Selling Stockholders.
The Common Stock is listed on The Nasdaq Capital
Market, or Nasdaq, under the symbol “FBIO.” On April 5, 2023, the last reported sale price of our Common Stock was $0.73
per share. You are urged to obtain current market quotations for our Common Stock.
Investing in our securities involves risks.
You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained in this prospectus
and under similar headings in the other documents that are incorporated by reference into this prospectus as described on page 4
of this prospectus.
Neither the Securities and Exchange Commission
(the “SEC”) nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy
or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this Prospectus is , 2023
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus provides you with a general description
of the Common Stock that may be resold by the Selling Stockholders. In certain circumstances, we may provide a prospectus supplement that
will contain specific information about the terms of a particular offering by the Selling Stockholders. We also may provide a prospectus
supplement to add information to, or update or change information contained in, this prospectus. To the extent there is a conflict between
the information contained in this prospectus and any prospectus supplement, you should rely on the information in the prospectus supplement,
provided that if any statement in one of these documents is inconsistent with a statement in another document having a later date — for
example, a document incorporated by reference in this prospectus or any prospectus supplement — the statement in the
later-dated document modifies or supersedes the earlier statement.
You should read both this prospectus and any applicable
prospectus supplement together with the additional information about our company to which we refer you in the sections of this prospectus
entitled “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference.” You should
rely only on the information contained in or incorporated by reference into this prospectus and any prospectus supplement. Neither we
nor the Selling Stockholders have authorized any dealer, sales person or other person to provide you with different information. You should
not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the
front of those documents or that any document incorporated by reference is accurate as of any date other than its filing date. You should
not consider this prospectus to be an offer or solicitation relating to the Common Stock in any jurisdiction in which such an offer or
solicitation relating to the Common Stock is not authorized. Furthermore, you should not consider this prospectus to be an offer or solicitation
relating to the Common Stock if the person making the offer or solicitation is not qualified to do so, or if it is unlawful for you to
receive such an offer or solicitation.
Unless the context indicates otherwise, when we
refer to “Fortress,” “we,” “our,” “us” and the “Company” in this prospectus,
we mean Fortress Biotech, Inc., unless otherwise specified. When we refer to “you,” we mean the potential holders of
the applicable series of Common Stock.
FORWARD-LOOKING
STATEMENTS
This prospectus, including
the documents that we incorporate by reference, may contain forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as Amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange
Act. Statements in this prospectus, and documents we incorporate by reference, that are not descriptions of historical facts are forward-looking
statements that are based on management’s current expectations and are subject to risks and uncertainties that could negatively
affect our business, operating results, financial condition and stock price. For such forward-looking statements, we claim the protection
of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. We have attempted
to identify forward-looking statements by terminology including “anticipates,” “believes,” “can,”
“continue,” “could,” “estimates,” “expects,” “intends,” “may,”
“might,” “plans,” “potential,” “predicts,” “should,” or “will”
or the negative of these terms or other comparable terminology. Factors that could cause actual results to differ materially from those
currently anticipated include those set forth under “Risk Factors” including, in particular, risks relating to:
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financing and strategic agreements, acquisitions and relationships; |
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our need for substantial additional funds and uncertainties relating
to financings; |
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our ability to identify, acquire, close and integrate product candidates and companies successfully and on a timely basis; |
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our ability to attract, integrate and retain key personnel; |
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the early stage of products under development; |
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the results of research and development activities; |
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uncertainties relating to preclinical and clinical testing; |
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our ability to secure and maintain third-party manufacturing, marketing and distribution of our products; |
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patent and intellectual property matters; and |
You should read this prospectus
and the documents that we reference herein completely and with the understanding that our actual future results may be materially different
from what we currently expect. You should assume that the information appearing in this prospectus and any document incorporated by reference
is accurate as of its date only. Because the risk factors referred to above could cause actual results or outcomes to differ materially
from those expressed in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking
statements. Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update
any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence
of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict which factors will arise. In addition,
we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual
results to differ materially from those contained in any forward-looking statements. We qualify all of the information presented in this
prospectus, any accompanying prospectus supplement and any document incorporated herein by reference, and particularly our forward-looking
statements, by these cautionary statements.
SUMMARY
This summary highlights
information contained elsewhere in or incorporated by reference into this prospectus. Because this is a summary, it may not contain all
of the information that may be important to you and to your investment decision. The following summary is qualified in its entirety by
the more detailed information and financial statements and notes thereto included elsewhere in this prospectus and the documents incorporated
herein by reference and other documents to which we refer. You should read “Risk Factors” beginning on page 4 of this
prospectus, as well as the information appearing under the caption “Item 1A. Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, as may be updated by our subsequently filed Exchange Act
reports, for more information about important risks that you should consider carefully before buying our Common Stock.
Overview
Fortress
Biotech, Inc. is a biopharmaceutical company dedicated to acquiring, developing and commercializing pharmaceutical and biotechnology
products and product candidates, which we do through Fortress itself and through partner companies and subsidiaries. Fortress has a talented
and experienced business development team, comprising scientists, doctors and finance professionals, who work in concert with our extensive
network of key opinion leaders to identify and evaluate promising products and product candidates for potential acquisition . We have
executed arrangements in partnership with some of the world’s foremost universities, research institutes and pharmaceutical companies,
including City of Hope National Medical Center, Fred Hutchinson Cancer Center, St. Jude Children’s Research Hospital (“St.
Jude”), Dana-Farber Cancer Institute, Nationwide Children’s Hospital, Cincinnati Children’s Hospital Medical Center,
Columbia University, the University of Pennsylvania, Mayo Foundation for Medical Education and Research (“Mayo Clinic”),
AstraZeneca plc, and Dr. Reddy’s Laboratories, Ltd.
Following
the exclusive license or other acquisition of the intellectual property underpinning a product or product candidate, Fortress leverages
its business, scientific, regulatory, legal and financial expertise to help the partners achieve their goals. Partner companies then
assess a broad range of strategic arrangements to accelerate and provide additional funding to support research and development, including
joint ventures, partnerships, out-licensings, sales transactions, and public and private financings. To date, four partner companies
are publicly-traded, and two have consummated strategic partnerships with industry leaders AstraZeneca plc as successor-in-interest to
Alexion Pharmaceuticals, Inc. (“AstraZeneca”) and Sentynl Therapeutics, Inc. (“Sentynl”), respectively.
In October 2021, AstraZeneca purchased 100% of our partner Caelum for approximately $150 million upfront and up to $350 million in contingent
regulatory and sales milestone payments.
Our
subsidiary and partner companies that are pursuing development and/or commercialization of biopharmaceutical products and product candidates
are Aevitas Therapeutics, Inc. (“Aevitas”), Avenue Therapeutics, Inc. (Nasdaq: ATXI, “Avenue”), Baergic
Bio, Inc. (“Baergic,” a subsidiary of Avenue), Cellvation, Inc. (“Cellvation”), Checkpoint Therapeutics, Inc.
(Nasdaq: CKPT, “Checkpoint”), Cyprium Therapeutics, Inc. (“Cyprium”), Helocyte, Inc. (“Helocyte”),
Journey Medical Corporation (Nasdaq: DERM, “Journey” or “JMC”), Mustang Bio, Inc. (Nasdaq: MBIO, “Mustang”),
Oncogenuity, Inc. (“Oncogenuity”) and Urica Therapeutics, Inc. (“Urica”) (formerly known as UR-1 Therapeutics,
Inc.).
Corporate Information
Our principal executive offices
are located at 1111 Kane Concourse Suite 301 Bay Harbor Islands, FL 33154, and our telephone number is 781-652-4500. We maintain
a website on the Internet at www.fortressbiotech.com and our e-mail address is info@fortressbiotech.com. Our Annual Report on Form 10-K,
Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and amendments to reports filed or furnished pursuant to Sections
13(a) and 15(d) of the Exchange Act are available, free of charge, under the Investor Relations tab of our website as soon as
reasonably practicable after we electronically file such material with, or furnish it to, the SEC. The SEC also maintains an Internet
website located at www.sec.gov that contains the information we file or furnish electronically with the SEC. Information found on,
or accessible through, our website is not a part of, and is not incorporated into, this prospectus, and you should not consider it part
of this prospectus.
Dividend Payment and Exchange Agreement
On December 27,
2022, we executed the Dividend Agreement for the benefit of the holders of Urica Preferred Stock, pursuant to which we agreed to pay cumulative
dividends on the Urica Preferred Stock in shares of our Common Stock.
In addition, in connection with the Dividend Agreement,
we entered into a Registration Rights Agreement with the Selling Stockholders (the “Registration Rights Agreement”) in which
we agreed to prepare and file with the SEC a registration statement with respect to resales of the Common Stock issued to the Selling
Stockholders as dividends on the Urica Preferred Stock. Accordingly, as required by the Registration Rights Agreement, the registration
statement of which this prospectus is a part relates to the offer and resale of the Common Stock issued to the Selling stockholders under
the terms of the Urica Preferred Stock and in connection with the Dividend Agreement.
In connection with the issuance of shares of Common
Stock as dividends on the Urica Preferred Stock, Urica will issue to the Company, as consideration therefor, a number of shares of Urica
common stock, par value $0.0001 per share, with a fair market value equal to the fair market value of any shares of Common Stock so issued
as dividends.
THE
OFFERING
Issuer |
Fortress Biotech, Inc. |
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Securities Offered by Selling Stockholders |
647,000 shares of the Company’s Common Stock, per share issuable as to the Selling Stockholders in accordance with the terms of the Urica Preferred Stock and Dividend Agreement. |
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Terms of the Offering |
The Selling Stockholders will each determine when and how they will sell the Common Stock offered in this prospectus, as described in the “Plan of Distribution.” |
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Use of Proceeds |
We will not receive any proceeds from the sale of the Common Stock by the Selling Stockholders in this offering. See “Use of Proceeds.” |
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Risk Factors |
See “Risk Factors” incorporated by reference into this prospectus from our most current Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q, for a discussion of certain factors you should carefully consider before deciding to invest in shares of our Common Stock. |
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Nasdaq Capital Market Symbol |
FBIO |
RISK
FACTORS
Investing
in our Common Stock, our 9.375% Series A Cumulative Redeemable Perpetual Preferred Stock $0.001 par value (the “Series A Preferred
Stock”) or any other type of equity or debt securities we may issue from time to time (together, our “Securities”)
involves a high degree of risk. You should consider carefully the risks and uncertainties described below, together with all of the other
information in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, including
the consolidated financial statements and the related notes, as well as the risks, uncertainties and other information set forth in the
reports and other materials filed or furnished by our partner companies Avenue, Checkpoint, Journey and Mustang with the SEC, before
deciding to invest in our Securities. If any of the following risks or the risks included in the public filings of Avenue, Checkpoint,
Journey or Mustang were to materialize, our business, financial condition, results of operations, and future growth prospects could be
materially and adversely affected. In that event, the market price of our Securities could decline, and you could lose part of or all
of your investment in our Securities. In addition, you should be aware that the below stated risks should be read as being applicable
to our subsidiaries and partner companies such that, if any of the negative outcomes associated with any such risk is experienced by
one of our subsidiaries or partner companies, the value of Fortress’ holdings in such entity may decline.
USE
OF PROCEEDS
We will not receive any proceeds
from the sale of the Common Stock covered by this prospectus and any accompanying prospectus supplement. All proceeds from the sale of
the Common Stock will be for the respective accounts of the Selling Stockholders named herein.
Urica will bear all other costs,
fees and expenses incurred in effecting the registration of the Common Stock covered by this prospectus and any accompanying prospectus
supplement, including, without limitation, all registration and filing fees, Nasdaq listing fees and fees and expenses of our counsel
and our accountants, in accordance with the terms of the Urica Preferred Stock. Each Selling Stockholder will pay any discounts, commissions,
and fees of underwriters, selling brokers, dealer managers or similar securities industry professionals incurred by such Selling Stockholder
in disposing of the Common Stock covered by this 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, Common Stock issuable as dividends pursuant to the terms of the Urica Preferred Stock and the Dividend Agreement.
On December 27, 2022,
we entered into the Dividend Agreement for the benefit of the holders of Urica Preferred Stock, pursuant to which we agreed to pay cumulative
dividends on the Urica Preferred Stock in shares of our Common Stock. 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 Common Stock 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.
All information with respect
to the Selling Stockholders’ ownership of the Common Stock has been furnished by or on behalf of the Selling Stockholders and is
as of March 31, 2023. The percentage ownership data is based on 130,417,161 shares of Common Stock issued and outstanding as of March
31, 2023. We believe, based on information supplied by the Selling Stockholders, that except as may otherwise be indicated in the table
below, the Selling Stockholders and their affiliates listed in any footnote to the table below have sole voting and dispositive power
with respect to the Common Stock reported as beneficially owned by them.
The aggregate number of shares
of Common Stock that the Selling Stockholders may offer and sell pursuant to this prospectus is based upon a good faith estimation of
the amount of Common Stock that may be issued to the Selling Stockholders pursuant to the terms of the Urica Preferred Stock. Therefore,
if needed, we will file a post-effective amendment to the registration statement or additional registration statements, to add such aggregate
number of Common Stock each Selling Stockholder may offer and sell. The Selling Stockholders may sell some, all or none of the Common
Stock. We do not know how long the Selling Stockholders will hold the shares of Common Stock before selling them, and we currently have
no agreements, arrangements or understandings with any Selling Stockholders regarding the sale or other disposition of any of the Common
Stock. The Common Stock may be offered and sold from time to time by the Selling Stockholders pursuant to this prospectus.
Because the Selling Stockholders
may sell some or all of the Common Stock included in this prospectus, and because there are currently no agreements, arrangements or understandings
with respect to the sale of any of the Common Stock, no estimate can be given as to the number of shares of Common Stock available for
resale hereby that will be held by the Selling Stockholders in the future. In addition, the Selling Stockholders may have sold, transferred
or otherwise disposed of, or may sell, transfer or otherwise dispose of, at any time and from time to time, the Common Stock they hold
in transactions exempt from the registration requirements of the Securities Act after the date on which they provided the information
set forth in the table below. We have, therefore, assumed for the purposes of the following table, that the Selling Stockholders will
sell all of the shares of Common Stock owned beneficially by them and their affiliates listed in any footnote to the table below that
are covered by this prospectus.
Selling Stockholder
Information: |
Selling Stockholders(1) | |
Shares Owned
Immediately Prior
to the Offering | | |
Shares Being
Offered for
Resale Under this
Prospectus | | |
Number of
Shares
Beneficially
Owned After
Sale of Shares(2) | | |
Percentage of
Outstanding Shares
of Common Stock
Beneficially Owned
Immediately
Following the Sale of
Shares(3) | |
Alejandro Messmacher | |
| - | | |
| 19,000 | | |
| 19,000 | | |
| 0.0 | % |
Andrew R. McDonald | |
| - | | |
| 4,000 | | |
| 4,000 | | |
| 0.0 | % |
Anthony Van Hoven | |
| - | | |
| 38,000 | | |
| 38,000 | | |
| 0.0 | % |
Brian Dummann | |
| - | | |
| 24,000 | | |
| 24,000 | | |
| 0.0 | % |
Bryan K. Melvin | |
| - | | |
| 10,000 | | |
| 10,000 | | |
| 0.0 | % |
Claude Roussel | |
| - | | |
| 4,000 | | |
| 4,000 | | |
| 0.0 | % |
Doug Tiffan | |
| - | | |
| 5,000 | | |
| 5,000 | | |
| 0.0 | % |
Douglas Battaglia | |
| - | | |
| 16,000 | | |
| 16,000 | | |
| 0.0 | % |
Geoffrey C. Maddock | |
| - | | |
| 10,000 | | |
| 10,000 | | |
| 0.0 | % |
Gregory Konsor | |
| 4,432 | | |
| 19,000 | | |
| 23,432 | | |
| 0.0 | % |
Hochman Family LLLP | |
| - | | |
| 5,000 | | |
| 5,000 | | |
| 0.0 | % |
James Ellinwood | |
| - | | |
| 10,000 | | |
| 10,000 | | |
| 0.0 | % |
James O. Ellinwood | |
| - | | |
| 19,000 | | |
| 19,000 | | |
| 0.0 | % |
John and Jane Herbert Revocable Trust | |
| - | | |
| 28,000 | | |
| 28,000 | | |
| 0.0 | % |
JSGM Trust | |
| - | | |
| 6,000 | | |
| 6,000 | | |
| 0.0 | % |
Keith Schroeder | |
| 2,807 | | |
| 28,000 | | |
| 30,807 | | |
| 0.0 | % |
Kevin Stein | |
| 1,545 | | |
| 186,000 | | |
| 187,545 | | |
| 0.2 | % |
Leon Goldschmidt | |
| 6,071 | | |
| 3,000 | | |
| 9,071 | | |
| 0.0 | % |
Lori Kelley | |
| - | | |
| 6,000 | | |
| 6,000 | | |
| 0.0 | % |
Mark Bradley | |
| 3,254 | | |
| 5,000 | | |
| 8,254 | | |
| 0.0 | % |
Mark Wiltse | |
| - | | |
| 10,000 | | |
| 10,000 | | |
| 0.0 | % |
Michael Thielen | |
| - | | |
| 4,000 | | |
| 4,000 | | |
| 0.0 | % |
MONEST LLC | |
| - | | |
| 19,000 | | |
| 19,000 | | |
| 0.0 | % |
Paul Glauber | |
| - | | |
| 5,000 | | |
| 5,000 | | |
| 0.0 | % |
Paul Hoyle | |
| 772 | | |
| 11,000 | | |
| 11,772 | | |
| 0.0 | % |
Rick and Kristine Zabel | |
| - | | |
| 5,000 | | |
| 5,000 | | |
| 0.0 | % |
Robert and Brenda Tully | |
| - | | |
| 14,000 | | |
| 14,000 | | |
| 0.0 | % |
Roger and Christie Gildehaus | |
| - | | |
| 19,000 | | |
| 19,000 | | |
| 0.0 | % |
Steven Zaloga | |
| 1,545 | | |
| 10,000 | | |
| 11,545 | | |
| 0.0 | % |
T. Mark Sledge | |
| - | | |
| 6,000 | | |
| 6,000 | | |
| 0.0 | % |
The Holroyd Family Revocable Trust | |
| - | | |
| 15,000 | | |
| 15,000 | | |
| 0.0 | % |
The Michael C. Fox Revocable Trust | |
| - | | |
| 11,000 | | |
| 11,000 | | |
| 0.0 | % |
Thomas E. Vandenberg | |
| - | | |
| 16,000 | | |
| 16,000 | | |
| 0.0 | % |
Tom Kreszl | |
| - | | |
| 5,000 | | |
| 5,000 | | |
| 0.0 | % |
Vincent Shoemaker | |
| - | | |
| 19,000 | | |
| 19,000 | | |
| 0.0 | % |
Vito LaVopa | |
| - | | |
| 5,000 | | |
| 5,000 | | |
| 0.0 | % |
William Bonifas | |
| - | | |
| 4,000 | | |
| 4,000 | | |
| 0.0 | % |
William Stocker III | |
| 0 | | |
| 1,000 | | |
| 1,000 | | |
| 0.0 | % |
Yuyun
Li and David Norwood | |
| 379 | | |
| 4,000 | | |
| 4,379 | | |
| 0.0 | % |
Total | |
| 20,805 | | |
| 647,000 | | |
| 667,805 | | |
| 0.6 | % |
| (1) | The principal business address and address for notice to the Selling Stockholders will be the address
set forth in our books and records. |
| (2) | Assumes the Selling Stockholders sell all of the shares of Common Stock being offered by this prospectus. |
| (3) | Percentage calculated based upon the assumption that the Selling Stockholders sell all of the shares of
Common Stock offered by this prospectus. |
Relationship with the Selling Stockholders
Dividend Payment and Exchange Agreement
As discussed above under the
section “Summary — Dividend Payment and Exchange Agreement,” on December 27, 2022, we executed the
Dividend Agreement for the benefit of the holders for the Urica Preferred Stock, pursuant to which we agreed to pay cumulative dividends
on the Urica Preferred Stock in shares of our Common Stock.
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 Common Stock and, subject to certain exceptions, to use reasonable best efforts to keep such
registration statement effective under the Securities Act until (i) all Common Stock registered by the registration statement have
been sold, transferred or otherwise disposed of by the Selling Stockholders, (ii) the Common Stock is sold, transferred or otherwise
disposed of pursuant to Rule 144 of the Securities Act, or (iii) the Common Stock has 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 Common Stock.
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 any 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 Common Stock 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.
DESCRIPTION
OF SECURITIES BEING REGISTERED
We are registering 647,000 shares of our Common
Stock issuable in connection with the Dividend Agreement for the benefit of the holders of Urica Preferred Stock, and pursuant to the
terms of the Urica Preferred Stock.
Common Stock
The Company’s Certificate
of Incorporation, as amended, authorizes the Company to issue up to 200,000,000 shares of Common Stock. Our Common Stock is traded on
The Nasdaq Capital Market under the symbol “FBIO.”
The terms, rights, preference
and privileges of the Common Stock are as follows:
Voting Rights
Each holder of Common Stock
is entitled to one vote per share of Common Stock held on all matters submitted to a vote of the stockholders, including the election
of directors. The Company’s certificate of incorporation and bylaws do not provide for cumulative voting rights.
Dividends
Subject to preferences that
may be applicable to any then-outstanding preferred stock, the holders of the Company’s outstanding shares of Common Stock are entitled
to receive dividends, if any, as may be declared from time to time by the Company’s Board of Directors out of legally available
funds.
Liquidation
In the event of the Company’s
liquidation, dissolution or winding up, holders of Common Stock will be entitled to share ratably in the net assets legally available
for distribution to stockholders after the payment of all of the Company’s debts and other liabilities, subject to the satisfaction
of any liquidation preference granted to the holders of any outstanding shares of preferred stock.
Rights and Preference
Holders of the Company’s
Common Stock have no preemptive, conversion or subscription rights, and there is no redemption or sinking fund provisions applicable to
our Common Stock. The rights, preferences and privileges of the holders of Common Stock are subject to, and may be adversely affected
by, the rights of the holders of shares of any series of the Company’s preferred stock that are or may be issued.
Fully Paid and Nonassessable
All of the Company’s
outstanding shares of Common Stock are fully paid and nonassessable.
CERTAIN
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following discussion
summarizes certain U.S. federal income tax considerations of the acquisition, ownership and disposition of the Common Stock offered by
this prospectus but does not purport to be a complete analysis of all potential tax effects. This discussion does not address effects
of other U.S. federal tax laws, such as estate and gift tax laws, or of state, local, non-U.S or other tax considerations that may be
relevant to a purchaser or holder of the Common Stock in light of their particular circumstances. This discussion is based on the U.S.
Internal Revenue Code of 1986, as amended (the “Code”), the Treasury regulations promulgated thereunder, judicial decisions,
and published rulings and administrative pronouncements of the U.S. Internal Revenue Service (the “IRS”), in each case as
of the date hereof. These authorities may change, possibly with retroactive effect, or may be subject to differing interpretations that
may adversely affect a holder of the Common Stock. There can be no assurance the IRS or a court will not take a contrary position to that
discussed below regarding the acquisition, ownership and disposition of the Common Stock.
This discussion is limited
to holders that hold the Common Stock as a capital asset within the meaning of Section 1221 of the Code (generally property held
for investment). This discussion does not describe all of the U.S. federal income tax consequences that may be relevant to a holder in
light of its particular circumstances, including the impact of the alternative minimum tax and of the Medicare contribution tax on net
investment income. In addition, it does not address consequences for holders subject to special rules, including without limitation:
| ● | U.S. expatriates and former citizens or long-term residents of the United States; |
| ● | persons holding the Common Stock as part of a hedge, straddle, conversion, or other integrated transaction; |
| ● | banks, insurance companies, and other financial institutions; |
| ● | brokers, dealers or traders in securities; |
| ● | “controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate
earnings to avoid U.S. federal income tax; |
| ● | S corporations or entities or arrangements that are treated as partnerships for U.S. federal income tax purposes (and investors therein); |
| ● | tax-exempt organizations or governmental organizations; |
| ● | real estate investment trusts or regulated investment companies; |
| ● | U.S. persons whose functional currency is not the U.S. dollar; |
| ● | persons subject to special tax accounting rules; |
| ● | persons who hold or receive the Common Stock pursuant to the exercise of any employee stock option or otherwise as compensation; |
| ● | persons deemed to sell our Common Stock under the constructive sale provisions of the Code; |
| ● | tax-qualified retirement plans, individual retirement accounts or other tax-deferred accounts; and |
| ● | “qualified foreign pension funds” as defined in Section 897(l)(2) of the Code. |
If a partnership (or any
other entity treated as a partnership for U.S. federal income tax purposes) holds the Common Stock, the U.S. federal income tax treatment
of a partner of that partnership generally will depend upon the status of the partner and the activities of the partnership. If you are
a partnership or a partner of a partnership holding the Common Stock, you should consult your tax advisors as to the particular U.S. federal
income tax consequences of holding and disposing of the Common Stock.
This discussion is for
information purposes only and is not tax advice. You should consult your own independent tax advisor concerning the application of the
U.S. federal income tax laws to your particular circumstances as well as any tax consequences for the acquisition, ownership, or disposition
of the Common Stock arising under other U.S. federal tax laws and the laws of any state, local or non-U.S. tax jurisdiction or under any
applicable income tax treaty.
For purposes of this discussion,
a “U.S. holder” is a beneficial owner of our Common Stock that, for U.S. federal income tax purposes, is or is treated as:
| ● | an individual who is a citizen or resident of the United States; |
| ● | a corporation created or organized under the laws of the United States, any state thereof, or the District of Columbia; |
| ● | an estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
| ● | a trust that (i) is subject to the primary supervision of a U.S. court and the control of one or more “United States persons”
(within the meaning of Section 770 1(a)(30) of the Code) or (ii) has a valid election in effect to be treated as a United States
person for U.S. federal income tax purposes. |
A “non-U.S. holder”
is any beneficial owner of our Common Stock that is not a U.S. holder.
U.S. Holders
Distributions in General
If distributions are made
with respect to the Common Stock, such distributions will be treated as dividends to the extent of our current or accumulated earnings
and profits as determined under the Code. Subject to customary conditions and limitations, dividends will be eligible for the dividends-received
deduction in the case of U.S. holders that are (or are treated for U.S. federal income tax purposes) as corporations. Dividends paid to
non-corporate U.S. holders generally will qualify for taxation at preferential rates if those holders meet certain holding period and
other applicable requirements. Dividends received by non-corporate U.S. holders may also be subject to the additional 3.8% tax on net
investment income. Any portion of a distribution that exceeds our current and accumulated earnings and profits will first be applied to
reduce a U.S. holder’s tax basis in the Common Stock, but not below zero. Distributions in excess of our current and accumulated
earnings and profits and in excess of a U.S. holder’s tax basis in its shares will be taxable as gain from the disposition of the
Common Stock, the tax treatment of which is discussed below.
Extraordinary Dividends
Dividends that exceed certain
thresholds in relation to a U.S. holder’s tax basis in the Common Stock could be characterized as “extraordinary dividends”
under Section 1059 of the Code. Corporate U.S. holders that have held our Common Stock for two years or less before the dividend
announcement date and that receive an extraordinary dividend will generally be required to reduce their tax basis in the stock by the
nontaxed portion of the dividend due to the dividends-received deduction. If the amount of reduction exceeds the U.S. holder’s tax
basis in the stock, the excess will be taxable as gain from the disposition of the stock, the tax treatment of which is discussed below.
Non-corporate U.S. holders that receive an extraordinary dividend will be required to treat any losses on the sale of our Common Stock
as long-term capital losses to the extent of the extraordinary dividends such U.S. holders receive that qualify for taxation as the preferential
rates discussed above under “— Distributions in General.” U.S. holders are urged to consult their tax advisors with
respect to the eligibility for and amount of any dividend received deduction and the application of Section 1059 of the Code to any
dividends they receive.
Disposition of Common Stock by
Sale, Exchange or Redemption
Upon any sale or disposition
(other than certain redemptions, as discussed below) of the Common Stock, a U.S. holder generally will recognize capital gain or loss
equal to the difference between the amount realized by the U.S. holder and the U.S. holder’s adjusted tax basis in the Common Stock.
Such capital gain or loss will be long-term capital gain or loss if the U.S. holder’s holding period for the Common Stock is longer
than one year. Non-corporate U.S. holders may be eligible for preferential tax rates on long-term capital gains but also may be subject
to the additional 3.8% tax on net investment income. The deductibility of capital losses is subject to limitations.
A redemption of the Common
Stock will be treated as a sale or exchange described in the preceding paragraph if the redemption, based on the facts and circumstances,
is treated for U.S. federal income tax purposes as (i) a “complete termination” of your interest in the Common Stock,
(ii) a “substantially disproportionate” redemption of your Common Stock, or (iii) is “not essentially equivalent
to a dividend”, each within the meaning of Section 302 of the Code. In determining whether any of these tests has been met,
you must take into account not only the Common Stock and other equity interests that you actually own but also other equity interests
that you constructively own under U.S. federal income tax rules.
If you meet none of the alternative
tests described above, the redemption will be treated as a distribution subject to the rules described under “—Distributions
In General.” If a redemption of the Common Stock is treated as a distribution that is taxable as a dividend, you are urged to consult
your tax advisor regarding the allocation of your tax basis as between the redeemed and remaining shares of Common Stock.
Information Reporting and Backup
Withholding
We or an applicable withholding
agent will report to our U.S. holders and the IRS the amount of dividends (including deemed dividends) paid during each year and the amount
of any tax withheld with respect to the Common Stock. Certain non-corporate U.S. holders may be subject to U.S. backup withholding at
a rate of 28% on payments of dividends on the Common Stock unless the holder furnishes the payor or its agent with a taxpayer identification
number, certified under penalties of perjury, and certain other information or otherwise establishes an exemption from backup withholding.
Backup withholding tax is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund
or a credit against a U.S. holder’s U.S. federal income tax liability, provided the U.S. holder timely furnishes the required information
to the IRS.
Non-U.S. Holders
Distributions
If distributions are made
with respect to the Common Stock, such distributions will be treated as dividends to the extent of our current or accumulated earnings
and profits as determined under the Code and may be subject to withholding as discussed below. Any portion of a distribution that exceeds
our current and accumulated earnings and profits will first be applied to reduce the Non-U.S. holder’s basis in the Common Stock,
but not below zero. If the distribution exceeds our current and accumulated earnings and profits and the Non-U.S. holder’s basis,
the excess will be treated as gain from the disposition of the Common Stock, the tax treatment of which is discussed below.
In addition, if we are classified
as a U.S. real property holding corporation (a “USRPHC”) within the meaning of Section 897(c) of the Code and any
distribution exceeds our current and accumulated earnings and profits, we will need to satisfy our withholding requirements either by
(a) treating the entire distribution (even if in excess of earnings and profits) as a dividend subject to the withholding rules described
below and withhold at a minimum rate of 15% or such lower rate as may be specified by an applicable income tax treaty for distributions
from a USRPHC; or (b) treating (i) only the amount of the distribution equal to our reasonable estimate of our current and accumulated
earnings and profits as a dividend subject to the withholding rules in the following paragraph; and (ii) the excess portion
of the distribution as subject to withholding at a rate of 15% (or such lower rate as may be specified by an applicable income tax treaty),
as if such excess were the result of a sale of shares in a USRPHC, with a credit generally allowed against the Non-U.S. holder’s
U.S. federal income tax liability for the tax withheld from such excess. We believe that we currently are not a USRPHC, and we do not
expect to become a USRPHC for the foreseeable future (see discussion of USRPHCs below under “— Disposition of Common Stock, Including
Redemptions”).
Dividends (including amounts
distributed by a USRPHC and subject to withholding as dividends per the preceding paragraph) paid to a Non-U.S. holder of the Common Stock
will be subject to withholding of U.S. federal income tax at a 30% rate or such lower rate as may be specified by an applicable income
tax treaty. However, dividends that are treated as being effectively connected with the conduct of a trade or business by the Non-U.S.
holder within the United States (and, where a tax treaty applies, are attributable to a permanent establishment maintained by the Non-U.S.
holder in the United States) are not subject to this withholding tax, provided that certain certification and disclosure requirements
are satisfied including completing IRS Form W-8ECI (or other applicable form). Instead, such dividends are subject to U.S. federal
income tax on a net income basis in the same manner as if the Non-U.S. holder were a United States person (as defined under the Code),
unless an applicable income tax treaty provides otherwise. Any such effectively connected dividends received by a foreign corporation
may be subject to an additional “branch profits tax” at a 30% rate or such lower rate as may be specified by an applicable
income tax treaty.
A Non-U.S. holder of the
Common Stock who wishes to claim the benefit of an applicable treaty rate and avoid backup withholding for dividends, as discussed below,
will be required to (i) complete IRS Form W-8BEN or Form W-8BEN-E (or other applicable form) and certify under penalty
of perjury that such holder is not a United States person as defined under the Code and is eligible for treaty benefits, or (ii) if
the Common Stock is held through certain foreign intermediaries, satisfy the relevant certification requirements of applicable Treasury
regulations. A Non-U.S. holder of the Common Stock eligible for a reduced rate of U.S. withholding tax pursuant to an income tax treaty
may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the U.S. Internal Revenue Service.
Disposition of Common Stock, Including
Redemptions
Any gain realized by a Non-U.S.
holder on the disposition of the Common Stock generally will not be subject to U.S. federal income or withholding tax unless:
| ● | the gain is effectively connected with the conduct of a trade or business by the Non-U.S. holder in the United States (and, if required
by an applicable income tax treaty, attributable to a permanent establishment maintained by the Non-U.S. holder in the United States); |
| ● | the Non-U.S. holder is an individual who is present in the United States for 183 days or more in the taxable year of disposition,
and certain other conditions are met; or |
| ● | we are or have been a USRPHC, as defined in Section 897(c) of the Code, and a Non-U.S. holder owned directly or pursuant
to applicable attribution rules at any time during the five-year period ending on the date of disposition more than 5% of the Common
Stock — assuming that the Common Stock is regularly traded on an established securities market, within the meaning
of Section 897(c)(3) of the Code. |
A Non-U.S. holder described
in the first bullet point immediately above will generally be subject to tax on the gain derived from the sale under regular graduated
U.S. federal income tax rates in the same manner as if the Non-U.S. holder were a United States person as defined under the Code, and,
if it is a corporation, may also be subject to branch profits tax equal of 30% (generally applicable to its effectively connected earnings
and profits) or at such lower rate as may be specified by an applicable income tax treaty.
An individual Non-U.S. holder
described in the second bullet point immediately above will be subject to a flat 30% tax (or at such reduced rate as may be provided by
an applicable tax treaty) on the gain derived from the sale, which may be offset by U.S. source capital losses, even if the individual
is not considered a resident of the United States for U.S. federal income tax purposes.
A Non-U.S. holder described
in the third bullet point above will be subject to U.S. federal income tax under regular graduated U.S. federal income tax rates with
respect to the gain realized in the same manner as if the Non-U.S. holder were a United States person as defined under the Code. A corporation
is a USRPHC if it is a U.S. corporation and the fair market value of its U.S. real property interests equals or exceeds 50% of the sum
of the fair market value of its worldwide real property interests and its other assets used or held for use in a trade or business. We
believe that we currently are not a USRPHC for U.S. federal income tax purposes, and we do not expect to become a USRPHC for the foreseeable
future. Our Common Stock will be listed on the NASDAQ Capital Market and we believe that, for as long as we continue to be so listed,
our Common Stock will be treated as regularly traded on an established securities market. However, if we become a USRPHC and our Common
Stock is regularly traded on an established securities market, a Non-U.S. holder generally will be subject to U.S. federal income tax
on any gain from the disposition of such stock if such Non-U.S. holder has owned or is deemed to have owned more than 5% of our Common
Stock, at any time within the shorter of the five-year period preceding the disposition or such holder’s holding period for such
stock.
If a Non-U.S. holder is subject
to U.S. federal income tax on any sale, exchange, redemption (except as discussed below), or other disposition of the Common Stock, the
Non-U.S. holder will recognize capital gain or loss equal to the difference between the amount realized by the Non-U.S. holder and the
Non-U.S. holder’s adjusted tax basis in the Common Stock. Such capital gain or loss will be long-term capital gain or loss if the
Non-U.S. holder’s holding period for the Common Stock is longer than one year. A Non-U.S. holder should consult its own independent
tax advisors with respect to applicable tax rates and netting rules for capital gains and losses. Certain limitations exist on the
deduction of capital losses by both corporate and non-corporate taxpayers.
If a Non-U.S. holder is subject
to U.S. federal income tax on any disposition of the Common Stock, a redemption of shares of the Common Stock will be a taxable event.
If the redemption is treated as a sale or exchange, instead of as a dividend, a Non-U.S. holder generally will recognize capital gain
or loss, equal to the difference between the amount of cash received and fair market value of any property received and the Non-U.S. holder’s
adjusted tax basis in the Common Stock redeemed (except that to the extent that any cash received is attributable to any accrued but unpaid
dividends), and such capital gain or loss will be long-term capital gain or loss if the Non-U.S. holder’s holding period for such
Common Stock exceeds one year,. A payment made in redemption of the Common Stock may be treated as a dividend (subject to taxation as
discussed above under “—Disposition of Common Stock, Including Redemptions”), rather than as payment in
exchange for the Common Stock, in the same circumstances discussed above under “— Disposition of Common Stock, Including
Redemptions.” Each Non-U.S. holder of the Common Stock should consult its own independent tax advisors to determine whether
a payment made in redemption of the Common Stock will be treated as a dividend or as payment in exchange for the Common Stock.
Information reporting and backup
withholding.
We must annually report to
the IRS and to each Non-U.S. holder the amount of dividends (including constructive dividends) paid to such Non-U.S. holder and the tax
withheld with respect to such dividends, regardless of whether withholding was required. Copies of the information returns reporting such
dividends and withholding may also be made available under the provisions of an applicable tax treaty or agreement with the tax authorities
in the country in which the non-U.S. holder resides. U.S. backup withholding will generally apply to the payment of dividends to non-U.S.
holders unless such non-U.S. holders furnish to the payor an IRS Form W-8BEN or Form W-8BEN-E (or other applicable form) or
otherwise establish an exemption.
Payment by a U.S. office
of a broker of the proceeds of a sale of shares of our Common Stock is subject to both backup withholding and information reporting unless
the non-U.S. holder, or beneficial owner thereof, as applicable, certifies that it is a non-U.S. holder on Form W-8BEN or Form W-8BEN-E
(or other suitable substitute or successor form), or otherwise establishes an exemption. Subject to certain exceptions, backup withholding
and information reporting generally will not apply to a payment of proceeds from the sale of shares of our Common Stock if such sale is
effected through a foreign office of a broker, provided that the broker does not have certain U.S. connections. Any amount withheld under
the backup withholding rules from a payment to a non-U.S. holder is allowable as a credit against such holder’s U.S. federal
income tax liability (if any), which may entitle the holder to a refund if in excess of such liability, provided that the holder timely
provides the required information to the IRS. Non-U.S. holders are urged to consult their own tax advisers regarding the application of
backup withholding in their particular circumstances and the availability of and procedure for obtaining an exemption from backup withholding
under current Treasury Regulations.
Foreign Account Tax Compliance
Act.
Sections 1471 to 1474 of
the Code (such sections, and the Treasury Regulations and administrative guidance issued thereunder, commonly referred to as FATCA) impose
a 30% U.S. withholding tax on certain “withholdable payments” made to a “foreign financial institution” or a “nonfinancial
foreign entity.” “Withholdable payments” include payments of dividends and the gross proceeds from a disposition of
certain property (such as shares of our Common Stock), if such disposition occurs after December 31, 2018. In general, if a holder
is a “foreign financial institution” (which includes investment entities such as hedge funds and private equity funds), the
30% withholding tax will apply to withholdable payments made to such holder, unless such holder enters into an agreement with the U.S.
Department of Treasury to collect and provide substantial information regarding its U.S. account holders, including certain account holders
that are foreign entities with U.S. owners, and to withhold 30% on certain “pass-through payments.” If such holder is a “non-financial
foreign entity,” FATCA also generally will impose a withholding tax of 30% on withholdable payments made to such holder unless the
holder provides the withholding agent with a certification that it does not have any “substantial United States owners” or
a certification identifying its direct and indirect substantial United States owners. Intergovernmental agreements between the United
States and a holder’s resident country may modify some of the foregoing requirements.
Although withholding under
FATCA would also have applied to payments of gross proceeds from the sale or other disposition of the Common Stock on or after January 1,
2019, Treasury Regulations proposed in late 2018 eliminate FATCA withholding on payments of gross proceeds entirely. Taxpayers generally
may rely on these proposed Treasury Regulations until final Treasury Regulations are issued.
We will not pay any additional
amounts to holders of the Common Stock in respect of any amounts withheld. Non-U.S. holders should consult their own tax advisers with
respect to the U.S. federal income tax consequences of FATCA on their ownership and disposition of shares of our Common Stock.
Documentation that holders provide in order to be treated as
FATCA compliant may be reported to the IRS and other tax authorities, including information about a holder’s identity, its FATCA
status and if applicable, its direct and indirect U.S. owners. Prospective investors should consult their tax advisers about how information
reporting and the possible imposition of withholding tax under FATCA may apply to their investment in the Common Stock.
PLAN
OF DISTRIBUTION
The Selling Stockholders,
which as used herein includes donees, pledgees, transferees or other successors-in-interest selling shares of Common Stock or interests
in shares of Common Stock received after the date of this prospectus from a Selling Stockholder as a gift, pledge, partnership distribution
or other transfer, may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of Common Stock or interests
in shares of Common Stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions.
These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market
price, at varying prices determined at the time of sale, or at negotiated prices.
The Selling Stockholders may
use any one or more of the following methods when disposing of shares or interests therein:
| ● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| ● | block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and
resell a portion of the block as principal to facilitate the transaction; |
| ● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| ● | an exchange distribution in accordance with the rules of the applicable exchange; |
| ● | privately negotiated transactions; |
| ● | short sales effected after the date the registration statement of which this prospectus is a part is declared
effective by the SEC; |
| ● | through the writing or settlement of options or other hedging transactions, whether through an options
exchange or otherwise; |
| ● | broker-dealers may agree with the Selling Stockholders to sell a specified number of such shares at a
stipulated price per share; |
| ● | a combination of any such methods of sale; and |
| ● | any other method permitted by applicable law. |
The Selling Stockholders may,
from time to time, pledge or grant a security interest in some or all of the shares of Common Stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of Common Stock, from time
to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act amending the list of Selling Stockholders to include the pledgee, transferee or other successors in interest as
Selling Stockholders under this prospectus. The Selling Stockholders also may transfer the shares of Common Stock in other circumstances,
in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale
of our Common Stock or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the Common Stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of our Common Stock short and deliver these securities to close out their short positions, or loan
or pledge the Common Stock to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option
or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which
require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to
the Selling Stockholders from the sale of the Common Stock offered by them will be the purchase price of the Common Stock less discounts
or commissions, if any. Each of the Selling Stockholders reserves the right to accept and, together with their agents from time to time,
to reject, in whole or in part, any proposed purchase of Common Stock to be made directly or through agents. We will not receive any of
the proceeds from this offering.
The Selling Stockholders also
may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act of 1933,
provided that they meet the criteria and conform to the requirements of that rule.
The Selling Stockholders and
any underwriters, broker-dealers or agents that participate in the sale of the Common Stock or interests therein may be “underwriters”
within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale
of the shares may be underwriting discounts and commissions under the Securities Act. Selling Stockholders who are “underwriters”
within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities
Act.
To the extent required, the
shares of our Common Stock to be sold, the names of the Selling Stockholders, the respective purchase prices and public offering prices,
the names of any agents, dealer or underwriter, any applicable commissions or discounts with respect to a particular offer will be set
forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes
this prospectus.
In order to comply with the
securities laws of some states, if applicable, the Common Stock may be sold in these jurisdictions only through registered or licensed
brokers or dealers. In addition, in some states the Common Stock may not be sold unless it has been registered or qualified for sale or
an exemption from registration or qualification requirements is available and is complied with.
We have advised the Selling
Stockholders that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of shares in the market and
to the activities of the Selling Stockholders and their affiliates. In addition, to the extent applicable we will make copies of this
prospectus (as it may be supplemented or amended from time to time) available to the Selling Stockholders for the purpose of satisfying
the prospectus delivery requirements of the Securities Act. The Selling Stockholders may indemnify any broker-dealer that participates
in transactions involving the sale of the shares against certain liabilities, including liabilities arising under the Securities Act.
We have agreed to indemnify
the Selling Stockholders against liabilities, including liabilities under the Securities Act and state securities laws, relating to the
registration of the shares offered by this prospectus.
We have agreed with the Selling
Stockholders to keep the registration statement of which this prospectus constitutes a part effective until the earlier of (1) such
time as all of the shares covered by this prospectus have been disposed of pursuant to and in accordance with the registration statement
or (2) the date on which all of the shares may be sold without restriction pursuant to Rule 144 of the Securities Act.
LEGAL
MATTERS
Certain legal matters will
be passed upon for us by McGuireWoods LLP, Charlotte, North Carolina. Additional legal matters may be passed upon for us or any underwriters,
dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated
financial statements of Fortress Biotech, Inc. as of December 31, 2022 and 2021, and for each of the years in the two-year period ended December 31, 2022, have been incorporated by reference in this Prospectus, in reliance on the report of KPMG LLP,
independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as expert in
accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We have filed with the
SEC a registration statement on Form S-3 under the Securities Act with respect to the Common Stock offered hereby. This prospectus
does not contain all of the information set forth in the registration statement and the exhibits and schedules thereto. For further information
with respect to the Company and its Common Stock, reference is made to the registration statement and the exhibits and any schedules
filed therewith. Statements contained in this prospectus as to the contents of any contract or other document referred to are not necessarily
complete and in each instance, if such contract or document is filed as an exhibit, reference is made to the copy of such contract or
other document filed as an exhibit to the registration statement, each statement being qualified in all respects by such reference. The
SEC maintains an website at www.sec.gov, from which interested persons can electronically access the registration statement, including
the exhibits and any schedules thereto, and other reports, proxy and information statements and other information regarding us and other
issuers that file with the SEC.
We are subject to the information
reporting requirements of the Exchange Act, and we file periodic reports and other information with the SEC. All documents filed with
the SEC are available for inspection and copying at the addresses set forth above. We also maintain an internet site at www.fortressbiotech.com.
Our website and the information contained therein or connected thereto shall not be deemed to be incorporated into this prospectus or
the registration statement of which it forms a part.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate
by reference” information we file with it into this prospectus, which means that we can disclose important information to you by
referring you to other documents. The information incorporated by reference is considered to be part of this prospectus, and information
that we file later with the SEC and incorporate by reference will automatically update and supersede this information. We incorporate
by reference into this prospectus the documents listed below and all future information filed (rather than furnished) by us with the
SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act between the date of this prospectus and the date all securities
to which this prospectus relates have been sold or the offering is otherwise terminated and also between the date of the initial registration
statement and prior to the effectiveness of the registration statement, except for information “furnished” under Items 2.02,
7.01 or 9.01 on Form 8-K or other information “furnished” to the SEC which is not deemed filed and not incorporated
in this prospectus:
|
(a) |
our Annual Report on Form 10-K for the year
ended December 31, 2022, filed with the SEC on March 31, 2023; and |
Any statement contained in
this prospectus or in a document incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in this prospectus modifies or supersedes such statement. Any statement so
modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will furnish without charge
to you, on written or oral request, a copy of any or all of the documents incorporated by reference, including exhibits to these documents.
You should direct any requests for documents in writing to: Fortress Biotech, Inc., 1111 Kane Concourse Suite 301 Bay Harbor
Islands, FL 33154, Attention: Corporate Secretary, tel: 781-652-4500. These documents are also available on the Investors section of our
website, which is located at www.fortressbiotech.com, or as described under “Where You Can Find More Information” above. The
reference to our website address does not constitute incorporation by reference of the information contained on our website.
You should rely only on information
contained in, or incorporated by reference into, this prospectus. We have not authorized anyone to provide you with information different
from that contained in this prospectus or incorporated by reference in this prospectus. We are not making offers to sell the securities
in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation
is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
![](https://content.edgar-online.com/edgar_conv_img/2023/04/07/0001104659-23-043152_tm2310970d1_s3-img02.jpg)
Fortress Biotech, Inc.
647,000 Shares of Common Stock
PROSPECTUS
, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
| |
Amount
to Be Paid | |
U.S. Securities and Exchange Commission
registration fee | |
$ | 53.55 | |
Legal fees and expenses | |
$ | 50,000.00 | |
Accounting fees and expenses | |
$ | 25,000.00 | |
Miscellaneous | |
$ | 0.00 | |
Total | |
$ | 125,053.55 | (1) |
(1) Fees will be paid or reimbursed by our subsidiary, Urica Therapeutics,
Inc.
Item 15. Indemnification of Directors and Officers
Under the General Corporation
Law of the State of Delaware (“DGCL”), a corporation may include provisions in its certificate of incorporation that will
relieve its directors of monetary liability for breaches of their fiduciary duty to the corporation, except under certain circumstances,
including a breach of the director’s duty of loyalty, acts or omissions of the director not in good faith or which involve intentional
misconduct or a knowing violation of law, the approval of an improper payment of a dividend or an improper purchase by the corporation
of stock or any transaction from which the director derived an improper personal benefit. The Company’s Amended and Restated Certificate
of Incorporation eliminates the personal liability of directors to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director with certain limited exceptions set forth in the DGCL.
Section 145 of the DGCL
grants to corporations the power to indemnify each officer and director against liabilities and expenses incurred by reason of the fact
that he or she is or was an officer or director of the corporation if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was unlawful. The Company’s Amended and Restated Certificate of Incorporation
and Bylaws provide for indemnification of each officer and director of the Company to the fullest extent permitted by the DGCL. Section 145
of the DGCL also empowers corporations to purchase and maintain insurance on behalf of any person who is or was an officer or director
of the corporation against liability asserted against or incurred by him in any such capacity, whether or not the corporation would have
the power to indemnify such officer or director against such liability under the provisions of Section 145 of the DGCL.
Item 16. Exhibits and Financial Statement Schedules
The exhibits to the Registration
Statement are listed in the Exhibit Index attached hereto and incorporated by reference herein.
EXHIBIT INDEX
| * | Previously filed. |
| † | Filed herewith. |
Item 17. Undertakings
| (a) | The undersigned registrant hereby undertakes: |
| 1. | To file, during any period in which offers or sales are being made, a post-effective amendment to this
registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act 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. 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 percent 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 (i),
(ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the registration statement, or, is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
| 2. | That, for the purpose of determining any liability under the Securities Act 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. |
| 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. |
| 5. | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(A) Each prospectus filed by the
registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(B) Each prospectus required to be
filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
| 6. | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any
purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required
to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’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 benefits 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. |
| (h) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, 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 of whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933, as amended, and will be governed by the final adjudication of such issue. |
| (i) | The undersigned registrant hereby undertakes that: |
| (1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from
the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared effective. |
| (2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment
that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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.
|
FORTRESS BIOTECH, INC. |
|
|
|
April 7, 2023 |
By: |
/s/ Lindsay A. Rosenwald, M.D. |
|
|
Lindsay A. Rosenwald, M.D.
Chairman, President and Chief Executive Officer
(Principal Executive Officer) |
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 April 7, 2023.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Lindsay A. Rosenwald, M.D. |
|
Chairman
of the Board of Directors, |
|
April
7, 2023 |
Lindsay
A. Rosenwald, M.D.
|
|
President
and Chief Executive Officer
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/
* |
|
Chief
Financial Officer |
|
April
7, 2023 |
David
Jin |
|
(Principal
Financial Officer and Principal
Accounting Officer) |
|
|
|
|
|
|
|
/s/
* |
|
Vice
Chairman of the Board of Directors |
|
April
7, 2023 |
Eric
K. Rowinsky, M.D. |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Executive
Vice Chairman, Strategic |
|
April
7, 2023 |
Michael
S. Weiss |
|
Development
and Director |
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
April
7, 2023 |
Jimmie
Harvey, Jr., M.D. |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
April
7, 2023 |
Malcolm
Hoenlein |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
April
7, 2023 |
Dov
Klein |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
April
7, 2023 |
J.
Jay Lobell |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
April
7, 2023 |
Kevin
L. Lorenz, J.D. |
|
|
|
|
|
|
|
|
|
/s/
* |
|
Director |
|
April
7, 2023 |
Lucy
Lu, M.D. |
|
|
|
|
* By: | /s/ Lindsay A. Rosenwald,
M.D. | |
Name: | Lindsay A. Rosenwald, M.D. | |
Title: | Attorney-in-Fact | |
| | |
April 7, 2023 | |
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