Amendment: SEC Form SCHEDULE 13D/A filed by Avenue Therapeutics Inc.
$ATXI
Biotechnology: Pharmaceutical Preparations
Health Care
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549 |
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
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Avenue Therapeutics, Inc. (Name of Issuer) |
Common Stock, $0.0001 Par Value (Title of Class of Securities) |
05360L403 (CUSIP Number) |
Fortress Biotech, Inc. 1111 Kane Concourse, Suite 301, Bay Harbor Islands, FL, 33154 718-652-4500 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) |
12/31/2024 (Date of Event Which Requires Filing of This Statement) |
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the
Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other
provisions of the Act (however, see the Notes).
SCHEDULE 13D
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| CUSIP No. | 05360L403 |
| 1 |
Name of reporting person
Fortress Biotech, Inc. | ||||||||
| 2 | Check the appropriate box if a member of a Group (See Instructions)
(a)
(b)
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| 3 | SEC use only | ||||||||
| 4 |
Source of funds (See Instructions)
OO | ||||||||
| 5 |
Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)
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| 6 | Citizenship or place of organization
DELAWARE
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| Number of Shares Beneficially Owned by Each Reporting Person With: |
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| 11 | Aggregate amount beneficially owned by each reporting person
295,022.00 | ||||||||
| 12 | Check if the aggregate amount in Row (11) excludes certain shares (See Instructions)
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| 13 | Percent of class represented by amount in Row (11)
13.8 % | ||||||||
| 14 | Type of Reporting Person (See Instructions)
CO, HC |
Comment for Type of Reporting Person:
Sole Voting Power includes 296 shares of Issuer's common stock underlying Warrants and 250,000 shares of the Issuer's Class A preferred stock (both of which are described further below). The Issuer's Class A preferred stock is identical to its common stock other than as to voting rights, conversion rights and the PIK Dividend (as defined below) rights. Each share of the Issuer's Class A preferred stock is entitled to the number of votes per share that is equal to one and one-tenth (1.1) times a fraction, the numerator of which is the sum of (A) the number of shares of the Issuer's outstanding common stock and (B) the whole number of shares of the Issuer's common stock into which any shares of outstanding Class A preferred stock are convertible and the denominator of which is the number of shares of outstanding Class A preferred stock. All shares of the Class A preferred stock are convertible into 222 shares of the Issuer's common stock. Thus, the Class A preferred stock will at all times constitute a voting majority. The Reporting Person owns all outstanding shares of the Issuer's Class A preferred stock. As holders of Class A preferred stock, the Reporting Person will receive on each January 1 (each a 'PIK Dividend Payment Date') until the date all outstanding Class A preferred stock is converted into common stock or redeemed (and the purchase price is paid in full), pro rata per share dividends paid in additional fully paid and nonassessable shares of Issuer common stock ('PIK Dividends') such that the aggregate number of shares of common stock issued pursuant to such PIK Dividend is equal to two and one-half percent (2.5 percent) of the Issuer's fully-diluted outstanding capitalization on the date that is one (1) business day prior to any PIK Dividend Payment Date. An aggregate 296 shares of Issuer common stock are issuable under Common Stock Warrants dated July 15, 2012, as amended by the Amended and Restated Common Stock Warrant dated December 12, 2016, issued by the Reporting Person to Lindsay A. Rosenwald, M.D., the Reporting Person's Chairman, President and Chief Executive Officer and Michael S. Weiss, the Reporting Person's Executive Vice Chairman, Strategic Development, pursuant to the Fortress Biotech, Inc. Long-Term Incentive Plan (the 'Warrants'). The Warrants, which have an exercise price of $492.75 per share, are exercisable until July 15, 2035. The Reporting Person must reserve from its holdings of the Issuer's common stock the shares underlying the Warrants until the Warrants are exercised. The foregoing description of the Warrants is not complete and is qualified in its entirety by reference to the full text of the form of the Amended and Restated Common Stock Warrant which is attached as Exhibit 7.01 and incorporated herein by reference.
Sole Dispositive Power excludes the 296 shares of Issuer's common stock underlying the Warrants.
Shared Dispositive Power consists solely of the 296 shares of Issuer's common stock underlying the Warrants.
All percentage calculations set forth herein are based upon 1,911,633 shares of the Issuer's common stock as of November 11, 2024 as reported by the Issuer on its Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 14, 2024, the assumed conversion of the Class A preferred stock, the issuance of 112,850 shares of the Issuer's common stock pursuant to that certain Subscription and Forgiveness Agreement, dated as of November 13, 2024, between the Reporting Person and the Issuer, 12,662 shares of Issuer's common stock issued as Offering Equity Grants (defined below) and the 101,935 shares of Issuer's common stock issued as an Annual Equity Grant (defined below).
This Amendment No. 6 to Schedule 13D (this 'Amendment No. 6') amends and supplements the Schedule 13D filed on October 19, 2017 (as amended and supplemented through the date of this Amendment No. 6, collectively, the 'Schedule 13D') relating to the Common Stock of Avenue Therapeutics, Inc. (the 'Issuer'), by Fortress Biotech, Inc. (the 'Reporting Person'). Except as specifically provided herein, this Amendment No. 6 does not modify any of the information previously reported on the Schedule 13D. Capitalized terms used but not defined herein shall have the same meanings as are ascribed to them in the Schedule 13D, as applicable.
SCHEDULE 13D
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| Item 1. | Security and Issuer |
| (a) | Title of Class of Securities:
Common Stock, $0.0001 Par Value |
| (b) | Name of Issuer:
Avenue Therapeutics, Inc. |
| (c) | Address of Issuer's Principal Executive Offices:
1111 Kane Concourse, Suite 301, Bay Harbor Islands,
FLORIDA
, 33154. |
| Item 2. | Identity and Background |
| (a) | This Schedule 13D/A is being filed on behalf of the Reporting Person pursuant to Rule 13d-1 of Regulation D-G under the Act. |
| (b) | The address of the Reporting Person's principal business and principal office is 1111 Kane Concourse, Suite 301, Bay Harbor Islands, Florida 33154. |
| (c) | The principal business of the Reporting Person is acquiring, developing and commercializing novel pharmaceutical and biotechnology products both within the Reporting Person and through certain of its subsidiary companies. |
| (d) | During the last five years, the Reporting Person has not been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors). |
| (e) | During the last five years, the Reporting Person has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in it being subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. |
| (f) | The Reporting Person is organized under the laws of the state of Delaware. |
| Item 3. | Source and Amount of Funds or Other Consideration |
The Reporting Person is filing this Schedule 13D as a result of the issuance by the Issuer of: (i) 12,662 shares of the Issuer's common stock as Offering Equity Grants under the Founders Agreement (defined below); and (ii) 101,935 shares of the Issuer's common stock as an Annual Equity Grant (defined below). | |
| Item 4. | Purpose of Transaction |
The Reporting Person is party to that certain Amended and Restated Founders Agreement with the Issuer (as amended, the "Founders Agreement"), in connection with the Issuer's formation. Pursuant to the Founders Agreement, the Issuer pays to the Reporting Person an equity fee in the form of Issuer common stock equal to two and one-half percent (2.5%) of the gross amount of any Issuer equity or debt financing (the "Offering Equity Grant").
Pursuant to the Issuer's Third Amended and Restated Certificate of Incorporation (as amended, the "Charter"), the Issuer also issues annually to the Reporting Person shares of common stock equal to two and one-half percent (2.5%) of the fully-diluted outstanding equity of the Issuer, as measured as of the date of such issuance (the "Annual Equity Grant").
The foregoing description of the Charter and Founders Agreement are qualified in its entirety by reference to the full text of the Charter and Founders Agreement which are incorporated herein by reference as Exhibits 7.01 and 7.03. | |
| Item 5. | Interest in Securities of the Issuer |
| (a) | The Reporting Person is the beneficial owner of 295,022 shares of the Issuer's common stock (including 250,000 shares of the Issuer's Class A preferred stock, which are convertible into 222 shares of the Issuer's common stock), representing 13.8 percent of all outstanding shares of the Issuer's common stock. |
| (b) | The Reporting Person has sole voting power of 295,022 shares of the Issuer's common stock (including 250,000 shares of the Issuer's Class A preferred stock, which are convertible into 222 shares of the Issuer's common stock). |
| (c) | Not applicable. |
| (d) | Except with respect to the Warrants described in the Comments, no person has the power to direct the receipt of dividends on or the proceeds of sales of, the shares of common stock owned by the Reporting Person. |
| (e) | Not applicable. |
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer |
Reference is made to the Warrants in the Comments above. | |
| Item 7. | Material to be Filed as Exhibits. |
Exhibit 7.01 Third Amended and Restated Certificate of Incorporation of Avenue Therapeutics, Inc., filed as Exhibit 3.1 to Form 8-K filed on June 27, 2017 (File No. 001-38114) and incorporated herein by reference.*
Exhibit 7.02 Form of Common Stock Warrant filed as Exhibit 4.2 to Form 10-12G filed by the Issuer with the SEC on January 12, 2017 (File No. 000-55556) and incorporated herein by reference.*
Exhibit 7.03 Amended and Restated Founders Agreement between Fortress Biotech, Inc. and Avenue Therapeutics, Inc., dated September 13, 2016, incorporated by reference to Exhibit 10.2 to the Form 10-12G filed by the Issuer with the SEC on January 12, 2017 (File No. 000-55556).*
* Previously filed. |
| SIGNATURE | |
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
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