Rafael Holdings, Inc S-4/A, filed Feb 13, 2025
Rafael Holdings, Inc. (RFL)
As filed with the Securities and Exchange Commission on February 13, 2025
Registration No. 333-282558
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
AMENDMENT NO. 5
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
RAFAEL HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
__________________________
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Delaware |
6719 |
82-2296593 |
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(State or Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer |
520 Broad Street
Newark, New Jersey 07102
Telephone: (212) 658-1450
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
__________________________
William Conkling
Chief Executive Officer
520 Broad Street
Newark, New Jersey 07102
Telephone: (212) 658-1450
(Name, address, including zip code, and telephone number, including area code, of agent for service)
__________________________
With copies to:
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Dov T. Schwell, Esq. |
Alison Newman, Esq. Fox Rothschild LLP |
N. Scott Fine Joshua M. Fine |
__________________________
Approximate date of commencement of the proposed sale of the securities to the public: As soon as practicable after this registration statement becomes effective and upon completion of the merger and transactions described in the enclosed proxy statement/prospectus.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended, 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(d) 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. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer |
☐ |
Accelerated filer |
☐ |
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Non-accelerated filer |
☒ |
Smaller reporting company |
☒ |
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Emerging growth company |
☐ |
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. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
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, as amended, or until the registration statement shall become effective on such dates as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Pre-Effective Amendment No. 5 (this “Amendment”) to the Registration Statement on Form S-4 of Rafael Holdings, Inc. (File No. 333-282558) (the “Registration Statement”) is being filed as an exhibit-only filing to file the opinion of Schwell Wimpfheimer & Associates LLP and consent for Schwell, Wimpfheimer & Associates (included in its opinion in Exhibit 5.1), filed herewith as Exhibit 5.1 and the consents of Cohn Reznick LLP filed herewith as Exhibits 23.2 and 23.3 (the “Amendment”). Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 21 of Part II of the Registration Statement, the signature pages to the Registration Statement, the opinion filed herewith as Exhibit 5.1 and the consents filed herewith as Exhibits 23.2 and 23.3. The prospectus and the balance of Part II of the Registration Statement are unchanged and have been omitted.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
EXHIBIT INDEX
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Exhibit No. |
Description |
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2.1†** |
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2.2** |
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2.3** |
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3.1 |
Amended and Restated Certificate of Incorporation of Rafael Holdings, Inc.(2) |
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3.2 |
Third Amended and Restated By-Laws of Rafael Holdings, Inc.(3) |
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5.1* |
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10.1+ |
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10.2 |
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10.3 |
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10.4 |
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10.5** |
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10.6+** |
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10.7+** |
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10.8+** |
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21.1 |
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23.1* |
Consent for Schwell, Wimpfheimer & Associates (included in its opinion in Exhibit 5.1) |
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23.2* |
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23.3* |
Consent of CohnReznick LLP as to Cornerstone Pharmaceuticals, Inc. |
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23.4** |
Consent of WithumSmith+Brown, PC as to Cyclo Therapeutics, Inc. |
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24.1** |
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99.1** |
Opinion of Cassel Salpeter & Co LLC (attached as Annex E to the joint proxy statement/prospectus) |
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99.2** |
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99.3** |
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99.4** |
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99.5** |
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99.6** |
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107** |
____________
* Filed herewith.
† The schedules and exhibits to this exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request.
** Previously filed.
+ Management contract or compensatory plan or arrangement.
(1) Incorporated by reference to Exhibit 2.1 to Form 8-K, filed August 22, 2024.
(2) Incorporated by reference to Exhibit 3.1 to Form 10-12G/A, filed March 26, 2018.
(3) Incorporated by reference to Exhibit 3.1 to Form 8-K, filed June 14, 2022.
II-1
(4) Incorporated by reference to Exhibit A to Rafael’s Definitive Proxy Statement, filed November 28, 2022.
(5) Incorporated by reference to Exhibit 10.1 to Form 8-K, filed August 22, 2024.
(6) Incorporated by reference to Exhibit 10.3 to Form 8-K, filed August 22, 2024.
(7) Incorporated by reference to Exhibit 10.2 to Form 8-K, filed August 22, 2024.
(8) Incorporated by reference to Exhibit 21.01 to Form 10-K, filed October 30, 2023.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Amendment No. 5 to registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Newark, State of New Jersey, on February 13, 2025.
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RAFAEL HOLDINGS, INC. |
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By: |
/s/ William Conkling |
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Name: |
William Conkling |
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Title: |
Chief Executive Officer |
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 5 to registration statement has been signed by the following persons in the capacities and on the dates indicated below.
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Signature |
Titles |
Date |
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/s/ William Conkling |
President and Chief Executive Officer |
February 13, 2025 |
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William Conkling |
(Principal Executive Officer) |
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/s/ David Polinsky |
Chief Financial Officer |
February 13, 2025 |
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David Polinsky |
(Principal Financial Officer and Principal Accounting Officer) |
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* |
Director, Chairman of the Board and |
February 13, 2025 |
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Howard S. Jonas |
Executive Chairman |
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* |
Director |
February 13, 2025 |
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Susan Bernstein |
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* |
Director |
February 13, 2025 |
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Stephen Greenberg |
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* |
Director |
February 13, 2025 |
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Dr. Mark Stein |
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* |
Director |
February 13, 2025 |
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Dr. Michael J. Weiss |
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* By: |
/s/ William Conkling |
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William Conkling, |
II-3
Exhibit 5.1
February 13, 2025
Rafael Holdings, Inc.
520 Broad Street
Newark, NJ 07102
| Re: |
Rafael Holdings, Inc. —Registration Statement on Form S-4 (Registration No. 333-282558) |
Ladies and Gentlemen:
We have acted as counsel to Rafael Holdings, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-4 (Registration No. 333-282558) (the “Registration Statement”), relating to the registration of shares (the “Registered Shares”) of the Company’s Class B common stock, par value $0.01 per share (the “Class B Common Stock”), warrants to purchase shares of Class B Common Stock (the “Warrants”) and shares of Class B Common Stock underlying the Warrants (the “Warrant Shares”). The Registered Shares, the Warrants and the Warrant Shares are to be issued pursuant to the terms of the Agreement and Plan of Merger, dated as of August 21, 2024, as amended as of December 18, 2024 and February 4, 2025 (the “Merger Agreement”), by and among the Company; Tandem Therapeutics, Inc., a Nevada corporation and a wholly-owned subsidiary of the Company (“First Merger Sub”); Tandem Therapeutics, LLC, a Nevada limited liability company and a wholly-owned subsidiary of the Company (“Second Merger Sub”); and Cyclo Therapeutics, Inc., a Nevada corporation (“Cyclo”) which provides, among other things, for the merger of First Merger Sub with and into Cyclo followed by the merger of Cyclo (as the surviving company of the merger with First Merger Sub) with and into Second Merger Sub with Second Merger Sub being the surviving entity (collectively, the “Merger”). As a result of the Merger, Cyclo is intended to become a wholly-owned limited liability company subsidiary of the Company. The Registered Shares consist of shares of Class B Common Stock issuable at the effective time of the Merger (each, a “Merger Share”) pursuant to Section 1.5 of the Merger Agreement in exchange for shares of Cyclo common stock outstanding at the effective time of the Merger. The Warrants consist of outstanding public warrants of Cyclo being amended to be exercisable for shares of Class B Common Stock and assumed by the Company in the Merger pursuant to Section 1.6 of the Meger Agreement, and the Warrant Shares consist of shares of Class B Common Stock underlying the Warrants.
In connection with the opinions rendered herein, we have examined instruments, documents, certificates and records which we have deemed relevant and necessary for the basis of our opinions hereinafter expressed including (1) the Registration Statement, (2) the Merger Agreement, (3) the Form of Warrant, (4) the Company’s Amended and Restated Certificate of Incorporation, (5) the Company’s Third Amended and Restated Bylaws, (6) certain resolutions of the Board of Directors of the Company and (7) such other documents, corporate records, and instruments as we have deemed necessary solely for purposes of enabling us to render the opinions set forth herein.
In our examination, we have assumed the genuineness of all signatures, including signatures made and/or transmitted using electronic signature technology (e.g., via DocuSign or similar electronic signature technology), that any such signed electronic record shall be valid and as effective to bind the party so signing as a paper copy bearing such party’s handwritten signature, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as certified, photocopies or digital copies, the authenticity of the originals of such latter documents, the accuracy and completeness of all documents and records reviewed by us, the accuracy, completeness and authenticity of each certificate issued by any government official, office or agency and the absence of change in the information contained therein from the effective date of any such certificate. As to certain matters of fact, both expressed and implied, we have relied upon representations, statements or certificates of officers of the Company.
On the basis of such examination, we are of the opinion that:
| 1. | Each Merger Share will be validly issued, fully paid and non-assessable when (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act of 1933, as amended (the “Securities Act”), (ii) the Merger shall have become effective under the Nevada Business Corporation Act (“NBCA”) and (iii) a certificate representing such Merger Share shall have been duly executed, countersigned, registered and delivered to the person entitled thereto or, if the Merger Share is to be issued in uncertificated form, the Company’s books shall reflect the issuance of such Merger Share to the person entitled thereto, in each case in accordance with the terms of the Merger Agreement. |
| 2. | Each Warrant will be validly issued and constitute a binding obligation of the Company when (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act, (ii) the Merger shall have become effective under the NBCA and (iii) a certificate representing such Warrant shall have been duly executed, registered and delivered to the person entitled thereto or the Warrant Agent (as such term is defined in the Warrant). |
| 3. | Each Warrant Share, if, as and when issued in accordance with the terms of a Warrant, will be validly issued, fully paid and non-assessable when (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act, (ii) the Merger shall have become effective under the NBCA, and (iii) a certificate representing such Warrant Share shall have been duly executed, countersigned, registered and delivered to the person entitled thereto or, if the Warrant Share is to be issued in uncertificated form, the Company’s books shall reflect the issuance of such Warrant Share to the person entitled thereto, in each case in accordance with the terms of the Merger Agreement and the Warrant. |
The opinion set forth above is subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought; (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification or contribution is contrary to public policy; and (iv) we express no opinion concerning the enforceability of any waiver of rights or defenses with respect to stay, extension or usury laws. Our opinion is limited to the General Corporation Law of the State of Delaware and the federal laws of the United States, and we express no opinion with respect to the laws of any other jurisdiction.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein after the Registration Statement has been declared effective by the Commission.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
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Very truly yours, | |
| /s/Schwell Wimpfheimer and Associates LLP | |
| Schwell Wimpfheimer and Associates LLP |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Amendment No. 5 to the Registration Statement on Form S-4 (File No. 333-282558) and related Prospectus of Rafael Holdings, Inc., of our report dated November 6, 2024, except for Notes 1 and 27, as to which the date is December 19, 2024, with respect to the consolidated financial statements of Rafael Holdings, Inc. as of July 31, 2024 and 2023 and for the years then ended, which report is included in the amended Annual Report on Form 10-K/A of Rafael Holdings, Inc. for the year ended July 31, 2024, filed with the Securities and Exchange Commission on December 20, 2024.
We also consent to the reference to our firm under the caption “Experts.”
/s/ CohnReznick LLP
New York, New York
February 13, 2025
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Amendment No.5 to the Registration Statement on Form S-4 (File No. 333-282558) and related Prospectus of Rafael Holdings, Inc., of our report dated May 16, 2024, with respect to the consolidated financial statements of Cornerstone Pharmaceuticals, Inc. as of July 31, 2023 and 2022 and for the years then ended, which report is included in the Form 8-K/A of Rafael Holdings, Inc., filed with the Securities and Exchange Commission on May 23, 2024. Our audit report includes an emphasis-of-matter paragraph related to Cornerstone Pharmaceuticals, Inc’s ability to continue as a going concern.
We also consent to the reference to our firm under the caption “Experts.”
/s/ CohnReznick LLP
New York, New York
February 13, 2025