Securities Registration: Employee Benefit Plan (s-8)
November 05 2020 - 4:08PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on November 5, 2020
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Provention
Bio, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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81-5245912
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer
Identification No.)
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55
Broad Street
Red
Bank, New Jersey 07701
(Address
of Principal Executive Offices) (Zip Code)
Provention
Bio, Inc. 2020 Inducement Plan
(Full
title of the plan)
Ashleigh
Palmer
Chief
Executive Officer
Provention
Bio, Inc.
55
Broad Street
Red
Bank, New Jersey 07701
(908)
336-0360
(Name,
address and telephone number, including area code, of agent for service)
with
copies to:
Christopher
Comeau
Thomas
Danielski
Ropes
& Gray LLP
800
Boylston Street
Boston,
Massachusetts 02199
(617)
951-7000
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 [X]
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Non-accelerated
filer [ ]
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Smaller
reporting company [X]
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Emerging
growth company [X]
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
[X]
CALCULATION
OF REGISTRATION FEE
Title of securities to be
registered
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Amount to be
registered (1)
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Proposed
maximum
offering price
per share (2)
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Proposed
maximum
aggregate
offering price (2)
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Amount of
registration fee (2)
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Common Stock, $0.0001 par value
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2,000,000
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(3)
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$
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11.78
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$
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23,560,000
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$
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2,570.40
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”),
this Registration Statement includes any additional shares of the registrant’s
common stock that may be issued pursuant to anti-dilution provisions contained in the
Provention Bio, Inc. 2020 Inducement Plan (the “Inducement Plan”).
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(2)
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Pursuant
to Rules 457(c) and 457(h) under the Securities Act, the registration fee was computed
on the basis of the average of the high and low prices of the registrant’s common
stock on The Nasdaq Global Select Market on October 30, 2020.
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(3)
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Represents
shares of the registrant’s common stock reserved for future issuance under the
Inducement Plan.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
As
permitted by Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement
omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be delivered
to the participants of the Provention Bio, Inc. 2020 Inducement Plan, as required by Rule 428(b) under the Securities Act. Such
documents are not being filed with the Securities and Exchange Commission (the “SEC”) as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
The
following documents filed by the Registrant with the SEC are incorporated herein by reference, 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:
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a)
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The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31,
2019, as filed with the SEC on March 12, 2020, as amended by Amendment No. 1 to the Registrant’s
Annual Report on Form 10-K/A for the fiscal year ended December 31, 2019, as filed with
the SEC on April 8, 2020, as further amended by Amendment No. 2 to the Registrant’s
Annual Report on Form 10-K/A for the fiscal year ended December 31, 2019, as filed with
the SEC on August 6, 2020.
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b)
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The
Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March
31, 2020, as filed with the SEC on May 7, 2020, as amended by Amendment No. 1 to the
Registrant’s Quarterly Report on form 10-Q/A for the quarterly period ended March
31, 2020, as filed with the SEC on August 6, 2020.
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c)
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The
Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended June
30, 2020, as filed with the SEC on August 6, 2020.
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d)
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The
Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended September
30, 2020, as filed with the SEC on November 5, 2020.
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e)
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The
Registrant’s Current Reports on Form 8-K, as filed with the SEC on January 8, 2020,
May 20, 2020, June 11, 2020, June 15, 2020, June 18, 2020, June 30, 2020, July 16, 2020,
August 11, 2020 and October 30, 2020.
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f)
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The
description of the Registrant’s common stock contained in the Registrant’s
Registration Statement on Form 8-A (File No. 001-38552), as filed with the SEC on June
22, 2018, including any amendments or reports filed for the purpose of updating such
description, including Exhibit 4.4 to the Registrant’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2019.
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All
documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment to this Registration Statement
that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.
Any statement contained herein or in a documents incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in
any subsequently filed document which also is incorporated or is deemed to be incorporated by reference herein modifies or supersedes
such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
part of this Registration Statement. Notwithstanding the foregoing, information “furnished” under Items 2.02, 7.01
or 9.01 of any Current Report on Form 8-K, including the related exhibits, is not incorporated by reference in this Registration
Statement or any related prospectus.
Item
4. Description of Securities
Not
applicable.
Item
5. Interests of Named Experts and Counsel
Not
applicable.
Item
6. Indemnification of Directors and Officers
The
Registrant’s Second Amended and Restated Certificate of Incorporation contains a provision that eliminates, to the maximum
extent permitted by the General Corporation Law of the State of Delaware, the personal liability of directors for monetary damages
for breach of their fiduciary duties as a director or otherwise. The Registrant’s Amended and Restated Bylaws provide that
the Registrant shall indemnify its directors and officers to the fullest extent permitted by the General Corporation Law of the
State of Delaware.
Section
145 of the General Corporation Law of the State of Delaware provides that a corporation may indemnify any person made a party
to an action, suit or proceeding by reason of the fact that he or she was a director, officer, employee or agent of the corporation
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person 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 the person’s conduct was unlawful,
except that, in the case of an action by or in right of the corporation, no indemnification may generally be made in respect of
any claim as to which such person is adjudged to be liable to the corporation.
The
Registrant has entered into and intends to continue to enter into indemnification agreements with its directors and officers,
in addition to the indemnification provided for in the Registrant’s Amended and Restated Bylaws.
The
Registrant maintains insurance on behalf of any person who is or was a director or officer of the Registrant against any loss
arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
Item 8. Exhibits
Item
9. Undertakings
The
undersigned Registrant hereby undertakes:
(1)
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To
file, during any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement:
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(i)
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to include
any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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) under the Securities Act if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration statement;
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(iii)
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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;
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provided,
however, that paragraphs (1)(i) and (1)(ii) 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.
(2)
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That,
for the purpose of determining any liability under the Securities Act, 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.
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(3)
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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.
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The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.
Insofar
as indemnification for liabilities arising under the Securities Act 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
Commission such indemnification is against public policy as expressed in the Securities Act 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 whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Red Bank, State of New Jersey, on November 5, 2020.
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Provention Bio, Inc.
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By:
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/s/
Ashleigh Palmer
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Ashleigh
Palmer
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Chief
Executive Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Ashleigh Palmer, Andrew Drechsler and Heidy King-Jones, and each
of them acting individually, his or her true and lawful attorney-in-fact and agent with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents,
or their substitutes, may lawfully do or cause to be done by virtue hereof.
*
* * *
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature
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Title
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Date
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/s/
Ashleigh Palmer
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Chief
Executive Officer and Director
(Principal Executive Officer)
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November
5, 2020
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Ashleigh Palmer
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/s/
Andrew Drechsler
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Chief
Financial Officer
(Principal Financial and Accounting Officer)
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November
5, 2020
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Andrew Drechsler
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/s/
Jeffrey Bluestone, PhD
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Director
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November
5, 2020
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Jeffrey Bluestone,
PhD
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/s/
Avery Catlin
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Director
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November
5, 2020
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Avery Catlin
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/s/
Sean Doherty
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Director
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November
5, 2020
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Sean Doherty
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/s/
John Jenkins, MD
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Director
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November
5, 2020
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John Jenkins, MD
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/s/
Wayne Pisano
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Director
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November
5, 2020
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Wayne Pisano
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/s/
Nancy Wysenski
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Director
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November
5, 2020
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Nancy Wysenski
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