Securities Registration: Employee Benefit Plan (s-8)
August 13 2018 - 3:19PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on August 13, 2018
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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P.O.
Box 666
Oldwick,
New Jersey 08858
(Address
of Principal Executive Offices) (Zip Code)
Provention
Bio, Inc. Amended and Restated 2017 Equity Incentive Plan
(Full
title of the plans)
Ashleigh
Palmer
Chief
Executive Officer
Provention
Bio, Inc.
P.O.
Box 666
Oldwick,
New Jersey 08858
Telephone:
(908) 336-0360
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Please
send copies of all communications to:
Michael
J. Lerner, Esq.
Steven
M. Skolnick, Esq.
Lowenstein
Sandler LLP
1251
Avenue of the Americas
New
York, NY 10020
Telephone:
(973) 597-6394
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 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
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[ ]
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Accelerated
filer
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[
]
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Non-accelerated
filer
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[ ]
(Do not check if a smaller reporting company)
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Smaller
reporting company
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[X]
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Emerging
growth company
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[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
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Amount
of Registration
Fee
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Common stock, $0.0001 par value per share
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3,869,424
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$
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3.42
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$
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13,252,777.2
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$
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1,649.97
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(1)
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Covers
3,869,424 shares of common stock issuable under the Provention Bio, Inc. Amended and Restated 2017 Equity Incentive Plan (the
“2017 Plan”). In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities
Act”), this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to
the employee benefit plan(s) described herein, as these amounts may be adjusted as a result of stock splits, stock dividends,
antidilution provisions, and similar transactions.
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(2)
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Pursuant
to Rule 457(c) and Rule 457(h) under the Securities Act, the proposed maximum offering price per share and the proposed maximum
aggregate offering price are estimated for the purpose of calculating the amount of the registration fee and are based on
the average of the high and low sales price on the NASDAQ Capital Market on August 9, 2018.
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PART
I
Information
Required in the Section 10(a) Prospectus
Item
1.
Plan Information
.
The
information called for by Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the “
Registration
Statement
”) and has been or will be sent or given to participating service providers in accordance with Rule 428
of the Securities Act of 1933, as amended (the “
Securities Act
”), and the instructions to Form S-8.
In accordance with the rules and regulations of the Securities and Exchange Commission (the “
Commission
”)
and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Item
2.
Registrant Information and Employee Plan Annual Information.
Provention
Bio, Inc. (the “
Company
”) will furnish without charge to each person to whom the prospectus is delivered,
upon the written or oral request of such person, a copy of any and all of the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof, other than exhibits to such documents (unless such exhibits are specifically incorporated
by reference in such documents that are incorporated), and the other documents required to be delivered to eligible participants
in the Plan pursuant to Rule 428(b) under the Securities Act. Those documents are incorporated by reference in the Section 10(a)
prospectus. Requests should be directed to:
Provention
Bio, Inc.
P.O.
Box 666
Oldwick,
New Jersey 08858
Attention:
Chief Financial Officer
Telephone:
(908) 336 0360
PART
II
Information
Required in the Registration Statement
Item
3.
Incorporation of Documents by Reference
.
The
following documents filed by the Company with the Commission pursuant to the Securities Act and the Securities Exchange Act of
1934, as amended (the “
Exchange Act
”), are incorporated herein by reference:
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(a)
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the
Company’s prospectus filed on July 17, 2018 pursuant to Rule 424(b) under the Securities Act relating to the Registration
Statement on Form S-1, as amended (Registration No. 333-224801), which contains audited financial statements for the Company’s
latest fiscal year for which such statements have been filed;
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(b)
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The
Company’s quarterly report on Form 10-Q filed with the Commission on August 13, 2018;
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(c)
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the
Company’s current report on Form 8-K filed with the Commission on July 19, 2018 and August 13, 2018 (other than any
portions thereof deemed furnished and not filed); and
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(d)
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the
description of the Company’s common stock contained in the Company’s Registration Statement on Form 8-A (Registration
No. 333- 224801) filed with the Commission on June 22, 2018 under Section 12(b) of the Exchange Act, including any amendments
or reports filed for the purpose of updating such description.
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All
documents filed by the Company pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act subsequent to the filing of
this Registration Statement and prior to the filing of a post-effective amendment, which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections
of such documents as set forth therein. Any statement contained in a document 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 in any subsequently filed document, which also is deemed to be incorporated by reference herein, modifies or supersedes
such statement.
Item
4.
Description of Securities
.
Not
applicable.
Item
5.
Interests of Named Experts and Counsel
.
Not
applicable.
Item
6.
Indemnification of Directors and Officers
.
As
permitted by Section 102 of the Delaware General Corporation Law, we have adopted provisions in our amended and restated certificate
of incorporation and bylaws that limit or eliminate the personal liability of our directors for a breach of their fiduciary duty
of care as a director. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise
an informed business judgment based on all material information reasonably available to them. Consequently, a director will not
be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability
for:
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any
breach of the director’s duty of loyalty to us or our stockholders;
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any
act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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any
act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or
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any
transaction from which the director derived an improper personal benefit.
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These
limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission. Our amended
and restated certificate of incorporation also authorizes us to indemnify our officers, directors and other agents to the fullest
extent permitted under Delaware law.
As
permitted by Section 145 of the Delaware General Corporation Law, our bylaws provide that:
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we
may indemnify our directors, officers, and employees to the fullest extent permitted by the Delaware General Corporation Law,
subject to limited exceptions;
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we
may advance expenses to our directors, officers and employees in connection with a legal proceeding to the fullest extent
permitted by the Delaware General Corporation Law, subject to limited exceptions; and
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the
rights provided in our bylaws are not exclusive.
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Our
amended and restated certificate of incorporation and our amended and restated bylaws provide for the indemnification provisions
described above and elsewhere herein. We have entered into and intend to continue to enter into separate indemnification agreements
with our directors and officers which may be broader than the specific indemnification provisions contained in the Delaware General
Corporation Law. These indemnification agreements generally require us, among other things, to indemnify our officers and directors
against liabilities that may arise by reason of their status or service as directors or officers, other than liabilities arising
from willful misconduct. These indemnification agreements also generally require us to advance any expenses incurred by the directors
or officers as a result of any proceeding against them as to which they could be indemnified. In addition, we have purchased a
policy of directors’ and officers’ liability insurance that insures our directors and officers against the cost of
defense, settlement or payment of a judgment in some circumstances. These indemnification provisions and the indemnification agreements
may be sufficiently broad to permit indemnification of our officers and directors for liabilities, including reimbursement of
expenses incurred, arising under the Securities Act of 1933, as amended, or the Securities Act.
See
also the undertakings set out in response to Item 9 of this Registration Statement.
Item
7.
Exemption from Registration Claimed
.
Not
applicable.
Item
8.
Exhibits
.
For
a list of exhibits, see the Exhibit Index in this Registration Statement, which is incorporated into this Item by reference.
Item
9.
Undertakings
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(a)
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The
undersigned Registrant hereby undertakes:
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(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 a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(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 (a)(1)(i) and (a)(1)(ii) of this section shall 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 Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated
by reference in 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.
(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 section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit 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.
(c)
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 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 Act and will be governed by the final adjudication of such issue.
EXHIBIT
INDEX
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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 Oldwick, New Jersey on August 13, 2018.
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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 AND SIGNATURES
KNOW
ALL PERSONS BY THESE PRESENTS, that the undersigned officers and directors of Provention Bio, Inc., a Delaware corporation, do
hereby constitute and appoint each of Ashleigh Palmer and Andrew Drechsler as his or her true and lawful attorney-in-fact and
agent, with full power of substitution and re-substitution, for him and in his name, place, and stead, in any and all capacities,
to sign any and all amendments to this registration statement (including post-effective amendments to this Registration Statement
on Form S-8), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent 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 might or
could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons
on behalf of the registrant in the capacities and on the dates indicated.
Person
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Capacity
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Date
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/s/
Ashleigh Palmer
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Chief
Executive Officer and Director
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Ashleigh
Palmer
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(Principal
Executive Officer)
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August
13, 2018
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/s/
Andrew Drechsler
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Chief
Financial Officer
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Andrew
Drechsler
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(Principal
Financial and Accounting Officer)
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August
13, 2018
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/s/
Francisco Leon
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Francisco
Leon
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Chief
Scientific Officer and Director
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August
13, 2018
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/s/
Anthony DiGiandomenico
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Anthony
DiGiandomenico
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Director
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August
13, 2018
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/s/
Cameron Gray
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Cameron
Gray
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Director
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August
13, 2018
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/s/
Wayne Pisano
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Wayne
Pisano
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Director
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August
13, 2018
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