Securities Registration: Employee Benefit Plan (s-8)
13 March 2020 - 7:07AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on March 12, 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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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):
Large
accelerated filer
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[ ]
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Accelerated
filer
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[X]
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Non-accelerated
filer
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[ ]
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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, $0.0001 par value per share
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3,000,000
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$
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10.28
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$
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30,840,000.00
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$
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4,003.03
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(1)
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Covers
3,000,000 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 Global Select Market on March 9, 2020.
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PART
I
EXPLANATORY
NOTE
Pursuant
to General Instruction E to Form S-8 under the Securities Act, this Registration Statement is filed by Provention Bio, Inc. (the
“Company”) for the purpose of registering additional shares of the Company’s common stock, par
value $0.0001 per share (the “Common Stock”) under the Company’s Amended and Restated 2017 Equity
Incentive Plan (the “Plan”). The number of shares of Common Stock available for issuance under the Plan
is subject to an automatic annual increase on January 1 of each year beginning in 2019 and ending on (and including) January 1,
2028, equal to the difference between (x) eighteen percent (18%) of the total number of shares of Common Stock outstanding, on
a fully diluted basis, on December 31st of the preceding calendar year, and (y) the total number of shares of Common
Stock reserved under the Plan on December 31st of such preceding calendar year (the “Evergreen Provision”).
Notwithstanding the foregoing, the board of directors of the Company (the “Board”) may act prior to
the first day of any calendar year, to provide that there shall be no increase in the share reserve for such calendar year or
that the increase in the share reserve for such calendar year shall be a lesser number of shares of Common Stock than would otherwise
occur pursuant to the preceding sentence. This Registration Statement registers an aggregate of 3,000,000 additional shares of
Common Stock available for issuance under the Plan as a result of the Board’s decision to reserve a lesser amount than the
Evergreen Provision provides for.
The
shares of Common Stock registered pursuant to this Registration Statement are of the same class of securities as the 3,869,424
shares of Common Stock registered for issuance under the Plan pursuant to the currently effective Registration Statement on Form
S-8 (Registration No. 333-226814) filed on August 13, 2018 and the 3,050,893 shares of Common Stock registered for issuance under
the Plan pursuant to the currently effective registration statement on Form S-8 (Registration No. 333-230400) filed on March 19,
2019. The information contained in the Company’s Registration Statement on Form S-8 (Registration Nos. 333-226814 and 333-230400)
is hereby incorporated by reference pursuant to General Instruction E. Any items in the Company’s Registration Statement
on Form S-8 (Registration Nos. 333-226814 and 333-230400) not expressly changed hereby shall be as set forth in the Company’s
Registration Statement on Form S-8 (Registration Nos. 333-226814 and 333-230400).
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 latest annual report on Form 10-K filed pursuant to Section 13(a) or 15(d) of the Exchange Act for the fiscal
year ended December 31, 2019, as filed with the Commission on March 12, 2020; and
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(b)
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the
Company’s Current Report on Form 8-K filed with the SEC on January 8, 2020 (other than any portions thereof
deemed furnished not filed);
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(c)
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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. 001-38552) 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
8. Exhibits.
For
a list of exhibits, see the Exhibit Index in this Registration Statement, which is incorporated into this Item by reference.
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 March 12, 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 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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March
12, 2020
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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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March
12, 2020
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/s/
Jeff Bluestone
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Jeff
Bluestone
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Director
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March
12, 2020
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/s/
Chip Catlin
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Chip
Catlin
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Director
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March
12, 2020
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/s/
Anthony DiGiandomenico
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Anthony
DiGiandomenico
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Director
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March
12, 2020
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/s/
Sean Doherty
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Sean
Doherty
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Director
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March
12, 2020
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/s/
Wayne Pisano
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Wayne
Pisano
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Director
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March
12, 2020
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