As filed with the Securities and Exchange Commission on March 29, 2023

 

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

(State or other jurisdiction of

incorporation or organization)

  

81-5245912

(I.R.S. Employer

Identification No.)

 

55 Broad Street, 2nd Floor

Red Bank, New Jersey 07701

(Address of Principal Executive Offices) (Zip Code)

 

Provention Bio, Inc. Amended and Restated 2017 Equity Incentive Plan

(Full title of the plan)

 

Ashleigh Palmer

Chief Executive Officer

Provention Bio, Inc.

55 Broad Street, 2nd Floor

Red Bank, New Jersey 07701

(908) 336-0360

(Name, address and telephone number, including area code, of agent for service)

 

with copies to:

 

Thomas J. 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 ☐ Accelerated filer ☐
Non-accelerated filer ☒ Smaller reporting company ☒
  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. ☐
 

 

 

 

 

 

EXPLANATORY NOTE

 

This Registration Statement is being filed to register an additional 7,186,283 shares of the registrant’s common stock for issuance under the Amended and Restated Provention Bio, Inc. 2017 Equity Incentive Plan. Pursuant to General Instruction E to Form S-8, the registrant incorporates by reference, except to the extent supplemented, amended or superseded by the information set forth herein, into this Registration Statement the entire contents of its Registration Statement on Form S-8 (File No. 333-226814) filed with the Securities and Exchange Commission on August 13, 2018, its Registration Statement on Form S-8 (File No. 333-230400) filed with the Securities and Exchange Commission on March 19, 2019, its Registration Statement on Form S-8 (File No. 333-237113) filed with the Securities and Exchange Commission on March 12, 2020, its Registration Statement on Form S-8 (File No. 333-253657) filed with the Securities and Exchange Commission on February 26, 2021 and its Registration Statement on Form S-8 (File No. 333-262945) filed with the Securities and Exchange Commission on February 24, 2022.

 

 

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8.Exhibits

 

Exhibit
Number		   Description
3.1   Second Amended and Restated Certificate of Incorporation of Provention Bio, Inc., effective as of July 19, 2018 (incorporated by reference to Exhibit 3.1 to the registrant’s Form 8-K filed with the Securities and Exchange Commission on July 19, 2018)

3.2

  

Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation of Provention Bio, Inc., effective as of May 13, 2021 (incorporated by reference to Exhibit 3.1 to the registrant’s Form 8-K filed with the Securities and Exchange Commission on May 14, 2021)

3.3   Amended and Restated Bylaws of Provention Bio, Inc., as adopted on May 9, 2023 (incorporated by reference to Exhibit 3.1 to the registrant’s Form 8-K filed with the Securities and Exchange Commission on March 13, 2023)
4.1   Provention Bio, Inc. Amended and Restated 2017 Equity Incentive Plan (incorporated by reference to Exhibit 4.4 to the registrant’s Form S-8 Registration Statement filed with the Securities and Exchange Commission on August 13, 2018)
4.2   Form of Stock Option Award under 2017 Provention Bio, Inc. Equity Incentive Plan (incorporated by reference to Exhibit 10.4 to the registrant’s Form S-1 Registration Statement filed with the Securities and Exchange Commission on May 9, 2018)
5.1   Opinion of Ropes & Gray LLP
23.1   Consent of EisnerAmper LLP
23.2   Consent of Ropes & Gray LLP (included in Exhibit 5.1)
24.1   Power of Attorney (included on the signature page of this Registration Statement under the caption “Power of Attorney”)
107   Filing Fee Table

 

 

 

 

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 March 29, 2023.

 

  Provention Bio, Inc.
     
  By: /s/ Ashleigh Palmer
    Ashleigh Palmer
    Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Ashleigh Palmer, Thierry Chauche 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   Title   Date
         
/s/ Ashleigh Palmer   Chief Executive Officer and Director   March 29, 2023
Ashleigh Palmer   (Principal Executive Officer)    
         
/s/ Thierry Chauche   Chief Financial Officer   March 29, 2023
Thierry Chauche   (Principal Financial Officer)    
         
/s/ Justin Vogel   Chief Accounting Officer   March 29, 2023
Justin Vogel   (Principal Accounting Officer)    
         
/s/ Avery Catlin   Director   March 29, 2023
Avery Catlin        
         
/s/ Rita Jain   Director   March 29, 2023
Rita Jain        
         
/s/ John Jenkins, MD   Director   March 29, 2023
John Jenkins, MD        
         
/s/ Wayne Pisano   Director   March 29, 2023
Wayne Pisano        
         
/s/ Nancy Wysenski   Director   March 29, 2023
Nancy Wysenski        

 

 

 

 

Exhibit 5.1

 

 

ROPES & GRAY LLP

PRUDENTIAL TOWER

800 BOYLSTON STREET

BOSTON, MA 02199-3600

WWW.ROPESGRAY.COM

 

 

March 29, 2023

 

Provention Bio, Inc.

55 Broad Street, 2nd Floor

Red Bank, New Jersey 07701

 

Re: Registration of Securities by Provention Bio, Inc.

Ladies and Gentlemen:

 

This opinion letter is furnished to you in connection with the registration statement on Form S-8 (the “Registration Statement”), filed by Provention Bio, Inc., a Delaware corporation (the “Company”), on the date hereof, with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), for the registration of 7,186,283 shares of common stock, $0.0001 par value, of the Company (the “Shares”). The Shares are issuable pursuant to the Amended and Restated Provention Bio, Inc. 2017 Equity Incentive Plan (the “Plan”).

 

We are familiar with the actions taken by the Company in connection with the adoption of the Plan. We have examined such certificates, documents and records and have made such investigation of fact and such examination of law as we have deemed appropriate in order to enable us to render the opinions set forth herein. In conducting such investigation, we have relied, without independent verification, upon certificates of officers of the Company, public officials and other appropriate persons.

 

The opinions expressed below are limited to the Delaware General Corporation Law.

 

Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized and, when the Shares have been issued and sold in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and nonassessable.

 

We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby 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 thereunder.

 

  Very truly yours,
   
  /s/ Ropes & Gray LLP
  Ropes & Gray LLP

 

   

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement of Provention Bio, Inc. on Form S-8 to be filed on or about March 29, 2023 of our report dated March 29, 2023, on our audits of the consolidated financial statements as of December 31, 2022 and 2021 and for each of the years in the three-year period ended December 31, 2022, which report was included in the Annual Report on Form 10-K filed March 29, 2023.

 

/s/ EisnerAmper LLP

 

EISNERAMPER LLP

Philadelphia, Pennsylvania

March 29, 2023

 

   

 

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

 

Form S-8

(Form Type)

 

Provention Bio, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type  Security Class Title  Fee Calculation Rule  Amount Registered(1)   Proposed Maximum Offering Price Per Share(3)   Maximum Aggregate Offering Price(3)   Fee Rate   Amount of Registration Fee(3) 
Equity  Common stock, par value $0.0001 per share  457(c) and 457(h)   7,186,283(2)  $23.90   $171,752,163.70    0.00011020   $18,927.09 
Total Offering Amounts         $171,752,163.70        $18,927.09 
Total Fee Offsets                   $- 
Net Fee Due                   $18,927.09 

 

(1) 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 Amended and Restated Provention Bio, Inc. 2017 Equity Incentive Plan (the “2017 Plan”).
   
(2) Represents 7,186,283 shares of the registrant’s common stock that were automatically added to the shares authorized for issuance under the 2017 Plan on January 1, 2023 pursuant to an “evergreen” provision contained in the 2017 Plan. The “evergreen” provision provides that on each January 1st from January 1, 2019 through January 1, 2028, the number of shares of common stock available for issuance under the 2017 Plan will automatically increase annually in an amount equal to the lesser of (i) 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 2017 Plan on December 31st of such preceding calendar year and (ii) the number of shares determined by the registrant’s board of directors.
   
(3) 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 March 27, 2023.