As filed
with the Securities and Exchange Commission on February 24, 2022
Registration
No. 333-252045
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES
ACT OF 1933
PROVENTION
BIO, INC.
(Exact name
of registrant as specified in its charter)
| Delaware |
|
81-5245912 |
|
(State or other jurisdiction
of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
55 Broad
Street, 2nd Floor
Red Bank,
New Jersey 07701
(908) 336-0360
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Ashleigh Palmer
Chief Executive
Officer
Provention
Bio, Inc
55 Broad
Street, 2nd Floor
Red Bank,
New Jersey 07701
(908) 336-0360
(Name and
address, including zip code, and telephone number, including area code, of agent for service of process for registrant)
With
copies to:
Thomas
J. Danielski
Ropes
& Gray LLP
800
Boylston Street
Boston, Massachusetts
02199
(617) 951-7000
Approximate
date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective
If the only
securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box. ☐
If any of the
securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, 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, please 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(c) 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. ☐
If this form
is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this form
is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities
or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
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 Post-Effective Amendment
No. 1 to the Registration Statement on Form S-3 (File No. 333-252045) (“Post-Effective Amendment No. 1”) of Provention Bio,
Inc. (the “Company”) is being filed because the Company expects that it will no longer be a “well-known seasoned issuer”
(as such term is defined in Rule 405 of the Securities Act of 1933, as amended) when it files its Annual Report on Form 10-K for the fiscal
year ended December 31, 2021. Accordingly, the Company is filing this Post-Effective Amendment No. 1 for the purpose of including disclosure
required for a registrant other than a well-known seasoned issuer, identifying the securities being registered, registering a specific
amount of securities and paying the associated filing fee.
This Post-Effective
Amendment No. 1 contains:
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a base prospectus which covers the offering, issuance and sale by us of up to $300,000,000 in the aggregate of the securities identified above from time to time in one or more offerings; and |
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a sales agreement prospectus supplement covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $150,000,000 of our common stock that may be issued and sold under a sales agreement with SVB Leerink LLC and Cantor Fitzgerald & Co. |
The base prospectus immediately
follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in
a prospectus supplement to the base prospectus. The sales agreement prospectus supplement immediately follows the base prospectus. The
$150,000,000 of common stock that may be offered, issued and sold under the sales agreement prospectus supplement is included in the $300,000,000
of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the sales agreement with SVB Leerink
LLC and Cantor Fitzgerald & Co., any portion of the $150,000,000 included in the sales agreement prospectus supplement that is not
sold pursuant to the sales agreement will be available for sale in other offerings pursuant to the base prospectus and a corresponding
prospectus supplement, and if no shares are sold under the sales agreement, the full $150,000,000 of securities may be sold in other offerings
pursuant to the base prospectus and a corresponding prospectus supplement.
PROSPECTUS
PROVENTION
BIO, INC.
$300,000,000
Common Stock,
Preferred Stock, Debt Securities, Warrants and Units
Provention Bio,
Inc. may, from time to time offer, in one or more classes or series, separately or together, and in amounts, at prices and on terms to
be set forth in one or more supplements to this prospectus, up to $300,000,000 in the aggregate of common stock, preferred stock, debt
securities, which may be senior debt securities or subordinated debt securities, warrants to purchase common stock, preferred stock or
debt securities, or any combination of the foregoing, either individually or as units comprised of two or more other securities.
We refer to
the common stock, preferred stock, debt securities, warrants and units registered hereunder collectively as the “securities”
in this prospectus. We will offer our securities in amounts, at prices and on terms determined at the time of the offering of any such
security.
The prospectus
provides a general description of the securities we may offer. The specific terms of each series or class of the securities will be set
forth in the applicable prospectus supplement and will include, as applicable: (i) in the case of common stock, any public offering price;
(ii) in the case of preferred stock, the specific title and any dividend, liquidation, redemption, conversion, voting and other rights
and any public offering price; (iii) in the case of debt securities, the specific terms of such debt securities; (iv) in the
case of warrants, the duration, offering price, exercise price and detachability of such warrants; and (v) in the case of units,
the constituent securities comprising the units, the offering price and detachability of such units.
We may also
authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and
any related free writing prospectus may add, update or change information contained in this prospectus. You should carefully read this
prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as the documents incorporated by reference
before you invest in any of our securities. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
Our common stock
is listed on The Nasdaq Global Select Market under the symbol “PRVB.” There is currently no market for the other securities
we may offer. Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
Investing
in our securities involves a high degree of risk. Please carefully read the information under the heading “Risk Factors” beginning
on page 3 of this prospectus, as well as the risk factors appearing in any prospectus supplement, any related free writing prospectus
and/or any other future filings we make with the Securities and Exchange Commission that are incorporated by reference into this prospectus
before you invest in our securities.
NEITHER THE
SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
We may offer
and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed
basis. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names, and any applicable purchase
price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set
forth, in the applicable prospectus supplement. See the sections entitled “Plan of Distribution” and “About This Prospectus”
for more information. The price to the public of those securities and the net proceeds we expect to receive from that sale will also be
set forth in a prospectus supplement. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement
describing the method and terms of the offering of such series of securities.
The date of
this prospectus is February 24, 2022.
table
of contents
ABOUT THIS
PROSPECTUS
This prospectus
is part of a “shelf” registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the
SEC, under the Securities Act of 1933, as amended, or the Securities Act. Under this shelf process, we may, from time to time, offer or
sell up to a total dollar amount of $300,000,000 of any combination of the securities described in this prospectus in one or more offerings.
This prospectus
provides you with a general description of the securities offered by us. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to
be provided to you that may contain material information about the terms of that offering. The prospectus supplement and any related free
writing prospectus that we may authorize to be provided to you may also add to, update or change information contained in the prospectus
or in any documents that we have incorporated by reference into this prospectus, and, accordingly, to the extent inconsistent, information
in this prospectus is superseded by the information in the prospectus supplement or the related free writing prospectus.
You should only
rely on the information contained or incorporated by reference in this prospectus and any prospectus supplement or any related free writing
prospectus. We have not authorized any other person to provide you with different information. We take no responsibility for, and can
provide no assurance as to the reliability of, any information that others may give you. You should read the entire prospectus and any
prospectus supplement and any related issuer free writing prospectus, as well as the documents incorporated by reference into this prospectus
or any prospectus supplement, before making an investment decision. The prospectus and the accompanying prospectus supplement, if any,
do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which
they relate, nor do this prospectus and any accompanying prospectus supplement constitute an offer to sell or the solicitation of an offer
to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You
should assume that the information in this prospectus or any prospectus supplement is accurate only as of the date on the front of the
document and that any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus, any related prospectus supplement or any sale of a security. We do not imply or
represent by delivering this prospectus that Provention Bio, Inc., or its business, financial condition or results of operations, are
unchanged after the date on the front of this prospectus or that the information in this prospectus is correct as any time after such
date.
In this prospectus,
unless the context otherwise requires, “Provention Bio”, the “Company”, “we”, “us”, “our”
and similar names refer to Provention Bio, Inc.
THE COMPANY
Our Business
We are a clinical-stage
biopharmaceutical company dedicated to intercepting and preventing immune-mediated diseases. Since our inception, we have devoted substantially
all our efforts to business planning, research and development, pre-commercial activities, recruiting management and technical staff,
acquiring operating assets, partnering and raising capital. We have not yet commenced any commercial revenue-generating operations, do
not have any positive cash flows from operations and we will need to raise additional capital to finance our operations.
Our mission
is to intercept and/or prevent autoimmune disease and, when possible, durably reset the immune system ahead of disease progression, irreversible
tissue damage, and organ failure. Our strategic priorities include:
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To preferentially source, develop, and advance clinical-stage, or late preclinical-stage, therapeutic candidates targeting upstream mechanistic nodes in order to intercept and/or prevent immune-mediated diseases |
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To leverage our immunology research and development capabilities to access different mechanistic approaches through in-licensed assets and/or partnerships |
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To “predict” and “preempt” pathogenesis by identifying at-risk individuals and early-onset disease patients for whom early intervention may help prevent, ameliorate or delay the progression of chronic life-threatening and debilitating disease |
We believe our
interception and prevention conceptual platform, experience and expertise in translational medicine and immunology, and our ability to
design and execute rapid go/no-go clinical trials makes us unique in the field of autoimmune-mediated disease.
We continue
building on our access to relevant in-licensing opportunities from industry-leading pharmaceutical companies; innovative, development-stage
biotechnology companies; and world-renowned academic centers. To date, we have obtained exclusive worldwide rights to two product candidates
from MacroGenics, Inc., the asset acquisition of teplizumab (PRV-031), a Phase 3 clinical-stage candidate for type 1 diabetes (“T1D”),
and the in-license of PRV-3279, a Phase 2 candidate for the potential treatment of systemic lupus erythematosus. We also in-licensed an
enterovirus vaccine platform, targeting the prevention of coxsackievirus B infections and the potential onset of T1D and celiac disease
that includes PRV-101 from Vactech Ltd., a Finnish biotechnology company. Additionally, we in-licensed PRV-015 (ordesekimab), a Phase
2 clinical-stage candidate targeting celiac disease, from Amgen, Inc.
Corporate
Information
We are a Delaware
corporation formed on October 4, 2016. Our principal executive offices are located at 55 Broad Street, 2nd Floor, Red Bank, New
Jersey 07701 and our telephone number is (908) 336-0360. We maintain an Internet website at www.proventionbio.com. We have not incorporated
the information on our website by reference into this prospectus, and you should not consider it to be a part of this prospectus.
RISK FACTORS
An investment
in any of the securities offered pursuant to this prospectus involves risks. You should carefully consider the risk factors incorporated
by reference to our most recent Annual Report on Form 10-K, our subsequent Quarterly Reports on Form 10-Q and any Current Reports on Form
8-K we file after the date of this prospectus, together with any amendments or supplements thereto, and all other information contained
or incorporated by reference into this prospectus, as updated by our subsequent filings under the Securities Exchange Act of 1934, as
amended, or the Exchange Act, and the risk factors and other information contained in any applicable prospectus supplement or free writing
prospectus, before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or part of your
investment in the offered securities. Please also refer to the section below titled “Forward-Looking Statements.” Additional
risks not known to us or that we believe are immaterial may also significantly impair our business operations and could result in a loss
of all or part of your investment in the offered securities.
FORWARD-LOOKING
STATEMENTS
This prospectus,
any prospectus supplement and any information incorporated by reference into this prospectus or such prospectus supplement may contain
certain “forward-looking statements.” You can generally identify these forward-looking statements by forward-looking words
such as “believe,” “anticipate,” “expect,” “intend,” “plan,” “will,”
“may,” “estimate,” “could,” “continue,” “ongoing,” “predict,”
“potential,” “likely,” “seek” and other similar expressions, as well as variations or negatives of
these words. You can also identify forward-looking statements by the fact that they do not relate strictly to historical or current facts.
Such forward-looking statements are based on current expectations and involve inherent risks and uncertainties, including factors that
could delay, divert or change any of them, and could cause actual outcomes to differ materially from current expectations. These statements
are likely to relate to, among other things, the timing, progress and success of our ongoing and planned clinical trials, the expected
timing of regulatory review of our product candidates and our ability to finance contemplated development activities and fund operations
for a specified period of time.
Forward-looking
statements are not guarantees of future performance and our actual results could differ materially from the results discussed in the forward-looking
statements we make. In particular, you should consider the numerous risks described in the risk factors incorporated by reference to our
most recent Annual Report on Form 10-K, our subsequent Quarterly Reports on Form 10-Q and any Current Reports on Form 8-K we file after
the date of this prospectus, together with any amendments or supplements thereto, as updated by our subsequent filings under the Exchange
Act, and the risk factors contained in any applicable prospectus supplement or free writing prospectus. See “Where You Can Find
More Information.”
As a result
of these and other factors, we may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements,
and you should not place undue reliance on our forward-looking statements. The forward-looking statements contained in this prospectus
reflect our views as of the date hereof. We do not assume any obligation to update any forward-looking statements, whether as a result
of new information, future events or otherwise, except as required by law.
USE OF PROCEEDS
Except as described
in any applicable prospectus supplement or in any free writing prospectus we authorize for use in connection with a specific offering,
we currently intend to use the net proceeds from the sale of the securities offered by us hereunder, if any, for working capital, capital
expenditures, potential milestone payments and other general corporate purposes.
The specific
allocations of the proceeds we receive from the sale of our securities and any material amounts of other funds necessary to accomplish
the specified purposes for which the proceeds are to be obtained will be described in the applicable prospectus supplement.
GENERAL
DESCRIPTION OF SECURITIES WE MAY SELL
We may offer
shares of our common stock and preferred stock, various series of senior and subordinated debt securities and warrants to purchase any
of such securities, either individually or in units, from time to time under this prospectus, together with any applicable prospectus
supplement and related free writing prospectus, in amounts, at prices and on terms to be determined by market conditions at the time of
offering. Each time we offer securities under this prospectus, we will provide offerees with a prospectus supplement that will describe
the specific amounts, prices and other important terms of the securities being offered, including, to the extent applicable:
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designation or classification; |
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aggregate principal amount or aggregate offering price; |
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maturity, if applicable; |
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original issue discount, if any; |
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rates and times of payment of interest or dividends, if any; |
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conversion or exchange prices or rates, if any, and if applicable, any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property receivable upon conversion or exchange; |
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ranking; |
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restrictive covenants, if any; |
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voting or other rights, if any; and |
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important United States federal income tax considerations. |
The prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information
contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus
will offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement
of which this prospectus is a part.
We may sell
the securities to or through underwriters, dealers or agents or directly to purchasers or as otherwise set forth below under “Plan
of Distribution.” We, as well as any agents acting on our behalf, reserve the sole right to accept and to reject in whole or in
part any proposed purchase of securities. Each prospectus supplement will set forth the names of any underwriters, dealers, agents or
other entities involved in the sale of securities described in that prospectus supplement and any applicable fee, commission or discount
arrangements with them, details regarding any option to purchase additional securities granted to them, and net proceeds to us.
DESCRIPTION
OF CAPITAL STOCK
General
The following
is a summary of the material rights of our capital stock and related provisions of our certificate of incorporation and bylaws. The following
description of our capital stock does not purport to be complete and is subject to, and qualified in its entirety by, our second amended
and restated certificate of incorporation, or our certificate of incorporation, and our amended and restated bylaws, or our bylaws, both
of which are included as exhibits to the registration statement of which this prospectus is a part.
Our authorized
capital stock consists of 175,000,000 shares, each with a par value of $0.0001 per share, including 150,000,000 shares of common stock
and 25,000,000 shares of preferred stock.
As of December
31, 2021, we had 63,374,738 shares of common stock and no shares of preferred stock outstanding.
Common
Stock
Voting Rights.
Each share of common stock has one vote per share on all matters submitted to a vote of stockholders. We have not provided for cumulative
voting for the election of directors in our certificate of incorporation. Because our bylaws provide for plurality voting for the election
of directors, a director may be elected even if less than a majority of the votes cast are in favor of such election.
Dividends.
Subject to preferences that may apply to any shares of preferred stock outstanding at the time, the holders of common stock will be entitled
to share equally, on a per share basis, in any dividends that our board of directors may determine to issue from time to time.
Liquidation
Rights. Upon our liquidation, dissolution, distribution of assets or winding-up, the holders of common stock will be entitled to share
equally, on a per share basis, all assets remaining after the payment of any debts and other liabilities and the liquidation preferences
on any outstanding shares of preferred stock.
Conversion.
Our common stock is not convertible into any other shares of our capital stock.
Transfer
Agent and Registrar. The transfer agent and registrar for our common stock is Broadridge Corporate Issuers Solutions, Inc. Its address
is 51 Mercedes Way, Edgewood, New York 11717.
Nasdaq Global
Select Market. Our common stock is listed for quotation on The Nasdaq Global Select Market under the symbol “PRVB.”
Preferred
Stock
Terms of any
series of preferred stock will be described in the prospectus supplement relating to that series of preferred stock and in any related
free writing prospectus that we may authorize to be distributed to purchasers. The terms of any series of preferred stock may differ from
the terms described below.
Our board of
directors has the authority, without approval by our stockholders, to issue up to a total of 25,000,000 shares of preferred stock, all
of which are undesignated, in one or more series.
General Terms.
Our board of directors may establish the number of shares to be included in each such series and may fix the designations, preferences,
powers and other rights of the shares of a series of preferred stock. Our board of directors can authorize the issuance of preferred stock
with voting or conversion rights that could dilute the voting power or rights of the holders of our common stock. The issuance of preferred
stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have
the effect of delaying, deferring or preventing a change in control of Provention Bio and might harm the market price of our common stock.
Our board of directors will make the determination to issue such shares based on its judgment as to our best interests and the best interests
of our stockholders. If we offer a specific class or series of preferred stock under this prospectus, we will describe the terms of the
preferred stock in the prospectus supplement for such offering and will file a copy of the certificate of designation establishing the
terms of the preferred stock with the SEC. To the extent required, the description will include:
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the title and stated value; |
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the number of shares offered, the liquidation preference per share and the purchase price; |
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the dividend rate(s), period(s) and/or payment date(s), or method(s) of calculation for such dividends; |
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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the procedures for any auction and remarketing, if any; |
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the provisions for a sinking fund, if any; |
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the provisions for redemption, if applicable; |
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any listing of the preferred stock on any securities exchange or market; |
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whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price (or how it will be calculated) and conversion period; |
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price (or how it will be calculated) and exchange period; |
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voting rights, if any, of the preferred stock; |
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a discussion of any material U.S. federal income tax considerations applicable to the preferred stock; |
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the relative ranking and preferences of the preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of the affairs of the Company; and |
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any material limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of the Company. |
The preferred
stock offered by this prospectus, when issued, will not have, or be subject to, any preemptive or similar rights.
Anti-Takeover
Effects of our Certificate of Incorporation and Bylaws and Delaware Law
Certain provisions
of Delaware law, our certificate of incorporation and our bylaws could have the effect of delaying, deferring or discouraging another
party from acquiring control of us. These provisions, which are summarized below, encourage persons seeking to acquire control of us to
first negotiate with our board of directors and the holders of our capital stock.
Undesignated
Preferred Stock
The ability
to authorize undesignated preferred stock makes it possible for our board of directors to issue preferred stock with voting or other rights
or preferences that could impede the success of any attempt to acquire us. These and other provisions may have the effect of deferring
hostile takeovers or delaying changes in control or management of our company.
Stockholder
Action; Special Meeting of Stockholders
Our certificate
of incorporation and bylaws provide that stockholders may act by written consent. However, stockholders pursuing an action by written
consent will be required to comply with certain notice and record date requirements that are set forth in our bylaws and the Delaware
General Corporation Law. A special meeting of stockholders may be called by the chairperson of our board of directors, the chief executive
officer, the president (in the absence of the chief executive officer) or the board of directors at any time and for any purpose or purposes
as shall be stated in the notice of the meeting. A special meeting of stockholders may also be called at the request of the holders of
record of at least 20% of our outstanding shares of common stock. This provision may prevent stockholders from calling a special meeting
because, unless certain significant stockholders were to join with them, they might not obtain the percentage necessary to request the
meeting. Therefore, stockholders holding less than 20% of our outstanding shares of common stock, without the assistance of management,
may be unable to propose a vote on any transaction, which may delay, defer or prevent a change of control.
Requirements
for Advance Notification of Stockholder Nominations and Proposals
Our bylaws establish
advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than
nominations made by or at the direction of the board of directors or a committee of the board of directors. In addition, our bylaws may
have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed. These provisions
may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors
or otherwise attempting to obtain control of our company.
Super-Majority
Voting
The Delaware
General Corporation Law provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required
to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate of incorporation or bylaws,
as the case may be, requires a greater percentage. Our bylaws may be amended or repealed by a majority vote of our board of directors
or the affirmative vote of the holders of at least 66 2/3% of the total voting power of outstanding voting securities. In addition, the
affirmative vote of the holders of at least 66 2/3% of the voting power of the outstanding shares of the capital stock entitled to vote
thereon is required to amend, repeal or to adopt any provisions of our certificate of incorporation that are inconsistent with, among
others, the provisions relating to the general powers of our board of directors, the number and election of directors, the filling of
vacancies on our board of directors, the ability of our board of directors to adopt, amend or repeal our bylaws, the ability to call special
stockholder meetings, director liability and director and officer indemnification.
Board
of Directors
Our certificate
of incorporation authorizes our board of directors to, by a resolution of the majority of our board of directors, fix the number of directors
from time to time and to appoint new directors to fill any vacancies. The limitations on the ability of our stockholders to remove directors,
change the authorized number of directors and fill vacancies could make it more difficult for a third party to acquire, or discourage
a third party from seeking to acquire, control of our company.
Exclusive
Forum
Our certificate
of incorporation requires, unless we consent in writing to the selection of an alternative forum, that the Court of Chancery in the State
of Delaware will be the sole and exclusive forum for any stockholder to bring (i) any derivative action or proceeding brought on our behalf,
(ii) any action asserting a claim of breach of fiduciary duty owed by any of our directors, officers or other employees to us or our stockholders,
(iii) any action asserting a claim against us, our directors, officers or employees arising pursuant to any provision of the Delaware
General Corporation Law or our certificate of incorporation or bylaws or (iv) any action asserting a claim against us, our directors,
officers or employees governed by the internal affairs doctrine, except for, as to each of (i) through (iv) above, any claim as to which
the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery, which
is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery or for which the Court of Chancery does not
have subject matter jurisdiction. Although we believe this provision benefits us by providing increased consistency in the application
of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against our directors
and officers.
Delaware
Law
We are subject
to Section 203 of the Delaware General Corporation Law. This statute regulating corporate takeovers prohibits a Delaware corporation from
engaging in any business combination with any interested stockholder for three years following the date that the stockholder became an
interested stockholder, unless:
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prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
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upon completion of the transaction that resulted in the interested stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding (a) shares owned by persons who are directors and also officers, and |
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(b) shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
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on or subsequent to the date of the transaction, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder. |
Generally, a
business combination includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder.
An interested stockholder is any person who, together with such person’s affiliates and associates (i) owns 15% or more of a corporation’s
voting securities or (ii) is an affiliate or associate of a corporation and was the owner of 15% or more of the corporation’s voting
securities at any time within the three-year period immediately preceding a business combination of the corporation governed by Section
203. We expect the existence of this provision to have an anti-takeover effect with respect to transactions our board of directors does
not approve in advance. We also anticipate that Section 203 may discourage takeover attempts that might result in a premium over the market
price for the shares of common stock held by our stockholders.
DESCRIPTION
OF DEBT SECURITIES
This prospectus
describes certain general terms and provisions of debt securities that we may offer. The debt securities may be issued pursuant to, in
the case of senior debt securities, a senior indenture, and in the case of subordinated debt securities, a subordinated indenture, in
each case in the forms filed as exhibits to this registration statement, which we refer to as the “indentures.” The indentures
will be entered into between us and a trustee to be named prior to the issuance of any debt securities, which we refer to as the “trustee.”
The indentures will not limit the amount of debt securities that can be issued thereunder and will provide that the debt securities may
be issued from time to time in one or more series pursuant to the terms of one or more securities resolutions or supplemental indentures
creating such series.
We have summarized
below the material provisions of the indentures and the debt securities or indicated which material provisions will be described in the
related prospectus supplement for any offering of debt securities. These descriptions are only summaries, and you should refer to the
relevant indenture for the particular offering of debt securities itself which will describe completely the terms and definitions of the
offered debt securities and contain additional information about the debt securities.
Terms
When
we offer to sell a particular series of debt securities, we will describe the specific terms of the securities in a prospectus supplement.
The prospectus supplement will set forth the following terms, as applicable, of the debt securities offered thereby:
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the designation, aggregate principal amount, currency or composite currency and denominations; |
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the price at which such debt securities will be issued and, if an index formula or other method is used, the method for determining amounts of principal or interest; |
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the maturity date and other dates, if any, on which principal will be payable; |
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination; |
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the interest rate (which may be fixed or variable), if any; |
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the date or dates from which interest will accrue and on which interest will be payable, and the record dates for the payment of interest; |
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the manner of paying principal and interest; |
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the place or places where principal and interest will be payable; |
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the terms of any mandatory or optional redemption by us or any third party including any sinking fund; |
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the terms of any conversion or exchange; |
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the terms of any redemption at the option of holders or put by the holders; |
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any tax indemnity provisions; |
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if the debt securities provide that payments of principal or interest may be made in a currency other than that in which the debt securities are denominated, the manner for determining such payments; |
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the portion of principal payable upon acceleration of a Discounted Debt Security (as defined below); |
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whether and upon what terms debt securities may be defeased; |
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any events of default or covenants in addition to or in lieu of those set forth in the indentures; |
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provisions for electronic issuance of debt securities or for the issuance of debt securities in uncertificated form; and |
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any additional provisions or other special terms not inconsistent with the provisions of the indentures, including any terms that may be required or advisable under United States or other applicable laws or regulations, or advisable in connection with the marketing of the debt securities. |
Debt
securities of any series may be issued as registered debt securities or uncertificated debt securities, in such denominations as specified
in the terms of the series.
Securities
may be issued under the indentures as discounted debt securities to be offered and sold at a substantial discount from the principal amount
thereof. Special United States federal income tax and other considerations applicable thereto will be described in the prospectus supplement
relating to such discounted debt securities. “Discounted debt security” means a security where the amount of principal due
upon acceleration is less than the stated principal amount.
We
are not obligated to issue all debt securities of one series at the same time and, unless otherwise provided in the prospectus supplement,
we may reopen a series, without the consent of the holders of the debt securities of that series, for the issuance of additional debt
securities of that series. Additional debt securities of a particular series will have the same terms and conditions as outstanding debt
securities of such series, except for the date of original issuance and the offering price, and will be consolidated with, and form a
single series with, such outstanding debt securities.
Ranking
The
senior debt securities will rank equally with all of our other senior and unsubordinated debt. Our secured debt, if any, will be effectively
senior to the senior debt securities to the extent of the value of the assets securing such debt. The subordinated debt securities will
be subordinate and junior in right of payment to all of our present and future senior indebtedness to the extent and in the manner described
in the prospectus supplement and as set forth in the board resolution, officer’s certificate or supplemental indenture relating
to such offering.
Certain Covenants
Any
covenants that may apply to a particular series of debt securities will be described in the prospectus supplement relating thereto.
Successor
Obligor
The
indentures provide that, unless otherwise specified in the securities resolution or supplemental indenture establishing a series of debt
securities, we shall not consolidate with or merge into, or transfer all or substantially all of our assets to, any person in any transaction
in which we are not the survivor, unless:
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the person is organized under the laws of the United States or a jurisdiction within the United States; |
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the person assumes by supplemental indenture all of our obligations under the relevant indenture, the debt securities and any coupons; |
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immediately after the transaction no Default (as defined below) exists; and |
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we deliver to the trustee an officers’ certificate and opinion of counsel stating that the transaction complies with the foregoing requirements and that all conditions precedent provided for in the indenture relating to the transaction have been complied with. |
In
such event, the successor will be substituted for us, and thereafter all of our obligations under the relevant indenture, the debt securities
and any coupons will terminate.
The
indentures provide that these limitations shall not apply if our board of directors makes a good faith determination that the principal
purpose of the transaction is to change our state of incorporation.
Exchange
of Debt Securities
Registered
debt securities may be exchanged for an equal aggregate principal amount of registered debt securities of the same series and date of
maturity in such authorized denominations as may be requested upon surrender of the registered debt securities at an agency of the Company
maintained for such purpose and upon fulfillment of all other requirements of such agent.
Default and
Remedies
Unless
the securities resolution or supplemental indenture establishing the series otherwise provides (in which event the prospectus supplement
will so state), an “Event of Default” with respect to a series of debt securities will occur if:
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we default in any payment of interest on any debt securities of such series when the same becomes due and payable and the default continues for a period of 30 days; |
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we default in the payment of all or any part of the principal and premium, if any, of any debt securities of such series when the same becomes due and payable at maturity or upon redemption, acceleration or otherwise and such default shall continue for five or more days; |
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we default in the performance of any of our other agreements applicable to the series and the default continues for 30 days after the notice specified below; |
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a court of competent jurisdiction enters an order or decree under any Bankruptcy Law (as defined below) that: |
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is for relief against us in an involuntary case, |
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appoints a Custodian (as defined below) for us or for any substantial part of our property, or |
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orders the winding up or liquidation of us, and the order or decree remains unstayed and in effect for 90 days; |
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we, pursuant to or within the meaning of any Bankruptcy Law: |
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commence a voluntary case, |
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consent to the entry of an order for relief against us in an involuntary case, |
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consent to the appointment of a Custodian for us or for any substantial part of our property, or |
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make a general assignment for the benefit of our creditors; or |
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there occurs any other Event of Default provided for in such series. |
The term “Bankruptcy
Law” means Title 11 of the United States Code or any similar Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
“Default”
means any event which is, or after notice or passage of time would be, an Event of Default. A Default under subparagraph (3) above is
not an Event of Default until the trustee or the holders of at least 25% in principal amount of the series notify us of the Default and
we do not cure the Default within the time specified after receipt of the notice.
The trustee
may require indemnity satisfactory to it before it enforces the indentures or the debt securities of the series. Subject to certain limitations,
holders of a majority in principal amount of the debt securities of the series may direct the trustee in its exercise of any trust or
power with respect to such series. Except in the case of Default in payment on a series, the trustee may withhold from securityholders
of such series notice of any continuing Default if the trustee determines that withholding notice is in the interest of such securityholders.
We are required to furnish the trustee annually a brief certificate as to our compliance with all conditions and covenants under the indentures.
The indentures
do not have cross-default provisions. Thus, a default by us on any other debt, including any other series of debt securities, would not
constitute an Event of Default.
Amendments
and Waivers
The indentures
and the debt securities or any coupons of the series may be amended, and any Default may be waived as follows:
Unless the securities
resolution or supplemental indenture otherwise provides (in which event the applicable prospectus supplement will so state), the debt
securities and the indentures may be amended with the consent of the holders of a majority in principal amount of the debt securities
of all series affected voting as one class. Unless the securities resolution or supplemental indenture otherwise provides (in which event
the applicable prospectus supplement will so state), a Default other than a Default in payment on a particular series may be waived with
the consent of the holders of a majority in principal amount of the debt securities of the series. However, without the consent of each
securityholder affected, no amendment or waiver may:
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change the fixed maturity of or the time for payment of interest on any debt security; |
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reduce the principal, premium or interest payable with respect to any debt security; |
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change the place of payment of a debt security or the currency in which the principal or interest on a debt security is payable; |
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change the provisions for calculating any redemption or repurchase price with respect to any debt security; |
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adversely affect any holder’s right to receive payment of principal and interest or to institute suit for the enforcement of any such payment; |
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reduce the amount of debt securities whose holders must consent to an amendment or waiver; |
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make any change that materially adversely affects the right to convert any debt security; |
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waive any Default in payment of principal of or interest on a debt security; or |
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adversely affect any holder’s rights with respect to redemption or repurchase of a debt security. |
Without the
consent of any securityholder, the indentures or the debt securities may be amended to:
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provide for assumption of our obligations to securityholders in the event of a merger or consolidation requiring such assumption; |
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cure any ambiguity, omission, defect or inconsistency; |
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conform the terms of the debt securities to the description thereof in the prospectus and prospectus supplement offering such debt securities; |
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create a series and establish its terms; |
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provide for the acceptance of appointment by a successor trustee or to facilitate the administration of the trusts by more than one trustee; |
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provide for uncertificated or unregistered securities; |
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make any change that does not adversely affect the rights of any securityholder; |
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add to our covenants; or |
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make any other change to the indentures so long as no debt securities are outstanding. |
Conversion
Rights
Any securities
resolution or supplemental indenture establishing a series of debt securities may provide that the debt securities of such series will
be convertible at the option of the holders thereof into or for our common stock or other equity or debt instruments. The securities resolution
or supplemental indenture may establish, among other things, (1) the number or amount of shares of common stock or other equity or debt
instruments for which $1,000 aggregate principal amount of the debt securities of the series is convertible, as may be adjusted pursuant
to the terms of the relevant indenture and the securities resolution; and (2) provisions for adjustments to the conversion rate and limitations
upon exercise of the conversion right. The indentures provide that we will not be required to make an adjustment in the conversion rate
unless the adjustment would require a cumulative change of at least 1% in the conversion rate. However, we will carry forward any adjustments
that are less than 1% of the conversion rate and take them into account in any subsequent adjustment of the conversion rate.
Legal
Defeasance and Covenant Defeasance
Debt securities
of a series may be defeased in accordance with their terms and, unless the securities resolution or supplemental indenture establishing
the terms of the series otherwise provides, as set forth below. We at any time may terminate as to a series all of our obligations (except
for certain obligations, including obligations with respect to the defeasance trust and obligations to register the transfer or exchange
of a debt security, to replace destroyed, lost or stolen debt securities and coupons and to maintain paying agencies in respect of the
debt securities) with respect to the debt securities of the series and any related coupons and the relevant indenture, which we refer
to as legal defeasance. We at any time may terminate as to a series our obligations with respect to any restrictive covenants which may
be applicable to a particular series, which we refer to as covenant defeasance.
We may exercise
our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option. If we exercise our legal defeasance
option, a series may not be accelerated because of an Event of Default. If we exercise our covenant defeasance option, a series may not
be accelerated by reference to any covenant which may be applicable to a series.
To exercise
either defeasance option as to a series, we must (1) irrevocably deposit in trust with the trustee (or another trustee) money or U.S.
Government Obligations (as defined below), deliver a certificate from a nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due on the deposited U.S. Government Obligations, without reinvestment,
plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay the principal
and interest when due on all debt securities of such series to maturity or redemption, as the case may be; and (2) comply with certain
other conditions. In particular, we must obtain an opinion of tax counsel that the defeasance will not result in recognition of any gain
or loss to holders for federal income tax purposes.
“U.S.
Government Obligations” means direct obligations of the United States or any agency or instrumentality of the United States, the
payment of which is unconditionally guaranteed by the United States, which, in either case, have the full faith and credit of the United
States pledged for payment and which are not callable at the issuer’s option, or certificates representing an ownership interest
in such obligations.
Regarding
the Trustee
Unless otherwise
indicated in a prospectus supplement, the trustee will also act as depository of funds, transfer agent, paying agent and conversion agent,
as applicable, with respect to the debt securities. In certain circumstances, we or the securityholders may remove the trustee as the
trustee under a given indenture. The indenture trustee may also provide additional unrelated services to us as a depository of funds,
registrar, trustee and similar services.
Governing
Law
The indentures
and the debt securities will be governed by New York law, except to the extent that the Trust Indenture Act of 1939 is applicable.
DESCRIPTION
OF WARRANTS
We may issue
warrants for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue warrants independently
or together with other securities, and the warrants may be attached to or separate from any offered securities. Each series of warrants
will be issued under a separate warrant agreement to be entered into between us and the investors or a warrant agent. Our board of directors
or a committee designated by the board will determine the terms of the warrants. This prospectus contains only general terms and provisions
of the warrants. The following summary of material provisions of the warrants and warrant agreements are subject to, and qualified in
their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to a particular series
of warrants. The terms of any warrants offered under a prospectus supplement may differ from the terms described below. We urge you to
read the applicable prospectus supplement and any related free writing prospectus, as well as the complete warrant agreements and warrant
certificates that contain the terms of the warrants. Specific warrant agreements will contain additional important terms and provisions
and we will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from
another report that we file with the SEC, the form of each warrant agreement relating to warrants offered under this prospectus.
The particular
terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
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the number of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and the price at which such number of shares may be purchased upon such exercise; |
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the designation, stated value and terms (including, without limitation, liquidation, dividend, conversion and voting rights) of the series of preferred stock purchasable upon exercise of warrants to purchase preferred stock; |
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the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which may be payable in cash, securities or other property; |
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the date on which the right to exercise the warrants will commence and the date on which the right will expire; |
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United States federal income tax consequences applicable to the warrants; and |
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any additional terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement of the warrants. |
DESCRIPTION
OF UNITS
We may issue
units consisting of our common stock or preferred stock, debt securities and/or warrants to purchase any of these securities in one or
more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into
unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address
of the unit agent in the applicable prospectus supplement relating to a particular series of units.
The following
description, together with the additional information included in any applicable prospectus supplement, summarizes the general features
of the units that we may offer under this prospectus. You should read any prospectus supplement and any free writing prospectus that we
may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements that contain
the terms of the units. Specific unit agreements will contain additional important terms and provisions and we will file as an exhibit
to the registration statement of which this prospectus is a part, or will incorporate by reference from another report that we file with
the SEC, the form of each unit agreement relating to units offered under this prospectus.
If we offer
any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without limitation,
the following, as applicable:
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the title of the series of units; |
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identification and description of the separate constituent securities comprising the units; |
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the price or prices at which the units will be issued; |
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
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a discussion of certain United States federal income tax considerations applicable to the units; and |
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any other terms of the units and their constituent securities. |
PLAN OF
DISTRIBUTION
We may sell
the securities offered through this prospectus (i) to or through underwriters or dealers, (ii) directly to purchasers, including our affiliates,
(iii) through agents, or (iv) through a combination of any these methods.
If underwriters
or dealers are used in the sale, the securities will be acquired by the underwriters or dealers for their own account and may be resold
from time to time in one or more transactions, including:
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in one or more transactions at a fixed price or prices, which may be changed from time to time; |
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in “at-the-market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act to or through a market maker or into an existing trading market, on an exchange or otherwise; |
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through a market maker or into an existing trading market on an exchange or otherwise; |
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at prices related to those prevailing market prices; or |
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at negotiated prices. |
The applicable
prospectus supplement will include the following information to the extent applicable:
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the terms of the offering; |
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the names of any underwriters, dealers or agents; |
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the name or names of any managing underwriter or underwriters; |
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the purchase price of the securities; |
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the net proceeds from the sale of the securities; |
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any delayed delivery arrangements; |
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any underwriting discounts, commissions or agency fees and other items constituting underwriters’ compensation; |
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any initial public offering price; |
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any discounts or concessions allowed or reallowed or paid to dealers; and |
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any commissions paid to agents. |
Sale Through
Underwriters or Dealers
If underwriters
are used in the sale, the underwriters will acquire the securities for their own account, including through underwriting, purchase, security
lending or repurchase agreements with us. The underwriters may resell the securities from time to time in one or more transactions, including
negotiated transactions. Underwriters may sell the securities in order to facilitate transactions in any of our other securities (described
in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters may offer securities to
the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting
as underwriters. Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters to purchase the securities
will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase
any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers.
If dealers are
used in the sale of securities offered through this prospectus, we will sell the securities to them as principals. They may then resell
those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus supplement will include
the names of the dealers and the terms of the transaction.
Direct
Sales and Sales Through Agents
We may sell
the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such securities may
also be sold through agents designated from time to time. The prospectus supplement will name any agent involved in the offer or sale
of the offered securities and will describe any commissions payable to the agent. Unless otherwise indicated in the prospectus supplement,
any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell
the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities
Act with respect to any sale of those securities. The terms of any such sales will be described in the prospectus supplement.
At-the-Market
Offerings
To the extent
that we make sales through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a sales
agency financing agreement or other at-the-market offering arrangement between us, on one hand, and the underwriters or agents, on the
other. If we engage in at-the-market sales pursuant to any such agreement, we will issue and sell our securities through one or more underwriters
or agents, which may act on an agency basis or a principal basis. During the term of any such agreement, we may sell securities on a daily
basis in exchange transactions or otherwise as we agree with the underwriters or agents. Any such agreement will provide that any securities
sold will be sold at prices related to the then prevailing market prices for our securities. Pursuant to the terms of the agreement, we
may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase blocks of our common stock or other
securities. The terms of any such agreement will be described in the prospectus supplement.
Delayed
Delivery Contracts
If the prospectus
supplement indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase
securities at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a
specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The applicable
prospectus supplement will describe the commission payable for solicitation of those contracts.
Settlement
Under Rule 15c6-1
of the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties to any such
trade expressly agree otherwise. The applicable prospectus supplement may provide that the original issue date for the applicable securities
may be more than two scheduled business days after the trade date for the securities. Accordingly, in such a case, if a purchaser of securities
wishes to trade securities on any date prior to the second business day before the original issue date for the securities, they will be
required, by virtue of the fact that the securities initially are expected to settle more than two scheduled business days after the trade
date for the securities, to make alternative settlement arrangements to prevent a failed settlement.
General
Information
Agents, underwriters,
and dealers may be entitled, under agreements entered into with us, to indemnification by us against certain liabilities, including liabilities
under the Securities Act. Our agents, underwriters, and dealers, or their affiliates, may be customers of, engage in transactions with
or perform services for us, in the ordinary course of business.
LEGAL
MATTERS
Ropes
& Gray LLP will provide us with an opinion as to certain legal matters in connection with the securities being offered hereby. Additional
legal matters may be passed on for us, or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus
supplement.
EXPERTS
The
balance sheets of Provention Bio, Inc. as of December 31, 2020 and 2019, and the related statements of comprehensive loss, stockholders’
equity and cash flows for each of the years in the three-year period ended December 31, 2020, have been audited by EisnerAmper LLP, independent
registered public accounting firm, as stated in their reports which are incorporated herein by reference, which reports
(1) express an unqualified opinion on the financial statements and (2) express an unqualified opinion on the effectiveness of internal
control over financial reporting. Such financial statements have been incorporated herein by reference in reliance on the report
of such firm given upon their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and other reports, proxy statements and other information with the SEC. Our SEC filings are available to the public
over the Internet at the SEC’s website at http://www.sec.gov. Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q,
and Current Reports on Form 8-K, including any amendments to those reports, and other information that we file with or furnish to the
SEC pursuant to Section 13(a) or 15(d) of the Exchange Act can also be accessed free of charge on our website at http://www.proventionbio.com
under the “Investors—SEC Filings” caption. These filings will be available as soon as reasonably practicable after
we electronically file such material with, or furnish it to, the SEC. Information contained on our website is not part of this prospectus.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to
you by referring you to another document that we have filed separately with the SEC. You should read the information incorporated by
reference because it is an important part of this prospectus. We incorporate by reference the following information or documents that
we have filed with the SEC:
| ● | our
Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as filed with the
SEC on February 25, 2021; |
| ● | the
information specifically incorporated by reference into our Annual Report on Form 10-K from
our Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 29, 2021; |
| ● | our
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2021, as filed with
the SEC on May 6, 2021; |
| ● | our
Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021, as filed with
the SEC on August 5, 2021; |
| ● | our
Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2021, as filed
with the SEC on November 4, 2021; |
| ● | our
Current Reports on Form 8-K, as filed with the SEC on January 15, 2021, February 26, 2021,
April 8, 2021, May 14, 2021, and November 4, 2021 (except, with respect to each of the foregoing,
for portions of such reports which were deemed to be furnished and not filed); and |
| ● | the
description of our common stock contained in our 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 our Annual Report
on Form 10-K for the fiscal year ended December 31, 2020. |
All
reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of the offering of securities described in the applicable prospectus supplement, but excluding any information furnished to, rather than
filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date
of the filing of such reports and documents.
Any
statement contained in any document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or any prospectus supplement modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We
will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral
request, a copy of any or all documents that are incorporated by reference into this prospectus, but not delivered with the prospectus,
other than exhibits to such documents unless such exhibits are specifically incorporated by reference into the documents that this prospectus
incorporates. You should direct written requests to: Provention Bio, Inc., 55 Broad Street, Red Bank, New Jersey 07701 or you may call
us at (908) 336-0360.
PROVENTION
BIO, INC.
Up
to $300,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
PROSPECTUS
SUPPLEMENT
(To
Prospectus dated January 12, 2021)
Up
to $150,000,000
Common
Stock
We
have entered into a sales agreement, or Sales Agreement, with SVB Leerink LLC and Cantor Fitzgerald & Co., each a sales agent and,
collectively, the sales agents, relating to shares of our common stock offered by this prospectus supplement and the accompanying prospectus.
In accordance with the terms of the Sales Agreement, we may offer and sell shares of our common stock having an aggregate offering price
of up to $150,000,000 from time to time through the sales agents.
Our
common stock is listed on the Nasdaq Global Select Market under the symbol “PRVB.” On February 22, 2022, the last reported
sale price of our common stock as reported on the Nasdaq Global Select Market was $6.57 per share.
Sales
of our common stock, if any, under this prospectus supplement may be made in sales deemed to be “at the market offerings”
as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act. Subject to the terms of
the Sales Agreement, the sales agents are not required to sell any specific number or dollar amount of securities, but will act as sales
agents using commercially reasonable efforts to sell on our behalf all of the shares of common stock requested to be sold by us, consistent
with normal trading and sales practices, on mutually agreed terms between the sales agents and us. There is no arrangement for funds
to be received in any escrow, trust or similar arrangement.
Each
sales agent will be entitled to compensation at a commission rate of 3.0% of the aggregate gross sales price per share sold by it under
the Sales Agreement. In connection with the sale of our common stock on our behalf, each sales agent will be deemed to be an “underwriter”
within the meaning of the Securities Act and the compensation of each sales agent will be deemed to be underwriting commissions or discounts.
We have also agreed to provide indemnification and contribution to the sales agents with respect to certain civil liabilities, including
liabilities under the Securities Act.
Investing
in our common stock involves a high degree of risk. Please read the information under the heading “Risk Factors” beginning
on page S-4 of this prospectus supplement, and under similar headings in the documents incorporated by reference into this prospectus
supplement before making your investment decision.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus supplement and accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
February
24, 2022
TABLE
OF CONTENTS
Prospectus
Supplement
ABOUT
THIS PROSPECTUS SUPPLEMENT
In
this prospectus supplement, “Provention,” “we,” “us,” “our” or “ours” refer
to Provention Bio, Inc., a Delaware corporation.
All
trademarks or trade names referred to in this prospectus supplement and the accompanying prospectus are the property of their respective
owners. Solely for convenience, the trademarks and trade names in this prospectus supplement and the accompanying prospectus are referred
to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will
not assert, to the fullest extent under applicable law, their rights thereto. We do not intend the use or display of other companies’
trademarks and trade names to imply a relationship with, or endorsement or sponsorship of us by, any other companies.
This
document is in two parts. The first part is this prospectus supplement, which describes the specific terms of this offering and certain
other matters relating to us and our business. The second part, the accompanying prospectus, contains and incorporates by reference important
business and financial information about us, a description of our common stock and certain other information about us and this offering.
This prospectus supplement and the accompanying prospectus are part of a registration statement that we filed with the Securities and
Exchange Commission, or the SEC, using a “shelf” registration process. Both this prospectus supplement and the accompanying
prospectus include or incorporate by reference important information about us, our common stock and other information you should know
before investing. You should read both this prospectus supplement and the accompanying prospectus, including all documents incorporated
herein and therein by reference, together with the additional information described under “Where You Can Find More Information”
herein and in the accompanying prospectus before making an investment decision.
You
should rely only on the information contained or incorporated by reference in this prospectus supplement, the accompanying prospectus
and in any free writing prospectus we may provide to you in connection with this offering. We have not, and the sales agents have not,
authorized any other person to provide you with any information that is different. If anyone provides you with different or inconsistent
information, you should not rely on it. We are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions
where offers and sales are permitted. The distribution of this prospectus supplement and the accompanying prospectus and the offering
of the common stock in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of
this prospectus supplement and the accompanying prospectus must inform themselves about, and observe any restrictions relating to, the
offering of the common stock and the distribution of this prospectus supplement and the accompanying prospectus outside the United States.
This prospectus supplement and the accompanying prospectus do not constitute, and may not be used in connection with, an offer to sell,
or a solicitation of an offer to buy, any securities offered by this prospectus supplement and the accompanying prospectus by any person
in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
This
prospectus supplement may add to, update or change the information in the accompanying prospectus or the documents incorporated by reference
herein and therein. If information in this prospectus supplement is inconsistent with information in the accompanying prospectus or the
documents incorporated by reference herein and therein, this prospectus supplement will apply and will supersede that information in
the accompanying prospectus or the documents incorporated by reference herein and therein.
SUMMARY
The
following summary of our business highlights some of the information contained elsewhere in or incorporated by reference into this prospectus
supplement. Because this is only a summary, however, it does not contain all of the information that may be important to you. You should
carefully read this prospectus supplement and the accompanying prospectus, including the documents incorporated herein and therein by
reference, which are described under “Incorporation of Certain Information by Reference” and “Where You Can Find More
Information” in this prospectus supplement. You should also carefully consider the matters discussed in the section titled “Risk
Factors” in this prospectus supplement, in the accompanying prospectus and in other periodic reports incorporated by reference
herein and the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operation”
and the financial statements and the notes to those financial statements incorporated by reference in this prospectus supplement before
investing in our common stock.
Company
Overview
We
are a clinical-stage biopharmaceutical company dedicated to intercepting and preventing immune-mediated diseases. Since our inception,
we have devoted substantially all our efforts to business planning, research and development, pre-commercial activities, recruiting management
and technical staff, acquiring operating assets, partnering and raising capital. We have not yet commenced any commercial revenue-generating
operations, do not have any positive cash flows from operations and we will need to raise additional capital to finance our operations.
Our
mission is to intercept and/or prevent autoimmune disease and, when possible, durably reset the immune system ahead of disease progression,
irreversible tissue damage, and organ failure. Our strategic priorities include:
| |
● |
To
preferentially source, develop, and advance clinical-stage, or late preclinical-stage, therapeutic candidates targeting upstream
mechanistic nodes in order to intercept and/or prevent immune-mediated diseases |
| |
● |
To
leverage our immunology research and development capabilities to access different mechanistic approaches through in-licensed assets
and/or partnerships |
| |
● |
To
“predict” and “preempt” pathogenesis by identifying at-risk individuals and early-onset disease patients
for whom early intervention may help prevent, ameliorate or delay the progression of chronic life-threatening and debilitating disease |
We
believe our interception and prevention conceptual platform, experience and expertise in translational medicine and immunology, and our
ability to design and execute rapid go/no-go clinical trials makes us unique in the field of autoimmune-mediated disease.
We
continue building on our access to relevant in-licensing opportunities from industry-leading pharmaceutical companies; innovative, development-stage
biotechnology companies; and world-renowned academic centers. To date, we have obtained exclusive worldwide rights to two product candidates
from MacroGenics, Inc., the asset acquisition of teplizumab (PRV-031), a Phase 3 clinical-stage candidate for type 1 diabetes (“T1D”),
and the in-license of PRV-3279, a Phase 2 candidate for the potential treatment of systemic lupus erythematosus. We also in-licensed
an enterovirus vaccine platform, targeting the prevention of coxsackievirus B infections and the potential onset of T1D and celiac disease
that includes PRV-101 from Vactech Ltd., a Finnish biotechnology company. Additionally, we in-licensed PRV-015 (ordesekimab), a Phase
2 clinical-stage candidate targeting celiac disease, from Amgen, Inc.
Corporate
Information
We
are a Delaware corporation formed on October 4, 2016. Our principal executive offices are located at 55 Broad Street, 2nd Floor, Red
Bank, New Jersey 07701. Our phone number is (908) 336-0360 and our web address is http://www.proventionbio.com. Information contained
in or accessible through our website is not, and should not be deemed to be, incorporated by reference in, or considered part of, this
prospectus supplement.
THE
OFFERING
The
following summary contains basic information about our common stock and the offering and is not intended to be complete. It does not
contain all of the information that may be important to you. For a more complete understanding of our common stock, you should read this
prospectus supplement, the accompanying prospectus, and the documents referred to herein and therein.
| Common
stock offered by us |
Shares
of our common stock having an aggregate offering price of up to $150,000,000. |
| |
|
Common
stock to be outstanding
immediately after this offering |
Up
to 86,205,788 shares (as more fully described in the notes following this table), assuming sales of 22,831,050 shares of our common
stock in this offering at an offering price of $6.57 per share, which was the last reported sale price of our common stock on the
Nasdaq Global Select Market on February 22, 2022. The actual number of shares issued will vary depending on how many shares of our
common stock we choose to sell and the prices at which such sales occur. |
| |
| Plan
of distribution |
“At
the market offering” that may be made from time to time through our sales agents, SVB Leerink LLC and Cantor Fitzgerald &
Co. See “Plan of Distribution” on page S-10. |
| |
| Use
of proceeds |
We
intend to use the net proceeds from this offering, if any, for general corporate purposes, including but not limited to, working
capital, capital expenditures, research and development expenditures, clinical trial expenditures, potential milestone payments
and potential commercialization activities. See “Use of Proceeds.” |
| |
| Risk
factors |
Investing
in our common stock involves a high degree of risk. See “Risk Factors” beginning on page S-4 of this prospectus supplement
and under similar headings in the documents incorporated by reference into this prospectus supplement for a discussion of factors
you should read and consider before investing in our common stock. |
| |
| Nasdaq
Global Select Market symbol |
“PRVB” |
The
number of shares of our common stock to be outstanding upon completion of this offering is based on 63,374,738 shares of our common stock
outstanding as of December 31, 2021 and excludes the following:
| ● | 12,473,182
shares of our common stock issuable upon the exercise of outstanding stock options issued
under the Amended and Restated Provention Bio, Inc. 2017 Equity Incentive Plan, or the Provention
Bio, Inc. 2020 Inducement Plan, as of December 31, 2021 with a weighted average exercise
price of $8.48 per share; |
| ● | 828,351
shares of our common stock reserved for future issuance under our 2017 Equity Incentive Plan
as of December 31, 2021; |
| ● | 562,200
shares of our common stock reserved for future issuance under the Provention Bio, Inc. 2020
Inducement Plan as of December 31, 2021; and |
| ● | 1,704,828
shares of our common stock issuable upon the exercise of outstanding warrants as of December
31, 2021 with a weighted average exercise price of $4.65 per share. |
Unless
otherwise indicated, all information in this prospectus supplement assumes no issuance or exercise of stock options or warrants after
December 31, 2021.
RISK
FACTORS
An
investment in our common stock involves a high degree of risk, including the risk of a loss of your entire investment. You should carefully
consider the following risk factors, as well as the risks described under “Risk Factors” in the accompanying prospectus,
our Annual Report on Form 10-K for the year ended December 31, 2020 and any risk factors contained in our subsequent filings with the
SEC that are incorporated by reference in this prospectus supplement, as well as other information in this prospectus supplement and
the documents incorporated by reference herein before deciding whether to invest in our common stock. See “Where You Can Find More
Information.” If any such risks actually occur, our business, financial condition or results of operations could be adversely affected.
In such case, the trading price of our common stock could decline and you could lose all or part of your investment. Our actual results
could differ materially from those anticipated in the forward-looking statements made throughout this prospectus supplement and in the
documents incorporated by reference herein as a result of different factors, including the risks we face described below and in the documents
incorporated by reference herein. The risks and uncertainties described below and incorporated by reference herein are not the only ones
facing us and there may be additional matters that we are unaware of or that we currently consider immaterial.
Risks
Related to this Offering
If
you purchase common stock in this offering, you may suffer immediate dilution of your investment.
Because
the price per share of our common stock being offered may be substantially higher than the book value per share of our common stock,
you may suffer substantial dilution in the net tangible book value of the common stock you purchase in this offering. The shares being
sold in this offering, if any, will be sold from time to time at various prices. After giving effect to the sale of our common stock
in the maximum aggregate offering amount of $150.0 million at an assumed offering price of $6.57 per share, which was the last reported
sale price of our common stock on the Nasdaq Global Select Market on February 22, 2022, and after deducting offering commissions and
estimated offering expenses payable by us, investors in this offering will suffer immediate and substantial dilution of $3.61 per share.
See “Dilution” for a more detailed discussion of the dilution you may incur if you purchase shares of our common stock in
this offering.
Our
management team may invest or spend the proceeds of this offering in ways with which you may not agree or in ways which may not yield
a significant return.
We
currently intend to use the net proceeds from this offering for general corporate purposes, including but not limited to, working capital,
capital expenditures, research and development expenditures, clinical trial expenditures and potential commercialization activities.
However, we have not determined the specific allocation of the net proceeds among these potential uses. Our management will have broad
discretion over the use and investment of the net proceeds of this offering, and accordingly, investors in this offering will need to
rely upon the judgment of our management with respect to the use of proceeds, with only limited information concerning our specific intentions.
These proceeds could be applied in ways that do not improve our operating results or increase the value of your investment. See “Use
of Proceeds” for further information.
If
we sell shares of our common stock in future financings, stockholders may experience immediate dilution and, as a result, our stock price
may decline.
We
expect that significant additional capital may be needed in the future to continue our planned operations, including commercialization
activities, if approved, conducting clinical trials, and expanding research and development activities. To raise capital, we may sell
common stock, convertible securities, or other equity securities in one or more transactions at prices and in a manner we determine from
time to time. If we sell common stock, convertible securities, or other equity securities, investors may be materially diluted by subsequent
sales. Such sales may also result in material dilution to our existing stockholders, and new investors could gain rights, preferences,
and privileges senior to the holders of our common stock, including shares of common stock sold in this offering.
The
price of our common stock may be volatile and fluctuate substantially, which could result in substantial losses for stockholders.
The
market price of our common stock has been volatile and can be subject to wide fluctuations in response to various factors, some of which
are beyond our control, including the reporting of results of our clinical trials or partner-sponsored clinical trials involving our
programs. These factors include those discussed in this “Risk Factors” section of this prospectus supplement, our annual
report on Form 10-K, quarterly reports on Form 10-Q and others such as:
| ● | our
commercialization, marketing and manufacturing prospects; |
| ● | our
intentions and our ability to establish collaborations and/or partnerships; |
| ● | the
timing or likelihood of regulatory filings and approvals; |
| ● | our
development, commercialization, marketing and manufacturing capabilities; |
| ● | our
expectations regarding the potential market size and the size of the patient populations
for our product candidates; |
| ● | the
implementation of our business model and strategic plans for our business and technology; |
| ● | the
scope of protection we are able to establish and maintain for intellectual property rights
covering our product candidates, along with any product modifications and improvements; |
| ● | estimates
of our expenses, future revenue, capital requirements, our needs for additional financing
and our ability to obtain additional capital; |
| ● | our
financial performance; and |
| ● | developments
and projections relating to our competitors and our industry, including competing therapies
and procedures. |
In
addition, the stock markets in general, and the markets for biopharmaceutical and biotechnology stocks in particular, have experienced
extreme volatility that may have been unrelated to the operating performance of the issuer. These broad market fluctuations may adversely
affect the market price or liquidity of our common stock. In the past, when the market price of a stock has been volatile, holders of
that stock have sometimes instituted securities class action litigation against the issuer. If any of our stockholders were to bring
such a lawsuit against us, we could incur substantial costs defending the lawsuit and the attention of our management would be diverted
from the operation of our business.
Shareholders
will experience dilution by exercises of outstanding warrants and options.
As
of December 31, 2021, there were 1,704,828 shares of our common stock issuable upon the exercise of outstanding warrants, with a weighted
average exercise price of $4.65 per share, and options to purchase an aggregate of up to 12,473,182 shares of our common stock, with
a weighted average exercise price of $8.48 per share. The exercise of such warrants and options will result in dilution of your investment.
As a result of this dilution, you may receive significantly less than the full purchase price you paid for our common stock in the event
of our liquidation.
Sales
of a substantial number of shares of our common stock in the public market could cause our stock price to decline.
Sales
of a substantial number of shares of our common stock in the public market could cause the market price of our common stock to decline.
If our executive officers, directors or existing stockholders sell, or indicate an intention to sell, substantial amounts of our common
stock in the public market, the market price of our common stock could decline.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus supplement, the accompanying prospectus and the documents incorporated herein and therein by reference contain forward- looking
statements, which statements involve substantial risks and uncertainties. The words “anticipate,” “believe,”
“estimate,” “expect,” “intend,” “may,” “plan,” “predict,” “project,”
“would” and similar expressions are intended to identify forward-looking statements, although not all forward- looking statements
contain these identifying words. You should read these statements carefully because they discuss future expectations, contain projections
of future results of operations or financial condition, or state other “forward-looking” information. These statements relate
to our future plans, objectives, expectations, intentions and financial performance and the assumptions that underlie these statements.
These forward-looking statements include, among other things, statements about:
| ● | the
expectation that we will incur operating losses for the foreseeable future; |
| ● | our
current and future capital requirements to support our development and commercialization
efforts for our product candidates and our ability to satisfy our capital needs; |
| ● | potential
attributes and benefits of our current or future product candidates; |
| ● | our
dependence on our product candidates, which are in various stages of clinical development,
as supplemented by certain pre-clinical studies for alternative uses; |
| ● | our
ability to obtain, or the timeline to obtain, regulatory approval from the FDA, the EMA,
and other regulatory authorities for our product candidates, such as the use of PRV-031 in
at-risk individuals, including the adequacy of clinical data to support approval, the comparability
of our current third party manufacturing process with that of previous manufacturing processes
by other companies for PRV-031 and the potential need for a companion diagnostic device; |
| ● | the
initiation, cost, timing, progress and results of our current and future clinical trials
and regulatory filings; |
| ● | the
timing of, and our ability to obtain and maintain, regulatory approvals for our existing
or future product candidates; |
| ● | the
potential benefits of strategic partnership agreements and our ability to enter into selective
strategic partnership agreements; |
| ● | our
ability to successfully commercialize our product candidates, including PRV-031 for the use
in at-risk individuals, if approved; |
| ● | our
intellectual property position, including with respect to our trade secrets and the duration
of our patent protection; |
| ● | the
severity, magnitude and duration of the COVID-19 pandemic, including impacts of the pandemic
on our ability to recruit candidates for clinical trials or on other clinical trial activities
or to raise capital to support the development and commercialization of our product candidates; |
| ● | our
ability to maintain or protect the validity of our licensed patents and other intellectual
property; |
| ● | our
estimates regarding expenses, future revenues, capital requirements, the sufficiency of our
current and expected cash resources and our need for additional financing; and |
| ● | our
anticipated use of proceeds from this offering. |
All
forward-looking statements contained in this prospectus supplement and in the documents incorporated by reference into this prospectus
supplement are expressly qualified in their entirety by this cautionary statement, the risk factors set forth under the heading “Risk
Factors” in this prospectus supplement, the risk factors set forth under the section entitled “Risk Factors” incorporated
by reference into this prospectus supplement from our Annual Report on Form 10-K for the year ended December 31, 2021, and any risk factors
contained in our subsequent filings with the SEC that are incorporated by reference in this prospectus supplement. Please reference “Where
You Can Find More Information.” These forward-looking statements speak only as of the date of this prospectus supplement. Except
to the extent required by applicable laws and regulations of the SEC, we undertake no obligation to update these forward-looking statements
to reflect new information, events or circumstances after the date of this prospectus supplement or to reflect the occurrence of unanticipated
events. In light of these risks and uncertainties, the forward-looking events and circumstances described in this prospectus supplement
may not occur and actual results could differ materially from those anticipated or implied in the forward-looking statements. Accordingly,
you are cautioned not to place undue reliance on these forward-looking statements.
USE
OF PROCEEDS
We
may issue and sell shares of our common stock having aggregate gross sales proceeds of up to $150.0 million from time to time under this
prospectus supplement. Because there is no minimum offering amount required pursuant to the Sales Agreement, the actual total public
offering amount, commissions and proceeds to us, if any, are not determinable at this time. The amount of proceeds from this offering
will depend upon the number of shares of our common stock sold and the market price at which they are sold. There can be no assurance
that we will be able to sell any shares under or fully utilize the Sales Agreement with the sales agents as a source of financing.
We
intend to use the net proceeds from this offering, if any, for general corporate purposes, including but not limited to, working capital,
capital expenditures, research and development expenditures, clinical trial expenditures, potential milestone payments and potential
commercialization activities.
The
expected use of the net proceeds from this offering represents our intentions based upon our current plans and business conditions, which
could change in the future as our plans and business conditions evolve. The amounts and timing of our actual expenditures may vary significantly
depending on numerous factors, including the progress of regulatory review of our product candidates, the status of and results from
clinical trials, as well as any acquisition or licensing of additional technologies, other assets or businesses that we may opportunistically
identify or any other strategic investments or opportunities that we may pursue, and any unforeseen cash needs. As a result, our management
will retain broad discretion over the allocation of the net proceeds from this offering.
Pending
our use of the net proceeds from this offering, we intend to invest the net proceeds in a variety of capital preservation investments,
including short-term, investment-grade, interest-bearing instruments and U.S. government securities.
DILUTION
If
you invest in our common stock in this offering, your ownership interest will be immediately diluted to the extent of the difference
between the public offering price per share you pay in this offering and the as adjusted net tangible book value per share of our common
stock immediately after giving effect to this offering.
Our
net tangible book value equals our total tangible assets less our total liabilities. Net tangible book value per share is our net tangible
book value divided by the number of shares of common stock outstanding. Our historical net tangible book value as of December 31, 2021
was approximately $110.4 million, or approximately $1.74 per share of common stock.
After
giving effect to the sale and issuance of $150.0 million of shares of our common stock in this offering at an assumed public offering
price of $6.57 per share, which was the last reported sale price of our common stock on the Nasdaq Global Select Market on February 22,
2022, and after deducting offering commissions and estimated offering expenses payable by us, our as adjusted net tangible book value
as of December 31, 2021 would have been approximately $255.5 million, or approximately $2.96 per share of common stock. This represents
an immediate increase in net tangible book value of $1.22 per share to our existing stockholders, and an immediate dilution of $3.61
per share to new investors participating in this offering. The following table illustrates this dilution on a per share basis:
| Assumed public offering price per share | |
| | | |
$ | 6.57 | |
| Net tangible book value per share as of December 31, 2021 | |
$ | 1.74 | | |
| | |
| Increase in net tangible book value per share as of December 31, 2021 attributable to this offering | |
$ | 1.22 | | |
| | |
| As adjusted net tangible book value per share, after giving effect to this offering | |
| | | |
$ | 2.96 | |
| Dilution per share to new investors participating in this offering | |
| | | |
$ | 3.61 | |
The
table above assumes for illustrative purposes that an aggregate of 22,831,050 shares of our common stock are sold at a price of $6.57
per share, which was the last reported sale price of our common stock on the Nasdaq Global Select Market on February 22, 2022, for aggregate
gross proceeds of $150.0 million. The shares sold in this offering, if any, will be sold from time to time at various prices.
The
as adjusted information above is for illustrative purposes only and will be adjusted based on the actual public offering price and the
actual number of shares that we sell in this offering.
The
above discussion and table are based on 63,374,738 shares of common stock outstanding as of December 31, 2021 and excludes the following:
| ● | 12,473,182
shares of our common stock issuable upon the exercise of outstanding stock options issued
under the 2017 Equity Incentive Plan, or the Provention Bio, Inc. 2020 Inducement Plan, as
of December 31, 2021 with a weighted average exercise price of $8.48 per share; |
| ● | 828,351
shares of our common stock reserved for future issuance under our 2017 Equity Incentive Plan
as of December 31, 2021; |
| ● | 562,200
shares of our common stock reserved for future issuance under the Provention Bio, Inc. 2020
Inducement Plan as of December 31, 2021; and |
| ● | 1,704,828
shares of our common stock issuable upon the exercise of outstanding warrants as of December
31, 2021 with a weighted average exercise price of $4.65 per share. |
To
the extent that options or warrants are exercised, new options are issued under our 2017 Equity Incentive Plan or the Provention Bio,
Inc. 2020 Inducement Plan, or we issue additional shares of common stock in the future, there may be further dilution to investors participating
in this offering. In addition, we may choose to raise additional capital because of market conditions or strategic considerations, even
if we believe that we have sufficient funds for our current or future operating plans. If we raise additional capital through the sale
of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
PLAN
OF DISTRIBUTION
We
have entered into the Sales Agreement with SVB Leerink LLC and Cantor Fitzgerald & Co., under which we may issue and sell shares
of our common stock having an aggregate gross sales price of up to $150,000,000 from time to time through SVB Leerink LLC and Cantor
Fitzgerald & Co. acting as agents. The Sales Agreement has been filed as an exhibit to a current report on Form 8-K filed under the
Exchange Act and incorporated by reference in this prospectus supplement and the accompanying prospectus.
Upon
delivery of a placement notice and subject to the terms and conditions of the Sales Agreement, the sales agents may sell our common stock
by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act, including
sales made directly on the Nasdaq Global Select Market, on any other existing trading market for our common stock, or to or through a
market maker. We may instruct the sales agents not to sell common stock if the sales cannot be effected at or above the price designated
by us from time to time. We or the sales agents may suspend the offering of common stock upon notice and subject to other conditions.
We
will pay the sales agents commissions, in cash, for their services in acting as agents in the sale of our common stock. The sales agents
will be entitled to compensation at a fixed commission rate of 3.0% of the gross sales price per share sold. Because there is no minimum
offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to
us, if any, are not determinable at this time. We have also agreed to reimburse the sales agents for certain specified expenses, including
the fees and disbursements of their legal counsel, in an amount not to exceed $50,000, plus an additional amount not to exceed $10,000
in connection with any filings made with the Financial Industry Regulatory Agency, Inc., or FINRA. In accordance with FINRA Rule 5110,
these reimbursed fees and expenses are deemed sales compensation to the sales agents in connection with this offering. We estimate that
the total expenses for the offering, excluding discounts and commissions payable to the sales agents under the terms of the Sales Agreement,
will be approximately $0.3 million.
The
remaining sales proceeds, after deducting any expenses payable by us and any transaction fees imposed by any governmental, regulatory
or self-regulatory organization in connection with this offering, will equal our net proceeds for the sale of such shares of our common
stock.
Each
sales agent will provide written confirmation to us no later than the opening of the trading day on the Nasdaq Global Select Market after
each trading day on which common stock is sold through it as sales agent under the Sales Agreement. Each confirmation will include the
number or amount of shares sold through it as sales agent on that day, the volume-weighted average price of the shares sold and the net
proceeds to us from such sales.
Settlement
for sales of common stock will occur on the second trading day following the date on which any sales are made, or on some other date
that is agreed upon by us and the sales agents in connection with a particular transaction, in return for payment of the net proceeds
to us. Sales of our common stock as contemplated in this prospectus supplement will be settled through the facilities of The Depository
Trust Company or by such other means as we and the sales agents may agree upon. There is no arrangement for funds to be received in an
escrow, trust or similar arrangement.
To
the extent any sales are made, we will report at least quarterly the number of shares of our common stock sold through the sales agents
under the Sales Agreement, the net proceeds to us and the compensation paid by us to the sales agents in connection with the sales of
our common stock.
Each
sales agent will use its commercially reasonable efforts, consistent with its sales and trading practices, to solicit offers to purchase
shares of our common stock under the terms and subject to the conditions set forth in the Sales Agreement. In connection with the sale
of the common stock on our behalf, the sales agents will be deemed to be “underwriters” within the meaning of the Securities
Act and the compensation of the sales agents will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification
and contribution to the sales agents against certain civil liabilities, including liabilities under the Securities Act.
The
offering of our common stock pursuant to the Sales Agreement will terminate upon the termination of the Sales Agreement as permitted
therein. We and each sales agent (with respect to itself) may each terminate the Sales Agreement at any time upon ten days’ prior
notice.
The
sales agents and/or their respective affiliates have provided, and may in the future provide, various investment banking, commercial
banking and other financial services for us and our affiliates, for which services they may in the future receive customary fees. To
the extent required by Regulation M, the Agents will not engage in any market making activities involving our common stock while the
offering is ongoing under this prospectus supplement and the accompanying prospectus.
This
prospectus supplement and the accompanying prospectus in electronic format may be made available on a website maintained by the sales
agents and the sales agents may distribute this prospectus supplement and the accompanying prospectus electronically.
LEGAL
MATTERS
The
validity of the common stock offered hereby will be passed upon for us by Ropes & Gray LLP. Troutman Pepper Hamilton Sanders LLP
has acted as counsel for the sales agents in connection with certain legal matters related to this offering.
EXPERTS
The
balance sheets of Provention Bio, Inc. as of December 31, 2020 and 2019, and the related statements of comprehensive loss, stockholders’
equity, and cash flows for each of the years in the three-year period ended December 31, 2020, have been audited by EisnerAmper LLP,
independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference, which reports
(1) express an unqualified opinion on the financial statements, and (2) express an unqualified opinion on the effectiveness of internal
control over financial reporting. Such financial statements have been incorporated herein by reference in reliance on the report of such
firm given upon their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus supplement and the accompanying prospectus are part of the registration statement on Form S-3 we filed with the SEC under
the Securities Act and do not contain all the information set forth in the registration statement. Whenever a reference is made in this
prospectus supplement or the accompanying prospectus to any of our contracts, agreements or other documents, the reference may not be
complete and you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents
incorporated by reference into this prospectus supplement and the accompanying prospectus for a copy of such contract, agreement or other
document.
We
file annual, quarterly and other reports, proxy statements and other information with the SEC. Our SEC filings are available to the public
over the Internet at the SEC’s website at http://www.sec.gov. Our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q,
and Current Reports on Form 8-K, including any amendments to those reports, and other information that we file with or furnish to the
SEC pursuant to Section 13(a) or 15(d) of the Exchange Act can also be accessed free of charge on our website at http://www.proventionbio.com
under the “Investors—SEC Filings” caption. These filings will be available as soon as reasonably practicable after
we electronically file such material with, or furnish it to, the SEC. Information contained on our website is not part of this prospectus
supplement or the accompanying prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information to
you by referring you to another document that we have filed separately with the SEC. You should read the information incorporated by
reference because it is an important part of this prospectus supplement and the accompanying prospectus. We incorporate by reference
the following information or documents that we have filed with the SEC:
| ● | our
Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as filed with the
SEC on February 25, 2021; |
| ● | the
information specifically incorporated by reference into our Annual Report on Form 10-K from
our Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 29, 2021; |
| ● | our
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2021, as filed with
the SEC on May 6, 2021; |
| ● | our
Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2021, as filed with
the SEC on August 5, 2021; |
| ● | our
Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2021, as filed
with the SEC on November 4, 2021; |
| ● | our
Current Reports on Form 8-K, as filed with the SEC on January 15, 2021, February 26, 2021,
April 8, 2021, May 14, 2021, and November 4, 2021 (except, with respect to each of the foregoing,
for portions of such reports which were deemed to be furnished and not filed); and |
| ● | the
description of our common stock contained in our 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 our Annual Report
on Form 10-K for the fiscal year ended December 31, 2020. |
All
reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of this offering, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference
into this prospectus supplement and deemed to be part of this prospectus supplement from the date of the filing of such reports and documents.
Any
statement contained in any document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this
prospectus supplement to the extent that a statement contained in this prospectus supplement modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus
supplement.
We
will provide without charge to each person, including any beneficial owner, to whom this prospectus supplement is delivered, upon written
or oral request, a copy of any or all documents that are incorporated by reference into this prospectus supplement, but not delivered
with this prospectus supplement, other than exhibits to such documents unless such exhibits are specifically incorporated by reference
into the documents that this prospectus supplement incorporates. You should direct written requests to: Provention Bio, Inc., 55 Broad
Street, 2nd Floor, Red Bank, New Jersey 07701 or you may call us at (908) 336-0360.
PROSPECTUS
Up
to $150,000,000
Common
Stock
PROSPECTUS SUPPLEMENT
February
24, 2022
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the various costs and expenses (other than the underwriting discounts and commissions) payable by the registrant
in connection with the issuance and distribution of securities registered hereby. All amounts are estimates.
| SEC registration fee | |
$ | 27,810 | (1) |
| Transfer agent’s
and trustee’s fees and expenses | |
| | (2) |
| Printing costs | |
| | (2) |
| Legal fees and expenses | |
| | (2) |
| Accounting fees and expenses | |
| | (2) |
| Miscellaneous
expenses | |
| | (2) |
| Total | |
| | (2) |
(1)
This amount includes $16,365.00 of fees related to the offering, issuance and sale of up to $150,000,000 of the registrant’s
common stock pursuant to this registration statement and a sales agreement, dated as of March 12, 2020, by and between the registrant
and SVB Leerink LLC and Cantor Fitzgerald & Co. The $300,000,000 of shares of common stock registered pursuant to this registration
statement includes $150,000,000 of shares of common stock (the “Unsold Shares”) registered pursuant to Registration Statement
No. 333-252045 which became effective on February 26, 2021. Pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended,
the filing fees previously paid in connection with the Unsold Shares will continue to be applied to the Unsold Shares.
(2)
These fees are calculated based on the number of issuances and the amount of securities offered and accordingly cannot be estimated at
this time. The applicable prospectus supplement will set forth the estimated aggregate amount of expenses payable in respect of any offering
of securities.
Item
15. 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. Pursuant to the indemnification agreements
with the registrant’s directors and officers, the registrant has agreed to indemnify such directors and officers to the fullest
extent permitted by law, including indemnification against expenses and liabilities incurred in legal proceedings to which the director
or officer was, or is threatened to be made, a party arising out of or relating to such director’s or officer’s status as
the registrant’s director, officer, employee or agent, provided that such director or officer acted in good faith and in a manner
that the director or officer reasonably believed to be in, or not opposed to, the best interests of the registrant.
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
16. Exhibits.
(a)
Exhibits. The following exhibits are filed herewith or incorporated herein by reference:
Exhibit
Number |
| Exhibit
Description |
| |
| |
| 1.1 |
| Form
of Underwriting Agreement* |
| 1.2 |
| Sales Agreement, dated as of February 26, 2021, by and among Provention Bio, Inc., SVB Leerink LLC and Cantor Fitzgerald & Co. (incorporated by reference to Exhibit 1.1 to the Registrant’s Form 8-K filed with the SEC on February 26, 2021) |
| 3.1 |
| Second Amended and Restated Certificate of Incorporation of Provention Bio, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Form 8-K filed with the SEC on July 19, 2018) |
| 3.2 |
| Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation of Provention Bio, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Form 8-K filed with the SEC on May 14, 2021) |
| 3.3 |
| Amended and Restated Bylaws of Provention Bio, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Form 8-K filed with the SEC on May 20, 2020) |
| 4.1 |
| Form of Specimen Certificate for Common Stock (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-224801) filed with the SEC on June 20, 2018) |
| 4.2 |
| Form
of Preferred Stock Certificate* |
| 4.3 |
| Form of Senior Debt Indenture (including Form of Senior Note) (incorporated by reference to Exhibit 4.5 to the Registrant’s Registration Statement on Form S-3 (File No. 333-232995) filed with the SEC on August 2, 2019) |
| 4.4 |
| Form of Subordinated Debt Indenture (including Form of Subordinated Note) (incorporated by reference to Exhibit 4.6 to the Registrant’s Registration Statement on Form S-3 (File No. 333-232995) filed with the SEC on August 2, 2019) |
| 4.5 |
| Form
of Warrant to Purchase Common Stock* |
| 4.6 |
| Form
of Warrant to Purchase Preferred Stock* |
| 4.7 |
| Form
of Warrant to Purchase Debt Securities* |
| 4.8 |
| Form
of Unit* |
| 5.1 |
| Opinion
of Ropes & Gray LLP |
| 5.2 |
| Opinion
of Ropes & Gray LLP |
| 23.1 |
| Consent
of EisnerAmper LLP |
| 23.2 |
| Consent
of Ropes & Gray LLP (included in Exhibit 5.1) |
| 23.3 |
| Consent
of Ropes & Gray LLP (included in Exhibit 5.2) |
| 24.1 |
| Power of Attorney (included on the signature page of this Registration Statement under the caption “Power of Attorney) |
| 25.1 |
| Form
T-1 Statement of Eligibility of Trustee for Senior Indenture under the Trust Indenture Act of 1939** |
| 25.2 |
| Form
T-1 Statement of Eligibility of Trustee for Subordinated Indenture under the Trust Indenture Act of 1939** |
| 107 |
| Filing Fee Table |
| * | To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, and incorporated herein by reference. |
| ** | To
be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as applicable. |
Item 17. Undertakings.
The
undersigned registrant hereby undertakes:
| 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 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 this registration statement
or any material change to such information in this registration statement;
provided,
however, that paragraphs (l)(i), (l)(ii) and (l)(iii) of this section 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 Securities Exchange Act of 1934 that are incorporated by reference in this registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
| 2. | That,
for the purpose of determining any liability under the Securities Act of 1933, each 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. |
| 4. | That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(l)(i), (vii) or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
| 5. | That,
for the purpose of determining liability of the registrant under the Securities Act of 1933
to any purchaser in the initial distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by means of any
of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser: |
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
| 6. | 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 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. |
| 7. | 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 forgoing
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. |
| 8. | To
file an application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules
and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture
Act. |
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-3 and has duly caused this Post-Effective Amendment No. 1 to the 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 February 24, 2022.
| |
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
indicated and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
/s/
Ashleigh Palmer |
|
Chief
Executive Officer and Director |
|
February
24, 2022 |
| Ashleigh
Palmer |
|
(Principal
Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Thierry Chauche |
|
Chief
Financial Officer |
|
February
24, 2022 |
| Thierry
Chauche PhD |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Jeffrey Bluestone, |
|
Director |
|
February
24, 2022 |
| Jeffrey
Bluestone, PhD |
|
|
|
|
| |
|
|
|
|
| /s/
Avery Catlin |
|
Director |
|
February
24, 2022 |
| Avery
Catlin |
|
|
|
|
| |
|
|
|
|
| /s/
Sean Doherty |
|
Director |
|
February
24, 2022 |
| Sean
Doherty |
|
|
|
|
| |
|
|
|
|
| /s/
John Jenkins, MD |
|
Director |
|
February
24, 2022 |
| John
Jenkins, MD |
|
|
|
|
| |
|
|
|
|
| /s/
Wayne Pisano |
|
Director |
|
February
24, 2022 |
| Wayne
Pisano |
|
|
|
|
| |
|
|
|
|
| /s/
Nancy Wysenski |
|
Director |
|
February
24, 2022 |
| Nancy
Wysenski |
|
|
|
|
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