Exhibit
10.4


 


AMENDMENT
TO EMPLOYMENT AGREEMENT


 


This
Amendment (the “Amendment”) to that certain First Amended Employment Agreement by and between Provention
Bio, Inc. (the “Provention”) and Eleanor Ramos (“Executive”) dated June 9, 2020 (as amended,
the “Employment Agreement”), is effective as of September 9, 2022.


 


WHEREAS,
Provention and Executive are parties to that certain Employment Agreement;


 


WHEREAS,
Executive and Provention desire to amend the Employment Agreement as set forth herein;


 


WHEREAS,
this Amendment provides for the potential for increased benefits as compared to the benefits provided in the Employment Agreement, including,
without limitation, the increased severance compensation set forth herein in the event of termination of the Employment Agreement (the
“Additional Severance”);


 


WHEREAS,
Executive acknowledges and agrees that the opportunity to receive Additional Severance is fair and reasonable consideration for the execution
of this Amendment that is independent of the Executive’s continued employment with the Company; and


 


NOW,
THEREFORE, Executive and Provention hereby agree that the Employment Agreement shall be amended as follows:


 


		1.	Section
                                            4.1 of the Employment Agreement is hereby amended as follows: Sections 4.1(d) and (e) are
                                            hereby deleted in their entirety and replaced with:
	 	 	 
		d)	If
                                            the Executive’s employment is terminated pursuant to Section 4.1(a), other than during
                                            the Post-Change in Control Period (as defined in Section 4.1(e)), the Executive shall, in
                                            full discharge of all of the Company’s obligations to the Executive, be entitled to
                                            receive, and the Company’s sole obligation to the Executive under this Agreement or
                                            otherwise shall be to pay or provide to the Executive, the following:



 


		i.	the
                                            Accrued Obligations (as defined in Section 4.2(b));



 


		ii.	each
                                            outstanding stock option held by the Executive under the Company’s 2017 Equity Incentive
                                            Plan (or any successor plan) (the “Equity Plan”) that provides for vesting solely
                                            based on continued service (“time-based” vesting ) shall become fully vested,
                                            and all of the Executive’s outstanding vested stock options (whether providing time-based
                                            or performance-based vesting) shall remain exercisable for a period of twelve (12) months
                                            following the Termination Date (but in no event later than the expiration date of the term
                                            thereof); and



 




    	 



     


    

 


		iii.	subject
                                            to Section 4.4 and Section 4.5, Section 4.6, Section 4.7, and compliance with the terms of the
                                            Covenants Agreement: (A) payments equal to twelve (12) months of Executive’s Base
                                            Salary at the rate in effect immediately prior to the Termination Date (provided that if
                                            such salary has been reduced, the pre-reduction Base Salary); and (B) twelve (12) months
                                            of COBRA premiums, in each case less applicable withholdings and authorized deductions (the
                                            “Pre-CIC Severance Payments”), to be paid (subject to Section 5.16) in
                                            equal installments in accordance with the Company’s regular payroll practices, commencing
                                            on the next regular payroll date that occurs on or after the sixtieth (60th) day following
                                            the Termination Date; provided, however, that payments under subsection (B) of this section
                                            will cease in the event that Executive secures substantially gainful employment from a new
                                            employer prior to the expiration of the time such payments are to be paid, and Executive
                                            agrees to immediately inform the Company in writing if he becomes employed by a new employer.
                                            In addition, Executive shall (X) receive accelerated vesting of any equity awards (other
                                            than stock options) to the extent such awards would have become vested during the nine (9)
                                            month period following the Termination Date had Executive continued to be employed by the
                                            Company, and (Y) be eligible to receive the pro rata portion of the Executive’s Annual
                                            Bonus based on objectives achieved at the termination date, which shall be paid on the date
                                            the subject annual bonus would have been paid had Executive’s employment continued.



 


		e)	If
                                            the Executive’s employment is terminated pursuant to Section 4.1(a) within twelve (12)
                                            months following a Change in Control (as defined below) (the “Post-Change in Control
                                            Period”), the Executive shall, in full discharge of all of the Company’s
                                            obligations to the Executive (and in lieu of any payments and benefits set forth in Section
                                            4.1(d)), be entitled to receive, and the Company’s sole obligation to the Executive
                                            under this Agreement or otherwise shall be to pay or provide to the Executive, the following:



 


		i.	the
                                            Accrued Obligations; and
	 	 	 
		ii.	subject
                                            to Section 4.4, Section 4.5, Section 4.6, Section 4.7 and compliance with the terms of the
                                            Covenants Agreement, (A) payments equal to eighteen (18) months of Executive’s Base
                                            Salary at the rate in effect immediately prior to the Termination Date (provided that if
                                            such salary has been reduced, the pre-reduction Base Salary), (B) eighteen (18) months
                                            of COBRA premiums, and (C) the pro rata portion of the Executive’s Target Bonus over
                                            the eighteen (18) month severance period, in each case less applicable withholdings and
                                            authorized deductions (the “Post-CIC Severance Payments”), to be paid
                                            (subject to Section 5.16) in equal installments in accordance with the Company’s regular
                                            payroll schedule, commencing on the next regular payroll date that occurs on or after the
                                            sixtieth (60th) day following the Termination Date; provided, however, that payments under
                                            subsection (B) of this section will cease in the event that Executive secures substantially
                                            gainful employment from a new employer prior to the expiration of the time such payments
                                            are to be paid, and Executive agrees to immediately inform the Company in writing if the Executive becomes
                                            employed by a new employer. In addition, Executive shall be deemed to be fully vested in
                                            any and all outstanding equity awards of Executive, and each of Executive’s outstanding
                                            stock options shall remain exercisable until the expiration date of the term of such option.



 


		2.	Except
                                            as amended herein, the Employment Agreement shall remain in full force and effect in all
                                            respects.
	 	 	 
		3.	This Amendment shall be governed by, and construed in accordance with, the laws of the State of New Jersey, without regard
to principles of conflicts of law. Any and all actions arising out of this Amendment, the Employment Agreement or Employee’s employment
by Company or termination therefrom shall be brought and heard in the state and federal courts of the State of New Jersey and the parties
hereto hereby irrevocably submit to the exclusive jurisdiction of any such courts. THE COMPANY AND THE EXECUTIVE HEREBY WAIVE THEIR RESPECTIVE
RIGHT TO TRIAL BY JURY IN ANY ACTION CONCERNING THIS AMENDMENT AND/OR THE EMPLOYMENT AGREEMENT OR ANY AND ALL MATTERS ARISING DIRECTLY
OR INDIRECTLY HEREFROM AND REPRESENT THAT THEY HAVE CONSULTED WITH COUNSEL OF THEIR CHOICE OR HAVE CHOSEN VOLUNTARILY NOT TO DO SO SPECIFICALLY
WITH RESPECT TO THIS WAIVER. The Company has permitted the Executive to work from her home residence in California as an accommodation,
recognizing that the Company’s principal place of business is in New Jersey. The Executive has been represented by legal counsel
of her own choosing in connection with the negotiation of the terms of this Amendment and the Employment Agreement. Therefore, the Executive’s
willingness to waive her right to have California law and California forum for disputes is a knowing and voluntary waiver of her right
under California Labor Law Section 925(e) and she makes the selection of New Jersey law and New Jersey forum knowingly and voluntarily.
	 	 	 
	 	4.	Except as set forth herein, this Amendment is subject to the applicable terms and conditions and of the
Employment Agreement.
	 	 	 
		5.	This
                                            Amendment may be executed in several counterparts, each of which is deemed to be an original
                                            but all of which together will constitute one and the same instrument. This Amendment may
                                            be delivered via facsimile or scanned “PDF” which shall be an original for all
                                            purposes.



 


[Signature
Page Follows]


 




    	 



     


    

 


IN
WITHNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first set forth above.


 


	 	Provention
    Bio, Inc.
	 	 	 
	 	By:	/s/:
    Ashleigh Palmer
	 	Name:	Ashleigh
    Palmer
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	Executive
	 	 	
	 	By:	/s/:
    Eleanor Ramos
	 	Name:	Eleanor
                                            Ramos

	 	Title:	Chief
    Medical Officer


 


[Signature
Page to Employment Agreement Amendment]