Brand Engagement Network Inc

As filed with the Securities and Exchange Commission on September 13, 2024.

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORMS-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

(Exact name of registrant as specified in its charter)

145 E. Snow King Ave

PO Box 1045

Jackson, WY 83001

(312) 810-7422

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

Paul Chang

145 E. Snow King Ave

PO Box 1045

Jackson, WY 83001

(312) 810-7422

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)

Copies of all communications, including communications sent to agent for service, should be sent to:

Matthew L. Fry, Esq.

Haynes and Boone, LLP

2801 N. Harwood St.

Suite 2300

Dallas, Texas 75201

(214) 651-5000

Approximate date of commencement of proposed sale to the public:

As soon as practicable after the effective date of this Registration Statement.

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, 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, 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(d) 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. ☐

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.

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.☐

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

SUBJECT TO COMPLETION, DATED SEPTEMBER 13, 2024

PRELIMINARY PROSPECTUS

28,370,786 Shares of Common Stock

This prospectus relates to the offer and sale, from time to time, by the selling security holder identified in this prospectus (the “Selling Holder”), or their permitted transferees, of up to 28,370,786 shares of our Common Stock, par value $0.001 per share (“Common Stock”), including (i) up to 28,089,887 shares of Common Stock that we may, at our discretion, elect to issue and sell to YA II PN, Ltd. (the “Yorkville Investor”) from time to time after the date of this prospectus, pursuant to that certain Standby Equity Purchase Agreement, dated as of August 26, 2024, entered into by and between Brand Engagement Network, a Delaware corporation (the “Company” or “BEN”) and the Yorkville Investor (the “SEPA”) and (ii) 280,899 shares of Common Stock (the “Yorkville Commitment Shares”) issued to the Yorkville Investor as consideration for its irrevocable commitment to purchase shares of Common Stock at our direction, from time to time after the date of this prospectus, upon the terms and subject to the conditions set forth in the SEPA. Please see “Selling Security Holders” for additional information regarding the Selling Holders.

Under the SEPA, the Company agreed to issue and sell to the Yorkville Investor, from time to time, and the Yorkville Investor agreed to purchase from the Company, up to $50 million of the Company’s shares of Common Stock. The Company shall not affect any sales under the SEPA, and the Yorkville Investor shall not have any obligation to purchase shares of Common Stock under the SEPA, such that after giving effect to such purchase and sale the aggregate number of shares of Common Stock issued under the SEPA, together with any shares of Common Stock issued in connection with any other related transactions that may be considered part of the same series of transactions, where the average price of such sales would be less than $1.78 per share, and the number of shares issued would exceed 19.9% of the outstanding voting common stock as of August 26, 2024 (the “Exchange Cap”). Thus, the Company may not have access to the right to sell the full $50 million of shares of Common Stock to the Yorkville Investor.

In connection with the SEPA, we are registering herein 28,370,786 shares of Common Stock, which represents the maximum amount of shares issuable under the SEPA assuming we have not obtained the approval of our stockholders in accordance with Nasdaq’s “minimum price rule”, and without factoring in the beneficial ownership limitations under the SEPA, and is comprised of (i) 280,899 Yorkville Commitment Shares and (ii) 28,089,887 shares of Common Stock issuable pursuant to the SEPA. If the Company desires to issue more than 7,235,533 shares of Common Stock at an average price per share that does not equal or exceed $1.78 (which represents the lower of (i) the Nasdaq Official Closing Price (as reflected on Nasdaq.com) immediately preceding the date of the SEPA; or (ii) the average Nasdaq Official Closing Price for the five trading days immediately preceding the date of the SEPA), the Company would be required to obtain stockholder approval under the Nasdaq listing rules.

The shares may be issued and sold to the Yorkville Investor under one of two pricing options, at the election of the Company. Under the first option (“Pricing Option 1”), the Company will sell the shares of Common Stock to the Yorkville Investor at 96% of the Market Price (as defined below) for any period commencing on the receipt of the advance notice by Yorkville Investor and ending on 4:00 p.m. New York City time on the applicable advance notice date (the “Option 1 Pricing Period”). Under the second option (“Pricing Option 2”), the Company will sell the shares of Common Stock to the Yorkville Investor at 97% of the Market Price for any three consecutive trading days commencing on the advance notice date (the “Option 2 Pricing Period”). “Market Price” is defined as, for any Option 1 Pricing Period, the daily volume weighted average price (“VWAP”) of the Common Stock on Nasdaq during the Option 1 Pricing Period, and for any Option 2 Pricing Period, the lowest VWAP of the Common Stock on the Nasdaq during the Option 2 Pricing Period.

Assuming a (i) Market Price of $1.78 per share, (ii) no beneficial ownership limitations, and (iii) the receipt of stockholder approval to exceed the Exchange Cap, we may issue up to 29,260,299 shares of Common Stock under Pricing Option 1 and up to 28,958,647 shares of Common Stock under Pricing Option 2, which would reflect approximately 77.0% and 76.2%, respectively, of the outstanding shares of our Common Stock as of the date hereof after giving effect to such issuances.

We may not have access to the full $50 million amount available under the SEPA due to the reasons noted above. Please see “Selling Security Holders—Material Relationships with Selling Holders—SEPA” for more information regarding the SEPA.

We are not selling any shares of our Common Stock under this prospectus, and we will not receive any of the proceeds from the sale of shares of our Common Stock by the Selling Holders. We will bear all costs, expenses and fees in connection with the registration of the Common Stock. The Selling Holders will bear all commissions and discounts, if any, attributable to their respective sales of Common Stock. We are registering these shares of our Common Stock for sale by the Selling Holders pursuant to various registration rights with the Selling Holders. See the section of this prospectus titled “Selling Security Holders” for more information.

Other than with respect to the Yorkville Commitment Shares, the Selling Holder is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act of 1933, as amended (the “Securities Act”), and any profits on the sales of shares of our Common Stock by the Selling Holder hereunder and any discounts, commissions, or concessions received by the Selling Stockholder are deemed to be underwriting discounts and commissions under the Securities Act. The Selling Holders may offer and sell the securities covered by this prospectus from time to time. The Selling Holders may offer and sell the securities covered by this prospectus in a number of different ways and at varying prices. 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 any applicable prospectus supplement. See the sections of this prospectus titled “About this Prospectus” and “Plan of Distribution” for more information. No securities may be sold without delivery of this prospectus and any applicable prospectus supplement describing the method and terms of the offering of such securities. You should carefully read this prospectus and any applicable prospectus supplement before you invest in our securities.

Our Common Stock is listed on The Nasdaq Global Market under the symbol “BNAI,” and our warrants to purchase Common Stock (the “Public Warrants”) are listed on The Nasdaq Capital Market under the symbol “BNAIW”. On September 12, 2024, the last reported sales price of the Common Stock was $0.98 per share, and the last reported sales price of our Public Warrants was $0.0478 per Public Warrant. We are an “emerging growth company” and a “smaller reporting company” as defined under the U.S. federal securities laws and, as such, may elect to comply with certain reduced public company reporting requirements for this and future filings.

See “Risk Factors” beginning on page 9 to read about factors you should consider before investing in shares of our Common Stock.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.

The date of this prospectus is September , 2024