Item 1.01 Entry into a Material Definitive Agreement.
On November 21, 2019, InVivo Therapeutics Holdings Corp. (the
“Company”) entered into a Placement Agency Agreement with H.C. Wainwright & Co., LLC (“Wainwright”)
(the “Placement Agency Agreement”) and subscription agreements (the “Subscription Agreements”) with certain
investors pursuant to which the Company agreed to sell an aggregate of 7,000,000 shares of its common stock, par value $0.00001
per share (“Common Stock”), to the investors for a purchase price of $0.12 per share, representing aggregate gross
proceeds of $840,000 (the “Offering”). The Offering is expected to close on November 22, 2019, subject to customary
closing conditions.
In the Subscription Agreements and the exhibits thereto, each
investor agreed, (i) effective until 5:00 p.m. New York City time on November 22, 2019, not to sell, dispose or otherwise transfer,
directly or indirectly any shares of Common Stock that they own or control as of the closing of the Offering and (ii) to vote at
the Company’s next stockholder meeting the shares of Common Stock that such investor owns or controls as of the closing of
the Offering in favor of all of the proposals to be presented to the Company’s stockholders as described in its preliminary
proxy statement on Schedule 14A, filed with the Securities and Exchange Commission (the “SEC”) on November 8, 2019.
The Company is party to an engagement
letter (the “Engagement Letter”) with Wainwright, pursuant to which Wainwright is acting as exclusive placement agent
for the Offering. In accordance with the terms of the Engagement Letter and the Placement Agency Agreement, upon the closing of
the Offering the Company will be obligated to pay Wainwright a cash fee of $63,000, which represents 7.5% of the gross proceeds
of the Offering, a management fee of $8,400, which represents 1.0% of the gross proceeds of the Offering, and $25,000 for non-accountable
expenses, as well as reimburse Wainwright $35,000 for its reasonable and documented out-of-pocket expenses incurred in connection
with the Offering, including its legal expenses.
Subject to the approval by the stockholders
of the Company of an increase to the authorized Common Stock, the Company will become obligated under the Engagement Letter and
the Placement Agency Agreement to issue to Wainwright, or its designees, placement agent warrants (the “Placement Agent
Warrants”) to purchase an aggregate of 455,000 shares of Common Stock, which represents a number of shares of Common Stock
equal to 6.5% of the aggregate number of shares of Common Stock sold in the Offering. The Placement Agent Warrants will have an
exercise price of $0.15 per share of Common Stock, which equals 125% of the purchase price of $0.12 per share in the Offering.
The Placement Agent Warrants will be immediately exercisable upon issuance and will expire on November 21, 2024. The issuance
of the Placement Agent Warrants will be made in reliance on the exemption provided by Section 4(a)(2) of the Securities Act of
1933, as amended, relative to transactions by an issuer not involving any public offering, to the extent an exemption from such
registration is required.
In addition, under the Engagement Letter the Company has granted
to Wainwright, subject to certain conditions, a 12-month right of first refusal to act as the Company’s exclusive agent,
advisor or underwriter with respect to specified strategic transactions or financings that the Company may engage in. In addition,
if any investor introduced to the Company by Wainwright participates in a Company financing or capital raising transaction during
the 12 months following closing of any offering in which Wainwright acts as the Company’s exclusive agent, advisory or underwriter
pursuant to the Engagement Letter, the Company will be obligated to pay to Wainwright the cash and warrant compensation described
above in connection with capital provided by such investor.
The Company’s net proceeds from the offering, after deducting
Wainwright’s placement agent expenses and other estimated offering expenses payable by the Company, are expected to be approximately
$0.6 million.
The shares of Common Stock are being offered and sold pursuant
to the Company’s shelf registration statement on Form S-3 (File No. 333-234353), which was declared effective by the SEC
on November 14, 2019. The Company has filed a prospectus supplement relating to the Offering with the SEC.
The descriptions of terms
and conditions of the Placement Agency Agreement and Subscription Agreements set forth herein do not purport to be complete
and are qualified in their entirety by the full text of the Placement Agency Agreement and form of subscription agreement,
which are attached hereto as Exhibit 1.1 and Exhibit 99.1, respectively, and incorporated herein by reference.
A copy of the opinion of Ballard Spahr LLP relating to the validity
of the securities offered by the Company in the Offering is attached as Exhibit 5.1 hereto.