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Item 1.01
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Entry into a Material
Definitive Agreement
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CytoSorbents Corporation
(the “Company”) is party to that certain Open Market Sale AgreementSM (the “Sale Agreement”)
with Jefferies LLC and B. Riley FBR, Inc. (each, an “Agent” and together, the “Agents”),
dated July 9, 2019, pursuant to which the Company may offer to sell, from time to time through the Agents, shares of the Company’s
common stock, $0.001 par value per share (the “Shares”) having an aggregate offering price of up to $25 million.
As of April 20, 2020, the Company had offered and sold Shares with an aggregate offering price of approximately $21 million
under the Sale Agreement.
On April 20,
2020, the Company and the Agents entered into an amendment to the Sale Agreement (the “Amendment”) to provide
for an increase in the aggregate offering amount under the Sales Agreement, such that as of April 20, 2020, the Company
may offer and sell Shares having an additional aggregate offering price of up to $25 million under the Sale Agreement, as amended
by the Amendment (the “Amended Sale Agreement”).
Subject to the terms
of the Amended Sale Agreement, the Agents will use reasonable efforts to sell the Shares from time to time, based upon the Company’s
instructions (including any price, time or size limits or other customary parameters or conditions the Company may impose). The
Company cannot provide any assurances that it will issue any additional Shares pursuant to the Amended Sale Agreement. The Company
will pay the Agents a commission of up to 3.0% of the gross proceeds from the sale of the Shares, if any. The Company has also
agreed to provide the Agents with customary indemnification rights. The offering of the Shares will terminate upon the earliest
of (a) the sale of the maximum number or amount of the Shares permitted to be sold under the Amended Sale Agreement and (b) the
termination of the Amended Sale Agreement by the parties thereto.
The foregoing description
of the Amended Sale Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of
the Amendment, which is attached hereto as Exhibit 1.1 and incorporated by reference herein, and the Sale Agreement, a copy of
which was filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission
(the “SEC”) on July 9, 2019 and incorporated by reference herein into Exhibit 1.2.
Morgan, Lewis &
Bockius LLP, counsel to the Company, has issued a legal opinion relating to the legality of the issuance and the sale of the Shares
pursuant to the Amendment. A copy of such legal opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.
The Shares to be sold
under the Amended Sale Agreement, if any, will be issued and sold by methods deemed to be an “at the market offering”
as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, in block transactions or if specified by
the Company, in privately negotiated transactions pursuant to the registration statement on Form S-3 (File No. 333-226372), which
was previously filed with the SEC on July 26, 2018, amended on August 3, 2018, and declared effective by the SEC on August 7, 2018
(the “Registration Statement”). A prospectus supplement related to the offering is being filed with the SEC
on April 20, 2020 (the “Prospectus Supplement”). This Current Report on Form 8-K shall not constitute
an offer to sell or the solicitation of an offer to buy the Shares nor shall there be any sale of the Shares in any state in which
such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
state.