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Filed pursuant to Rule 424(b)(3)
Registration No. 333-238635
Prospectus

InVivo Therapeutics Holdings Corp.
1,826,731 Shares of Common Stock
This prospectus
relates to the resale by the selling stockholders identified in
this prospectus of up to 1,826,731 shares of our common stock that
are issuable upon the exercise of certain outstanding warrants, or
the warrants, to purchase shares of our common stock, or the
warrant shares.
We are not
selling any shares of common stock and will not receive any
proceeds from the sale of the warrant shares by the selling
stockholders under this prospectus. Upon the exercise of the
warrants for all 1,826,731 shares of our common stock by payment of
cash, however, we will receive aggregate gross proceeds of
approximately $3.0 million.
We have agreed
to bear all of the expenses incurred in connection with the
registration of these warrant shares. The selling stockholders will
pay or assume brokerage commissions and similar charges, if any,
incurred for the sale of the warrant shares.
The selling
stockholders identified in this prospectus may offer the shares
from time to time through public or private transactions at fixed
prices, at prevailing market prices, at varying prices determined
at the time of sale, or at privately negotiated prices. We provide
more information about how the selling stockholders may sell their
shares of common stock in the section titled "Plan of Distribution"
beginning on page 19 of this prospectus. We will not be paying any
underwriting discounts or commissions in connection with any
offering of warrant shares under this prospectus.
Our common
stock is listed on The Nasdaq Capital Market under the ticker
symbol "NVIV." On June 3, 2020, the last reported sale price
per share of our common stock was $1.53 per share.
You should read
this prospectus, together with additional information described
under the headings "Incorporation of Certain Information by
Reference" and "Where You Can Find More Information," carefully
before you invest in any of our securities.
Investing
in the offered securities involves a high degree of risk. See "Risk
Factors" beginning on page 6 of this prospectus and the
section entitled "Risk Factors" included in our
most recent Annual Report on Form 10-K, as revised or supplemented
by our subsequent Quarterly Reports on Form 10-Q, which are
incorporated herein by reference, for a discussion of information
that you should consider before investing in our
securities.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal
offense.
Prospectus dated June 4, 2020
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
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PROSPECTUS SUMMARY
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THE OFFERING
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RISK FACTORS
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SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
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USE OF PROCEEDS
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
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DESCRIPTION OF OUR CAPITAL STOCK
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13 |
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SELLING STOCKHOLDERS
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16 |
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PLAN OF DISTRIBUTION
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LEGAL MATTERS
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22 |
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EXPERTS
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
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23 |
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INCORPORATION OF DOCUMENTS BY REFERENCE
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ABOUT THIS PROSPECTUS
The
registration statement we filed with the Securities and Exchange
Commission (the "SEC") includes exhibits that provide more detail
of the matters discussed in this prospectus. You should read this
prospectus, the related exhibits filed with the SEC, and the
documents incorporated by reference herein before making your
investment decision. You should rely only on the information
provided in this prospectus and the documents incorporated by
reference herein or any amendment thereto. In addition, this
prospectus contains summaries of certain provisions contained in
some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading "Where You Can Find Additional Information."
The selling
stockholders may from time to time sell up to 1,826,731 shares of
common stock, as described in this prospectus, in one or more
offerings. This prospectus also covers any shares of common stock
that may become issuable as a result of stock splits, stock
dividends or similar transactions. We have agreed to pay the
expenses incurred in registering these shares, including legal and
accounting fees.
We have not,
and the selling stockholders have not, authorized anyone to provide
any information or to make any representations other than those
contained in this prospectus, the documents incorporated by
reference herein or in any free writing prospectuses prepared by or
on behalf of us or to which we have referred you. We take no
responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. The
information contained in this prospectus, the documents
incorporated by reference herein or in any applicable free writing
prospectus is current only as of its date, regardless of its time
of delivery or any sale of our securities. Our business, financial
condition, results of operations and prospects may have changed
since that date.
The
selling stockholders are offering to sell, and seeking offers to
buy, shares of our common stock only under circumstances and in
jurisdictions where it is lawful to do so. The selling stockholders
are not making an offer to sell these securities in any state or
jurisdiction where the offer or sale is not
permitted.
All other
trademarks, trade names and service marks appearing in this
prospectus or the documents incorporated by reference herein are
the property of their respective owners. Use or display by us of
other parties' trademarks, trade dress or products is not intended
to and does not imply a relationship with, or endorsements or
sponsorship of, us by the trademark or trade dress owner. Solely
for convenience, trademarks, tradenames and service marks referred
to in this prospectus appear without the ® and ™ symbols, but those
references are not intended to indicate, in any way, that we will
not assert, to the fullest extent under applicable law, our rights
or that the applicable owner will not assert its rights, to these
trademarks and trade names.
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PROSPECTUS SUMMARY
This
summary provides an overview of selected information contained
elsewhere or incorporated by reference in this prospectus and does
not contain all of the information you should consider before
investing in our securities. You should carefully read the
prospectus, the information incorporated by reference and the
registration statement of which this prospectus is a part in their
entirety before investing in our securities, including the
information discussed under "Risk Factors" in this prospectus and
the documents incorporated by reference and our financial
statements and notes thereto that are incorporated by reference in
this prospectus. Some of the statements in this prospectus and the
documents incorporated by reference herein constitute
forward-looking statements that involve risks and uncertainties.
See information set forth under the section "Special Note Regarding
Forward-Looking Statements." Except where the context otherwise
requires, the terms "we," "us," "our," "InVivo" or "the Company"
refer to the business of InVivo Therapeutics Holdings Corp., a
Nevada corporation, and its wholly-owned subsidiary.
Business Overview
Overview
We are a
research and clinical-stage biomaterials and biotechnology company
with a focus on treatment of spinal cord injuries, or SCIs. Our
mission is to redefine the life of the SCI patient, and we seek to
develop treatment options intended to provide meaningful
improvement in patient outcomes following SCI. Our approach to
treating acute SCIs is based on our investigational Neuro-Spinal
ScaffoldTM implant, a bioresorbable polymer scaffold
that is designed for implantation at the site of injury within a
spinal cord and is intended to treat acute SCI. The Neuro-Spinal
Scaffold implant incorporates intellectual property licensed under
an exclusive, worldwide license from Boston Children's Hospital, or
BCH, and the Massachusetts Institute of Technology, or MIT. We also
plan to evaluate other technologies and therapeutics that may be
complementary to our development of the Neuro-Spinal Scaffold
implant or offer the potential to bring us closer to our goal of
redefining the life of the SCI patient.
The current
standard of care for acute management of spinal cord injuries
focuses on preventing further injury to the spinal cord. However,
the current standard of care does not address repair of the spinal
cord.
For additional
information regarding our business, see the section entitled
"Business" included in our
Annual Report on Form 10-K for the fiscal year ended
December 31, 2019, as well as the sections entitled
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and our financial statements and the related
notes thereto included in our
Annual Report on Form 10-K for the fiscal year ended
December 31, 2019 and our Quarterly Report on
Form 10-Q for the quarter ended March 31, 2020, each of
which is incorporated by reference into this prospectus.
Our Clinical Program
We currently
have one clinical development program for the treatment of acute
SCI.
Our
Neuro-Spinal Scaffold implant is an investigational bioresorbable
polymer scaffold that is designed for implantation at the site of
injury within a spinal cord. The Neuro-Spinal Scaffold implant is
intended to promote appositional, or side-by-side, healing by
supporting the surrounding tissue after injury, minimizing
expansion of areas of necrosis, and providing a biomaterial
substrate for the body's own healing/repair processes following
injury. We believe this form of appositional healing may spare
white matter, increase neural sprouting, and diminish
post-traumatic cyst formation.
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The
Neuro-Spinal Scaffold implant is composed of two biocompatible and bioresorbable
polymers that are cast to form a highly porous investigational
product:
- •
- Poly
lactic-co-glycolic acid, a polymer that is widely used in
resorbable sutures and provides the biocompatible support
for Neuro-Spinal
Scaffoldimplant; and
- •
- Poly-L-Lysine, a
positively charged polymer commonly used to coat surfaces in order
to promote cellular attachment.
Because of the
complexity of SCIs, it is likely that multi-modal therapies will be
required to maximize positive outcomes in SCI patients. In the
future, we may attempt to further enhance the performance of our
Neuro-Spinal Scaffold implant through multiple combination
strategies involving electrostimulation devices, additional
biomaterials, drugs approved by the U.S. Food and Drug
Administration, or FDA, or growth factors. We expect the
Neuro-Spinal Scaffold implant to be regulated by the FDA as a
Class III medical device.
INSPIRE 2.0 Study
Our
Neuro-Spinal Scaffold implant has been approved to be studied under
our approved Investigational Device Exemption, or IDE, in the
INPSIRE 2.0 Study, which is titled the "Randomized, Controlled,
Single-blind Study of Probable Benefit of the Neuro-Spinal
Scaffold™ for Safety and Neurologic Recovery in Subjects with
Complete Thoracic AIS A Spinal Cord Injury as Compared to Standard
of Care." The purpose of the INSPIRE 2.0 Study is to assess the
overall safety and probable benefit of the Neuro-Spinal Scaffold
for the treatment of neurologically complete thoracic traumatic
acute SCI. The INSPIRE 2.0 Study is designed to enroll 10 subjects
into each of the two study arms, which we refer to as the Scaffold
Arm and the Comparator Arm. Patients in the Comparator Arm will
receive the standard of care, which is spinal stabilization without
dural opening or myelotomy. The INSPIRE 2.0 Study is a single blind
study, meaning that the patients and assessors are blinded to
treatment assignments. The FDA approved the enrollment of up to 35
patients in this study so that there would be at least 20 evaluable
patients (10 in each study arm) at the primary endpoint analysis,
accounting for events such as screen failures or deaths that would
prevent a patient from reaching the primary endpoint visit. We
estimate that enrollment in the INSPIRE 2.0 Study will be complete
in the fourth quarter of 2020, with the final patient enrolled in
the INSPIRE 2.0 study reaching their six-month primary endpoint
visit in the second quarter of 2021.
The primary
endpoint is defined as the proportion of patients achieving an
improvement of at least one AIS grade at six months
post-implantation. Assessments of AIS grade are at hospital
discharge, three months, six months, 12 months and
24 months. The definition of study success for INSPIRE 2.0 is
that the difference in the proportion of subjects who demonstrate
an improvement of at least one grade on AIS assessment at the
six-month primary endpoint follow-up visit between the Scaffold Arm
and the Comparator Arm must be equal to or greater than 20%. In one
example, if 50% of subjects in the Scaffold Arm have an improvement
of AIS grade at the six-month primary endpoint and 30% of subjects
in the Comparator Arm have an improvement, then the difference in
the proportion of subjects who demonstrated an improvement is equal
to 20% (50% minus 30% equals 20%) and the definition of study
success would be met. In another example, if 40% of subjects in the
Scaffold Arm have an improvement of AIS grade at the six-month
primary endpoint and 30% of subjects in the Comparator Arm have an
improvement, then the difference in the proportion of subjects who
demonstrated an improvement is equal to 10% (40% minus 30% equals
10%) and the definition of study success would not be met.
Additional endpoints include measurements of changes in NLI,
sensory levels and motor scores, bladder, bowel and sexual
function, pain, Spinal Cord Independence Measure, and quality of
life.
Although The
INSPIRE Study is structured with the an Objective Performance
Criterion, or OPC, as the primary component for demonstrating
probable benefit, the OPC is not the only variable that
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the FDA would evaluate
when reviewing a future HDE application. Similarly, while our
INSPIRE 2.0 Study is structured with a definition of study success
requiring a minimum difference between study arms in the proportion
of subjects achieving improvement, that success definition is not
the only factor that the FDA would evaluate in the future HDE
application. Approval is not guaranteed if the OPC is met for our
prior clinical trial, The INSPIRE Study, or the definition of study
success is met for the INSPIRE 2.0 Study, and even if the OPC or
definition of study success are not met, the FDA may approve a
medical device if probable benefit is supported by a comprehensive
review of all clinical endpoints and preclinical results, as
demonstrated by the sponsor's body of evidence.
In 2016, the
FDA accepted our proposed HDE modular shell submission and review
process for the Neuro-Spinal
Scaffold implant. The HDE modular shell
is comprised of three modules: a preclinical studies module, a
manufacturing module, and a clinical data module. As part of its
review process, the FDA reviews each module, which are individual
sections of the HDE submission, on a rolling basis. Following the
submission of each module, the FDA reviews and provides feedback,
typically within 90 days, allowing the applicant to receive
feedback and potentially resolve any deficiencies during the review
process. Upon receipt of all three modules, which constitutes the
complete HDE submission, the FDA makes a filing decision that may
trigger the review clock for an approval decision. We submitted the
first module in March 2017 and received feedback in June 2017. We
submitted an updated first module in the fourth quarter of 2019.
The HDE submission will not be complete until the manufacturing and
clinical modules are also submitted.
Corporate Information
We were
incorporated on April 2, 2003, under the name of Design
Source, Inc. On October 26, 2010, we acquired the
business of InVivo Therapeutics Corporation, which was founded in
2005, and we are continuing the existing business operations of
InVivo Therapeutics Corporation as our wholly-owned
subsidiary.
Our principal
executive offices are located in leased premises at One Kendall
Square, Suite B14402, Cambridge, Massachusetts 02139. Our
telephone number is (617) 863-5500. We maintain a website at
www.invivotherapeutics.com. Information contained on, or accessible
through, our website is not a part of, and is not incorporated by
reference into, this prospectus.
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THE OFFERING
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Common Stock offered by the Selling
Stockholders:
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1,826,731
shares. |
Use of proceeds
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We will not receive any proceeds from the sale of
common stock in this offering.
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Nasdaq Capital Market symbol
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Our common stock is listed on the Nasdaq Capital
Market under the symbol "NVIV."
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RISK FACTORS
An
investment in our securities involves a high degree of risk. Before
deciding whether to invest in our securities, you should consider
carefully the risks and uncertainties described below and in the
section entitled "Risk Factors" included in our
most recent Annual Report on Form 10-K, as revised or supplemented
by our subsequent Quarterly Reports on Form 10-Q, which are
incorporated herein by reference, and other filings we make with
the Securities and Exchange Commission, or SEC, from time to time,
which are incorporated by reference herein in their entirety,
together with the other information in this prospectus and the
information incorporated by reference herein and in any free
writing prospectus that we may authorize for use in connection with
this offering. If any of these risks actually occurs, our business,
financial condition, results of operations or cash flow could
suffer materially. In such event, the trading price of our common
stock could decline and you might lose all or part of your
investment.
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SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus
and the documents incorporated by reference herein contain
"forward-looking statements" within the meaning of Section 27A
of the Securities Act of 1933, as amended, or the Securities Act,
and Section 21E of the Securities Exchange Act of 1934, as
amended, or the Exchange Act. These statements include statements
made regarding our commercialization strategy, future operations,
cash requirements and liquidity, capital requirements, and other
statements on our business plans and strategy, financial position,
and market trends. In some cases, you can identify forward-looking
statements by terms such as "may," "might," "will," "should,"
"believe," "plan," "intend," "anticipate," "target," "estimate,"
"expect," and other similar expressions. These forward-looking
statements are subject to risks and uncertainties that could cause
actual results or events to differ materially from those expressed
or implied by the forward-looking statements, including factors
such as our ability to raise substantial additional capital to
finance our planned operations and to continue as a going concern;
our ability to execute our strategy and business plan; our ability
to obtain regulatory approvals for our products, including
the Neuro-Spinal
Scaffold; our ability to successfully
commercialize our current and future product candidates, including
the Neuro-Spinal
Scaffold; the progress and timing of our
development programs; market acceptance of our products; our
ability to retain management and other key personnel; our ability
to promote, manufacture, and sell our products, either directly or
through collaborative and other arrangements with third parties;
and other factors detailed under "Risk Factors" in this prospectus
and in the section entitled "Risk Factors" included in our
most recent Annual Report on Form 10-K, as revised or supplemented
by our subsequent Quarterly Reports on Form 10-Q, which are
incorporated herein by reference, and other filings we make with
the SEC from time to time, which are incorporated herein by
reference. These forward-looking statements are only predictions,
are uncertain, and involve substantial known and unknown risks,
uncertainties, and other factors which may cause our actual
results, levels of activity, or performance to be materially
different from any future results, levels of activity, or
performance expressed or implied by these forward-looking
statements. Such factors include, among others, the
following:
- •
- our limited operating
history and history of net losses;
- •
- our ability to raise
substantial additional capital to finance our planned operations
and to continue as a going concern;
- •
- our ability to
complete the INSPIRE 2.0 Study to support our existing Humanitarian
Device Exemption application;
- •
- our ability to
execute our strategy and business plan;
- •
- our ability to obtain
regulatory approvals for our current and future product candidates,
including our Neuro-Spinal
Scaffold implant;
- •
- our ability to
successfully commercialize our current and future product
candidates, including our Neuro-Spinal
Scaffold implant;
- •
- the impact of the
COVID-19 pandemic on our business;
- •
- the progress and
timing of our current and future development programs;
- •
- our ability to
successfully open, enroll and complete clinical trials and obtain
and maintain regulatory approval of our current and future product
candidates;
- •
- our ability to
protect and maintain our intellectual property and licensing
arrangements;
- •
- our reliance on third
parties to conduct testing and clinical trials;
- •
- market acceptance and
adoption of our current and future technology and
products;
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- •
- our ability to
promote, manufacture and sell our current and future products,
either directly or through collaborative and other arrangements
with third parties; and
- •
- our ability to
attract and retain key personnel.
We cannot
guarantee future results, levels of activity, or performance. You
should not place undue reliance on these forward-looking
statements, which speak only as of the respective dates as of which
they were made. You are cautioned that these forward-looking
statements are only predictions and are subject to risks,
uncertainties and assumptions that are referenced in the section of
this prospectus entitled "Risk Factors." You should also carefully
review the risk factors and cautionary statements described in the
other documents we file from time to time with the SEC,
specifically our most recent Annual Report on Form 10-K, our
Quarterly Reports on Form 10-Q and our Current Reports on
Form 8-K. Except as required by applicable law, including the
securities laws of the United States, we do not intend to update
any of the forward-looking statements to conform these statements
to reflect actual results, later events or circumstances, or to
reflect the occurrence of unanticipated events.
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USE OF PROCEEDS
We are filing
the registration statement of which this prospectus forms a
part to permit the holders of certain outstanding warrants to
purchase shares of our common stock described in the section titled
"Selling Stockholders" to resell such shares of common stock
issuable upon exercise of such warrants, or the warrant
shares.
The selling
stockholders will receive all of the net proceeds from sales of the
warrant shares sold pursuant to this prospectus and we will not
receive any proceeds from the resale of any warrant shares offered
by this prospectus by the selling stockholders. However, upon the
exercise of the warrants for 1,826,731 shares of our common stock
by payment of cash, we will receive aggregate gross proceeds of
approximately $3.0 million. Any proceeds from the exercise of
the warrants will be used for working capital, business development
activities, and general corporate purposes. We cannot predict when
or if the warrants will be exercised, and it is possible that the
warrants may expire and never be exercised.
We, and not the
selling stockholders, will pay the costs, expenses and fees in
connection with the registration and sale of the warrant shares
covered by this prospectus, but the selling stockholders will pay
all discounts, commissions or brokers' fees or fees of similar
securities industry professionals and transfer taxes, if any,
attributable to sales of the warrant shares.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
The following
table sets forth certain information as of April 30, 2020 with
respect to the beneficial ownership of our common stock
by:
- •
- each person or group
of affiliated persons known by us to be the beneficial owner of
more than 5% of our common stock;
- •
- each of our
directors;
- •
- each of our named
executive officers; and
- •
- all of our current
executive officers and directors as a group.
Unless
otherwise indicated in the footnotes to the following table, each
person named in the table has sole voting and investment power, and
his or her address is c/o InVivo Therapeutics Holdings Corp., One
Kendall Square, Suite B14402, Cambridge, MA 02139. Shares of our
common stock subject to options or warrants currently exercisable
or exercisable within 60 days of April 30, 2020 are
deemed outstanding for computing the share ownership and percentage
of the person holding such options and warrants, but are not deemed
outstanding for computing the percentage of any other person. The
percentage ownership of our common stock of each person or entity
named in the following table is based on 4,847,370 shares of our
common stock outstanding as of April 30, 2020.
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Name of Beneficial Owner
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Number of Shares
of Common Stock
Beneficially Owned |
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Percentage of
Common Stock
Beneficially
Owned |
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5% Stockholders
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Entities affiliated with Sabby Volatility Warrant
Master Fund, Ltd.(1)
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1,394,429 |
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22.3 |
% |
Entities affiliated with Armistice Capital Master
Fund, Ltd.(2)
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1,458,061 |
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24.1 |
% |
CVI Investments, Inc.(3)
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497,221 |
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9.3 |
% |
Intracoastal Capital, LLC(4)
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305,715 |
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5.9 |
% |
Directors and Named Executive
Officers
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Richard Toselli, M.D.(5)
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10,072 |
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* |
Richard Christopher(6)
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9,856 |
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* |
C. Ann Merrifield(7)
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7,360 |
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* |
Richard J. Roberts, Ph.D.(8)
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443 |
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* |
Daniel R. Marshak, Ph.D.(9)
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85 |
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* |
Christina Morrison(10)
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68 |
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* |
Robert J. Rosenthal, Ph.D.(11)
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— |
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— |
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All current directors and executive officers as a
group (7 persons)(12)
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27,884 |
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* |
- *
- Percentage of shares
beneficially owned does not exceed one percent.
- (1)
- Consists of 1,394,429
shares of common stock underlying warrants that are exercisable as
of April 30, 2020, which are held directly by Sabby Volatility
Warrant Master Fund, Ltd. ("SVWMF"). Certain of the warrants
are subject to a beneficial ownership limitation of 4.99%, which
does not permit SVWMF to exercise that portion of the warrants that
would result in SVWMF and its affiliates owning, after exercise, a
number of shares of common stock in excess of the beneficial
ownership limitation. The amounts and percentages in the table do
not give effect to the beneficial ownership limitation. Hal Mintz
is the manager of Sabby Management, LLC, which acts as the
investment manager
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of SVWMF. As a result,
Mr. Mintz may be deemed to beneficially own the securities
held by SVWMF. The address of each of SVWMF, Sabby
Management LLC and Mr. Mintz is c/o Sabby
Management, LLC, 10 Mountainview Road, Suite 205, Upper
Saddle River, New Jersey 07458.
- (2)
- Consists of
(a) 254,597 shares of common stock and (b) 1,203,464
shares of common stock underlying warrants that are exercisable as
of April 30, 2020, which are held directly by Armistice
Capital Master Fund Ltd. ("Armistice Fund"). Certain of the
warrants are subject to a beneficial ownership limitation of 4.99%,
which does not permit Armistice Fund to exercise that portion of
the warrants that would result in Armistice Fund and its affiliates
owning, after exercise, a number of shares of common stock in
excess of the beneficial ownership limitation. The amounts and
percentages in the table do not give effect to the beneficial
ownership limitation. Steven Boyd is the Managing Member of
Armistice Capital, LLC, which acts as the investment manager
of Armistice Fund. As a result, Mr. Boyd may be deemed to
beneficially own the securities held by Armistice Fund. The address
of Armistice Fund is c/o dms Corporate
Services ltd., 20 Genesis Close, P.O. Box 314, Grand
Cayman KY1-1104, Cayman Islands, and the address of each of
Armistice Capital LLC and Mr. Boyd is 510 Madison
Avenue, 7th Floor, New York, NY 10022.
- (3)
- Consists of 497,221
shares of common stock underlying warrants held by CVI
Investments, Inc. ("CVI") that are exercisable as of
April 30, 2020. Certain of the warrants are subject to a
beneficial ownership limitation of 4.99%, which does not permit CVI
to exercise that portion of the warrants that would result in CVI
and its affiliates owning, after exercise, a number of shares of
common stock in excess of the beneficial ownership limitation. The
amounts and percentages in the table do not give effect to the
beneficial ownership limitation. Heights Capital
Management, Inc. ("Heights"), the authorized agent of CVI, has
discretionary authority to vote and dispose of the shares held by
CVI and may be deemed to be the beneficial owner of these shares.
Martin Kobinger, in his capacity as Investment Manager of Heights,
may also be deemed to have investment discretion and voting power
over the shares held by CVI. Mr. Kobinger disclaims any such
beneficial ownership of the shares. CVI's address is
c/o Heights Capital Management, Inc., 101 California
Street, Suite 3250, San Francisco, CA 94111.
- (4)
- Consists
of 305,715 shares of common stock underlying warrants that are
exercisable as of April 30, 2020, which are held directly by
Intracoastal Capital, LLC ("Intracoastal"). The warrants are
subject to a beneficial ownership limitation of 9.99%, which does
not permit Intracoastal to exercise that portion of the warrants
that would result in Intracoastal and its affiliates owning, after
exercise, a number of shares of common stock in excess of the
beneficial ownership limitation. The amounts and percentages in the
table do not give effect to the beneficial ownership limitation.
Mitchell P. Kopin and Daniel B. Asher, each of whom are
managers of Intracoastal, have shared voting control and investment
discretion over the securities reported herein that are held by
Intracoastal. As a result, each of Mr. Kopin and
Mr. Asher may be deemed to beneficially own the securities
held by Intracoastal. The address of each of Mr. Kopin and
Intracoastal is 245 Palm Trail, Delray Beach,
Florida 33483. The address of Mr. Asher is
111 W. Jackson Boulevard, Suite 2000, Chicago,
Illinois 60604.
- (5)
- Consists of
(a) 3,769 shares of common stock owned by Dr. Toselli,
(b) 317 shares of common stock underlying options held by
Dr. Toselli that are exercisable as of April 30, 2020 or
will become exercisable within 60 days after such date,
(c) 3,636 shares of common stock underlying warrants held by
Dr. Toselli that are exercisable as of April 30, 2020,
(d) 50 shares of restricted stock units granted to
Dr. Toselli that will vest within
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60 days after
April 30, 2020, and (e) 2,300 shares of restricted common
stock granted to Dr. Toselli.
- (6)
- Consists of
(a) 3,636 shares of common stock owned by
Mr. Christopher, (b) 1,000 shares of common stock
underlying options held by Mr. Christopher that are
exercisable as of April 30, 2020 or will become exercisable
within 60 days after such date, (c) 3,636 shares of
common stock underlying warrants held by Mr. Christopher that
are exercisable as of April 30, 2020, and (d) 1,584
shares of restricted common stock granted to
Mr. Christopher.
- (7)
- Consists of
(a) 3,639 shares of common stock owned by Ms. Merrifield,
(b) 85 shares of common stock underlying options held by
Ms. Merrifield that are exercisable as of April 30, 2020
or will become exercisable within 60 days after such date, and
(c) 3,636 shares of common stock underlying warrants held by
Ms. Merrifield that are exercisable as of April 30,
2020.
- (8)
- Consists of
(a) 290 shares of common stock owned by Dr. Roberts and
(b) 153 shares of common stock underlying options held by
Dr. Roberts that are exercisable as of April 30, 2020 or
will become exercisable within 60 days after such date.
- (9)
- Consists solely of
shares of common stock underlying options held by Dr. Marshak
that are exercisable as of April 30, 2020 or will become
exercisable within 60 days after such date.
- (10)
- Consists solely of
shares of common stock underlying options held by Ms. Morrison
that are exercisable as of April 30, 2020 or will become
exercisable within 60 days after such date.
- (11)
- Mr. Rosenthal
does not own any shares of common stock the Company.
- (12)
- Consists of
(a) 11,334 shares of common stock owned by all current
executive officers and directors as a group (b) 1,708 shares
of common stock underlying options that are exercisable as of
April 30, 2020 or will become exercisable within 60 days
after such date, (c) 10,908 shares of common stock underlying
warrants that are exercisable as of April 30, 2020,
(d) 50 shares of restricted stock units that will vest within
60 days after April 30, 2020, and (e) 3,884 shares
of restricted common stock.
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DESCRIPTION OF OUR CAPITAL
STOCK
General
The following
description of our capital stock is intended as a summary only and
therefore is not a complete description of our capital stock. This
description is based upon, and is qualified by reference to,
applicable provisions of the Nevada Revised Statutes (the "NRS"),
our articles of incorporation, as amended, and our amended and
restated bylaws and, which are filed as exhibits to the
registration statement of which this prospectus forms a
part.
Authorized Capital Stock
Our authorized
capital stock consists of 16,666,667 shares of common stock, par
value $0.00001 per share. As of April 30, 2020, 4,847,370
shares of common stock were outstanding. Our common stock is
registered under Section 12(b) of the Exchange Act.
Common Stock
Voting
Rights. The
holders of our common stock are entitled to one vote per share on
all matters submitted to a vote of the stockholders, including the
election of directors. Generally, all matters to be voted on by
stockholders must be approved by a majority (or, in the case of
election of directors, by a plurality) of the votes entitled to be
cast by all shares of common stock that are present in person or
represented by proxy. Except as otherwise provided by law,
amendments to our articles of incorporation generally must be
approved by a majority of the votes entitled to be cast by all
outstanding shares of common stock. Our articles of incorporation
do not provide for cumulative voting in the election of
directors.
Dividends. Except
as provided by law or in our articles of incorporation, the holders
of common stock will be entitled to such cash dividends as may be
declared from time to time by our board of directors from funds
available.
Liquidation,
Dissolution and Winding Up. Upon liquidation, dissolution or
winding up of our Company, the holders of common stock will be
entitled to receive pro rata all assets available for distribution
to such holders after payment of our liabilities.
Other
Rights. The
holders of common stock have no preferential or preemptive right
and no subscription, redemption or conversion privileges with
respect to the issuance of additional shares of our common
stock.
Provisions of Our Articles of Incorporation and Bylaws and the NRS
That May Have Anti-Takeover Effects
Anti-Takeover Effects of Provisions of Nevada State
Law
We may be or in
the future we may become subject to Nevada's control share laws. A
corporation is subject to Nevada's control share law if it has more
than 200 stockholders, at least 100 of whom are stockholders of
record and residents of Nevada, and if the corporation does
business in Nevada, including through an affiliated corporation.
This control share law may have the effect of discouraging
corporate takeovers. We currently have less than 100 stockholders
of record who are residents of Nevada.
The control
share law focuses on the acquisition of a "controlling interest,"
which means the ownership of outstanding voting shares that would
be sufficient, but for the operation of the control share law, to
enable the acquiring person to exercise the following proportions
of the voting power of the corporation in the election of
directors: (1) one-fifth or more but less than one-third;
(2) one-third
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or more but less than
a majority; or (3) a majority or more. The ability to exercise
this voting power may be direct or indirect, as well as individual
or in association with others.
The effect of
the control share law is that an acquiring person, and those acting
in association with that person, will obtain only such voting
rights in the control shares as are conferred by a resolution of
the stockholders of the corporation, approved at a special or
annual meeting of stockholders. The control share law contemplates
that voting rights will be considered only once by the other
stockholders. Thus, there is no authority to take away voting
rights from the control shares of an acquiring person once those
rights have been approved. If the stockholders do not grant voting
rights to the control shares acquired by an acquiring person, those
shares do not become permanent non-voting shares. The acquiring
person is free to sell the shares to others. If the buyer or buyers
of those shares themselves do not acquire a controlling interest,
the shares are not governed by the control share law.
If control
shares are accorded full voting rights and the acquiring person has
acquired control shares with a majority or more of the voting
power, a stockholder of record, other than the acquiring person,
who did not vote in favor of approval of voting rights, is entitled
to demand fair value for such stockholder's shares.
In addition to
the control share law, Nevada has a business combination law, which
prohibits certain business combinations between Nevada corporations
and "interested stockholders" for two years after the interested
stockholder first becomes an interested stockholder, unless the
corporation's board of directors approves the combination in
advance. For purposes of Nevada law, an interested stockholder is
any person who is: (a) the beneficial owner, directly or
indirectly, of 10% or more of the voting power of the outstanding
voting shares of the corporation, or (b) an affiliate or
associate of the corporation and at any time within the previous
two years was the beneficial owner, directly or indirectly, of 10%
or more of the voting power of the then-outstanding shares of the
corporation. The definition of "business combination" contained in
the statute is sufficiently broad to cover virtually any kind of
transaction that would allow a potential acquirer to use the
corporation's assets to finance the acquisition or otherwise to
benefit its own interests rather than the interests of the
corporation and its other stockholders.
The effect of
Nevada's business combination law is to potentially discourage
parties interested in taking control of the Company from doing so
if it cannot obtain the approval of our board of
directors.
Anti-Takeover Effects of Provisions of Our Articles of
Incorporation and Bylaws
Our articles of
incorporation provide for a classified board of directors. This
provision could prevent a party who acquires control of a majority
of our outstanding common stock from obtaining control of the board
until our second annual stockholders meeting following the date the
acquirer obtains the controlling stock interest. The classified
board provision could have the effect of discouraging a potential
acquirer from making a tender offer or otherwise attempting to
obtain control of us and could increase the likelihood that
incumbent directors will retain their positions. In addition, under
our amended and restated bylaws, directors may be removed only for
cause and only by the affirmative vote of the holders of at least
80% of the voting power of our then outstanding shares of capital
stock entitled to vote generally in the election of directors,
voting together as a single class.
Our amended and
restated bylaws also provide that stockholders may only act at
meetings of stockholders and not by written consent in lieu of a
stockholders' meeting. Our amended and restated bylaws provide that
stockholders may not call a special meeting of stockholders.
Rather, only the Chairman of our board of directors, the President,
or the board of directors pursuant to a resolution approved by a
majority of the entire board of directors are able to call special
meetings of stockholders. These provisions may discourage another
person or entity from making a tender offer, even if it acquired a
majority of our outstanding voting stock, because the person or
entity could only
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take action at a duly
called stockholders' meeting relating to the business specified in
the notice of meeting and not by written consent.
Our amended and
restated bylaws also provide that stockholders may only conduct
business at special meetings of stockholders that was specified in
the notice of the meeting, and a stockholder must notify us in
writing, within timeframes specified in our bylaws, of any
stockholder nomination of a director and of any other business that
the stockholders intends to bring at a meeting of stockholders. Our
amended and restated bylaws also provide that our bylaws may be
amended by our board of directors or by the affirmative vote of at
least 80% of our voting stock then outstanding. These provisions
could have the effect of discouraging a potential acquirer from
making a tender offer or otherwise attempting to obtain control of
us because the foregoing provisions may limit the proposals that
may be acted upon at a stockholders' meeting, and the amendment
provisions in our bylaws make such provisions difficult to
change.
Listing on The Nasdaq Capital Market
Our common
stock is listed on the Nasdaq Capital Market under the symbol
"NVIV." On June 3, 2020, the reported closing price per share
of our common stock on the Nasdaq Capital Market was
$1.53.
Authorized but Unissued Shares
The authorized
but unissued shares of common stock are available for future
issuance without stockholder approval, subject to any limitations
imposed by the listing requirements of the Nasdaq Capital Market.
These additional shares may be used for a variety of corporate
finance transactions, acquisitions and employee benefit plans. The
existence of authorized but unissued and unreserved common stock
could make it more difficult or discourage an attempt to obtain
control of us by means of a proxy contest, tender offer, merger or
otherwise.
Transfer Agent and Registrar
The transfer
agent and registrar for our common stock is Continental Stock
Transfer & Trust Company.
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SELLING STOCKHOLDERS
On
April 15, 2020, we entered into a securities purchase
agreement with certain institutional and accredited investors,
pursuant to which we agreed to sell and issue, in a registered
direct offering offered pursuant to an effective shelf registration
statement on Form S-3, an aggregate of 1,715,240 shares of
common stock, for aggregate gross proceeds of approximately
$3.0 million, before deducting fees to the placement agents
and other offering expenses payable by us.
In a concurrent
private placement, pursuant to the purchase agreement, we offered
and sold to the investors common stock purchase warrants to
purchase an aggregate of 1,715,240 shares of our common stock, or
the purchase warrants. The purchase warrants have an exercise price
per share equal to $1.62, are immediately exercisable and expire on
October 17, 2025.
Pursuant to a
letter agreement dated as of April 15, 2020, or the engagement
letter, we engaged H.C. Wainwright & Co., LLC,
or Wainwright, to act as the exclusive placement agent in
connection with the registered direct and private placement
transaction. We issued placement agent warrants to purchase an
aggregate of 111,491 shares of our common stock, or the placement
agent warrants. The placement agent warrants have an exercise price
of $2.1875 per share, are immediately exercisable and expire
April 15, 2025. The shares of common stock underlying the
placement agent warrants and the purchase warrants are referred to
collectively as the warrant shares.
Pursuant to the
securities purchase agreement and the engagement letter, we agreed
to file the registration statement of which this prospectus is a
part to cover the resale of the shares of common stock underlying
the warrants and to keep such registration statement effective
until the date that is six months after no selling stockholder owns
any warrants.
We are
registering the resale of the warrant shares to permit each of the
selling stockholders identified below to resell or otherwise
dispose of the warrant shares in the manner contemplated under
"Plan of Distribution" in this prospectus (as may be supplemented
and amended). The term "selling stockholders" includes donees,
pledgees, assignees, transferees or other successors-in-interest
selling shares received after the date of this prospectus from a
selling stockholder as a gift, pledge, partnership distribution or
other non-sale related transfer. Throughout this prospectus, when
we refer to the shares of our common stock being registered on
behalf of the selling stockholders, we are referring to the warrant
shares, and when we refer to the selling stockholders in this
prospectus, we are referring to the purchasers of the warrants and
holders of the placement agent warrants.
The selling
stockholders may sell some, all or none of their warrant shares. We
do not know how long the selling stockholders will hold the warrant
shares before selling them, and we currently have no agreements,
arrangements or understandings with the selling stockholders
regarding the sale or other disposition of any of the warrant
shares. The warrant shares covered hereby may be offered from time
to time by the selling stockholders.
The following
table sets forth the name of each selling stockholder, the number
and percentage of our outstanding shares of common stock
beneficially owned by the selling stockholders as of April 30,
2020, the number of warrant shares that may be offered under this
prospectus, and the number and percentage of our outstanding shares
of common stock beneficially owned by the selling stockholders
assuming all of the warrant shares covered hereby are sold.
Beneficial ownership is determined in accordance with the rules of
the SEC and includes voting or investment power with respect to our
common stock. Generally, a person "beneficially owns" shares of our
common stock if the person has or shares with others the right to
vote those shares or to dispose of them, or if the person has the
right to acquire voting or disposition rights within 60 days.
The number of shares in the column "Shares of Common Stock being
Offered" represents all of the warrant shares that a selling
stockholder may offer and sell from time to time under this
prospectus.
All information
contained in the table below and the footnotes thereto is based
upon information provided to us by the selling stockholders. The
selling stockholders may have sold or transferred, in
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transactions exempt
from the registration requirements of the Securities Act, some or
all of their warrant shares or other securities since the date on
which the information in the table below if presented. Information
about the selling stockholders may change over time. The percentage
of shares owned after the offering is based on 4,847,370 shares of
common stock outstanding as of April 30, 2020.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beneficial Ownership After this Offering(1) |
|
|
|
Shares of
Common Stock
Beneficially
Owned Prior to
this Offering |
|
|
|
|
|
Shares of
Common Stock
Offered
Hereby |
|
Name
|
|
Number of
Shares |
|
% |
|
Intracoastal Capital, LLC(2)
|
|
|
305,715 |
|
|
305,715 |
|
|
— |
|
|
— |
|
CVI Investments, Inc.(3)
|
|
|
497,221 |
|
|
457,143 |
|
|
40,078 |
|
|
* |
|
Entities affiliated with Armistice Capital Master
Fund Ltd.(4)
|
|
|
1,458,061 |
|
|
476,191 |
|
|
981,870 |
|
|
17.6 |
|
Entities affiliated with Sabby Volatility Warrant
Master Fund, Ltd.(5)
|
|
|
1,394,429 |
|
|
476,191 |
|
|
918,238 |
|
|
16.4 |
|
Noam Rubinstein(6)(7)
|
|
|
92,016 |
|
|
35,120 |
|
|
56,896 |
|
|
1.2 |
|
Craig Schwabe(6)(8)
|
|
|
5,418 |
|
|
3,763 |
|
|
1,655 |
|
|
* |
|
Michael Vasinkevich(6)(9)
|
|
|
187,374 |
|
|
71,493 |
|
|
115,881 |
|
|
2.3 |
|
Charles Worthman(6)(10)
|
|
|
6,851 |
|
|
1,115 |
|
|
5,736 |
|
|
* |
|
- *
- Less than one
percent
- (1)
- Assumes the exercise
in full of the warrants and sale of all warrant shares registered
pursuant to this prospectus, although the selling stockholders are
under no obligation known to us to sell any shares of common stock
at this time.
- (2)
- Before offering
includes purchase warrants to purchase 305,715 shares of common
stock, all of which are held directly by Intracoastal
Capital, LLC ("Intracoastal"). The purchase warrants are
subject to a beneficial ownership limitation of 9.99%, which does
not permit Intracoastal to exercise that portion of the purchase
warrants that would result in Intracoastal and its affiliates
owning, after exercise, a number of shares of common stock in
excess of the beneficial ownership limitation. The amounts and
percentages in the table do not give effect to the beneficial
ownership limitation. Mitchell P. Kopin and Daniel B. Asher, each
of whom are managers of Intracoastal, have shared voting control
and investment discretion over the securities reported herein that
are held by Intracoastal. As a result, each of Mr. Kopin and
Mr. Asher may be deemed to beneficially own the securities
held by Intracoastal. The address of each of Mr. Kopin and
Intracoastal is 245 Palm Trail, Delray Beach, Florida 33483. The
address of Mr. Asher is 111 W. Jackson Boulevard,
Suite 2000, Chicago, Illinois 60604.
- (3)
- Before offering
includes (i) purchase warrants to purchase 457,143 shares of
common stock and (ii) other warrants to purchase 40,078 shares
of common stock, all of which are directly held by CVI
Investments, Inc. ("CVI"). Certain of the warrants are subject
to a beneficial ownership limitation of 4.99%, which does not
permit CVI to exercise that portion of the warrants that would
result in CVI and its affiliates owning, after exercise, a number
of shares of common stock in excess of the beneficial ownership
limitation. The amounts and percentages in the table do not give
effect to the beneficial ownership limitation. Heights Capital
Management, Inc. ("Heights"), the authorized agent of CVI, has
discretionary authority to vote and dispose of the shares held by
CVI and may be deemed to be the beneficial owner of these shares.
Martin Kobinger, in his capacity as Investment Manager of Heights
may also be deemed to have investment discretion and voting power
over the shares held by CVI. Mr. Kobinger disclaims any such
beneficial ownership of the shares. CVI's address is c/o Heights
Capital Management, Inc., 101 California Street,
Suite 3250, San Francisco, CA 94111.
- (4)
- Before offering
includes (i) 254,597 shares of common stock,
(ii) purchase warrants to purchase 476,191 shares of common
stock and (iii) other warrants to purchase 727,273 shares of
common
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stock, all of which
are held directly by Armistice Capital Master Fund Ltd.
("Armistice Fund"). Certain of the warrants are subject to a
beneficial ownership limitation of 4.99%, which does not permit
Armistice Fund to exercise that portion of the warrants that would
result in Armistice Fund and its affiliates owning, after exercise,
a number of shares of common stock in excess of the beneficial
ownership limitation. The amounts and percentages in the table do
not give effect to the beneficial ownership limitation. Steven Boyd
is the Managing Member of Armistice Capital, LLC, which acts
as the investment manager of Armistice Fund. As a result,
Mr. Boyd may be deemed to beneficially own the securities held
by Armistice Fund. The address of Armistice Fund is c/o dms
Corporate Services ltd., 20 Genesis Close,
P.O. Box 314, Grand Cayman KY1-1104, Cayman Islands, and
the address of each of Armistice Capital LLC and Mr. Boyd
is 510 Madison Avenue, 7th Floor, New York, NY
10022.
- (5)
- Before offering
includes (i) purchase warrants to purchase 476,191 shares of
common stock and (ii) other warrants to purchase 918,238
shares of common stock, all of which are held directly by Sabby
Volatility Warrant Master Fund, Ltd. ("SVWMF"). Certain of the
warrants are subject to a beneficial ownership limitation of 4.99%,
which does not permit SVWMF to exercise that portion of the
warrants that would result in SVWMF and its affiliates owning,
after exercise, a number of shares of common stock in excess of the
beneficial ownership limitation. The amounts and percentages in the
table do not give effect to the beneficial ownership limitation.
Hal Mintz is the manager of Sabby Management, LLC, which acts
as the investment manager of SVWMF. As a result, Mr. Mintz may
be deemed to beneficially own the securities held by SVWMF. The
address of each of SVWMF, Sabby Management LLC and
Mr. Mintz is c/o Sabby Management, LLC, 10 Mountainview
Road, Suite 205, Upper Saddle River, New Jersey 07458.
- (6)
- The selling
stockholder is an affiliate of a registered broker-dealer.
- (7)
- Before the offering
includes placement agent warrants to purchase 35,120 shares of
common stock and other warrants to purchase 56,896 shares of common
stock. The address of Mr. Rubinstein is c/o H.C.
Wainwright & Co., LLC, 430 Park Avenue,
3rd Floor, New York, New York 10022.
- (8)
- Before the offering
reflects placement agent warrants to purchase 3,763 shares of
common stock and other warrants to purchase 1,655 shares of common
stock. The address of Mr. Schwabe is c/o H.C.
Wainwright & Co., LLC, 430 Park Avenue,
3rd Floor, New York, New York 10022.
- (9)
- Before the offering
reflects placement agent warrants to purchase 71,493 shares of
common stock and other warrants to purchase 115,881 shares of
common stock. The address of Mr. Vasinkevich is c/o H.C.
Wainwright & Co., LLC, 430 Park Avenue,
3rd Floor, New York, New York 10022.
- (10)
- Before the offering
reflects placement agent warrants to purchase 1,115 shares of
common stock and other warrants to purchase 5,736 shares of common
stock. The address of Mr. Worthman is c/o H.C.
Wainwright & Co., LLC, 430 Park Avenue,
3rd Floor, New York, New York 10022.
Other Relationships with the Selling Stockholders
Messrs. Rubinstein,
Schwabe, Vasinkevich, and Worthman, selling stockholders, are each
affiliated with Wainwright, which acted as the placement agent in
the concurrent private placement of the purchase warrants for which
we are registering the underlying shares in the registration
statement of which this prospectus forms a part, and received
the placement agent warrants for which we are registering the
underlying shares in the registration statement of which this
prospectus forms a part as compensation in connection
therewith. From time to time, Wainwright may provide in the future
various advisory, investment and commercial banking and other
services to us in the ordinary course of business, for which they
have received and may continue to receive customary fees and
commissions. Wainwright acted as exclusive financial advisor for
our November 2019 public offering and March 2020 public offering,
for which it received compensation. Except with respect to the
foregoing, none of the selling stockholders has, or within the past
three years has had, any position, office or other material
relationship with us, other than as a result of the ownership of
our shares or other securities.
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PLAN OF DISTRIBUTION
We are
registering the warrant shares issuable to the selling stockholders
to permit the resale of these shares of common stock by the selling
stockholders from time to time from after the date of this
prospectus. We will not receive any of the proceeds from the sale
by the selling stockholders of the warrant shares. We will bear the
fees and expenses incident to our obligation to register the shares
of common stock, however the selling stockholders will bear legal
and advisor fees, commissions and discounts, if any, attributable
to their respective sales of the warrant shares.
Each selling
stockholder may, from time to time, sell any or all of its warrant
shares covered hereby on The Nasdaq Capital Market or any other
stock exchange, market or trading facility on which the shares can
be traded or in private transactions. These sales may be at fixed
prices, at prevailing market prices at the time of the sale, at
varying prices determined at the time of sale, or privately
negotiated prices. A selling stockholder may use any one or more of
the following methods when selling shares:
- •
- ordinary brokerage
transactions and transactions in which the broker-dealer solicits
purchasers;
- •
- block trades in which
the broker-dealer will attempt to sell the shares as agent but may
position and resell a portion of the block as principal to
facilitate the transaction;
- •
- purchases by a
broker-dealer as principal and resale by the broker-dealer for its
account;
- •
- an exchange
distribution in accordance with the rules of the applicable
exchange;
- •
- privately negotiated
transactions;
- •
- underwritten
transactions;
- •
- settlement of short
sales, to the extent permitted by law;
- •
- in transactions
through broker-dealers that agree with the selling stockholders to
sell a specified number of such shares at a stipulated price per
share;
- •
- through the writing
or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
- •
- through the
distribution of the common stock by any selling stockholder to its
partners, members or stockholders;
- •
- a combination of any
such methods of sale; or
- •
- any other method
permitted pursuant to applicable law.
The selling
stockholders may also sell the shares of common stock under
Rule 144 under the Securities Act, if available, rather than
under this prospectus.
If underwriters
are used in the sale, the shares of common stock will be acquired
by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale. In connection with any such
underwritten sale of shares of common stock, underwriters may
receive compensation from the selling stockholders, for whom they
may act as agents, in the form of discounts, concessions or
commissions. If the selling stockholders use an underwriter or
underwriters to effectuate the sale of shares of common stock, we
and/or they will execute an underwriting agreement with those
underwriters at the time of sale of those shares of common stock.
To the extent required by law, the names of the underwriters will
be set forth in a prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement that
includes the prospectus supplement and the accompanying prospectus
used by the underwriters to sell those securities. The obligations
of the underwriters to purchase those shares of common stock will
be subject to certain
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conditions precedent,
and unless otherwise specified in a prospectus supplement, the
underwriters will be obligated to purchase all the shares of common
stock offered by such prospectus supplement if any of such shares
of common stock are purchased. Any public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers
may be changed from time to time.
Broker-dealers
engaged by the selling stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholders (or, if any
broker-dealer acts as agent for the purchaser of shares, from the
purchaser) in amounts to be negotiated, but, except as set forth in
a supplement to this prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2121.
In connection
with the sale of the shares of common stock or interests therein,
the selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the shares of common stock in the course
of hedging the positions they assume. The selling stockholders may
also sell the shares of common stock short and deliver these
securities to close out their short positions or to return borrowed
shares in connection with such short sales, or loan or pledge the
shares of common stock to broker-dealers that in turn may sell
these securities. The selling stockholders may also enter into
option or other transactions with broker-dealers or other financial
institutions or create one or more derivative securities which
require the delivery to such broker-dealer or other financial
institution of shares of common stock offered by this prospectus,
which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to
reflect such transaction).
The selling
stockholders and any broker-dealers or agents that are involved in
selling the shares of common stock may be deemed to be
"underwriters" within the meaning of the Securities Act in
connection with such sales. In such event, any commissions received
by such selling stockholders, broker-dealers or agents and any
profit on the resale of the shares purchased by them may be deemed
to be underwriting commissions or discounts under the Securities
Act. Selling stockholders who are "underwriters" within the meaning
of Section 2(11) of the Securities Act will be subject to the
prospectus delivery requirements of the Securities Act and may be
subject to certain statutory liabilities of, including but not
limited to, Sections 11, 12 and 17 of the Securities Act and
Rule 10b-5 under the Securities Exchange Act of 1934, as
amended, or the Exchange Act.
We are required
to pay certain fees and expenses incurred by us incident to the
registration of the shares of common stock of the selling
stockholders. We have also agreed to indemnify the selling
stockholders holding purchase warrants against losses, claims,
damages and liabilities, including liabilities under the Securities
Act, with respect to the registration statement of which this
prospectus forms a part.
The selling
stockholders will be subject to the prospectus delivery
requirements of the Securities Act, including Rule 172
thereunder, unless an exemption therefrom is available.
We agreed to
cause the registration statement of which this prospectus is a part
to remain effective until the date on which no selling stockholder
owns any purchase warrants or common stock issuable upon exercise
thereof. The shares of common stock will be sold only through
registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states,
the shares of common stock covered hereby may not be sold unless
they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification
requirement is available and is complied with.
Under
applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares of common stock may not
simultaneously engage in market making activities with respect to
the shares of common stock for the applicable restricted period, as
defined in Regulation M, prior to the commencement of the
distribution. In addition, the selling stockholders will
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be subject to
applicable provisions of the Exchange Act and the rules and
regulations thereunder, including Regulation M, which may
limit the timing of purchases and sales of shares of common stock
by the selling stockholders or any other person. We will make
copies of this prospectus available to the selling stockholders and
have informed them of the need to deliver a copy of this prospectus
at or prior to the time of the sale (including by compliance with
Rule 172 under the Securities Act).
The selling
stockholders may decide not to sell any or all of the shares of
common stock we registered on behalf of the selling stockholders
pursuant to the registration statement of which this prospectus
forms a part.
Once sold under
the registration statement of which this prospectus forms a
part, the shares of common stock will be freely tradable in the
hands of persons other than our affiliates.
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LEGAL MATTERS
The validity of
the common stock offered by this prospectus will be passed upon for
us by Ballard Spahr LLP, Las Vegas, Nevada.
EXPERTS
The
consolidated financial statements of InVivo Therapeutics Holdings
Corp. and subsidiary as of December 31, 2019 and 2018 and for
the years then ended, incorporated in this Prospectus by reference
from the InVivo Therapeutics Holdings Corp.'s Annual Report on
Form 10-K for the year ended December 31, 2019 have been
audited by RSM US LLP, an independent registered public
accounting firm, as stated in their report thereon (which report
expresses an unqualified opinion and includes an explanatory
paragraph relating to InVivo Therapeutics Holdings Corp.'s ability
to continue as a going concern), incorporated herein by reference,
and have been incorporated in this Prospectus and Registration
Statement in reliance upon such report and upon the authority of
such firm as experts in accounting and auditing.
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WHERE YOU CAN FIND ADDITIONAL
INFORMATION
We file annual,
quarterly and current reports, proxy statements and other
information with the SEC. The SEC maintains an Internet site that
contains reports, proxy and information statements, and other
information regarding issuers that file electronically with the
SEC; it is available at http://www.sec.gov. Our SEC filings are
available to you on the SEC's Internet site. Copies of certain
information filed by us with the SEC are also available on our
website at www.invivotherapeutics.com. The
information on our Internet website is not incorporated by
reference in this prospectus.
This prospectus
is part of a registration statement that we filed with the SEC.
This prospectus does not contain all of the information included in
the registration statement, including certain exhibits and
schedules. You should review the information and exhibits in the
registration statement for further information about us and the
securities we are offering. Statements in this prospectus
concerning any document we filed as an exhibit to the registration
statement or that we otherwise filed with the SEC are not intended
to be comprehensive and are qualified by reference to these
filings. You should review the complete document to evaluate these
statements. You can obtain a copy of the registration statement and
exhibits from the SEC's Internet site.
INCORPORATION OF DOCUMENTS BY
REFERENCE
The SEC allows
us to incorporate by reference into this prospectus information and
reports that we file with the SEC. This means that we can disclose
important information to you by referring to other documents that
contain that information. Any information that we incorporate by
reference is considered part of this prospectus. The documents and
reports that we list below are incorporated by reference into this
prospectus, other than any portion of any such documents that are
not deemed "filed" under the Exchange Act in accordance with the
Exchange Act and applicable SEC rules.
In addition,
all documents and reports which we file pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this prospectus and prior to the termination of the
offering made hereby are incorporated by reference in this
prospectus as of the respective filing dates of these documents and
reports.
We have filed
the following documents with the SEC. These documents are
incorporated in this prospectus by reference as of their respective
dates of filing:
- (1)
-
Our Annual Report on Form 10-K for the fiscal year ended
December 31, 2019, filed with the SEC on February 20,
2020;
- (2)
-
Our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2020 filed with the SEC on May 13,
2020;
- (3)
- Our Current Reports
on Form 8-K filed on
January 16, 2020,
January 24, 2020,
February 3, 2020,
February 11, 2020,
February 24, 2020,
March 2, 2020;
March 11, 2020, and
April 16, 2020; and
- (4)
-
The description of our common stock contained in our Registration
Statement on Form 8-A filed on April 15, 2015, including
any amendments or reports filed for the purpose of updating such
description.
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You may request a copy
of these documents, which will be provided to you at no cost, by
writing or telephoning us at:
InVivo
Therapeutics Holdings Corp.
One Kendall Square, Suite B14402
Cambridge, Massachusetts 02139
Attn: Investor Relations
(617) 863-5500
Statements
contained in documents that we file with the SEC and that are
incorporated by reference in this prospectus will automatically
update and supersede information contained in this prospectus,
including information in previously filed documents or reports that
have been incorporated by reference in this prospectus, to the
extent the new information differs from or is inconsistent with the
old information. Any statement so modified or superseded will not
be deemed to be a part of this prospectus, except as so modified or
superseded. Because information that we later file with the SEC
will update and supersede previously incorporated information, you
should look at all of the SEC filings that we incorporate by
reference to determine if any of the statements in this prospectus
or in any documents previously incorporated by reference have been
modified or superseded.
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1,826,731 Shares of Common Stock
Prospectus
June 4, 2020
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