UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
October
22, 2020
Date of Report (Date of earliest event reported)
INVIVO THERAPEUTICS HOLDINGS CORP.
(Exact Name of Registrant as Specified in Charter)
Nevada |
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001-37350 |
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36-4528166 |
(State
or Other |
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(Commission
File Number) |
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(IRS
Employer |
Jurisdiction
of Incorporation) |
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Identification
No.) |
One Kendall Square, Suite B14402
Cambridge, Massachusetts 02139
(Address of Principal Executive Offices) (Zip Code)
(617) 863-5500
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions (see
General Instruction A.2. below):
¨ Written
communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
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Trading
symbol(s)
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Name
of each exchange on which
registered
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Common
Stock, $0.00001 par value per share |
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NVIV |
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The
Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ¨
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 13(a) of the Exchange
Act. ¨
Item 8.01.
Other Information
On October 22, 2020, InVivo Therapeutics Holdings Corp. (the
“Company”) entered into a Placement Agency Agreement (the
“Placement Agency Agreement”) with H.C. Wainwright & Co., LLC
(“Wainwright”) for a registered public offering (the “Offering”) of
an aggregate of (i) 11,785,000 shares of common stock, $0.00001 par
value per share, of the Company (the “Shares”), (ii) Series B
warrants (the “Series B Warrants”) exercisable for an aggregate of
6,965,000 shares of common stock and (iii) Series A Warrants (the
“Series A Warrants”) exercisable for an aggregate of 18,750,000
shares of common stock (the Series A Warrants together with the
Series B Warrants, the “Warrants”). The Offering will close on
October 26, 2020, subject to customary closing conditions.
The Company’s net proceeds from the Offering, after deducting
Wainwright’s placement agent fees and other estimated offering
expenses payable by the Company, will be approximately $13.5
million.
In connection with the Offering, the Company entered into a
Securities Purchase Agreement (the “Purchase Agreement”) on October
22, 2020 with certain institutional investors. The Purchase
Agreement contains customary representations and warranties of the
Company, termination rights of the parties, and certain
indemnification obligations of the Company and ongoing covenants of
the Company, including a prohibition on issuance of common stock or
securities convertible or exchangeable into common stock by the
Company for a period of 90 days after the date of the Purchase
Agreement and a prohibition on the Company entering into variable
rate transactions for a period of 12 months after the date of the
Purchase Agreement, subject to certain exceptions.
The Series A Warrants are exercisable upon issuance at a price of
$0.80 per share of common stock, subject to adjustment in certain
circumstances, and expire on October 27, 2025. The Series B
Warrants are exercisable upon issuance at a price of $0.00001 per
share of common stock, subject to adjustment in certain
circumstances, and expire when exercised in full, subject to
certain conditions. The Shares and Series B Warrants were each
offered together with the Series A Warrants, but the Shares and
Warrants were issued separately from the Series A Warrants.
The offering price to the public was $0.80 per Share and Series A
Warrant and $0.79999 per Series B Warrant and Series A Warrant. The
Series B Warrants were issued and sold to certain purchasers whose
purchase of shares of common stock in the Offering would have
otherwise resulted in the purchaser, together with its affiliates
and certain related parties, beneficially owning more than 4.99%
(or, at the election of the purchaser, 9.99%) of the Company’s
outstanding common stock immediately following the consummation of
this Offering, if the purchaser so chose in lieu of shares of
common stock that would otherwise result in the purchaser’s
beneficial ownership exceeding 4.99% of the Company’s outstanding
common stock (or at the election of the purchaser, 9.99%).
The Shares, Warrants and Placement Agent Warrants (as defined
below) were issued pursuant to a registration statement on Form S-1
that was filed with the Securities and Exchange Commission (“SEC”)
on October 6, 2020 and declared effective by the SEC on October 22,
2020 (File No. 333-249353).
The Company is also party to an engagement letter (the “Engagement
Letter”) with Wainwright, pursuant to which Wainwright acted as
exclusive placement agent for the Offering. In accordance with the
terms of the Engagement Letter and the Placement Agency Agreement,
the Company paid Wainwright a cash fee of $1,050,000, which
represents 7.0% of the gross proceeds of the Offering, a management
fee of $150,000, which represents 1.0% of the gross proceeds of the
Offering, and $12,900 for expenses of its clearing firm, and will
reimburse Wainwright for its reasonable and documented legal fees
and expenses up to $66,000.
Pursuant to the Engagement Letter and the Placement Agency
Agreement, the Company issued to Wainwright’s designees placement
agent warrants (the “Placement Agent Warrants”) to purchase
1,218,750 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 and Series B Warrants sold in the Offering.
The Placement Agent Warrants have an exercise price of $1.00 per
share of common stock. The Placement Agent Warrants are exercisable
upon issuance and expire October 22, 2025.
In addition, under the Engagement Letter the Company has granted to
Wainwright, subject to certain exceptions, the right to act as the
Company’s exclusive agent, advisor or underwriter with respect to
any offering of securities for capital raising purposes until
October 31, 2021.
The descriptions of terms and conditions of the Series A Warrants,
the Series B Warrants, the Placement Agent Warrants and the
Purchase Agreement set forth herein are qualified in their entirety
by the full text of the Form of Series A Warrant, Form of Series B
Warrant, Form of Placement Agent Warrant and Form of Securities
Purchase Agreement, which are filed as Exhibits 4.1, 4.2, 4.3 and
99.1, respectively, to this Current Report on Form 8-K and are
incorporated herein by reference.
The opinion and consent of Ballard Spahr LLP, as to the validity of
these shares of common stock, filed as Exhibits 5.1 and 23.1 to
this Current Report on Form 8-K, respectively, are incorporated by
reference into the Registration Statement.
Item 9.01. Financial Statements and Exhibits.
(d)
Exhibits
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
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INVIVO
THERAPEUTICS HOLDINGS CORP. |
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Date:
October 23, 2020 |
By: |
/s/
Richard Toselli |
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Name: |
Richard
Toselli |
|
Title: |
President
and Chief Executive Officer |
InVivo Therapeutics (NASDAQ:NVIV)
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