Securities Registration: Employee Benefit Plan (s-8)
November 16 2021 - 4:31PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on November 16, 2021
Registration No.
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
InVivo Therapeutics
Holdings Corp.
(Exact Name of Registrant as Specified in Its Charter)
Nevada
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36-4528166
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(State or Other Jurisdiction of Incorporation
or Organization)
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(I.R.S. Employer
Identification No.)
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One Kendall Square, Suite
Cambridge, MA
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02139
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(Address of Principal Executive Offices)
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(Zip Code)
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2015 Equity Incentive Plan
(Full Title of the Plan)
Richard Toselli, M.D.
President and Chief Executive Officer
InVivo Therapeutics Holdings Corp.
One Kendall Square, Suite B14402
Cambridge, MA 02139
(Name and Address of Agent For Service)
(617) 863-5500
(Telephone Number, Including Area Code, of
Agent For Service)
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨
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Accelerated filer ¨
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Non-accelerated filer x
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Smaller reporting company x
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Emerging growth company ¨
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If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered
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Amount to be
Registered(1)
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Proposed Maximum
Offering Price Per
Share
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee
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Common Stock, $0.00001 par value per share
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1,292,784
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(2)
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$
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0.55(3
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$
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711,031(3
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$
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65.91
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(1)
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In accordance with Rule 416 under the Securities Act of 1933,
as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may
from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
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(2)
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Consists of 1,292,784 additional shares available for grant under the 2015 Equity Incentive Plan (the
“2015 Plan”). Such number represents a portion of the 2,700,000 total shares approved for issuance under the 2015
Plan.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the
Securities Act, and based upon the average of the high and low sale prices of the Common Stock as reported on the Nasdaq Capital
Market on November 12, 2021. The price per share and aggregate offering price are calculated on the basis of the exercise price of
the option outstanding under the inducement stock option award.
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EXPLANATORY NOTE
This Registration Statement on Form S-8, relating
to the 2015 Equity Incentive Plan (the “2015 Plan”) of InVivo Therapeutics Holdings Corp. (the “Registrant”),
is being filed for the purpose of registering additional securities of the same class as other securities for which a Registration Statement
on Form S-8 relating to the 2015 Plan has previously been filed and is effective. Accordingly, this Registration Statement incorporates
by reference the contents of the Registration Statement on Form S-8, File No. 333-205471, filed with the Securities and Exchange Commission on July 2, 2015 by the Registrant, relating to the 2015 Plan, the Registration Statement on Form S-8, File No. 333-234630, filed with the Securities and Exchange Commission on November 12, 2019 by the Registrant, relating to the 2015 Plan, the Registration
Statement on Form S-8, File No. 333-236542, filed with the Securities and Exchange Commission on February 20, 2020 by the Registrant,
relating to the 2015 Plan, the Registration Statement on Form S-8, File No. 333-249928, filed with the Securities and Exchange Commission on November 6, 2020 by the Registrant, relating to the 2015 Plan, except in each case for Item 8, Exhibits.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
Exhibit
Number
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Description of Exhibit
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4.1
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Articles of Incorporation of InVivo Therapeutics Holdings Corp., as amended (incorporated by reference from Exhibit 3.1 to the Company’s Quarterly Report on Form 10 Q for the quarter ended June 30, 2016, as filed with the SEC on August 4, 2016)
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4.2
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Certificate of Amendment to Articles of Incorporation of InVivo Therapeutics Holdings Corp. (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on June 1, 2017)
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4.3
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Certificate of Change Pursuant to NRS 78.209 filed with Nevada Secretary of State, dated April 13, 2018 (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on April 16, 2018)
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4.4
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Certificate of Amendment to Articles of Incorporation of InVivo Therapeutics Holdings Corp. (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on June 1, 2018)
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4.5
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Certificate of Amendment to Articles of Incorporation of InVivo Therapeutics Holdings Corp. (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on January 24, 2020)
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4.6
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Certificate of Change Pursuant to NRS 78.209 filed with Nevada Secretary of State, dated February 10, 2020 (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on February 11, 2020)
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4.7
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Certificate of Amendment to Articles of Incorporation of InVivo Therapeutics Holdings Corp. (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on August 5, 2020)
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4.8
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Amended and Restated Bylaws of InVivo Therapeutics Holdings Corp, as amended (incorporated by reference from Exhibit 3.2 to the Company’s Current Report on Form 8-K, as filed with the SEC on June 5, 2020)
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5.1+
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Opinion of Ballard Spahr LLP, counsel to InVivo Therapeutics Holdings Corp.
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+ Filed herewith
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Cambridge, Commonwealth of Massachusetts, on November 16, 2021.
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INVIVO THERAPEUTICS HOLDINGS CORP.
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By:
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/s/ RICHARD TOSELLI, M.D
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Richard Toselli
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President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of InVivo
Therapeutics Holdings Corp., hereby severally constitute and appoint Richard Toselli, M.D., and Richard Christopher, and each of them
singly, our true and lawful attorneys with full power to either of them, and to each of them singly, to sign for us and in our names in
the capacities indicated below the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration
statement and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable InVivo
Therapeutics Holdings Corp. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to
said registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ RICHARD TOSELLI,
M.D
Richard Toselli
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President, Chief Executive Officer and Director (Principal Executive Officer)
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November 16, 2021
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/S/ RICHARD CHRISTOPHER
Richard Christopher
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Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)
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November 16, 2021
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/s/ C. ANN MERRIFIELD
C. Ann Merrifield
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Chair of the Board
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November 16, 2021
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/s/ DANIEL R. MARSHAK
Daniel R. Marshak
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Director
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November 16, 2021
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/s/ CHRISTINA MORRISON
Christina Morrison
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Director
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November 16, 2021
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/s/ RICHARD J. ROBERTS
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Director
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November 16, 2021
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Richard J. Roberts
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/s/ ROBERT J. ROSENTHAL
Robert J. Rosenthal
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Director
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November 16, 2021
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