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Item 1.01
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Entry into a Material Definitive Agreement.
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On December 30, 2021, CytoSorbents
Corporation (the “Company”) entered into an Open Market Sale AgreementSM (the “Sale Agreement”)
with Jefferies LLC (the “Agent”), pursuant to which the Company may sell, from time to time, at its option, shares of the
Company’s common stock, $0.001 par value per share (the “Shares”), through the Agent, as the Company’s sole sales
agent. Any Shares to be offered and sold under the Sale Agreement will be issued and sold pursuant to the Company’s previously filed
and currently effective registration statement on Form S-3 (File No. 333-257910) (the “Registration Statement”) by methods
deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended,
in block transactions or if consented to by the Company, in negotiated transactions.
Subject to the terms of the
Sale Agreement, the Agent will use reasonable efforts to sell the Shares from time to time, based upon the Company’s instructions
(including any price, time or size limits or other customary parameters or conditions the Company may impose). The Company cannot provide
any assurances that it will issue any Shares pursuant to the Sale Agreement. The Company will pay the Agent a commission equal to 3.0%
of the gross proceeds from the sale of the Shares, if any. The Company has also agreed to provide the Agent with customary indemnification
rights. The offering of the Shares will terminate upon the termination of the Sale Agreement by the parties thereto.
The foregoing description
of the Sale Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Sale Agreement,
which is attached hereto as Exhibit 1.1 and incorporated by reference herein.
Morgan, Lewis & Bockius
LLP, counsel to the Company, has issued a legal opinion relating to the legality of the issuance and the sale of the Shares. A copy of
such legal opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.
The Shares to be sold under
the Sale Agreement, if any, will be issued and sold pursuant to the Registration Statement, which previously was filed with the Securities
and Exchange Commission (“SEC”) on July 14, 2021, amended on July 20, 2021, and declared effective by the SEC on July 27,
2021. A prospectus supplement related to the offering of up to $25,000,000 of Shares has been filed with the SEC on December 30, 2021.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Shares nor shall there
be any sale of the Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state.
The Company ended the third quarter
of 2021 with a cash balance of approximately $61.0 million and no debt. The Company has entered into the Sale Agreement as a matter
of good corporate governance to provide greater flexibility with respect to its general long-term financing strategy and, as of the filing
of this Current Report on Form 8-K, does not intend to immediately sell Shares under the Sale Agreement.
Cautionary Statement Regarding Forward-Looking Statements
This current report on
Form 8-K contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A
of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended.
Forward-looking statements involve risks and uncertainties that could cause actual results to differ from projected
results. The words “anticipate,” “future,” “goal,” “intend,” “project,”
“seek,” “strategy,” “likely,” “may,” “should,” “will,”
“believe,” “estimate,” “expect,” “plan,” and similar expressions and references to
future periods, as they relate to the Company, are intended to
identify forward-looking statements. Forward-looking statements reflect the Company’s current views with
respect to future events and are subject to certain risks, uncertainties, and assumptions. The Company cannot give any assurance
that its expectations will be realized.
(d) Exhibits