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
Exhibit No. Description
4.1 Form of Series A Warrant (incorporated by reference from Exhibit
4.12 to the Company's Amendment No. 1 to Registration Statement on
Form S-1/A (File No. 333-249353), as filed with the SEC on October 16,
2020)
4.2 Form of Series B Pre-Funded Warrant (incorporated by reference from
Exhibit 4.13 to the Company's Amendment No. 1 to Registration
Statement on Form S-1/A (File No. 333-249353), as filed with the SEC
on October 16, 2020)
4.3 Form of Placement Agent Warrant (incorporated by reference from
Exhibit 4.14 to the Company's Amendment No. 1 to Registration
Statement on Form S-1/A (File No. 333-249353), as filed with the SEC
on October 16, 2020)
5.1 Opinion of Ballard Spahr LLP
23.1 Consent of Ballard Spahr LLP (included in Exhibit 5.1)
99.1 Form of Securities Purchase Agreement (incorporated by reference
from Exhibit 10.24 to the Company's Amendment No. 1 to Registration
Statement on Form S-1/A (File No. 333-249353), as filed with the SEC
on October 16, 2020)
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