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.