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Nevada
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3841
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36-4528166
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(State or other Jurisdiction
of Incorporation or Organization) |
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(Primary Standard Industrial
Classification Code Number) |
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(I.R.S. Employer
Identification No.) |
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Rosemary G. Reilly, Esq.
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Robert F. Charron, Esq.
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Wilmer Cutler Pickering Hale and Dorr LLP
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Ellenoff Grossman & Schole LLP
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60 State Street
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1345 Avenue of the Americas
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Boston, Massachusetts 02109
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New York, New York 10105
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(617) 526-6000
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(212) 370-1300
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| Large accelerated filer | | | ☐ | | | Accelerated filer | | | ☐ | |
| Non-accelerated filer | | | ☒ | | |
Smaller reporting company
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| | ☒ | |
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Emerging growth company
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Title of Each Class of Securities to be Registered
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| | |
Proposed
Maximum Aggregate Offering Price(1)(2)(3) |
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Amount of
Registration Fee(1) |
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Common Stock, par value $0.00001 per share(3)
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| | | | | | | | |
Series B pre-funded warrants to purchase shares of Common Stock(3)
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| | | | | | | | |
Shares of Common Stock issuable upon exercise of Series B pre-funded warrants(3)(4)
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| | | | | | | | |
Series A common warrants to purchase shares of Common Stock(4)(5)
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Shares of Common Stock issuable upon exercise of Series A common warrants to purchase Common Stock(4)(5)
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| | | | | | | | |
Placement agent warrant to purchase shares of common stock and common stock issuable upon exercise thereof(6)
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| | | | | | | | |
Total
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| | |
$16,218,750
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| | |
$1,769.47
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Page
Number |
| |||
| | | | ii | | | |
| | | | 1 | | | |
| | | | 6 | | | |
| | | | 10 | | | |
| | | | 12 | | | |
| | | | 13 | | | |
| | | | 14 | | | |
| | | | 16 | | | |
| | | | 19 | | | |
| | | | 24 | | | |
| | | | 30 | | | |
| | | | 32 | | | |
| | | | 33 | | | |
| | | | 34 | | | |
| | | | 35 | | |
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Securities offered by us in this offering:
|
| | shares of our common stock and Series A warrants to purchase shares of common stock, or Series B pre-funded warrants to purchase shares of common stock and Series A warrants to purchase shares of common stock, in each case, assuming a combined offering price of $ per share and Series A warrant and per Series B warrant and Series A warrant, which is equal to the last reported sale price per share of our common stock on the Nasdaq Capital Market on , 2020. | |
|
Description of Series A warrants:
|
| | The shares, or Series B pre-funded warrants, and Series A warrants will be separately transferable immediately upon issuance, but the shares, or Series B pre-funded warrants, and Series A warrants will be issued to purchasers in the ratio of one to one. Each Series A warrant will have an exercise price of $ per share, will be exercisable upon issuance and will expire years from the date of issuance. | |
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Description of Series B pre-funded warrants:
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| | If the issuance of shares of our common stock to a purchaser in this offering would result in such 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 our outstanding common stock following the consummation of this offering, then such purchaser may purchase, if they so choose, in lieu of the shares of our common stock that would result in such excess ownership, a Series B pre-funded warrant to purchase shares of our common stock for a purchase price per share of common stock subject to such Series B pre-funded warrant equal to the per share public offering price for the common stock in this offering less $0.00001. Each Series B pre-funded warrant will have an exercise price of $0.00001 per share, will be exercisable upon issuance and will expire years from the date of issuance. Purchasers of Series B pre-funded warrants will also receive Series A warrants as if such purchasers were buying shares of our common stock in this offering. This prospectus also relates to the offering of the shares of common stock issuable upon exercise of these Series B pre-funded warrants. | |
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Common stock outstanding after this offering:
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| | shares of common stock, assuming no sale of Series B pre-funded warrants in this offering and no exercise of the Series A warrants being issued in this offering and assuming a combined offering price of $ per share and Series A warrant, which is equal to the last reported sale price per share of our common stock on the Nasdaq Capital Market on 2020. | |
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Use of proceeds:
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| | We intend to use the net proceeds from this offering for working capital, business development activities, and general corporate purposes. See “Use of Proceeds” on page 12 of this prospectus. | |
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Dividend policy:
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| | We have never paid cash dividends on our common stock. We currently anticipate that we will retain future earnings for the development, operation and expansion of our business and do not anticipate declaring or paying any cash dividends for the foreseeable future. | |
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Risk factors:
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| | See “Risk Factors” beginning on page 6 and the section entitled “Risk Factors” included in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 as revised or supplemented by our subsequent Quarterly Reports on Form 10-Q including our Quarterly Report on Form 10-Q for the quarter ended June 30, 2020, which are incorporated herein by reference, and the other information included or incorporated by reference elsewhere in this prospectus for a discussion of factors you should carefully consider before deciding to invest in our securities. | |
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Nasdaq Capital Market symbol:
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| | Our common stock is listed on the Nasdaq Capital Market under the symbol “NVIV.” There is no established trading market for the Series A warrants or the Series B pre-funded warrants, and we do not expect a trading market to develop. We do not intend to list the Series A warrants or the Series B pre-funded warrants on any securities exchange or other trading market. Without a trading market, the liquidity of the Series A warrants or Series B pre-funded warrants will be extremely limited. | |
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As of June 30, 2020
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| | |
Actual
|
| |
Pro Forma
As Adjusted(1) |
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| | |
(Unaudited)
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Cash and cash equivalents
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| | | $ | 9,825 | | | | | $ | | | |
Stockholders’ equity
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| | | | | | | | | | | | |
Common stock, $0.00001 par value – 16,666,667 shares authorized, 4,882,420 shares issued and outstanding, on an actual basis; 50,000,000 shares authorized , shares issued and outstanding on a pro forma as adjusted basis
|
| | | | 2 | | | | | | | | |
Additional paid-in capital
|
| | | | 233,791 | | | | | | | | |
Accumulated deficit
|
| | | | (223,763) | | | | | | (223,763) | | |
Total stockholders’ equity
|
| | | | 10,030 | | | | | | | | |
Total capitalization
|
| | | $ | 10,030 | | | | | $ | | | |
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Per share and Series A warrant placement agent cash fees
|
| | | $ | | | |
|
Per Series B pre-funded warrant and Series A warrant placement agent cash fees
|
| | | $ | | | |
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Total
|
| | | $ | | |
| | |
Amount to
be Paid |
| |||
SEC registration fee
|
| | | $ | 1,769.47 | | |
FINRA filing fee
|
| | | $ | 2,750.00 | | |
Printing fees and expenses
|
| | | | * | | |
Legal fees and expenses
|
| | | | * | | |
Placement agent expenses
|
| | | | * | | |
Accounting fees and expenses
|
| | | | * | | |
Total
|
| | | $ | * | | |
| | | | INVIVO THERAPEUTICS HOLDINGS CORP. | | |||
| Date: October 6, 2020 | | | By: | | |
/s/ Richard Toselli
Richard Toselli
President and Chief Executive Officer (Principal Executive Officer) |
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| Date: October 6, 2020 | | | By: | | |
/s/ Richard Christopher
Richard Christopher
Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) |
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Signature
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Title
|
| |
Date
|
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/s/ Richard Toselli
Richard Toselli
|
| |
President and Chief Executive Officer
(Principal Executive Officer) and Director |
| |
October 6, 2020
|
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/s/ Richard Christopher
Richard Christopher
|
| |
Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer) |
| |
October 6, 2020
|
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/s/ C. Ann Merrifield
C. Ann Merrifield
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| | Director | | |
October 6, 2020
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Signature
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| |
Title
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| |
Date
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/s/ Daniel R. Marshak
Daniel R. Marshak
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| | Director | | |
October 6, 2020
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/s/ Christina Morrison
Christina Morrison
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| | Director | | |
October 6, 2020
|
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/s/ Richard J. Roberts
Richard J. Roberts
|
| | Director | | |
October 6, 2020
|
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/s/ Robert J. Rosenthal
Robert J. Rosenthal
|
| | Director | | |
October 6, 2020
|
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-1 and related Prospectus of InVivo Therapeutics Holdings Corp. of our report dated February 20, 2020, relating to the consolidated financial statements of InVivo Therapeutics Holdings Corp. and subsidiary, appearing in the Annual Report on Form 10-K of InVivo Therapeutics Holdings Corp. for the year ended December 31, 2019.
We also consent to the reference to our firm under the heading "Experts" in such Prospectus.
/s/ RSM US LLP
Boston, Massachusetts
October 6, 2020