As filed with the Securities and Exchange Commission on June 20, 2018

Registration No. 333-           

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549


TO

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933


INVIVO THERAPEUTICS HOLDINGS CORP.

(Exact name of registrant as specified in its charter)

Nevada

 

3841

 

36-4528166

(State or other Jurisdiction
of Incorporation or Organization)

 

(Primary Standard Industrial
Classification Code Number)

 

(I.R.S. Employer
Identification No.)

One Kendall Square, Suite B14402
Cambridge, MA 02139
(617) 863-5500

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Richard Toselli, M.D.

President and Chief Executive Officer

InVivo Therapeutics Holdings Corp.

One Kendall Square, Suite B14402
Cambridge, MA 02139
(617) 863-5500

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

 

 

 

Rosemary G. Reilly, Esq.

 

Michael F. Nertney, Esq.

Wilmer Cutler Pickering Hale and Dorr LLP

 

Ellenoff Grossman & Schole LLP

60 State Street

 

1345 Avenue of the Americas

Boston, Massachusetts 02109

 

New York, NY 10105-0302

(617) 526-6000

 

(212) 370-1300


Approximate date of commencement of proposed sale to the public:   As soon as practicable after the effective date of this registration statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box:    x

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   x 333-224424

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o

 

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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

o

Accelerated filer

x

 

 

 

 

Non-accelerated filer

o   (Do not check if a smaller reporting company)

Smaller reporting company

o

 

 

 

 

 

 

Emerging growth company

o

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 to Section 7(a)(2)(B) of the Securities Act.   o

CALCULATION OF REGISTRATION FEE

Title of Each Class of
Securities to be Registered

 

Proposed
Maximum
Aggregate
Offering
Price (1)(2)

 

Amount of
Registration Fee (1)

 

Common Stock, par value $0.00001 per share

 

$

2,530,000

 

$

315

 

Series B pre-funded warrants to purchase shares of Common Stock

 

$

 

(3)

 

(3)

Shares of Common Stock issuable upon exercise of Series B pre-funded warrants

 

 

(3)

 

(3)

Series A common warrants to purchase shares of Common Stock

 

 

 

 

 

 

 

Shares of Common Stock issuable upon exercise of Series A common warrants(4)

 

$

2,783,000

 

$

346

 

Total

 

$

5,313,000

 

$

661

 

(1)           Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. Represents only the additional number of securities being registered. Does not include the securities that the registrant previously registered on the registration statement on Form S-1 (File No. 333-224424).

(2)           Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement shall also cover an indeterminate number of shares that may be issued and resold resulting from stock splits, stock dividends or similar transactions.

(3)           The proposed maximum aggregate offering price of the common stock will be reduced on a dollar-for-dollar basis based on the offering price of any Series B pre-funded warrants offered and sold in the offering, and the proposed maximum aggregate offering price of the Series B pre-funded warrants to be sold in the offering will be reduced on a dollar-for-dollar basis based on the offering price of any common stock sold in the offering. Accordingly, the proposed maximum aggregate offering price of the common stock, Series B pre-funded warrants and Series A common warrants (including the common stock issuable upon exercise of the Series B pre-funded warrants), if any, is $2,530,000.

(4)           Pursuant to Staff Compliance and Disclosure Interpretation 240.06, equals the aggregate exercise price of the warrants.

 

This Registration Statement shall become effective upon filing in accordance with Rule 462(b) under the Securities Act of 1933, as amended.

 

 

 



 

EXPLANATORY NOTE AND INCORPORATION BY REFERENCE

 

This registration statement is being filed with respect to the registration of (i) additional shares of common stock, $0.00001 par value per share (each a “Share”), together with a warrant to purchase one Share (each a “Series A Warrant”) and (ii) pre-funded warrants to purchase one Share (each a “Series B Warrant”), together with a Series A Warrant, of the Registrant, as set forth in the Registration Statement and the prospectus contained therein, of InVivo Therapeutics Holdings Corp., a Nevada corporation, pursuant to Rule 462(b) under the Securities Act of 1933, as amended.  The contents of the earlier registration statement on Form S-1 (File No. 333-224424), which was declared effective by the Commission on June 20, 2018, are incorporated in this registration statement by reference.

 

The required opinions and consents are listed on an Exhibit Index attached hereto and filed herewith.

 

II- 1



 

ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.

 

(a) Exhibits

 

Exhibit
No.

 

Description

 5.1

 

Opinion of Ballard Spahr LLP

23.1

 

Consent of RSM US LLP

23.2

 

Consent of Ballard Spahr LLP (included in Exhibit 5.1)

24.1*

 

Power of Attorney (contained on the signature pages to the registration statement)

 


*  Filed as Exhibit 24.1 to Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-224424) filed with the Commission on June 14, 2018.

 

II- 2



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cambridge, Commonwealth of Massachusetts, on June 20, 2018.

 

 

INVIVO THERAPEUTICS HOLDINGS CORP.

 

 

 

Date:  June 20, 2018

By:

/s/ Richard Toselli

 

 

Richard Toselli

 

 

President and Chief Executive Officer (Principal Executive Officer)

 

 

 

Date:  June 20, 2018

By:

/s/ Jeffrey Modestino

 

 

Jeffrey Modestino

 

 

Principal Financial Officer, Principal Accounting Officer, Treasurer

 

In accordance with the requirements of the Securities Act of 1933, as amended, this the registration statement was signed by the following persons in the capacities and on the dates stated:

 

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Richard Toselli

 

President and Chief Executive Officer (Principal Executive Officer) and Director

 

June 20 , 2018

Richard Toselli

 

 

 

 

 

 

 

 

/s/ Jeffrey Modestino

 

Principal Financial Officer, Principal Accounting Officer, Treasurer

 

June 20 , 2018

Jeffrey Modestino

 

 

 

 

 

 

 

 

*

 

Director

 

June 20 , 2018

Jeffrey Hatfield

 

 

 

 

 

II- 3



 

*

 

Director

 

June 20 , 2018

Daniel Marshak

 

 

 

 

 

 

 

 

 

*

 

Director

 

June 20 , 2018

C. Ann Merrifield

 

 

 

 

 

 

 

 

 

*

 

Director

 

June 20 , 2018

Christina Morrison

 

 

 

 

 

 

 

 

 

*

 

Director

 

June 20 , 2018

Richard Roberts

 

 

 

 

 

*By:

/s/ Richard Toselli

 

 

 

 

 

Attorney-in-fact

 

 

 

 

 

II- 4


Exhibit 5.1

 

 

June 20, 2018

 

InVivo Therapeutics Holdings Corp.

 

Re:                              Registration Statement on Form S-1

 

Ladies and Gentlemen:

 

We have acted as counsel to InVivo Therapeutics Holdings Corp., a Nevada corporation (“ Corporation ”), in connection with the Corporation’s Registration Statement on Form S-1 (File No. 333-       ) (the “ Registration Statement ”), as filed with the United States Securities and Exchange Commission (the “ Commission ”) on June 20, 2018 under the Securities Act of 1933, as amended (the “ Securities Act ”).  The prospectus contained within the Amended Registration Statement covers the sale, from time to time on a delayed or continuous basis pursuant to Rule 415(a)(4) under the Securities Act, of certain securities, the sale of which will be governed by an underwriting agreement (the “ Underwriting Agreement ”) to be entered into with Ladenburg Thalmann & Co. Inc., as the representative of the several underwriters thereto (the “ Underwriters ”), and a warrant agency agreement (the “ Warrant Agreement ”) to be entered into with Continental Stock Transfer & Trust Company:

 

(i)                    shares of common stock (the “ Shares ”), par value $0.00001 per share (the “ Common Stock ”);

 

(ii)                 Series A warrants (the “ Series A Warrants ”) to purchase shares of Common Stock (the “ Series A Shares ”);

 

(iii)              Series B pre-funded warrants (the “ Series B Warrants ”) to purchase shares of Common Stock (the “ Series B Shares ”); and

 

(iv)             shares of Common Stock (the “ Option Shares ”) and Series A warrants (the “ Option Warrants ” and, together with the Series A Warrants and the Series B Warrants, the “ Warrants ”) to purchase shares of Common Stock (the “ OA Shares ” and, together with the Shares, the Series A Warrants, the Series B Warrants, the Series A Shares, the Series B Shares, the Option Shares, and Option Warrants, the “ Securities ”) permitted to be purchased by the Underwriters pursuant to the 45-day option to cover for over-allotments, if any, under the Underwriting Agreement.

 



 

In connection therewith, we have examined, and relied upon the accuracy of factual matters contained in: (a) the Articles of Incorporation of the Corporation filed with the Nevada Secretary of State on April 1, 2003, as amended (the “ Articles ”); (b) the Amended and Restated Bylaws of the Corporation, dated as of March 29, 2016; (c) resolutions adopted by the Corporation’s Board of Directors authorizing the filing of the Registration Statement and the exhibits thereto with the Commission, the formation of the Pricing Committee, and subject to the final approval of the Pricing Committee, the issuance and sale of the Securities pursuant to the Underwriting Agreement and the Warrant Agreement, amongst other items. We have also examined such corporate records and other agreements, documents and instruments, and such certificates or comparable documents of public officials and officers and representatives of the Corporation and have made such inquiries of such officers and representatives and have considered such matters of law as we have deemed appropriate as the basis for the opinion hereinafter set forth.

 

In delivering this opinion, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as certified, photostatic or conformed copies, the authenticity of originals of all such latter documents, and the accuracy and completeness of all records, information and statements submitted to us by officers and representatives of the Corporation. In making our examination of documents executed by parties other than the Corporation, we have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization of all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof with respect to such parties.

 

The opinion expressed below is based on the assumption that the Registration Statement, and any amendments or supplements thereto (including any post-effective amendments), have been filed by the Corporation with the Commission and will be effective at the time that any of the Securities are issued, and that persons acquiring the Securities will receive a prospectus containing all of the information required by Part I of the Registration Statement before acquiring such Securities.  We further assume that the Securities will continue to be duly and validly authorized on the dates that the Securities are issued, and, upon the issuance of any of the Securities, the total number of shares of Common Stock issued and outstanding, after giving effect to such issuance of such Securities, including the purchase of any Common Stock pursuant to the Warrants, will not exceed the total number of shares of Common Stock that the Corporation is then authorized to issue under the Articles.

 

Based upon the foregoing and subject to the assumptions, exceptions, limitations and qualifications set forth herein, we are of the opinion that:

 

2



 

1.                                       With respect to the Shares, the Series A Shares, the Series B Shares, the Option Shares, and the OA Shares (the “ Offered Common Stock ”), when, as and if (a) the Board of Directors or any duly appointed Pricing Committee has taken all necessary corporate action to fix and determine the terms of the Offered Common Stock and authorize their issuance and sale in accordance with the Articles, the Underwriting Agreement, the terms of the Warrants, and the Warrant Agreement, as applicable, including the reservation of a sufficient number of shares of Common Stock; (b) the Underwriting Agreement, the terms of the Warrants, and the Warrant Agreement have been duly authorized, executed, and delivered by authorized officers of the parties thereto; (c) certificates representing the shares of the Offered Common Stock have been manually signed by an authorized officer of the transfer agent and registrar for the Common Stock and registered by such transfer agent and registrar, and delivered to the purchasers thereof; and (d) the Corporation receives consideration per share of the Offered Common Stock in such amount as may be determined by the Board of Directors or any duly appointed Pricing Committee, the issuance and sale of the shares of Offered Common Stock will have been duly authorized, and such shares of Offered Common Stock will be validly issued, fully paid and non-assessable.

 

2.                                       With respect to the Warrants (the “ Offered Warrants ”), when, as and if (a) specifically authorized for issuance by the Board of Directors or any duly appointed Pricing Committee, including the reservation of a sufficient number of shares of Common Stock issuable upon exchange, exercise or conversion of such Offered Warrants; (b) the terms of the Warrants and the Warrant Agreement have been duly authorized, executed, and delivered by authorized officers of the parties thereto; (c) the terms of the Offered Warrants and their issuance and sale have been duly established in conformity with any such Warrant Agreement and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Corporation and comply with any requirement and restriction imposed by any court or governmental body having jurisdiction over the Corporation; (d) the Offered Warrants have been duly executed and countersigned in accordance with any such Warrant Agreement or held in global form, and issued and sold as contemplated by the Registration Statement; and (e) the Corporation has received the consideration for the Offered Warrants provided for in the resolutions of the Board of Directors or any duly appointed Pricing Committee, the issuance and sale of the Offered Warrants will have been duly authorized, and such securities will be legally valid and binding obligations of the Corporation.

 

This opinion is limited to the present laws of the States of Nevada and New York. We express no opinion as to the laws of any other jurisdiction, of the United States of America, or to any state “Blue Sky” laws and regulations, and no opinion regarding the statutes, administrative decisions, rules and regulations or requirements of any county, municipality or subdivision or other local authority of any jurisdiction.

 

We do not undertake to advise you or anyone else of any changes in the opinions expressed herein resulting from changes in law, changes in fact or any other matters that hereafter might occur or be brought to our attention.

 

We hereby consent to the sole use of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons

 

3



 

whose consent is required by Section 7 of the Securities Act and the rules and regulations promulgated thereunder.

 

 

Very truly yours,

 

 

 

/s/ Ballard Spahr

 

4


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 of InVivo Therapeutics Holdings Corp. filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, of our report dated March 12, 2018, relating to the consolidated financial statements and the effectiveness of internal control over financial reporting of InVivo Therapeutics Holdings Corp. and Subsidiary, appearing in the Prospectus, which is a part of the Registration Statement (No. 333-224424) on Form S-1, as amended, declared effective on June 20, 2018

 

/s/ RSM US LLP

 

 

 

Boston, Massachusetts

 

June 20, 2018