As filed with the Securities and Exchange
Commission on November 6, 2020
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
InVivo
Therapeutics Holdings Corp.
(Exact Name of Registrant as Specified in
Its Charter)
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Nevada
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36-4528166
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(State or Other Jurisdiction of Incorporation
or Organization)
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(I.R.S. Employer
Identification No.)
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One Kendall Square, Suite
Cambridge, MA
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02139
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(Address of Principal Executive Offices)
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(Zip Code)
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2015 Equity Incentive Plan
(Full Title of the Plan)
Richard Toselli, M.D.
President and Chief Executive Officer
InVivo Therapeutics Holdings Corp.
One Kendall Square, Suite B14402
Cambridge, MA 02139
(Name and Address of Agent For Service)
(617) 863-5500
(Telephone Number, Including Area Code,
of Agent For Service)
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, 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.
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Large accelerated filer ¨
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Accelerated filer ¨
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Non-accelerated filer x
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Smaller reporting company x
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Emerging growth company ¨
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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 pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to be
Registered(1)
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Proposed Maximum
Offering Price
Per Share
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee
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Common Stock, $0.00001 par value per share
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400,000 shares
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(2)
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$
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0.54
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(3)
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$
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216,000
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(3)
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$
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23.57
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(1)
In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration
statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
(2)
Consists of additional shares authorized under the 2015 Equity Incentive Plan as of August 4, 2020.
(3)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act, and
based upon the average of the high and low sale prices of the Common Stock as reported on the Nasdaq Capital Market on
November 4, 2020.
EXPLANATORY NOTE
This Registration Statement on Form S-8,
relating to the 2015 Equity Incentive Plan (the “2015 Plan”) of InVivo Therapeutics Holdings Corp. (the “Registrant”),
is being filed for the purpose of registering additional securities of the same class as other securities for which a Registration
Statement on Form S-8 relating to the 2015 Plan has previously been filed and is effective. Accordingly, this Registration
Statement incorporates by reference the contents of the Registration Statement on Form S-8, File No. 333-205471, filed
with the Securities and Exchange Commission on July 2, 2015 by the Registrant, relating to the 2015 Plan, the Registration Statement
on Form S-8, File No. 333-234630, filed with the Securities and Exchange Commission on November 12, 2019 by the Registrant,
and the Registration Statement on Form S-8, File No. 333-236542, filed with the Securities and Exchange Commission on
February 20, 2020 by the Registrant, relating to the 2015 Plan, except in each case for Item 8, Exhibits.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 8. Exhibits.
Exhibit
Number
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Description of Exhibit
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4.1
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Articles of Incorporation of InVivo Therapeutics Holdings Corp., as amended (incorporated by reference from Exhibit 3.1 to the Company’s Quarterly Report on Form 10 Q for the quarter ended June 30, 2016, as filed with the SEC on August 4, 2016)
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4.2
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Certificate of Amendment to Articles of Incorporation of InVivo Therapeutics Holdings Corp. (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on June 1, 2017)
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4.3
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Certificate of Change Pursuant to NRS 78.209 filed with Nevada Secretary of State, dated April 13, 2018 (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on April 16, 2018)
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4.4
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Certificate of Amendment to Articles of Incorporation of InVivo Therapeutics Holdings Corp. (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on June 1, 2018)
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4.5
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Certificate of Amendment to Articles of Incorporation of InVivo Therapeutics Holdings Corp. (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on January 24, 2020)
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4.6
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Certificate of Change Pursuant to NRS 78.209 filed with Nevada Secretary of State, dated February 10, 2020 (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on February 11, 2020)
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4.7
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Certificate of Amendment to Articles of Incorporation of InVivo Therapeutics Holdings Corp. (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K, as filed with the SEC on August 5, 2020)
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4.8
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Amended and Restated Bylaws of InVivo Therapeutics Holdings Corp, as amended (incorporated by reference from Exhibit 3.2 to the Company’s Current Report on Form 8-K, as filed with the SEC on June 5, 2020)
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5.1+
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Opinion of Ballard Spahr LLP, counsel to InVivo Therapeutics Holdings Corp.
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23.1
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Consent of Ballard Spahr LLP (included in Exhibit 5.1)
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+ Filed herewith
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cambridge, Commonwealth of Massachusetts, on November 6, 2020.
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INVIVO THERAPEUTICS HOLDINGS CORP.
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By:
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/s/ RICHARD TOSELLI M.D
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Richard Toselli
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President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors
of InVivo Therapeutics Holdings Corp., hereby severally constitute and appoint Richard Toselli and Richard Christopher, and each
of them singly, our true and lawful attorneys with full power to either of them, and to each of them singly, to sign for us and
in our names in the capacities indicated below the registration statement on Form S-8 filed herewith and any and all subsequent
amendments to said registration statement and generally to do all such things in our names and on our behalf in our capacities
as officers and directors to enable InVivo Therapeutics Holdings Corp. to comply with the provisions of the Securities Act of 1933,
as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/ RICHARD
TOSELLI M.D
Richard Toselli
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President, Chief Executive Officer and Director (Principal Executive Officer)
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November 6, 2020
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/S/ RICHARD
CHRISTOPHER
Richard Christopher
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Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)
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November 6, 2020
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/s/ C. ANN
MERRIFIELD
C. Ann Merrifield
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Chair of the Board
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November 6, 2020
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/s/ DANIEL
R. MARSHAK
Daniel R. Marshak
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Director
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November 6, 2020
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/s/ CHRISTINA
MORRISON
Christina Morrison
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Director
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November 6, 2020
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/s/ RICHARD J. ROBERTS
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Director
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November 6, 2020
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Richard J. Roberts
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/s/ ROBERT
J. ROSENTHAL
Robert J. Rosenthal
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Director
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November 6, 2020
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Exhibit 5.1
November
6, 2020
InVivo Therapeutics Holdings Corp.
One Kendall Square, Building 1400 East, Floor 4
Cambridge, MA 02139
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Re:
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Registration Statement on Form S-8
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Ladies and Gentlemen:
We have acted as counsel
to InVivo Therapeutics Holdings Corp., a Nevada corporation (the “Corporation”), in connection with the Corporation’s
Registration Statement on Form S-8 (the “Registration Statement”) filed with the United States Securities and
Exchange Commission (the “Commission”) on the date referenced above under the Securities Act of 1933, as amended
(the “Securities Act”), for the registration of an aggregate of 400,000 shares (the “Shares”)
of the Corporation’s common stock, $0.00001 par value per share (the “Common Stock”), issuable pursuant
to the InVivo Therapeutics Holdings Corp. 2015 Equity Incentive Plan, as amended (the “Plan”).
We have examined the
following documents: (a) the Articles of Incorporation of the Corporation filed with the Nevada Secretary of State on April 2,
2003, as amended; (b) the Amended and Restated Bylaws of the Corporation, dated as of March 29, 2016; (c) the resolutions adopted
by the Corporation’s board of directors authorizing (i) the filing of the Registration Statement with the Commission, and
(ii) the reservation and issuance of the Shares; (d) the Plan; and (e) the Registration Statement and the exhibits thereto. 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.
The opinions
expressed below are based on the assumptions that: (a) 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 Shares are issued, and that persons acquiring the Shares will do so strictly in accordance with the
terms of the Plan and will receive a prospectus containing all of the information required by Part I of the Registration
Statement before acquiring such Shares; (b) the Shares will continue to be duly and validly authorized on the dates that the
Shares are issued, and, upon the issuance of any of the Shares, the total number of shares of Common Stock of the Corporation
issued and outstanding, after giving effect to such issuance of such Shares, will not exceed the total number of shares of
Common Stock that the Corporation is then authorized to issue under the Articles, as may be further amended; (c) the Plan
will not violate or constitute a default or breach under (i) any agreement or instrument to which the Corporation or its
properties is subject, (ii) any law, rule or regulation to which the Corporation is subject, (iii) any judicial or regulatory
order or decree of any governmental authority, or (iv) any consent, approval, license, authorization or validation of or
filing, recording or registration of any governmental authority; and (d) the Shares will be issued and sold in compliance
with the Securities Act and the securities or “Blue Sky” laws of various states.
InVivo Therapeutics Holdings Corp.
November 6, 2020
Page 2
On the basis of the
foregoing, and subject to the qualifications, assumptions, and limitations set forth herein, we are of the opinion that the Shares
issuable in connection with the Plan have been duly authorized and, when issued in accordance with the terms and conditions of
the Plan, will be validly issued, fully paid and nonassessable.
This opinion is limited
to the present laws of the State of Nevada. We express no opinion as to the laws of any other jurisdiction 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 whose consent is required by Section 7 of the Securities Act and the rules and regulations promulgated
thereunder.
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Very truly yours,
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/s/ Ballard Spahr LLP
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