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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

September 9, 2022

Date of Report (Date of earliest event reported)

 

INVIVO THERAPEUTICS HOLDINGS CORP.

(Exact Name of Registrant as Specified in Charter)

 

Nevada 001-37350 36-4528166
(State or Other (Commission File Number) (IRS Employer
Jurisdiction of Incorporation)   Identification No.)

 

One Kendall Square, Suite B14402

Cambridge, Massachusetts 02139

(Address of Principal Executive Offices) (Zip Code)

 

(617) 863-5500

(Registrant’s telephone number, including area code)

 

N/A

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading symbol(s)   Name of each exchange on which
registered
Common Stock, $0.00001 par value per share   NVIV   The Nasdaq Capital Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

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 13(a) of the Exchange Act. ¨

 

 

 

 

 

Item 3.03 Material Modification to Rights of Security Holders.

 

The information set forth in Item 5.03 of this Current Report on Form 8-K in connection with the termination of the Voting Plan and the Voting Rights is incorporated by reference into this Item 3.03.

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

On September 9, 2022, InVivo Therapeutics Holdings Corp. (the “Company”) held its 2022 Annual Meeting of Stockholders (the “Annual Meeting”). At the Annual Meeting, the Company’s stockholders approved an amendment to the Company’s 2015 Equity Incentive Plan (as so amended, the “Incentive Plan”) to (i) increase the total number of shares reserved and available for delivery under the Incentive Plan by 800,000 shares of common stock and set the number of shares of common stock reserved and available for delivery under the Incentive Plan at 925,465 shares, (ii) set the number of shares of common stock that may be granted as incentive stock options under the Incentive Plan at 925,465 shares of common stock and (iii) set the per participant limits under the Incentive Plan at 925,465 shares of common stock (collectively, the “Incentive Plan Amendment”). A copy of the Incentive Plan is filed as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

At the Annual Meeting, the Company’s stockholders approved amendments to the Company’s Articles of Incorporation to (i) increase the number of shares of authorized common stock (the “Common Stock Amendment”) and (ii) authorize 1,000,000 shares of “blank-check” preferred stock (the “Preferred Stock Amendment” and, together with the Common Stock Amendment, the “Articles Amendments”). Following stockholder approval of the Articles Amendments, Certificates of Amendment to the Company’s Articles of Incorporation were filed with the Secretary of State of Nevada on September 12, 2022, at which time the Articles Amendments became effective.

 

This descriptions of the Articles Amendments are qualified in their entirety by reference to the complete text of the Certificate of Amendment for each of the Common Stock Amendment and the Preferred Stock Amendment, copies of which are filed as Exhibit 3.1 and Exhibit 3.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

 

The Voting Plan and the Voting Rights (as such terms are defined below) automatically terminated upon the completion of the vote of the Company’s stockholders at the Annual Meeting as to the approval or rejection of the Articles Amendments.

 

Item 5.07. Submission of Matters to a Vote of Security Holders.

 

Set forth below is a summary of the matters voted on at the Annual Meeting.

 

Election of Directors

 

The Company’s stockholders elected Daniel Marshak and Christina Morrison as Class II directors, each to serve for a three-year term expiring at the Company’s 2025 Annual Meeting of Stockholders. The results of the stockholders’ vote with respect to the election of such Class II directors were as follows:

 

   For   Withheld   Broker Non-Votes 
Daniel Marshak  134,508   22,367   324,242 
Christina Morrison  138,226   18,649   324,242 

 

 

 

 

Approval of Common Stock Amendment

 

As previously disclosed in the Company’s Definitive Proxy Statement, as filed with the Securities and Exchange Commission (the “SEC”) on August 18, 2022, pursuant to the Voting Rights Plan, dated as of May 26, 2022 (the “Voting Plan”), the Board authorized and granted super voting rights (the “Voting Rights”) to certain shares of the Company’s common stock held by certain eligible stockholders, allowing such eligible stockholders to exercise additional voting rights with respect to the Articles Amendments (as defined in the Proxy Statement), subject to applicable conditions. The Company’s stockholders approved the Common Stock Amendment, after applying a Voting Factor (as defined in the Voting Plan) of 3.9 million under the Voting Plan.

 

The results of the stockholders’ vote with respect to the Common Stock Amendment, both excluding the Voting Rights and after applying a Voting Factor of 3.9 million under the Voting Plan, were as follows:

 

   Excluding Voting Rights   After Applying Voting Factor 
For:  360,317   4,620,102,023 
Against:  112,684   1,444,870,978 
Abstain:  8,116   8,116 

 

Approval of Preferred Stock Amendment

 

The Company’s stockholders approved the Preferred Stock Amendment, after applying a Voting Factor of 3.9 million under the Voting Plan. The results of the stockholders’ vote with respect to the Preferred Stock Amendment, both excluding the Voting Rights and after applying a Voting Factor of 3.9 million under the Voting Plan, were as follows:

 

   Excluding Voting Rights   After Applying Voting Factor 
For:  77,687   3,045,833,976 
Against:  76,998   3,018,820,709 
Abstain:  2,190   2,190 
Broker Non-Votes:  324,242   324,242 

 

Approval of Amendment to 2015 Equity Incentive Plan

 

The Company’s stockholders approved the Incentive Plan Amendment. The results of the stockholders’ vote with respect to the Incentive Plan Amendment were as follows:

 

For:  81,576
Against:  70,570
Abstain:  4,729
Broker Non-Votes:  324,242

 

Advisory Vote to Approve Named Executive Officer Compensation

 

The Company’s stockholders approved, on an advisory basis, the compensation paid by the Company to its named executive officers. The results of the stockholders’ vote with respect to such advisory vote were as follows:

 

For:  124,203
Against:  29,206
Abstain:  3,466
Broker Non-Votes:  324,242

 

Ratification of the Appointment of RSM US, LLP as the Company’s Independent Registered Public Accounting Firm for the Fiscal Year Ending December 31, 2022

 

The Company’s stockholders ratified the appointment of RSM US, LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2022. The results of the stockholders’ vote with respect to such ratification were as follows:

 

For:  446,455
Against:  28,449
Abstain:  6,213

 

 

 

 

Item 9.01. Financial Statements and Exhibits.

 

(d)           Exhibits

 

Exhibit No.   Description
3.1   Certificate of Amendment to the Articles of Incorporation filed with the Nevada Secretary of State, dated September 12, 2022.
3.2   Certificate of Amendment to the Articles of Incorporation filed with the Nevada Secretary of State, dated September 12, 2022.
99.1   InVivo Therapeutics Holdings Corp. 2015 Equity Incentive Plan (incorporated by reference to Appendix C to the Company’s Definitive Proxy Statement, as filed with the SEC on August 18, 2022).
104   Cover Page Interactive Data File (formatted as Inline XBRL)

 

 

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  INVIVO THERAPEUTICS HOLDINGS CORP.
   
Date: September 13, 2022 By:  /s/ Richard Toselli
  Name: Richard Toselli
  Title: President and Chief Executive Officer

 

 

 

Exhibit 3.1

 

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Filed in the Office of Secretary of State State Of Nevada Business Number C7829-2003 Filing Number 20222607991 Filed On 9/12/2022 10:44:00 AM Number of Pages 3 BARBARA K. CEGAVSKE Secretary of State 202 North Carson Street Carson City, Nevada 89701-4201 (775) 684-5708 Website: www.nvsos.gov Profit Corporation: Certificate of Amendment (PuRsuANTro NRs 78 . 380 & 78 . 385/78 . 390) Certificate to Accompany Restated Articles or Amended and Restated Articles (PuRsuANTTo NRs 78 . 403) Officer's Statement (PuRsuANT To NRs 80.030) TYPE OR PRINT - USE DARK INK ONLY - DO NOT HIGHLIGHT 1. Entity information: Name of entity as on file with the Nevada Secretary of State: j 1nVivo Therapeutics Holdings Corp. 2. Restated or Amended and Restated Articles: (Select one) (If amending and restating only, complete section 1,2 3, 5 and 6) 3. Type of Amendment Filing Being Completed: (Select only one box) (If amending , complete section 1 , 3, 5 and 6 . ) Entity or Nevada Business Identification Number (NVID): l'- C _ 7 _ 8 _ 2 _ 9 _ - _ 20 _ 0 _ 3 ______ ___, CJ Certificate to Accompany Restated Articles or Amended and Restated Articles 0 Restated Articles - No amendments; articles are restated only and are signed by an officer of the corporation who has been authorized to execute the certificate by resolution of the board of directors adopted on: ·---:J The certificate correctly sets forth the text of the a icfes or cert,ncate as amended to the date of the certificate . 1 = ] Amended and Restated Articles * Restated or Amended and Restated Articles must be included with this filing type. D Certificate of Amendment to Articles of Incorporation (Pursuant to NRS 78.380 - Before Issuance of Stock) The undersigned declare that they constitute at least two-thirds of the following : {Check only one box) n incorporators I ] board of directors The undersigned affirmatively declare that to the date of this certificate , no stock of the corporation has been issued ~ J Certificate of Amendment to Articles of Incorporation (Pursuant to NRS 78.385 and 78.390 - After Issuance of Stock) [.I The vote by which the stockholders holding shares in the corporation entitling them to exercise at least a majority of the voting power, or such greater proportion of the voting power as may be required in the case of a vote by classes or series , or as may be required by the provisions ot the articles of incorporationw have voted in favor of the amendment is: Name in home state, if using a modified name in Nevada : Jurisdiction of formation: l ____ -------··· Changes to takes the following effect: [] The entity name has been amended . [:; The purpose of the entity has been amended. r-7 The authorized shares have been amended. □ Other: (spe~ify change~) __ _ [] Dissolution f] Merger D Conversion * Officer's Statement musf6 e submitte Wlfn either a cert1fiea copy of or a cert ificate evidencing the tiling of any document , amendatory or otherwise , relating to the orig i nal articles in the place of the corporations creation. This form must be accompanied by appropriate fees. Page 1 of 2 Revised : 1 / 1/ 2 019

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BARBARA K. CEGAVSKE Secretary of State 202 North Carson Street Carson City, Nevada 89701-4201 (775) 684-5708 Website: www.nvsos.gov Profit Corporation: Certificate of Amendment (PuRsuANno NRs 78.380 & 78.385/78.390) Certificate to Accompany Restated Articles or Amended and Restated Articles cPuRsuANno NRs 1s.4o3> Officer's Statement {PuRsuANT To NRs ao.o3o) 4 . Effective Date and Time: {Optional) Date: Time: (must not be later than 90 days after the certificate is filed) 5 . Information Being Changed: (Domestic Cl:lrporations only) ( • Signature: Required) Changes to takes the following effect: -·-- The entity name has been amended. The registered agent has been changed. (attach Certificate of Acceptance from new registered agent) The purpose of the entity has been amended. ''-1, The authorized shares have been amended. The directors, managers or general partners have been amended. - IRS tax language has been added. Articles have been added. Articles have been deleted. Other. The articles have been amended as follows: (provide article numbers, if available) Article FOURTH shall be amended (see attached). (attach additional page(s) if necessary) Title ignature of Officer or Authorized Signer Title *If any proposed amendment would alter or change any preference or any relative or other right given to any class or series of outstanding shares, then the amendment must be approved by the vote, in addition to the affirmative vote otherwise required. of the holders of shares representing a majority of the voting power of each class or series affected by the amendment regardless to limitations or restrictions on the voting power thereof. Please include any required or optional information in space below: (attach additional page(s) if necessary) This form must be accompanied by appropriate fees. Page 2 of 2 Revised; 1/1/2019

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Exhibit 3.2

 

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Filed in the Office of Secretary of State State Of Nevada Business Number C7829-2003 Filing Number 20222608445 Filed On 9/12/2022 12:20:00 PM Number of Pages 3 BARBARA K. CEGAVSKE Secretary of State 202 North Carson Street Carson City, Nevada 89701-4201 (775) 684-5708 Website: www.nvsos.gov Profit Corporation: ~(~v);_, t-------------1 Certificate of Amendment <PuRsuANT To NRs 1s.300 & 10.385/78.390> Certificate to Accompany Restated Articles or Amended and Restated Articles (PuRsuANT ro NRs 10.403) Officer's Statement (PuRsuANno NRs 00.030> TYPE OR PRINT - USE DARK INK ONLY - DO NOT HIGHLIGHT 1. Entity information: Name of entity as on file with the Nevada Secretary of State: 2. Restated or Amended and Restated Articles: (Select one) (If amending and restating only. complete section 1,2 3, 5 and 6) 3. Type of Amendment Filing Being Completed: (Select only one box) (If amending, complete section 1, 3, 5 and 6.) I tnVivo Therapeutics Holdings Corp. Entity or Nevada Business Identification Number (NVID): ..... 1 ·c_· 7 _8 _2 _9 _ - _ 2_ 0 _ 0_ 3 ____ ·_ ··_·_··_-_,-. ; Certificate to Accompany Restated Articles or Amended and Restated Articles I ' Restated Articles - No amendments; articles are restated only and are signed by an officer of the corporation who has been authorized to execute the certificate by resolution of the board of directors adopted on: ; · · ·· - - ······--·-j The certificate correctly sets forth the text of the articles or certificate as amended to the date of the certificate. ... i Amended and Restated Articles • Restated or Amended and Restated Articles must be included with this filing type. Certificate of Amendment to Articles of Incorporation (Pursuant to NRS 78.380 - Before Issuance of Stock) The undersigned declare that they constitute at least two-thirds of the following: (Check only one box) !_ } incorporators ! board of directors The undersigned affirmatively declare that to the date of this certificate, no stock of the corporation has been issued XJ Certificate of Amendment to Articles of Incorporation {Pursuant to NRS 78.385 and 78.390 - After Issuance of Stock) The vote by which the stockholders holding shares in the corporation entitling them to exercise at least a majority of the voting power, or such greater proportion of the voting power as may be required in the case of a vote by classes or series, or as may be required by the provisions ot the articles ot incorporation· have voted in tavor of the amendment Is: Majority of Name In home state, if using a modified name in Nevada: ·-·--·----~--- ----·•~·----~~--.. ~~--------- Jurisdiction of formation: ,· ! - -------- --------- - ----· - ~ Changes to takes the following effect: _.] The entity name has been amended. · ·i The purpose of the entity has been amended. ! The authorized shares have been amended. . __ J ··•··· Other: (specify changes) i-Dissolution l __ Merger 1 _~; Conversion I • Officer's Statement must be submitted with either a certified copy of or a certificate evidencing the filing of any document, amendatory or otherwise, relating to the original articles in the place of the corporations creation. This form must be accompanied by appropriate fees. Page 1 of2 Revised: 111/2019

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BARBARA K. CEGAVSKE Secretary of State 202 North Carson Street Carson City, Nevada 89701-4201 (775) 684-5708 Website: www.nvsos.gov Profit Corporation: Certificate of Amendment (PuRsuANTro NRs 1s.3so & 1s.3ssns.3so) Certificate to Accompany Restated Articles or Amended and Restated Articles (PuRsuANT To NRs 1s.4o3J 4 . Effective Date and Time: (Optional) 5. Information Being Changed: (Domestic o,rporations only} ( . Signature: Required) Officer's Statement (PuRsuANT rn NRs ao.o3o) Date: Time: (must not be later than 90 days after the certificate is filed) Changes to takes the following effect: The entity name has been amended. The registered agent has been changed. (attach Certificate of Acceptance from new registered agent) The purpose of the entity has been amended. ~ The authorized shares have been amended. The directors, managers or general partners have been amended. IRS tax language has been added. Articles have been added. :. ::: Articles have been deleted. ·-- 1 Other. The articles have been amended as follows: (provide article numbers, if available} Article FOURTH shall be amended {see attached). (attach additional page{s) if necessary) X t . t ~ ,1CM/4ls_ . 1 SignatureofOfficJ::'or Authorized Signer Title ~~ ·- C f:ti ·- . -~~- -- -:~ _---- ~:~ -~~ --~--~:~~~~, ignature of Officer or Authorized Signer Title *If any proposed amendment would alter or change any preference or any relative or other right given to any class or series of outstanding shares, then the amendment must be approved by the vote, in addition to the affirmative vote otherwise required, of the holders of shares representing a majority of the voting power of each class or series affected by the amendment regardless to limitations or restrictions on the voting power thereof. Please include any required or optional information in space below: (attach additional page(s) if necessary) This form must be accompanied by appropriate fees. Page 2 of 2 Revised: 1/1/2019

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