Common Stock Purchase Warrant



 Exhibit 10.2 

 

					
	Issue Date: December 21, 2011	 		  	Warrant No. REGS-1
			
		 		  	343,137 Shares of Common Stock (subject to adjustment as provided herein)

 THIS WARRANT MAY NOT BE
EXERCISED WITHIN THE UNITED STATES AND SECURITIES MAY NOT BE DELIVERED
WITHIN THE UNITED STATES UPON EXERCISE, OTHER THAN IN OFFERINGS DEEMED
TO MEET THE DEFINITION OF “OFFSHORE TRANSACTIONS” PURSUANT TO RULE 902(H)
OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
UNLESS REGISTERED UNDER SAID ACT OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE. 
 THIS WARRANT AND THE
SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR UNDER THE
LAWS OF ANY OTHER JURISDICTION, BUT HAVE BEEN ISSUED IN RELIANCE ON
AN EXEMPTION FROM REGISTRATION UNDER UNITED STATES SECURITIES LAWS CONTAINED IN
REGULATION S UNDER THE SECURITIES ACT. THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE OF THIS WARRANT MAY NOT BE TRANSFERRED, NOR WILL ANY
ASSIGNEE OR ENDORSEE HEREOF BE RECOGNIZED AS AN OWNER HEREOF BY THE
ISSUER FOR ANY PURPOSE, UNLESS EITHER THE TRANSFER IS MADE IN
ACCORDANCE WITH REGULATION S, UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES
ACT WITH RESPECT TO SUCH SHARES SHALL THEN BE IN EFFECT OR
UNLESS THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION WITH RESPECT TO
ANY PROPOSED TRANSFER OR DISPOSITION OF SUCH SHARES SHALL BE ESTABLISHED
TO THE SATISFACTION OF COUNSEL FOR THE ISSUER. THIS WARRANT MAY NOT
BE EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON UNLESS
REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE. 
 COMMON STOCK PURCHASE WARRANT 

INVIVO THERAPEUTICS HOLDINGS CORP., a corporation organized under the laws of the State of Nevada (the “Company”), hereby
certifies that, for value received, INGENIERIA E INVERSIONES LTDA, or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company from and after the issue date of this Warrant and
at any time or from time to time before 5:00 p.m., Boston time, on the fifth (5th) anniversary after such date (the “Expiration Date”), up to 343,137 fully paid and nonassessable shares of Common Stock (as hereinafter defined), $.00001 par value per share, of the
Company, at the Exercise Price (as defined below). The number and character of such shares of Common Stock and the Exercise Price are subject to adjustment as provided herein. 







 As used herein the following terms, unless the context otherwise requires, have the following respective
meanings: 
 (a) The term “Company” shall include Invivo Therapeutics Holdings Corp. and any corporation which shall succeed or assume
its obligations hereunder. 
 (b) The term “Common Stock” includes (a) the Company’s Common Stock, par value $.00001 per
share, and (b) any other securities into which or for which any of the securities described in (a) may be converted or exchanged pursuant to a plan of recapitalization, reorganization, merger, sale of assets or otherwise. 

(c) The term “Other Securities” refers to any stock (other than Common Stock) and other securities of the Company or any other person
(corporate or otherwise) which the holder of the Warrant at any time shall be entitled to receive, or shall have received, on the exercise of the Warrant, in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other Securities pursuant to Section 4 or otherwise. 
 (d) The term
“Exercise Price” shall be $3.06 per share. 
 1. Exercise. 

(a) This Warrant may be exercised by the Registered Holder, in whole or in part, by surrendering this Warrant, with the purchase form
appended hereto as Exhibit I duly executed by the Registered Holder or by the Registered Holder’s duly authorized attorney, at the principal office of the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of the Purchase Price payable in respect of the number of Warrant Shares purchased upon such exercise. This Warrant may not be exercised by or on behalf of any U.S. Person (as
defined by Regulation S promulgated under the Securities Act of 1933, as amended) unless registered under the securities act or an exemption from such registration is available. 

(b) Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the day on which
this Warrant shall have been surrendered to the Company as provided in subsection 1(a) above (the “Exercise Date”). At such time, the person or persons in whose name or names any certificates for Warrant Shares shall be issuable upon such
exercise as provided in subsection 1(d) below shall be deemed to have become the holder or holders of record of the Warrant Shares represented by such certificates. 

  
 2 








 (c) As soon as practicable after the exercise of this Warrant in full or in part, and in any
event within 10 days thereafter, the Company, at its expense, will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Holder (upon payment by such Holder of any applicable transfer taxes) may direct: 

(i) a certificate or certificates for the number of full Warrant Shares to which the Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which the Registered Holder would otherwise be entitled, cash in an amount determined pursuant to Section 3 hereof; and 
 (ii) in case such exercise is in part only, a new warrant or warrants (dated the date hereof) of like tenor, calling in the aggregate on the face or faces thereof for the number of Warrant Shares equal
(without giving effect to any adjustment therein) to the number of such shares called for on the face of this Warrant minus the sum of (a) the number of such shares purchased by the Registered Holder upon such exercise. 

2. Adjustments. 
 (a) Adjustment for Stock Splits and Combinations. If the Company shall at any time or from time to time after the date on which this Warrant was first issued (the “Original Issue Date”)
effect a subdivision of the outstanding Common Stock, the Purchase Price then in effect immediately before that subdivision shall be proportionately decreased. If the Company shall at any time or from time to time after the Original Issue Date
combine the outstanding shares of Common Stock, then the Purchase Price then in effect immediately before the combination shall be proportionately increased. Any adjustment under this paragraph shall become effective at the close of business on the
date the subdivision or combination becomes effective. 
 (b) Adjustment for Certain Dividends and Distributions. In the
event the Company at any time, or from time to time after the Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in additional
shares of Common Stock, then and in each such event the Purchase Price then in effect immediately before such event shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of
business on such record date, by multiplying the Purchase Price then in effect by a fraction: 
 (1) the
numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and 

(2) the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior
to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution; 
 provided, however, if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Purchase Price shall be
recomputed accordingly as of the close of business on such record date and thereafter the Purchase Price shall be adjusted pursuant to this paragraph as of the time of actual payment of such dividends or distributions. 

  
 3 








 (c) Adjustment in Number of Warrant Shares. When any adjustment is required to be
made in the Purchase Price pursuant to subsections 2(a) or 2(b), the number of Warrant Shares purchasable upon the exercise of this Warrant shall be changed to the number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment, multiplied by the Purchase Price in effect immediately prior to such adjustment, by (ii) the Purchase Price in effect immediately after such adjustment.

 (d) Adjustments for Other Dividends and Distributions. In the event the Company at any time or from time to time after
the Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Company (other than shares of Common Stock) or in
cash or other property (other than cash out of earnings or earned surplus, determined in accordance with generally accepted accounting principles), then and in each such event provision shall be made so that the Registered Holder shall receive upon
exercise hereof, in addition to the number of shares of Common Stock issuable hereunder, the kind and amount of securities of the Company and/or cash and other property which the Registered Holder would have been entitled to receive had this Warrant
been exercised into Common Stock on the date of such event and had the Registered Holder thereafter, during the period from the date of such event to and including the Exercise Date, retained any such securities receivable, giving application to all
adjustments called for during such period under this Section 2 with respect to the rights of the Registered Holder. 
 (e)
Adjustment for Mergers or Reorganizations, etc. If there shall occur any reorganization, recapitalization, consolidation or merger involving the Company in which the Common Stock is converted into or exchanged for securities, cash or other
property (other than a transaction covered by subsections 2(a), 2(b) or 2(d)), then, following any such reorganization, recapitalization, consolidation or merger, the Registered Holder shall receive upon exercise hereof the kind and amount of
securities, cash or other property which the Registered Holder would have been entitled to receive if, immediately prior to such reorganization, recapitalization, consolidation or merger, the Registered Holder had held the number of shares of Common
Stock subject to this Warrant. In any such case, appropriate adjustment (as determined in good faith by the Board of Directors of the Company) shall be made in the application of the provisions set forth herein with respect to the rights and
interests thereafter of the Registered Holder, to the end that the provisions set forth in this Section 2 (including provisions with respect to changes in and other adjustments of the Purchase Price) shall thereafter be applicable, as nearly as
reasonably may be, in relation to any securities, cash or other property thereafter deliverable upon the exercise of this Warrant. For the avoidance of doubt, this Warrant shall terminate upon any such reorganization, recapitalization, consolidation
or merger. 
 (f) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Purchase
Price pursuant to this Section 2, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to the Registered Holder a certificate setting forth such


  
 4 








 
adjustment or readjustment (including the kind and amount of securities, cash or other property for which this Warrant shall be exercisable and the Purchase Price) and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon the written request at any time of the Registered Holder, furnish or cause to be furnished to the Registered Holder a certificate setting forth (i) the Purchase Price
then in effect and (ii) the number of shares of Common Stock and the amount, if any, of other securities, cash or property which then would be received upon the exercise of this Warrant. 

3. Fractional Shares. The Company shall not be required upon the exercise of this Warrant to issue any fractional
shares, but shall make an adjustment therefor in cash on the basis of the Fair Market Value per share of Common Stock, as determined pursuant to subsection 1(b) above. 

4. Requirements for Transfer. 
 (a) This Warrant and the Warrant Shares shall not be sold or transferred unless either (i) they first shall have been registered under the Securities Act of 1933, as amended (the “Act”), or
(ii) the Company first shall have been furnished with an opinion of legal counsel, reasonably satisfactory to the Company, to the effect that such sale or transfer is exempt from the registration requirements of the Act and otherwise in
accordance with Regulation S promulgated under the Securities Act of 1933, as amended. 
 (b) Each certificate representing
Warrant Shares shall bear a legend substantially in the following form: 
 THE SECURITIES
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR UNDER THE LAWS OF ANY OTHER
JURISDICTION, BUT HAVE BEEN ISSUED IN RELIANCE ON AN EXEMPTION FROM
REGISTRATION UNDER UNITED STATES SECURITIES LAWS CONTAINED IN REGULATION S UNDER THE
SECURITIES ACT. THE SECURITIES EVIDENCED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, NOR WILL ANY ASSIGNEE OR ENDORSEE HEREOF BE RECOGNIZED AS
AN OWNER HEREOF BY THE ISSUER FOR ANY PURPOSE, UNLESS EITHER THE
TRANSFER IS MADE IN ACCORDANCE WITH REGULATION S, UNLESS A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT WITH RESPECT TO SUCH SHARES SHALL THEN BE
IN EFFECT OR UNLESS THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION
WITH RESPECT TO ANY PROPOSED TRANSFER OR DISPOSITION OF SUCH SHARES
SHALL BE ESTABLISHED TO THE SATISFACTION OF COUNSEL FOR THE ISSUER.
HEDGING TRANSACTIONS INVOLVING THE SHARES MAY NOT BE CONDUCTED UNLESS CONDUCTED
IN COMPLIANCE WITH THE SECURITIES ACT. 
 5. No Impairment. The Company will not, by amendment of its charter or through reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, 

  
 5 








 
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the
holder of this Warrant against impairment. 
 6. Notices of Record Date, etc. In the event: 

(a) the Company shall take a record of the holders of its Common Stock (or other stock or securities at the time deliverable upon the
exercise of this Warrant) for the purpose of entitling or enabling them to receive any dividend or other distribution, or to receive any right to subscribe for or purchase any shares of stock of any class or any other securities, or to receive any
other right; or 
 (b) of any capital reorganization of the Company, any reclassification of the Common Stock of the Company,
any consolidation or merger of the Company with or into another corporation (other than a consolidation or merger in which the Company is the surviving entity and its Common Stock is not converted into or exchanged for any other securities or
property), or any transfer of all or substantially all of the assets of the Company; or 
 (c) of the voluntary or involuntary
dissolution, liquidation or winding-up of the Company, 
 then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder a notice specifying, as the case may be, (i) the record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other stock or securities at
the time deliverable upon the exercise of this Warrant) shall be entitled to exchange their shares of Common Stock (or such other stock or securities) for securities or other property deliverable upon such reorganization, reclassification,
consolidation, merger, transfer, dissolution, liquidation or winding-up. Such notice shall be mailed at least ten days prior to the record date or effective date for the event specified in such notice. 

7. Reservation of Stock. The Company will at all times reserve and keep available, solely for issuance and delivery
upon the exercise of this Warrant, such number of Warrant Shares and other securities, cash and/or property, as from time to time shall be issuable upon the exercise of this Warrant. 

8. Exchange of Warrants. Upon the surrender by the Registered Holder, properly endorsed, to the Company at the
principal office of the Company, the Company will, subject to the provisions of Section 4 hereof, issue and deliver to or upon the order of such Holder, at the Company’s expense, a new Warrant or Warrants of like tenor, in the name of the
Registered Holder or as the Registered Holder (upon payment by the Registered Holder of any 

  
 6 








 
applicable transfer taxes) may direct, calling in the aggregate on the face or faces thereof for the number of shares of Common Stock (or other securities, cash and/or property) then issuable
upon exercise of this Warrant. 
 9. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and (in the case of loss, theft or destruction) upon delivery of an indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and cancellation of this Warrant, the Company will issue, in lieu thereof, a new Warrant of like tenor. 

10. Transfers, etc. 
 (a) The Company will maintain a register containing the name and address of the Registered Holder of this Warrant. The Registered Holder may change its or his address as shown on the warrant register by
written notice to the Company requesting such change. 
 (b) Subject to the provisions of Section 4 hereof, this Warrant
and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant with a properly executed assignment (in the form of Exhibit II hereto) at the principal office of the Company. 

(c) Until any transfer of this Warrant is made in the warrant register, the Company may treat the Registered Holder as the absolute owner
hereof for all purposes; provided, however, that if and when this Warrant is properly assigned in blank, the Company may (but shall not be obligated to) treat the bearer hereof as the absolute owner hereof for all purposes,
notwithstanding any notice to the contrary. 
 11. Mailing of Notices, etc. All notices and other
communications from the Company to the Registered Holder shall be mailed by first-class certified or registered mail, postage prepaid, to the address last furnished to the Company in writing by the Registered Holder. All notices and other
communications from the Registered Holder or in connection herewith to the Company shall be mailed by first-class certified or registered mail, postage prepaid, to the Company at its principal office set forth below. If the Company should at any
time change the location of its principal office to a place other than as set forth below, it shall give prompt written notice to the Registered Holder and thereafter all references in this Warrant to the location of its principal office at the
particular time shall be as so specified in such notice. 
 12. No Rights as Stockholder. Until the
exercise of this Warrant, the Registered Holder shall not have or exercise any rights by virtue hereof as a stockholder of the Company. Notwithstanding the foregoing, in the event (i) the Company effects a split of the Common Stock by means of
a stock dividend and the Purchase Price of and the number of Warrant Shares are adjusted as of the 

  
 7 








 
date of the distribution of the dividend (rather than as of the record date for such dividend), and (ii) the Registered Holder exercises this Warrant between the record date and the
distribution date for such stock dividend, the Registered Holder shall be entitled to receive, on the distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for such stock dividend. 
 13.
Change or Waiver. Any term of this Warrant may be changed or waived only by an instrument in writing signed by the party against which enforcement of the change or waiver is sought. 

14. Section Headings. The section headings in this Warrant are for the convenience of the parties and in no way
alter, modify, amend, limit or restrict the contractual obligations of the parties. 
 15. Governing Law.
This Warrant will be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts (without reference to the conflicts of law provisions thereof). 

EXECUTED as of the Date of Issuance indicated above. 

 

			
	INVIVO THERAPEUTICS HOLDINGS CORP.
		
	By:	 	 /s/ Frank Reynolds

		
	Title:	 	 Chief Executive Officer




 

	
	ATTEST:
	
	  



  
 8 








 EXHIBIT I 
 PURCHASE FORM 
  

			
	To:                    	  	Dated:                    

 The undersigned, pursuant to the provisions set forth in the attached Warrant
(No.             ), hereby irrevocably elects to purchase (check applicable box): 
  

	 	•	 	              shares of the Common Stock covered by such Warrant



 The undersigned herewith makes payment of the full purchase price for such shares at the price per share
provided for in such Warrant, which is $            . Such payment takes the form of lawful money of the United States. 

 

			
	Signature:	 	  

		
	Address:	 	  

		
		 	  




  
 9 








 EXHIBIT II 
 ASSIGNMENT FORM 
 FOR VALUE RECEIVED,
                                        
hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant (No.             ) with respect to the number of shares of Common Stock covered
thereby set forth below, unto: 
  

					
	 Name of Assignee
	  	 Address
	  	No. of Shares
		  		  	
		  		  	

  

									
	Dated:	 	  
	 		 	Signature:	 	  

				
	Signature Guaranteed:	 		 		 	
					
	By:	 	  
	 		 		 	

 The signature should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature guarantee medallion program) pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934. 

  
 10