Item
1.01
|
Entry
into a Material Definitive Agreement.
|
Underwriting
Agreement
On
March 28, 2018, InspireMD, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”)
with H.C. Wainwright & Co., LLC (the “Underwriter”), relating to an underwritten public offering of 2,857,143
shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”).
All of the Shares are being sold by the Company. The offering price to the public of the Shares is $1.75 per share, and the Underwriter
has agreed to purchase the Shares from the Company pursuant to the Underwriting Agreement at a price of $1.6275 per share. After
underwriting discounts and commissions, the Company expects to receive net proceeds from the offering of $4,437,000.
Pursuant
to the Underwriting Agreement, the Company, in connection with the offering, agreed to issue to the Underwriter warrants to purchase
up to 171,429 shares of Common Stock, or 6% of the number of shares of Common Stock sold in the offering (the “Underwriter
Warrants” and together with the shares issuable upon exercise of the Underwriter Warrants, the “Underwriter Securities”).
The Underwriter Warrants will be exercisable at any time and from time to time, in whole or in part, following the date of issuance
and ending five years from the date of the execution of the Underwriting Agreement, at a price per share equal to $2.1875 (125%
of the offering price to the public per Share).
The
Shares will be issued pursuant to the Company’s shelf registration statement on Form S-3 (Registration Statement No. 333-223130)
previously filed with the Securities and Exchange Commission (the “Commission”) and declared effective by the Commission
on February 23, 2018. A preliminary prospectus supplement and prospectus supplement and the accompanying prospectus relating to
the offering have been filed with the Commission. The offering is expected to close on or about April 2, 2018, subject to satisfaction
of customary closing conditions.
A
copy of the legal opinion and consent of Haynes and Boone, LLP relating to the validity of the issuance and sale of the Shares
is attached as Exhibit 5.1 hereto.
The
Underwriting Agreement contains customary representations and warranties, agreements and obligations, conditions to closing and
termination provisions. The Underwriting Agreement provides for indemnification by the Underwriter of the Company, its directors
and certain of its executive officers, and by the Company of the Underwriter, for certain liabilities, including liabilities arising
under the Securities Act of 1933, as amended, and affords certain rights of contribution with respect thereto. The foregoing description
of the Underwriting Agreement is qualified in its entirety by reference to the Underwriting Agreement, which is attached as Exhibit
1.1 hereto and incorporated by reference herein.
Waiver
Agreement
As
previously reported, on November 28, 2017, the Company entered into a Securities Purchase Agreement (the “Series D Purchase
Agreement”) with an institutional accredited investor (the “Series D Investor”) pursuant to which the Company
issued and sold 750 shares of its Series D Convertible Preferred Stock (the “Series D Preferred Stock”), which was
amended on February 21, 2018, and on February 26, 2018. Pursuant to the Series D Purchase Agreement and the certificate of designation
for the Series D Preferred Stock, the purchasers of Series D Preferred Stock have the option, subject to certain limitations,
to exchange their Series D Preferred Stock into the securities issued in a subsequent offering (the “Series D Exchange Right”).
On
March 28, 2018, the Company and the Series D Investor entered into a waiver agreement (the “Waiver Agreement”) which
provides that (i) the Series D Exchange Right would not be applicable to a subsequent financing consisting solely of shares of
common stock publicly registered on Form S-3 for gross proceeds to the Company of up to $5,000,000, to be consummated by not later
than April 3, 2018 (the “Offering”), such that no share of Series D Preferred Stock will be exchanged for securities
being offered in the Offering, (ii) the Company’s obligation to use 15% of the proceeds from any subsequent offering of
the Company’s securities that is not an offering of the Company’s common stock or common stock equivalents for gross
proceeds of at least $8 million to redeem the outstanding shares of the Series C Convertible Preferred Stock (the “Series
C Preferred Stock”) held by the Series D Investor would not be applicable to the Offering, (iii) the Company shall reduce
the conversion price of the Series D Preferred Stock to the lowest effective price per share at which shares of the Company’s
common stock sold in the Offering, and (iv) the Company shall use $300,000 of the proceeds from the Offering to redeem outstanding
shares of Series C Preferred Stock held by the Series D Investor at a per share purchase price equal to the stated value of the
Series C Preferred Stock.
The
foregoing description of the Waiver Agreement does not purport to be complete and is qualified in its entirety by reference to
the full text of the Waiver Agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.