SECURITIES AND EXCHANGE COMMISSION
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Item 1.01 Entry into a Material Definitive Agreement
On August 14, 2020, Ocugen, Inc. (the “Company”) entered into an At Market Issuance Sales Agreement (the “Agreement”) with Cantor Fitzgerald & Co. and Oppenheimer & Co. Inc. (collectively referred to as the “Agents” and each, individually, as an “Agent”), pursuant to which the Company may, from time to time, issue and sell shares of its common stock, par value $0.01 per share, having an aggregate gross sales price of up to $30.0 million (the “Shares”).
Under the terms of the Agreement, the Agents may sell the Shares at market prices by any method that is deemed to be an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended.
The offer and sales of the Shares made pursuant to the Agreement, if any, will be made under the Company’s effective “shelf” registration statement on Form S-3 (File No. 333-237456), the base prospectus contained therein dated May 5, 2020, and a prospectus supplement related to the Shares filed on August 14, 2020.
The Company is not obligated to, and it cannot provide any assurances that it will, make any sales of the Shares under the Agreement. The Company will pay each Agent a commission rate of 3.0% of the gross sales price per share of any Shares sold through such Agent as sales agent under the Agreement. The Company has also provided the Agents with customary indemnification and contribution rights. The Company has agreed to reimburse the Agents for their fees and expenses, including but not limited to fees and expenses of their counsel, in an amount not to exceed $15,000. The Agreement may be terminated by the Agents or the Company at any time upon ten days’ prior written notice to the other party, or by the Company upon five days’ prior written notice at any time when no placement notice for the sale of the Shares is in effect.
Effective upon the execution of the Agreement, the Company and Cantor Fitzgerald & Co. mutually agreed to terminate the existing Controlled Equity Sales Agreements dated May 8, 2020 and June 12, 2020.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of any offer to buy the Shares, nor shall there be an offer, solicitation or sale of the Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.
The foregoing description of the Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which was filed as Exhibit 10.1 hereto and incorporated herein by reference.
The legal opinion of Troutman Pepper Hamilton Sanders LLP, counsel to the Company, relating to the Shares is filed as Exhibit 5.1 hereto.
Item 9.01. Financial Statements and Exhibits
|5.1||Opinion of Troutman Pepper Hamilton Sanders LLP|
|10.1||At Market Issuance Sales Agreement, dated August 14, 2020, by and among Ocugen, Inc., Cantor Fitzgerald & Co. and Oppenheimer & Co. Inc.|
|23.1||Consent of Troutman Pepper Hamilton Sanders LLP (included in Exhibit 5.1)|
|104||The cover page from this Current Report on Form 8-K, formatted in Inline XBRL|
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: August 14, 2020
|By:||/s/ Shankar Musunuri|
|Name: Shankar Musunuri|
|Title: Chief Executive Officer and Chairman|