Item 1.01
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Entry Into a Material Definitive Agreement.
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Merger Agreement Amendment
On June 13, 2019,
Histogenics Corporation (the Company or Histogenics), Restore Merger Sub, Inc. (Merger Sub) and Ocugen, Inc. (Ocugen) entered into Consent and Amendment No. 1 to that certain Agreement and Plan of
Merger and Reorganization (the Merger Agreement) made and entered as of April 5, 2019, by and among the Company, Merger Sub and Ocugen (the Amendment), whereby the Merger Agreement has been amended, among other items, as
follows: (i) the definition of Exchange Ratio was amended and restated in its entirety to be 28.7650, (ii) covenants were added restricting the issuance of any securities by both Histogenics and Ocugen until the Effective Time (as
defined in the Merger Agreement) of the merger contemplated by the Merger Agreement (the Merger), (iii) the entering into of that certain Asset Purchase Agreement between the Company and Medavate Corp. dated May 8, 2019 was added as
a condition of the Company to close the Merger, (iv) the dates for delivery of Ocugens financial statements and filing of the Form
S-4
were amended to June 17, 2019, and (v) the reference
to July 31, 2019 in Section 9.1(b) of the Merger Agreement, pertaining to the End Date by which the transactions contemplated by the Merger Agreement shall have been consummated was amended and restated to read
September 30, 2019. Under the Exchange Ratio set forth in the Merger Agreement, as amended by the Amendment, the former Ocugen equity holders immediately before the Merger are expected to own approximately 83% of the outstanding capital
stock of the Company, and the stockholders of Histogenics immediately before the Merger are expected to own approximately 17% of the outstanding capital stock of the Company (each before the Financing described below).
Additionally, Ocugen agreed to pay the Company (a) $100,000 (less any earnest money payments made prior to June 13, 2019 and acknowledged by the parties
as such) on the date of entering into the Amendment; (b) $30,000 on June 17, 2019; (c) $200,000 on July 15, 2019; (d) $200,000 on August 15, 2019; (e) $100,000 on September 16, 2019; and (f) $100,000 on September 30, 2019;
provided
that if the Effective Time has occurred prior to the respective dates set forth in (c), (d), (e) or (f), such payment would no longer be payable on such date. In the event the Registration Statement (as defined in the Merger
Agreement) is not filed with the Securities and Exchange Commission by 10:00 p.m. Eastern time on June 14, 2019 or any subsequent day thereafter, then Ocugen shall pay to the Company, no later than 9 a.m. Eastern time the following day, an
amount equal to $30,000. In the event a payment in the immediately preceding sentence is due on a weekend or bank holiday in New York City, then such payment shall be made on the next business day. If any payments required by the Amendment are not
made when due, then the Company shall have the right to terminate the Merger Agreement, as amended by the Amendment, at any time thereafter in accordance with the provisions of Section 9.1(i) of the Merger Agreement without the need for any
cure period or other condition otherwise required or contemplated by Section 9.1(i) of the Merger Agreement or otherwise.
Securities Purchase
Agreement
On June 13, 2019, Ocugen and Histogenics entered into a securities purchase agreement (the Securities Purchase
Agreement) with certain institutional investors (the Investors) pursuant to which, among other things, (i) Ocugen agreed to sell to the Investors an aggregate of 4,574,272 shares of Ocugen common stock (the Initial
Shares) and deposit an additional 4,574,272 shares of Ocugen common stock into escrow for the benefit of the Investors if 80% of the volume-weighted average trading price of a share of Histogenics common stock on Nasdaq for the first three
trading days immediately following the closing date of such financing is lower than the price paid by the Investors for the Initial Shares (the Additional Shares and together with the Initial Shares the Ocugen Financing
Shares), and (ii) Histogenics agreed to issue warrants representing the right to acquire an amount of Histogenics common stock up to the amount issuable in exchange for 200% of the Ocugen Financing Shares upon consummation of the Merger,
as further described below (the Series A Warrants), additional warrants