UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
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Filed by the Registrant ¨ Filed by a Party other than the Registrant
Check the appropriate box:
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¨ Preliminary
Proxy Statement
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¨ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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x Definitive
Proxy Statement
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¨ Definitive
Additional Materials
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Soliciting Material under §240.14a-12
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OCUGEN,
INC.
(Name of Registrant as Specified In Its
Charter)
Payment of Filing Fee (Check the appropriate
box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid:
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Form, Schedule or Registration Statement No.:
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Date Filed:
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5 Great Valley Parkway, Suite 160
Malvern, PA 19355
2020 ANNUAL MEETING OF STOCKHOLDERS
To be Held on December 11, 2020
October
30, 2020
Dear Stockholder:
We are pleased to invite you to attend
Ocugen, Inc.’s 2020 Annual Meeting of Stockholders (the “Annual Meeting”), which will be held virtually via live
audio webcast on Friday, December 11, 2020, at 8:00 a.m. Eastern Time.
Details regarding admission to the meeting
and the business to be conducted are more fully described in the accompanying Notice of 2020 Annual Meeting of Stockholders (the
“Notice”) and 2020 Annual Meeting Proxy Statement (the “Proxy Statement”). Other than the proposals described
in the Proxy Statement, the Board of Directors (the “Board”), is not aware of any other matters to be presented for
a vote at the Annual Meeting.
Your vote is important. Whether or not
you plan to attend the Annual Meeting, we hope you will vote as soon as possible. Information about voting methods is set forth
in the accompanying Notice and Proxy Statement.
If you have any questions with respect
to voting, please call our Chief Financial Officer and Corporate Secretary, Sanjay Subramanian, at (484) 328-4762.
Sincerely,
/s/ Shankar Musunuri
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Shankar Musunuri, Ph.D., MBA
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Chairman of the Board and Chief Executive Officer
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THIS PROXY STATEMENT
AND ENCLOSED PROXY CARD ARE
FIRST BEING MAILED TO STOCKHOLDERS ON OR ABOUT October 30, 2020.
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
Dear Stockholders:
You are invited to attend Ocugen, Inc.’s
2020 Annual Meeting of Stockholders on Friday, December 11, 2020, at 8:00 a.m. Eastern Time.
We are very pleased that this year’s
Annual Meeting will be a completely virtual meeting of stockholders, which will be conducted via live audio webcast. In light of
the ongoing COVID-19 outbreak, for the safety of our stockholders and in accordance with federal, state and local guidance that
has been issued regarding group gatherings, we have decided that the Annual Meeting will be held in a virtual format only, via
the Internet, with no physical in-person meeting. You will be able to attend the 2020 Annual Meeting of Stockholders online and
submit your questions during the meeting by visiting www.virtualshareholdermeeting.com/OCGN2020. You will also be able to vote
your shares electronically at the Annual Meeting.
At the Annual Meeting, stockholders will
vote:
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to adopt and approve an amendment to our Sixth Amended and Restated Certificate of Incorporation (our “Certificate of
Incorporation”) to effect a reverse stock split of our common stock, par value $0.01 per share, at a ratio of not less than
1-for-4 and not greater than 1-for-20, with the exact ratio and effective time of the reverse stock split to be determined by our
Board of Directors (the “Reverse Stock Split”) at any time within one year of the date of the Annual Meeting;
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to adopt and approve an amendment to our Certificate of Incorporation to increase the number of authorized shares of common
stock from 200,000,000 to 500,000,000;
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to elect the three director nominees that are set forth in the attached Proxy Statement to serve as Class III directors, whose
term will expire in 2023;
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to ratify the selection of Ernst & Young LLP as our independent registered public accounting firm for the 2020 fiscal year;
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to approve, on an advisory basis, the compensation of our named executive officers; and
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to indicate, on an advisory basis, the preferred frequency with which future advisory votes on the compensation of our named
executive officers should be held.
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Stockholders will also transact any other
business that may properly come before the Annual Meeting or any adjournment or postponement of the Annual Meeting.
MEETING INFORMATION:
Date:
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Friday, December 11, 2020
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Time:
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8:00 a.m. Eastern Time
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Location:
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The meeting can be accessed by visiting www.virtualshareholdermeeting.com/OCGN2020, where you will be able to listen to the meeting live, submit questions and vote online. There will be no physical location for stockholders to attend.
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Record Date:
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Wednesday, October 28, 2020
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Your vote matters. Whether or not you
plan to attend the Annual Meeting, please ensure that your shares are represented by voting, signing, dating and returning your
proxy in the enclosed envelope, which requires no postage if mailed in the United States.
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By Order of the Board of Directors
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/s/ Sanjay Subramanian
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Sanjay Subramanian
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Chief Financial Officer and Corporate Secretary
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October 30, 2020
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IMPORTANT NOTICE REGARDING AVAILABILITY
OF PROXY MATERIALS. This proxy statement and the proxy card are being mailed to our stockholders on or about October 30, 2020.
In accordance with the rules of the Securities and Exchange Commission, we are advising our stockholders of the availability on
the internet of our proxy materials related to our forthcoming Annual Meeting. Because we have elected to utilize the “full
set delivery” option, we are delivering to all stockholders paper copies of all of the proxy materials, as well as providing
access to those proxy materials on a publicly accessible website. This proxy statement and our Annual Report on Form 10-K for the
fiscal year ended December 31, 2019 are available to holders of our common stock at www.Proxyvote.com.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement |
SUMMARY
INFORMATION
To assist you in reviewing this year’s
proposals, we call your attention to the following proxy summary. This is only a summary; please review this Proxy Statement and
our 2019 Annual Report in full.
General Meeting Information
Date:
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December 11, 2020
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Time:
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8:00 a.m. Eastern Time
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Location:
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The meeting can be accessed by visiting www.virtualshareholdermeeting.com/OCGN2020, where you will be able to listen to the meeting live, submit questions and vote online. There will be no physical location for stockholders to attend.
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Record Date:
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October 28, 2020
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Voting Matters and Voting Recommendations
Proposal
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For More
Information
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Board of Directors
Recommendation
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Item 1: Approval and Adoption of an Amendment to the Certificate of Incorporation to Effect a Reverse Stock Split at a Ratio of Not Less than 1-for-4 and Not Greater than 1-for-20
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Page 39
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✓ FOR
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Item 2: Approval and Adoption of an Amendment to the Certificate of Incorporation to Increase the Number of Authorized Shares of Common Stock from 200,000,000 to 500,000,000
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Page 49
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✓ FOR
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Item 3: Election of Class III Directors for
a Three-Year Term Expiring in 2023
Kirsten Castillo, Prabhavathi Fernandes, Ph.D.
and Suha Taspolatoglu, M.D.
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Page 52
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✓ FOR Each Nominee
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Item 4: Ratification of Appointment of Ernst & Young LLP as our Independent Registered Public Accounting Firm for 2020
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Page 53
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✓ FOR
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Item 5: Approval, on an advisory basis, of the compensation of our named executive officers
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Page 54
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✓ FOR
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Item 6: Advisory vote on the frequency of future advisory votes on the compensation of our named executive officers
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Page 55
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One Year Frequency of Future Say-on-Pay Votes
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Reverse Stock Split
On December 27, 2019, we received a deficiency
letter from the Nasdaq Listing Qualifications Department (the “Staff”) of the Nasdaq Stock Market LLC (“Nasdaq”)
notifying us that, for the last 30 consecutive business days, the closing bid price for our common stock had been below the minimum
$1.00 per share required for continued listing
Notice
of Annual Meeting of Stockholders and 2020 Proxy Statement
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SUMMARY
INFORMATION (continued)
on The Nasdaq Capital Market pursuant to
Nasdaq Listing Rule 5550(a)(2) (“Rule 5550(a)(2)”). We were provided an initial period of 180 calendar days, or until
June 24, 2020, to regain compliance with Rule 5550(a)(2). In response to the COVID-19 pandemic
and related extraordinary market conditions, effective April 16, 2020, Nasdaq tolled the grace period for non-compliance with the
minimum bid price listing requirement until June 30, 2020. Following the tolling period, we had until September 7, 2020 to regain
compliance with Rule 5550(a)(2). On September 8, 2020, Nasdaq granted
us an additional 180-day period, or until March 8, 2021, to regain compliance with Rule 5550(a)(2). To regain compliance, the closing
bid price of our common stock must meet or exceed $1.00 per share for at least 10 consecutive business days during the additional
180-day period. If we do not regain compliance with the minimum bid price rule by March 8, 2021, Nasdaq will provide written notification
to us that our common stock may be delisted. At that time, we may appeal Nasdaq’s delisting determination to a Nasdaq hearings
panel. If we timely appeal, our common stock would remain listed pending the panel’s decision. There can be no assurance
that, if we do appeal the delisting determination by Nasdaq to the panel, such appeal would be successful.
Our Board of Directors (the “Board”)
has determined that an amendment to our Sixth Amended and Restated Certificate of Incorporation (our “Certificate of Incorporation”)
to effect a reverse stock split (the “Reverse Stock Split”) is necessary to the continued listing of our common stock
on Nasdaq and is advisable and in the best interests of the Company and our stockholders. If adopted and implemented, the Board
will select a Reverse Stock Split ratio of not less than 1-for-4 and not greater than 1-for-20, with the exact ratio and effective
time of the Reverse Stock Split to be determined by the Board based on various factors, including the then-prevailing market conditions
and the existing and expected per share trading prices of our common stock. Pursuant to the law of our state of incorporation,
Delaware, the Board must adopt any amendment to our Certificate of Incorporation and submit the amendment to stockholders for adoption
and approval. Accordingly, the Board is requesting your proxy to vote “FOR” the Reverse Stock Split proposal.
If the Reverse Stock Split proposal is
adopted and approved by the Company’s stockholders at the 2020 Annual Meeting of Stockholders (the “Annual Meeting”),
it will be effected, if at all, only upon a subsequent determination by the Board, not later than the date that is within one year
from the date of the Annual Meeting, that the Reverse Stock Split is advisable and in the best interests of the Company and our
stockholders. The Board may make this determination as soon as immediately following the conclusion of the Annual Meeting, and
the Reverse Stock Split could become effective as soon as the business day immediately following the Annual Meeting. If necessary
to comply with Rule 5550(a)(2), the Board will effect the Reverse Stock Split by March 8, 2021.
Notwithstanding approval of the Reverse
Stock Split proposal by our stockholders, the Board reserves its right to elect not to proceed with implementing the Reverse Stock
Split proposal at any time prior to the date on which the amendment to our Certificate of Incorporation becomes effective under
Delaware law, if it determines, in its sole discretion, that the Reverse Stock Split is no longer advisable and in the best interests
of the Company or its stockholders.
If the Board determines to effect a Reverse
Stock Split by filing the applicable amendment to the Certificate of Incorporation with the Secretary of State of the State of
Delaware, the Certificate of Incorporation would be amended accordingly, and the proposed Authorized Shares Amendment (as defined
below) would be abandoned.
Increase to Authorized Number of
Shares of Common Stock
The Board has approved an amendment to
our Certificate of Incorporation (the “Authorized Shares Amendment”) to increase the number of authorized shares of
common stock from 200,000,000 to 500,000,000. The additional shares of common stock authorized for issuance by the Authorized Shares
Amendment would be a part of the existing class of common stock and, if and when issued, would have the same rights and privileges
as the common stock presently issued and outstanding. Provided the stockholders approve the Authorized Shares Amendment, the increased
number of shares would be authorized for issuance, but would remain unissued until such time as the Board approves a specific issuance
of shares.
In addition to the 162,026,473 shares
of our common stock outstanding on September 30, 2020, we have also reserved 4,268,277 shares for issuance upon the exercise
of outstanding stock options, 870,017 shares for issuance upon the exercise of outstanding warrants, 56 shares for issuance
upon the conversion of outstanding shares of preferred stock, and 680,738 shares for issuance pursuant to our equity
incentive plans (in each case these amounts do not reflect any
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement |
SUMMARY
INFORMATION (continued)
adjustment for any Reverse Stock Split). The Board is
recommending the proposed increase in the authorized number of shares of common stock to provide us with appropriate
flexibility to issue additional shares in the future on a timely basis if such need arises in connection with potential
financings, business combinations or other corporate purposes.
As with the Reverse Stock Split, pursuant
to the law of our state of incorporation, Delaware, the Board must adopt any amendment to our Certificate of Incorporation and
submit the amendment to stockholders for adoption and approval. Accordingly, the Board is requesting your proxy to vote “FOR”
the Authorized Shares Amendment proposal.
If the proposed Authorized Shares Amendment
is approved by the requisite vote of the stockholders, it will become effective upon the filing of a Certificate of Amendment with
the Secretary of State of the State of Delaware. The Board reserves its right to elect not to proceed with and abandon the Authorized
Shares Amendment if it determines, in its sole discretion at any time, that this proposal is no longer in the best interests of
our stockholders. Moreover, the implementation of the Authorized Shares Amendment is expressly conditioned upon the failure to
obtain approval or implementation of a Reverse Stock Split. If a Reverse Stock Split is approved and implemented, then the Authorized
Shares Amendment will not be implemented.
Our Director Nominees
You are being asked to vote on the election
of Kirsten Castillo, Prabhavathi Fernandes, Ph.D. and Suha Taspolatoglu, M.D. as Class III directors, each to serve for a three-year
term expiring at our 2023 Annual Meeting of Stockholders. The number of members of our Board is currently set at eight members
and is divided into three classes, each of which has a three-year term. Classes I and III each consist of three directors, while
Class II consists of two directors.
The term of office of our Class III directors
expires at the Annual Meeting. We are nominating Kirsten Castillo, Prabhavathi Fernandes, Ph.D. and Suha Taspolatoglu, M.D. for
election at the Annual Meeting to serve until the 2023 Annual Meeting of Stockholders and until their successors, if any, are elected
or appointed, or their earlier death, resignation, retirement, disqualification or removal. Directors are elected by a plurality
of the votes cast by our stockholders at the Annual Meeting. The three nominees receiving the most FOR votes (among votes properly
cast online during the Annual Meeting or by proxy) will be elected. If no contrary indication is made, shares represented by executed
proxies will be voted FOR the election of Kirsten Castillo, Prabhavathi Fernandes, Ph.D. and Suha Taspolatoglu, M.D. Each nominee
has agreed to serve as a director if elected, and we have no reason to believe that any nominee will be unable to serve.
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Committee Memberships
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Name
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Age
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Director Since
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Occupation
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Independent
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AC
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CC
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NCGC
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Other Current
Public Company
Boards
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Kirsten Castillo
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47
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2020
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Supply Chain
and Logistics
Executive
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Yes
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C
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None
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Prabhavathi Fernandes, Ph.D.
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71
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2020
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Pharmaceutical Executive
(Ret.)
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Yes
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M
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OpGen, Inc.
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Suha Taspolatoglu, M.D.
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59
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2019
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Pharmaceutical
Executive
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Yes
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M
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None
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AC = Audit Committee
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CC = Compensation Committee
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C = Chair
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NCGC = Nominating and Corporate Governance Committee
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M = Member
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Notice of Annual Meeting of Stockholders and 2020 Proxy Statement |
SUMMARY
INFORMATION (continued)
CORPORATE GOVERNANCE SUMMARY FACTS
The following table summarizes our current
Board structure and key elements of our corporate governance framework:
Governance Item
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Size of Board (set by the Board)
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8
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Number of Independent Directors
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7
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Independent Chairman of the Board
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No
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Board Self-Evaluation
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Annual
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Review of Independence of Board
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Annual
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Independent Directors Meet Without Management Present
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Yes
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Voting Standard for Election of Directors in Uncontested Elections
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Plurality
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Diversity of Board Background, Experience and Skills
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Yes
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Notice of Annual Meeting of Stockholders and 2020 Proxy Statement |
PROXY
STATEMENT
This Proxy Statement, with the enclosed
proxy card, is being furnished to stockholders of Ocugen, Inc. in connection with the solicitation by our Board of proxies to be
voted at our Annual Meeting and at any postponements or adjournments thereof. The Annual Meeting will be held virtually via live
webcast on Friday, December 11, 2020, at 8:00 a.m. Eastern Time.
This
proxy statement and the enclosed proxy card are first being MAILED to our stockholders on or about October 30, 2020. In accordance
with the rules of the Securities and Exchange Commission, we are advising our stockholders of the availability on the internet
of our proxy materials related to our forthcoming Annual Meeting. Because we have elected to utilize the “full set delivery”
option, we are delivering to all stockholders paper copies of all of the proxy materials, as well as providing access to those
proxy materials on a publicly accessible website. This proxy statement and our Annual Report on Form 10-K for the fiscal year ended
December 31, 2019 are available to holders of our common stock at www.Proxyvote.com.
Notice
of Annual Meeting of Stockholders and 2020 Proxy Statement
| v
Merger of Histogenics Corporation
and Ocugen, Inc.
On September 27, 2019, Histogenics Corporation
(“Histogenics”) completed a reverse merger (the “Merger”) of a wholly owned subsidiary of Histogenics (“Merger
Sub”) with privately held Ocugen, Inc. (“Former Ocugen”) with Former Ocugen surviving the Merger as our wholly
owned subsidiary in accordance with the terms of an Agreement and Plan of Merger and Reorganization dated April 5, 2019, as amended
(the “Merger Agreement”), by and among us, Merger Sub and Former Ocugen. Prior to the Merger, Former Ocugen operated
as a separate, private entity. Upon completion of the Merger, Former Ocugen changed its name to Ocugen OpCo (“OpCo”)
and we changed our name from Histogenics Corporation to Ocugen, Inc. (“Ocugen”). On September 30, 2019, our common
stock began trading on the Nasdaq Capital Market (“Nasdaq”) under the new ticker symbol “OCGN.”
The former executive officers and members
of the Board of Directors of Histogenics resigned prior to or concurrent with the closing of the Merger, and our board of directors
(the “Board”) was replaced by new directors selected by OpCo, and all members of OpCo’s management team were
installed as our new management team. In addition, in October 2019, we dismissed Histogenics’ independent registered public
accounting firm, Grant Thornton LLP, and appointed the independent registered public accounting firm of Ernst & Young LLP,
as auditor of the combined company. Throughout this Proxy Statement we discuss both the former executive officers and members of
the Board of Directors of Histogenics and the current executive officers and members of the Board of Directors of Ocugen, Inc.,
the combined company.
Immediately prior to the Merger, Histogenics
completed a 1-for-60 reverse stock split (the “Stock Split”). All share and per share amounts in this proxy statement
reflect the Stock Split unless otherwise noted. As a result of the Merger and, after giving effect to the Stock Split, each outstanding
share of OpCo share capital (including shares of OpCo share capital to be issued upon exercise of outstanding share options) was
exchanged for 0.4794 shares of the Histogenics’s common stock. We also assumed all outstanding and unexercised warrants and
options to purchase shares of OpCo’s common stock, and in connection with the Merger they were converted into warrants and
options, as applicable, to purchase shares of our common stock, with the number of shares subject to such warrant or option, and
the exercise price, being appropriately adjusted to reflect the exchange rate of 0.4794 shares of our common stock for each share
of OpCo common stock.
In the Merger, former OpCo security holders
received approximately 86.24% of our fully diluted common stock and former Histogenics security holders were left with approximately
13.76% of our fully diluted common stock.
Unless otherwise indicated, all references
in this proxy statement to “Ocugen,” “the Company,” “we,” “our” and “us”
refer to Ocugen, Inc. as of and following the closing of the Merger and, where applicable, to the business of OpCo prior to the
closing of the Merger, and all references to “Histogenics” refer to Histogenics Corporation and the business of Histogenics
Corporation prior to the closing of the Merger.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | vi
GENERAL
INFORMATION ABOUT THE MEETING
PROXY SOLICITATION
Our Board is soliciting your vote on matters that will
be presented at the Annual Meeting and at any adjournment or postponement thereof. This proxy statement contains information on
these matters to assist you in voting your shares.
This proxy statement and the proxy card
are first being mailed to our stockholders on or about October 30, 2020. In accordance with the rules of the Securities and Exchange
Commission, we are advising our stockholders of the availability on the internet of our proxy materials related to our forthcoming
Annual Meeting. Because we have elected to utilize the “full set delivery” option, we are delivering to all stockholders
paper copies of all of the proxy materials, as well as providing access to those proxy materials on a publicly accessible website.
This proxy statement and our 2019 Annual Report on Form 10-K are available to holders of our common stock at www.proxyvote.com.
STOCKHOLDERS ENTITLED TO VOTE
All stockholders of record of our common
stock at the close of business on October 28, 2020 (the “Record Date”), are entitled to receive the Notice and to vote
their shares at the Annual Meeting. As of the Record Date, 162,026,473 shares of our common
stock were outstanding. Each share is entitled to one vote on each matter properly brought to the meeting.
ATTENDING THE ANNUAL MEETING
We will be hosting the Annual Meeting live
via audio webcast. Any stockholder can attend the Annual Meeting live online at www.virtualshareholdermeeting.com/OCGN2020. If
you were a stockholder as of the Record Date, or you hold a valid proxy for the Annual Meeting, you can vote at the Annual Meeting.
A summary of the information you need to attend the Annual Meeting online is provided below:
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Instructions on how to attend and participate via the Internet, including how to demonstrate proof
of stock ownership, are posted at www.virtualshareholdermeeting.com/OCGN2020.
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Assistance with questions regarding how to attend and participate via the Internet will be provided
at www.virtualshareholdermeeting.com/OCGN2020 on the day of the Annual Meeting.
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The webcast will start on December 11, 2020, at 8:00 a.m. Eastern Time.
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You will need your 16-digit control number to enter the Annual Meeting.
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Stockholders may submit questions while attending the Annual Meeting via the Internet.
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Webcast replay of the Annual Meeting will be available until December 10, 2021.
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To attend and participate in the Annual
Meeting, you will need the 16-digit control number included in the Notice, on your proxy card, or on the instructions that accompanied
your proxy materials. If your shares are held in “street name,” you should contact your bank or broker to obtain your
16-digit control number or otherwise vote through the bank or broker. If you lose your 16-digit control number, you may join the
Annual Meeting as a “Guest” but you will not be able to vote, ask questions or access the list of stockholders as of
the Record Date.
During the virtual Annual Meeting, you
may only submit questions in the question box provided at www.virtualshareholdermeeting.com/OCGN2020. We will respond to as many
inquiries at the virtual Annual Meeting as time allows.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 1
GENERAL
INFORMATION ABOUT THE MEETING (continued)
We will have technicians ready to assist
you with any technical difficulties you may have accessing the virtual meeting website. If you encounter any difficulties accessing
the virtual Annual Meeting during the check-in or meeting time, please call the technical support number that will be posted on
the Annual Meeting website log-in page.
VOTING METHODS
You may vote at the Annual Meeting by voting
online during the live audio webcast or you may cast your vote in any of the following ways:
HOW YOUR SHARES WILL BE VOTED
In each case, your shares will be voted
as you instruct. If you return a signed card, but do not provide voting instructions, your shares will be voted FOR each of the
proposals. If you are the record holder of your shares, you may revoke or change your vote any time before the proxy is exercised.
To do so, you must do one of the following:
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Vote over the Internet at www.proxyvote.com or by telephone as instructed above. Only your
latest Internet or telephone vote is counted. You may not revoke or change your vote over the Internet at www.proxyvote.com
or by telephone after 11:59 p.m., Eastern Time, on December 10, 2020.
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Sign a new proxy card and submit it by mail, which must be received no later than December 10,
2020. Only your latest dated proxy card will be counted.
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Attend the Annual Meeting at www.virtualshareholdermeeting.com/OCGN2020 and vote online during
the live audio webcast. Attending the Annual Meeting will not by itself revoke a previously granted proxy.
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Give our Corporate Secretary written notice before or at the meeting that you want to revoke your
proxy.
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If your shares are held by your broker,
bank or other holder of record as a nominee or agent (i.e., the shares are held in “street name”), you should follow
the instructions provided by your broker, bank or other holder of record.
Deadline for Voting. The deadline
for voting by telephone or Internet at www.proxyvote.com is 11:59 PM Eastern Time on December 10, 2020. If you are a registered
stockholder and attend the meeting, you may also vote online during the Annual Meeting at www.virtualshareholdermeeting.com/OCGN2020.
BROKER VOTING AND VOTES REQUIRED FOR EACH PROPOSAL
If your shares are held in a stock brokerage
account or by a bank or other holder of record, you are considered the “beneficial owner” of shares held in street
name. The Notice has been forwarded to you by your broker, bank or other holder of record who is considered the stockholder of
record of those shares. As the beneficial owner, you may direct your broker, bank or other holder of record on how to vote your
shares by using the proxy card included in the materials made available or by following their instructions for voting on the Internet.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 2
GENERAL
INFORMATION ABOUT THE MEETING (continued)
A broker non-vote occurs when a broker
or other nominee that holds shares for another does not vote on a particular item because the nominee does not have discretionary
voting authority for that item and has not received instructions from the beneficial owner of the shares. The following table summarizes
how broker non-votes and abstentions are treated with respect to our proposals:
Proposal
|
Votes Required
|
Treatment of
Abstentions and Broker
Non-Votes
|
Broker
Discretionary
Voting
|
Item 1: Approval and Adoption of Amendment to Certificate of Incorporation Effecting a Reverse Stock Split
|
Majority of the shares outstanding as of the Record Date
|
Abstentions and broker non-votes will have the effect of a vote “AGAINST” the proposal
|
Yes
|
Item 2: Approval and Adoption of Amendment to Certificate of Incorporation to Increase Number of Authorized Shares of Common Stock
|
Majority of the shares outstanding as of the Record Date
|
Abstentions and broker non-votes will have the effect of a vote “AGAINST” the proposal
|
Yes
|
Item 3: Election of Class III Directors for a Three-Year Term Expiring in 2023
|
Plurality of the votes cast
|
Abstentions and broker non-votes will not be taken into account in determining the outcome of the proposal
|
No
|
Item 4: Ratification of Appointment of Ernst & Young LLP as our Independent Registered Public Accounting Firm for 2020
|
Majority of the shares present, in person or represented by proxy at the meeting, and entitled to vote
|
Abstentions will have the effect of a vote “AGAINST” the proposal and broker non-votes will not be taken into account in determining the outcome of the proposal
|
Yes
|
Item 5: Approval, on an advisory basis, of the compensation of our named executive officers.
|
Majority of the shares present, in person or represented by proxy at the meeting, and entitled to vote
|
Abstentions will have the effect of a vote “AGAINST” the proposal and broker non-votes will not be taken into account in determining the outcome of the proposal
|
No
|
Item 6: Advisory vote on the frequency of future advisory votes on Executive Compensation
|
The option of one year, two years or three years that receives the highest number of votes cast by the holders of shares present in person or by proxy at the meeting, and entitled to vote, will be considered by the Board as the frequency preferred by the stockholders.
|
Abstentions and broker non-votes will not be taken into account in determining the outcome of the proposal
|
No
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 3
GENERAL
INFORMATION ABOUT THE MEETING (continued)
QUORUM
We must have a quorum to conduct business
at the Annual Meeting. A quorum consists of the presence at the meeting either online during the live audio webcast or represented
by proxy of the holders of a majority of the voting power of our outstanding shares of common stock entitled to vote generally
in the election of directors. For the purpose of establishing a quorum, abstentions, including brokers holding customers’
shares of record who cause abstentions to be recorded at the meeting, and broker non-votes are considered stockholders who are
present and entitled to vote, and count toward the quorum. If there is no quorum, the holders of a majority of shares present at
the meeting in person or represented by proxy or the chairman of the meeting may adjourn the meeting to another date.
PROXY SOLICITATION COSTS
We pay the cost of soliciting proxies.
Proxies will be solicited on behalf of the Board by mail, telephone and other electronic means or in person. Directors and employees
will not be paid any additional compensation for soliciting proxies. We have retained Okapi Partners LLC to assist in the solicitation of proxies on behalf of the Board for a fee of $10,000 plus reimbursement
of reasonable expenses. We may also reimburse brokerage firms, banks and other agents
for the cost of forwarding proxy materials to beneficial owners.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 4
BOARD
OF DIRECTORS
Our Board has nominated Kirsten Castillo, Prabhavathi
Fernandes, Ph.D. and Suha Taspolatoglu, M.D. for election as Class III directors at our Annual Meeting to hold office until our
2023 Annual Meeting of Stockholders.
Our Board is our company’s ultimate
decision-making body, except with respect to those matters reserved to the stockholders. Our Board selects the members of our senior
management team, who in turn are responsible for the day-to-day operations of our company. Our Board acts as an advisor and counselor
to senior management and oversees its performance.
Our Board consists of directors divided
into three classes, with each class holding office for a three-year term. Kirsten Castillo, Prabhavathi Fernandes, Ph.D. and Suha
Taspolatoglu, M.D., current Class III directors, have been nominated by our Board for election at the Annual Meeting for three-year
terms that will expire at the 2023 Annual Meeting of Stockholders and until their successors, if any, are elected or appointed,
or upon their earlier death, resignation, retirement, disqualification or removal. Each of the nominees has agreed to be named
and to serve, and we expect each nominee to be able to serve if elected. If any nominee is unable to serve, the Nominating and
Corporate Governance Committee of our Board will recommend to our Board a replacement nominee. The Board may then designate the
other nominee to stand for election. If you voted for the unavailable nominee, your vote will be cast for his or her replacement.
BOARD
STRUCTURE AND COMPOSITION
The Nominating and Corporate Governance
Committee of our Board is responsible for recommending the composition and structure of our Board and for developing criteria for
Board membership. This Committee regularly reviews director competencies, qualities and experiences, with the goal of ensuring
that our Board is comprised of an effective team of directors who function collegially and who are able to apply their experience
toward meaningful contributions to our business strategy and oversight of our performance, risk management, organizational development
and succession planning.
Our Amended and Restated Bylaws (“Bylaws”)
provide that the number of members of our Board shall be fixed by the Board from time to time. Our Board was previously fixed at
four members. On September 27, 2019, we increased the size of the Board to seven members, and on April 5, 2020, we increased the
size of the Board to eight members. Our Board is divided into three classes with staggered three-year terms. The Nominating and
Corporate Governance Committee is responsible for identifying individuals that the Committee believes are qualified to become Board
members.
CRITERIA
FOR BOARD MEMBERSHIP
The Nominating and Corporate Governance
Committee has identified certain criteria that it will consider in identifying director nominees. Important general criteria and
considerations for Board membership include:
·
Nominees should have a reputation for integrity, honesty and adherence to high ethical standards.
·
Nominees should have demonstrated business acumen, experience and ability to exercise sound judgments in matters that relate
to the current and long-term objectives of the Company and should be willing and able to contribute positively to the decision-making
process of the Company.
·
Nominees should have a commitment to understand the Company and its industry and to regularly attend and participate in
meetings of the Board and its committees.
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 5
board
of directors (continued)
·
Nominees should have the interest and ability to understand the sometimes conflicting interests of the various constituencies
of the Company, which include stockholders, employees, customers, governmental units, creditors and the general public, and to
act in the interest of all stockholders.
·
Nominees should not have, nor appear to have, a conflict of interest that would impair the nominee’s ability to represent
the interests of the Company and its stockholders and to fulfill the responsibilities of a director.
·
Nominees shall not be discriminated against on the basis of race, religion, national origin, sex, sexual orientation, disability
or any other basis proscribed by law. The value of diversity on the Board should be considered.
·
Nominees should have the potential to serve on the Board for at least five years.
|
In each of the director nominee and continuing
director biographies that follow, we highlight the specific experience, qualifications, attributes and skills that led the Board
to conclude that the director nominee or continuing director should serve on our Board at this time.
DIRECTOR
NOMINEES
CLASS III DIRECTORS—PRESENT
TERMS EXPIRING AT THE ANNUAL MEETING OF STOCKHOLDERS AND PROPOSED TERMS TO EXPIRE IN 2023
Kirsten Castillo
|
|
Age: 47
|
Committee Memberships: Compensation Committee (Chair)
|
Director Since: 2020
|
Other Public Directorships: None
|
Kirsten Castillo has over 20 years
of supply chain and logistics experience, having held multiple supply chain leadership roles at a spin-off company of 3M, where
she led multiple major acquisitions and integrations for the company. During her tenure at Logistics Planning Services, a privately
held transportation and logistics services company, where she served as CEO, the company achieved aggressive growth plans which
ultimately resulted in the sale of the business to GlobalTranz. She stayed on through the transition as Chief Operating Officer
and was responsible for all company operations including regional branches in North America and Mexico, delivering $1.6 billion
in revenue before stepping down to pursue new opportunities. Ms. Castillo is committed to the advancement of women and has been
named the Vice President of Engagement for AWESOME (Advancing Women’s Excellence in Supply Chain, Operations, Management
and Education). She received her Bachelor’s of Science from the University of Minnesota and her Global Executive Master’s
of Business Administration from Duke Fuqua School of Business.
Skills & Qualifications: Our
Board believes that Ms. Castillo’s expertise in business operations and logistics and her leadership experience provides
her with the qualifications and skills to serve on our Board.
Prabhavathi Fernandes, Ph.D.,
|
|
Age: 71
|
Committee Memberships: Compensation Committee
|
Director Since: 2020
|
Other Public Directorships: OpGen, Inc.
|
Prabhavathi Fernandes, Ph.D.,
has more than 35 years of pharmaceutical discovery, development and management experience in large and small pharmaceutical companies.
Dr. Fernandes has held executive leadership positions at
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 6
board
of directors (continued)
Bristol-Myers Squibb Pharmaceutical
Research Institute, Abbott Laboratories and The Squibb Institute for Medical Research. After leaving BMS, she founded and led
four biotechnology and CRO companies as President, Chief Executive Officer and Director of each of these companies. Prior to
her retirement in December 2016, she led Cempra, Inc. for 12 years as its founder, CEO and chief scientist. Dr. Fernandes
currently serves as the Chairperson of both the National Biodefense Science Board (NBSB) and the Scientific Advisory
Committee of the Global Antibiotic Research and Development Partnership, a Drugs for Neglected Diseases initiative/World
Health Organization (DNDi /WHO) initiative. Dr. Fernandes also serves on the board of directors for OpGen, Inc., a
publicly traded precision medicine company. She received her Ph.D. in Microbiology from Thomas Jefferson University.
Skills
& Qualifications: Our Board believes Dr. Fernandes’ extensive experience in the pharmaceutical and biotechnology
space provides her with the qualifications and skills to serve on our Board.
Suha Taspolatoglu, M.D.
|
|
Age: 59
|
Committee Memberships: Audit Committee
|
Director Since: 2019
|
Other Public Directorships: None
|
Suha Taspolatoglu, M.D. has served
as a member of our Board since September 2019. Dr. Taspolatoglu has served as a member of the board of directors of OpCo, our wholly
owned subsidiary, since June 2017. Since 2013, Dr. Taspolatoglu has been working as the Chief Executive Officer of Abdi Ibrahim
Ilac Sanayi ve Ticaret A.S., a pharmaceutical company. Dr. Taspolatoglu joined Abdi Ibrahim as the head of sales and marketing
division in 2001 and became managing director of sales and marketing division in 2007. From 2009 to 2013, Dr. Taspolatoglu worked
as the General Manager of Roche Turkey. Dr. Taspolatoglu is a graduate of Ankara University Faculty of Medicine and served from
1986 to 1989 as a physician in the Ministry of Health.
Skills & Qualifications:
Our Board believes Dr. Taspolatoglu’s background in marketing and sales in the pharmaceutical sector provides him with the
qualifications and skills to serve on our Board.
CONTINUING
DIRECTORS
CLASS I DIRECTORS —TERMS EXPIRING
AT THE 2021 ANNUAL MEETING OF STOCKHOLDERS
Skills & Qualifications:
Shankar Musunuri, Ph.D., MBA
|
|
Age: 56
|
Committee Memberships: None
|
Director Since: 2019
|
Other Public Directorships: None
|
Shankar Musunuri, Ph.D., MBA has
served as Chairman of the Board and as our Chief Executive Officer since September 2019. Dr. Musunuri has served as the Co-Founder,
Chief Executive Officer and Executive Chairman of the Board of OpCo, our wholly owned subsidiary, since September 2013 and has
served as OpCo’s Chief Executive Officer since May 2015. Dr. Musunuri was a Founder, President, Chief Executive Officer,
and a board member of Nuron Biotech, Inc. from April 2010 to May 2013. Previously, Dr. Musunuri spent nearly fifteen years at Pfizer
Inc. where he had held various positions of increasing leadership and responsibility. Prior to Pfizer, Dr. Musunuri worked for
Amylin Pharmaceuticals from 1993 to 1996. Dr. Musunuri obtained his Ph.D. in Pharmaceutical Sciences from the University of Connecticut
and a Master's of Business Administration from Duke University’s Fuqua School of Business. He serves on the Advisory Board
of Fuqua’s Center for Entrepreneurship and Innovation.
Skills & Qualifications: Our
Board believes Dr. Musunuri’s perspective and history as our Co-Founder and Chief Executive Officer, as well as his executive,
operational and commercial expertise, qualify him to serve on our Board.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 7
board
of directors (continued)
Ramesh Kumar, Ph.D.
|
|
Age: 65
|
Committee Memberships: Audit Committee (Chair); Nominating and Corporate Governance Committee
|
Director Since: 2019
|
Other Public Directorships: None
|
Ramesh Kumar, Ph.D.,
has served as a member of our Board since September 2019. Dr. Kumar has served as a director
of OpCo, our wholly owned subsidiary, since June 2019. He co-founded Onconova Therapeutics, Inc. in 1998 and served as its Chief
Executive Officer and a member of its board from 1998 to February 2019 and as its President from 1998 to June 2018. Dr. Kumar transitioned
to an Advisory role with Onconova in January 2019. He has held positions in R&D and management at Princeton University, Bristol-Myers
Squibb, DNX (later Nextran, a subsidiary of Baxter) and Kimeragen (later Valigen), where he served as President of the Genomics
and Transgenics Division. Dr. Kumar obtained an undergraduate and Master’s degree in Microbiology from Panjab University
and received his Ph.D. in Molecular Biology from the University of Illinois, Chicago and trained at the National Cancer Institute.
Skills & Qualifications:
Our Board believes Dr. Kumar’s extensive senior executive and public company
experience, and familiarity with the pharmaceutical industry qualify him to serve on our Board.
Junge Zhang, Ph.D.
|
|
Age: 53
|
Committee Memberships: Compensation Committee; Nominating and Corporate Governance Committee (Chair)
|
Director Since: 2019
|
Other Public Directorships: None
|
Junge (John) Zhang, Ph.D.
has served as a member of our Board since September 2019. Dr. Zhang has served as a member
of the board of directors of OpCo, our wholly owned subsidiary, since May 2015. Dr. Zhang has served as the Founder, President,
and CEO of Biopeptek Pharmaceuticals LLC, a custom peptide manufacturing company, since its founding in October 2010. Prior to
founding Biopeptek, Dr. Zhang was with the Janssen Pharmaceutical division of Johnson & Johnson from October 2002 to April
2011. Before joining Johnson & Johnson, Dr. Zhang was a Senior Chemist at Eisai USA from December 1997 to October 2002. Dr.
Zhang earned a Ph.D. in analytical chemistry from Drexel University, an M.S. in chemistry from University of Louisiana, and a B.S.
in material science from Wuhan University of Technology in China.
Skills & Qualifications:
Our Board believes Dr. Zhang’s extensive senior management experience in the
pharmaceutical industry provides him with the qualifications and skills to serve on our Board.
CLASS II DIRECTORS—TERMS EXPIRING AT THE 2022
ANNUAL MEETING OF STOCKHOLDERS
Uday B. Kompella, Ph.D.
|
|
Age: 54
|
Committee Memberships: Nominating and Corporate Governance Committee
|
Director Since: 2019
|
Other Public Directorships: None
|
Uday B. Kompella, Ph.D. has
served as a member of our Board since September 2019. Dr. Kompella has served as Co-Founder and as a member of the board of directors
of OpCo since September 2013, when he and Dr. Musunuri co-founded OpCo. Dr. Kompella has served as a Professor of Pharmaceutical
Sciences, Ophthalmology, and Bioengineering at University of Colorado-Anschutz Medical Campus since March 2008. He is a Fellow
of the American Association of Pharmaceutical Scientists (AAPS) and the Association for Research in Vision and Ophthalmology (ARVO)
and serves as the Editor-in-Chief for the journal Expert Opinion on Drug Delivery. Also,
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 8
board
of directors (continued)
he is an editor for the journals,
Pharmaceutical Research and the Journal of Ocular Pharmacology and Therapeutics. Dr. Kompella obtained his undergraduate degree
from the Birla Institute of Technology and Science, a Master’s Degree in Pharmaceutical Engineering from Jadavpur University
and a Ph.D. in Pharmaceutical Sciences from the University of Southern California.
Skills & Qualifications:
Our Board believes Dr. Kompella’s deep experience with our business as a co-founder
of OpCo and his academic experience in pharmaceutical sciences and ophthalmology provides him with the qualifications and skills
to serve on our Board.
Manish Potti
|
|
Age: 34
|
Committee Memberships: Audit Committee
|
Director Since: 2019
|
Other Public Directorships: None
|
Manish Potti has served
as a member of our Board since September 2019. Mr. Potti has served as a member of the board of directors of OpCo, our wholly owned
subsidiary, since November 2016 and has served as Co-Founder and President of Innogenix Pharma, a generic and specialty pharmaceutical
company, since June 2016. He was previously Director of Business Development at Epic Pharma, a generic pharmaceutical company and
contract manufacturing organization, from December 2014 to May 2016. Prior to his employment with Epic Pharma, Mr. Potti worked
as an analyst at One William Street Capital from August 2010 to February 2014 and served as a consultant in the financial industry
relating to fixed income portfolios from March 2014 to December 2014. Prior to his experience in pharmaceuticals, Mr. Potti spent
several years in finance as an analyst and trader, working in investment banking and hedge funds. Mr. Potti holds a Bachelor’s
of Science in Cellular and Molecular Biology from Johns Hopkins University, and a Master’s Degree in Financial Engineering
from New York University.
Skills & Qualifications:
Our Board believes Mr. Potti’s financial knowledge and significant investing
experience, along with his previous experience in the pharmaceutical industry, provides him with the qualifications and skills
to serve on our Board.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 9
CORPORATE
GOVERNANCE AND RISK MANAGEMENT
We are committed to good
corporate governance and integrity in our business dealings. Our governance practices are documented in our Sixth Amended and Restated
Certificate of Incorporation (the “Charter”), our Bylaws, our Code of Business Conduct and Ethics (the “Code
of Conduct”), our Corporate Governance Guidelines and the charters of the committees of the Board (the “Committees”).
Aspects of our governance documents are summarized below. You can find the charter for each Committee of the Board and our Code
of Conduct on our website www.Ocugen.com under “Investors.”
We have a written set of corporate governance
guidelines that are designed to help ensure effective corporate governance of our Company. Our corporate governance guidelines
cover topics including, but not limited to, director responsibilities, director qualification standards, director access to management
and independent advisors, director compensation, director orientation and continuing education, the periodic evaluations of our
Board and its Committees and succession planning. Succession planning for the Board is critical to our success. Our goal is to
achieve a Board that provides effective oversight of the Company through the appropriate balance of diversity of perspectives,
experience, expertise and skills. Our corporate governance guidelines are reviewed periodically by the Nominating and Corporate
Governance Committee to assess the adequacy of the corporate governance guidelines and recommend any proposed changes to the Board.
The corporate governance guidelines are amended by our Board when appropriate. The full text of our corporate governance guidelines
is available on our website at www.ocugen.com.
The Board’s role in risk oversight
is consistent with our leadership structure, with management having day-to-day responsibility for assessing and managing our risk
exposure and the Board actively overseeing management of our risks—both at the Board and Committee level. The risk oversight
process includes receiving regular reports from Committees and our executive officers to enable our Board to understand our risk
identification, risk management and risk mitigation strategies with respect to areas of potential material risk, including operations
(including cyber-security), finance, legal, regulatory, strategic and reputational risk.
The Board focuses on the overall risks
affecting us. Each Committee has been delegated the responsibility for the oversight of specific risks that fall within its areas
of responsibility. For example:
|
·
|
The Audit Committee oversees management of financial reporting, compliance and litigation risks, including risks related to
our insurance, information technology, cybersecurity, human resources and regulatory matters, as well as the steps management has
taken to monitor and control such exposures.
|
|
·
|
The Compensation Committee is responsible for overseeing the management of risks relating to our executive compensation policies,
plans and arrangements and the extent to which those policies, plans and arrangements increase or decrease risk for the Company.
|
|
·
|
The Nominating and Corporate Governance Committee manages risks associated with the independence of the Board, potential conflicts
of interest and the effectiveness of the Board.
|
While each Committee is responsible for
evaluating certain risks and overseeing the management of such risks, the entire Board is regularly informed through Committee
reports about such risks. Matters of significant strategic risk are considered by our entire Board.
BOARD
INDEPENDENCE
Under the Nasdaq
Stock Market (“Nasdaq”) listing standards, a majority of the members of a listed company’s board of directors
must qualify as “independent,” as affirmatively determined by the board of directors. Our Board consults with our counsel
to ensure that the Board’s determinations are consistent with all relevant securities and other laws
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 10
CORPORATE
GOVERNANCE AND RISK MANAGEMENT (continued)
and regulations regarding the
definition of “independent,” including those set forth in pertinent listing standards of Nasdaq, as in effect from
time to time.
Our Board has determined all of our directors,
except for Dr. Musunuri, are “independent” directors, as defined under the rules of Nasdaq. In making such determination,
the Board considered the relationships that each such non-employee director has with the Company and all other facts and circumstances
that the Board deemed relevant in determining their independence, including the beneficial ownership of our common stock by each
non-employee director. Our independent directors generally meet in executive session at each regularly scheduled Board meeting.
The Histogenics Board of Directors determined,
prior to the completion of the Merger, that in the fiscal year ended December 31, 2019, the following directors were “independent”
directors, as defined under the rules of Nasdaq: David Gill; John H. Johnson; Garheng Kong, M.D., Ph.D.; Kevin Rakin; Susan Washer;
Michael Lewis and Josh Baltzell. Adam Gridley, Histogenics’ former Chief Executive Officer, served on the Histogenics Board
of Directors and was deemed not “independent” by virtue of being an employee of Histogenics.
BOARD
LEADERSHIP STRUCTURE
The Board should remain free to configure
the leadership of the Board and the Company in the way that best serves the Company’s interests at the time and, accordingly,
has no fixed policy with respect to combining or separating the offices of the Chairman of the Board and the Chief Executive Officer.
Dr. Shankar Musunuri, our Chief Executive Officer, currently serves as the Chairman of the Board. Combining
the roles of chief executive officer and chairman of the Board fosters accountability, effective decision-making and alignment
between interests of the Board and management.
The Board may, but is not required to,
appoint a Lead Independent Director, who shall be selected by a majority of the independent directors and who shall preside over
executive sessions of the Board. As of the date of this Proxy Statement, the Board has not appointed a Lead Independent Director.
The Nominating and Corporate Governance Committee will periodically assess the Board’s leadership structure and whether the
Board’s leadership structure is appropriate given the specific characteristics or circumstances of the Company.
BOARD
COMMITTEES and membership
Our
Board has established various Committees to assist in discharging its duties: the Audit Committee, the Compensation Committee and
the Nominating and Corporate Governance Committee. Each member of our Committees is an independent director as that term is defined
by the SEC and Nasdaq. Each of the Committees has the authority, as its members deem appropriate, to engage legal counsel or other
experts or consultants in order to assist the Committee in carrying out its responsibilities. The Nominating and Corporate Governance
Committee is responsible for overseeing periodic self-evaluations of the Board to determine whether it and its Committees are functioning
effectively. Each Committee also conducts periodic self-evaluations of their own performance and reports their conclusions to the
Board.
The
Committee memberships and the primary responsibilities of each of the Committees are as follows:
Director(1)
|
Independent
|
Board
|
AC
|
CC
|
NCGC
|
Shankar Musunuri, Ph.D., MBA
|
No
|
C
|
|
|
|
Ramesh Kumar, Ph.D.
|
Yes
|
M
|
C
|
|
M
|
Junge Zhang, Ph.D.
|
Yes
|
M
|
|
M
|
C
|
Uday B. Kompella, Ph.D.
|
Yes
|
M
|
|
|
M
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 11
CORPORATE
GOVERNANCE AND RISK MANAGEMENT (continued)
Manish Potti
|
Yes
|
M
|
M
|
|
|
Kirsten Castillo
|
Yes
|
M
|
|
C
|
|
Prabhavathi Fernandes, Ph.D.
|
Yes
|
M
|
|
M
|
|
Suha Taspolatoglu, M.D.
|
Yes
|
M
|
M
|
|
|
AC = Audit Committee
|
|
CC = Compensation Committee
|
|
C = Chair
|
NCGC = Nominating and Corporate Governance Committee
|
|
M = Member
|
Audit Committee
The Audit Committee assists the Board by
providing oversight of our financial management, independent auditor and accounting and financial reporting processes, as well
as such other matters as directed by the Board or the Audit Committee Charter.
Among other things, the Audit Committee’s
responsibilities include:
|
·
|
having sole discretion and direct responsibility for appointing, evaluating, retaining, compensating, overseeing, evaluating,
and, when necessary, terminating our engagement with our independent registered public accounting firm;
|
|
·
|
discussing with management and the independent registered public accounting firm our annual and quarterly financial statements
and related disclosures and preapproving all audit services;
|
|
·
|
establishing and overseeing compliance with our procedures governing treatment of complaints concerning our accounting, internal
accounting controls, or auditing matters, and submissions of confidential, anonymous, employee concerns regarding accounting or
auditing matters;
|
|
·
|
reviewing our Code of Conduct and our compliance with applicable legal requirements, as well as any litigation or material
government investigations, and making corresponding reports to the Board;
|
|
·
|
overseeing our risk assessment and risk management processes and the guidelines and procedures to implement such processes;
|
|
·
|
reviewing and ratifying all related person transactions, based on the standards set forth in our Related Person Transaction
Policy; and
|
|
·
|
preparing the Audit Committee report required to be included in our annual proxy statement.
|
The members of our Audit Committee are
Mr. Potti, Dr. Taspolatoglu and Dr. Kumar (Chair). All members of our Audit Committee are deemed “independent” and
financially literate under the applicable rules and regulations of the SEC and Nasdaq. Each of Mr. Potti and Drs. Kumar and Taspolatoglu
also qualifies as an “audit committee financial expert” within the meaning of SEC regulations.
Compensation Committee
The Compensation Committee reviews the
performance and development of our management in achieving corporate goals and objectives and assures that our executive officers
(including our CEO) are compensated effectively in a manner consistent with our strategy, competitive practice and stockholder
interests, as well as such other matters as
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 12
CORPORATE
GOVERNANCE AND RISK MANAGEMENT (continued)
directed by the Board or the Compensation
Committee Charter. Among other things, the Compensation Committee’s responsibilities include:
|
·
|
reviewing and recommending to the Board the terms of any binding offer letters, employment agreements, termination agreements
or arrangements, change-in-control agreements, indemnification agreements and other material agreements that we execute with the
CEO, as well as reviewing and approving the terms of any such letters, arrangements, or agreements that we execute with any executive
officer;
|
|
·
|
overseeing the evaluation of our executive officers and preparing assessments of their performance, to be discussed periodically
with the Board; annually reviewing and making recommendations to the Board for approval of our CEO’s and other executive
officers’ compensation level (including salary, bonus, incentive compensation, severance arrangements, change-in-control
benefits and other forms of executive officer compensation);
|
|
·
|
reviewing and making recommendations to the Board regarding director compensation, including all forms of paid cash compensation
and all forms of equity compensation granted to members of the Board;
|
|
·
|
reviewing and making recommendations to the Board regarding incentive compensation and equity-based plans, as well as approving
employee benefit plans pursuant to which options or stock may be acquired by officers, directors, employees or consultants;
|
|
·
|
administering, or where appropriate, overseeing the administration of, executive and equity compensation plans and such other
compensation and benefit plans that are adopted by us from time to time; and
|
|
·
|
determining stock ownership guidelines for our CEO and other executive officers and monitoring compliance with such guidelines,
if deemed advisable by our Board or the Compensation Committee.
|
Our Compensation Committee may, in its
sole discretion, retain or obtain the advice of compensation consultants, legal counsel or other advisors, after taking into consideration
applicable factors affecting independence that are specified under Nasdaq and SEC regulations. Our Compensation Committee is directly
responsible for the appointment, compensation and oversight of the work of any retained compensation consultant, legal counsel
and other advisor, and is empowered, without further action by the Board, to both determine and cause us to pay such compensation
to any retained compensation consultant, legal counsel and other advisor retained by the Compensation Committee. Our CEO annually
reviews the performance of each of the other executive officers, including the other named executive officers. He then recommends
annual merit salary adjustments and any changes in annual or long-term incentive opportunities for other executives. The Compensation
Committee considers our CEO’s recommendations in addition to data and recommendations presented by our executive compensation
consultant.
The Compensation Committee has retained
Radford, an independent compensation consulting firm, since June 2018. Radford presented a summary executive compensation report
to the Compensation Committee. Radford previously provided the Compensation Committee with data about the compensation paid by
our peer group of companies and other employers who compete with the Company for executives, updated the Compensation Committee
on new developments in areas that fall within the Compensation Committee’s jurisdiction and was available to advise the Compensation
Committee regarding all of its responsibilities. The consultant serves at the pleasure of the Compensation Committee rather than
the Company, and the consultant’s fees are approved by the Compensation Committee.
The members of our Compensation Committee
are Dr. Zhang, Dr. Fernandes and Ms. Castillo (Chair). The Board has determined that all Compensation Committee members are independent
under the listing standards of Nasdaq, and
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 13
CORPORATE
GOVERNANCE AND RISK MANAGEMENT (continued)
that they are “non-employee directors”
for purposes of Rule 16b-3 under the Exchange Act and “outside directors” for purposes of Section 162(m) of the Internal
Revenue Code (the “Code”).
Nominating and Corporate Governance Committee
The Nominating and Corporate Governance
Committee identifies qualified individuals for membership on the Board, recommends to the Board the director nominees to fill vacancies
on the Board and to stand for election at the next annual meeting of stockholders, develops and recommends to the Board a set of
corporate governance guidelines for the Board and provides oversight of the corporate governance affairs of the Board, as well
as such other matters as directed by the Board or the Nominating and Corporate Governance Charter. Among other things, our Nominating
and Corporate Governance Committee’s responsibilities include:
|
·
|
periodically reviewing and adopting procedures regarding director candidates proposed by stockholders;
|
|
·
|
retaining and terminating any search firm used to identify director nominees, approving the search firm’s fees and other
retention terms, and authorizing our payment of compensation to any such search firm without further action by the Board;
|
|
·
|
identifying, recommending and evaluating candidates, including candidates submitted by stockholders, for election to the Board
and recommending to the Board (i) nominees to fill vacancies or new positions on the Board and (ii) the slate of nominees to stand
for election by our stockholders at each annual meeting of stockholders;
|
|
·
|
developing and recommending to the Board corporate governance guidelines, and periodically reviewing and recommending any necessary
or appropriate changes to such guidelines;
|
|
·
|
recommending to the Board (i) directors to be appointed to or to fill vacancies on each of our Committees; and (ii) director
independence determinations for the Board as a whole and each of our Committees;
|
|
·
|
periodically assessing the appropriate size, composition and leadership structure of the Board as a whole, the needs of the
Board and the respective committees of the Board, and the qualification of director candidates in light of these needs;
|
|
·
|
overseeing periodic self-evaluations of the Board to determine whether it and its committees are functioning effectively, as
well as determining the nature of the evaluation, supervising the conduct of the evaluation; and preparing an assessment of the
Board’s performance to be discussed with the Board;
|
|
·
|
reviewing the adequacy of the Charter and Bylaws and recommending to the Board, as conditions dictate, amendments for consideration
by the stockholders; and
|
|
·
|
reviewing plans for the development, retention and succession of our executive officers.
|
The Nominating and Corporate Governance
Committee is responsible for identifying individuals that the Committee believes are qualified to become Board members, as described
above in the section entitled “Board Structure and Composition.” Although the Nominating and Corporate Governance Committee
has not established a formal policy regarding the consideration of diversity in identifying director nominees, the criteria for
individuals qualified to become Board members as set forth in our Corporate Governance Guidelines includes diversity as a factor
for consideration. The Nominating and Corporate Governance Committee considers candidates proposed by our stockholders and reviews
and evaluates information available to it regarding candidates proposed by stockholders and
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 14
CORPORATE
GOVERNANCE AND RISK MANAGEMENT (continued)
applies the same criteria, and follows
substantially the same process in considering them, as it does in considering other candidates.
The members of our Nominating and Corporate
Governance Committee are Dr. Kumar, Dr. Kompella and Dr. Zhang (Chair). The Board has determined that all Nominating and Corporate
Governance Committee members are independent under the listing standards of Nasdaq.
COMPENSATION
COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
During 2019 and as of the date of this
Proxy Statement, none of the members of the Compensation Committee was or is one of our officers or employees, and none of our
executive officers has served or serves on the compensation committee or board of any company that employed or employs any member
of our Compensation Committee or Board.
BOARD AND STOCKHOLDER MEETING ATTENDANCE
During 2019, the Board of Ocugen met six
times; its Audit Committee met twice; its Compensation Committee met twice; and its Nominating and Corporate Governance Committee
met once. The Board of Histogenics met 20 times and its audit committee met three times.
Each board member of Ocugen attended 75%
or more of the aggregate number of meetings of the Board and of the committees on which he or she served, held during the portion
of the last fiscal year for which he or she was a director or committee member, except for Suha Taspolatoglu who attended 33% of
such meetings. Each of our current directors was appointed to the Board in September 2019 or later and therefore did not attend
any meetings prior to September 2019.
Directors are encouraged, but not required,
to attend our annual stockholder meetings. All of the directors attended the 2019 Annual Meeting except for Suha Taspolatoglu.
CODE
OF CONDUCT
We have a written Code of Conduct that
applies to our directors, officers and employees, including our principal executive officer, principal financial officer, principal
accounting officer or controller, or persons performing similar functions. The Code of Conduct covers fundamental ethical and compliance-related
principles and practices such as accurate accounting records and financial reporting, avoiding conflicts of interest, the protection
and use of our property, compliance with legal and regulatory requirements and internal reporting procedures for violations of
the code. The Code of Conduct is available on our website at www.ocugen.com and any amendments to the Code of Conduct, or any waivers
of its requirements, will be disclosed on our website or in a Current Report on Form 8-K which we will file with the SEC.
Only the Board may waive any specific provision
of this Code of Conduct for directors and executive officers. The compliance officer may waive any specific provision of this Code
of Conduct for employees other than director and executive officers. In the event of an approved waiver involving the conduct of
a director or executive officer, appropriate and prompt disclosure, including disclosure of the reasons for the waiver, must be
made to our stockholders as required by applicable law and stock exchange rules. The Board shall be responsible for monitoring
compliance with the Code of Conduct and shall assess the adequacy of the Code of Conduct periodically and approve any changes to
the Code of Conduct.
FAMILY
RELATIONSHIPS
There are no family relationships among
any of our directors or executive officers.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 15
CORPORATE
GOVERNANCE AND RISK MANAGEMENT (continued)
POLICIES
AND PROCEDURES FOR RELATED PARTY TRANSACTIONS
Our Board has adopted a written related
party transaction policy setting forth the policies and procedures for the review and approval or ratification of related-person
transactions. This policy covers any financial transaction, arrangement or relationship, or any series of similar transactions,
arrangements or relationships, in which we were or are to be a participant, where the amount involved exceeds the lesser of (i)
$120,000 in any twelve-month period or (ii) 1% of the average of our assets at the end of the last two fiscal years and in which
any related person had, has or will have a direct or indirect material interest. Our management is responsible for determining
whether a transaction is a related party transaction subject to our policy, and upon subject determination, is responsible for
disclosing the material facts concerning the transaction and the related party’s interest in our transaction to our Audit
Committee. In reviewing and approving any such transactions, our Audit Committee is tasked to consider all available relevant facts
and circumstances with respect to the transaction and shall evaluate all available options, including ratification, revision or
termination of the transaction. All of the transactions described as Ocugen transactions under “—Certain Relationships
and Related Party Transactions” in this Proxy Statement were either approved or ratified in compliance with the Ocugen related
party transaction policy.
Histogenics
had adopted a related-party transaction policy under which its directors, executive officers and any person who was known to be
the beneficial owner of more than 5% of any class of Histogenics voting securities, including their immediate family members and
affiliates, were not permitted to enter into a related-party transaction with Histogenics without the prior consent of Histogenics’
Audit Committee or another independent committee of the Histogenics Board where it was inappropriate for its Audit Committee to
review such transaction due to a conflict of interest. Any request for Histogenics to enter into a transaction with an executive
officer, director or any of such persons’ immediate family members or affiliates, in which the amount involved exceeded $120,000
must have first been presented to Histogenics’ Audit Committee for review, consideration and approval. All of Histogenics’
directors and executive officers were required to report to its Audit Committee any such related party transaction. In approving
or rejecting the proposed agreement, Histogenics’ Audit Committee was to consider the relevant facts and circumstances available
and deemed relevant to the Audit Committee, including costs and benefits to Histogenics, the terms of the transaction, the availability
of other sources for comparable services or products and, if applicable, the impact on a director’s independence. Histogenics’
Audit Committee was to approve only those agreements that, in light of known circumstances, were not inconsistent with Histogenics’
best interests, as Histogenics’ Audit Committee determined in the good faith exercise of its discretion. All of the transactions
described as Histogenics transactions under “—Certain Relationships and Related Party Transactions” in this Proxy
Statement were either approved or ratified in compliance with the Histogenics related-party transaction policy.
Stockholder Communication
The Board will give appropriate attention
to written communications that are submitted by stockholders and other interested parties and will respond if and as appropriate.
|
How
to
Communicate
with our
Directors
|
By mail:
The
Corporate Secretery, Ocugen, Inc.
5
Great Valley Parkway, Suite 160
Malvern,
PA 19355
|
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 16
DIRECTOR
COMPENSATION
We have designed and implemented
our compensation program for our non-employee directors to attract, motivate and retain individuals who are committed to our values
and goals and who have the expertise and experience that we need to achieve those goals.
INTRODUCTORY
NOTE REGARDING PRESENTATION OF INFORMATION
On September 27, 2019, Histogenics completed
the Merger of Merger Sub with OpCo. At the effective time of the Merger, each Histogenics director resigned and each of the OpCo
directors was appointed to our Board. Accordingly, we have provided compensation disclosure with respect to all directors of Histogenics
that served during 2019 and for those directors of OpCo that were appointed to our Board in connection with the Merger.
director
COMPENSATION PROGRAM
Immediately following the closing of the
Merger and up to December 31, 2019, we did not have a formal director compensation policy in place. In connection with the Merger,
the Histogenics’ director compensation program was suspended. On January 1, 2020, the Board approved a new cash and equity
compensation arrangement for the Company’s non-employee directors. The arrangement has the following features:
|
·
|
Initial Equity Grant. Each non-employee director who joins the Board will receive options
to purchase 54,000 shares of common stock, which will vest monthly over three years, subject to continued service.
|
|
·
|
Annual Equity Grant. Each non-employee director will, subject to continued service, be granted
an annual grant of options to purchase 27,000 shares of common stock. Such options will be granted to each current non-employee
director beginning in 2021 on the date of our annual meeting of stockholders, and will vest at the sooner of the one-year anniversary
of the grant date or the next annual meeting. The strike price for such options will be the closing price of our common stock on
the date of the grant.
|
|
·
|
Cash Retainers. The compensation arrangement provides for annual cash retainers for service
on the Board and committees of the Board, or for service as chair of such committees, as follows:
|
Compensation Category
|
|
Amount
|
|
Annual Base Cash Retainer
|
|
$
|
40,000
|
|
Additional Committee Chair Compensation:
|
|
|
|
|
Audit Committee:
|
|
$
|
17,000
|
|
Compensation Committee:
|
|
$
|
12,500
|
|
Nominating and Corporate Governance Committee:
|
|
$
|
8,000
|
|
|
|
|
|
|
Additional Committee Membership Compensation:
|
|
|
|
|
Audit Committee:
|
|
$
|
8,500
|
|
Compensation Committee:
|
|
$
|
6,250
|
|
Nominating and Corporate Governance Committee:
|
|
$
|
4,000
|
|
SUMMARY
OCUGEN 2019 Director COMPENSATION
Our non-employee directors who were appointed
in connection with the Merger did not receive compensation for their service on the board of directors for the period immediately
following the closing of the Merger on September 27, 2019 and up to December 31, 2019. Dr. Musunuri served as an employee
of Ocugen during 2019, as well as a member of our Board, and he did not receive any additional compensation as a member of our
Board. Dr. Musunuri’s compensation as an employee is described under “Executive Compensation” below.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 17
DIRECTOR
COMPENSATION (continued)
The following table sets forth information
regarding outstanding option awards held by each of our non-employee directors as of December 31, 2019.
|
Option Awards
|
Name
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
|
Option Exercise
Price ($)
|
Option Expiration
Date
|
Uday Kompella Ph.D.
|
7,191
|
—
|
1.88
|
August 25, 2025(3)
|
Ramesh Kumar, Ph.D.
|
—
|
—
|
|
|
Frank Leo (1)
|
14,382
|
—
|
2.94
|
June 15, 2026 (3)
|
Manish Potti
|
—
|
—
|
|
|
Suha Taspolatoglu, M.D.
|
—
|
—
|
|
|
Junge Zhang, Ph.D.
|
—
|
—
|
|
|
Kirsten Castillo (2)
|
—
|
—
|
|
|
Prabhavathi Fernandes, Ph.D. (2)
|
—
|
—
|
|
|
|
(1)
|
Mr. Leo resigned from the Board as of April 3, 2020.
|
|
|
|
|
(2)
|
Ms. Castillo and Dr. Fernandes were appointed to the Board on April 5, 2020.
|
|
|
|
|
(3)
|
Options vested immediately upon date of grant.
|
SUMMARY
HISTOGENICS 2019 DIRECTOR COMPENSATION
The following table provides summary information
regarding 2019 compensation to Histogenics’ non-employee directors. Each of the directors listed below resigned from our
Board in connection with the Merger, except for Dr. Kong, Mr. Johnson and Messrs. Lewis and Rakin, who resigned from the Histogenics
board of directors on February 22, 2019, February 27, 2019 and June 20, 2019, respectively.
Name(1)
|
Fees Earned or Paid
in
Cash ($)
|
Option Awards
($)
|
Stock Awards
($)
|
Total ($)
|
Garheng Kong, M.D., Ph.D.
|
15,118
|
-
|
-
|
15,118
|
Joshua Baltzell
|
64,554
|
-
|
-
|
64,554
|
David Gill
|
32,500
|
-
|
-
|
32,500
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 18
DIRECTOR
COMPENSATION (continued)
John Johnson
|
13,209
|
-
|
-
|
13,209
|
Michael Lewis
|
21,875
|
-
|
-
|
21,875
|
Kevin Rakin
|
24,375
|
-
|
-
|
24,375
|
Susan Washer
|
37,662
|
-
|
-
|
37,662
|
David C. Hood(2)
|
15,000
|
-
|
-
|
15,000
|
|
(1)
|
Mr. Gridley was not eligible in 2019 to receive any compensation from Histogenics for his service as a director pursuant to Histogenics’ Amended and Restated Compensation Program for Non-Employee Directors because Mr. Gridley was an employee of Histogenics.
|
|
|
|
|
(2)
|
Mr. Hood was appointed to the Histogenics board of directors on July 19, 2019 and resigned on September 27, 2019.
|
Prior to the closing of the Merger, each
unexpired and unexercised option to purchase Histogenics common stock, whether vested or unvested, was cancelled effective as of
immediately prior to the effective time of the Merger. Accordingly, there are no outstanding equity incentive plan awards for Histogenics
non-employee directors as of December 31, 2019.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 19
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
General
The Audit Committee of the Board has appointed
and engaged Ernst & Young LLP to serve as our independent registered public accounting firm to audit the consolidated financial
statements of the Company and its subsidiaries for the 2020 fiscal year, and to perform audit-related services. Ernst & Young
LLP had audited OpCo’s financial statements since 2018. Grant Thornton LLP had served as the Company’s independent
registered public accounting firm since 2012.
Change
in Certifying Accountant
On September 27, 2019, the Audit Committee
approved the termination the Company’s engagement with Grant Thornton LLP. The Company notified Grant Thornton LLP on October
9, 2019 that it would be dismissed as the Company’s independent registered public accounting firm effective immediately.
Grant Thornton LLP’s reports on the
Company’s financial statements for the years ended 2017 and 2018 did not contain an adverse opinion or disclaimer of opinion
and were not qualified or modified as to uncertainty, audit scope or accounting principles. During the Company’s fiscal years
ended 2017 and 2018, and the subsequent interim period through October 9, 2019, there were no “reportable events” within
the meaning of Item 304(a)(1)(v) of Regulation S-K and the related instructions thereto.
On September 27, 2019, the Audit Committee
approved the appointment of Ernst & Young LLP as the Company’s new independent registered public accounting firm, effective
upon the dismissal of Grant Thornton LLP.
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM FEES
Current
Independent Registered Public Accounting Firm Fees
The Audit Committee works with our management
in order to negotiate appropriate fees with its independent registered public accounting firm and is ultimately responsible for
approving those fees. The following is a summary and description of fees for services provided by the independent registered public
accounting firm, Ernst & Young LLP, in fiscal years 2019 and 2018 (including the financial statements of OpCo). Other than
as set forth below, no professional services were rendered or fees billed by Ernst & Young LLP during fiscal years 2018 and
2019.
Service
|
2019
|
2018
|
Audit Fees
|
$827,859
|
$345,171
|
Audit-Related Fees
|
—
|
—
|
Tax Fees
|
—
|
$37,595
|
All Other Fees
|
—
|
—
|
Total
|
$827,859
|
$382,766
|
“Audit Fees” means the
fees billed or incurred by Ernst & Young LLP for professional services rendered in connection with the annual audit and quarterly
reviews of our consolidated financial statements for the years ended December 31, 2019 and 2018, and the fees billed in connection
with the filing of registration statements with the SEC.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 20
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM (continued)
“Audit-Related Fees”
consisted of amounts paid to Ernst & Young LLP for assurance and related services reasonably related to the performance of
the audit or review of the financial statements and that are not reported under the Audit Fees category. There were no such fees
incurred during the years ended December 31, 2019 or 2018.
“Tax Fees” consisted
of amounts paid to Ernst & Young LLP for tax compliance and consulting. There were no such fees incurred during the year ended
December 31, 2019.
Other Auditors
The following table presents the fees for
professional services earned by Grant Thornton LLP, Histogenics’ independent registered public accounting firm, for services
rendered for the years ended December 31, 2019 and 2018, respectively.
Service
|
2019
|
2018
|
Audit Fees
|
$110,725
|
$420,548
|
Audit-Related Fees
|
—
|
—
|
Tax Fees
|
—
|
—
|
All Other Fees
|
—
|
—
|
Total
|
$110,725
|
$420,548
|
“Audit Fees” means the
fees billed or incurred by Grant Thornton LLP for professional services rendered in connection with (1) the quarterly reviews of
Histogenics’ consolidated financial statements during 2019, (2) the annual audit and quarterly reviews of Histogenics’
consolidated financial statements for the year ended December 31, 2018, (3) consents issued for registration statements filed
with the SEC, and (4) the use of Grant Thornton LLP’s online research tool for 2018.
All fees described above were pre-approved
by the Histogenics Audit Committee in accordance with applicable SEC requirements.
AUDIT
COMMITTEE PRE-APPROVAL POLICIES AND PROCEDURES
The Audit Committee is responsible for
appointing, setting compensation for, and overseeing the work of the independent registered public accounting firm. The Audit Committee’s
charter establishes a policy that all audit and permissible non-audit services provided by the independent registered public accounting
firm will be pre-approved by the Audit Committee.
The Audit Committee has adopted a policy
to pre-approve all audit and permissible non-audit services rendered by Ernst & Young LLP, our independent registered public
accounting firm. The Audit Committee can pre-approve specified services in defined categories of audit services, and audit-related
services up to specified amounts as part of the Audit Committee’s approval of the scope of the engagement of Ernst &
Young LLP or on an individual case-by-case basis before Ernst & Young LLP is engaged to provide a service. Ernst & Young
LLP has not been engaged to perform any non-audit services or tax services.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 21
AUDIT
COMMITTEE REPORT
The Audit Committee has reviewed and discussed
the audited consolidated financial statements for the fiscal year ended December 31, 2019, with management and our independent
registered public accounting firm, Ernst & Young LLP. The Audit Committee has discussed with Ernst & Young LLP the matters
required to be discussed by the applicable auditing standards. The Audit Committee has also received the written disclosures and
the letter from Ernst & Young LLP required by applicable requirements of the Public Company Accounting Oversight Board regarding
Ernst & Young LLP’s communication with the Audit Committee concerning independence and has discussed with Ernst &
Young LLP the firm’s independence. Based on the foregoing, the Audit Committee recommended to the Board of Directors that
the audited consolidated financial statements be included in our Annual Report on Form 10-K for the fiscal year ended December
31, 2019, for filing with the Securities and Exchange Commission.
Ocugen, Inc.
Audit Committee
Ramesh Kumar, Chair
Manish Potti
Suha Taspolatoglu, M.D.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 22
EXECUTIVE
OFFICERS
The following table sets forth the name,
position and age of each of our executive officers as of the date of this Proxy Statement:
Name
|
|
Position
|
Age
|
Shankar Musunuri, Ph.D., MBA
|
|
Chief Executive Officer
|
56
|
Sanjay Subramanian
|
|
Chief Financial Officer, Chief Accounting Officer and Treasurer
|
44
|
Rasappa Arumugham, Ph.D.
|
|
Chief Scientific Officer
|
69
|
Vijay Tammara, Ph.D.
|
|
Senior Vice President, Regulatory & Quality
|
61
|
Shankar Musunuri, Ph.D., MBA –
For biographical information for Dr. Musunuri, see “Board of Directors – Continuing Directors.”
Sanjay Subramanian, MBA,
has served as our Chief Financial Officer, Chief Accounting Officer and Treasurer since October 2019. Prior to joining us, Mr. Subramanian
worked at Aralez Pharmaceuticals Inc., a specialty pharmaceutical company, where he served as Chief Financial Officer from January 2019
through September 2019, and prior to that as Vice President and Treasurer from October 2015. Aralez (renamed Old API Wind-Down
Ltd. in February 2019) voluntarily commenced restructuring proceedings in Canadian Court and its U.S.-based subsidiaries filed
voluntary petitions for relief under Chapter 11 of the U.S. Bankruptcy Code in August 2018, which became effective in May 2019.
He was the Director of Treasury at Bausch Health Companies, Inc., a specialty pharmaceutical company, from 2013 to October
2015. Mr. Subramanian started his finance career in 2008 at General Motors Company where he held various positions before
ending as the Treasurer of GM Korea in 2012. He obtained his MBA from MIT Sloan School of Management, a Master of Science from
both MIT and The Ohio State University and a Bachelor of Technology from Indian Institute of Technology.
Rasappa Arumugham, Ph.D., has served
as our Chief Scientific Officer since September 2019. Dr. Arumugham has served as Vice President, Research and Development of OpCo,
our wholly owned subsidiary, since March 2017 and had served as the Chief Scientific Officer of OpCo since March 2018. Prior to
joining OpCo, Dr. Arumugham worked at Soligenix, Inc., a late stage biopharmaceutical company, as Vice President, Biopharmaceutical
Development from August 2014 to March 2017 and also served as the Principal Investigator. Previously, he served as the Head of
Microbial Analytics at the Manufacturing Division at Merck & Co., Inc. from December 2011 to September 2013. Prior to joining
Merck, Dr. Arumugham spent 25 years in various biologics/vaccines research and development positions of increasing responsibilities
at Pfizer Inc. and Wyeth. Dr. Arumugham earned his Ph.D. and MSc in Biochemistry and BSC in Chemistry from the University of Madras,
India. As previously disclosed, as part of a reduction in force related to the Company’s shift in focus towards its gene
therapy platform, Dr. Arumugham was notified of termination of his employment with the Company effective as of December 31, 2020.
Vijay Tammara,
Ph.D., served as our Vice President, Regulatory & Quality from September 2019 until his promotion to Senior Vice
President, Regulatory & Quality on January 1, 2020. Dr. Tammara has served as Vice President, Regulatory &
Quality of OpCo, our wholly owned subsidiary, since August 2017. Prior to joining OpCo, Dr. Tammara worked at VRT Pharma
Consulting LLC, a business consulting company, as CEO and President from July 2014 to August 2017. Dr. Tammara previously
served as VP Regulatory Affairs at Nuron Biotech Inc. from September 2010 to August 2013, Director of Regulatory Affairs at
Merck & Co., Inc. from March 2004 to September 2010, Senior Associate Director at Wyeth Pharmaceuticals from September
2002 to March 2004, and Assistant Director at Sanofi-Synthelabo in Worldwide Regulatory Affairs from March 2000 to September
2000. Dr. Tammara received his Bachelor of Pharmacy from Kakatiya University, Master’s in Pharmacy from Nagpur
University, and Ph.D. in Pharmaceutics from the University of Louisiana, Monroe, LA.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 23
EXECUTIVE
COMPENSATION
Introductory
note regarding presentation of information
On September 27, 2019, Histogenics completed
the Merger of Merger Sub with OpCo. At the effective time of the Merger, the management of Histogenics was replaced with the management
of OpCo. Accordingly, we have included compensation information with respect to Histogenics’ “named executive officers”
under SEC rules for 2018 and 2019 and with respect to the executive officers of OpCo that would have been “named executive
officers” of OpCo for 2019 (such executive officers are referred to as OpCo’s named executive officers).
OCUGEN
EXECUTIVE COMPENSATION
Summary Compensation Table
In connection with the Merger and since
the closing date, we have been led by our senior management team from OpCo, who became the management of Ocugen. The following
table shows for the years ended December 31, 2019, and 2018, compensation awarded to or paid to, or earned by, our Chief Executive
Officer and our two other most highly compensated executive officers at December 31, 2019 (collectively, the “Named Executive
Officers”).
Name and
Principal
Position
|
Year
|
Salary ($)
|
Bonus ($)(1)
|
Option
Awards
($)(2)
|
All Other Compensation
($)(3)
|
Total
Compensation
($)
|
Shankar Musunuri (4)
|
2019
|
420,000
|
141,120
|
—
|
11,200
|
572,320
|
Chief Executive Officer
|
2018
|
420,000
|
–
|
—
|
11,000
|
431,000
|
Daniel Jorgensen
(4)(5)
|
2019
|
341,250
|
79,853
|
—
|
11,200
|
432,303
|
Chief Medical Officer
|
2018
|
341,250
|
–
|
122,295
|
11,000
|
474,545
|
Rasappa Arumugham
(4)(5)
|
2019
|
287,000
|
67,158
|
—
|
11,200
|
365,358
|
Chief Scientific Officer
|
2018
|
285,500
|
–
|
122,295
|
11,000
|
418,795
|
(1)
|
|
The amounts represent annual performance cash bonuses earned in 2019 and paid in the following year.
|
(2)
|
|
Amounts represent the grant date fair value
of option awards, computed in accordance with Accounting Standards Codification Topic 718: Compensation—Stock Compensation
(“ASC Topic 718”).
|
(3)
|
|
Amounts in this column include matching
contributions under the Company’s 401(k) retirement plan paid during the fiscal year.
|
(4)
|
|
Shankar Musunuri, Daniel Jorgensen and
Rasappa Arumugham each commenced service with the Company on September 27, 2019 upon the closing of the Merger. Amounts disclosed
for such officers include amounts paid for service with OpCo during the fiscal year ended December 31, 2019.
|
(5)
|
|
As previously disclosed, as part of a reduction in force related to the Company’s shift in focus towards its gene therapy platform, Dr. Jorgensen was notified of termination of his employment with the Company effective as of July 15, 2020 And Dr. Arumugham was notified of termination of his employment with the Company effective as of December 31, 2020.
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 24
EXECUTIVE
COMPENSATION (continued)
Narrative Explanation of Certain Aspects of the Summary
Compensation Table
Base Salaries
We
use base salaries to recognize the experience, skills, knowledge and responsibilities required of all employees, including the
Named Executive Officers. Base salaries are reviewed annually, typically in connection with the annual performance review process,
and adjusted from time to time to take into account market levels, individual responsibilities, performance and experience. In
December 2019, the Ocugen Board and Compensation Committee authorized adjustments to the executive
management salaries to bring base salaries closer to the 50th percentile of market
data for publicly traded companies. As of January 1, 2020, Dr. Musunuri’s,
Dr. Jorgensen’s and Dr. Arumugham’s base salaries were increased to $500,000,
$414,500 and $353,800, respectively.
Annual Cash Bonuses
We do not maintain a
formal performance-based cash bonus plan, but our employment agreements with the Named Executive
Officers provide that the executive may be eligible to earn an annual performance bonus of up to a targeted percentage of the executive’s
base salary, further described under the heading “—Ocugen Employment Agreements” below. From time to time, our
Board may approve annual bonuses for the Named Executive Officers based on individual performance, company performance or as otherwise
determined to be appropriate.
Equity Compensation
For 2019, we did not have a formal policy
with respect to the grant of equity incentive awards to the Named Executive Officers, or any formal equity ownership guidelines
applicable to them. However, we believe that equity grants provide the Named Executive Officers with a strong link to long-term
performance and retention incentives, creates an ownership culture and helps to align the interests of executive officers and stockholders.
Accordingly, our Board periodically reviews the equity incentive compensation of the Named Executive Officers and from time to
time may grant equity incentive awards to them.
Our practice has been to grant stock option
awards to each executive officer at the start of employment and on an annual basis for performance and retention purposes. Stock
options may also be granted for accomplishments of specific company milestones. Stock options are awarded on the date our Board
approves the grant. The option exercise price and grant date fair value are set based on the per-share value on the date of grant.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 25
EXECUTIVE
COMPENSATION (continued)
Outstanding
Equity Awards at Fiscal Year-End for 2019
The following table summarizes the number
of shares of our common stock underlying outstanding equity incentive plan awards for each of the Named Executive Officers as of
December 31, 2019 and reflect the conversion and reverse stock split that occurred in connection with the Merger.
|
Option Awards
|
Name
|
Vesting
Commencement
Date
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable (1)
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable (1)
|
Option
Exercise
Price ($)
|
Option Expiration
Date
|
Shankar Musunuri
|
08/26/2015
|
86,292
|
—
|
1.88
|
08/25/2025
|
Daniel Jorgensen
|
04/17/2017
|
17,259
|
8,629
|
6.30
|
04/16/2027
|
12/15/2017
|
4,475
|
2,237
|
7.56
|
12/14/2027
|
|
08/13/2018
|
799
|
1,598
|
12.18
|
08/12/2028
|
|
12/07/2018
|
3,196
|
6,392
|
13.52
|
12/06/2028
|
Rasappa Arumugham
|
03/22/2017
|
15,341
|
7,670
|
6.30
|
03/21/2027
|
|
12/15/2017
|
6,392
|
3,196
|
7.56
|
12/14/2027
|
|
08/13/2018
|
799
|
1,598
|
12.18
|
08/12/2028
|
|
12/07/2018
|
3,195
|
6,393
|
13.52
|
12/06/2028
|
|
(1)
|
Each option award was granted pursuant
to OpCo’s 2014 Stock Option Plan. The shares subject to each option vest in three equal installments on the corresponding
day of each anniversary of the vesting commencement date.
|
Ocugen Employment Agreements
OpCo had
entered into employment agreements with each Drs. Musunuri, Jorgensen and Arumugham. Effective January 1, 2020, the Board of the
Company amended and restated each of those employment agreements as described below.
Shankar
Musunuri
Dr.
Musunuri serves as our Chief Executive Officer and Chairman of our Board
pursuant to an employment agreement with Ocugen dated as of January 1, 2020, which amended
and restated previous employment agreements. In January 2020, Dr. Musunuri’s base salary was increased from $420,000 to $500,000
per annum, which is subject to annual review and adjustment by our compensation committee. In addition, Dr. Musunuri is eligible
to receive a discretionary bonus in a target amount of 50% of his annual base salary, as determined by our compensation committee
in its sole discretion.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 26
EXECUTIVE
COMPENSATION (continued)
Subject to his
execution and nonrevocation of a release of claims in Ocugen’s favor, in the event of the termination of Dr. Musunuri’s
employment by Ocugen without cause or by him for good reason, each as defined in his employment agreement, Dr. Musunuri will be
entitled to (i) continued payment of his then-current annual base salary for twenty-four months and (ii) payment of his COBRA
premiums for continued health benefit coverage for up to twenty-four months.
Further, pursuant
to his amended and restated employment agreement, in the event of a termination of his employment three months prior to or 12 months
following a Change of Control (as defined in the amended and restated employment agreement) by us without cause or by Dr. Musunuri
for good reason (each as defined in the amended and restated employment agreement), Dr. Musunuri is also entitled to (i) a lump
sum payment equal to 200% of his target bonus; and (ii) full vesting acceleration of unvested equity awards.
Daniel
Jorgensen
Until
his termination as of July 15, 2020, Dr. Jorgensen served as our Chief Medical Officer pursuant
to an employment agreement with Ocugen dated as of January 1, 2020, which amended and restated a prior employment agreement. In
January 2020, Dr. Jorgensen’s base salary was increased from $341,250 per annum to $414,500 per annum, which was subject
to annual review and adjustment by our compensation committee. In addition, Dr. Jorgensen
was eligible to receive a discretionary bonus in a target amount of 40% of his annual base salary, as determined by our compensation
committee in its sole discretion.
Subject
to his execution and nonrevocation of a release of claims in Ocugen’s favor, in the event of the termination of Dr. Jorgensen’s
employment by Ocugen without cause or by him for good reason, each as defined in his employment agreement, Dr. Jorgensen will be
entitled to (i) continued payment of his then-current annual base salary for twelve months
and (ii) payment of his COBRA premiums for continued health benefit for up to twelve months.
Dr. Jorgensen’s
termination was without cause within the meaning of his amended and restated employment agreement with the Company (which has previously
been filed with the Securities and Exchange Commission), and accordingly he received the severance benefits as set forth therein.
Rasappa
Arumugham
Dr.
Arumugham serves as our Chief Scientific Officer pursuant to an employment agreement with Ocugen dated as of January 1, 2020, which
amended and restated previous employment agreements. In January 2020, Dr. Arumugham’s base salary was increased from
$287,000 to $353,800 per annum, which is subject to annual review and adjustment by our compensation
committee. In addition, Dr. Arumugham is eligible to receive a discretionary bonus in a target amount of 35% of his annual base
salary, as determined by our compensation committee in its sole discretion.
Subject to his
execution and nonrevocation of a release of claims in Ocugen’s favor, in the event of the termination of Dr. Arumugham’s
employment by Ocugen without cause or by him for good reason, each as defined in his employment agreement, Dr. Arumugham will be
entitled to (i) continued payment of his then-current annual base salary for twelve months and (ii) payment of his COBRA premiums
for continued health benefit coverage for up to twelve months.
As previously disclosed, as part
of a reduction in force related to the Company’s shift in focus towards its gene therapy platform, Dr. Arumugham was notified
of termination of his employment with the Company effective as of December 31, 2020. Dr. Arumugham’s
termination is “without cause” within the meaning of his amended and restated employment agreement with the Company
(which has previously been filed with the Securities and Exchange Commission), and accordingly he will be entitled to receive,
upon departure, the severance benefits as set forth therein.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 27
EXECUTIVE
COMPENSATION (continued)
Further, pursuant
to his amended and restated employment agreement, in the event of a termination of his employment three months prior to or 12 months
following a Change of Control (as defined in the amended and restated employment agreement) by us without cause or by Dr. Arumugham
for good reason (each as defined in the amended and restated employment agreement), Dr. Arumugham is also entitled to (i) a lump
sum payment equal to 100% of his target bonus; and (ii) full vesting acceleration of unvested equity awards.
Histogenics
EXECUTIVE COMPENSATION
The following table sets forth information
for the years ended December 31, 2019 and 2018, concerning the compensation awarded to or paid to, or earned by, Histogenics’
principal executive officer and each of Histogenics’ two other most highly compensated executive officers who were serving
Histogenics prior to the Merger.
Name and
Principal
Position
|
Year
|
Salary ($)
|
Bonus
($)
|
Option
Awards
($)(1)
|
All Other
Compensation
($)
|
Total ($)
|
Adam Gridley (2)
|
2019
|
99,672
|
191,200 (4)
|
—
|
478,065 (5)
|
768,937
|
Former President
|
2018
|
478,065
|
—
|
186,056
|
—
|
664,121
|
Stephen Kennedy (2)
|
2019
|
81,971
|
156,750 (6)
|
—
|
294,114 (7)
|
532,835
|
Former Executive Vice President and Chief Operating Officer
|
2018
|
391,875
|
—
|
74,156
|
—
|
466,031
|
Donald Haut, Ph.D. (3)
|
2019
|
33,553
|
94,354 (8)
|
—
|
283,061 (9)
|
410,968
|
Former Chief Business Officer
|
2018
|
377,415
|
—
|
40,436
|
—
|
417,851
|
|
(1)
|
Represents the aggregate grant date fair value of option awards, computed in accordance with Financial ASC Topic 718. See Note 11 to Histogenics’s consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2018 for a discussion of the assumptions made by Histogenics in determining the fair value of equity awards.
|
|
|
|
|
(2)
|
Messrs. Gridley’s and Kennedy’s employment with Histogenics terminated on March 22, 2019 as part of Histogenics’ continuing strategic alternative review process. Messrs. Gridley and Kennedy retained their statutory titles and continued service in consulting capacities until the closing of the Merger. Mr. Gridley also continued service with Histogenics as a director until the closing of the Merger.
|
|
|
|
|
(3)
|
Dr. Haut’s employment with Histogenics terminated on January 23, 2019.
|
|
|
|
|
(4)
|
The amount in this column for Mr. Gridley represents the payment of a retention bonus under the Amended and Restated Executive Officer Retention Bonus Plan implemented in January 2019, pursuant to a separation agreement by and between us and Mr. Gridley.
|
|
|
|
|
(5)
|
The amount in this column for Mr. Gridley represents the payment of a one-time lump sum payment of $478,065, less all applicable withholdings, pursuant to a separation agreement by and between us and Mr. Gridley.
|
|
|
|
|
(6)
|
The amount in this column for Mr. Kennedy represents the payment of a retention bonus under the Amended and Restated Executive Officer Retention Bonus Plan implemented in January 2019, pursuant to a separation agreement by and between us and Mr. Kennedy.
|
|
(7)
|
The amount in this column for Mr. Kennedy represents the payment of (a) a one-time lump sum payment of $293,906, less all applicable withholdings, pursuant to a separation agreement by and between us and Mr.
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 28
EXECUTIVE
COMPENSATION (continued)
|
|
Kennedy; and (b) $208.06, representing the employer portion of the monthly premium under COBRA for March and April 2019.
|
|
(8)
|
The amount in this column for Dr. Haut represents the payment of a retention bonus under the Amended and Restated Executive Officer Retention Bonus Plan implemented in January 2019, pursuant to a separation agreement by and between us and Dr. Haut.
|
|
|
|
|
(9)
|
The amount in this column for Dr. Haut represents the payment of a one-time lump sum payment of $283,061, less all applicable withholdings, pursuant to a separation agreement by and between us and Dr. Haut.
|
Narrative Explanation of Certain Aspects of the Summary
Compensation Table
The compensation paid
to Histogenics’ named executive officers during the year ended December 31, 2019 consisted of the following components (in
addition to severance benefits described below under “Histogenics Employment Agreements and Severance Benefits”):
|
·
|
Performance-based cash bonuses; and
|
|
·
|
Long-term incentive compensation in the form of stock options.
|
Base Salaries
For
the year ended December 31, 2019, the annual base salaries for Histogenics’ named executive officers were as follows: Mr.
Gridley – $478,065; Mr. Kennedy – $391,875; and Dr. Haut – $377,415. Messrs. Gridley’s and Kennedy’s
employment with Histogenics terminated on March 22, 2019, and Dr. Haut’s employment with Histogenics terminated on January
23, 2019. In addition to actions taken with respect to hiring new, or promoting existing, executive officers, Histogenics’
Compensation Committee approved the annual base salaries for Histogenics’ named executive officers for the fiscal year ended
December 31, 2019.
Performance-Based Bonuses
Pursuant to employment agreements with
Messrs. Gridley and Kennedy and Dr. Haut, each named executive officer was eligible to earn an annual bonus equal to a specified
percentage of his base salary (60% with respect to Mr. Gridley, 40% with respect to Mr. Kennedy and 35% with respect to Dr.
Haut). The actual amount of bonus earned was determined by Histogenics’ Board based on performance and the officer’s
achievement of objectives and goals determined by Histogenics’ Chief Executive Officer (or, with respect to Mr. Gridley,
the Histogenics Board). No performance-based bonuses were awarded to Histogenics’ named executive officers for the year ended
December 31, 2019.
Long-Term Incentive Compensation
Histogenics historically offered stock
options to its employees, including its named executive officers, as the long-term incentive component of Histogenics’ compensation
program. Histogenics stock options allowed its employees to purchase shares of Histogenics common stock at a price equal to the
fair market value of Histogenics common stock on the date of grant. Histogenics stock options generally vested as to 25% of the
total number of option shares on the first anniversary of the award and in equal monthly installments over the following 36 months.
Histogenics Outstanding Equity Awards
at Fiscal Year-End for 2019
Prior to the closing of the Merger, each
unexpired and unexercised option to purchase Histogenics common stock, whether vested or unvested, was cancelled effective as of
immediately prior to the effective time of the Merger. Accordingly, there are no outstanding equity incentive plan awards for Histogenics
named executive officers as of December 31, 2019.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 29
EXECUTIVE
COMPENSATION (continued)
Histogenics Employment Agreements
and Severance Benefits
Adam
Gridley
In April 2014,
Histogenics entered into a letter agreement with Adam Gridley, under which Mr. Gridley agreed to become Histogenics’ president
and chief executive officer, effective as of May 12, 2014. Under this agreement, Mr. Gridley’s base salary for 2019 was $478,065
per year. Mr. Gridley was eligible to receive an annual cash bonus with a target equal to 60% of his base salary, subject to satisfaction
of objective or subjective criteria established by the Histogenics Board.
Pursuant to
a reduction in force approved by the Histogenics Board in March 2019, Mr. Gridley’s employment with Histogenics terminated
effective March 22, 2019. Mr. Gridley retained his statutory titles of president, treasurer and secretary of Histogenics while
he provided consulting services to Histogenics, and remained a director of Histogenics until September 27, 2019. In connection
with the execution of the separation agreement entered into between the Histogenics and Mr. Gridley in connection with his termination,
Mr. Gridley received (i) $478,065 and (ii) payment of monthly COBRA premiums until the earlier of 12 months, the expiration
of COBRA continuation coverage and the date when Mr. Gridley is offered substantially equivalent health insurance in connection
with new employment or self-employment. Mr. Gridley also received $191,200 pursuant to the Histogenics’ Amended and Restated
Executive Officer Retention Bonus Plan then in effect. Histogenics and Mr. Gridley also entered into a consulting agreement pursuant
to which Mr. Gridley provided consulting services to Histogenics through June 30, 2019 for an hourly fee of $250.
In connection
with the closing of the Merger, all of Mr. Gridley’s options to purchase Histogenics shares were cancelled.
Stephen
Kennedy
In October 2017,
Stephen Kennedy was promoted to Chief Operating Officer of Histogenics. In connection with this promotion, Histogenics entered
into an amended and restated employment agreement with Mr. Kennedy. Under this amended agreement, Mr. Kennedy’s base salary
for 2019 was $391,875. Mr. Kennedy was eligible to receive an annual cash bonus equal to 40% of his base salary, subject to satisfaction
of objective or subjective criteria established by the Histogenics Board.
Pursuant to
a reduction in force approved by the Histogenics Board in March 2019, Mr. Kennedy’s employment with Histogenics terminated
effective March 22, 2019. In connection with the execution of the separation agreement entered into between Histogenics and Mr.
Kennedy, Mr. Kennedy received (i) $293,906 and payment of monthly COBRA premiums until the earlier of 12 months, the expiration
of COBRA continuation coverage and the date when Mr. Kennedy is offered substantially equivalent health insurance in connection
with new employment or self-employment. Mr. Kennedy also received $156,750 pursuant to the Histogenics’ Amended and Restated
Executive Officer Retention Bonus Plan then in effect. Histogenics and Mr. Kennedy also entered into a consulting agreement pursuant
to which Mr. Kennedy provided consulting services to Histogenics through June 30, 2019 for an hourly fee of $220.
In connection
with the closing of the Merger, on September 27, 2019 all of Mr. Kennedy’s outstanding and unexercised options to purchase
Histogenics shares were cancelled.
Donald
Haut, Ph.D.
In June 2017,
Histogenics entered into an employment agreement with Donald Haut, Ph.D. in connection with his appointment as Histogenics’
Chief Business Officer. Under this agreement, Dr. Haut’s base salary for 2019 was $377,415. Dr. Haut was eligible to receive
an annual cash bonus with a target amount equal to 35% of his base salary, subject to satisfaction of objective or subjective criteria
established by the Histogenics Board.
Dr. Haut was
terminated in connection with a reduction in force implemented in January 2019. On January 23, 2019, Histogenics and Dr. Haut entered
into a Separation Agreement pursuant to which Dr. Haut received (i) $283,061
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 30
EXECUTIVE
COMPENSATION (continued)
and (ii) payment of monthly
COBRA premiums until the earliest of 9 months, the expiration of COBRA continuation coverage or the date Dr. Haut is offered substantially
equivalent health insurance coverage in connection with new employment or self-employment. Dr. Haut also received $94,354
pursuant to the Histogenics’ Amended and Restated Executive Officer Retention Bonus Plan then in effect and an additional
nine months of vesting for all outstanding options at the time of separation.
In connection
with the closing of the Merger, on September 27, 2019, all of Dr. Haut’s outstanding and unexercised options to purchase
Histogenics shares were cancelled.
Histogenics Change in Control Benefits
Pursuant to
the employment agreements in effect prior to the Merger, which, as described above, were each terminated in 2019, in the event
that Histogenics experienced a change in control and within twelve months after such change in control, a named executive officer
was terminated by Histogenics without cause or such individual resigned for good reason, then such individual’s options would
become fully vested and exercisable. For purposes of the stock option agreements, change in control meant an acquisition by any
individual, entity or group of 50% or more of Histogenics’ voting stock, certain changes in the composition of the Histogenics
Board, Histogenics’ merger, consolidation, liquidation, dissolution or sale of all or substantially all of Histogenics’
assets.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 31
CERTAIN
RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Our Board has
adopted a written related party transaction policy setting forth the policies and procedures for the review and approval or ratification
of related-person transactions. For more information regarding our related party transactions policy, see “Corporate Governance
and Risk Management – Policies and Procedures for Related Person Transactions” above.
The board of
directors of Histogenics had adopted the Histogenics Related Party Transaction Policy. For more information regarding Histogenics’
Related Party Transaction Policy see “Corporate Governance and Risk Management – Policies and Procedures for Related
Party Transactions” above.
Described below are any transactions occurring
since January 1, 2018 and any currently proposed transactions to which either we were a party and in which
|
•
|
the lesser of $120,000 or 1% of the average of the total assets at year-end
for the last two completed fiscal years; and
|
|
•
|
a director, executive officer, holder of more than 5% of our outstanding
capital stock or any member of such person’s immediate family had or will have a direct or indirect material interest, other
than the compensation, termination and change of control arrangements that are described under the section titled “Executive
Compensation.”
|
The historical share and per
share amounts set forth below do not reflect the reverse stock split that occurred in connection with the Merger.
2018 and 2019 Convertible
Promissory Note Financing
From January 2018 through February
2019, OpCo issued an aggregate principal amount of $8.75 million of convertible promissory notes that accrued interest at a rate
of 5% per annum (the “2018 Notes”). In connection with the April 2019 common stock issuance described below, all of
the 2018 Notes, including all principal and accrued interest were converted into 2,195,157 shares of OpCo common stock at a conversion
price of $4.165 per share. The table below sets forth the principal amount of the 2018 Notes purchased by related parties as well
as the number of shares of OpCo common stock acquired by each such related party upon conversion of the 2018 Notes:
Participants
|
Principal Amount of
Notes Purchased ($)
|
OpCo Shares of Common
Stock Issued Upon
Conversion
|
JSC “Lancaster Group Kazakhstan”
|
$2,500,000
|
637,755
|
Abdi Ibrahim Uluslararasi Ilac Yaturmlari Sanayi ve Ticaret A.S.(1)
|
$2,500,000
|
637,755
|
Bharath R. Potti (2)
|
$200,000
|
49,874
|
Manish Potti
|
$700,000
|
174,675
|
Martin Coyne (3)
|
$150,000
|
36,615
|
Vinayak Potti (4)
|
$100,000
|
24,510
|
Sreekanth Madathil (5)
|
$50,400
|
12,353
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 32
CERTAIN
RELATIONSHIPS AND RELATED PARTY TRANSACTIONS (continued)
|
(1)
|
Suha Taspolatoglu, M.D., one of our directors,
is the chief executive officer of Abdi Ibrahim Ilac Sanayi ve Ticaret A.S.
|
|
(2)
|
Bharath Potti is the brother of Manish Potti, one of our directors.
|
|
(3)
|
Martin Coyne served as a director of OpCo until June 2019.
|
|
(4)
|
Vinayak Potti is the cousin of Manish Potti, one of our directors.
|
|
(5)
|
Sreekanth Madathadil is the cousin of Manish Potti, one of our directors.
|
April 2019
Common Stock Financing
In April 2019,
each of JSC “Lancaster Group Kazakhstan” and Abdi Ibrahim Uluslararasi Ilac Yaturmlari Sanayi ve Ticaret A.S. purchased
84,034 shares of OpCo common stock at a per share price of $5.95 for an aggregate purchase price of $1.0 million.
February
2019 Repricing and Exercise of Warrants
In September
2016, Histogenics entered into a securities purchase agreement with certain institutional and accredited investors (the “Securities
Purchase Agreement”) for the sale and issuance of 2,596,059 shares of Histogenics common stock (the “Common Shares”)
and 24,158.8693 shares of Histogenics Series A Convertible Preferred Stock (the “Preferred Stock,” and such shares,
the “Preferred Shares”), which Preferred Shares were convertible into an aggregate of 10,737,275 shares of Histogenics
common stock, for total consideration of approximately $30,000,000 (the “Private Placement”).
As part of the
Private Placement, Histogenics provided each purchaser 100% warrant coverage based on an as-converted number of shares of Histogenics
common stock issued and issuable upon conversion of the Preferred Shares plus the Common Shares and accordingly issued the investors
warrants (the “2016 Warrants”). The exercise price of the 2016 Warrants was $2.25 per share. Also as described below,
as part of the October 2018 Offering, Histogenics sold and issued the 2018 Warrants. The exercise price of the 2018 Warrants was
$0.70 per share, subject to Histogenics’ right pursuant to Section 2(e) of the 2018 Warrants to reduce the exercise price
to any amount and for any period of time deemed appropriate by Histogenics Board (the “Voluntary Adjustment Right”).
On February 8,
2019, Histogenics and certain holders of the 2016 Warrants (the “Participating 2016 Holders”) entered into a Warrant
Amendment and Exercise Agreement (the “2016 Exercise Agreement”) pursuant to which Histogenics agreed to reduce the
exercise price of the 2016 Warrants held by such Participating 2016 Holders from $2.25 to $0.01 per share (the “2016 Reduced
Exercise Price”) in consideration for the exercise of the 2016 Warrants held by such Participating 2016 Holders in full at
the 2016 Reduced Exercise Price for cash and provided a general release of claims of such Participating 2016 Holders against Histogenics
with respect to the 2016 Warrants. Histogenics also agreed to modify the reference to “three (3) Trading Days” in the
first sentence of Section 2(d)(i) of the 2016 Warrants held by the Participating 2016 Holders to “two (2) Trading Days.”
The Participating 2016 Holders owned, in the aggregate, 2016 Warrants to purchase a total of 12,957,953 shares of Histogenics common
stock. After the full exercise of the 2016 Warrants held by the Participating 2016 Holders, 2016 Warrants to purchase approximately
508,714 shares of Histogenics common stock remained outstanding.
On February 8,
2019, pursuant to the Voluntary Adjustment Right, Histogenics determined to reduce the exercise price of the 2018 Warrants from
$0.70 to $0.01 per share (the “2018 Reduced Exercise Price”) through the close of business on February 8, 2019. Additionally,
on February 8, 2019, Histogenics and all of the holders of the 2018 Warrants (the “Participating 2018 Holders” and,
together with the Participating 2016 Holders, the “Holders”) entered
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 33
CERTAIN
RELATIONSHIPS AND RELATED PARTY TRANSACTIONS (continued)
into a Warrant Exercise Agreement
(the “2018 Exercise Agreement”) pursuant to which in consideration for the 2018 Reduced Exercise Price, the Participating
2018 Holders agreed to exercise the 2018 Warrants held by such Participating 2018 Holders in full at the 2018 Reduced Exercise
Price for cash and provided a general release of claims of such Participating 2018 Holders against Histogenics with respect to
the 2018 Warrants. The Participating 2018 Holders owned, in the aggregate, 2018 Warrants to purchase a total of 19,616,250 shares
of Histogenics’ common stock. After the full exercise of the 2018 Warrants held by the Participating 2018 Holders, no 2018
Warrants remain outstanding.
Wilmslow Estate
Limited (“Wilmslow”), which was a greater than 5% holder of Histogenics common stock and an affiliate of Michael Lewis,
a former member of the Histogenics Board, exercised their outstanding 2016 Warrants and 2018 Warrants pursuant to a 2016 Exercise
Agreement and 2018 Exercise Agreement, respectively. Kevin Rakin, a former member of the Histogenics Board, and certain of his
affiliated trusts, exercised their outstanding 2016 Warrants and 2018 Warrants pursuant to a 2016 Exercise Agreement and 2018 Exercise
Agreement, respectively.
October
2018 Public Offering
In October 2018,
Histogenics closed an underwritten public offering (the “October 2018 Offering”) of 26,155,000 shares of Histogenics
common stock and warrants to purchase up to 19,616,250 shares of common stock, at a combined purchase price of $0.65 per share
of common stock and accompanying warrant (the “Securities”). The gross proceeds from this offering were $17.0 million,
before deducting underwriting discounts and commissions, and offering expenses payable by Histogenics. The warrants (the “2018
Warrants”) were exercisable immediately upon issuance at a price of $0.70 per share of common stock and have a term of five
years commencing on the date of issuance.
Wilmslow, which
was a greater than 5% holder of Histogenics common stock and an affiliate of Michael Lewis, a former member of the Histogenics
Board, purchased securities in the October 2018 Offering. Kevin Rakin, a former member of the Histogenics Board, purchased Securities
in the October 2018 Offering.
Collaboration
with Advaite, Inc.
In April 2020,
the Company entered into an agreement with Advaite, Inc., (“Advaite”) to provide certain support services for Advaite's
development of a diagnostic test kit that is designed to detect antibodies to COVID-19. Advaite was co-founded and is being managed
by Mr. Karthik Musunuri, the son of the Company's Chief Executive Officer, Chairman of the Board and co-founder, Dr. Shankar Musunuri.
Pursuant to the agreement, the Company will be paid on an hourly basis at a rate between $200-$375 for those hours actually worked
on Advaite related projects by specific employees, and will receive tiered royalty payments based on cumulative net sales of the
test kit. As of September 30, 2020, the Company had received $42,620 in royalties under the agreement with Advaite.
Employment
Agreements
For information
on employment arrangements and compensation for service as an Ocugen officer or on the Ocugen Board, see “Executive Compensation—Ocugen
Executive Compensation.”
Indemnification
Agreements
Ocugen’s
Certificate of Incorporation and Bylaws require Ocugen to indemnify its directors and officers to the fullest extent permitted
by Delaware law. Ocugen has also entered into indemnity agreements with certain officers and directors. These agreements provide,
among other things, that Ocugen will indemnify the officer or director, under the circumstances and to the extent provided for
in the agreement, for expenses, damages, judgments, fines and settlements he or she may be required to pay in actions or proceedings
which he or she is or may be made a
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 34
CERTAIN
RELATIONSHIPS AND RELATED PARTY TRANSACTIONS (continued)
party by reason of his or her
position as a director, officer or other agent of the Company, and otherwise to the fullest extent permitted under Delaware law
and our Bylaws and Amended and Certificate of Incorporation.
Histogenics had
entered into indemnification agreements with its former directors, executive officers and certain key employees. Under these agreements,
Histogenics agreed to indemnify its directors, executive officers and certain key employees against any and all expenses incurred
by them in connection with proceedings because of their status as one of Histogenics’ directors, executive officers or key
employees to the fullest extent permitted by Delaware law, subject to certain limitations. In addition, these indemnification agreements
provided that, to the fullest extent permitted by Delaware law, Histogenics would pay for all expenses incurred by its directors,
executive officers and certain key employees in connection with a legal proceeding arising out of their service to Histogenics.
In addition,
as permitted by Section 145 of the Delaware General Corporation Law, Histogenics’ amended and restated bylaws provided that
Histogenics was authorized to enter into indemnification agreements with its directors and executive officers and Histogenics was
authorized to purchase directors’ and officers’ liability insurance, which Histogenics maintained to cover its directors
and executive officers.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 35
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain
information regarding the beneficial ownership of common stock as of September 30, 2020 by (a) each named executive officer identified
in the Summary Compensation Table above, (b) each director and nominee for director, and (c) all executive officers and directors
as a group. As of September 30, 2020, there were no persons known by us to be the beneficial owner of more than 5% of the outstanding
shares of our common stock.
The percentage of common stock outstanding
is based on 162,026,473 shares of our common stock outstanding as of September 30, 2020. For purposes of the table below, and in
accordance with the rules of the SEC, we deem shares of common stock subject to options that are currently exercisable or exercisable
within sixty days of September 30, 2020 to be outstanding and to be beneficially owned by the person holding the options for
the purpose of computing the percentage ownership of that person, but we do not treat them as outstanding for the purpose of computing
the percentage ownership of any other person. Except as otherwise noted, each of the persons or entities in this table has sole
voting and investing power with respect to all of the shares of common stock beneficially owned by them, subject to community property
laws, where applicable. Except as otherwise noted below, the street address of each beneficial owner is c/o Ocugen, Inc., 5 Great
Valley Parkway, Suite 160, Malvern, PA 19355.
|
Shares Beneficially Owned
|
Name of Beneficial Owner
|
Number of Shares
|
Percentage
|
Named Executive Officers and Directors
|
|
|
Shankar Musunuri, Ph.D., MBA (1)
|
1,875,187
|
1.16%
|
Daniel Jorgensen, M.D., M.P.H., MBA (2)
|
34,358
|
*
|
Rasappa Arumugham, Ph.D. (3)
|
34,196
|
*
|
Adam Gridley
|
7,000
|
*
|
Stephen Kennedy
|
—
|
—
|
Donald Haut, Ph.D.
|
—
|
—
|
Ramesh Kumar, Ph.D. (4)
|
15,000
|
*
|
Junge Zhang, Ph.D. (5)
|
1,191,904
|
*
|
Uday Kompella, Ph.D. (6)
|
1,452,635
|
*
|
Manish Potti (7)
|
236,293
|
*
|
Kirsten Castillo (8)
|
85,500
|
*
|
Prabhavathi Fernandes, Ph.D. (9)
|
10,500
|
*
|
Suha Taspolatoglu, M.D. (10)
|
777,748
|
*
|
All executive officers and directors as a group (11 persons)
|
5,743,307
|
3.54%
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 36
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT (continued)
(1)
|
Consists of (i) 406,000 shares of common stock; 7,191 shares of common stock issuable upon exercise of warrants exercisable within 60 days of September 30, 2020; and 86,292 shares of common stock issuable upon exercise of stock options exercisable within 60 days of September 30, 2020; and (ii) 1,375,299 shares of common stock and 405 shares of common stock issuable upon exercise of warrants exercisable within 60 days of September 30, 2020, in each case held by KVM Holdings LLC. Dr. Musunuri is a member and officer of KVM Holdings, LLC and has voting and investment power over the shares held by KVM Holdings, LLC.
|
|
|
(2)
|
Consists of 34,358 shares issuable pursuant to stock options exercisable within 60 days of September 30, 2020.
|
|
|
(3)
|
Consists of 34,196 shares issuable pursuant to stock options exercisable within 60 days of September 30, 2020.
|
|
|
(4)
|
Consists of 15,000 shares issuable pursuant to stock options exercisable within 60 days of September 30, 2020.
|
|
|
(5)
|
Consists of (i) 818,578 shares of common stock and 15,000 shares of common stock issuable upon exercise of stock options exercisable within 60 days of September 30, 2020; and (ii) 212,853 shares of common stock and 145,473 shares of common stock issuable upon exercise of warrants exercisable within 60 days of September 30, 2020, in each case held by Gupiao Trust. Mr. Zhang is the beneficiary of Gupiao Trust has voting and investment power over securities held by Gupiao Trust.
|
|
|
(6)
|
Consists of (i) 950,674 shares of common stock, 354 shares of common stock issuable upon exercise of warrants exercisable within 60 days of September 30, 2020, and 22,191 shares of common stock issuable upon exercise of stock options exercisable within 60 days of September 30, 2020; and (ii) 479,416 shares of common stock held by Kompella LLC. Mr. Kompella has voting and investment power over the shares of common stock held by Kompella LLC.
|
|
|
(7)
|
Consists of (i) 15,000 shares of common stock issuable upon exercise of stock options exercisable within 60 days of September 30, 2020 and (ii) 123,429 shares of common stock and 97,864 shares of common stock issuable upon exercise of warrants exercisable within 60 days of September 30, 2020, in each case held by Scotland Parkway LLC. Mr. Potti is a managing member of Scotland Parkway LLC and has voting and investment power over securities held by Scotland Parkway LLC.
|
|
|
(8)
|
Consists of (i) 75,000 shares of common stock and (ii) 10,500 shares issuable pursuant to stock options exercisable within 60 days of September 30, 2020.
|
(9)
|
Consists of 10,500 shares issuable pursuant to stock options exercisable within 60 days of September 30, 2020.
|
|
|
(10
|
Consists of (i) 15,000 shares of common stock issuable upon exercise of stock options exercisable within 60 days of September 30, 2020 and (ii) 742,905 shares of common stock and 19,843 shares of common stock issuable upon exercise of warrants exercisable within 60 days of September 30, 2020, in each case held by Abdi Ibrahim Uluslararası İlaç Yatırımları Sanayi ve Ticaret A.Ş. (“Abdi”). Dr. Taspolatogula is the Chief Executive Officer of Abdi and has voting and investment power over securities held by Abdi.
|
DELINQUENT
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTS
Section 16(a) of the Exchange Act requires
our officers and directors, and persons who own more than ten percent of a registered class of our equity securities, to file reports
of securities ownership and changes in such ownership with
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 37
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT (continued)
the SEC. Officers, directors and greater
than ten percent stockholders are also required by SEC rules to furnish us with copies of all Section 16(a) forms they file.
Based solely on a review of the Company’s
records and written representations by the persons required to file such reports, all filing requirements of Section 16(a) were
satisfied with respect to the 2019 fiscal year except for (i) the Form 3’s for Shankar Musunuri, Daniel Jorgensen, Rasappa
Arumugham, Vijay Tammara, Kelly Beck, Frank Leo, Ramesh Kumar, Uday Kompella, Suha Taspolatoglu and Manish Potti, which were inadvertently
filed late following their respective appointments as executive officers or directors of the Company on September 27, 2019, and
(ii) a Form 4 filed on October 4, 2019 for Junge Zhang, which was filed late due to an administrative error.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 38
ITEMS
TO BE VOTED ON
ITEM
1: the reverse stock split proposal
General
The Company is asking stockholders to adopt and approve the
proposal that the Company’s Certificate of Incorporation be amended, by way of a Certificate of Amendment, to effect a reverse
stock split of our common stock (the “Reverse Stock Split”). The proposed amendment, if effected, will effect a Reverse
Stock Split of the outstanding shares of the Company’s common stock at a Reverse Stock Split ratio of not less than 1-for-4
and not greater than 1-for-20, with the exact ratio and effective time of the Reverse Stock Split to be determined by the Company’s
Board of Directors (the “Board”) at any time within one year of the date of the annual meeting of stockholders (the
“Annual Meeting”). The foregoing description of the proposed amendment is a summary and is subject to the full text
of the proposed amendment, which is attached to this proxy statement as Appendix A.
If adopted and approved by the stockholders, the Reverse Stock
Split, if any, would become effective at a time, and at a ratio, to be designated by the Board. The Board may effect only one Reverse
Stock Split as a result of this authorization. The Board also may determine in its discretion not to effect the Reverse Stock Split
and not to file the Certificate of Amendment. No further action on the part of stockholders will be required to either implement
or abandon the Reverse Stock Split. The determination of the ratio of the Reverse Stock Split will be based on a number of factors,
described further below under the heading “—Criteria to be Used for Determining Whether to Implement Reverse Stock
Split.” The Reverse Stock Split, if adopted and approved by stockholders and if deemed by the Board to be advisable and in
the best interests of us and our stockholders, will be effected, if at all, at a time that is not later than the date that is within
one year from the date of the Annual Meeting.
As of the October 28, 2020 Record Date, 162,026,473 shares
of our common stock were outstanding. Based on such number of shares of our common stock issued and outstanding,
immediately following the effectiveness of the Reverse Stock Split (and without giving any effect to the payment of cash in
lieu of fractional shares), we will have, depending on the Reverse Stock Split ratio selected by the Board, issued and
outstanding shares of stock as illustrated in the table under the caption “—Effects of the Reverse Stock
Split—Effect on Shares of Common Stock.”
The Reverse Stock Split will be realized simultaneously for
all outstanding common stock and options to purchase shares of our common stock. The Reverse Stock Split will affect all holders
of common stock uniformly and each stockholder will hold the same percentage of common stock outstanding immediately following
the Reverse Stock Split as that stockholder held immediately prior to the Reverse Stock Split, except for immaterial adjustments
that may result from the treatment of fractional shares as described below. The Reverse Stock Split will not change the par value
of our common stock and will not reduce the number of authorized shares of common stock (see “—Effects of the Reverse
Stock Split”).
No fractional shares of common stock will be issued as a result
of the Reverse Stock Split. Instead, any stockholder who would have been entitled to receive a fractional share as a result of
the Reverse Stock Split will receive cash payments in lieu of such fractional shares.
Reasons for the Reverse Stock Split
Nasdaq Compliance. Our common stock is publicly traded
and listed on The Nasdaq Capital Market under the symbol “OCGN.” The Board authorized the reverse split of our common
stock with the primary intent of increasing the per share trading price of our common stock in order to ensure that we continue
to satisfy the requirements for the continued listing of our common stock on Nasdaq, which we believe helps support and maintain
stock liquidity
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 39
ITEMS TO BE VOTED
ON (continued)
and Company recognition for our stockholders. Accordingly, we
believe that effecting the Reverse Stock Split is advisable and in the Company’s and our stockholders’ best interests.
Companies listed on Nasdaq are subject to various rules and
requirements imposed by Nasdaq which must be satisfied in order to continue having their stock listed on the exchange (these are
called Nasdaq’s Continued Listing Standards). One of these standards is the “minimum bid price” requirement set
forth in Nasdaq Listing Rule 5550(a)(2) (“Rule 5550(a)(2)”), which requires that the bid price of the stock of
companies listed on the Nasdaq Capital Market be at least $1.00 per share. A listed company risks being delisted and removed from
Nasdaq if the closing bid price of its stock remains below $1.00 per share for an extended period of time. The closing bid price
of our common stock has been below $1.00 per share since November 11, 2019.
On December 27, 2019, we received a deficiency letter from the
Nasdaq Listing Qualifications Department (the “Staff”) notifying us that, for the last 30 consecutive business days,
the closing bid price for the Company’s common stock had been below the minimum $1.00 per share required for continued listing
on the Nasdaq Capital Market pursuant to Rule 5550(a)(2). We were provided an initial period of 180 calendar days, or until
June 24, 2020, to regain compliance with Rule 5550(a)(2). In response to the COVID-19 pandemic and related extraordinary market
conditions, effective April 16, 2020, Nasdaq tolled the grace period for non-compliance with the minimum bid price listing requirement
until June 30, 2020. Following the tolling period, we had until September 7, 2020 to regain compliance with Rule 5550(a)(2).
On September 8, 2020, Nasdaq granted us an additional 180-day period, or until March 8, 2021, to regain compliance with Rule 5550(a)(2).
To regain compliance, the closing bid price of our common stock must meet or exceed $1.00 per share for at least 10 consecutive
business days during the additional 180-day period. If we do not regain compliance with the minimum bid price rule by March 8,
2021, Nasdaq will provide written notification to us that our common stock may be delisted. At that time, we may appeal Nasdaq’s
delisting determination to a Nasdaq hearings panel. If we timely appeal, our common stock would remain listed pending the panel’s
decision. There can be no assurance that, if we do appeal the delisting determination by Nasdaq to the panel, such appeal would
be successful.
We may not be able to meet the $1.00 minimum bid price requirement
of the Nasdaq Capital Market unless we effect a reverse stock split to increase the per share market price of our common stock.
If required in order to maintain compliance with the minimum bid price requirement so as to maintain our listing on the Nasdaq
Capital Market, the Board intends to effect the Reverse Stock Split no later than March 8, 2021. Even if we regain compliance with
the $1.00 minimum bid price requirement without effecting the Reverse Stock Split, the Board may determine to effect the Reverse
Stock Split in order to avoid a future deficiency in the minimum bid price requirement of the Nasdaq Capital Market or if it determines,
in its sole discretion, that effecting the Reverse Stock Split is advisable and in the best interests of the Company and its stockholders.
In the event we are delisted from Nasdaq, the only established
trading market for our common stock would be eliminated and we would be forced to list our shares on the OTC Markets or another
quotation medium, depending on our ability to meet the specific listing requirements of those quotation systems. As a result, an
investor would likely find it more difficult to trade, or to obtain accurate price quotations for, our shares. Delisting would
likely also reduce the visibility, liquidity and value of our common stock, including as a result of reduced institutional investor
interest in our company, and may increase the volatility of our common stock. Delisting could also cause a loss of confidence of
potential industry partners, lenders and employees, which could further harm our business and our future prospects. We believe
that effecting the Reverse Stock Split may help us avoid delisting from Nasdaq and any resulting consequences.
Additional Potential Investors. In addition to bringing
the per share trading price of our common stock back above $1.00, we also believe that the Reverse Stock Split will make our common
stock more attractive to a broader range of institutional and other investors, as we have been advised that the current per share
trading price of our common stock may affect its acceptability to certain institutional investors, professional investors and other
members of the
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 40
ITEMS TO BE
VOTED ON (continued)
investing public. Many brokerage houses and institutional investors
have internal policies and practices that either prohibit them from investing in low-priced stocks or tend to discourage individual
brokers from recommending low-priced stocks to their customers. In addition, some of those policies and practices may function
to make the processing of trades in low-priced stocks economically unattractive to brokers.
Financial Planning Flexibility. The Board believes it
is advisable and in the best interest of the Company and our stockholders to approve the Certificate of Amendment to effect the
Reverse Stock Split of the Company’s issued and outstanding common stock to give the Company greater flexibility in considering
and planning for future potential business needs. The Reverse Stock Split will result in additional authorized and unissued shares
becoming available for general corporate purposes as the Board may determine from time to time, including for use under its equity
compensation plans.
Reducing the number of outstanding shares of our common stock
through the Reverse Stock Split is intended, absent other factors, to increase the per share trading price of our common stock.
However, other factors, such as our financial results, market conditions and the market perception of our business may adversely
affect the per share trading price of our common stock. As a result, there can be no assurance that the Reverse Stock Split, if
completed, will result in the intended benefits described above, that the per share trading price of our common stock will increase
following the Reverse Stock Split or that the per share trading price of our common stock will not decrease in the future.
Criteria to be Used for Determining Whether to Implement
Reverse Stock Split
In determining whether to implement the Reverse Stock Split
and which Reverse Stock Split ratio to implement, if any, following receipt of stockholder approval of the amendment to our Certificate
of Incorporation to effect the Reverse Stock Split, the Board may consider, among other things, various factors, such as:
|
·
|
the historical trading price and trading volume of our common stock;
|
|
·
|
the Nasdaq Continued Listing Standards requirements;
|
|
·
|
the then-prevailing trading price and trading volume of our common stock and the expected impact of the Reverse Stock Split
on the trading market for our common stock in the short- and long-term;
|
|
·
|
the anticipated impact of a particular ratio on our ability to reduce administrative and transactional costs; and
|
|
·
|
prevailing general market and economic conditions.
|
Certain Risks and Potential Disadvantages Associated with
the Reverse Stock Split
We cannot assure you that the proposed Reverse Stock Split
will increase our stock price.
We expect that the Reverse Stock Split will increase the per
share trading price of our common stock. However, the effect of the Reverse Stock Split on the per share trading price of our common
stock cannot be predicted with any certainty, and the history of reverse stock splits for other companies is varied, particularly
since some investors may view a reverse stock split negatively. It is possible that the per share trading price of our common stock
after the Reverse Stock Split will not increase in the same proportion as the reduction in the number of our outstanding shares
of common stock following the Reverse Stock Split, in which case the total market capitalization of our common stock after the
Reverse Stock Split may be lower than the total market capitalization before the Reverse Stock Split. It is also possible that
the Reverse Stock Split may not result in a per share trading price that would attract investors who do not trade in lower priced
stocks. In addition, although we believe the Reverse Stock Split may enhance the marketability of our common stock to certain potential
investors, we cannot assure you that, if implemented, our common stock will be more attractive to investors. Even if we implement
the Reverse Stock Split, the per share trading price of our common stock may decrease due to factors unrelated to the Reverse Stock
Split, including our
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 41
ITEMS TO BE VOTED
ON (continued)
future performance. If the Reverse Stock Split is consummated
and the per share trading price of the common stock declines, the percentage decline as an absolute number and as a percentage
of our overall market capitalization may be greater than would occur in the absence of the Reverse Stock Split.
The proposed Reverse Stock Split may decrease the liquidity
of our common stock and result in higher transaction costs.
The liquidity of our common stock may be negatively impacted
by the Reverse Stock Split, given the reduced number of shares that would be outstanding after the Reverse Stock Split, particularly
if the per share trading price does not increase as a result of the Reverse Stock Split. In addition, if the Reverse Stock Split
is implemented, it will increase the number of our stockholders who own “odd lots” of fewer than 100 shares of common
stock. Brokerage commission and other costs of transactions in odd lots are generally higher than the costs of transactions of
more than 100 shares of common stock. Accordingly, the Reverse Stock Split may not achieve the desired results of increasing marketability
of our common stock as described above.
There will be dilution to existing stockholders if the Company
issues new shares of Common Stock.
Although the Reverse Stock Split will not in itself cause dilution
to our existing stockholders, the number of shares the Company will be authorized to issue will not be decreased proportionally.
Thus, should the Company decide to issue new shares of common stock in the future to raise capital, existing stockholders’
ownership will be diluted.
Procedure for Effecting Reverse Stock Split and Exchange
of Stock Certificates
If the Certificate of Amendment is adopted and approved by our
stockholders, and if, within one year of such time, the Board believes that the Reverse Stock Split is advisable and in the best
interests of the Company and its stockholders, the Board will determine the ratio of the Reverse Stock Split to be implemented.
We will file the Certificate of Amendment with the Secretary of State of the State of Delaware at such time as the Board has determined
the appropriate effective time for the Reverse Stock Split (the “Effective Time”). The Board may delay effecting the
Reverse Stock Split, if at all, until a time that is not later than one year from the date of the Annual Meeting, without re-soliciting
stockholder approval. The Reverse Stock Split will become effective on the date of filing of the Certificate of Amendment with
the Secretary of State of the State of Delaware. Beginning on the effective date of the Reverse Stock Split, each certificate representing
pre-Reverse Stock Split shares will be deemed for all corporate purposes to evidence ownership of post-Reverse Stock Split shares.
If, at any time prior to the filing of the Certificate of Amendment
with the Delaware Secretary of State, notwithstanding stockholder approval, and without further action by the stockholders, the
Board, in its sole discretion, determines that it is advisable and in the Company’s best interests and the best interests
of the Company’s stockholders to delay the filing of the Certificate of Amendment or abandon the Reverse Stock Split, the
Reverse Stock Split may be delayed or abandoned.
Fractional Shares
No fractional shares will be issued in connection with the Reverse
Stock Split. Stockholders of record who otherwise would be entitled to receive fractional shares because they hold a number of
pre-split shares not evenly divisible by the number of pre-split shares for which each post-split share is to be exchanged, will
be entitled, upon surrender to the exchange agent of certificates representing such shares, to a cash payment in lieu thereof at
the then-prevailing prices on the open market. The ownership of a fractional interest will not give the holder thereof any voting,
dividend or other rights, except to receive payment therefor as described herein.
Stockholders should be aware that, under the escheat laws of
the various jurisdictions where stockholders reside, where the Company is domiciled, and where the funds will be deposited, sums
due for fractional interests that are
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 42
ITEMS TO BE VOTED
ON (continued)
not timely claimed after the effective date of the split may
be required to be paid to the designated agent for each such jurisdiction, unless correspondence has been received by the Company
or the exchange agent concerning ownership of such funds within the time permitted in such jurisdiction. Thereafter, stockholders
otherwise entitled to receive such funds will have to seek to obtain them directly from the state to which they were paid.
Effects of the Reverse Stock Split
General
After the effective date of the Reverse Stock Split, if implemented
by the Board, each stockholder will own a reduced number of shares of common stock. The principal effect of the Reverse Stock Split
will be to proportionately decrease the number of outstanding shares of the Company’s common stock based on the Reverse Stock
Split ratio selected by the Board. As a matter of Delaware law, the implementation of the Reverse Stock Split does not require
a reduction in the total number of authorized shares of our common stock.
Voting rights and other rights of the holders of our common
stock will not be affected by the Reverse Stock Split, other than as a result of the treatment of fractional shares as described
above. For example, a holder of 2% of the voting power of the outstanding shares of our common stock immediately prior to the effectiveness
of the Reverse Stock Split will generally continue to hold 2% (assuming there is no impact as a result of the payment of cash in
lieu of issuing fractional shares) of the voting power of the outstanding shares of our common stock after the Reverse Stock Split.
The number of stockholders of record will not be affected by the Reverse Stock Split (except to the extent any are cashed out as
a result of holding less than a full share). If adopted and implemented, the Reverse Stock Split may result in some stockholders
owning “odd lots” of less than 100 shares of our common stock. Odd lot shares may be more difficult to sell, and brokerage
commissions and other costs of transactions in odd lots are generally somewhat higher than the costs of transactions in “round
lots” of even multiples of 100 shares. The Board believes, however, that these potential effects are outweighed by the benefits
of the Reverse Stock Split.
Effect on Shares of Common Stock, Options and Warrants
The following table contains approximate information, based
on share information as of September 30, 2020, relating to our outstanding common stock assuming Reverse Stock Split ratios of
1-for-4, 1-for-10, 1-for-15 and 1-for-20, which reflect the low end, middle and high end of the range that our stockholders are
being asked to approve. In addition, the following table sets forth (i) the number of shares of our common stock that would be
issued and outstanding, (ii) the number of shares of our common stock that would be reserved for issuance pursuant to outstanding
warrants and options and (iii) the weighted-average exercise price of outstanding options and warrants, each giving effect to the
Reverse Stock Split and based on securities outstanding as of September 30, 2020.
|
|
|
Number of Shares
Before Reverse
Stock Split
|
|
Reverse Stock Split
Ratio of 1-for-4
|
|
Reverse Stock Split
Ratio of 1-for-10
|
|
Reverse Stock Split
Ratio of 1-for-15
|
|
Reverse Stock
Split Ratio of 1-
for-20
|
Number
of Shares of Common Stock Outstanding
|
|
162,026,473
|
|
|
40,506,618
|
|
|
16,202,647
|
|
|
10,801,764
|
|
|
8,101,323
|
|
Number of Shares
of Common Stock Reserved for Issuance
|
|
5,138,294
|
|
|
1,284,573
|
|
|
513,829
|
|
|
342,552
|
|
|
256,914
|
|
Weighted Average
Exercise Price of Options
|
|
$0.94
|
|
|
$3.76
|
|
|
$9.40
|
|
|
$14.10
|
|
|
$18.80
|
|
Weighted Average
Exercise Price of Warrants
|
|
$5.67
|
|
|
$22.68
|
|
|
$56.70
|
|
|
$85.05
|
|
|
$113.40
|
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 43
ITEMS TO BE VOTED
ON (continued)
If this Reverse Stock Split Proposal is adopted and approved
and the Board elects to effect the Reverse Stock Split, the number of outstanding shares of common stock will be reduced proportionately
based on the exact ratio of the split chosen by the Board, and we would communicate to the public, prior to the effective date
of the Reverse Stock Split, additional details regarding the Reverse Stock Split, including the specific ratio selected by the
Board.
Pursuant to the various instruments governing our then outstanding
stock option awards and warrants to purchase common stock and any outstanding restricted stock awards, in connection with any Reverse
Stock Split, the Board will reduce the number of shares of common stock issuable upon the exercise of the stock options and warrants
and the number of shares of restricted stock in proportion to the ratio of the Reverse Stock Split and proportionately increase
the exercise price of our outstanding stock options and warrants. In connection with such proportionate adjustments, the number
of shares of common stock issuable upon exercise or conversion of outstanding stock options, warrants and restricted stock awards
will be rounded down to the nearest whole share and the exercise prices will be rounded up to the nearest cent, and no cash payment
will be made in respect of such rounding.
After the effective date of the Reverse Stock Split that the
Board elects to implement, our common stock would have a new committee on uniform securities identification procedures, or CUSIP
number, a number used to identify our common stock.
Our common stock is currently registered under Section 12(b)
of the Securities Exchange Act of 1934 (the “Exchange Act”), and we are subject to the periodic reporting and other
requirements of the Exchange Act. The Reverse Stock Split will not affect the registration of our common stock under the Exchange
Act or the listing of our common stock on Nasdaq. Following the Reverse Stock Split, our common stock will continue to be listed
on the Nasdaq Capital Market under the symbol “OCGN,” although it will be considered a new listing with a new CUSIP
number.
Effect on Preferred Stock
The proposed amendment to our Restated Certificate of Incorporation
to effect the Reverse Stock Split would not impact the total authorized number of shares of preferred stock or the par value thereof.
Effect on Par Value
The proposed amendments to our Certificate of Incorporation
will not affect the par value of our common stock, which will remain at $0.01.
Accounting Matters
As a result of the Reverse Stock Split, upon the Effective Time,
the stated capital on our balance sheet attributable to our common stock, which consists of the par value per share of our common
stock multiplied by the aggregate number of shares of our common stock issued and outstanding, will be reduced in proportion to
the size of the Reverse Stock Split, subject to a minor adjustment in respect of the treatment of fractional shares, and the additional
paid-in capital account will be credited with the amount by which the stated capital is reduced. Our stockholders’ equity,
in the aggregate, will remain unchanged. Reported per share net income or loss will be higher because there will be fewer shares
of common stock outstanding.
Effect on Authorized Shares of Common Stock
Currently, we are authorized to issue up to a total of
200,000,000 shares of common stock. On the Record Date, there were 162,026,473 shares of our common stock outstanding, warrants to purchase 870,017 shares of our common stock issued and outstanding (with a weighted average exercise
price of $5.67 per share), options to
purchase 4,232,924 shares of our
common stock issued and outstanding under our equity compensation plans (with a
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 44
ITEMS TO BE VOTED
ON (continued)
weighted average exercise price of $0.88 per share), an
aggregate of 716,091 shares reserved for issuance pursuant to our 2019 Equity Incentive Plan (the “2019 Plan”)
and 2014 Stock Option Plan (the “2014 Plan”) and
56 shares of our common stock
issuable upon conversion of our Preferred Stock. This leaves 32,154,439 shares of our authorized
common stock available for future issuance.
Effecting the Reverse Stock Split will not change the total
authorized number of shares of common stock. However, the reduction in the issued and outstanding shares, and the corresponding
adjustment of shares issuable pursuant to warrants and options, which would be decreased by a factor of between 4 and 20, would
provide more authorized shares available for future issuance. Because holders of our common stock have no preemptive rights to
purchase or subscribe for any unissued stock of the Company, the issuance of additional shares in the future of authorized common
stock that will become newly available as a result of the implementation of the Reverse Stock Split will reduce the current stockholders’
percentage ownership interest in the total outstanding shares of common stock.
We may issue additional equity capital in the future to finance
our research and development expenditures, clinical trial expenditures, commercial expenditures, acquisitions of new technologies
or businesses and general corporate purposes. The additional available shares that the proposed Reverse Stock Split will provide
will allow us to pursue any such financing. However, with the exception of the reservation of shares underlying the 2019 Plan and
the 2014 Plan and shares underlying certain outstanding warrants, we currently do not have any specific plans, arrangements or
understandings to issue any of the shares of common stock that will be newly available as a result of the implementation of the
Reverse Stock Split.
Potential Anti-Takeover Effects of a Reverse Stock Split
Release No. 34-15230 of the staff of the SEC requires disclosure
and discussion of the effects of any action, including the proposals discussed herein, that may be used as an anti-takeover mechanism.
The Reverse Stock Split, if effected, will also result in a relative increase in the number of authorized but unissued shares of
our common stock vis-à-vis the outstanding shares of our common stock and, could, under certain circumstances, have an anti-takeover
effect, although this is not the purpose or intent of the Board. A relative increase in the number of authorized shares of common
stock could have other effects on our stockholders, depending upon the exact nature and circumstances of any actual issuances of
authorized but unissued shares. A relative increase in our authorized shares could potentially deter takeovers, including takeovers
that the Board has determined are not in the best interest of our stockholders, in that additional shares could be issued (within
the limits imposed by applicable law) in one or more transactions that could make a change in control or takeover more difficult.
For example, we could issue additional shares so as to dilute the stock ownership or voting rights of persons seeking to obtain
control without our agreement. Similarly, the issuance of additional shares to certain persons allied with our management could
have the effect of making it more difficult to remove our current management by diluting the stock ownership or voting rights of
persons seeking to cause such removal. The Reverse Stock Split therefore may have the effect of discouraging unsolicited takeover
attempts. By potentially discouraging initiation of any such unsolicited takeover attempts, the Reverse Stock Split may limit the
opportunity for our stockholders to dispose of their shares at the higher price generally available in takeover attempts or that
may be available under a merger proposal.
Although the Reverse Stock Split has been prompted by business
and financial considerations and not by the threat of any known or threatened hostile takeover attempt, stockholders should be
aware that the effect of the Reverse Stock Split could facilitate future attempts by us to oppose changes in control and perpetuate
our management, including transactions in which the stockholders might otherwise receive a premium for their shares over then current
market prices. We cannot provide assurances that any such transactions will be consummated on favorable terms or at all, that they
will enhance stockholder value, or that they will not adversely affect our business or the trading price of the common stock.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 45
ITEMS TO BE VOTED
ON (continued)
No Going Private Transaction
Notwithstanding the decrease in the number of outstanding shares
following the proposed Reverse Stock Split, the Board does not intend for this transaction to be the first step in a “going
private transaction” within the meaning of Rule 13e-3 of the Exchange Act.
Shares Held in Book Entry and Through a Broker, Bank or Other
Holder of Record
If you hold registered shares of our common stock in book-entry
form, you do not need to take any action to receive your post-Reverse Stock Split shares of our common stock in registered book-entry
form or your cash payment in lieu of fractional shares, if applicable. If you are entitled to post-Reverse Stock Split shares of
our common stock, a transaction statement will automatically be sent to your address of record as soon as practicable after the
Effective Time indicating the number of shares of our common stock you hold.
At the Effective Time, we intend to treat stockholders holding
shares of our common stock in “street name” (that is, through a broker, bank or other holder of record) in the same
manner as registered stockholders. Brokers, banks or other holders of record will be instructed to effect the Reverse Stock Split
for their beneficial holders holding shares of our common stock in “street name”; however, these brokers, banks or
other holders of record may apply their own specific procedures for processing the Reverse Stock Split. If you hold your shares
of our common stock with a broker, bank or other holder of record, and you have any questions in this regard, we encourage you
to contact your holder of record.
Shares Held in Certificated Form
If the Reverse Stock Split is approved and effected, stockholders
holding common stock in certificated form will be sent a transmittal letter by the transfer agent after the Reverse Stock Split
is effected. The letter of transmittal will contain instructions on how a stockholder should surrender his, her or its certificate(s)
representing the shares of common stock (the “Old Certificates”) to the transfer agent in exchange for the appropriate
number of whole shares of post-Reverse Stock Split common stock (the “New Shares”). No New Shares will be issued to
a stockholder until such stockholder has surrendered all Old Certificates, together with a properly completed and executed letter
of transmittal, to the transfer agent. No stockholder will be required to pay a transfer or other fee to exchange his, her or its
Old Certificates. Stockholders will then receive New Shares representing the number of whole shares of common stock to which they
are entitled as a result of the Reverse Stock Split. Until surrendered, we will deem outstanding Old Certificates held by stockholders
to be cancelled and only to represent the number of whole shares of post-Reverse Stock Split common stock to which these stockholders
are entitled. Any Old Certificates submitted for exchange, whether because of a sale, transfer or other disposition of shares,
will automatically be exchanged for New Shares. If an Old Certificate has restrictive legends on the back of the Old Certificate(s),
the New Shares will be issued with the same restrictions. If a stockholder is entitled to a payment in lieu of any fractional share
interest, such payment will be made as described under “—Fractional Shares.”
The Company expects that our transfer agent will act as exchange
agent for purposes of implementing the exchange of stock certificates. No service charges will be payable by holders of shares
of common stock in connection with the exchange of certificates. All of such expenses will be borne by the Company.
YOU SHOULD NOT SEND YOUR OLD CERTIFICATES NOW. YOU SHOULD
SEND THEM ONLY AFTER YOU RECEIVE THE LETTER OF TRANSMITTAL FROM OUR TRANSFER AGENT.
Vote Required
Under Delaware law, the affirmative vote of a majority of the
shares of common stock issued and outstanding and entitled to vote at the Annual Meeting is required to adopt and approve the amendment
to our Certificate of
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 46
ITEMS TO BE VOTED
ON (continued)
Incorporation to effect the Reverse Stock Split. Because adoption
and approval of the amendment to our Certificate of Incorporation to effect the Reverse Stock Split requires a majority of the
outstanding shares, an abstention with respect to the Reverse Stock Split proposal will have the same effect as a vote “Against”
the proposal.
The Company’s Board of Directors recommends that you
vote “FOR” the Reverse Stock Split proposal.
No Appraisal Rights
Under the Delaware General Corporation Law, our stockholders
are not entitled to dissenter’s rights or appraisal rights with respect to the Reverse Stock Split described in this proposal
and we will not independently provide our stockholders with any such rights.
Interest of Certain Persons in Matters to be Acted Upon
No officer or director has any substantial interest, direct
or indirect, by security holdings or otherwise, in the Reverse Stock Split that is not shared by all of our other stockholders.
Certain U.S. Federal Income Tax Consequences of the Reverse
Stock Split
The following discussion is a general summary of certain U.S.
federal income tax consequences of the Reverse Stock Split that may be relevant to holders of our common stock that hold such stock
as a capital asset for U.S. federal income tax purposes. This summary is based upon the provisions of the Internal Revenue Code
of 1986, as amended (the “Code”), Treasury regulations promulgated thereunder, administrative rulings and judicial
decisions as of the date hereof, all of which may change, possibly with retroactive effect, resulting in U.S. federal income tax
consequences that may differ from those discussed below.
This discussion applies only to holders that are U.S. Holders
(as defined below) and does not address all aspects of federal income taxation that may be relevant to such holders in light of
their particular circumstances or to holders that may be subject to special tax rules, including: (i) holders subject to the alternative
minimum tax; (ii) banks, insurance companies, or other financial institutions; (iii) tax-exempt organizations; (iv) dealers in
securities or commodities; (v) regulated investment companies or real estate investment trusts; (vi) partnerships (or other flow-through
entities for U.S. federal income tax purposes and their partners or members); (vii) traders in securities that elect to use a mark-to-market
method of accounting for their securities holdings; (viii) U.S. Holders whose “functional currency” is not the U.S.
dollar; (ix) persons holding our common stock as a position in a hedging transaction, “straddle,” “conversion
transaction” or other risk reduction transaction; (x) persons who acquire shares of our common stock in connection with employment
or other performance of services; or (xi) U.S. expatriates. If a partnership (including any entity or arrangement treated as a
partnership for U.S. federal income tax purposes) holds shares of our common stock, the tax treatment of a holder that is a partner
in the partnership generally will depend upon the status of the partner and the activities of the partnership.
We have not sought, and will not seek, an opinion of counsel
or a ruling from the Internal Revenue Service (“IRS”) regarding the U.S. federal income tax consequences of the Reverse
Stock Split and there can be no assurance that the IRS will not challenge the statements and conclusions set forth below or a court
would not sustain any such challenge. The following summary does not address any U.S. state or local or any foreign tax consequences,
any estate, gift or other non-U.S. federal income tax consequences, or the Medicare tax on net investment income.
EACH HOLDER OF COMMON STOCK SHOULD CONSULT SUCH HOLDER’S
TAX ADVISOR WITH RESPECT TO THE PARTICULAR TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT TO SUCH HOLDER.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 47
ITEMS TO BE VOTED
ON (continued)
For purposes of the discussion below, a “U.S. Holder”
is a beneficial owner of shares of our common stock that for U.S. federal income tax purposes is: (1) an individual citizen or
resident of the United States; (2) a corporation (including any entity taxable as a corporation for U.S. federal income tax purposes)
created or organized in or under the laws of the United States, any state or political subdivision thereof; (3) an estate the income
of which is subject to U.S. federal income taxation regardless of its source; or (4) a trust, if (i) a court within the United
States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority
to control all substantial decisions of the trust, or (ii) the trust has a valid election in effect to be treated as a U.S. person.
The Reverse Stock Split is intended to be treated as a “recapitalization”
for U.S. federal income tax purposes. As a result, a U.S. Holder generally should not recognize gain or loss upon the Reverse Stock
Split, except with respect to cash received in lieu of a fractional share of our common stock, as discussed below. A U.S. Holder’s
aggregate tax basis in the shares of our common stock received pursuant to the Reverse Stock Split should equal the aggregate tax
basis of the shares of our common stock surrendered (excluding any portion of such basis that is allocated to any fractional share
of our common stock), and such U.S. Holder’s holding period in the shares of our common stock received should include the
holding period in the shares of our common stock surrendered. Treasury regulations promulgated under the Code provide detailed
rules for allocating the tax basis and holding period of the shares of our common stock surrendered to the shares of our common
stock received pursuant to the Reverse Stock Split. Holders of shares of our common stock acquired on different dates and at different
prices should consult their tax advisors regarding the allocation of the tax basis and holding period of such shares.
A U.S. Holder that receives cash in lieu of a fractional share
of our common stock pursuant to the Reverse Stock Split should recognize capital gain or loss in an amount equal to the difference
between the amount of cash received and the U.S. Holder’s tax basis in the shares of our common stock surrendered that is
allocated to such fractional share. Such capital gain or loss should be long term capital gain or loss if the U.S. Holder’s
holding period for our common stock surrendered exceeded one year at the Effective Time.
OUR BOARD UNANIMOUSLY RECOMMENDS STOCKHOLDERS VOTE FOR THE REVERSE STOCK SPLIT PROPOSAL.
|
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 48
ITEMS TO BE VOTED
ON (continued)
ITEM
2: the AUTHORIZED SHAREs AMENDMENT proposal
General
The Board has approved an amendment to our Certificate of Incorporation
(the “Authorized Shares Amendment”), to increase the number of authorized shares of common stock from 200,000,000 to
500,000,000. The Authorized Shares Amendment will not change the number of authorized shares of preferred stock, which currently
consists of 10,000,000 shares of preferred stock. The implementation of the Authorized Shares Amendment is expressly conditioned
upon the failure to obtain approval or implementation of the Reverse Stock Split; if the Reverse Stock Split is approved and
implemented, then the Authorized Shares Amendment will not be implemented.
The additional shares of common stock authorized for issuance
by the Authorized Shares Amendment would be a part of the existing class of common stock and, if and when issued, would have the
same rights and privileges as the common stock presently issued and outstanding. The full text of the proposed Authorized Shares
Amendment is attached to this Proxy Statement as Appendix B. However, the text of the Authorized Shares Amendment is subject
to revision to include such changes as may be required by the Secretary of State of the State of Delaware and as the Board deems
necessary and advisable to effect the proposed amendment of the Certificate of Incorporation.
Provided the stockholders approve the Authorized Shares Amendment,
the increased number of shares would be authorized for issuance, but would remain unissued until such time as the Board approves
a specific issuance of shares. Other than to permit the exercise of all outstanding options and warrants, the conversion of all
outstanding shares of preferred stock and future issuances under the Company’s equity incentive plans, the Company currently
has no plans or arrangements to issue the additional authorized shares of common stock that will result in the event that the Company’s
stockholders approve, and the Company implements, the Authorized Shares Amendment.
Adoption of the Authorized Shares Amendment would not affect
the rights of the holders of currently outstanding common stock, except for effects incidental to increasing the number of shares
of our common stock outstanding, such as dilution of the earnings per share and voting rights of current holders of common stock,
to the extent that any additional shares of common stock are ultimately issued out of the increase in authorized shares proposed
in the Authorized Shares Amendment.
If the proposed Authorized Shares Amendment is approved by the
requisite vote of the stockholders, it will become effective upon the filing of a Certificate of Amendment with the Secretary of
State of the State of Delaware. The Board reserves its right to elect not to proceed with and abandon the Authorized Shares Amendment
if it determines, in its sole discretion at any time, that this proposal is no longer in the best interests of our stockholders.
If we fail to obtain stockholder approval of either the Reverse
Stock Split or the Authorized Shares Amendment at the Annual Meeting, we intend to continue to seek to obtain stockholder approval
at each subsequent annual meeting of stockholders and/or special meetings of stockholders until such approval has been obtained
and we will incur the costs associated therewith.
Purposes and Effects of the Authorized Shares Amendment
Currently, we are authorized to issue up to a total of
200,000,000 shares of common stock. On the Record Date, there were 162,026,473 shares of our common stock outstanding, warrants to purchase 870,017 shares of our common stock issued and outstanding (with a weighted average exercise
price of $5.67 per share), options to purchase 4,232,924 shares of our common stock issued and outstanding under our equity
compensation plans (with a weighted average exercise price of
$0.88 per share), an aggregate of 716,091 shares reserved for issuance
pursuant to the 2019 Plan and the 2014 Plan and 56 shares of our common stock
issuable upon conversion of our Preferred Stock. This leaves
32,154,439 shares of our authorized
common stock available for future issuance. The foregoing numbers do not take into account the effect of the proposed Reverse
Stock Split.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 49
ITEMS TO BE VOTED
ON (continued)
The Board is recommending the proposed increase in the authorized
number of shares of common stock to provide the Company with appropriate flexibility to issue additional shares in the future on
a timely basis if such need arises in connection with potential financings, business combinations or other corporate purposes.
Approval of the Authorized Shares Amendment could enable the Company to take advantage of market conditions, the availability of
more favorable financing, and opportunities for business combinations and other strategic transactions, without the potential delay
and expense associated with convening a special stockholders’ meeting. Our success also depends in part on our continued
ability to attract, retain and motivate highly qualified management and key personnel, and the approval of the Authorized Shares
Amendment would ensure that there is no lack of unissued and unreserved authorized shares of common stock to provide future equity
incentive opportunities.
The proposed Authorized Shares Amendment will not, by itself,
have an immediate dilutive effect on our current stockholders. However, if the Authorized Shares Amendment is approved, unless
otherwise required by applicable law or stock exchange rules, the Board will be able to issue the additional shares of common stock
from time to time in its discretion without further action or authorization by the stockholders. The newly authorized shares of
common stock would be issuable for any proper corporate purpose, including capital raising transactions of equity or convertible
debt securities, the establishment of collaborations or other strategic agreements, stock splits, stock dividends, issuance under
current or future equity incentive plans, future acquisitions, investment opportunities, or for other corporate purposes. The future
issuance of additional shares of common stock or securities convertible into our common stock, may occur at times or under circumstances
that could result in a dilutive effect on the earnings per share, book value per share, voting power and percentage interest of
the present holders of our common stock, some of whom have preemptive rights to subscribe for additional shares that we may issue.
Potential Anti-Takeover Effect
Release No. 34-15230 of the staff of the SEC requires disclosure
and discussion of the effects of any action, including the proposals discussed herein, that may be used as an anti-takeover mechanism.
An increase in the number of authorized shares of common stock may also, under certain circumstances, be construed as having an
anti-takeover effect. Although not designed or intended for such purposes, the effect of the proposed increase might be to render
more difficult or to discourage a merger, tender offer, proxy contest or change in control of us and the removal of management,
which stockholders might otherwise deem favorable. For example, the authority of the Board to issue common stock might be used
to create voting impediments or to frustrate an attempt by another person or entity to effect a takeover or otherwise gain control
of us because the issuance of additional common stock would dilute the voting power of the common stock then outstanding. Our common
stock could also be issued to purchasers who would support the Board in opposing a takeover bid which our Board determines not
to be in our best interests and those of our stockholders. Although the Authorized Shares Amendment has been prompted by business
and financial considerations and not by the threat of any known or threatened hostile takeover attempt, stockholders should be
aware that the effect of the Authorized Shares Amendment could facilitate future attempts by us to oppose changes in control and
perpetuate our management, including transactions in which the stockholders might otherwise receive a premium for their shares
over then current market prices. We cannot provide assurances that any such transactions will be consummated on favorable terms
or at all, that they will enhance stockholder value, or that they will not adversely affect our business or the trading price of
the common stock.
Vote Required
Under Delaware law, the affirmative vote of a majority of the
shares of common stock issued and outstanding and entitled to vote at the Annual Meeting is required to adopt and approve the amendment
to our Certificate of Incorporation to effect the increase in the number of authorized shares of common stock. Because adoption
and approval of the Authorized Shares Amendment requires a majority of the outstanding shares, an abstention with respect to the
Authorized Shares Amendment proposal will have the same effect as a vote “Against” the proposal.
OUR BOARD UNANIMOUSLY RECOMMENDS
STOCKHOLDERS VOTE FOR THE AUTHORIZED SHARES AMENDMENT PROPOSAL.
|
|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 50
ITEMS
TO BE VOTED ON (continued)
ITEM
3: ELECTION OF CLASS III DIRECTORS FOR A THREE-YEAR TERM EXPIRING IN 2023
At the Annual Meeting, our stockholders
will vote on the election of three Class III director nominees named in this Proxy Statement as directors, each to serve until
our 2023 Annual Meeting of Stockholders and until their respective successors are elected and qualified. Our Board has unanimously
nominated Kirsten Castillo, Prabhavathi Fernandes, Ph.D. and Suha Taspolatoglu, M.D. for election to our Board at the Annual Meeting.
Each of the nominees has agreed
to be named and to serve, and we expect each nominee to be able to serve if elected. If any nominee is unable to serve, the Nominating
and Corporate Governance Committee will recommend to our Board a replacement nominee. The Board may then designate the other nominee
to stand for election. If you voted for the unavailable nominee, your vote will be cast for his or her replacement.
OUR BOARD UNANIMOUSLY RECOMMENDS STOCKHOLDERS VOTE FOR THE ELECTION OF Kirsten
Castillo, Prabhavathi Fernandes, Ph.D. and Suha Taspolatoglu, M.D.
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|
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 51
ITEMS
TO BE VOTED ON (continued)
ITEM
4: RATIFICATION OF APPOINTMENT OF Ernst & Young LLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR 2020
The Audit Committee of the Board has appointed
and engaged Ernst & Young LLP to serve as our independent registered public accounting firm to audit the consolidated financial
statements of the Company and its subsidiaries for the 2020 fiscal year, and to perform audit-related services. Grant Thornton
LLP had served as the Company’s independent registered public accounting firm since 2012. On September 27, 2019, the Audit
Committee approved the termination of the Company’s engagement with Grant Thornton LLP. The Company notified Grant Thornton
LLP on October 9, 2019 that it would be dismissed as the Company’s independent registered public accounting firm effective
immediately. The decision to change independent registered accounting firms was approved by the Audit committee.
Grant Thornton LLP’s reports on the
Company’s financial statements for the years ended 2017 and 2018 did not contain an adverse opinion or disclaimer of opinion
and were not qualified or modified as to uncertainty, audit scope or accounting principles.
During the Company’s fiscal years
ended 2018 and 2019, there were (i) no disagreements, within the meaning of Item 304(a)(1)(iv) of Regulation S-K promulgated
under the Exchange Act, and the related instructions thereto, with Grant Thornton on any matter of accounting principles or practices,
financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to the satisfaction of Grant
Thornton, would have caused it to make reference to the subject matter of the disagreements in connection with its reports. Also
during this same period, there were no “reportable events” within the meaning of Item 304(a)(1)(v) of Regulation S-K
and the related instructions thereto.
On September 27, 2019, the Audit Committee
approved the appointment of Ernst & Young LLP as the Company’s new independent registered public accounting firm, effective
upon the dismissal of Grant Thornton LLP. During the Company’s fiscal years ended 2018 and 2019, neither the Company nor
anyone acting on its behalf consulted with Ernst & Young LLP regarding either (i) the application of accounting principles
to a specified transaction, either completed or proposed; or the type of audit opinion that might be rendered on the Company’s
financial statements, and neither a written report nor oral advice was provided to the Company that Ernst & Young LLP concluded
was an important factor considered by the Company in reaching a decision as to the accounting, auditing or financial reporting
issue; or (ii) any matter that was either the subject of a “disagreement” within the meaning of Item 304(a)(1)(iv)
of Regulation S-K and the related instructions thereto or a “reportable event” within the meaning of Item 304(a)(1)(v)
of Regulation S-K and the related instructions thereto.
Stockholders are hereby asked to ratify
the Audit Committee’s appointment of Ernst & Young LLP as our independent registered public accounting firm for the 2020
fiscal year.
The Audit Committee is solely responsible
for selecting our independent auditors. Although stockholder ratification of the appointment of Ernst & Young LLP to serve
as our independent registered public accounting firm is not required by law or our organizational documents, the Board has determined
that it is desirable to seek stockholders ratification as a matter of good corporate governance in view of the critical role played
by independent registered public accounting firms in maintaining the integrity of financial controls and reporting. If the stockholders
do not ratify the appointment of Ernst & Young LLP, the Audit Committee will reconsider its selection and whether to engage
an alternative independent registered public accounting firm.
Representatives of Ernst & Young LLP
are expected to attend the Annual Meeting where they will be available to respond to appropriate questions and, if they desire,
to make a statement.
THE BOARD UNANIMOUSLY
RECOMMENDS A VOTE FOR THE RATIFICATION OF ERNST & YOUNG LLP AS INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM FOR THE COMPANY FOR THE FISCAL YEAR ENDING DECEMBER 31, 2020.
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Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 52
ITEMS
TO BE VOTED ON (continued)
ITEM
5: Approval, on an advisory basis, of the compensation of our named executive officers
Overview
We became a public company in December
2014, and we have previously filed our proxy statements under the reduced reporting rules applicable to emerging growth companies.
As of the close of our fiscal year ended December 31, 2019, we ceased to be an emerging growth company and, therefore, we are offering
our stockholders an opportunity to cast an advisory vote to approve the compensation of our named executive officers, as disclosed
in this proxy statement, pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act enacted in July 2010 (the “Dodd-Frank
Act”) (commonly referred to as a “say-on-pay” vote). The say-on-pay vote gives you as a stockholder the opportunity
to express your views regarding the compensation of our named executive officers by voting to approve or not approve such compensation
as described in this proxy statement. However, our Board of Directors and our Compensation Committee value the opinion of our stockholders
and will take into account the outcome of the vote when considering future executive compensation elements and the overall program
design, as it relates to our named executive officers. If Item 4 in this proxy statement is approved, we expect to hold this vote
on an annual basis for the foreseeable future.
Our Compensation Committee believes that
the objectives of our executive compensation program, as it relates to our named executive officers, are appropriate for a company
of our size and stage of development and that our compensation policies and practices help meet those objectives. In addition,
our Compensation Committee believes that our executive compensation program, as it relates to our named executive officers, achieves
an appropriate balance between fixed compensation and variable incentive compensation, pays for performance and promotes an alignment
between the interests of our named executive officers and our stockholders. Accordingly, we are asking our stockholders to approve
the compensation of our named executive officers. This advisory vote is not intended to be limited or specific to any particular
element of compensation, but rather to cover the overall compensation of our named executive officers and the compensation policies
and practices described in this proxy statement as it relates to our named executive officers.
Prior to casting your vote on this proposal,
you are encouraged to read this proxy statement, and in particular the section entitled “Executive Compensation,” including
the compensation tables and narrative discussion, for a more detailed discussion of our compensation philosophy, objectives and
programs.
THE BOARD UNANIMOUSLY
RECOMMENDS A VOTE, IN AN ADVISORY MANNER, FOR THE APPROVAL OF THE COMPENSATION OF
OUR NAMED EXECUTIVE OFFICERS.
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Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 53
ITEMS
TO BE VOTED ON (continued)
ITEM
6: Advisory vote on the frequency of future advisory votes on Executive Compensation
Overview
We are seeking your input with regard to
the frequency of holding future stockholder advisory votes on the compensation of our named executive officers. In particular,
we are asking whether the advisory vote on the compensation of our named executive officers (see, for instance, Item 3) should
occur every year, every two years or every three years. We are required by SEC rules to submit to stockholders a non-binding advisory
vote on this matter once every six years. Because your vote is advisory, it will not be binding on our Compensation Committee or
our Board of Directors. However, the Compensation Committee and the Board will review the voting results and take them into consideration
when making future decisions regarding how frequently it should present the advisory vote on the compensation of our named executive
officers to our stockholders.
After careful consideration, our Board
of Directors has determined that holding an advisory vote on executive compensation every year is the most appropriate policy for
the Company at this time, and recommends that stockholders vote for future advisory votes on executive compensation to occur every
year. In formulating its recommendation, our Board of Directors considered that an annual advisory vote on executive compensation
will provide our stockholders with an appropriate time frame to evaluate the effectiveness of our compensation philosophy, policies
and practices.
The proxy card provides stockholders with
the opportunity to choose among four options (holding the advisory vote on compensation every one, two or three years, or abstaining)
and, therefore, stockholders will not be voting to approve or disapprove the Board’s recommendation. The affirmative vote
of a majority of the shares voted for this proposal—every year, every two years or every three years—will be the frequency
approved, on an advisory basis, by our stockholders. However, because the vote on the frequency of holding future advisory votes
on the compensation of our named executive officers is not binding, if none of the frequency options receives a majority vote,
the option receiving the greatest number of votes will be considered the frequency preferred by our stockholders.
THE BOARD UNANIMOUSLY RECOMMENDS
THAT STOCKHOLDERS VOTE TO
CONDUCT FUTURE ADVISORY VOTES ON EXECUTIVE COMPENSATION ANNUALLY
BY SELECTION OF ONE
YEAR ON THE PROXY CARD
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Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 54
OTHER
INFORMATION
OTHER
MATTERS
The Annual Meeting is called for the purposes
set forth in the Notice. Our Board does not know of any other matters to be considered by the stockholders at the Annual Meeting
other than the matters described in the Notice. However, the enclosed proxy confers discretionary authority on the persons named
in the proxy card with respect to matters that may properly come before the Annual Meeting and that are not known to our Board
at the date this proxy statement was printed. It is the intention of the persons named in the proxy card to vote in accordance
with their best judgment on any such matter.
REQUIREMENTS
FOR SUBMISSION OF Director NOminations and StockHOLDER PROPOSALS FOR NEXT YEAR’S ANNUAL MEETING
In order to be considered for inclusion
in the proxy statement for our 2021 Annual Meeting of Stockholders, Stockholders interested in submitting a proposal or nominate
a director for election at next year’s Annual Meeting of Stockholders may do so by following the procedures prescribed in
Rule 14a-8 promulgated under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”). To be eligible
for inclusion in our proxy materials, stockholder director nominations or proposals must be received at our principal executive
offices no later than the close of business on July 2, 2021, which is the 120th day prior to the first anniversary we
released this Proxy Statement to our stockholders for the 2020 Annual Meeting. To be included in our proxy materials, your director
nomination or proposal must also comply with our Bylaws and Rule 14a-8 promulgated under the Exchange Act. If we change the date
of the 2021 Annual Meeting of Stockholders by more than 30 days from the anniversary of this year’s Annual Meeting, stockholder
nominations or proposals must be received a reasonable time before we begin to make available the proxy materials for the 2021
Annual Meeting in order to be considered for inclusion in our Proxy Statement. Such proposals should be sent to Ocugen, Inc., 5
Great Valley Parkway, Suite 160, Malvern, PA 19355 Attention: Corporate Secretary.
Alternatively, stockholders intending to
present a proposal or nominate a director for election at next year’s Annual Meeting of Stockholders without having the proposal
or nomination included in our Proxy Statement must deliver written notice of the nomination or proposal to our Corporate Secretary
at our principal executive offices no earlier than August 16, 2021, which is the 75th day prior to the first anniversary
of the date we released this Proxy Statement to our stockholders for the 2020 Annual Meeting, and no later than September 15, 2021,
which is the 45th day prior to the first anniversary of the date we released this Proxy Statement to our stockholders
for the 2020 Annual Meeting. However, if we change the date of our 2021 Annual Meeting of Stockholders by more than 30 days from
the anniversary of this year’s Annual Meeting, such nominations and proposals must be received no later than the close of
business on the later of (a) the 90th day prior to our 2021 Annual Meeting of Stockholders and (b) the 10th day following the day
we first publicly announce the date of our 2021 Annual Meeting of Stockholders. The stockholder’s written notice must include
certain information concerning the stockholder and each nominee and proposal, as specified in our Bylaws. If the stockholder does
not also satisfy the requirements of Rule 14a-4 promulgated under the Exchange Act, the persons named as proxies will be allowed
to use their discretionary voting authority when and if the matter is raised at the 2020 annual meeting of stockholders. Such nominations
or proposals should be sent to Ocugen, Inc., 5 Great Valley Parkway, Suite 160, Malvern, PA 19355 Attention: Corporate Secretary.
STOCKHOLDER
COMMUNICATIONS TO THE BOARD
Stockholders and other interested parties
may communicate with the Board by writing to the Corporate Secretary, Ocugen, Inc., 5 Great Valley Parkway, Suite 160, Malvern,
PA 19355. Communications intended for a specific director or directors should be addressed to their attention to the Corporate
Secretary at the address provided above. Communications received from stockholders are forwarded directly to Board members as part
of the materials mailed in advance of the next scheduled Board meeting following receipt of the communications. The Board has authorized
the Corporate Secretary, in his discretion, to forward communications on a more expedited basis if circumstances warrant or to
exclude a communication if it is illegal, unduly hostile or threatening, or similarly inappropriate. Advertisements, solicitations
for periodical or other subscriptions, and other similar communications generally will not be forwarded to the directors.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 55
OTHER INFORMATION
(continued)
AVAILABILITY
OF MATERIALS
Our Annual Report on Form 10-K for the
fiscal year ended December 31, 2019, including the financial statements and financial statement schedules, has been filed with
the SEC and provides additional information about us, which is incorporated by reference herein. Our proxy statement for our 2020
Annual Meeting of Stockholders and, in compliance with securities rules, our Annual Report on Form 10-K for the fiscal year ended
December 31, 2019 (together, the “Proxy Materials”) were mailed on October 30, 2020. In accordance with the rules
of the SEC, we are advising our stockholders of the availability on the internet of our proxy materials related to our forthcoming
Annual Meeting. Because we have elected to utilize the “full set delivery” option, we are delivering to all stockholders
paper copies of all of the proxy materials, as well as providing access to those proxy materials on a publicly accessible website.
The Proxy Materials are available to holders of our common stock at www.Proxyvote.com.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | 56
APPENDIX
A
CERTIFICATE OF AMENDMENT
OF
SIXTH AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION
OF
OCUGEN, INC.
(Pursuant to Section 242 of the
General Corporation Law of the State of
Delaware)
Ocugen, Inc., a corporation
duly organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”),
does hereby certify that:
1. The name of the Corporation is Ocugen, Inc.
2. That a resolution was duly adopted by the Board of Directors of the Corporation pursuant to Section 242 of the General Corporation Law of the State of Delaware (the “DGCL”) setting forth an amendment to the Sixth Amended and Restated Certificate of Incorporation and declaring said amendment to be advisable. The requisite stockholders of the Corporation have duly approved the proposed amendment in accordance with Section 242 of the DGCL. The amendment amends the Sixth Amended and Restated Certificate of Incorporation as follows:
3. The Sixth Amended and Restated Certificate of Incorporation of the Corporation is hereby amended by inserting the following paragraph immediately following the first paragraph of Article IV, Section A thereof:
“Without
any other action on the part of the Corporation or any other person, effective immediately upon the filing of this Certificate
of Amendment to the Sixth Amended and Restated Certificate of Incorporation of the Corporation (the “Effective Time”),
each [4-20] shares of the Corporation’s Common Stock issued and outstanding (the “Old Common Stock”)
shall automatically, without further action on the part of the Corporation or any holder of Old Common Stock, convert into one
(1) fully paid and nonassessable shares of Common Stock (the “New Common Stock”).
The conversion described in the foregoing sentence shall be collectively referred to herein as the “Reverse Stock
Split”. Any shares of Old Common Stock currently held in the Corporation’s treasury
shall also be converted into Common Stock in accordance with the Reverse Stock Split. No fractional shares of Common Stock shall
be issued upon the Reverse Stock Split. In lieu of any fractional shares to which a holder would otherwise be entitled, the Corporation
shall pay cash equal to such fraction multiplied by the then-prevailing price as reported by The Nasdaq Stock Market (or if such
price is not available, then such other price as determined by the Board of Directors). The ownership of a fractional share of
New Common Stock shall not give the holder any voting, dividend or other rights, except the right to receive the cash payment described
in the immediately preceding sentence. From and after the Effective Time, any stock certificates that, immediately prior to the
Effective Time, represented the shares of Old Common Stock shall, from and after the Effective Time, automatically and without
the necessity of presenting the same for exchange, represent the number of shares of New Common Stock into which such Old Common
Stock has been converted in the Reverse Stock Split pursuant to this Certificate of Amendment, subject to the elimination of fractional
share interests as described above. The New Common Stock issued in the Reverse Stock Split shall have the rights, preferences and
privileges as the Old Common Stock.”
4. This Certificate of Amendment shall become effective on _______, 20__ at 12:01 a.m. Eastern Time.
5. Except as set forth in this Certificate of Amendment, the Sixth Amended and Restated Certificate of Incorporation, as amended, remains in full force and effect.
Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | A-1
APPENDIX
A (continued)
IN WITNESS WHEREOF,
Ocugen, Inc. has caused this Certificate to be executed by its duly authorized officer on this _____ day of _____________, 20__.
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OCUGEN,
INC.
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By:
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Name:
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Shankar Musunuri
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Title:
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Chief Executive Officer and Chairman
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Notice of Annual Meeting of Stockholders and 2019 Proxy Statement | A-2
APPENDIX
B
CERTIFICATE OF AMENDMENT
OF
SIXTH AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION
OF
OCUGEN, INC.
(Pursuant to Section 242 of the
General Corporation Law of the State of
Delaware)
Ocugen, Inc., a corporation
duly organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”),
does hereby certify that:
1. The name of the Corporation is Ocugen, Inc.
2. That a resolution was duly adopted by the Board of Directors of the Corporation pursuant to Section 242 of the General Corporation Law of the State of Delaware (the “DGCL”) setting forth an amendment to the Sixth Amended and Restated Certificate of Incorporation and declaring said amendment to be advisable. The requisite stockholders of the Corporation have duly approved the proposed amendment in accordance with Section 242 of the DGCL. The amendment amends the Sixth Amended and Restated Certificate of Incorporation as follows:
3. The Sixth Amended and Restated Certificate of Incorporation of the Corporation is hereby amended by amended by amending and restating Article IV, Paragraph A in its entirety as follows:
“A.
The total number of shares of all classes of stock which the Corporation shall have authority to issue is five hundred ten million
(510,000,000), consisting of five hundred million (500,000,000) shares of Common Stock, par value $0.01 per share (the “Common
Stock”), and ten million (10,000,000) shares of Preferred Stock, par value $0.01 per share (the “Preferred Stock”).”
4. This Certificate of Amendment shall become effective on _______, 20__ at 12:01 a.m. Eastern Time.
5. Except as set forth in this Certificate of Amendment, the Sixth Amended and Restated Certificate of Incorporation, as amended, remains in full force and effect.
IN WITNESS WHEREOF,
Ocugen, Inc. has caused this Certificate to be executed by its duly authorized officer on this _____ day of _____________, 20__.
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OCUGEN,
INC.
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By:
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Name:
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Shankar Musunuri
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Title:
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Chief Executive Officer and Chairman
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Notice of Annual Meeting of Stockholders and 2020 Proxy Statement | B-1
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VOTE
BY INTERNET Before The Meeting - Go to www.proxyvote.com OCUGEN, INC. C/O BROADRIDGE P.O. BOX 1342 BRENTWOOD, NY 11717 Use
the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 p.m. Eastern Time
the day before the cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the
instructions to obtain your records and to create an electronic voting instruction form. During The Meeting - Go to www.virtualshareholdermeeting.com/OCGN2020
You may attend the meeting via the Internet and vote during the meeting. Have the information that is printed in the box marked
by the arrow available and follow the instructions. VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit
your voting instructions up until 11:59 p.m. Eastern Time the day before the cut-off date or meeting date. Have your proxy
card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it
in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood,
NY 11717. TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: D25427-P45584 KEEP THIS PORTION FOR YOUR RECORDS THIS
PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. DETACH AND RETURN THIS PORTION ONLY OCUGEN, INC. For Withhold For All To withhold
authority to vote for any individual The Board of Directors recommends you vote FOR the following: All All Except nominee(s),
mark "For All Except" and write the number(s) of the nominee(s) on the line below. 3. Election of Class III Directors for
a Three-Year Term Expiring in 2023. Nominees: 01) Kirsten Castillo 02) Prabhavathi Fernandes, Ph.D. 03) Suha Taspolatoglu,
M.D. The Board of Directors recommends you vote FOR the following proposals: For Against Abstain The Board of Directors recommends
you vote 1 year on the following proposal: 1 Year 2 Years 3 Years Abstain 1. Approval and adoption of an Amendment to the
Certificate of Incorporation effecting a Reverse Stock Split. 2. Approval and adoption of an Amendment to the Certificate
of Incorporation to increase the number of 6. Advisory vote on the frequency of future advisory votes on Executive Compensation.
authorized shares of common stock to 500,000,000 shares. 4. Ratification of Appointment of Ernst & Young LLP as Ocugen,
Inc.'s Independent Registered Public Accounting Firm for 2020. 5. Approval, on an advisory basis, of the compensation of Ocugen,
Inc.'s named executive officers. NOTE: Such other business as may properly come before the meeting or any adjournment thereof.
Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary,
please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership,
please sign in full corporate or partnership name by authorized officer. Signature [PLEASE SIGN WITHIN BOX] Date Signature
(Joint Owners) Date
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Important
Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Proxy Statement and Form 10-K are available
at www.proxyvote.com. D25428-P45584 OCUGEN, INC. Annual Meeting of Stockholders December 11, 2020 8:00 AM EST This proxy is
solicited by the Board of Directors The stockholders hereby appoint Shankar Musunuri and Sanjay Subramanian, or either of
them, as proxies, each with the power to appoint their substitute, and hereby authorizes them to represent and to vote, as
designated on the reverse side of this ballot, all of the shares of common stock of OCUGEN, INC. that the stockholders are
entitled to vote at the Annual Meeting of Stockholders to be held at 8:00 AM EST on December 11, 2020, at www.virtualshareholdermeeting.com/OCGN2020,
and any adjournment or postponement thereof. This proxy, when properly executed, will be voted in the manner directed herein.
If no such direction is made, this proxy will be voted in accordance with the Board of Directors' recommendations. Continued
and to be signed on reverse side will be voted in the manner directed herein. If no such direction is made, this proxy will
be voted in accordance with the Board of Directors' recommendations. Continued and to be signed on reverse side
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