Item 1.01 – Entry into a
Material Definitive Agreement.
On October 23, 2019, OpGen, Inc.
(the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with H.C. Wainwright
& Co., LLC (the “Underwriter”), relating to an underwritten public offering (the “Offering”) of (i)
2,590,170 units (“Units”), with each Unit being comprised of one share of the Company’s common stock, par value
$0.01 per share, and one common warrant to purchase one share of common stock (the “Warrants”) and (ii) 2,109,830
pre-funded units (“Pre-Funded Units”), with each Pre-Funded Unit being comprised of one pre-funded warrant (collectively,
the “Pre-Funded Warrants”) to purchase one share of common stock and one Warrant. The Offering closed on October 28,
2019. The Offering price to the public was $2.00 per Unit and $1.99 per Pre-Funded Unit. The total number of Warrants included
in the Units and Pre-Funded Units was 4,700,000. The Warrants included in the Units and the Pre-Funded Units are immediately exercisable
at a price of $2.00 per share of common stock and expire five years from the date of issuance. The shares of common stock, or
Pre-Funded Warrants in the case of the Pre-Funded Units, and the Warrants were offered together, but the securities contained
in the Units and the Pre-Funded Units were issued separately.
The Company also granted the Underwriter
a 30-day option to purchase up to an additional 705,000 shares of common stock at a public offering price of $1.99 per share and/or
up to 705,000 additional Warrants to purchase an aggregate of 705,000 shares of common stock at a public offering price of $0.01
per Warrant, less the underwriting discounts and commissions of $0.1393 per share and $0.0007 per Warrant.
The Pre-Funded Units were offered
and sold to purchasers whose purchase of Units in the Offering would otherwise result in the purchaser, together with its affiliates
and certain related parties, beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of the Company’s
outstanding common stock immediately following the consummation of the Offering in lieu of Units that would otherwise result in
the purchaser’s beneficial ownership exceeding 4.99% of the Company’s outstanding common stock (or, at the election
of the purchaser, 9.99%). Each Pre-Funded Warrant contained in a Pre-Funded Unit is exercisable for one share of common stock
at an exercise price of $0.01 per share. The Pre-Funded Warrants are immediately exercisable and may be exercised at any time
until all of the Pre-Funded Warrants are exercised in full.
The Underwriting Agreement contains
customary representations and warranties, agreements and obligations, conditions to closing and termination provisions. The Underwriting
Agreement provides for indemnification by the Underwriter of the Company, its directors and certain of its executive officers,
and by the Company of the Underwriter, for certain liabilities, including liabilities arising under the Securities Act of 1933,
as amended, and affords certain rights of contribution with respect thereto.
The net proceeds to the Company from
the Offering was approximately $8.3 million, excluding the proceeds, if any, from the exercise of the Warrants and the Pre-Funded
Warrants sold in the Offering, and after deducting underwriting discounts and commissions and the payment of other estimated offering
expenses associated with the Offering that are payable by the Company. The Company intends to use the net proceeds of the Offering
for the following purposes: prior to the closing of the transactions contemplated by the Implementation Agreement (the “Implementation
Agreement”) entered into by the Company and Curetis N.V., a Dutch publicly-listed company on Euronext, to (1) complete the
business combination with Curetis GmbH, a private limited liability company organized under the Federal Republic of Germany and
a wholly-owned subsidiary of Curetis N.V. (“Curetis”); (2) provide short-term funding to Curetis to fund its and its
subsidiaries’ (the “Curetis Group”) current operations; and (3) support the Company’s research and development
and regulatory activities for the Company’s anticipated FDA 510(k) submissions for the Acuitas AMR Gene Panel test and the
Acuitas Lighthouse Software; and, if any proceeds remain following the closing of the transactions under the Implementation Agreement,
to: (4) commercialize the combined business of the Company and the Curetis Group’s products, with a focus on the Unyvero
platform and diagnostic tests and the Acuitas AMR Gene Panel tests; (5) support further development and commercialization of the
Ares Genetics database and Acuitas Lighthouse Software; (6) fund directed efforts to the customers and collaborators of each company
to introduce the products and services of the combined business of the Company and the Curetis Group; (7) invest in manufacturing
and operations infrastructure to support sales of products; and (8) the balance, if any, for general corporate purposes.
Pursuant to the Underwriting Agreement,
the Company, upon closing of the Offering, issued to the Underwriter warrants (the “Underwriter Warrants”) to purchase
235,000 shares of common stock, or 5% of the aggregate number of shares of common stock sold in the Offering (including the number
of shares of common stock issuable upon exercise of the Pre-Funded Warrants sold in the Offering). The Underwriter Warrants are
immediately exercisable, in whole or in part, and may be exercised at any time for five years from the effective date of the registration
statement, at a price per share equal to $2.60 (130% of the offering price to the public per Unit).
A registration statement on Form
S-1 relating to the Offering (File No. 333-233775) was declared effective by the Securities and Exchange Commission on October
23, 2019. The Offering is being made only by means of a prospectus forming a part of the effective registration statement.
The foregoing descriptions of the
Underwriting Agreement, the Warrants, the Pre-Funded Warrants, and the Underwriter Warrants are not complete and are qualified
in their entirety by reference to the full text of the Underwriting Agreement and the forms of Warrant and Underwriter Warrant,
copies of which are filed as Exhibits 1.1, Exhibit 4.1, and Exhibit 4.3 hereto, and incorporated by reference herein, and the
form of Pre-Funded Warrant, which is incorporated by reference herein from an exhibit to the Form S-1.
Forward Looking Statements
This Current Report on Form 8-K includes
statements relating to the intended use of proceeds from the Offering, the completion of the business combination with Curetis
N.V. and the Company's products and services. These statements and other statements regarding the Company’s future plans
and goals constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933
and Section 21E of the Securities Exchange Act of 1934, and are intended to qualify for the safe harbor from liability established
by the Private Securities Litigation Reform Act of 1995. Such statements are subject to risks and uncertainties that are often
difficult to predict, are beyond the Company’s control, and which may cause results to differ materially from expectations.
Factors that could cause the Company’s results to differ materially from those described include, but are not limited to,
the fact that the Company has broad discretion as to the use of proceeds from the Offering and that the Company may not use the
proceeds effectively; risks and uncertainties associated with market conditions, the Company’s ability to successfully and
timely seek approval of, and obtain approval of its stockholders for the business combination with Curetis N.V., satisfy the closing
conditions under the Implementation Agreement, successfully combine the businesses of the Company and Curetis GmbH, comply with
the complexities of a global business, achieve the synergies the Company expects and successfully implement the combined company’s
strategic and business goals and objectives. For a discussion of the most significant risks and uncertainties associated with
the Company’s business, investors and security holders should review the Company’s filings with the Securities and
Exchange Commission. Investors and security holders are cautioned not to place undue reliance on these forward-looking statements,
which are based on the Company’s expectations as of the date of this Current Report on Form 8-K and speak only as of such
date. The Company undertakes no obligation to publicly update or revise any forward-looking statement, whether as a result of
new information, future events or otherwise.
No Offer or Solicitation
This report relates to the
consummation of the Offering, which is a closing condition to a proposed business combination between the Company and Curetis
GmbH. This report is neither an offer to purchase, nor a solicitation of an offer to sell, any securities or the solicitation
of any vote in any jurisdiction pursuant to the proposed transactions or otherwise, nor shall there be any sale, issuance
or transfer or securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except
by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.
Additional Information and Where
to Find It
In connection with the
transactions contemplated by the Implementation Agreement (the definitive agreement related to the proposed business
combination between the Company and Curetis GmbH), a Registration Statement on Form S-4 will be filed with the Securities and
Exchange Commission (the “SEC”). Investors and security holders are encouraged to read the registration statement
and any other relevant documents filed with the SEC, including the proxy statement/prospectus that will be part of the
registration statement, when they become available, because they will contain important information about the proposed
transaction. The final proxy statement/prospectus will be mailed to stockholders of the Company. Investors and security
holders will be able to obtain the documents free of charge at the SEC’s website, www.sec.gov, or from the Company at
its website, www.opgen.com.