UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM
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CURRENT REPORT
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Securities Exchange Act of 1934
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Item 1.01. Entry Into a Material Definitive Agreement.
Securities Purchase Agreement
On September 30, 2022, OpGen, Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) with a certain institutional investor (the “Investor”), pursuant to which the Company agreed to issue and sell to the Investor in a registered direct offering (the “Registered Offering”) (i) 5,360,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), (ii) 33,810 shares of the Company’s Series C Mirroring Preferred Stock (the “Preferred Stock”), par value $0.01 per share and stated value of $0.01 per share, and (iii) pre-funded warrants to purchase an aggregate of 4,300,000 shares of Common Stock (the “Pre-funded Warrants”). Each share of Common Stock was sold at a price of $0.35 per share, each share of Preferred Stock is being sold a price of $0.01 per share, and each Pre-funded Warrant was sold at an offering price of $0.34 per share underlying such Pre-funded Warrants, for aggregate gross proceeds of $3.38 million before deducting the placement agent’s fees and the offering expenses. Under the Purchase Agreement, the Company also agreed to issue and sell to the Investor in a concurrent private placement (the “Private Placement,” and together with the Registered Offering, the “Offering”) warrants to purchase an aggregate of 9,660,000 shares of Common Stock (the “Common Warrants,” and together with the Pre-funded Warrants, the “Warrants”).
In connection with the Offering, the Company also entered into a warrant amendment agreement (the “Warrant Amendment Agreement”) with the Investor. Under the Warrant Amendment Agreement, the Company agreed to amend certain existing warrants to purchase up to 14,829,751 shares of common stock that were previously issued in 2018 and 2021 to the Investor, with exercise prices ranging from $2.05 to $65.00 per share (the “Existing Warrants”), in consideration for their purchase of the securities in the Offering, as follows: (i) lower the exercise price of the Existing Warrants to $0.377 per share, (ii) provide that the Existing Warrants, as amended, will not be exercisable until six months following the closing date of the Offering, and (iii) extend the original expiration date of the Existing Warrants by five and one-half years following the close of the Offering. The Warrant Amendment Agreement is subject to the consummation of the Offering and the Investor’s satisfaction of its purchase commitment thereunder.
The Offering closed on October 3, 2022.
In connection with the Offering and in accordance with the Purchase Agreement, the Company plans to call a special meeting of stockholders to consider a proposal (the “Proposal”) to amend the Company’s Amended and Restated Certificate of Incorporation, as amended (the “Charter”) to effect a reverse stock split at a ratio of not less than five-to-one and not more than twenty-to-one (the “Reverse Stock Split”), such ratio and the implementation and timing of such Reverse Stock Split to be determined in the discretion of our Board of Directors. The Investor has agreed in the Purchase Agreement to vote the shares of Common Stock purchased in the Offering in favor of such Proposal and to vote the shares of Preferred Stock purchased in the Offering in the same proportions as all shares of Common Stock are voted on the Proposal (excluding shares of Common Stock that are not voted).
Pursuant to the Purchase Agreement, the Company filed a certificate of designation (the “Certificate of Designation”) with the Secretary of State of Delaware designating the rights, preferences and limitations of the shares of Preferred Stock on September 30, 2022. The Certificate of Designation provides, in particular, that the Preferred Stock will have no voting rights, other than the right to vote as a class on certain matters, except that each share of Preferred Stock will have the right to cast 100,000 votes per share of Preferred Stock on the Proposal. The Investor agreed in the Purchase Agreement to vote the shares of Preferred Stock purchased in the Offering in the same proportion as the aggregate shares of Common Stock voted on the Proposal (excluding shares of Common Stock that are not voted).
The holders of Preferred Stock will not be entitled to any dividends and such shares will not be convertible into shares of Common Stock or other securities of the Company. In the event of a liquidation of the Company, the holders of the Preferred Stock will be entitled to receive an amount equal to the stated value of the shares of Preferred Stock prior to any payment or distribution is made to the holders of Common Stock. Following the receipt of stockholder approval for the Reverse Stock Split, the shares of Preferred Stock will automatically be terminated and cease to be outstanding.
The Common Warrants will have an exercise price of $0.377 per share, will be exercisable six months following the date of issuance, and will expire five and one-half years following the initial exercise date. The exercise price and the number of shares of Common Stock issuable upon exercise of each Common Warrant is subject to appropriate adjustments in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting the Common Stock. In addition, in certain circumstances, upon a fundamental transaction, a holder of Warrants will be entitled to receive, upon exercise of the Common Warrants, the kind and amount of securities, cash or other property that such holder would have received had they exercised the Common Warrants immediately prior to the fundamental transaction; provided, however, that in the event of a fundamental transaction where the consideration consists solely of cash, solely of marketable securities or a combination thereof, each Common Warrant will be deemed to be exercised in full in a cashless exercise effective immediately prior to and contingent upon the consummation of such fundamental transaction.
The Company may not effect the exercise of certain Common Warrants, and the applicable holder will not be entitled to exercise any portion of any such Common Warrant, which, upon giving effect to such exercise, would cause the aggregate number of shares of Common Stock beneficially owned by the holder of such Common Warrant (together with its affiliates) to exceed 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of such Common Warrants.
Each Pre-funded Warrant has an exercise price per share of Common Stock equal to $0.01 per share. The exercise price and the number of shares of Common Stock issuable upon exercise of each Pre-funded Warrant are subject to appropriate adjustments in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting the Common Stock. In addition, in certain circumstances, upon a fundamental transaction, a holder of Pre-funded Warrants will be entitled to receive, upon exercise of the Pre-funded Warrants, the kind and amount of securities, cash or other property that such holder would have received had they exercised the Pre-funded Warrants immediately prior to the fundamental transaction; provided, however, that in the event of a fundamental transaction where the consideration consists solely of cash, solely of marketable securities or a combination thereof, each Pre-funded Warrant will be deemed to be exercised in full in a cashless exercise effective immediately prior to and contingent upon the consummation of such fundamental transaction.
The representations, warranties and covenants contained in the Purchase Agreement were made solely for the benefit of the parties to the Purchase Agreement and may be subject to limitations agreed upon by the contracting parties. Accordingly, the Purchase Agreement is incorporated herein by reference only to provide investors with information regarding the terms of the Purchase Agreement, and not to provide investors with any other factual information regarding the Company or its business, and should be read in conjunction with the disclosures in the Company’s periodic reports and other filings with the Securities and Exchange Commission.
The foregoing description of the Purchase Agreement, Warrant Amendment Agreement, Pre-funded Warrants, Common Warrants, and the Certificate of Designation do not purport to be complete and are qualified in their entirety by reference to the full text of the form of Purchase Agreement, Warrant Amendment Agreement, Pre-funded Warrants, Common Warrants, and Certificate of Designation which are filed as Exhibits 10.1, 10.2, 4.1, 4.2 and 3.1, respectively, to this Current Report on Form 8-K and incorporated herein by reference. The legal opinion, including the related consent, of Ballard Spahr LLP relating to the issuance and sale of the Preferred Stock and the shares issuable upon exercise of the Common Warrants is filed as Exhibit 5.1 hereto.
Item 3.02. Unregistered Sales of Equity Securities.
The disclosure required by this Item and included in Item 1.01 of this Current Report is incorporated herein by reference.
Item 3.03. Material Modifications to Rights of Security Holders.
The disclosure required by this Item and included in Item 1.01 of this Current Report is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The disclosure required by this Item and included in Item 1.01 of this Current Report is incorporated herein by reference.
Item 8.01. Other Events.
On September 30, 2022, the Company issued a press release announcing the Offering and the entry into the Purchase Agreement. On October 3, 2022, the Company issued a press release announcing the closing of the Offering. A copy of such press releases are attached to this Current Report on Form 8-K as Exhibits 99.1 and 99.2.
Item 9.01 — Financial Statements and Exhibits.
(d) Exhibits
| 3.1 | ||
| 4.1 | Form of Common Stock Purchase Warrant. | |
| 4.2 | Form of Pre-funded Warrant. | |
| 5.1 | Opinion of Ballard Spahr LLP. | |
| 10.1 | Form of Securities Purchase Agreement, dated September 30, 2022, by and between OpGen, Inc. and the Investor. | |
| 10.2 | Form of Warrant Amendment Agreement, dated September 30, 2022, by and between OpGen, Inc. and the Investor. | |
| 23.1 | Consent of Ballard Spahr LLP (included in Exhibit 5.1). | |
| 99.1 | Press release dated September 30, 2022. | |
| 99.2 | Press release dated October 3, 2022. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Date: October 3, 2022 | OpGen, Inc. | |||||
| By: |
/s/ Oliver Schacht, Ph.D | |||||
| Name: | Oliver Schacht, Ph.D | |||||
| Title: | Chief Executive Officer | |||||