Item 2.01 Completion of Acquisition or Disposition of Assets.
On April 1, 2020 (the "Closing Date"), OpGen, Inc. (the "Company") completed its
business combination transaction (the "Transaction") with Curetis N.V., a public
company with limited liability under the laws of the Netherlands (the "Seller"),
as contemplated by the Implementation Agreement, dated as of September 4, 2019
(the "Implementation Agreement"), by and among the Company, the Seller, and
Crystal GmbH, a private limited liability company organized under the laws of
the Federal Republic of Germany and wholly owned subsidiary of the Company
("Purchaser"). Pursuant to the Implementation Agreement, the Purchaser acquired
all of the shares of Curetis GmbH, a private limited liability company organized
under the laws of the Federal Republic of Germany ("Curetis GmbH") and certain
other assets and liabilities of the Seller, as further described below, and
paid, as the sole consideration, 2,028,208 shares of the Company's common stock,
par value $0.01 per share (the "Common Stock"), to the Seller, and reserved for
future issuance (a) 134,356 shares of Common Stock, in connection with its
assumption of the Seller's 2016 Stock Option Plan, as amended (the "Seller Stock
Option Plan"), and the outstanding awards thereunder, and (b) 500,000 shares of
Common Stock to be issued upon the conversion, if any, of certain convertible
notes issued by the Seller. The 2,028,208 shares of Common Stock issued to the
Seller represents approximately 13.8% of the outstanding Common Stock of the
Company as of the date thereof.
At the closing, the Company assumed all of the liabilities of the Seller solely
and exclusively related to the acquired business, which is providing innovative
solutions, through development of proprietary platforms, diagnostic content,
applied bioinformatics, lab services, research services and commercial
collaborations and agreements, for molecular microbiology, diagnostics designed
to address the global challenge of detecting severe infectious diseases and
identifying antibiotic resistances in hospitalized patient (the "Curetis
Business"). Pursuant to the Implementation Agreement, the Company also assumed
and adopted the Seller Stock Option Plan as an Amended and Restated Stock Option
Plan of the Company. In connection with the foregoing, the Company assumed all
awards thereunder that were outstanding as of the Closing Date and converted
such awards into options to purchase shares of Common Stock pursuant to the
terms of the applicable award. In addition, the Company assumed, at the closing,
all of the outstanding convertible notes issued by Seller in favor of YA II PN,
LTD, pursuant to the previously disclosed Assignment of the Agreement for the
Issuance of and Subscription to Notes Convertible into Shares, dated February
24, 2020 (the "Assignment Agreement"), and entered into pursuant to the
The foregoing summary of certain terms of the Implementation Agreement, the
Amended and Restated Stock Option Plan, and the Assignment Agreement do not
purport to be complete and are subject to, and qualified in their entirety by,
the full text of such documents. The Implementation Agreement and the Assignment
Agreement are incorporated by reference as Exhibits 2.1 and 10.2 to this Current
Report on Form 8-K, and the Amended and Restated Stock Option Plan is attached
to this Current Report on Form 8-K as Exhibit 10.1, each of such exhibits are
incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Resignation of Certain Directors and Officers
Effective upon the consummation of the Transaction, and pursuant to the terms of
the Implementation Agreement, (a) Evan Jones resigned from his positions as the
Company's Chief Executive Officer ("CEO") and Chairman of the Board of Directors
of the Company (the "Board"), and (b) Tina Nova, Ph.D. and Misti Ushio, Ph.D.
resigned from their position as members of the Board. Mr. Jones remains as a
director of the Company, as does Don Elsey, the chair of the Audit Committee of
Mr. Jones' resignation as CEO of the Company, effective April 1, 2020, was a
resignation for "Good Reason" as defined in his Executive Change in Control and
Severance Benefits Agreement, dated September 24, 2018 (the "Severance
Agreement"). The Severance Agreement is incorporated by reference as Exhibit
10.3 to this Current Report on Form 8-K. Under the Severance Agreement, Mr.
Jones will receive, as severance, an amount equal to one-twelfth of his annual
base salary for six months. In addition, the Company and Mr. Jones entered into
a Transition Agreement and General Release (the "Transition Agreement"),
pursuant to which Mr. Jones will provide transition and integration assistance
services to the Company. Mr. Jones will receive a consulting fee of
approximately $23,000 per month in exchange for the services being provided
under the Transition Agreement. Finally, if Mr. Jones continues to provide
services to the Company until October 1, 2020 he will be paid his accrued but
unpaid 2018 incentive bonus of $75,000. Mr. Jones has provided a general release
of claims against the Company in the Transition Agreement as required by the
The foregoing summary of the Transition Agreement is not complete and is
qualified in its entirety by reference to the Transition Agreement, a copy of
which is attached to this Current Report on Form 8-K as Exhibit 10.4 and
incorporated herein by reference.
Board of Directors
In connection with the closing of the Transaction and pursuant to the
Implementation Agreement, effective as of April 1, 2020, Mario Crovetto,
Prabhavathi Fernandes, Ph.D., William E. Rhodes, III, and Oliver Schacht, Ph.D.
were appointed to the Board, in addition to Mr. Jones and R. Donald Elsey, who
are remaining on the Board. Mr. Rhodes will serve as the non-executive Chairman
of the Board. None of Mr. Crovetto, Dr. Fernandes, or Mr. Rhodes are a party to
any transaction required to be disclosed pursuant to Item 404(a) of Regulation
S-K. The Board has determined that each of Mr. Rhodes, Dr. Fernandes, Mr.
Crovetto and Mr. Elsey are independent under the applicable standards of the
Securities and Exchange Commission ("SEC") and Nasdaq. Neither of Mr. Jones or
Mr. Schacht is an independent member of the Board.
The Company will enter into its standard form of Indemnification Agreement with
each of Mr. Schacht, Mr. Crovetto, Dr. Fernandes and Mr. Rhodes, which provides
for indemnification of the indemnitee to the fullest extent allowed by Delaware
law. The form of Indemnification Agreement is incorporated by reference as
Exhibit 10.5 to this Current Report on Form 8-K.
The biographies of the newly appointed independent directors are set forth
below. See below for the biography of Mr. Schacht.
· Mr. Crovetto served as the chairman of the Audit Committee of Curetis N.V.
since its initial public offering ("IPO") in 2015 until April 1, 2020. Mr.
Crovetto has been working as an independent advisor on M&A and corporate
projects, notably integrations, divestments and financings since 2011. From
1999 to 2011, he was the Chief Financial Officer ("CFO") of Eurand NV
(Specialty Pharmaceuticals), which he took public to Nasdaq in 2007. From 1990
to 1999, he held various senior business positions at Recordati
(Pharmaceuticals), including VP of Corporate Development, Division Manager of
Diagnostics and Chief Financial Officer. Prior to that, he held various
positions at Montedison (Specialty Chemicals), Digital Equipment Corporation,
Mobil and SIAR (Management Consulting). Mr. Crovetto holds a BSc in Economics
from the Università Cattolica del Sacro Cuore, Milan and a Master's degree in
Business Economics from Harvard University, Cambridge, MA.
· Dr. Fernandes served as a member of the Curetis N.V. Supervisory Board from
2016 until April 1, 2020. Until her retirement in December 2016, she was
President and CEO and a member of the board of directors of Cempra
Pharmaceuticals, a company she founded. In 2012, she led the IPO and listing on
Nasdaq for Cempra. Her career of more than four decades has focused on
anti-infectives, first on clinical microbiology and infectious diseases and
subsequently on pharmaceutical discovery and development. Prior to Cempra, Dr.
Fernandes held executive leadership positions at pharmaceutical corporations
including Bristol-Myers Squibb Pharmaceutical Research Institute, Abbott
Laboratories and The Squibb Institute for Medical Research. She serves on the
editorial board of several journals and she has authored numerous publications
and numerous reviews and book chapters and serves as an advisor to three U.S.
based biotechnology companies. In 2017, she was appointed to the National
Biodefense Science Board (NBSB) in the Health and Human Services department of
the U.S. government and in 2018 she was appointed its Chairperson. In 2018, she
was appointed to the Scientific Advisory Board of Global Antibiotic Research &
Development Partnership (GARDP), a joint initiative of DNDi and the WHO, which
aims to develop and deliver new treatments for bacterial infections, and made
Chair of it in November 2019. Finally, Dr. Fernandes joined the Aelin
Therapeutics Board in Leven, Belgium, a company founded on protein aggregation
technology that discovers and develops oncology and antibiotic products. Dr.
Fernandes obtained her MSc in India, and did a Ph.D. and post-doctoral
fellowship in bacterial cell membranes and clinical and public health
· Mr. Rhodes served as the chairman of the Supervisory Board of Curetis N.V.
since its IPO in 2015 until April 1, 2020. Mr. Rhodes is a healthcare executive
with more than 30 years of experience in the healthcare industry. During his
14-year career at Becton, Dickinson and Company (BD, 1998-2012), Mr. Rhodes
held several senior leadership positions, including roles as Worldwide
President of BD Biosciences (2009-2011), a greater than $1 billion revenue
segment of BD. He was also an Executive Officer of BD, and was responsible for
corporate strategy and merger and acquisition functions for all of BD's
businesses. Furthermore, he founded BD Ventures, the venture capital arm of
Becton, Dickinson and Co. Prior to Becton Dickinson, he served in senior
business development positions at Johnson & Johnson and Pfizer Inc. Mr. Rhodes
also served as president at The William-James Co. and has a track record of
over 20 successful acquisitions and divestitures. He was director of Andor
Technologies plc (2013-2014), and has served on the boards of Novocell Inc.,
Conticare Medical, Vitagen Inc., Cellector Inc. and the California Healthcare
Institute, BIO, the San Jose State University Research Foundation and Silicon
Valley Leadership Group. He currently serves as director of Third Day Advisors
LLC (since 2013), Omega Group plc (since 2013), Paramit Corporation LLC (since
2014), and as a member of the Advisory Board of Cayuga Venture Fund (since
2013). Mr. Rhodes has a number of advisory roles with Cornell University,
including serving on the Advisory Councils of the McGovern Family Center for
Life Sciences (since 2013) and Entrepreneurship at Cornell (since 2015). He
also was appointed to the Cornell College of Agriculture and Life Sciences
Dean's Council (2016) and served as a Venture Consultant for Cornell's
Blackstone Launchpad (2016). Moreover, he is on the Editorial Board of the
journal Clinical and Translational Medicine. Mr. Rhodes holds a Master's degree
in International Business from Seton Hall University and a BSc degree from
Cornell University. He originated eleven U.S. patents for novel topical drugs
and has been a lecturer on entrepreneurship in life sciences, innovation
. . .
Item 8.01 Other Information.
On April 1, 2020, the Company issued a press release announcing the closing of
the Transaction, a copy of which is attached as Exhibit 99.1 to this Current
Report on Form 8-K and incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
The required financial statements and pro forma financial information related to
the acquisition of the Curetis Business are not filed with this Current Report
on Form 8-K. OpGen, Inc. will file the required financial statements and pro
forma financial information related to the Curetis Business acquisition within
the 75-day time period required by the applicable SEC regulations.
The following exhibits are filed or furnished herewith:
Exhibit No. Document
2.1 Implementation Agreement, dated as of September 4, 2019, by and among
Curetis N.V., as Seller, and Crystal GmbH, as Purchaser and OpGen, Inc.
(incorporated by reference to the Company's Current Report on Form 8-K
filed with the SEC on September 4, 2019)
10.1 *! Amended and Restated Stock Option Plan
10.2 Assignment of the Agreement for the Issuance of and Subscription to
Notes Convertible into Shares, dated February 24, 2020, among OpGen, Inc.,
YA II PN, LTD, and Curetis N.V. (incorporated by reference to the
Company's Current Report on Form 8-K filed with the SEC on February 28,
10.3 ! Executive Change In Control and Severance Benefits Agreement, dated
September 24, 2018 between OpGen, Inc. and Evan Jones (incorporated by
reference to Exhibit 10.2 to the Registrant's Current Report on Form 8-K,
filed on September 25, 2018)
10.4 *! Transition Agreement between OpGen, Inc. and Evan Jones
10.5 Form of Indemnification Agreement (incorporated by reference to the
Company's Registration Statement on Form S-1 filed with the SEC on March
10.6 *! Amended and Restated Management Services Agreement, dated April 2, 2020,
by and between OpGen, Inc. and Oliver Schacht
99.1 * Press Release issued by OpGen, Inc. dated April 1, 2020
* Filed herewith.
! Management or compensatory agreement.
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