Item 1.01 Entry into a Material Definitive Agreement.
As previously disclosed, on September 4, 2019, OpGen, Inc. (the "Company")
entered into a business combination transaction pursuant to an Implementation
Agreement (the "Implementation Agreement"), by and among the Company, Curetis
N.V., a public company with limited liability under the Laws of the Netherlands
("Curetis"), 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 (the "Purchaser"). Under the Implementation Agreement, the Company
agreed to assume, as a condition to closing the transactions under the
Implementation Agreement, all of the outstanding convertible notes (the
"Convertible Notes") issued by Curetis in favor of YA II PN, LTD ("Yorkville"),
pursuant to that certain Agreement for the Issuance of and Subscription to Notes
Convertible into Shares and Share Subscription Warrants, dated October 2, 2018,
by and between Curetis and Yorkville.
On February 24, 2020, the Company entered into an Assignment of the Agreement
for the Issuance of and Subscription to Notes Convertible into Shares (the
"Assignment Agreement") with Curetis and Yorkville. The Assignment Agreement
satisfies the Company's condition to closing of assuming the Convertible Notes
and provides that, effective as of the closing of the transactions contemplated
by the Implementation Agreement, the Company will assume all of the outstanding
Convertible Notes. In addition, pursuant to the Assignment Agreement, upon
assumption of the Convertible Notes by the Company, the Convertible Notes will
cease to be convertible into shares of Curetis and will instead be convertible
into shares of the Company's common stock, par value $0.01. The Assignment
Agreement provides that an amount of 500,000 shares of the Company's common
stock that comprise a portion of the consideration payable by the Company under
the Implementation Agreement will be reserved for issuance under the Convertible
Notes. The Company also agreed to register for resale up to 1,000,000 shares of
Company common stock issuable upon conversion of the Convertible Notes within
the later of 60 days following the later of the filing of the Company's Annual
Report on Form 10-K for the year ended December 31, 2019 and the closing of the
transactions contemplated by the Implementation Agreement.
Each Convertible Note has a maturity of 12 months from its date of issuance.
Curetis, or after closing of the transaction contemplated by the Implementation
Agreement, the Company, has the right to extend such maturity by an additional
12-month period, while paying a cash fee equal to 5% of the principal amount of
the relevant Convertible Notes. Subject to certain limitations, the maturity
period can be extended up to four times.
The Convertible Notes shall not accrue interest, except in the case of an event
of default under the Convertible Notes, in which case the Convertible Notes
shall accrue default interest at a rate of 15% per annum until the earlier of
the date that the event of default is cured or the date on which the Convertible
Notes have been fully converted or redeemed.
The Convertible Notes may be converted at any time until they are fully
redeemed. Upon conversion of one or more Convertible Notes into shares of the
Company's common stock, the number of Company shares will be calculated by
dividing the aggregate principal amount of the relevant Convertible Notes by 93%
of the lowest daily volume weighted average price of the Company common stock on
the Nasdaq Capital Market over the 10 trading days prior to the conversion date.
The Convertible Notes may be freely transferred, except to retail investors, and
subject to compliance with applicable securities laws. The Convertible Notes
contain anti-dilution protection, which protects the holder of the security from
equity dilution resulting from later issues of shares at a lower price or value
than that provided for in the security. The protection in the Convertible Notes
takes the form of tying the conversion price of the Convertible Notes to the
prevailing market price of the underlying shares of Company common stock so that
changes to the share price due to share issuances, share splits or other
potentially dilutive events will result in a corresponding change in the number
of shares of Company common stock issuable upon conversion of a Convertible
As of February 24, 2020, an aggregate amount of €1.3 million of unconverted
Convertible Notes was outstanding.
The foregoing description of the Assignment Agreement is only a summary and is
qualified in its entirety by reference to the complete text of the Assignment
Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and
incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
10.1 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.
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