Item 1.01. Entry Into a Material Definitive Agreement.
Securities Purchase Agreement
On October 13, 2021, OpGen, Inc. (the "Company") entered into a Securities
Purchase Agreement (the "Purchase Agreement") with a institutional investor (the
"Investor"), pursuant to which the Company agreed to issue and sell to the
Investor in a registered direct offering (the "Offering") (i) 150,000 shares of
the Company's Series B Convertible Preferred Stock (the "Preferred Stock"), par
value $0.01 per share (the "Preferred Stock"), and (ii) 7,500,000 warrants (the
"Common Warrants") to purchase an aggregate of 7,500,000 shares of the Company's
common stock ("Common Stock"). The shares of Preferred Stock will have a stated
value of $100 per share and are convertible into an aggregate of 7,500,000
shares of Common Stock at a conversion price of $2.00 per share at any time
after the Company receives stockholder approval to increase the number of
authorized shares of Common Stock of the Company. The Company expects to receive
aggregate gross proceeds from the Offering of $15 million before deducting the
placement agent's fees and the Company's Offering expenses. The Offering is
expected to close on or about October 18, 2021, subject to satisfaction of
customary closing conditions.
In connection with the Offering and in accordance with the Purchase Agreement,
the Company plans to call a special meeting of stockholders to consider the
following two proposed amendments (the "Proposals") to the Company's Certificate
of Incorporation, as amended (the "Charter"): (i) an amendment to the Charter to
reduce the stockholder approval requirement for changes to the Charter and
bylaws to a majority of the outstanding shares entitled to vote; and (ii) an
amendment to the Charter to increase the authorized number of shares of capital
stock from 60,000,000 shares to 110,000,000 and the authorized number of shares
of Common Stock from 50,000,000 to 100,000,000 shares. The Investor has agreed
in the Purchase Agreement to vote the shares of Preferred Stock purchased in the
Offering in favor of such Proposals.
Pursuant to the Purchase Agreement, the Company will file 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. The Certificate of Designation will provide, 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 30,000 votes per share of Preferred Stock on the
Proposals; provided, that with respect to the proposal to increase the
authorized shares of Common Stock and in accordance with Nasdaq listing rules,
the votes cast by the holder of the Preferred Stock must be counted by the
Company in the same proportion as the aggregate shares of Common Stock voted on
this proposal.
The holder of Preferred Stock will be entitled to dividends, on an as-if
converted basis, equal to dividends actually paid, if any, on shares of Common
Stock. The Preferred Stock is convertible into shares of Common Stock at a rate
of $2.00 per share. The conversion price can be adjusted pursuant to the
Certificate of Designation for stock dividends and stock splits, subsequent
rights offerings, pro rata distributions of dividends or the occurrence of a
fundamental transaction (as defined in the Certificate of Designation). The
Preferred Stock can be converted at the option of the holder at any time after
the Company has received stockholder approval for the amendment to increase its
authorized shares of Common Stock. In addition, following the receipt of
stockholder approval for such amendment, and subject to the satisfaction of
certain conditions, the Company can cause the holder of the Preferred Stock to
convert their shares of Preferred Stock; provided, that shares of Preferred
Stock cannot be converted to Common Stock if the holder would beneficially own
in excess of 9.99% of the Company's outstanding Common Stock.
The Common Warrants will have an exercise price of $2.05 per share, will be
exercisable on the later of the date of stockholder approval and six months
following the date of issuance, and will expire five 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
. . .
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.
In addition, on October 15, 2021, pursuant to Section 7.02 of the Amended and
Restated Bylaws (as amended, the "Bylaws") of the Company, the board of
directors of the Company adopted an amendment to the Bylaws (the "Amendment"),
effective as of October 15, 2021. The Amendment is intended to clarify the
determination of a quorum for any meeting of the stockholders.
Item 8.01. Other Events.
On October 14, 2021, the Company issued a press release announcing the Offering
and the entry into the Purchase Agreement. A copy of such press release is
attached to this Current Report on Form 8-K as Exhibits 99.1.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
The following exhibits are filed herewith:
3.1 Form of Certificate of Designation of Preferences, Rights and
Limitations of Series B Convertible Preferred Stock.
3.2 Amendment to Amended and Restated Bylaws, as amended, effective
October 15, 2021.
4.1 Form of Common Stock Purchase Warrant.
5.1 Opinion of Ballard Spahr LLP.
10.1 Form of Securities Purchase Agreement, dated October 13, 2021 by and
between OpGen, Inc. and the purchaser party thereto.
23.1 Consent of Ballard Spahr LLP (included in Exhibit 5.1).
99.1 Press release dated October 14, 2021.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
© Edgar Online, source Glimpses