Item 1.01 - Entry into a Material Definitive Agreement.
On June 24, 2022, OpGen, Inc. (the "Company") entered into an At the Market
Offering Agreement (the "ATM Agreement") with H.C. Wainwright & Co., LLC
("Wainwright") pursuant to which the Company may offer and sell from time to
time in an "at the market offering," at its option, up to an aggregate of $10.65
million of shares (the "Placement Shares") of the Company's common stock, $0.01
par value per share (the "Common Stock"), through Wainwright, as sales agent
(the "ATM Offering"). Pursuant to the ATM Agreement, Wainwright may sell the
Placement Shares by any method permitted by law deemed to be an "at the market
offering" as defined in Rule 415 of the Securities Act of 1933, as amended,
including, without limitation, sales made by means of ordinary brokers'
transactions on The NASDAQ Capital Market or otherwise at market prices
prevailing at the time of sale or as otherwise directed by the Company.
Wainwright will use commercially reasonable efforts to sell the Placement Shares
from time to time, based upon instructions from the Company (including any
price, time or size limits or other customary parameters or conditions the
Company may impose). The Company will pay Wainwright a commission equal to three
percent (3.0%) of the gross sales proceeds of any Placement Shares sold through
Wainwright under the ATM Agreement, and has provided Wainwright with customary
indemnification and contribution rights. The Company is not obligated to make
any sales of Common Stock under the ATM Agreement.
The foregoing description of the Agreement is not complete and is qualified in
its entirety by reference to the full text of the ATM Agreement, a copy of which
is filed herewith as Exhibit 1.1 to this Current Report on Form 8-K and is
incorporated herein by reference.
Sales of the Placement Shares will be made pursuant to a prospectus supplement
to the Company's previously filed and currently effective shelf Registration
Statement on Form S-3 (File No. 333-258646). This Current Report on Form 8-K
shall not constitute an offer to sell or the solicitation of an offer to buy the
securities discussed herein, nor shall there be any offer, solicitation, or sale
of the securities in any state in which such offer, solicitation or sale would
be unlawful prior to registration or qualification under the securities laws of
any such state.
A copy of the opinion of Ballard Spahr LLP, relating to the legality of the
shares, is filed as Exhibit 5.1 to this Current Report on Form 8-K and is filed
with reference to, and is hereby incorporated by reference into, the
Registration Statement.
Item 1.02 - Termination of a Material Definitive Agreement.
In connection with the Company's entry into the ATM Agreement, on June 17, 2022,
the Company provided notice of termination, effective June 24, 2022, of its
prior Amended and Restated At the Market Offering Agreement, dated November 13,
2020 (the "Prior Agreement"), by and among the Company, Wainwright, and BTIG,
LLC ("BTIG"). As previously reported, pursuant to the terms of the Prior
Agreement, the Company could offer and sell shares of its common stock, par
value $0.01 per share, having aggregate offering sales proceeds of up to $22.1
million (the "Shares"), through Wainwright and BTIG. As a result of the
termination of the Prior Agreement, the Company replaced its existing
at-the-market sales facility with the ATM Agreement, which is on substantially
similar terms as the Prior Agreement. The terms of the ATM Agreement are
described further in Item 1.01 of this Current Report on Form 8-K.
Item 9.01 - Financial Statements and Exhibits.
(d) Exhibits
Exhibit
Number Description
1.1 At the Market Offering Agreement, dated June 24, 2022, by and between
OpGen, Inc. and H.C. Wainwright & Co., LLC.
5.1 Opinion of Ballard Spahr LLP.
23.1 Consent of Ballard Spahr LLP (included in Exhibit 5.1)
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