Item 1. Business
Please refer to the Glossary at the
end of this Business section for definitions or descriptions of scientific, diagnostic, healthcare, regulatory, and OpGen-specific
terms used in this Annual Report.
Overview
OpGen, Inc. (the “Company”)
is a precision medicine company harnessing the power of molecular diagnostics and informatics to help combat infectious disease.
The Company is developing molecular information products and services for global healthcare settings, helping to guide clinicians
with more rapid and actionable information about life threatening infections, improve patient outcomes, and decrease the spread
of infections caused by MDROs. OpGen’s proprietary DNA tests and informatics address the rising threat of antibiotic resistance
by helping physicians and other healthcare providers optimize care decisions for patients with acute infections.
On April 1, 2020, we completed our business
combination transaction (the “Transaction”) with Curetis N.V., a public company with limited liability under the laws
of the Netherlands (the “Seller” or “Curetis N.V.”), 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 (together, “Curetis”). Curetis is an early commercial-stage
molecular diagnostics (MDx) company focused on rapid infectious disease testing for hospitalized patients with the aim to improve
the treatment of hospitalized, critically ill patients with suspected microbial infection and has developed the innovative Unyvero
molecular diagnostic solution for comprehensive infectious disease testing. The Transaction was designed principally to leverage
each company’s existing research and development and relationships with hospitals and clinical laboratories to accelerate
the sales of both companies’ products and services.
Our molecular diagnostics and informatics
products, product candidates and services combine our Unyvero and Acuitas® molecular diagnostics and Ares Genetics’ database
and the Acuitas Lighthouse® informatics platform for use with our proprietary, curated MDRO knowledgebase. We are working to
deliver our products and services, some in development, to a global network of customers and partners.
|
·
|
Our molecular diagnostic tests provide rapid microbial identification and antibiotic resistance
gene information. These products include the Unyvero platform and Unyvero application cartridges with five CE-IVD-marked tests
(pneumonia, implant and tissue infection, urinary tract infection, blood culture, intra abdominal infection) and two FDA cleared
cartridges (LRT and LRT BAL for lower respiratory tract infections such as pneumonia), the Acuitas AMR Gene Panel (Isolates) test
pending FDA clearance for testing bacterial isolates, a proprietary CE-IVD-marked SARS CoV-2 PCR test kit including our PULB (PCR
compatible universal lysis buffer), and the legacy QuickFISH and PNA FISH FDA-cleared and CE-IVD-marked diagnostics used to rapidly
detect pathogens in positive blood cultures. The entire suite of FISH products will be discontinued by June 30, 2021 in the United
States, Europe and rest of the world. Our ARESdb provides next generation sequencing (NGS) based and artificial intelligence (AI)
powered, cloud-based bioinformatics solutions to generate comprehensive AMR profiles as well as predict AST results.
|
|
·
|
Our Acuitas Lighthouse informatics systems are cloud-based HIPAA compliant informatics offerings that are designed to combine
clinical lab test results with patient and hospital information to provide analytics and actionable insights to help manage MDROs
in the hospital and patient care environment.
|
In May 2019, OpGen filed a 510(k) submission
with the FDA seeking clearance of its Acuitas AMR Gene Panel (Isolates) diagnostic test. In July 2019, the Company received an
Additional Information Request, or AI, Request from the FDA detailing a number of questions related to the submission. At the time,
questions from the FDA focused on the intended use of the test including the correlation between marker detection and antibiotic
resistance, the level of evidence to support resistance marker/organism claims, whole genome sequencing, or WGS, test validation
and use as a comparator method, clinical performance of the test compared to WGS and further analysis of individual study results,
in silico analysis to support test evaluations, further analysis of analytical study results, additional information regarding
instrumentation for use with the test, and test reporting and labeling. On January 6, 2020, OpGen filed a formal response to the
FDA’s July 2019 AI Request. Subsequently, the FDA issued a second AI Request on January 17, 2020 to formalize additional
questions and remaining requests for information from the earlier July 2019 AI Request. The issuance of the January 2020 AI letter
effectively placed the Acuitas AMR Gene Panel (Isolates) 510(k) submission on hold until OpGen provided a formal response to the
questions posed or a 180-day hold period ended, after which the Acuitas AMR Gene Panel (Isolates) 510(k) submission may be considered
withdrawn and a second submission required. Following an extension of the response deadline from July 14, 2020 to October 13, 2020,
OpGen submitted its formal response to the second AI letter to the FDA on October 13, 2020. We believe that the comprehensive formal
response addresses all of the FDA’s questions and feedbacks received to date. Following the FDA’s announcement in November
2020 that it would suspend review activity for submissions other than those related to COVID-19, in late January 2021, the FDA
informed OpGen that it has resumed the review of the AI letter responses filed by OpGen. However, due to the ongoing staffing surge
related to COVID-19 towards EUAs, the FDA at this time is not committing to any MDUFA timelines for the completion of its review
and any potential clearance decision.
We have established a number of commercial
arrangements to support execution of our business strategy as we work to address the more than $2 billion potential market for
precision medicine MDRO solutions. Our relationship with Merck & Co., Inc. includes a previous investment from Merck Global
Health Innovation Fund, or MGHIF, and a research agreement with Merck Sharp & Dohme, or MSD, to provide access to MSD’s
250,000 clinical isolate SMART bacterial surveillance archive. For our global Unyvero and FISH product distribution we have entered
into exclusive contracts with more than 20 distributors covering more than 40 countries globally from EMEA to APAC and LatAm. Following
the decision to exit the FISH business as part of our portfolio consolidation we do expect the number of distributors to decline
in 2021.
In September 2018, OpGen announced a collaboration
with The New York State DOH and ILÚM (now part of IDC) to develop a state-of-the-art research program to detect, track,
and manage antimicrobial-resistant infections at healthcare institutions in New York State. The collaboration is called The New
York State Infectious Disease Digital Health Initiative. The first stage of the collaboration is the completion of a demonstration
project, which commenced in February of 2019 and was completed at the end of March 2020. Under the demonstration project, OpGen
worked with DOH’s Wadsworth Center and ILÚM (now IDC) to develop an infectious disease digital health and precision
medicine platform that connects healthcare institutions to DOH and uses genomic microbiology for statewide surveillance and control
of antimicrobial resistance. The DOH, ILÚM (now IDC) and OpGen are working collaboratively to build a sustainable, flexible
infectious diseases reporting, tracking and surveillance tool for antimicrobial resistance that can be applied across New York
State. The goal of this research project is to improve patient outcomes and save healthcare dollars by integrating real-time epidemiologic
surveillance with rapid delivery of resistance results to care-givers via web-based and mobile platforms. ILÚM (now IDC)
is leading the project with the implementation of its technology platform. OpGen is providing its Acuitas AMR Gene Panel (RUO)
for rapid detection of multidrug-resistant bacterial pathogens along with its Acuitas Lighthouse Software (RUO) for high resolution
pathogen tracking. Under the agreement, OpGen received approximately $1.6 million for the 15-month demonstration portion of the
project, of which approximately $1.3 million was earned in 2019. Effective April 1, 2020, OpGen entered into a year two contract
with the NYS DOH and the participating sites. During this second year which has a total volume of up to $450,000, OpGen is primarily
providing Acuitas AMR Gene Panel (RUO) kits to the sites and except for a $100,000 retainer component gets compensated on a per
test fee basis. OpGen and NYS DOH are currently discussing a possible extension and expansion of this second-year contract in 2021
to allow for completion of testing which had been suspended during the first phase of the COVID-19 pandemic in 2020.
In June 2017, OpGen entered into a supply
agreement to use Thermo Fisher Scientific’s technology in the United States and Europe to support the commercialization of
its rapid molecular products for RUO. Under the terms of the agreement, OpGen provides customer access to Thermo Fisher Scientific’s
products to support the commercialization of our Acuitas AMR Gene Panel and Acuitas Lighthouse Software to combat MDROs. In January
2018, the Company entered into a second supply agreement to incorporate Thermo Fisher Scientific’s real-time PCR technology
in the Company’s Acuitas AMR Gene Panel tests. Specific products covered under these agreements include the QuantStudio 5
Real-Time PCR System, TaqMan® Fast Advanced Master Mix and TaqMan® MGB Probes for quick, multiplexed gene detection.
OpGen’s subsidiary Curetis has long-term
strategic supply agreements for its Unyvero products in place for instrument systems (Zollner Elektronik), injection molding plastic
parts (Scholz HTIK), as well as key reagents such as primers and probes (Microsynth). QIAGEN is a strategic collaboration and licensing
partner to our Ares Genetics subsidiary and provides instruments as well as reagents for that part of the business also. Furthermore,
Ares Genetics has entered into a number of strategic collaborations with partners, such as Sandoz, and is exploring R&D collaborations
and potential licensing opportunities with some of the global leading IVD corporations.
OpGen’s
Products and Products in Development
Through
the business combination with Curetis, OpGen maintains a comprehensive portfolio of molecular diagnostics for rapid infectious
disease and AMR testing. At the core of the portfolio is the Unyvero platform and product family which is developed, manufacture
and commercialized via the wholly owned Curetis GmbH subsidiary. On the bioinformatics side, OpGen has combined its Acuitas Lighthouse
data with the Ares Genetics (Ares) data into the ARESdb. Ares develops and commercializes its NGS as well as bioinformatics based,
AI-powered prediction models and solutions to partners and customers in the pharma, biotech and diagnostics industries as well
as to public research institutions.
OpGen
is a molecular diagnostics company that focuses on the development and commercialization of reliable, fast and cost-effective products
for diagnosing severe infectious diseases in hospitalized patients, an indication with a high unmet medical need and significant
prevalence in developed countries. Our unique Unyvero Platform currently comprises the Unyvero System with the Unyvero A50 Analyzer
at its core, proprietary software, and single use Application Cartridges. These Application Cartridges contain molecular tests
addressing specific severe infectious diseases and detect a broad range of pathogens relevant in a given indication and associated
toxin genes and genetic antimicrobial resistance markers.
The
Unyvero Platform has been CE-IVD-marked since 2012 and is commercialized in Europe and certain other markets that accept CE-IVD-marking
or where it has successfully passed the registration process (i.e. Kuwait, Qatar, Belarus, UAE, Israel, Singapore, Malaysia, Thailand),
and has been rolled out commercially in the United States following De Novo clearance of the Unyvero System and the LRT Application
Cartridge by the FDA in April 2018 and the 510(k) clearance of the LRT Application for BAL samples in December 2019.
Today,
the diagnosis of infectious diseases in the hospital setting is still largely carried out through traditional culture-based microbiology
methods. This process is labor-intensive and time-consuming, typically delivering results only after 24 to 72 hours or, in some
cases, weeks. As a result, informed antibiotic therapy decisions may be delayed, which can lead to poor patient outcomes, including
higher mortality rates for indications such as pneumonia and sepsis, longer hospital stays, increased hospital costs and overall
spread of antibiotic resistance, a significant and increasing problem throughout the world. All of these factors pose clinical
and economic challenges to hospitals and a significant threat to public health globally.
OpGen
aims to improve on this standard-of-care by offering comprehensive test information in a timely manner that allows for early, efficacious
treatment, which OpGen believes results in improved clinical and health economic outcomes. The Company’s Unyvero Platform
delivers results within four to five hours and can cover over 100 diagnostic targets. The broad Unyvero test panels also allow
the identification of microorganisms that are difficult to culture and hence missed in culture-based test methods, as well as rare
but critical pathogens not routinely tested for by standard methods, a conclusion confirmed by a number of clinical studies. The
FDA clinical trial for the LRT Application Cartridge concluded that the Unyvero System identified 32 positive atypical pathogen
results in 1,653 prospectively tested specimens, as opposed to only four confirmed positive atypical pathogen results identified
in 116 specimens from this cohort using traditional culture-based diagnostic methods. The Company believes this allows clinicians
to make early adjustments to the specific treatment of the patient, saving significant time and cost, in particular by reducing
the duration of the patient’s hospital stay.
The
Unyvero Platform is intended to complement rather than replace traditional microbiology-based diagnostics testing. OpGen believes,
however, that timely diagnosis of the underlying pathogens and their resistances could greatly improve outcomes for patients and
is likely to provide net savings to hospitals.
The
Unyvero Platform is marketed through a combination of direct sales in the United States and a growing network of distribution partners
in Europe, Middle East, the ASEAN Region, Asia and Latin America. As of December 31, 2020, the distribution network comprises over
20 distributors covering more than 40 countries in those regions with regulatory clearance for the Unyvero System and the Unyvero
Application Cartridges in some of these countries still pending.
There
are currently seven commercially available Application Cartridges, consisting of:
|
·
|
the HPN Application Cartridge, which addresses
severe forms of pneumonia and is CE-IVD-marked in Europe;
|
|
·
|
the ITI Application Cartridge, which addresses
severe cases of implant and tissue infections and is CE-IVD-marked in Europe;
|
|
·
|
the BCU Application Cartridge, which addresses
severe blood stream infections and is CE-IVD-marked in Europe;
|
|
·
|
the IAI Application Cartridge, which addresses
intra-abdominal infections and is CE-IVD-marked in Europe;
|
|
·
|
the UTI Application Cartridge, which addresses
severe urinary tract infections and is CE-IVD-marked in Europe;
|
|
·
|
the LRT Application Cartridge, which is technically
similar to the HPN Application Cartridge and also addresses severe forms of pneumonia, which was cleared by the FDA in April 2018
for use with tracheal aspirates and is now being marketed in the United States; and
|
|
·
|
the LRT BAL Application Cartridge which was
cleared on December 20, 2019 by the FDA for use with BAL specimens and has been launched in the Unites States in the first quarter
of 2020;
|
The
HPN and BCU Application Cartridges have also been approved by the Singaporean HAS as well as regulatory authorities in Malaysia
and Thailand.
In
addition to the current Unyvero System, the Company through its subsidiary Curetis also develops its Unyvero A30 RQ Analyzer
module designed to offer a rapid time-to-result (potentially as fast as 45 to 90 minutes), qualitative and, where needed, quantitative
real-time PCR testing in a cartridge format that can provide up to 11 parallel multiplex (i.e. simultaneously running multiple
assays in one reaction) PCR reactions from one sample, with up to three assays per reaction (for a total of up to 33 assays per
cartridge). It is expected to be operated on a stand-alone basis or fully integrated into the Unyvero System suite of products
with respect to system architecture, design, software and handling, thereby expanding the Unyvero Platform to include low- and
mid-plex capabilities. We expect that the costs of the Unyvero A30 RQ Analyzer and cartridges will be lower than those for
the current Unyvero System and Application Cartridges, potentially opening up commercial opportunities in the medium multiplexing
infectious disease testing market segment. Initially developed as an expansion of the Unyvero platform, complementing the Unyvero
A50 high-plex Application Cartridges with low- to mid-plex Unyvero A30 RQ Application Cartridges for infectious diseases,
OpGen adjusted its strategy and now also seeks partners in the global IVD industry that may want to license the Unyvero A30 RQ
for commercialization of their own assays on this platform, potentially even as legal manufacturer under their own branding.
The
Unyvero Platform
Curetis
launched its CE-IVD-marked Unyvero Platform with a first disposable Application Cartridge for pneumonia in 2012. The FDA cleared
the Unyvero System and LRT Application Cartridge in April 2018 and the LRT BAL Application Cartridge in December 2019. The Chinese
authorities National Medical Products Administration (“NMPA”) cleared the Unyvero System in early 2021.
The
Unyvero Platform is a highly automated sample-to-answer molecular diagnostics platform, based on multiplexed end-point PCR with
an array-based detection process. It integrates fully automated sample preparation, analysis and identification of disease relevant
pathogens and antibiotic resistance markers to provide timely high-quality information to its end-users. The scalable system is
designed to be either placed in laboratory settings or directly in hospital wards or intensive care units. Time-to-result is four
to five hours for the different Application Cartridges commercially available today Application Cartridges, including 30 minutes
of automated sample preparation (lysis) and total hands-on time of no more than five minutes. The Unyvero Platform’s intuitive
workflow with only minimal hands-on time enables untrained hospital staff to perform molecular tests at the point of need, such
as ICUs.
Unyvero
Platform, System Components and Workflow
The
Unyvero System consists of three devices, the Unyvero L4 Lysator, the Unyvero C8 Cockpit and the Unyvero A50 Analyzer. The Unyvero
L4 Lysator is used for sample pre-processing and pathogen lysis. The Unyvero C8 Cockpit is the control panel for the Unyvero L4
Lysator and Unyvero A50 Analyzer and displays the results of patient sample analysis. The Unyvero A50 Analyzer consists of mechanical,
electronic, pneumatic and optical elements and enables a fully automatic random-access processing of the Application Cartridges.
The Application Cartridges are single-use, disposable and disease specific. The Unyvero System, together with proprietary software
and the Application Cartridges, comprise the Unyvero Platform.
Figure
1: Unyvero Platform
The
Unyvero L4 Lysator
This
instrument is used for sample pre-processing and pathogen lysis. It performs proprietary software-controlled lysis of up to four
samples, simultaneously within 30 minutes, combining mechanical, thermal, enzymatic and chemical lysis steps and allows the use
of a wide range of native sample types due to a proprietary sample processing method (in respect of which several patents have
been granted or are currently pending). Biofilm-forming pathogens can be detected by the Unyvero Platform. In addition, the Unyvero
Platform is CE-IVD-marked for a broad variety of native patient sample types including sputum, (mini) BAL, tracheal aspirates,
aspirates and exudates, catheter tips, pus, sonication fluid, synovial fluid, swabs and tissue. The lysis of further sample types
such as blood, urine, stool and formalin-fixed paraffin embedded tissues is also possible with the proprietary Unyvero lysis method.
Up to two Unyvero L4 Lysators can be attached to a single Unyvero C8 Cockpit to allow processing of up to eight samples simultaneously
within 30 minutes.
The
Unyvero C8 Cockpit
This
device is the control panel for the Unyvero L4 Lysator and Unyvero A50 Analyzer. It has a touchscreen and built-in bar code reader
and runs on proprietary in-house developed Unyvero software. Step-by-step instructions guide the user from preparing a test to
executing the fully automated process in the Unyvero A50 Analyzer in just a few minutes. The results display, storage of results
and data storage, as well as information about the performed tests including the Application Cartridges’ shelf-life and lot
numbers, are generated automatically. Data can be exported as PDF files via a USB key or to a connected printer. It also features
built-in interfaces for possible future connectivity to standard hospital and laboratory information systems.
The
Unyvero A50 Analyzer
This
instrument consists of mechanical, electronic, pneumatic and optical elements and enables a fully-automatic random-access processing
of the Application Cartridges. Once a run is started, the Unyvero A50 Analyzer automatically executes and controls all sample processing
and analysis steps (including DNA extraction, DNA purification, PCR set-up, highly multiplexed end-point PCR amplification and
a hybridization array-based fluorescence detection) inside the Application Cartridge. For safety and equipment longevity, and to
avoid issues of calibration or waste-removal, the Unyvero A50 Analyzer contains neither reagents nor waste. All fluids are handled
within the sealed Application Cartridge. Up to four Unyvero A50 Analyzers can be attached to a single Unyvero C8 Cockpit and each
Unyvero A50 Analyzer includes the two available slots that provide full random access per Unyvero A50 Analyzer, allowing the processing
of up to eight patient samples simultaneously within four to five hours. In the future, OpGen believes a further expansion to up
to eight Unyvero A50 Analyzers will also be possible.
Figure
2: Unyvero sample tube, sample tube cap, sample pre-treatment tool and Master Mix tube
Workflow
The
Unyvero Platform is a modular, flexible easy-to-use platform, which substantially reduces turnaround time from up to 24 hours or
even weeks for traditional microbiology culture-based tests to approximately four to five hours. This allows physicians to adjust
treatment at a much earlier stage than with the traditional microbiology culture-based test, which is the current clinical standard
of care. OpGen believes that the reduced hands-on time of no more than five minutes and the intuitive workflow make the system
operable by non-specialty trained laboratory personnel and reduce the risks of errors.
Unyvero
A50 Application Cartridge Portfolio
Figure
3: Currently available Application Cartridges
The
HPN and LRT Application Cartridges
The
HPN Application Cartridge was commercially launched in April 2015 and is the second-generation version of the P50 Application Cartridge,
the Pneumonia Application Cartridge originally launched in 2012. It is a CE-IVD-marked Application Cartridge for the fully automated
performance of currently 21 PCR assays for microorganisms and 19 PCR assays for antibiotic resistance markers combined in a total
of eight multiplex PCR reactions on native respiratory samples, such as sputum, tracheal aspirates and BAL fluids with no pre-culturing
required. This Application Cartridge combines the necessary detection of bacteria, fungus and resistance markers into a single
test to aid diagnosing pneumonia. With the HPN Application Cartridge, the Company aims to detect the vast majority of pneumonia-causing
pathogens and antibiotic resistance markers in hospitalized patients.
The
HPN Application Cartridge of microorganisms and resistance gene markers was designed based on feedback of clinical experts and
international and national guidelines. It aims to detect at least 90% of healthcare-associated pneumonia-causing pathogens and
clinically relevant resistances against antimicrobials. The Application Cartridge is primarily designed to capture patients at
risks for:
|
·
|
microorganisms causing severe, and complicated
to treat, forms of pneumonia, e.g. Pseudomonas aeruginosa;
|
|
·
|
microorganisms carrying antibiotic resistance
and where patients may need isolation (MRSA, Klebsiella);
|
|
·
|
infections with multidrug-resistant bacteria
that might not be targeted by empiric treatment schemes; and
|
|
·
|
rare and difficult to detect pathogens like
Legionella sp.
|
The
Application Cartridge composition takes pathogen incidences into account. It includes those microorganisms showing an incidence
of above 1%. The Application Cartridge is completed by adding pathogens with lower incidence but a high clinical need, such as
Legionella sp.
The
HPN Application Cartridge covers 19 antibiotic resistance markers, including: (i) ß-Lactam resistance, including ESBL; (ii)
kpc resistance; (iii) macrolide resistance; (iv) quinolone resistance; and (v) multi-drug resistance.
The
LRT Application Cartridge was launched in the United States in April 2018. It is an FDA-cleared Application Cartridge for the fully
automated detection of 46 targets, covering 36 microorganisms and 10 antibiotic resistance markers, for lower respiratory tract
infections with a total of 29 PCR assays combined in eight multiplexed PCR reactions. Although similar in most respects to the
HPN Application Cartridge, the LRT differs from the HPN in its pathogen reporting due to FDA reporting requirements. In accordance
with a De Novo request that was granted by the FDA in April 2018, the initial label claim covers the use of LRT with tracheal aspirate
samples only and has cleared 19 pathogen assays as well as 10 antibiotic resistance marker assays.
The
LRT BAL Application Cartridge that was 510(k)-cleared by the U.S. FDA in December 2019 and launched in the United States in January
2020, is a version of the LRT Application Cartridge that is optimized for use with commonly obtained BAL specimens. The Unyvero
LRT BAL application is the first and only U.S. FDA-cleared molecular diagnostic panel that detects Pneumocystis jirovecii
in addition to a broad spectrum of clinically relevant bacterial pathogens and antibiotic resistance markers associated with pneumonia.
The
ITI Application Cartridge
The
ITI Application Cartridge was launched in May 2016 and is the second-generation version of the ITI Application Cartridge originally
launched in the second quarter of 2014. Improvements were made to the panel and analytical performance as well as clinical sensitivity
and specificity. It is a CE-IVD-marked Application Cartridge for the fully automated detection of currently 102 targets, covering
85 microorganisms and 17 antibiotic resistance markers for eight different clinical indications within the areas of prosthetic
joint infections, surgical site infections, diabetic foot ulcers, catheter-associated infections, deep skin and tissue infections,
cardiology-related infections, burn wounds and other implant infections. CE performance evaluation has demonstrated sensitivity
of 86.9% at specificity of 99.2%. A diverse range of sample types such as aspirates and exudates, pus, sonication fluid, swabs,
synovial fluid and tissue can be used on this Application Cartridge. Moreover, biofilm-forming pathogens can be identified by the
Unyvero Platform. The ITI Application Cartridge was jointly developed and co-funded with a worldwide market leader in orthopedic
bone cement, which offers comprehensive infection management solutions. The Company pays a customer referral commission but has
retained full control on product commercialization.
The
BCU Application Cartridge
The
BCU Application Cartridge was launched in Europe in April 2016. It is a CE-IVD-marked and Singapore HSA-cleared Application Cartridge
for the fully automated detection of 103 targets, covering 87 microorganisms and 16 antibiotic resistance markers relevant in the
area of blood stream infections. The CE-IVD performance evaluation has demonstrated a weighted average sensitivity for all pathogens
of 96.2%, and a weighted average specificity of 99.4%. Unlike other Unyvero Application Cartridges, BCU uses samples from positive
blood cultures rather than native patient samples. Such blood cultures are started in cases of suspected blood stream infections.
The
IAI Application Cartridge
The
IAI Application Cartridge was launched in April 2017. It is a CE-IVD-marked Application Cartridge for the fully automated detection
of 130 targets, covering 105 pathogens, three toxins and 22 resistance markers for several different clinical indications within
the areas of severe intra-abdominal infections such as symptoms of peritonitis, appendicitis, acute abdomen, acute pancreatitis,
and megacolon. Overall weighted average sensitivity for the pathogens specifically targeted by the test panel was 93.8% at an overall
weighted average specificity of 99.7% following discrepant result resolution.
The
UTI Application Cartridge
The
UTI Application Cartridge was launched in April 2018. It is a CE-IVD-marked Application Cartridge for the fully automated detection
of up to 103 diagnostic targets, covering 88 microorganisms and 15 genetic resistance markers for the areas of severe urinary tract
infections in patients with anatomical, structural and functional alterations, renal impairments, impaired immune status, catheter-associated
UTI, patients failing to respond to therapy and suffering from severe manifestations, urosepsis. OpGen estimates that the addressable
market for the UTI Application Cartridge is 1.6 million cases eligible for testing per year in the EU and the United States. The
UTI Application Cartridge is also available as RUO in the USA since 2020.
Ares
Genetics’ NGS and Bioinformatics Services for Molecular Microbiology
OpGen’s
other core business in NGS and Bioinformatics based solutions for molecular microbiology is operated by its wholly-owned subsidiary
Ares Genetics GmbH, or Ares Genetics, founded in 2017 and based in Vienna, Austria. This business is based on the proprietary ARES
Technology Platform and Ares Genetics’ proprietary genetic database on AMR, ARESdb. The ARES Technology Platform and ARESdb
build and expand upon the GEAR assets acquired from Siemens Technology Accelerator GmbH in 2016. On the bioinformatics side, OpGen
has combined its Acuitas Lighthouse data with the Ares Genetics (Ares) data into the ARESdb. Ares Genetics believes ARESdb is a
unique comprehensive database on the genetics of antibiotic resistance. Ares Genetics also pursues an active out-licensing and
collaboration strategy with suitable partners in the life science, pharmaceutical, and diagnostic industry to jointly develop solutions
for microbiology relying on the database and/or the Ares Technology Platform. Ares Genetics entered into its first partnering and
strategic collaborations with QIAGEN, Sandoz, and undisclosed global IVD corporations in 2018, 2019, and 2020, respectively.
In
addition to its out-licensing strategy, Ares Genetics offers next-generation molecular AMR testing services out of its NGS service
lab opened in mid-2019 in Vienna, Austria, with initial focus on infection control, AMR epidemiology and surveillance, clinical
research and pharmaceutical anti-infectives R&D.
Ares
Genetics has also developed its ARESupa Universal Pathogenome Assay, which is based on the ARES Technology Platform and ARESdb.
ARESupa is intended to cover nearly any pathogen in a broad array of sample types and to predict antimicrobial drug response to
a wide variety of treatment options using a single NGS laboratory workflow.
In
August 2019, Ares Genetics opened a specialized service laboratory offering next-generation AMR testing services with an initial
focus on infection control, AMR epidemiology and surveillance, clinical research and pharmaceutical anti-infectives R&D. All
services are based on NGS and Ares Genetics’ proprietary, AI-powered antimicrobial resistance database ARESdb and the ARES
Technology Platform for data interpretation.
Initial
services focused on the molecular identification of bacterial species and the detection of mutations and genes conferring antibiotic
resistance with Ares Genetics Universal Pathogenome Assay, ARESupa. A second generation of ARESupa predicting antibiotics susceptibility
based on complex genetic signatures was launched in an early access program October 2019. The launch followed the successful completion
of a blinded feasibility study in which Ares Genetics correctly identified 100% of the pathogen species and successfully predicted
antibiotic susceptibility for over 50 drug/pathogen combinations in line with FDA requirements (<1.5% very major error, i.e.
misclassification of resistant isolates as susceptible and <3 % major error, i.e., misclassification of susceptible isolates
as resistant).
OpGen’s
Rapid Diagnostics and Acuitas Lighthouse Software
We
believe more rapid genetic identification methods will reduce morbidity from MDROs, reduce healthcare costs through reduced length
of stay, and assist in the identification of targeted antibiotic therapy. Current conventional microbiology, largely unchanged
in 50 years, requires one to two days for growth and phenotypic analysis and often leads to the use of broad spectrum antibiotic
therapy in the early stages of infection.
OpGen
has developed the Acuitas AMR Gene Panel (Isolates) test for testing bacterial isolates. This test has been available in the United
States for RUO and is being used in such capacity in connection with The New York State Infectious Disease Digital Health Initiative
for testing of bacterial isolates. A version of this product is currently pending FDA clearance. In the pilot phase of the Initiative,
the test is contributing to the research mission by genotyping carbapenem resistant isolates from four health systems in the New
York City Metro Area. Results are subsequently analyzed by the Acuitas Lighthouse Software (RUO) to support a series of infection
control tracking capabilities that are of interest to The New York State Department of Health and healthcare providers.
FISH
Products
We have commercialized 12 QuickFISH
and PNA FISH diagnostic test products in the United States and Europe for the identification of various infectious pathogens. The
pathogens identified and differentiated by our FISH products are:
QuickFISH
|
PNA FISH
|
Staphylococcus
|
Staphylococcus
|
Enterococcus
|
Enterococcus
|
Gram-negative bacteria
|
Gram-negative bacteria
|
Our FISH products can provide pathogen
identification and differentiation within 20 to 90 minutes of positive blood culture results. The tests provide actionable information
that can be used by the healthcare provider to determine appropriate antibiotic therapy.
OpGen’s FDA-cleared and CE-IVD-marked
QuickFISH and PNA FISH products are powered by PNA technology and provide rapid pathogen identification, typically in less than
30 minutes from a positive blood culture result.
The product line is planned to be discontinued
effective June 30, 2021. All customers and distributors have been informed of such discontinuation and submitted final purchase
orders in the fourth quarter of 2020. All final purchase orders have been fulfilled or shipped, and OpGen does not plan to either
manufacture or distribute any further FISH products going forward.
Market
Overview
Antibiotic Resistance –
An Urgent Global Issue
We believe that antimicrobial resistance
is an urgent global healthcare issue. MDROs have been prioritized as an urgent national and global threat by the CDC, the executive
branch of the federal government and the World Health Organization. In September 2020, The White House released the National Action
Plan 2020-2025, which is an update to the September 2014 Strategy for Combating Antibiotic-Resistant Bacteria issued a National
Strategy for Combating Antibiotic-Resistant Bacteria. This strategy calls for the strengthening of surveillance efforts to combat
resistance, the development and use of innovative diagnostic tests for identification and characterization of resistant bacteria
and antibiotic stewardship and development.
The CDC estimates that in the United
States more than two million people are sickened every year with antibiotic-resistant infections, with at least 23,000 dying as
a result. Antibiotic-resistant infections add considerable but often avoidable costs to the U.S. healthcare system. In most cases,
these infections require prolonged and/or costlier treatments, extended hospital stays, additional doctor visits and healthcare
facilities use, and result in greater disability and death compared with infections that are treatable with antibiotics. Estimates
for the total economic cost to the U.S. economy are difficult to calculate but have been estimated to be as high as $20 billion
in excess direct healthcare costs annually. As described in a December 2014 report issued by the Review on Antimicrobial Resistance
commissioned by the U.K. Prime Minister, titled “Antimicrobial Resistance: Tackling a Crisis for the Health and Wealth of
Nations,” 300 million people are expected to die prematurely because of drug resistance over the next 35 years, which could
result in $60 to $100 trillion worth of lost economic output if the problem of antimicrobial drug resistance is not resolved.
Over the last decade, multidrug-resistant
Gram-negative bacteria, frequently referred to as Superbugs, have been implicated in severe HAIs and their occurrence has increased
steadily. For example, Klebsiella pneumoniae, or K. pneumoniae, is responsible for roughly 15% of Gram-negative infections in hospital
intensive care units. Infections caused by KPC strains have few treatment options and are associated with a mortality rate upwards
of 50%.
Exacerbating the problems associated
with the emergence of these highly resistant KPC strains is their propensity to cause outbreaks in healthcare institutions. These
pathogens persist both in the flora of hospitalized patients and in the hospital environment, and they have the capacity to silently
colonize patients or hospital personnel by establishing residence in the gastrointestinal tract without causing any signs of infection.
Individuals can be silently colonized or become asymptomatic carriers for long periods of time, with detection of these carriers
often proving difficult. These silent carriers act as reservoirs for continued transmission, which makes subsequent spread difficult
to control and outbreaks difficult to stop. In addition, KPC strains can survive for several hours on the hands of hospital personnel,
which likely facilitates the spread of organisms from patient to patient. Effective control of KPC outbreaks requires a detailed
understanding of how transmission occurs, but current technologies do not allow healthcare providers to routinely perform these
investigations on a timely basis.
The lack of currently available treatment
options and scarcity of new treatment options in development are compounding the emerging Superbug problem. It has been close to
30 years since a new class of antibiotics was developed and successfully introduced. As a result, we believe that rapid, accurate
identification of the pathogen and its genetic make-up, screening, infection control and antibiotic stewardship have become one
of the most powerful weapons in the fight to contain this threat.
The emergence of multidrug resistant
pathogens has made the treatment of patients with UTIs a growing problem in the United States and internationally. There are approximately
10 million patients each year in the United States with UTIs and more than one million of these patients have cUTI often requiring
hospitalization with intravenous antibiotic therapy. Among these patients E. coli represents the most common pathogen, and
recent data indicate that 18.3% of U.S. E. coli isolates are extended spectrum β-lactamase (ESBL) resistant. These
patients present complicated therapeutic choices for clinicians and often require last resort carbapenem antibiotics. The rate
of ESBL resistant E. coli increased 34% annually between 2010 and 2014. Therapy with carbapenem antibiotics has contributed
to growing Carbapenem resistance (CRE) rates and high patient treatment costs. A large outcomes study recently completed by the
Company indicated that average cost to treat an ESBL E. coli patient was $25,000 while patients with ESBL K. pneumoniae
infections cost over $60,000.
Based on industry analyses, we believe
the global HAI market is a $2 billion dollar market with the molecular diagnostic segment representing a fast growing segment of
such market with multiple high acuity patients and significant infectious sites, including UTIs, surgical site infections, pneumonia
and bloodstream infections.
Commercial
Sales
We currently sell and market our products
and services directly in the United States through a dedicated sales and marketing support team. Internationally, we sell our products
through a network of over 20 distributors covering more than 40 countries. Support for our European FISH product customers had
been handed over to Curetis in 2020 from our subsidiary in Denmark, which is in the process of being liquidated. In 2018, we established
OpGen Colombia SAS to commercialize our products in Colombia and to support sales on a direct basis and through distributors in
South America and Central America, however we discontinued these efforts and began the process to dissolve the subsidiary in 2019.
On completion of the business combination with Curetis, our strategy is to commercialize the Acuitas AMR Gene Panel and the Curetis
products in the United States through our direct commercial organization.
In the first quarter of 2018, we introduced
the Acuitas AMR Gene Panel (RUO) for infection control purposes and pharmaceutical surveillance research as research use only tests.
The Acuitas AMR Gene Panel (RUO) tests will remain available while the Company completes its regulatory submission to support FDA
clearance to commercialize such product for broader clinical use. We anticipate that customers who use the products as RUO tests
for infection control and clinical research will serve as a potential installed base for the FDA cleared products.
We operate in one segment. Our operations
are located in the United States, Germany, and Austria.
Competition
We
are developing a molecular information business focused on leading a transformation in microbiology and infectious disease through
precision medicine products and services that combine genomic data and informatics. Our approach combines proprietary, FDA cleared
and CE-IVD-marked DNA tests such as Unyvero as well as our Acuitas AMR Gene Panel (isolates). Our competitors include rapid diagnostic
testing, next-generation sequencing testing, and traditional microbiology companies, commercial laboratories, information technology
companies, and hospital laboratories who may internally develop testing capabilities. Principal competitive factors in our target
market include: organizational size, scale, and breadth of product offerings; rapidity of test results; quality and strength of
clinical and analytical validation data and confidence in diagnostic results; cost effectiveness; ease of use; and regulatory approval
status.
Our
principal competition comes from traditional methods used by healthcare providers to diagnose and screen for MDROs and from other
molecular diagnostic companies creating screening and diagnostic products such as Cepheid, Becton-Dickinson, bioMérieux,
Accelerate Diagnostics, T2 Biosystems, GenMark (currently being acquired by Roche), Qiagen, and Luminex. We believe our focus on
identifying antibiotic-resistant genes in addition to broad panels of organisms from a wide variety of native clinical sample types,
and our Ares Genetics and Acuitas Lighthouse bioinformatics offerings distinguish us from such competitors.
Competitors
may develop their own versions of our product offerings in countries where we do not have patents or where our intellectual property
rights are not recognized.
Many
of our potential competitors have widespread brand recognition and substantially greater financial, technical, research and development
and selling and marketing capabilities than we do. Others may develop products with prices lower than ours that could be viewed
by hospitals, physicians and payers as functionally equivalent to our products and services, or offer products and services at
prices designed to promote market penetration, which could force us to lower our list prices and affect our ability to achieve
profitability. If we are unable to change clinical practice in a meaningful way or compete successfully against current and future
competitors, we may be unable to increase market acceptance and sales of our products, which could prevent us from increasing our
revenue or achieving profitability and could cause our stock price to decline.
Competition
to the Unyvero System
The
Unyvero Platform is a sample-to-answer MDx solution. There are several other companies who develop and commercialize similar systems.
In terms of devices and assays, OpGen believes its key competitors include bioMérieux (BioFire with its FilmArray® platform)
and GenMark with its ePlex® platform as well as Accelerate Diagnostics with its Pheno™. Taking into consideration the
broader market, devices of other key competitors can be extended to include Cepheid (GeneXpert®), T2 Biosystems (T2DX®),
Luminex Corporation (formerly known as Nanoshphere) (Verigene System® and Aries®), Atlas Genetics (with io™ System),
Roche (Cobas® with the Liat® and GeneWEAVE platform), Qiagen (QIAstat-Dx™) and Biocartis N.V (Idylla™), Bosch
with the Vivalytic platform and the Meridian Bioscience (formerly GenePOC) Revogene® system. Disease-related assay competitors
including those providing reagent kits only (e.g. Seegene, Fast-Track Diagnostics/Siemens Healthineers, Genetic Signatures) and
LDT developers have to be separately assessed by each application. OpGen believes that its Unyvero Platform has certain key characteristics
that clearly differentiate it from other sample-to-answer systems.
Based
on its corporate market analysis, OpGen believes that due to the proprietary lysis technology its Unyvero Platform is able to process
a broader variety of sample types than competing platforms. In most cases, no labor or time intensive manual sample preparation
is necessary and even difficult and blood-contaminated native samples can be processed. Furthermore, the Unyvero Platform is CE-IVD-marked
for a variety of samples including sputum, bronchoalveolar lavage, tracheal aspirate, exudate, catheter tip, pus, sonication fluid,
synovial fluid, swab and tissue. Further samples such as blood, urine, stool and formalin-fixed paraffin embedded tissues present
further options for extending the variety of samples for future applications. Fresh or frozen samples and also samples that have
been stored in different media can be processed easily on the Unyvero Platform. As the lysis is integrated into the workflow, hands-on
time and potential handling errors are significantly reduced.
The
Unyvero Platform is also differentiated from competing products by its high multiplexing capability based on end-point PCR, which
allows for the execution of eight independent multiplex PCR reactions simultaneously. Therefore, Unyvero can identify a broad range
of microorganisms and in addition a large variety of antibiotic resistance markers in a single run.
Focusing
on severe infectious diseases and having developed a HPN Application Cartridge, an ITI Application Cartridge, a BCU Application
Cartridge, an IAI Application Cartridge and a UTI Application Cartridge and planning to develop further Application Cartridges
in the severe infectious disease area, Unyvero has a highly differentiated positioning in the market.
Although
several direct competitors have in the past three years started to develop or commercialize their own infectious disease tests,
OpGen believes that the variety and breadth of its menu of cartridges targeting different infection areas positions it favorably
to answer patient and customer needs.
Competition
to the Unyvero Application Cartridges
Considering
its panel design, the Company believes that there are currently very few assays directly comparable to the Company’s HPN
/ LRT / LRT BAL, ITI, IAI, and UTI Unyvero Application Cartridges that are commercially available to date. With its BCU Unyvero
Application Cartridge, the Company has entered a competitive indication area for which the Company believes it can offer a more
comprehensive panel compared to its competitors. Various competitors offer testing in some, but not all, of the infections targeted
by Unyvero Application Cartridges. For example, for the HPN and LRT Application Cartridges, currently only two companies (OpGen
and bioMérieux/BioFire) offer an FDA-cleared IVD automated molecular panel for lower respiratory tract infections / pneumonia.
According to publicly available sources, Accelerate Diagnostics has a CE-IVD pneumonia assay and it is believed to be in clinical
trials for future U.S. FDA submission of this application. Other companies, such as, Luminex (formerly Nanosphere), GenMark, Seegene,
Genomica, Miacom, PathoFinder, Fast-Track Diagnostics (now a Siemens Healthineers company), Randox, ArcDia, Qiagen, and iCubate
are primarily targeting the upper respiratory tract with their panels. Their panels mainly cover viruses and a few bacteria, and
in some occasions a limited number of antibiotic resistance markers only. Diatherix offers a manual test claiming to cover both
upper and lower respiratory infections. OpGen believes that it offers the most comprehensive panel for severe bacterial pneumonia
for critically ill patients that require hospitalization, as the panel includes unique and differentiated bacterial targets and
the broadest coverage of carbapenem resistance markers, while BioFire’s panel has a limited range of resistance markers and
viral targets.
Competition
by Conventional Microbiology
The
conventional microbiology market consists of culture and MALDI-TOF based testing and is largely shared by well-established players
including BD, bioMérieux, Bio-Rad Laboratories, Danaher (Cepheid, Beckman Coulter), Thermo Fisher Scientific. Culture-based
testing is usually performed in the central laboratory at TATs of 48 to 72 h and it is yet to be seen whether it can robustly be
accelerated by miniaturization, an approach pursued by the company Accelerate Diagnostics. While TATs for MALDI-TOF based testing
is much faster, overall TATs from sample to report are still greater than 24 hours as MALDI-TOF generally depends on an initial
culturing step for pathogen isolation and cannot be performed from native patient samples. Generally, providers of conventional
microbiology solutions are focusing on reducing TAT, use of labor and lab space, as well as overall costs by automatic specimen
processing and pathogen identification.
Competition
by Molecular Diagnostics – PCR
Key
competitors in the PCR-based molecular diagnostics market include bioMérieux, BD, Danaher, Roche, Qiagen, Abbott, Hologic,
OpGen and, amongst others, Ares Genetics’ parent company, Curetis. PCR-based microbiology testing is usually performed at
the point of need or in the central laboratory at rapidly reduced TAT compared to conventional microbiology. Generally, providers
of PCR-based molecular diagnostics are focusing on further reducing TAT to less than 30 minutes to one hour and/or increasing multi-plexing
degree as well as reducing use of labor, lab space, and overall costs. The Company believes that its ability to quantitatively
predict antibiotic susceptibility based on the pathogen’s genetic profile complements PCR-based approaches detecting panels
of genes and mutations as indicators of resistance.
Competition
to Ares Genetics
Ares
Genetics’ peers and competitors include companies providing conventional microbiology, PCR- and NGS based molecular diagnostics,
as well as AMR databases and bioinformatics solutions. In general, many peers and competitors are at the same time also considered
potential ARESdb licensing partners due to the unique content and positioning of ARES’ artificial intelligence curated reference
database, ARESdb.
Competition
by Molecular Diagnostics – NGS
The
emerging NGS-based molecular diagnostics market is shared by start-up-like companies such as IDbyDNA, Karius, CosmosID, Noscendo,
Day Zero Diagnostics, or ArcBio aiming at disrupting the molecular microbiology by pathogen detection via direct sequencing from
patient samples, as well as established players such as bioMérieux focusing on isolate sequencing to monitor outbreaks in
hospitals (in partnership with Illumina). NGS-based testing is currently performed as a service and companies mostly focus on reducing
TAT as well as increasing the NGS market share in molecular microbiology. NGS-based molecular diagnostics companies are considered
as Ares Genetics’ closest competitors, while Ares Genetics believes to have a competitive advantage by its ability to predict
antibiotic susceptibility based on the pathogen’s genetic profile with a performance meeting FDA requirements for functional
testing of AST by culture.
Competing
AMR Databases & Bioinformatics Solutions
To
date, several AMR databases exist (e.g. CARD, PATRIC, etc.) but they are purely designed for academic research applications as
they neither represent IVD-grade reference databases, nor systematically cover high-resolution resistance profiles including confidence
levels and diagnostic performance parameters for associated AMR markers. The commercial microbial bioinformatics solution market
on the other hand, is largely covered by QIAGEN, a strategic licensing partner of ARES for co-marketing bioinformatics research
solutions based on ARESdb.
Research and Development
We intend to continue to invest in the
development of additional Unyvero panels such as UTI and IJI for the Unyvero A50 platform, we intend to invest in the further development
of the Unyvero A30 RQ platform, as well as the Ares Genetics bioinformatics solutions such as ARESdb and ares-genetics.cloud.
Our ongoing and anticipated research and development
efforts include:
|
·
|
Expanding the Ares Genetics bioinformatics and NGS offerings such as ARESdb, ares-genetics.cloud,
ARESupa etc.
|
|
·
|
Development of Unyvero A30 RQ platform
|
|
·
|
Clinical trials and regulatory filings for Unyvero UTI in the USA (expect as De Novo with clinical
trial at a minimum of 3 trial sites and minimum of 1,500 samples tested)
|
|
·
|
Clinical trials and regulatory filings for Unyvero IJI in the USA (expect as De Novo with clinical
trial at a minimum of 3 trial sites and minimum of 1,500 samples tested)
|
Sales and Marketing
We currently
sell and market our products and services directly in the United States through a dedicated sales and marketing support team. Internationally,
we sell our products through over 20 distributors covering more than 40 countries.
Our strategy to build demand for our products
following receipt of such regulatory clearance includes completing clinical verification studies, customer driven evaluations and
studies, sales of our tests for RUO.
Customers
OpGen’s commercial teams have
identified several stakeholder groups: treating clinicians, doctors of pharmacy (PharmDs), antibiotic stewardship programs, microbiologists,
molecular biologists and laboratory managers as well as hospital administration, all of whom will be actively involved in the purchase
decision at varying levels and stages. In terms of product benefits, OpGen believes that clinicians and physicians seek timely
diagnostic results that can be used to better inform or confirm a treatment decision and improve patient outcomes, while microbiology
laboratory managers, who have to contend with the steadily decreasing availability of trained lab technicians and the need to perform
testing during off-shifts, need simple-to-use, robust technologies. Ultimately, however, the decision whether a proposed new testing
solution is cost effective and affordable on a routine basis must be made by the payer, which in the case of hospitalized in-patients
under the DRG-reimbursement system is typically the hospital’s purchasing and finance departments. OpGen’s key account
management ensures that all stakeholders are targeted early in the sales process.
Sales Process
The typical sales process starts with an introductory
visit to the microbiology laboratory director and senior microbiology staff. The goal is to introduce Unyvero or Acuitas and assess
general interest in evaluating the Unyvero or Acuitas Platform during a demonstration phase. However, the goal is also to initiate
contact to any new hospital customer via the gatekeeping microbiology laboratory function. The primary objective apart from getting
a demo phase agreed upon is to seek joint introductory meetings with the senior microbiology staff and the various intensive care
units, or ICUs, and clinicians in any relevant ICU. Since the latter can be multiple ICUs (sometimes over a dozen in major university
hospitals) with multiple 24/7 rotating shift operations each, it is paramount to identify one or a few key ICUs as internal product
champions. The clinicians are ultimately the end-customers of Application Cartridge results for use in treatment assessment and
optimizing medical care for their patients. They will also be the ones routinely requesting a test to be done. At this stage a
discussion about the ideal placement of the Unyvero System during a demonstration usually takes place. In the United States, the
Unyvero System is placed in the core laboratory. In the EU and the rest of world, or RoW, central location in the microbiology
laboratory is the preferred option, or alternatively near patient ICU placement. It is also important to engage the clinical pharmacy,
and specifically the Infectious Disease Pharmacist, in the sales process as an additional key stakeholder and decision maker.
OpGen expects that the entire sales process,
from the introductory visit to the point in time when the hospital begins routinely purchasing Application Cartridges or Acuitas
consumables, known as the push-pull triangle model, which includes the lab, the clinicians and the finance entity, will take around
nine to twelve months, based on the experience of competitors and peer companies, in the United States and about the same time
from start to finish in the EU. Depending on the time of year and budget cycle, however, a contractual arrangement can take significantly
longer. An integral part of the sales process is the placement of demo systems without payment for demo evaluation purpose.
OpGen’s marketing provides sales and
sales support tools adapted to the specifics of each stakeholder and stimulates demand by setting up awareness campaigns for lab
personnel, clinicians and general hospital stakeholders. In the more developed markets of the EU and the RoW, additional customer
segmentation reflects the business opportunity per customer or institution and is linked to size of the hospital reflected in the
number of beds available at the institution. Therefore, the sales strategy is based on a key account management approach, initially
only targeting large hospitals with clear focus on departments like pulmonology/pneumology, large ICUs or orthopedics wards depending
on the particular Application Cartridge being promoted.
The focus is on high-volume consumable orders
(Application Cartridges and other consumables) instead of driving revenues and profits through hardware placements (Unyvero System
installations). Consequently, OpGen and its distribution partners aim to optimize the utilization of each placed hardware unit
rather than solely maximizing the installed base of instruments. Therefore, OpGen, with its tests primarily targeting in-patients
(hospitalized) with severe infections, is focusing its sales and commercialization efforts on laboratories in hospitals and independent
laboratories serving larger hospitals.
OpGen and its distribution partners will also
face certain market entry barriers mostly related to upfront investments for the implementation of its new technology, as most
laboratories and microbiology centers are cost centers, which do not directly benefit from the current DRG reimbursement scheme.
Additionally, the Unyvero and Acuitas platforms will be an add-on test not replacing traditional testing – in this case cultures,
which are perceived as comparatively cheap. Therefore, OpGen pursues a sales strategy whereby it offers customers a number of different
financial options for its products and services, including rental agreements (pursuant to which OpGen would provide the instruments
on the basis that the customer commits to buying a certain number of Application Cartridges or other consumables from OpGen over
a set period of time, with the cost of such Application Cartridges or Acuitas consumables incorporating a reagent rental charge
for the use of the instrumentation), or a straight cash purchase of the Unyvero or Acuitas platforms, as applicable. Similar concepts
are employed by OpGen’s distribution partners at their discretion.
As OpGen is marketing its innovative Unyvero
and Acuitas Platforms to a diverse and demanding customer base implementing solutions that offers the potential to improve upon
the current standard of care, the Company’s management believes it will need to continue making additional investments in
clinical validation, scientific publications, brand awareness and market education worldwide, but with a focus in the EU and United
States. Some of the Company’s tests will require market access activities to prove their value and to obtain sufficient reimbursement
by relevant payers for certain countries.
OpGen has developed a full suite of marketing
communications tools using print and online channels. OpGen also supplies supporting evidence for the various individual stakeholders,
for instance approaching microbiologists and clinicians with first-in-class scientific marketing. This not only includes the classical
marketing mix (i.e. a set of marketing tools regarding product, price, place and promotion), but also compiles information on health
economics and clinical outcomes research.
In addition, OpGen’s marketing focuses
on medical education of physicians through its scientific affairs team of clinical application specialists, participation in scientific
conferences, organizing scientific sessions and symposia, and by publications in peer-reviewed journals.
In order to receive valuable input during research
and development, stimulate market awareness and the demand for its products, OpGen has made a significant investment in establishing
clinical and scientific advisory boards in Europe and the United States, comprised of key opinion leaders. In addition, follow-on
research and clinical studies are conducted at key opinion leader, or KOL, sites, which assist in increasing market awareness.
The KOL selection by OpGen is based on the following criteria:
|
§
|
The KOL has a strong
reputation in the area of infectious diseases and/or in molecular diagnostics;
|
|
§
|
The KOL is a key opinion
leader in the clinical and/or laboratory space with strong influence on peers; and
|
|
§
|
The KOL is an 'early
innovator', a member of clinical society, an editor of scientific journals or a member of a guideline-setting agency and could
therefore act as a promoter of the product.
|
Distribution Channels
To distribute the Unyvero System and the Application
Cartridges, OpGen has adopted a dual approach combining direct sales in the United States with indirect sales through specialized
distributors in European countries such as Germany, Austria, Switzerland, UK, France, Belgium, Netherlands, Luxemburg, Spain, Italy,
Russia, Bulgaria, Romania, Greece, Israel, the Middle East, including Qatar, Kuwait and the UAE and Asian countries such as Vietnam,
Indonesia, Malaysia, Singapore, Thailand, China, Taiwan and Hong Kong and other markets such as Central and Latin American markets.
The choice between direct sales and indirect
sales distribution is based on available funding for OpGen’s commercial operations, the attractiveness of the market in terms
of size, pricing, and reimbursement, the ease of market access in terms of regulations, structure and complexity of the healthcare
system, and payer situation. Markets are also selected based on the availability of suitable distributors with appropriate size,
portfolio, sales channels, experience, networks, and reputation to introduce an innovative product like Unyvero in their respective
market. It is also not uncommon for MDx companies to start with a distributor model before going direct once economics permit establishing
a direct sales infrastructure.
OpGen going forward will regularly evaluate
on a case-by-case basis whether the chosen distribution channel is adequate to also cater for the new target disease segments,
or whether a new structure should be put in place.
Direct
Sales U.S. Market
OpGen markets and sells
the Unyvero and Acuitas platforms and will market any future cleared Application Cartridges and other consumables directly in the
United States through its own U.S.-based commercial organization including sales, marketing and after-sales support.
As of December 31,
2020, OpGen had an installed base of 23 Unyvero Analyzers across the United States and in different types of hospitals and labs.
Indirect Sales Markets
OpGen enters into a standard distribution agreement template for most of its Unyvero distributors, which specifies the particular
Unyvero product and the respective distribution territory. The distribution agreements typically contain provisions for exclusive
distribution within a particular territory and for specified term, typically from three to five-years. During that period, the
distributor has exclusive rights to market, sell and distribute all Unyvero products. In return, each distributor needs to commit
to annual minimum purchases of Unyvero Systems as well as Application Cartridges. Transfer prices for the Unyvero Systems and Application
Cartridges are defined and reflect typical MDx industry distributor margins on consumable sales. If a distributor fails to meet
its annual minimum commitments fixed in the contract, the Company has the right to either terminate such agreement in its entirety,
or to terminate such distributor’s territory exclusivity in such country. Each of these agreements can be extended by mutual
agreement between the parties. Furthermore, the agreements also contain typical change of control provisions, which comprise a
merger of the company, the sale of all assets or the liquidation of the company. None of these change of control provisions are
expected to have any impact whatsoever post business combination with OpGen as these contracts are expected to continue unchanged.
OpGen, through its subsidiary Curetis, has
entered into distribution agreements with over 20 distributors covering more than 40 countries. Distribution agreements usually
feature minimal sales commitments and purchase commitments of the Unyvero Systems and Application Cartridges commensurate with
the size and structure of the respective market. The Company has several distribution agreements in place for the following European
countries:
|
§
|
Belgium, France, Germany,
Greece, Italy, Luxemburg, Netherlands, Portugal, Spain, Switzerland, United Kingdom: A. Menarini Diagnostics;
|
|
§
|
Austria, Czech Republic,
Slovakia, Slovenia and Croatia: Axon Lab;
|
|
§
|
Romania: Synttergy Consult
LTD;
|
|
§
|
Bulgaria: SGP Bio Dynamics
Ltd;
|
|
§
|
Ireland: Cruinn Diagnostics;
|
|
§
|
Russia, Ukraine, Kazakhstan:
BioLine LLC;
|
|
§
|
Belarus: BioLine BS LLC;
and
|
|
§
|
Bosnia and Hercegovina,
Montenegro, Serbia, North Macedonia: Ako Med d.o.o.
|
In connection with these distribution agreements, distributors are
contractually obligated to:
|
·
|
cater for local product
registrations as required;
|
|
·
|
perform local clinical
studies as required;
|
|
·
|
take responsibility for
local marketing based on guidelines and materials provided by Curetis’ global marketing team;
|
|
·
|
maintain a regulatory
system as required;
|
|
·
|
maintain a local inventory;
and
|
|
·
|
install the Unyvero System,
train customers, and provide first-level service.
|
Outside of the EU, OpGen currently plans to commercialize Unyvero
through distributors. Currently further distribution agreements are in place for the following countries:
|
·
|
Qatar & UAE: Al Zahrawi
Medical LLC;
|
|
·
|
Singapore, Malaysia,
Indonesia and Thailand: Acumen Research Laboratories;
|
|
·
|
China, Taiwan and Hong
Kong: Beijing Clear Biotech/ Technomed (Hong Kong) Ltd;
|
|
·
|
Israel: Rhenium Ltd (terminated
in 2021);
|
|
·
|
Egypt: Future Horizons
Scientific;
|
|
·
|
Mexico: Quimica Valaner;
|
|
·
|
Uruguay: Biko S.A. (terminated
in 2021).
|
The total contractual minimum purchase requirements
of all current distributors is 409 Unyvero Systems of which about 360 are part of BCB’s commitment, which applies over an
eight year period following NMPA approval, plus approximately 1.5 million Application Cartridges which are also part of BCB’s
commitment during the same period). Failure of distributors to reach minimum purchase quantities has not led to any “forced”
purchase of the minimum quantities in the past but can lead to a termination of the distribution agreements or termination of
exclusivity in territories for such distributor at the sole discretion of OpGen and its Curetis subsidiary. The above minimum
purchase requirements do not guarantee any certain minimum future levels of revenues.
With respect to after-sales support and maintenance,
OpGen has established a concept of system replacement instead of onsite repair. In the event of system failure or required maintenance,
systems are rapidly replaced (within one or a few days), minimizing downtime for the customer as well as reducing the need for
a costly service organization. In certain instances, OpGen uses its own small field service engineering team to provide ad hoc
on-site repair and service. In the future OpGen expects to establish a service maintenance arrangement where customers pay for
support and repair based on what service package they have purchased.
Manufacturing
During
2020, we manufactured all our Unyvero products in Germany (Unyvero systems are manufactured by Zollner Elektronik AG and Unyvero
cartridges and consumables at our own manufacturing facility in Bodelshausen, Germany), and all our FDA-cleared and CE-IVD-marked
QuickFISH and PNA FISH products in our Gaithersburg, Maryland facility.
Manufacturing
of our CE-IVD-marked and FDA-cleared products is performed under the respective applicable relevant current standards – Quality
System Regulation as required by the FDA or other relevant regulatory bodies for the manufacture of IVD labeled products. These
regulations carefully control the manufacture, testing and release of IVD products as well as raw material receipt and control.
We also have ongoing Post Market surveillance and vigilance responsibilities under applicable European and FDA regulations, and
are subject to periodic inspections by the FDA or other relevant regulatory bodies to determine compliance with the FDA’s
or other applicable requirements, including primarily the quality system regulations and medical device reporting regulations.
The results of these inspections can include inspectional observations on FDA’s Form 483, warning letters, or other forms
of enforcement.
For
instrument manufacturing, OpGen’s subsidiary Curetis has decided to co-develop and subsequently outsource all of its Unyvero
A50 instrument manufacturing to Zollner. With regard to Application Cartridges, they are developed and manufactured entirely in-house,
using equipment provided by Contexo and certain components provided by Scholz. Curetis has established a sophisticated manufacturing
site for its cartridges where it has full control over the entire production process ensuring that Application Cartridges meet
stringent quality requirements.
Curetis’
EMS (Electronic Manufacturing Services) provider Zollner is an established and experienced medical device manufacturer for large
global companies and has flexible production processes ensuring it can meet demands with different volume requests. Zollner has
established a Unyvero dedicated manufacturing island and Unyvero team where in a single eight-hour shift for five days a week,
up to four systems (Unyvero L4 Lysator, Unyvero C8 Cockpit and Unyvero A50 Analyzer) can be assembled and tested per week. Zollner
has an established 24/7 manufacturing operation, providing significant capacities and capabilities for major scale-up of Unyvero
manufacturing operations. The Company’s management believes that manufacturing capacity will not become a bottleneck in the
foreseeable future. Zollner also has all required certifications under all applicable ISO standards for IVD instrument manufacture
and is an FDA registered establishment for the manufacturing of the Unyvero A50 instruments. So far, no decision has been made
on the selection of the OEM provider for the series production of the Unyvero A30 RQ systems.
As
part of its operational strategy, OpGen’s subsidiary Curetis decided to build and operate its own manufacturing facility
inside premises leased to it for the manufacturing of the Application Cartridges. The Application Cartridge manufacturing facility
based in Bodelshausen, Germany, has been operational since 2011. Curetis is able to manufacture sufficient product to meet current
and forecasted demand. OpGen expects future Application Cartridges to be used with the Unyvero A30 RQ Analyzer for own R&D
purposes, potential own MDx products of OpGen such as the Acuitas IVD products and/or potential products by Unyvero A30 RQ
licensees could also be manufactured in Bodelshausen, in a dedicated manufacturing line module to be developed and built and using
plastic parts manufactured by Scholz.
The
Curetis facilities at Holzgerlingen, Germany, as well as manufacturing facility in Bodelshausen, Germany were subject to an FDA
inspection in February 2019, which was successfully completed with no FDA Form 483 observations.
Zollner
On
May 27, 2009, OpGen’s subsidiary Curetis and Zollner Elektronik AG, Zandt, Germany, or Zollner, entered into a framework
agreement, pursuant to which Zollner performs certain development and manufacturing services for the Unyvero System. Under the
terms of the agreement, each party retains rights to its respective intellectual property. The agreement specifies that manufacturing
intellectual property created jointly or solely by Zollner while performing work and services for Curetis shall be solely with
Zollner. For any manufacturing intellectual property owned by Zollner, Curetis receives a non-exclusive, non-transferable, world-wide,
royalty free, irrevocable perpetual license (without a right to sublicense) to use, provided that such manufacturing intellectual
property is embodied in a product provided to Curetis. As of today, there is no such manufacturing intellectual property. The agreement
is for an indefinite period of term and may be terminated with 12 months’ prior written notice.
The
framework agreement has been expanded by a development agreement in 2010 and related project agreements for various development
projects as well as by a strategic supply agreement signed in June 2013 under which Zollner became the OEM contract manufacturer
for all Unyvero instrument systems for Curetis.
Scholz
On
February 1, 2013, Curetis and Scholz entered into a framework agreement, pursuant to which Scholz is requested to perform certain
services in the area of tool development and tool making (injection molding tools to make plastic parts) and manufacturing product
components (i.e., all plastic parts for the Application Cartridges) for Curetis. The parts for the Unyvero A50 products include
among other things, the base plates, valve plate, PCR chamber parts, spin column holder, waste chamber, reagent container, plungers
and housing body parts. All rights, title, interest and ownership in the injection molding tools and plastic products specified
in this agreement, including the respective intellectual property rights shall be transferred and assigned to and solely belong
to Curetis. Under this agreement, Scholz guarantees that all such rights solely belong to Curetis. The framework agreement constitutes
the legal basis for all legal relations between the parties after February 2013, in particular for the supply agreement.
In
addition to volume production with these pre-existing molds, Curetis subsequently commissioned a series of multi-cavity injection
molds (owned by Curetis yet stored and used on site at Scholz) under a strategic lease agreement with Scholz for all injection
molded plastics parts entered into on July 28, 2015. The agreement is for an indefinite period of term and may be terminated with
12 months’ prior written notice or may be terminated earlier by Curetis once the last order for related plastic parts has
been fulfilled.
Under
the framework agreement with Scholz, Curetis in 2018 also commissioned several single- and multi-cavity injection models for parts
of the Unyvero A30 RQ cartridge, namely molds for 'Frame bottom', 'Frame top', 'PCR Disc', 'Drive Ring', 'Switching Wheel
bottom', 'Switching Wheel top', 'Sealing Ring switching wheel' und 'Sealing Ring PCR disc'. These injection molds were developed,
manufactured and put into service by Scholz over the course of 2018 and 2019 under the same terms as described above for the injection
molds for the Unyvero A50 cartridges.
Supply
Agreements
Beginning
in October 2017, Curetis entered into a supply agreement, dated January 1, 2010, with a large single-source supplier, which updated
a prior supply agreement between them, for purchase of PCR Master Mix reagent and other product components, which are used as integral
parts of Curetis’ Application Cartridges. Pursuant to the agreement, Curetis has the right to resell such product components
supplied under the agreement, except for the PCR Master Mix, in conjunction and jointly repackaged with Curetis’ products
worldwide. Further, the agreement provides that Curetis has the right to resell the PCR Master Mix repackaged and refilled for
use only in conjunction with Curetis’ products worldwide. Pursuant to the PCR Master Mix supply agreement, Curetis’
distribution right is limited to the sale to end-users and Curetis’ distributors and does not include sales to users who
re-sell Curetis products in modified form (e.g. using their own brand) or sales, which would violate any sanctions, embargos or
foreign trade restrictions issued by the EU or the United States Further, Curetis, or any of its affiliates or distributors, are
not permitted to resell any of the product components, including the PCR Master Mix, to third parties as stand-alone items for
use other than in conjunction with Curetis’ products. Under the agreement, Curetis is subject to certain minimum annual purchase
requirements.
Raw
Materials and Suppliers for Acuitas
OpGen
procures PCR amplification reagents and the QuantStudio 5 Real-Time PCR System from Thermo Fisher Scientific. DNA purification
reagents and the EZ1 DNA Purification System are procured from QIAGEN, NV. We purchase the PNA probes, glass slides and specialty
consumables for our QuickFISH products from third party manufacturers who have long lead times and who manufacture several of these
products for us on a sole source basis. We also purchase our collection kits from sole-source suppliers. Some of these items are
unique to these suppliers and vendors. While we have developed alternative sourcing strategies for these materials and vendors,
we cannot be certain whether these strategies will be effective or whether alternative sources will be available when we need them.
If these suppliers can no longer provide us with the materials we need to manufacture our Acuitas AMR Gene Panel products or our
QuickFISH products, if the materials do not meet our quality specifications, or if we cannot obtain acceptable substitute materials,
our business would be negatively affected.
Seasonality
of Business
We do not believe our business is subject
to seasonality. However, our business can be subject to and affected by the business practices of our business partners. To the
extent that the availability of inventory or materials from or development practices of our partners is seasonal, our sales may
be subject to fluctuations quarter to quarter or year over year.
Quality
Assurance
Our
global quality and regulatory affairs function oversees the quality of our R&D operations, laboratories and our FDA-cleared
and CE-IVD-marked diagnostic products as well as the quality systems used in research and development, manufacturing and commercialization
such as client services, billing operations and sales and marketing. We have established a quality assurance system across our
entire business, including implementation and maintenance, document control, supplier qualification, corrective or preventive actions,
oversight, and employee training processes. We monitor and seek to improve our quality over time in compliance with all applicable
regulations.
Payments
and Reimbursements
Our Unyvero tests, SARS-CoV-2 tests,
Acuitas AMR Gene Panel (RUO) tests are, and our PNA FISH and QuickFISH were, and other future products and services will be, sold
to hospitals, laboratories, and public health organizations as products and on a fee-for-service basis. When hospital and health
system clients purchase our products, we bill them directly for the purchase of test kits and consumables. We believe that hospitals
will recoup costs of our products and services by obtaining reimbursement from the government or private insurance companies for
in-bed occupancies, which traditionally includes all testing required for admitted patients. When our tests are used prior to
hospital admission, hospitals, clinical laboratories, and other healthcare provider customers that purchase our products may bill
various third-party payers to cover all or a portion of the costs and fees associated with diagnostic tests, including the cost
of the purchase of our products.
In the IVD market, sales volumes and
prices of innovative products will depend in large part on the availability of coverage and reimbursement from third-party payers,
which includes depending on public funding through governmental programs, private insurance plans and workers’ compensation
plans. In most healthcare settings, reimbursement schemes are complex, processes to achieve reimbursement for new technologies
is tedious and time consuming and payers may deny coverage or reimbursement. As a result, even though a new product may have been
cleared for commercial distribution, it may find limited demand for the product until reimbursement approval has been obtained
from governmental and private third-party payers. However, specific reimbursement codes for laboratory tests are in most countries
only applicable for out-patient’s healthcare. In addition, some public funding is already available in most countries for
certain established tests and is often technology specific, thus code stacking or cross-walking and using corresponding codes is
quite usual to overcome challenging reimbursement situations.
OpGen has analyzed existing reimbursement
schemes in Germany, Austria and Switzerland, as well as other European countries and the United States, where hospitalized in-patients
with severe infections are typically covered under the DRG system. With DRG, hospitals receive a lump-sum payment, e.g., up to
€22,000 in Germany for a life-threatening case of VAP treated in intensive care. Therefore, OpGen has taken the strategic
direction to target hospitalized patients first as in most countries DRG systems as hospitals’ general financing are in place
covering diagnostics as part of a lump sum payment per patient without specific reimbursement codes for a laboratory test required.
In addition, the current list prices
and future anticipated prices for Unyvero Application Cartridges and Acuitas AMR Gene Panel consumables, amount to a small fraction
of this overall DRG payment. It is also favorable in some countries, such as the United States, that pathogen identification by
a lab test may even warrant coding to higher DRG rates. For example, OpGen’s marketing team has been working with outside
consultants to correctly position the LRT Application Cartridge in the context of relevant DRG codes so that, based on the pathogens
identified by the LRT Application Cartridge, it can offer hospitals more favorable DRG coding and higher reimbursement on a per
patient case overall.
OpGen’s management believes that
existing DRG reimbursement scheme codes and optimization potential based on a Unyvero or Acuitas diagnostic within those applicable
DRGs and their national equivalents can be used in most major markets and therefore an adoption of the Unyvero and Acuitas technology
seems feasible.
Intellectual
Property
In order to remain competitive, we must
develop and maintain protection of the proprietary aspects of our technologies. To that end, in order to remain competitive, we
must develop and maintain protection of the proprietary aspects of our technologies. We therefore rely on a combination of patents,
copyrights and trademarks, as well as contracts, such as confidentiality, invention assignment and licensing agreements. We also
rely upon trade secret laws to protect unpatented know-how and continuing technological innovation. In addition, we have what we
consider to be reasonable security measures in place to maintain confidentiality. Our intellectual property strategy is intended
to develop and maintain our competitive position.
As of December 31, 2020, OpGen had a
patent portfolio of 49 granted patents and 19 patent applications excluding the FISH and Argus intellectual property as mentioned
below. 37 of the granted patents and 4 of the pending patent applications are from Curetis and 10 of the granted patents and 15
of the pending patent applications are from Ares Genetics.
As part of the aforementioned portfolio,
we have one issued US patent, one allowed US patent and one pending US patent application related to our Acuitas products. In November
2019, the U.S. Patent and Trademark Office issued an OpGen patent covering the Lighthouse Profiling technology used in the Company’s
software for tracking antimicrobial resistant pathogens. The patent covers the use of the Company’s Acuitas Lighthouse®
Software for real-time monitoring of superbug infections and other multi--drug resistant infections. On December 29th
2020, the U.S. Patent and Trademark Office issued an OpGen patent covering detection of multi-drug resistant organisms used in
the Company’s Acuitas product. The patent covers the use of Acuitas for identification and characterization of genes and
gene families associated with multi-gene resistance in biological samples in the screening, diagnosis, therapy, epidemiological
surveillance, and monitoring of multi-gene resistant colonization and infection.
As part of the aforementioned portfolio,
there are two pending U.S. non-provisional patent applications and 8 issued U.S. patents related to our FISH products. These issued
patents begin to expire in November 2024 and will be fully expired by October 2033. We are currently in the process of sunsetting
our FISH intellectual property. A majority of our issued and exclusively licensed FISH patents from Dako Denmark A/S expired over
the last six years. The remaining nine exclusively licensed U.S. FISH patents expire between 2021 and 2024.
We have ownership rights to 8 issued U.S.
patents related to our Argus products. These issued patents begin to expire in November 2026 and will be fully expired by July
2031. We are currently in the process of sunsetting our Argus intellectual property.
We intend to file additional patent
applications in the United States and abroad to strengthen our intellectual property rights; however, our patent applications (including
the patent applications listed above) may not result in issued patents in a timely fashion or at all, and we cannot assure investors
that any patents that have issued or might issue will protect our technology.
We require all employees and technical
consultants working for us to execute confidentiality agreements, which provide that all confidential information received by them
during the course of the employment, consulting or business relationship be kept confidential, except in specified circumstances.
Our agreements with our research employees provide that all inventions, discoveries and other types of intellectual property, whether
or not patentable or copyrightable, conceived by the individual while he or she is employed by us are assigned to us. We cannot
provide any assurance, however, that employees and consultants will abide by the confidentiality or assignment terms of these agreements.
Despite measures taken to protect our intellectual property, unauthorized parties might copy aspects of our technology or obtain
and use information that we regard as proprietary.
Regulation
The following is a summary of the regulations
materially affecting our business and operations.
Federal Oversight of Research-Use-Only
Products
We
currently offer for sale and sell some of our Unyvero and Acuitas AMR Gene Panel (RUO) tests to CROs, pharmaceutical companies,
reference laboratories, hospitals and other health care facilities for research use only. RUO and investigational use only, or
IUO, products are not intended for human clinical use and must be properly labeled in accordance with FDA guidance. Claims for
RUOs and IUOs related to safety, effectiveness, or clinical utility or that are intended for human diagnostic or prognostic use
are prohibited. In November 2013, the FDA issued guidance titled “Distribution of In Vitro Diagnostic Products Labeled for
Research Use Only or Investigational Use Only – Guidance for Industry and Food and Drug Administration Staff.” This
guidance sets forth the requirements to utilize such designations, labeling requirements and acceptable distribution practices,
among other requirements.
Mere
placement of an RUO or IUO label on an IVD product does not render the device exempt from otherwise applicable clearance, approval
or other requirements. The FDA may determine that the device is intended for use in clinical diagnosis based on other evidence,
including how the device is marketed.
Our
Acuitas AMR Gene Panel test was launched for RUO purposes in early 2018 and the Unyvero UTI assay was launched for RUO purposes
in Q2-2020. We cannot predict the potential effect the FDA’s current and forthcoming guidance IUOs/RUOs will have on our
product offerings or materials used to perform our diagnostic services. We cannot be certain that the FDA might not promulgate
rules or issue guidance documents that could affect our ability to purchase materials necessary for the performance of our diagnostic
services. Should any of the reagents obtained by us from vendors and used in conducting our diagnostic services be affected by
future regulatory actions, our business could be adversely affected by those actions, including increasing the cost of service
or delaying, limiting or prohibiting the purchase of reagents necessary to perform the service.
We
cannot provide any assurance that FDA regulation, including premarket review, will not be required in the future for our surveillance
and diagnostic services, whether through additional guidance or regulations issued by the FDA, new enforcement policies adopted
by the FDA or new legislation enacted by Congress. We expect that new legislative proposals will be introduced from time to time.
It is possible that legislation could be enacted into law or regulations or guidance could be issued by the FDA, which may result
in new or increased regulatory requirements for us to continue to offer our diagnostic services or to develop and introduce new
services.
FDA’s Premarket Clearance
and Approval Requirements
The
FDA also has broad authority over the regulation of medical devices marketed for sale in the United States. The FDA regulates the
research, clinical testing, manufacturing, safety, labeling, storage, recordkeeping, premarket clearance or approval, promotion,
distribution and production of medical devices. The FDA also regulates the export of medical devices manufactured in the United
States to international markets.
Under
the Food, Drug, and Cosmetic Act, or FDC Act, the FDA classifies medical devices into one of three classes: Class I, Class II or
Class III. Devices deemed to pose lower risk are placed into either Class I or Class II.
Class
I devices are deemed to pose the lowest risk to the patient. Accordingly, Class 1 devices are subject to the lowest degree of regulatory
scrutiny and need only comply with the FDA’s General Controls. The General Controls include compliance with the registration,
listing, adverse event reporting requirements, and applicable portions of the Quality System Regulation, or QSR as well as the
general misbranding and adulteration prohibitions. Unless specifically exempted in the regulations, general controls require a
company that intends to market a Class I device, like us, to gain clearance for marketing through the 510(k) process. Many Class
I devices, however, are exempt from 510(k) clearance because the level of risk is low.
Class
II devices are considered higher risk devices than Class I devices. Class II devices are subject to General Controls as well as
additional special controls. Special controls may include labeling requirements, mandatory performance standards, and post market
surveillance. Generally, companies that intend to market Class II devices, like us, must comply with applicable regulations and
submit a 510(k) premarket submission for review to receive clearance to list and market their devices. The 510(k) must establish
substantial equivalence to a predicate device. Some Class II devices are exempt from filing a 510(k) but in some instances, Class
II devices may be required to file a Premarket Approval, or PMA, application, for example, when changes in their technology or
intended use present novel risks that warrant separate review as a Class III medical device.
Class
III devices are deemed by the FDA to pose the greatest risk, such as life-sustaining, life-supporting or implantable devices, or
devices for which no substantially equivalent previously cleared device exists and require a PMA before commercialization.
All
medical device manufacturers must register their establishments and list their devices with the FDA. Establishment registration
requires the payment of user fees. In addition, both 510(k) premarket submissions and PMA applications are subject to the payment
of user fees, paid at the time of submission for FDA review.
510(k) Clearance Pathway
We
are currently working to submit our Unyvero tests and Acuitas AMR Gene Panel test for isolates for clearance under Section 510(k)
of the FDC Act. Such tests are classified as medical devices, and we have to submit a premarket notification demonstrating that
the proposed device is substantially equivalent to a previously cleared 510(k) device or a device that was in commercial distribution
before May 28, 1976, for which the FDA has not yet called for the submission of premarket approval applications. FDA’s 510(k)
clearance pathway usually takes from three to twelve months; by statute, the FDA has 90 days to review the pre-market notification.
On average the review time is approximately six months, but it can take significantly longer than twelve months in some instances
(e.g. in the case of the Acuitas AMR Gene Panel (isolates) as well as original Unyvero LRT products a total of over 18 months),
as the FDA may require additional information, including clinical data, to make a determination regarding substantial equivalence.
After
a device receives 510(k) clearance, any modification that could significantly affect its safety or effectiveness, or that would
constitute a new or major change in its intended use, will require a new 510(k) clearance or, depending on the modification, require
a PMA. The FDA requires each manufacturer to determine whether the proposed change requires submission of a new 510(k) notice,
or a premarket approval, but the FDA can review any such decision and can disagree with a manufacturer’s determination. If
the FDA disagrees with a manufacturer’s determination, the FDA can require the manufacturer to cease marketing and/or recall
the modified device until 510(k) clearance or premarket approval is obtained. If the FDA requires us to seek 510(k) clearance or
premarket approval for any modifications to a previously cleared product, we may be required to cease marketing or recall the modified
device until we obtain this clearance or approval. Also, in these circumstances, we may be subject to significant regulatory fines
or penalties. We have made, and plan to continue to make, additional product enhancements to products that we believe do not require
new 510(k) clearances, but we cannot guarantee that the future enhancements, should they occur, will be exempt from new 510(k)
clearances.
De Novo Classification Request
The Food and Drug Administration Modernization
Act of 1997, or FDAMA, added the De Novo classification option as an alternate pathway to classify low to moderate risk novel medical
devices that had automatically been placed in Class III after receiving a not substantially equivalent determination in response
to a premarket notification 510(k) submission. FDAMA also permits a sponsor to submit a De Novo classification request to the FDA
for a product otherwise requiring a PMA application without first being required to submit a 510(k) application. The De Novo classification
process is generally more costly and time consuming than the 510(k) process. Both, the Unyvero application cartridge products as
well as Acuitas AMR Gene Panel for isolates have been subject to the De Novo process and we expect the Unyvero UTI and IJI to also
fall under the De Novo process.
Premarket Approval Pathway
A PMA application must be submitted
if a device cannot be cleared through the 510(k) process. The PMA application process is generally more costly and time consuming
than the 510(k) process. A PMA application must be supported by extensive data including, but not limited to, analytical, preclinical,
clinical trials, manufacturing, statutory preapproval inspections, and labeling to demonstrate to the FDA’s satisfaction
the safety and effectiveness of the device for its intended use.
After a PMA application is sufficiently
complete, the FDA will accept the application and begin an in-depth review of the submitted information. By statute, the FDA has
180 days to review the “accepted application,” although, generally, review of the application can take between one
and three years, but it may take significantly longer. During this review period, the FDA may request additional information or
clarification of information already provided. Also, during the review period, an advisory panel of experts from outside the FDA
may be convened to review and evaluate the application and provide recommendations to the FDA as to the approvability of the device.
The preapproval inspections conducted by the FDA include an evaluation of the manufacturing facility to ensure compliance with
the QSR, as well as inspections of the clinical trial sites by the Bioresearch Monitoring group to evaluate compliance with good
clinical practice and human subject protections. New premarket approval applications or premarket approval application supplements
are required for modifications that affect the safety or effectiveness of the device, including, for example, certain types of
modifications to the device’s indication for use, manufacturing process, labeling and design. Significant changes to an approved
PMA require a 180-day supplement, whereas less substantive changes may utilize a 30-day notice, or the 135-day supplement. Premarket
approval supplements often require submission of the same type of information as a premarket approval application, except that
the supplement is limited to information needed to support any changes from the device covered by the original premarket approval
application and may not require as extensive clinical data or the convening of an advisory panel. None of our products are currently
approved under a premarket approval.
Clinical Trials
Clinical trials are almost always required
to support a De Novo or PMA application and are usually required to support non-exempt Class I and Class II 510(k) premarket submissions.
Clinical trials may also be required to support certain marketing claims. If the device presents a “significant risk,”
as defined by the FDA, to human health, the FDA requires the device sponsor to file an investigational device exemption, or IDE
application with the FDA and obtain IDE approval prior to conducting the human clinical trials. The IDE application must be supported
by appropriate data, such as analytical, animal and laboratory testing results, manufacturing information, and an Investigational
Review Board, or IRB approved protocol showing that it is safe to test the device in humans and that the testing protocol is scientifically
sound. The IDE application must be approved in advance by the FDA prior to initiation of enrollment of human subjects. Clinical
trials for a significant risk device may begin once the investigational device exemption application is approved by the FDA. If
the clinical trial design is deemed to be “non-significant risk,” the clinical trial may eligible for the “abbreviated”
IDE requirements; in some instances IVD clinical trials may be exempt from the more burdensome IDE requirements if the test uses
a noninvasive sampling method, does not introduce energy into the subject, and is not used in a diagnostic procedure without confirmation
of the diagnosis by another established medically diagnostic procedure or product. All clinical trials conducted to support a premarket
submission must be conducted in accordance with FDA regulations and Federal and state regulations concerning human subject protection,
including informed consent, oversight by an IRB and healthcare privacy requirements. A clinical trial may be suspended by the FDA
or the IRB review board at any time for various reasons, including a belief that the risks to the study participants outweigh the
benefits of participation in the study. Even if a study is completed, the results of our clinical testing may not demonstrate the
safety and efficacy of the device or may be equivocal or otherwise not be sufficient to obtain approval of our product. Similarly,
in Europe the clinical study must be approved by the local ethics committee and in some cases, including studies of high-risk devices,
by the Ministry of Health in the applicable country.
Pervasive and Continuing
FDA Regulation
Numerous regulatory requirements apply
to products classified as devices, such as ours, and would continue to apply. These include:
|
·
|
product listing and establishment registration, which helps facilitate FDA inspections and other
regulatory action;
|
|
·
|
QSR, which requires manufacturers, including third-party manufacturers, to follow stringent design,
testing, control, documentation and other quality assurance procedures during all aspects of the development and manufacturing
process;
|
|
·
|
labeling regulations and FDA prohibitions against the promotion of products for uncleared, unapproved
or off-label use or indication;
|
|
·
|
clearance of product modifications that could significantly affect safety or efficacy or that would
constitute a major change in intended use of one of our cleared devices;
|
|
·
|
approval of product design modifications that affect the safety or effectiveness of one of our
cleared devices;
|
|
·
|
medical device reporting regulations, which require that manufacturers comply with FDA requirements
to report if their device may have caused or contributed to a death or serious injury, or has malfunctioned in a way that would
likely cause or contribute to a death or serious injury if the malfunction of the device or a similar device were to recur;
|
|
·
|
post-approval restrictions or conditions, including post-approval study commitments;
|
|
·
|
post-market surveillance regulations, which apply when necessary to protect the public health or
to provide additional safety and effectiveness data for the device;
|
|
·
|
the FDA’s recall authority, whereby it can ask, or under certain conditions order, device
manufacturers to recall from the market a product that is in violation of governing laws and regulations;
|
|
·
|
regulations pertaining to voluntary recalls; and
|
|
·
|
notices of corrections or removals.
|
OpGen’s Gaithersburg, Maryland
facility is currently registered as a manufacturer with the FDA to manufacture our FISH products, whereas the Curetis Bodelshausen,
Germany facility is registered with the FDA for all Unyvero cartridge and consumable manufacturing. We and any third-party manufacturers
are subject to announced and unannounced inspections by the FDA to determine our compliance with quality system regulation and
other regulations.
Failure to comply with applicable regulatory
requirements could result in enforcement action by the FDA, which might include any of the following sanctions: (1) untitled letters,
Form 483 observations, warning letters, fines, injunctions, consent decrees and civil penalties; (2) unanticipated expenditures
to address or defend such actions; (3) customer notifications for repair, replacement and refunds; (4) recall, detention or seizure
of our products; (5) operating restrictions or partial suspension or total shutdown of production; (6) refusing or delaying our
requests for 510(k) clearance or premarket approval of new products or modified products; (7) operating restrictions; (8) withdrawing
510(k) clearances or PMA approvals that have already been granted; (9) refusal to grant export approval for our products; or (10)
criminal prosecution.
After a medical device is placed on
the market, numerous regulatory requirements apply. These include: all of the relevant elements of the QSR, labeling regulations,
restrictions on promotion and advertising, the medical device reporting (which requires the manufacturer to report to the FDA if
its device may have caused or contributed to a death or serious injury or malfunctioned in a way that would likely cause or contribute
to a death or serious injury if it were to recur), the Reports of Corrections and Removals regulations (which requires manufacturers
to report certain recalls and field actions to the FDA), and other post-market requirements.
Health Insurance Portability and
Accountability Act
Under HIPAA, the Department of Health
and Human Services, or HHS, has issued regulations to protect the privacy and security of protected health information used or
disclosed by healthcare providers, such as us, and by certain vendors of ours, also known as our business associates. The regulations
include limitations on the use and disclosure of protected health information and impose notification requirements in the event
of a breach of protected health information. HIPAA also regulates standardization of data content, codes and formats used in healthcare
transactions and standardization of identifiers for health plans and providers. Penalties for violations of HIPAA regulations include
civil and criminal penalties.
We have developed and implemented policies
and procedures designed to comply with these regulations. The requirements under these regulations may change periodically and
could have an effect on our business operations if compliance becomes substantially more costly than under current requirements.
In addition to Federal privacy regulations,
there are a number of state laws governing confidentiality of health information that are applicable to our business. If our business
expands internationally, we would be subject to compliance with other laws regarding confidentiality of health information and
privacy.
New laws governing privacy may be adopted
in the future as well. We have taken steps to comply with health information privacy requirements to which we are aware that we
are subject. However, we cannot assure you that we are or will remain in compliance with diverse privacy requirements in all of
the jurisdictions in which we do business. Failure to comply with privacy requirements could result in civil or criminal penalties,
which could have a materially adverse effect on our business.
Federal and State Physician
Self-referral Prohibitions
As a manufacturer and seller of diagnostic
tests, we are subject to the Federal physician self-referral prohibitions, commonly known as the Stark Law, and to similar restrictions
under the Maryland Physician Self-Referral Law. Together, these restrictions generally prohibit us from billing a patient or any
governmental or private payor for any clinical laboratory services when the physician ordering the service, or any member of such
physician’s immediate family, has an investment interest in or compensation arrangement with us, unless the arrangement meets
an exception to the prohibition.
Both the Stark Law and the Maryland
Physician Self-Referral Law contain an exception for compensation paid to a physician for personal services rendered by the physician.
We have compensation arrangements with a number of physicians for personal services, such as clinical advisory board services,
speaking engagements and other consulting activities. We have structured these arrangements with terms intended to comply with
the requirements of the personal services exception to the Stark Law and the Maryland Physician Self-Referral Law.
However, we cannot be certain that regulators
would find these arrangements to be in compliance with the Stark Law, the Maryland Physician Self-Referral Law, or similar state
laws. We would be required to refund any payments we receive pursuant to a referral prohibited by these laws to the patient, the
payor or the Medicare program, as applicable.
Sanctions for a violation of the Stark
Law include the following:
|
·
|
denial of payment for the services provided in violation of the prohibition;
|
|
·
|
refunds of amounts collected by an entity in violation of the Stark Law;
|
|
·
|
a civil penalty of up to $15,000 for each service arising out of the prohibited referral
|
|
·
|
possible exclusion from Federal healthcare programs, including Medicare and Medicaid; and
|
|
·
|
a civil penalty of up to $100,000 against parties that enter into a scheme to circumvent the Stark
Law’s prohibition.
|
These prohibitions apply regardless
of the reasons for the financial relationship and the referral. No finding of intent to violate the Stark Law is required for a
violation. In addition, knowing violations of the Stark Law may also serve as the basis for liability under the Federal False Claims
Act, which prohibits knowingly presenting, or causing to be presented, a false or fraudulent claim for payment to the U.S. Government.
Further, if we submit claims in violation
of the Maryland Physician Self-Referral Law, we can be held liable to the payer for any reimbursement received for the services
by us. Finally, other states have self-referral restrictions with which we have to comply that differ from those imposed by Federal
and Maryland law. While we have attempted to comply with the Stark Law and the Maryland Physician Self-Referral Law, it is possible
that some of our financial arrangements with physicians could be subject to regulatory scrutiny at some point in the future, and
we cannot provide assurance that we will be found to be in compliance with these laws following any such regulatory review.
Federal and State Anti-Kickback
Laws
The Federal healthcare program Anti-Kickback
Law makes it a felony for a person or entity to knowingly and willfully offer, pay, solicit or receive remuneration, directly or
indirectly, in order to induce business that is reimbursable under any Federal healthcare program. A violation of the Anti-Kickback
Law may result in imprisonment for up to five years and fines of up to $250,000 in the case of individuals and $500,000 in the
case of organizations. Convictions under the Anti-Kickback Law result in mandatory exclusion from Federal healthcare programs for
a minimum of five years. In addition, HHS has the authority to impose civil assessments and fines and to exclude healthcare providers
and others engaged in prohibited activities from Medicare, Medicaid and other Federal healthcare programs. Actions which violate
the Anti-Kickback Law also incur liability under the Federal False Claims Act.
Although the Anti-Kickback Law applies
only to Federal healthcare programs, a number of states, including Maryland, have passed statutes substantially similar to the
Anti-Kickback Law pursuant to which similar types of prohibitions are made applicable to all other health plans and third-party
payers. Violations of Maryland’s anti-kickback law are punishable by tiered criminal penalties based on the crime with a
maximum penalty of life imprisonment and fines of up to $200,000, or both. Civil penalties include three times the amount of any
overpayment made in violation of the statute.
Federal and state law enforcement authorities
scrutinize arrangements between healthcare providers and potential referral sources to ensure that the arrangements are not designed
as a mechanism to induce patient care referrals or induce the purchase or prescribing of particular products or services. The law
enforcement authorities, the courts and Congress have also demonstrated a willingness to look behind the formalities of a transaction
to determine the underlying purpose of payments between healthcare providers and actual or potential referral sources. Generally,
courts have taken a broad interpretation of the scope of the Anti-Kickback Law, holding that the statute may be violated if merely
one purpose of a payment arrangement is to induce referrals or purchases.
In addition to statutory exceptions
to the Anti-Kickback Law, regulations provide for a number of safe harbors. If an arrangement meets the provisions of a safe harbor,
it is deemed not to violate the Anti-Kickback Law. An arrangement must fully comply with each element of an applicable safe harbor
in order to qualify for protection. There are no regulatory safe harbors to the Maryland anti-kickback law.
Among the safe harbors that may be relevant
to us is the discount safe harbor. The discount safe harbor potentially applies to discounts provided by providers and suppliers,
including laboratories, to physicians or institutions. If the terms of the discount safe harbor are met, the discounts will not
be considered prohibited remuneration under the Anti-Kickback Law. Maryland does not have a discount safe harbor.
The personal services safe harbor to
the Anti-Kickback Law provides that remuneration paid to a referral source for personal services will not violate the Anti-Kickback
Law provided all of the elements of that safe harbor are met. One element is that if the agreement is intended to provide for the
services of the physician on a periodic, sporadic or part-time basis, rather than on a full-time basis for the term of the agreement,
the agreement must specify exactly the schedule of such intervals, their precise length, and the exact charge for such intervals.
Our personal services arrangements with
some physicians may not meet the specific requirement of this safe harbor that the agreement specify exactly the schedule of the
intervals of time to be spent on the services because the nature of the services, such as speaking engagements, does not lend itself
to exact scheduling and therefore meeting this element of the personal services safe harbor is impractical. Failure to meet the
terms of the safe harbor does not render an arrangement illegal. Rather, the government may evaluate such arrangements on a case-by-case
basis, taking into account all facts and circumstances.
While we believe that we are in compliance
with the Anti-Kickback Law and the Maryland anti-kickback law, there can be no assurance that our relationships with physicians,
academic institutions and other customers will not be subject to investigation or challenge under such laws. If imposed for any
reason, sanctions under the Anti-Kickback Law and the Maryland anti-kickback law could have a negative effect on our business.
Other Federal and State
Fraud and Abuse Laws
In addition to the requirements discussed
above, several other healthcare fraud and abuse laws could have an effect on our business. For example, provisions of the Social
Security Act permit Medicare and Medicaid to exclude an entity that charges the Federal healthcare programs substantially in excess
of its usual charges for its services. The terms “usual charge” and “substantially in excess” are ambiguous
and subject to varying interpretations.
Further, the Federal False Claims Act
prohibits a person from knowingly submitting a claim, making a false record or statement in order to secure payment or retaining
an overpayment by the Federal government. In addition to actions initiated by the government itself, the statute authorizes actions
to be brought on behalf of the Federal government by a private party having knowledge of the alleged fraud, also known as qui tam
lawsuits. Because the complaint is initially filed under seal, the action may be pending for some time before the defendant is
even aware of the action. If the government is ultimately successful in obtaining redress in the matter or if the plaintiff succeeds
in obtaining redress without the government’s involvement, then the plaintiff will receive a percentage of the recovery.
It is not uncommon for qui tam lawsuits to be filed by employees, competitors or consultants.
Finally, the Social Security Act includes
its own provisions that prohibit the filing of false claims or submitting false statements in order to obtain payment. Violation
of these provisions may result in fines, imprisonment or both, and possible exclusion from Medicare or Medicaid programs. Maryland
has an analogous state false claims act applicable to state health plans and programs, as do many other states.
International Regulation
Sales of diagnostic tests like our Unyvero
tests, SARS CoV-2 test kits, QuickFISH and PNA FISH products outside the United States would be subject to foreign government regulations,
which vary substantially from country to country. In order to market our products in other countries, we would need to obtain regulatory
approvals and comply with extensive safety and quality regulations in other countries. OpGen currently distributes its QuickFISH
and PNA FISH products in the European Union through its wholly owned Curetis GmbH subsidiary who also distribute all Unyvero products
ex U.S. via a network of distribution partners. The time required to obtain approval by a foreign country may be longer or shorter
than that required for FDA clearance or approval, and the requirements may differ significantly. If we elect to, or are required
to, seek clearance of or approval for any of our products from the FDA, we may be able to commercialize such products with shorter
lead time in international markets, but would need to establish international operations in order to do so.
Environmental Matters
Our operations require the use of hazardous
materials (including biological materials) which subject us to a variety of Federal, state and local environmental and safety laws
and regulations. Some of these regulations provide for strict liability, holding a party potentially liable without regard to fault
or negligence. We could be held liable for damages and fines as a result of our, or others’, business operations should contamination
of the environment or individual exposure to hazardous substances occur. We cannot predict how changes in laws or new regulations
will affect our business, operations or the cost of compliance.
Human Capital Resources
As of December 31, 2020, we had 110
employees worldwide, with 41 employed in the United States, 55 employed in Germany at Curetis GmbH, and 14 employed in Austria
at Ares Genetics GmbH. Of our 110 worldwide employees, 94 are full-time employees. Except for the managing director of Ares Genetics
our Austrian employees are subject to the collective bargaining agreement 2021 for employees of companies in the automated data
processing and IT services industry. Other than that, none of our employees worldwide are subject to a collective bargaining arrangement.
The 41 employees in the United States primarily work in our Gaithersburg, Maryland location or are field based marketing, sales,
and service employees.
We compete in the highly competitive
healthcare and life sciences industry. Our ability to operate and compete effectively and execute our strategy requires us to attract,
develop and retain talented personnel for positions in research, quality assurance, clinical, commercial and other positions. Recruiting
and retaining our personnel depends on factors, such as compensation and benefits, development and career opportunities, and work
culture and environment. We accordingly invest in our employees in a number of different ways.
Culture
Our goal is to create and foster a culture
of high performance and accountability through the attraction, retention and development of expert talent. We compete for top talent
with effective recruitment strategies, well defined roles and attractive total compensation packages. We keep talent engaged through
appreciation, communication and creation of a great work environment. We support employee growth professionally and personally
through formal and informal opportunities and leadership support.
We also believe it is critical that
our employees are informed and engaged. We communicate frequently and transparently with our employees through a variety of communication
methods. We believe these engagement efforts keep employees informed about our strategy, culture and purpose and motivated to do
their best work.
Compensation
In addition to competitive base salaries,
we offer incentive-based compensation programs tied to the performance of key objectives. We also provide compensation in the form
of restricted stock unit grants and stock options.
Health & Wellness
The physical health and wellbeing, life
balance and mental health of our employees is vital to our success. Throughout 2020, health and wellness was a key focus of the
Company, especially in light of the pandemic. Many of our employee communications focused on the physical and mental health of
our employees. We remain committed to providing our workforce with flexible remote working schedules to suit their personal needs
through this challenging time. We also continue to benchmark all of our health insurance offerings to ensure plan competitiveness.
Throughout the COVID-19 pandemic, employee
safety is of top priority. Most of our employees globally have been working from home since the beginning of the pandemic, except
for those with a business need to engage in work onsite. Ongoing safety measures were put into place at each of our locations including
implementing pre-screening and social distancing requirements in addition to providing PPE.
Glossary
The following scientific, healthcare, regulatory
and OpGen-specific terms are used throughout this Annual Report:
“Acuitas AMR Gene Panel (Isolates)”
is a qualitative nucleic acid-based in vitro diagnostic test that is capable of simultaneous detection and identification of multiple
bacterial nucleic acids and select genetic determinants of antimicrobial resistance from bacterial colonies isolated from any specimen.
“Acuitas Lighthouse” is
our informatics platform, developed internally to provide real-time information on the MDRO status for patients and hospitals.
We combine our molecular test information and microbiology test results to create Acuitas Lighthouse profiles for hospitals, health
systems and communities, which we call our Acuitas Lighthouse informatics. Acuitas Lighthouse profiling facilitates MDRO tracking
and results can be aggregated with hospital data to provide customized reports including alerts, prevalence, trend analysis and
transmission information.
“AI” means Artificial Intelligence.
“AMR” means antimicrobial
resistance.
“antibiotic stewardship” has
been defined by the CDC to mean hospital-based programs dedicated to improving use of antibiotic therapy with the goal of optimizing
the treatment of infections and reducing the adverse events associated with antibiotic use.
“ARESdb” means ARES reference database on antimicrobial
resistance.
“ARESupa” means ARES universal pathogenome assay.
“ares-genetics.cloud” means ARES web application available
under ares-genetics.cloud.
“AST” means Antimicrobial
Susceptibility Testing.
“BCU” means blood culture.
“CAP”-Community-Acquired
Pneumonia.
“CDC” means the U.S.
Centers for Disease Control and Prevention.
“CMS” means the Centers
for Medicare and Medicaid Services.
“CRE” means carbapenem-resistant
Enterobacteriaceae, an MDRO.
“DNA sequencing” is
the process of determining the precise order of nucleotides within a DNA molecule.
“DRG” means Diagnosis
Related Group.
“ESBL” means extended
spectrum beta lactamase bacteria.
“FDA” means the U.S.
Food and Drug Administration.
“HAIs” means healthcare-associated
infections. Such infections could arise first in the hospital or other healthcare setting, or could result from a patient, colonized
with an organism, developing an active infection once admitted to the hospital or other healthcare setting.
“HAP” means Hospital-Acquired
Pneumonia.
“HIPAA” means the Federal
Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical
Health Act, or HITECH Act. HIPAA and HITECH Act are Federal laws mandating security and privacy of protected personal health information
of patients.
“HPN” means hospitalized
pneumonia.
“IAI” means intra-abdominal
infection.
“IJI” means implant
& joint infections.
“informatics” refers
to methods, algorithms and processes for the collection, classification, storage and analysis of biochemical and biological data
and information using computers, especially as applied in molecular genetics and genomics. Our focus is on acquiring such data
and information related to MDROs to assist in diagnosis and screening of patients and antibiotic stewardship initiatives by acute
care hospitals. When we use the term “advanced informatics,” we mean informatics combined with higher levels of complexity,
sophistication and subject matter expertise related to MDROs, diagnostics, antibiotic stewardship, and the development of associated
analysis tools, or the novel application of existing informatics in future products or services. In this Annual Report, we also
sometimes use the phrase “informatics products and services,” often interchangeably with “informatics platform,”
to describe the Company’s focus on the use of informatics and advanced informatics in its current and future product and
service offerings.
“informatics platform”
means a combination of software tools and analytical processes that streamline the production and analysis of informatics data.
When we use the term informatics platform, we are primarily referring to Acuitas Lighthouse.
“ITI” means implant
& tissue infection.
“IVD” means in vitro
diagnostic.
“KPC” means Klebsiella
pneumoniae Carbapenemase, an MDRO.
“LRT” means lower respiratory
tract infection.
“LRT BAL” means lower
respiratory tract infection including for bronchoalveolar lavage (BAL and mini-BAL) samples.
“MDRO” means a multidrug-resistant
organism.
“ML” means machine learning.
“NGS” means Next Generation
Sequencing.
“PCR” means polymerase
chain reaction.
“PNA” means peptide nucleic
acid.
“QSR” means Quality
System Regulation.
“SEC” means the U.S.
Securities and Exchange Commission.
“Securities Act” means
the Securities Act of 1933, as amended.
“VAP” means Ventilator-associated
Pneumonia.
“UTI” means urinary
tract infection.
Corporate Information
OpGen,
Inc. was incorporated in Delaware in 2001. The Company’s headquarters and principal operations are in Gaithersburg, Maryland.
The Company also has operations in Germany, and Austria.
Available Information
The Company maintains a website at
www.opgen.com. Our Code of Business Conduct and Ethics is available on our website. We are not incorporating our website into this
Annual Report. Our annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, and amendments
to those reports, filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, are available free of charge on our
website as soon as practicable after electronic filing of such material with, or furnishing it to, the SEC. This information may
be read at the SEC website at http://www.sec.gov.
Item 1A. Risk Factors
The following are significant factors
known to us that could materially harm our business, financial condition or operating results or could cause our actual results
to differ materially from our anticipated results or other expectations, including those expressed in any forward-looking statement
made in this Annual Report. The risks described are not the only risks we are facing. Additional risks and uncertainties not currently
known to us, or that we currently deem to be immaterial, also may adversely affect our business, financial condition and operating
results. If any of these risks actually occur, our business, financial condition, and operating results could suffer significantly.
Risks Related to Our Business
We have a history of losses, and
we expect to incur losses for the next several years. The report of our independent registered public accounting firm on our financial
statements for the years ended December 31, 2020 and 2019 contains explanatory language that substantial doubt exists about our
ability to continue as a going concern.
We have incurred substantial losses since
our inception, and we expect to continue to incur additional losses for the next several years. For the years ended December 31,
2020 and 2019, we had net losses of $26.2 million and $12.4 million, respectively. From our inception through December 31, 2020,
we had an accumulated deficit of $200.7 million. The reports of our independent registered public accounting firm on our financial
statements for the years ended December 31, 2020 and 2019 each contain explanatory language that substantial doubt exists about
our ability to continue as a going concern. We completed a number of financings in 2019 and 2020, including the March 2019 Public
Offering, the October 2019 Public Offering, an at-the-market, or ATM, public offering which commenced in September 2016 and terminated
in October 2019, an ATM public offering which commenced in February 2020 (the “2020 ATM Offering”) and the November
2020 Private/Public Offering. The net proceeds from such financings were approximately $46.9 million. We cannot assure you that
we can continue to raise the capital necessary to fund our business.
Even if we achieve significant revenues,
we may not become profitable, and even if we achieve profitability, we may not be able to sustain or increase profitability on
a quarterly or annual basis. Our failure to become and remain consistently profitable could adversely affect the market price of
our common stock and could significantly impair our ability to raise capital, expand our business or continue to pursue our growth
strategy. We have no committed sources of capital and may find it difficult to raise money on terms favorable to us or at all.
The failure to obtain sufficient capital to support our operations would have an adverse effect on our business, financial condition
and results of operations.
We need to raise equity capital
to support our business. If we cannot do so successfully, we will not be able to continue as a going concern.
We need to raise equity capital to support
our business. If we cannot do so successfully, we will not be able to continue as a going concern. To meet our capital needs, we
are considering multiple alternatives, including, but not limited to, the ATM Offering, additional equity financings, debt financings
and other funding transactions, licensing and/or partnering arrangements and business combination transactions. We believe that
additional equity financings are the most likely source of capital. There can be no assurance that we will be able to complete
any such financing transaction on acceptable terms or otherwise.
For example in 2016, our subsidiary
Curetis entered into a contract for an up to €25 million senior, unsecured loan financing facility from the European Investment
Bank (“EIB”), which we assumed in connection with our acquisition of Curetis. As of December 31, 2020, $25.9 million
plus deferred interest in the amount of approximately $3.8 million was outstanding under the contract.
We believe that additional equity financings
are the most likely source of capital going forward. There can be no assurance that we will be able to complete any such financing
transaction on acceptable terms or otherwise.
We believe that current cash on hand
including the 2021 Offering and 2021 Warrant Exercise will be sufficient to fund operations into the second quarter of 2022.
In the event we are unable to successfully raise additional capital during or before the second quarter of 2022, we will not have
sufficient cash flows and liquidity to finance our business operations as currently contemplated. Accordingly, in such circumstances
we would be compelled to immediately reduce general and administrative expenses and delay research and development projects, including
the purchase of scientific equipment and supplies, until we are able to obtain sufficient financing. If such sufficient financing
is not received timely, we would then need to pursue a plan to license or sell assets, seek to be acquired by another entity, cease
operations and/or seek bankruptcy protection.
The combination of the
OpGen and Curetis businesses may not lead to the growth and success of the combined business that we believe will occur.
Although we believe the combination of
the OpGen and Curetis businesses provides a significant commercial opportunity for growth, we may not realize all of the synergies
that we anticipate and may not be successful in implementing our commercialization strategy. Our combined business will be subject
to all of the risks and uncertainties inherent in the pursuit of growth in our industry and we may not be able to successfully
sell our products, obtain the regulatory clearances and approvals we apply for or, realize the anticipated benefits from our distribution,
collaboration and other commercial partners. If we are not able to grow the combined business of OpGen as a commercial enterprise,
our financial condition will be negatively impacted.
The process to obtain and
maintain FDA clearances or approvals for our products is complex and time and resource consuming. If we fail to obtain such clearances
or approvals, our business and results of operations will be materially adversely impacted.
The process of obtaining regulatory
clearances or approvals to market a medical device can be costly and time consuming, and we may not be able to obtain these clearances
or approvals on a timely basis, if at all. In May 2019, we filed a 510(k) submission with the FDA seeking clearance of our Acuitas
AMR Gene Panel (Isolates) diagnostic test. In July 2019, we received correspondence from the FDA requesting additional information
related to this filing. On January 6, 2020, OpGen filed a formal response to the FDA’s July 2019 AI Request. Subsequently,
the FDA issued a second AI Request on January 17, 2020 to formalize additional questions and remaining requests for information
from the earlier July 2019 AI Request. On October 13, 2020 we submitted what we believe to be the final comprehensive formal response
which addresses all of the FDA’s questions and feedbacks received to date and we anticipate a near term clearance decision,
as the FDA resumed its review activity in January 2021 following the FDA’s announcement of an anticipated 90-day staffing
surge to address COVID-19 related EUAs and suspending all review activity in early November 2020. If we cannot successfully address
the questions posed by the FDA, our receipt of clearance for this product will be delayed. In addition, the time and expense needed
to respond to the FDA’s request for additional information may divert time and attention from our other regulatory submissions
in process, which may adversely affect our strategy and ability to commercialize our diagnostic tests and bioinformatics products
and services.
We expect our ability
to utilize our net operating loss carryforwards will be limited as a result of an “ownership change,” as defined in
Section 382 of the Internal Revenue Code triggered by consummation of the transaction with Curetis.
As of December 31, 2020, we had approximately
$196.5 million of net operating loss, or NOL, carryforwards for U.S. federal tax purposes. Under U.S. federal income tax law, we
generally can use our NOL carryforwards (and certain tax credits) to offset ordinary taxable income, thereby reducing our U.S.
federal income tax liability, for up to 20 years from the year in which the losses were generated, after which time they will expire.
State NOL carryforwards (and certain tax credits) generally may be used to offset future state taxable income for 20 years from
the year in which the losses are generated, depending on the state, after which time they will expire. The rate at which we can
utilize our NOL carryforwards is limited (which could result in NOL carryforwards expiring prior to their use) each time we experience
an “ownership change,” as determined under Section 382 of the Internal Revenue Code. A Section 382 ownership change
generally occurs if a shareholder or a group of shareholders who are deemed to own at least 5% of our common stock increase their
ownership by more than 50 percentage points over their lowest ownership percentage within a rolling three-year period. If an ownership
change occurs, Section 382 generally would impose an annual limit on the amount of post-ownership change taxable income that may
be offset with pre-ownership change NOL carryforwards equal to the product of the total value of our outstanding equity immediately
prior to the ownership change (reduced by certain items specified in Section 382) and the U.S. federal long-term tax-exempt interest
rate in effect at the time of the ownership change. A number of special and complex rules apply in calculating this Section 382
limitation. While the complexity of Section 382 makes it difficult to determine whether and when an ownership change has occurred,
and if a portion of our NOLs is subject to an annual limitation under Section 382, we believe that an additional ownership change
may occur upon the consummation of the transaction with Curetis. In addition, our ability to use our NOL carryforwards will be
limited to the extent we fail to generate enough taxable income in the future before they expire. Existing and future Section 382
limitations and our inability to generate enough taxable income in the future could result in a substantial portion of our NOL
carryforwards expiring before they are used. In addition, under the 2017 Tax Cut and Jobs Act, effective for losses arising in
taxable years beginning after December 31, 2017, the deduction for NOLs is limited to 80% of taxable income, NOLs can no longer
be carried back, and NOLs can be carried forward indefinitely.
Our products and services may
never achieve significant commercial market acceptance.
Our products and services may never gain
significant acceptance in the marketplace and, therefore, may never generate substantial revenue or profits for us. Our ability
to achieve commercial market acceptance for our products will depend on several factors, including:
|
·
|
our ability to convince the medical community of the clinical utility of our products and services
and their potential advantages over existing tests, including our surveillance services offering, despite the lack of reimbursement
for such services;
|
|
·
|
our ability to successfully develop automated rapid pathogen identification and antibiotic resistance
testing products and services, including bioinformatics, and convince hospitals and other healthcare providers of the patient safety,
improved patient outcomes and potential cost savings that could result;
|
|
·
|
our ability to grow our microbial isolate and antibiotic resistance genes knowledgebases and bioinformatics
offerings;
|
|
·
|
our ability to convince the medical community of the accuracy and speed of our products and services,
as contrasted with the current methods available; and
|
|
·
|
the willingness of hospitals and physicians to use our products and services.
|
Our future success is dependent
upon our ability to expand our customer base.
The current customers we are targeting
for our Unyvero and Acuitas test products and services are hospital systems, acute care hospitals, particularly those with advanced
care units, such as intensive care units, community-based hospitals and governmental units, such as public health facilities and
other laboratories. We need to provide a compelling case for the savings, patient safety and recovery, reduced length of stay and
reduced costs that come from adopting our MDRO diagnosis and antibiotic stewardship products and services. If we are not able to
successfully increase our customer base, sales of our products and our margins may not meet expectations. The same holds true for
customers and partners for our ARESdb based offerings and solutions. Attracting new customers and introducing new products and
services requires substantial time and expense. Any failure to expand our existing customer base, or launch new products and services,
would adversely affect our ability to improve our operating results.
We are developing diagnostic
products for the more rapid identification of MDROs and antibiotic resistance genomic information. If we are unable to successfully
develop, receive regulatory clearance or approval for or commercialize such products and services, our business will be materially,
adversely affected.
We are developing an under three hour
as well as four to five hour antibiotic resistance diagnostic product that we believe could help address many of the current issues
with the need for more rapid identification of infectious diseases and testing for antibiotic resistance. Development of such diagnostic
products is difficult and we cannot assure you that we will be successful in such product development efforts, or, if successful,
that we will receive the necessary regulatory clearances to commercialize such products. We have identified dozens
of resistance genes to help guide clinicians with their antibiotic therapy decisions. Although we have demonstrated preliminary
feasibility, and confirmed genotype/phenotype predictive algorithms, such product development efforts will require us to work collaboratively
with other companies, academic and government laboratories, and healthcare providers to access sufficient numbers of microbial
isolates, develop the diagnostic tests, successfully conduct the necessary clinical trials and apply for and receive regulatory
clearances or approvals for the intended use of such diagnostic tests. In addition, we would need to successfully commercialize
such products. Such product development, clearance or approval and commercialization activities are time-consuming, expensive and
we are not assured that we will have sufficient funds to successfully complete such efforts. Any significant delays or failures
in this process could have a material adverse effect on our business and financial condition.
We offer these products in development
to the research use only market and for other non-clinical research uses prior to receiving clearance or approval to commercialize
these products in development for use in the clinical setting. We need to comply with the applicable laws and regulations regarding
such other uses. Failure to comply with such laws and regulations may have a significant impact on the Company.
We may enter into agreements
with U.S. or other government agencies, which could be subject to uncertain future funding.
The presence of MDROs and the need for
antibiotic stewardship activities have prompted state, federal and international government agencies to develop programs to combat
the effects of MDROs. Since 2018, we have been party to a collaboration, called the New York State Infectious Disease Digital Health
Initiative, with the New York State DOH and ILÚM (now IDC) to develop a research program to detect, track, and manage antimicrobial-resistant
infections at healthcare institutions in New York State.
In the future, we may seek to enter
into additional agreements with governmental funding sources or contract with government healthcare organizations to sell our products
and services. Under such agreements, we would rely on the continued performance by these government agencies of their responsibilities
under these agreements, including adequate continued funding of the agencies and their programs. We have no control over the resources
and funding that government agencies may devote to these agreements, which may be subject to annual renewal.
Government agencies may fail to perform
their responsibilities under these agreements, which may cause them to be terminated by the government agencies. In addition, we
may fail to perform our responsibilities under these agreements. Any government agreements would be subject to audits, which may
occur several years after the period to which the audit relates. If an audit identified significant unallowable costs, we could
incur a material charge to our earnings or reduction in our cash position. As a result, we may be unsuccessful entering, or ineligible
to enter, into future government agreements.
If the utility of our
current products and products in development is not supported by studies published in peer-reviewed medical publications, the
rate of adoption of our current and future products and services by clinicians and healthcare facilities may be negatively affected.
The results
of our clinical and economic validation studies involving our products have been presented at major infectious disease and infection
control society meetings. We need to maintain and grow a continued presence in peer-reviewed publications to promote clinician
adoption of our products. We believe that peer-reviewed journal articles that provide evidence of the utility of our current and
future products and services, and adoption by key opinion leaders in the infectious disease market are very important to our commercial
success. Clinicians typically take a significant amount of time to adopt new products and testing practices, partly because of
perceived liability risks and the uncertainty of a favorable cost/benefit analysis. It is critical to the success of our sales
efforts that we educate a sufficient number of clinicians and administrators about our products and demonstrate their clinical
benefits. Clinicians may not adopt our current and future products and services unless they determine, based on published peer-
reviewed journal articles and the experience of other clinicians, that our products provide accurate, reliable, useful and cost-effective
information that is useful in MDRO diagnosis, screening and outbreak prevention. If our current and future products and services
or the technology underlying our products and services or our future product offerings do not receive sufficient favorable exposure
in peer-reviewed publications, the rate of clinician adoption could be negatively affected. The publication of clinical data in
peer-reviewed journals is a crucial step in commercializing our products, and our inability to control when, if ever, results are
published may delay or limit our ability to derive sufficient revenue from any product that is the subject of a study.
Our sales cycle for our
marketed products and services is lengthy and variable, which makes it difficult for us to forecast revenue and other operating
results.
The sales cycles for our products are
lengthy, which will make it difficult for us to accurately forecast revenues in a given period, and may cause revenue and operating
results to vary significantly from period to period. Potential customers for our products typically need to commit significant
time and resources to evaluate our products, and their decision to purchase our products may be further limited by budgetary constraints
and numerous layers of internal review and approval, which are beyond our control. We spend substantial time and effort assisting
potential customers in evaluating our products. Even after initial approval by appropriate decision makers, the negotiation and
documentation processes for the actual adoption of our products on a facility-wide basis can be lengthy. As a result of these factors,
based on our experience to date, our sales cycle, the time from initial contact with a prospective customer to routine commercial
use of our products, has varied and could be 12 months or longer, which has made it difficult for us to accurately project revenues
and operating results. In addition, the revenue generated from sales of our products may fluctuate from time to time due to changes
in the testing volumes of our customers. As a result, our results may fluctuate on a quarterly basis, which may adversely affect
the price of our common stock.
We are currently party
to, and may enter into additional collaborations with third parties to develop product and services candidates. If these collaborations
are not successful, our business could be adversely affected.
We are currently party to a few collaborations
and anticipate that we will enter into additional collaborations related to our MDRO and informatics products and services. Such
collaborations are and may be with pharmaceutical companies, platform companies or other participants in our industry. We have
limited control over the amount and timing of resources that any such collaborators could dedicate to the development or commercialization
of the subject matter of any such collaboration. Our ability to generate revenues from these arrangements would depend on our and
our collaborator’s abilities to successfully perform the functions assigned to each of us in these arrangements. Our relationships
with collaborators may pose several risks, including the following:
|
·
|
collaborators have significant discretion in determining the efforts and resources that they will
apply to these collaborations;
|
|
·
|
collaborators may not perform their obligations as expected;
|
|
·
|
we may not achieve any milestones, or receive any milestone payments, under our collaborations,
including milestones and/or payments that we expect to achieve or receive;
|
|
·
|
the clinical trials, if any, conducted as part of these collaborations may not be successful;
|
|
·
|
a collaborator might elect not to continue or renew development or commercialization programs based
on clinical trial results, changes in the collaborator’s strategic focus or available funding or external factors, such as
an acquisition, that diverts resources or creates competing priorities;
|
|
·
|
we may not have access to, or may be restricted from disclosing, certain information regarding
product or services candidates being developed or commercialized under a collaboration and, consequently, may have limited ability
to inform our stockholders about the status of such product or services candidates;
|
|
·
|
collaborators could independently develop, or develop with third parties, products that compete
directly or indirectly with our product candidates if the collaborators believe that competitive products are more likely to be
successfully developed or can be commercialized under terms that are more economically attractive than ours;
|
|
·
|
product or services candidates developed in collaboration with us may be viewed by our collaborators
as competitive with their own product or services, which may cause collaborators to cease to devote resources to the commercialization
of our product or services candidates;
|
|
·
|
a collaborator with marketing and distribution rights to one or more of our product or services
candidates that achieve regulatory approval may not commit sufficient resources to the marketing and distribution of any such product
candidate;
|
|
·
|
disagreements with collaborators, including disagreements over proprietary rights, contract interpretation
or the preferred course of development of any product or services candidates, may cause delays or termination of the research,
development or commercialization of such product or services candidates, may lead to additional responsibilities for us with respect
to such product or services candidates or may result in litigation or arbitration, any of which would be time-consuming and expensive;
|
|
·
|
collaborators may not properly maintain or defend our intellectual property rights or may use our
proprietary information in such a way as to invite litigation that could jeopardize or invalidate our intellectual property or
proprietary information or expose us to potential litigation;
|
|
·
|
disputes may arise with respect to the ownership of intellectual property developed pursuant to
a collaboration;
|
|
·
|
collaborators may infringe the intellectual property rights of third parties, which may expose
us to litigation and potential liability; and
|
|
·
|
collaborations may be terminated for the convenience of the collaborator and, if terminated, we
could be required to raise additional capital to pursue further development or commercialization of the applicable product or services
candidates.
|
If our collaborations do not result
in the successful development and commercialization of products or services, we may not receive any future research funding or
milestone or royalty payments under the collaborations. If we do not receive the funding we would expect under these agreements,
our development of product and services candidates could be delayed, and we may need additional resources to develop our product
candidates.
We may not be successful
in finding strategic collaborators for continuing development of certain of our product or services candidates or successfully
commercializing or competing in the market for certain indications.
We may seek to develop strategic
partnerships for developing certain of our product or services candidates, due to capital costs required to develop the product
or services candidates or manufacturing constraints. We may not be successful in our efforts to establish such a strategic partnership
or other alternative arrangements for our product or services candidates because our research and development pipeline may be insufficient,
our product or services candidates may be deemed to be at too early of a stage of development for collaborative effort or third
parties may not view our product or services candidates as having the requisite potential to demonstrate commercial success.
If we are unable to reach agreements
with suitable collaborators on a timely basis, on acceptable terms or at all, we may have to curtail the development of a product
or service candidate, reduce or delay our development program, delay our potential commercialization, reduce the scope of any sales
or marketing activities or increase our expenditures and undertake development or commercialization activities at our own expense.
If we elect to fund development or commercialization activities on our own, we may need to obtain additional expertise and additional
capital, which may not be available to us on acceptable terms or at all. If we fail to enter into collaborations and do not have
sufficient funds or expertise to undertake the necessary development and commercialization activities, we may not be able to further
develop our product candidates and our business, financial condition, results of operations and prospects may be materially and
adversely affected.
We are an early commercial
stage company and may never be profitable.
We rely principally on the commercialization
of our Unyvero, ARESdb based, and Acuitas products and services to generate future revenue growth. To date, our products have delivered
only minimal revenue. We believe that our commercialization success is dependent upon our ability to significantly increase the
number of hospitals, long-term care facilities and other inpatient healthcare settings that use our products. If demand for products
does not increase as quickly as we have planned, we may be unable to increase our revenue levels as expected. We are currently
not profitable. Even if we succeed in increasing adoption of our products by our target markets, maintaining and creating relationships
with our existing and new customers and developing and commercializing additional molecular testing products, we may not be able
to generate sufficient revenue to achieve or sustain profitability.
We have limited experience
in marketing and selling our products, and if we are unable to adequately address our customers’ needs, it could negatively
impact sales and market acceptance of our products and we may never generate sufficient revenue to achieve or sustain profitability.
We sell our products through our
own direct sales force, which sells our products in the US and via distribution partners in all other territories. All of these
products and services may be offered and sold to different potential customers or involve discussions with multiple personnel in
in-patient facilities. Our future sales will depend in large part on our ability to increase our marketing efforts and adequately
address our customers’ needs. The inpatient healthcare industry is a large and diverse market. We will need to attract and
develop sales and marketing personnel with industry expertise. Competition for such employees is intense. We may not be able to
attract and retain sufficient personnel to maintain an effective sales and marketing force. If we are unable to successfully market
our products and adequately address our customers’ needs, it could negatively impact sales and market acceptance of our products
and we may never generate sufficient revenue to achieve or sustain profitability.
If our manufacturing
facilities become inoperable, our products, and our business will be harmed.
We manufacture our Unyvero products
and SARS-CoV-2 test kits in our facility in Bodelshausen, Germany and our Acuitas products
in our facility in Gaithersburg, Maryland and plan to eventually move manufacturing of Acuitas products to the Bodelshausen facility.
We do not have redundant facilities for these products. Our facilities and the equipment we use manufacture our products would
be costly to replace and could require substantial lead time to repair or replace, if damaged or destroyed. The facilities may
be harmed or rendered inoperable by natural or man-made disasters, including flooding and power outages, which may render it difficult
or impossible for us manufacture our products for some period of time. The inability to manufacture our products may result in
the loss of customers or harm our reputation, and we may be unable to regain those customers in the future. Although we carry insurance
for damage to our property and the disruption of our business, this insurance may not be sufficient to cover all of our potential
losses and may not continue to be available to us on acceptable terms, if at all.
In order to establish redundant facilities,
we would have to spend considerable time and money securing adequate space, constructing the facility, recruiting and training
employees, and establishing the additional operational and administrative infrastructure necessary to support a second facility.
Additionally, any new manufacturing facility opened by us would be subject to FDA inspection and certification. If we fail to maintain
our FDA certification or if our FDA certification is suspended, limited or revoked, we would not be able manufacture our products.
If demand for these products increase
beyond our current forecasts or, regulatory requirements arise, we may not be able to meet our obligations to manufacture these
products, and backlog or reduced demand for such products could occur. If any of these issues occur, it could have a material adverse
effect on our financial condition and results of operations.
We rely on a limited number
of suppliers or, in some cases, sole suppliers, for some of our materials and may not be able to find replacements or immediately
transition to alternative suppliers.
We rely on several sole suppliers and
manufacturers, including Zollner, Contexo, Thermo Fisher Scientific and QIAGEN, for supplying instrument systems and certain reagents,
raw materials, supplies and substances which we use to manufacture our products. An interruption in our operations could occur
if we encounter delays or difficulties in securing these items or manufacturing our products, and if we cannot, then obtain an
acceptable substitute. Any such interruption or damage to third party suppliers or manufacturers for any reason, such as fire or
other events beyond our control, including as a result of natural disasters, terrorist attacks, or the occurrence of a contagious
disease or illness, such as the COVID-19 pandemic, could significantly affect our business, financial condition, results of operations
and reputation.
If we cannot compete successfully
with our competitors, we may be unable to increase or sustain our revenue or achieve and sustain profitability.
Our competitors include rapid diagnostic
testing and traditional microbiology companies, commercial laboratories, information technology companies, and hospital laboratories
who may internally develop testing capabilities. Principal competitive factors in our target market include organizational size,
scale, and breadth of product offerings; rapidity of test results; quality and strength of clinical and analytical validation data
and confidence in diagnostic results; cost effectiveness; ease of use; and regulatory approval status.
Our principal competition comes from
traditional methods used by healthcare providers to diagnose and screen for MDROs and from other molecular diagnostic companies
creating screening and diagnostic products such as Bosch, Cepheid, Becton-Dickinson, bioMérieux, Accelerate Diagnostics,
T2 Biosystems, GenMark, Qiagen and Luminex.
We also face competition from commercial
laboratories, such as Bio-Reference Laboratories, Inc., Laboratory Corporation of America Holdings, Quest Diagnostics Incorporated,
Pathnostics, and EuroFins, which have strong infrastructure to support the commercialization of diagnostic laboratory services.
Competitors may develop their own versions
of competing products in countries where we do not have patents or where our intellectual property rights are not recognized.
Many of our potential competitors have
widespread brand recognition and substantially greater financial, technical, research and development and selling and marketing
capabilities than we do. Others may develop products with prices lower than ours that could be viewed by hospitals, physicians
and payers as functionally equivalent to our product and service offering or offer products at prices designed to promote market
penetration, which could force us to lower the list prices of our product and service offerings and affect our ability to achieve
profitability. If we are unable to change clinical practice in a meaningful way or compete successfully against current and future
competitors, we may be unable to increase market acceptance and sales of our products, which could prevent us from increasing our
revenue or achieving profitability and could cause our stock price to decline.
Our products and services
are not covered by reimbursement by Medicare, Medicaid and other governmental and third-party payors. If we cannot convince our
customers that the savings from use of our products and services will increase their overall reimbursement, our business could
suffer.
Our products and services do not currently
receive reimbursement from Medicare, Medicaid, other governmental payors or commercial third-party payors. Policy and rule changes
in reimbursement announced by CMS, including potential financial incentives for reductions in hospital acquired infection, and
penalties and decreased Medicare reimbursement for patients with HAIs provide us with an opportunity to establish a business case
for the purchase and use of our screening and diagnostic products and services. If we cannot convince our customers that the savings
from use of our products and services will increase or stabilize their overall profitability and improve clinical outcomes, our
business will suffer.
Failure in our information
technology, storage systems or our ares.cloud and Acuitas Lighthouse Software could significantly disrupt our operations and our
research and development efforts, which could adversely impact our revenues, as well as our research, development and commercialization
efforts.
Our ability to execute our business strategy
depends, in part, on the continued and uninterrupted performance of our information technology systems, which support our operations
and our research and development efforts, as well as our storage systems and our analyzers. Due to the sophisticated nature of
the technology, we use in our products and service offerings, including our ARESdb and Acuitas Lighthouse Software services, we
are substantially dependent on our information technology systems. Information technology systems are vulnerable to damage from
a variety of sources, including telecommunications or network failures, malicious human acts and natural disasters. Moreover, despite
network security and back-up measures, some of our servers are potentially vulnerable to physical or electronic break-ins, computer
viruses and similar disruptive problems. Despite the precautionary measures we have taken to prevent unanticipated problems that
could affect our information technology systems, sustained or repeated system failures that interrupt our ability to generate and
maintain data, and in particular to operate our ARESdb and Acuitas Lighthouse Software, could adversely affect our ability to operate
our business. Any interruption in the operation of our ARESdb and Acuitas Lighthouse Software, due to information technology system
failures, part failures or potential disruptions in the event we are required to relocate our instruments within our facility or
to another facility, could have an adverse effect on our operations.
Security breaches, loss
of data and other disruptions could compromise sensitive information related to our business or prevent us from accessing critical
information and expose us to liability, which could adversely affect our business and our reputation.
In the ordinary course of our business,
we collect and store sensitive data, including legally protected health information and personally identifiable information about
our customers and their patients. We also store sensitive intellectual property and other proprietary business information, including
that of our customers. We manage and maintain our applications and data utilizing a combination of on-site systems and cloud-based
data center systems. These applications and data encompass a wide variety of business critical information, including research
and development information, commercial information and business and financial information.
We face four primary risks relative
to protecting this critical information: loss of access risk, inappropriate disclosure risk, inappropriate modification risk and
the risk of our being unable to identify and audit our controls over the first three risks.
We are highly dependent on information
technology networks and systems, including the Internet, to securely process, transmit and store this critical information. Security
breaches of this infrastructure, including physical or electronic break-ins, computer viruses, attacks by hackers and similar breaches,
can create system disruptions, shutdowns or unauthorized disclosure or modification of confidential information. The secure processing,
storage, maintenance, and transmission of this critical information is vital to our operations and business strategy, and we devote
significant resources to protecting such information. Although we take measures to protect sensitive information from unauthorized
access or disclosure, our information technology and infrastructure may be vulnerable to attacks by hackers or viruses or breached
due to employee error, malfeasance or other disruptions.
A security breach or privacy violation
that leads to disclosure or modification of or prevents access to consumer information (including personally identifiable information
or protected health information) could harm our reputation, compel us to comply with disparate state breach notification laws,
require us to verify the correctness of database contents and otherwise subject us to liability under laws that protect personal
data, resulting in increased costs or loss of revenue. If we are unable to prevent such security breaches or privacy violations
or implement satisfactory remedial measures, our operations could be disrupted, and we may suffer loss of reputation, financial
loss and other regulatory penalties because of lost or misappropriated information, including sensitive consumer data. In addition,
these breaches and other inappropriate access can be difficult to detect, and any delay in identifying them may lead to increased
harm of the type described above.
Any such breach or interruption could
compromise our networks, and the information stored there could be inaccessible or could be accessed by unauthorized parties, publicly
disclosed, lost or stolen. Any such interruption in access, improper access, disclosure or other loss of information could result
in legal claims or proceedings, liability under laws that protect the privacy of personal information, such as the federal HIPAA
and regulatory penalties. Unauthorized access, loss or dissemination could also disrupt our operations, including our ability to
perform tests, provide test results, bill facilities or patients, process claims and appeals, provide customer assistance services,
conduct research and development activities, collect, process and prepare Company financial information, provide information about
our current and future solutions and other patient and clinician education and outreach efforts through our website, and manage
the administrative aspects of our business and damage our reputation, any of which could adversely affect our business. Any such
breach could also result in the compromise of our trade secrets and other proprietary information, which could adversely affect
our competitive position.
In addition, the interpretation and
application of consumer, health-related, privacy and data protection laws in the U.S. and elsewhere are often uncertain, contradictory
and in flux. It is possible that these laws may be interpreted and applied in a manner that is inconsistent with our practices.
If so, this could result in government-imposed fines or orders requiring that we change our practices, which could adversely affect
our business. Complying with these various laws could cause us to incur substantial costs or require us to change our business
practices and compliance procedures in a manner adverse to our business.
Data collection is governed by
restrictive regulations governing the use, processing, and cross-border transfer of personal information.
The collection, use, storage, transfer,
and other processing of personal data, including personal health data, regarding individuals in the European Economic Area is governed,
as of May 2018, by the General Data Protection Regulation, or GDPR. The GDPR imposes several requirements on companies that process
personal data, including requirements relating to the processing of health and other sensitive data, the consent of the individuals
to whom the personal data relates, the information provided to the individuals regarding data processing activities, the notification
of data processing obligations to the competent national data protection authorities and certain measures to be taken when engaging
third-party processors. The GDPR also imposes strict rules on the transfer of personal data out of the European Economic Area,
including to the U.S. Failure to comply with the requirements of the GDPR, and the related national data protection laws of the
European Union Member States, may result in fines and other administrative penalties. The GDPR also confers a private right of
action on data subjects and consumer associations to lodge complaints with supervisory authorities, seek judicial remedies, and
obtain compensation for damages resulting from violations of the GDPR. The GDPR regulations may impose additional responsibility
and liability in relation to personal data that we process, and we may be required to put in place additional mechanisms ensuring
compliance with the new data protection rules, including as implemented by individual countries. This may be onerous and adversely
affect our business, financial condition, results of operations and prospects. Compliance with the GDPR will be a rigorous and
time-intensive process that may increase our cost of doing business or require us to change our business practices, and despite
those efforts, there is a risk that we may be subject to fines and penalties, litigation, and reputational harm in connection with
any future European activities.
California recently enacted the California
Consumer Privacy Act, or CCPA, which creates new individual privacy rights for California consumers (as defined in the law) and
places increased privacy and security obligations on entities handling personal data of consumers or households. The CCPA requires
covered companies to provide certain disclosures to consumers about its data collection, use and sharing practices, and to provide
affected California residents with ways to opt-out of certain sales or transfers of personal information. The CCPA went into effect
on January 1, 2020, and the California Attorney General commenced enforcement actions against violators on July 1, 2020. While
there is currently an exception for protected health information that is subject to HIPAA, and clinical trial regulations, as currently
written, the CCPA may impact our business activities. The California Attorney General has proposed draft regulations, which have
not been finalized to date, that may further impact our business activities if they are adopted. The uncertainty surrounding the
implementation of the CCPA exemplifies the vulnerability of our business to the evolving regulatory environment related to personal
data and protected health information.
We cannot provide assurance that future
legislation will not prevent us from generating or maintaining personal data or that patients will consent to the use of their
personal information, either of which may prevent us from undertaking or publishing essential research. These burdens or risks
may prove too great for us to reasonably bear and may adversely affect our ability to achieve profitability or maintain profitably
in the future.
If we are unable to develop products
to keep pace with rapid technological, medical and scientific change, our operating results and competitive position could be harmed.
New test development involves a lengthy and complex process, and we may not be successful in our efforts to develop and commercialize
our diagnostic and screening products and services. The further development and commercialization of additional diagnostic and
screening product and service offering are key to our growth strategy.
A key element of our strategy is to discover,
develop, validate and commercialize a portfolio of additional diagnostic products and services to rapidly diagnose and effectively
treat MDRO infections and reduce the associated costs to patients, inpatient facilities and the healthcare industry. We cannot
assure you that we will be able to successfully complete development of or commercialize any of our planned future products and
services, or that they will be clinically usable. The product development process involves a high degree of risk and may take up
to several years or more. Our new product development efforts may fail for many reasons, including:
|
·
|
failure of the tests at the research or development stage;
|
|
·
|
lack of clinical validation data to support the effectiveness of the tests;
|
|
·
|
delays resulting from the failure of third-party suppliers or contractors to meet their obligations
in a timely and cost-effective manner;
|
|
·
|
failure to obtain or maintain necessary certifications, licenses, clearances or approvals to market
or perform the test; or
|
|
·
|
lack of commercial acceptance by in-patient healthcare facilities and commercial partners.
|
Few research and development projects
result in commercial products, and success in early clinical studies often is not replicated in later studies. At any point, we
may abandon development of new products, or we may be required to expend considerable resources repeating clinical studies or trials,
which would adversely impact the timing for generating potential revenues from those new products. In addition, as we develop new
products, we will have to make additional investments in our sales and marketing operations, which may be prematurely or unnecessarily
incurred if the commercial launch of a product is abandoned or delayed.
If we use hazardous materials
in a manner that causes injury, we could be liable for damages.
Our activities currently require the
use of hazardous materials and the handling of patient samples. We cannot eliminate the risk of accidental contamination or injury
to employees or third parties from the use, storage, handling or disposal of these materials. In the event of contamination or
injury, we could be held liable for any resulting damages, and any liability could exceed our resources or any applicable insurance
coverage we may have. Additionally, we are subject on an ongoing basis to federal, state and local laws and regulations governing
the use, storage, handling and disposal of these materials and specified waste products. We are, or may be in the future, subject
to compliance with additional laws and regulations relating to the protection of the environment and human health and safety, and
including those relating to the handling, transportation and disposal of medical specimens, infectious and hazardous waste and
Occupational Safety and Health Administration, or OSHA, requirements as well as their international equivalents. The requirements
of these laws and regulations are complex, change frequently and could become more stringent in the future. Failure to comply with
current or future environmental laws and regulations could result in the imposition of substantial fines, suspension of production,
alteration of our production processes, cessation of operations or other actions, which could severely harm our business.
If we are sued for product
liability or errors and omissions liability, we could face substantial liabilities that exceed our resources.
The marketing, sale and use of our products
could lead to product liability claims if someone were to allege that a product failed to perform as it was designed. We may also
be subject to liability for errors in the results we provide to physicians or for a misunderstanding of, or inappropriate reliance
upon, the information we provide. For example, if we diagnosed a patient as having an MDRO but such result was a false positive,
the patient could be unnecessarily isolated in an in-patient setting or receive inappropriate treatment. We may also be subject
to similar types of claims related to products we may develop in the future. A product liability or errors and omissions liability
claim could result in substantial damages and be costly and time consuming for us to defend. Although we maintain product liability
and errors and omissions insurance, we cannot assure you that our insurance would fully protect us from the financial impact of
defending against these types of claims or any judgments, fines or settlement costs arising out of any such claims. Any product
liability or errors and omissions liability claim brought against us, with or without merit, could increase our insurance rates
or prevent us from securing insurance coverage in the future. Additionally, any product liability lawsuit could cause injury to
our reputation or cause us to suspend sales of our products and services. The occurrence of any of these events could have an adverse
effect on our business and results of operations.
Risks Related to Our Securities
and Public Company Status
If we are unable to maintain
effective internal control over financial reporting, investors may lose confidence in the accuracy and completeness of our reported
financial information and the market price of our common stock may be negatively affected.
As a public company, we are required
to maintain internal control over financial reporting and to report any material weaknesses in such internal control. Section 404
of the Sarbanes-Oxley Act of 2002 requires that we evaluate and determine the effectiveness of our internal control over financial
reporting and provide a management report on internal control over financial reporting. If we have a material weakness in our internal
control over financial reporting, we may not detect errors on a timely basis and our financial statements may be materially misstated.
When we are no longer an emerging growth
company and a smaller reporting company, our independent registered public accounting firm will be required to issue an attestation
report on the effectiveness of our internal control over financial reporting. Even if our management concludes that our internal
control over financial reporting is effective, our independent registered public accounting firm may conclude that there are material
weaknesses with respect to our internal controls or the level at which our internal controls are documented, designed, implemented
or reviewed.
When we are no longer an emerging growth
company and a smaller reporting company, if our auditors were to express an adverse opinion on the effectiveness of our internal
control over financial reporting because we had one or more material weaknesses, investors could lose confidence in the accuracy
and completeness of our financial disclosures, which could cause the price of our common stock to decline. Internal control deficiencies
could also result in a restatement of our financial results in the future.
The market price of our common
stock has been, and may continue to be, highly volatile, and such volatility could cause the market price of our common stock to
decrease and could cause you to lose some or all of your investment in our common stock.
During the period from our initial public
offering in May 2015 through December 31, 2020, the market price of our common stock fluctuated from a high of $2,720.00 per share
to a low of $0.92 per share, and our stock price continues to fluctuate. The market price of our common stock may continue to fluctuate
significantly in response to numerous factors, some of which are beyond our control, such as:
|
·
|
our ability to grow our revenue and customer base;
|
|
·
|
the announcement of new products or product enhancements by us or our competitors;
|
|
·
|
developments concerning regulatory oversight and approvals;
|
|
·
|
variations in our and our competitors’ results of operations;
|
|
·
|
changes in earnings estimates or recommendations by securities analysts, if our common stock is
covered by analysts;
|
|
·
|
successes or challenges in our collaborative arrangements or alternative funding sources;
|
|
·
|
developments in the health care and life science industries;
|
|
·
|
the results of product liability or intellectual property lawsuits;
|
|
·
|
future issuances of common stock or other securities;
|
|
·
|
the addition or departure of key personnel;
|
|
·
|
announcements by us or our competitors of acquisitions, investments or strategic alliances; and
|
|
·
|
general market conditions and other factors, including factors unrelated to our operating performance.
|
Further, the stock market in general,
and the market for health care and life science companies in particular, has recently experienced extreme price and volume fluctuations.
Continued market fluctuations could result in extreme volatility in the price of our common stock, which could cause a decline
in the value of our common stock and the loss of some or all of your investment.
The exercise of outstanding
common stock purchase warrants and stock options will have a dilutive effect on the percentage ownership of our capital stock by
existing stockholders.
As of December 31, 2020, we had outstanding
warrants to acquire 5,848,131 shares of our common stock, and stock options to purchase 1,664,522 shares of our common stock. The
expiration of the term of such options and warrants range from May 2021 to May 2026. A significant number of such warrants are
out of the money, but the holders have the right to affect a cashless exercise of such warrants. If a significant number of such
warrants and stock options are exercised by the holders, the percentage of our common stock owned by our existing stockholders
will be diluted.
Risks Related to Regulation of
Our Business
There is no guarantee that the
FDA will grant 510(k) clearance or PMA approval of our products, and failure to obtain necessary clearances or approvals for our
future products would adversely affect our ability to grow our business.
We have submitted one 510(k) submission
with the FDA for our Acuitas AMR Gene Panel (Isolates) test and have plans to submit additional De Novo classification requests
for our Unyvero UTI test and, Unyvero IJI test in the future. Such process is complex, time consuming and expensive. For any filed
510(k) or De Novo submission, the FDA may not clear or grant these products for the indications that are necessary or desirable
for successful commercialization. Failure to receive, or a significant delay in receiving, a required clearance or granted request
for our products would have a material adverse effect on our ability to expand our business.
We may be subject to fines,
penalties or injunctions if we are determined to be promoting the use of our products for unapproved or “off-label”
uses.
We are currently offering for sale
some products RUO to CROs, pharmaceutical companies, hospitals and other healthcare facilities. We believe that our promotional
activities for these products falls within the scope of the FDA’s enforcement discretion and applicable premarket exemptions.
However, the FDA could disagree and require us to stop promoting our products for unapproved or “off-label” uses unless
and until we obtain FDA clearance or approval for those uses. We could be subject to regulatory or enforcement actions for any
violations, including, but not limited to, the issuance of an untitled letter, a Form 483 letter, a warning letter, injunction,
seizure, civil fine and criminal penalties. It is also possible that other federal, state or foreign enforcement authorities might
take action if they consider our promotional materials to constitute promotion of an unapproved use, which could result in significant
fines or penalties under other statutory authorities, such as laws prohibiting false claims for reimbursement. In that event, our
reputation could be damaged, and adoption of the products would be impaired.
A number of the rapid diagnostic
products are regulated by the FDA and non-U.S. regulatory authorities. If we or our suppliers fail to comply with ongoing FDA,
or other foreign regulatory authority, requirements, or if we experience unanticipated problems with the products, these products
could be subject to restrictions or withdrawal from the market.
We do not have significant experience
in complying with the rules and regulations of the FDA and foreign regulatory authorities. The rapid diagnostic products regulated
as medical devices, and the manufacturing processes, reporting requirements, post-approval clinical data and promotional activities
for such products, are subject to continued regulatory review, oversight and periodic inspections by the FDA and other domestic
and foreign regulatory bodies. In particular, we and our suppliers are required to comply with FDA’s QSR regulations for
the manufacture, labeling, distribution and promotion of products and other regulations which cover the methods and documentation
of the design, testing, production, control, quality assurance, labeling, packaging, storage and shipping of any product for which
we obtain clearance or approval, and with ISO regulations. The FDA enforces the QSR and similarly, other regulatory bodies with
similar regulations enforce those regulations through periodic inspections. The failure by us or one of our suppliers to comply
with applicable statutes and regulations administered by the FDA and other regulatory bodies, or the failure to timely and adequately
respond to any adverse inspectional observations or product safety issues, could result in, among other things, any of the following
enforcement actions against us: (1) untitled letters, Form 483 observation letters, warning letters, fines, injunctions, consent
decrees and civil penalties; (2) unanticipated expenditures to address or defend such actions; (3) customer notifications for repair,
replacement and refunds; (4) recall, detention or seizure of our products; (5) operating restrictions or partial suspension or
total shutdown of production; (6) refusing or delaying our requests for 510(k) clearance or premarket approval of new products
or modified products; (7) operating restrictions; (8) withdrawing 510(k) clearances or PMA approvals that have already been granted;
(9) refusal to grant export approval for our products; or (10) criminal prosecution.
If any of these actions were to occur,
it could harm our reputation and cause our product sales and profitability to suffer and may prevent us from generating revenue.
Furthermore, if any of our key component suppliers are not in compliance with all applicable regulatory requirements, we may be
unable to produce our products on a timely basis and in the required quantities, if at all.
We and our suppliers are also subject
to periodic inspections by the FDA to determine compliance with the FDA’s requirements, including primarily the QSR and medical
device reporting regulations. The results of these inspections can include inspectional observations on FDA’s Form 483, untitled
letters, warning letters, or other forms of enforcement. Since 2009, the FDA has significantly increased its oversight of companies
subject to its regulations, by hiring new investigators and stepping up inspections of manufacturing facilities. The FDA has recently
also significantly increased the number of warning letters issued to companies. If the FDA were to conclude that we are not in
compliance with applicable laws or regulations, or that any of our FDA-cleared products are ineffective or pose an unreasonable
health risk, the FDA could take a number of regulatory actions, including but not limited to, preventing us from manufacturing
any or all of our devices or performing laboratory testing on human specimens, which could materially adversely affect our business.
Some of the clearances obtained are
subject to limitations on the intended uses for which the product may be marketed, which can reduce our potential to successfully
commercialize the product and generate revenue from the product. If the FDA determines that our promotional materials, labeling,
training or other marketing or educational activities constitute promotion of an unapproved use, it could request that we cease
or modify our training or promotional materials or subject us to regulatory enforcement actions. It is also possible that other
federal, state or foreign enforcement authorities might take action if they consider our training or other promotional materials
to constitute promotion of an unapproved use, which could result in significant fines or penalties under other statutory authorities,
such as laws prohibiting false claims for reimbursement.
In addition, we may be required to conduct
costly post-market testing and surveillance to monitor the safety or effectiveness of our products, and we must comply with medical
device reporting requirements, including the reporting of adverse events and malfunctions related to our products. Later discovery
of previously unknown problems with our products, including unanticipated adverse events or adverse events of unanticipated severity
or frequency, manufacturing problems, or failure to comply with regulatory requirements such as QSR, may result in changes to labeling,
restrictions on such products or manufacturing processes, withdrawal of the products from the market, voluntary or mandatory recalls,
a requirement to repair, replace or refund the cost of any medical device we manufacture or distribute, fines, suspension of regulatory
approvals, product seizures, injunctions or the imposition of civil or criminal penalties which would adversely affect our business,
operating results and prospects.
If we were to lose, or have restrictions
imposed on, FDA clearances received to date, or clearances we may receive in the future, our business, operations, financial condition
and results of operations would likely be significantly adversely affected.
Modifications to our
marketed products may require new 510(k) clearances or PMA approvals or, in the future, new CE-IVD markings, or may require us
to cease marketing or recall the modified products until clearances or approvals are obtained.
If
we modify any of our CE-IVD marked or FDA-cleared products, such modifications may require additional future approvals and filings,
e.g., notified body authorization or FDA clearance. Modifications to a CE-IVD marked or 510(k)-cleared device that could significantly
affect its safety or effectiveness, or that would constitute a major change in its intended use, may require additional approvals
or filings or a new or revised 510(k) submission, or possibly, a PMA.
The
FDA and other regulatory authorities, including notified bodies, require every medical device manufacturer to make this determination,
with the potential for the regulatory authorities to impose additional requirements. The applicable regulatory authority nevertheless
maintains the right to disagree with a company’s decisions regarding whether new clearances or approvals are necessary.
If the FDA or any other relevant regulatory authority requires us to submit additional filings, such as a technical file review
and CE-marking, 510(k) submission, or file a PMA, for any modification to a previously cleared product, we may be required to
cease marketing and distributing, or to recall the modified product until we obtain such clearance or approval, and we may be
subject to significant regulatory fines or penalties. Furthermore, our products could be subject to recall if the FDA or any other
relevant regulatory authority determines, for any reason, that our products are not safe or effective. A mandate for a recall
or correction, or where new or revised regulatory submissions are required, could result in significant delays, fines, increased
costs associated with modification of a product, loss of revenue and potential operating restrictions imposed by the FDA or other
relevant regulatory agencies in other territories.
New or revised regulatory
requirements may require us to cease marketing or recall the modified products until clearances or approvals are obtained.
In
2017, the EU Regulation on In Vitro Diagnostic Medical Devices (Regulation (EU) 2017/746) (“IVDR”)
was adopted. The IVDR will apply commencing on May 26, 2022 and is, among other things, intended to establish a uniform, transparent,
predictable and sustainable regulatory framework across European Economic Area. Once applicable, the IVDR will introduce new classification
rules for in vitro diagnostic medical devices and new regulatory requirements. Moreover, the scrutiny imposed by notified bodies
for the technical documentation related these devices will increase considerably. Complying
with the requirements of this regulation may result in the reclassification of existing CE-IVD marked product and require additional
filings with the notified body or competent authority. Additional filings and or modifications to products to comply with the
IVDR, could result in significant delays, increased costs associated with modification of a product, loss of revenue and other
significant expenditures.
Our products may in the
future be subject to product recalls that could harm our reputation, business and financial results.
The FDA and similar foreign governmental
authorities have the authority to require the recall of regulated products in the event of material deficiencies or defects in
design or manufacture. In the case of the FDA, the authority to require a recall must be based on an FDA finding that there is
a reasonable probability that the device would cause serious injury or death. In addition, foreign governmental bodies have the
authority to require the recall of our products in the event of material deficiencies or defects in design or manufacture.
Manufacturers may, under their own initiative,
recall a product if any material deficiency in a device is found. A government-mandated or voluntary recall by us or one of our
distributors could occur as a result of component failures, manufacturing errors, design or labeling defects or other deficiencies
and issues. Recalls of any of our products would divert managerial and financial resources and have an adverse effect on our financial
condition and results of operations. The FDA requires that certain classifications of recalls be reported to the FDA within 10
working days after the recall is initiated. Companies are required to maintain certain records of recalls, even if they are not
reportable to the FDA. We may initiate voluntary recalls involving our products in the future that we determine do not require
notification of the FDA. If the FDA disagrees with our determinations, they could require us to report those actions as recalls.
A future recall announcement could harm our reputation with customers and negatively affect our sales. In addition, the FDA could
take enforcement action for failing to report the recalls when they were conducted.
If our products cause
or contribute to a death or a serious injury, or malfunction in certain ways, we will be subject to medical device reporting regulations,
which can result in voluntary corrective actions or agency enforcement actions.
Under the FDA and international medical
device reporting regulations, medical device manufacturers are required to report to the applicable regulatory authority information
that a device has, or may have, caused or contributed to a death or serious injury or has malfunctioned in a way that would likely
cause or contribute to death or serious injury if the malfunction of the device or one of our similar devices were to recur. If
we fail to report these events within the required timeframes, or at all, the regulatory authorities could take enforcement action
against us. Any such adverse event involving our products also could result in future voluntary corrective actions, such as recalls
or customer notifications, or agency action, such as inspection or enforcement action. Any corrective action, whether voluntary
or involuntary, as well as defending ourselves in a lawsuit, will require the dedication of our time and capital, distract management
from operating our business, and may harm our reputation and financial results.
We may generate a larger
portion of our future revenue internationally and would then be subject to increased risks relating to international activities
which could adversely affect our operating results.
A significant portion of our current
revenue and anticipated future revenue growth will come from international sources as we implement and expand overseas operations.
Engaging in international business involves a number of difficulties and risks, including:
|
·
|
required compliance with existing and changing foreign health care and other regulatory requirements
and laws, such as those relating to patient privacy;
|
|
·
|
required compliance with anti-bribery laws, such as the U.S. Foreign Corrupt Practices Act, or
FCPA, and U.K. Bribery Act, data privacy requirements, labor laws and anti- competition regulations;
|
|
·
|
export or import restrictions;
|
|
·
|
various reimbursement and insurance regimes;
|
|
·
|
laws and business practices favoring local companies;
|
|
·
|
longer payment cycles and difficulties in enforcing agreements and collecting receivables through
certain foreign legal systems;
|
|
·
|
political and economic instability;
|
|
·
|
potentially adverse tax consequences, tariffs, customs charges, bureaucratic requirements and other
trade barriers;
|
|
·
|
foreign exchange controls;
|
|
·
|
difficulties and costs of staffing and managing foreign operations; and
|
|
·
|
difficulties protecting or procuring intellectual property rights.
|
As we expand internationally, our results
of operations and cash flows would become increasingly subject to fluctuations due to changes in foreign currency exchange rates.
Our expenses are generally denominated in the currencies in which our operations are located, which is in the United States, Germany,
and Austria. If the value of the U.S. dollar increases relative to foreign currencies in the future, in the absence of a corresponding
change in local currency prices, our future revenue could be adversely affected as we convert future revenue from local currencies
to U.S. dollars. Conversely, a weakening of the value of the U.S dollar relative to foreign currencies would make our operations
in Germany and Austria which operate in Euros relatively more expensive. If we dedicate resources to our international operations
and are unable to manage these risks effectively, our business, operating results and prospects will suffer.
We face the risk of potential
liability under the FCPA for past international distributions of products and to the extent we distribute products or otherwise
operate internationally in the future.
In the past, we have distributed certain
of our products internationally, and in the future, we may distribute our products internationally and possibly engage in additional
international operations. The FCPA prohibits companies such as us from engaging, directly or indirectly, in making payments to
foreign government and political officials for the purpose of obtaining or retaining business or securing any other improper advantage,
including, among other things, the distribution of products and other international business operations. Like other U.S. companies
operating abroad, we may face liability under the FCPA if we, or third parties we have used to distribute our products or otherwise
advance our international business, have violated the FCPA or any of the relevant international equivalents. Any violations of
these laws, or allegations of such violations, could disrupt our operations, involve significant management distraction, involve
significant costs and expenses, including legal fees, and could result in a material adverse effect on our business, prospects,
financial condition or results of operations. We could also suffer severe penalties, including criminal and civil penalties, disgorgement
and other remedial measures.
Risks Related to Compliance
with Healthcare and Regulations
Changes in healthcare policy, including
legislation reforming the U.S. healthcare system, may have a material adverse effect on our financial condition and operations.
In March 2010, both the Patient Protection
and Affordable Care Act, or Affordable Care Act, and the reconciliation law known as Health Care and Education Reconciliation Act,
with the Affordable Care Act, the 2010 Health Care Reform Legislation, were enacted. The constitutionality of the 2010 Health Care
Reform Legislation was confirmed twice by the Supreme Court of the United States. The 2010 Health Care Reform Legislation has changed
the existing state of the health care system by expanding coverage through voluntary state Medicaid expansion, attracting previously
uninsured persons through the health care insurance exchanges and by modifying the methodology for reimbursing medical services,
drugs and devices. The U.S. Congress is seeking to replace the 2010 Health Care Reform Legislation. At this time the Company is
not certain as to the impact of federal health care legislation on its business.
The
2010 Health Care Reform Legislation includes the Open Payments Act (formerly referred to as the Physician Payments Sunshine Act),
which, in conjunction with its implementing regulations, requires manufacturers of certain drugs, biologics, and devices that are
reimbursed by Medicare, Medicaid and the Children’s Health Insurance Program to report annually certain payments or “transfers
of value” provided to physicians and teaching hospitals and to report annually ownership and investment interests held by
physicians and their immediate family members during the preceding calendar year. Recent amendments to the Open Payments Act expand
the categories of health care providers for which reporting is required. The failure to report appropriate data accurately, timely,
and completely could subject us to significant financial penalties. Other countries and several states currently have similar laws
and more may enact similar legislation.
We
cannot predict whether future healthcare initiatives will be implemented at the federal or state level or in countries outside
of the United States in which we may do business, or the effect any future legislation or regulation will have on us. Any changes
in government regulation of the United States healthcare industry may result in decreased profits to us, which may adversely affect
our business, financial condition and results of operations.
We are subject to potential
enforcement actions involving false claims, kickbacks, physician self-referral or other federal or state fraud and abuse laws,
and we could incur significant civil and criminal sanctions, which would hurt our business.
The government has made enforcement of
the false claims, anti-kickback, physician self-referral and various other fraud and abuse laws a major priority. In many instances,
private whistleblowers also are authorized to enforce these laws even if government authorities choose not to do so. In most of
these cases, private whistleblowers brought the allegations to the attention of federal enforcement agencies. The risk of our being
found in violation of these laws and regulations is increased by the fact that some of the laws and regulations have not been fully
interpreted by the regulatory authorities or the courts, and their provisions are open to a variety of interpretations. We could
be subject to enforcement actions under the following laws:
|
·
|
the federal Anti-Kickback Statute, which constrains certain marketing practices, educational programs,
pricing policies and relationships with healthcare providers or other entities by prohibiting, among other things, soliciting,
receiving, offering or paying remuneration, directly or indirectly, to induce or in return for, the purchase or recommendation
of an item or service reimbursable under a federal healthcare program, such as the Medicare and Medicaid programs;
|
|
·
|
federal civil and criminal false claims laws and civil monetary penalty laws, which prohibit, among
other things, individuals or entities from knowingly presenting, or causing to be presented, claims for payment from Medicare,
Medicaid, or other third party payors that are false or fraudulent;
|
|
·
|
federal physician self-referral laws, such as the Stark Law, which prohibit a physician from making
a referral to a provider of certain health services with which the physician or the physician’s family member has a financial
interest, and prohibit submission of a claim for reimbursement pursuant to a prohibited referral; and
|
|
·
|
state law equivalents of each of the above federal laws, such as anti-kickback and false claims
laws, which may apply to items or services reimbursed by any third party payor, including commercial insurers, many of which differ
from each other in significant ways and may not have the same effect, thus complicating compliance efforts.
|
If we or our operations, are found to
be in violation of any of these laws and regulations, we may be subject to penalties, including civil and criminal penalties, damages,
fines, exclusion from participation in U.S. federal or state healthcare programs, such as Medicare and Medicaid, and the curtailment
or restructuring of our operations. We will monitor changes in government enforcement as we grow and expand our business. Any action
against us for violation of these laws, even if we successfully defend against it, could cause us to incur significant legal expenses,
divert our management’s attention from the operation of our business and hurt our reputation. If we were excluded from participation
in U.S. federal healthcare programs, we would not be able to receive, or to sell our tests to other parties who receive reimbursement
from Medicare, Medicaid and other federal programs, and that could have a material adverse effect on our business.
Risks Related to Our Intellectual
Property
If we cannot license rights
to use technologies on reasonable terms, we may not be able to commercialize new products in the future.
In the future, we may license third-party
technology to develop or commercialize new products. In return for the use of a third party’s technology, we may agree to
pay the licensor royalties based on sales of our solutions. Royalties are a component of cost of services and affect the margins
on our products. We may also need to negotiate licenses to patents and patent applications after introducing a commercial product.
Our business may suffer if we are unable to enter into the necessary licenses on acceptable terms, or at all, if any necessary
licenses are subsequently terminated, if the licensors fail to abide by the terms of the license or fail to prevent infringement
by third parties, or if the licensed patents or other rights are found to be invalid or unenforceable.
If we are unable to protect
our intellectual property effectively, our business would be harmed.
We rely on patent protection as well
as trademark, copyright, trade secret and other intellectual property rights protection and contractual restrictions to protect
our proprietary technologies, all of which provide limited protection and may not adequately protect our rights or permit us to
gain or keep any competitive advantage. If we fail to protect our intellectual property, third parties may be able to compete more
effectively against us and we may incur substantial litigation costs in our attempts to recover or restrict use of our intellectual
property.
We apply for patents covering our products
and technologies and uses thereof, as we deem appropriate, however we may fail to apply for patents on important products and technologies
in a timely fashion or at all, or we may fail to apply for patents in potentially relevant jurisdictions. It is possible that none
of our pending patent applications will result in issued patents in a timely fashion or at all, and even if patents are granted,
they may not provide a basis for intellectual property protection of commercially viable products, may not provide us with any
competitive advantages, or may be challenged and invalidated by third parties. It is possible that others will design around our
current or future patented technologies. We may not be successful in defending any challenges made against our patents or patent
applications. Any successful third-party challenge to our patents could result in the unenforceability or invalidity of such patents
and increased competition to our business. The outcome of patent litigation can be uncertain and any attempt by us to enforce our
patent rights against others may not be successful, or, if successful, may take substantial time and result in substantial cost,
and may divert our efforts and attention from other aspects of our business.
The patent positions of life sciences
companies can be highly uncertain and involve complex legal and factual questions for which important legal principles remain unresolved.
No consistent policy regarding the breadth of claims allowed in such companies’ patents has emerged to date in the United
States or elsewhere. Courts frequently render opinions in the biotechnology field that may affect the patentability of certain
inventions or discoveries, including opinions that may affect the patentability of methods for analyzing or comparing DNA.
In particular, the patent positions
of companies engaged in the development and commercialization of genomic diagnostic tests, like ours, are particularly uncertain.
Various courts, including the U.S. Supreme Court, have recently rendered decisions that affect the scope of patentability of certain
inventions or discoveries relating to certain diagnostic tests and related methods. These decisions state, among other things,
that patent claims that recite laws of nature (for example, the relationship between blood levels of certain metabolites and the
likelihood that a dosage of a specific drug will be ineffective or cause harm) are not themselves patentable. What constitutes
a law of nature is uncertain, and it is possible that certain aspects of genetic diagnostics tests would be considered natural
laws. Accordingly, the evolving case law in the United States may adversely affect our ability to obtain patents and may facilitate
third-party challenges to any owned and licensed patents. The laws of some foreign countries do not protect intellectual property
rights to the same extent as the laws of the United States, and we may encounter difficulties protecting and defending such rights
in foreign jurisdictions. The legal systems of many other countries do not favor the enforcement of patents and other intellectual
property protection, particularly those relating to biotechnology, which could make it difficult for us to stop the infringement
of our patents in such countries. Proceedings to enforce our patent rights in foreign jurisdictions could result in substantial
cost and divert our efforts and attention from other aspects of our business.
Changes in either the patent laws or
in interpretations of patent laws in the United States or other countries may diminish the value of our intellectual property.
We cannot predict the breadth of claims that may be allowed or enforced in our patents or in third-party patents. We may not develop
additional proprietary products, methods and technologies that are patentable.
In addition to pursuing patents on our
technology, we take steps to protect our intellectual property and proprietary technology by entering into agreements, including
confidentiality agreements, non-disclosure agreements and intellectual property assignment agreements, with our employees, consultants,
academic institutions, corporate partners and, when needed, our advisors. Such agreements may not be enforceable or may not provide
meaningful protection for our trade secrets or other proprietary information in the event of unauthorized use or disclosure or
other breaches of the agreements, and we may not be able to prevent such unauthorized disclosure. If we are required to assert
our rights against such party, it could result in significant cost and distraction.
Monitoring unauthorized disclosure is
difficult, and we do not know whether the steps we have taken to prevent such disclosure are, or will be, adequate. If we were
to enforce a claim that a third party had illegally obtained and was using our trade secrets, it would be expensive and time consuming,
and the outcome would be unpredictable. In addition, courts outside the United States may be less willing to protect trade secrets.
We may also be subject to claims that
our employees have inadvertently or otherwise used or disclosed trade secrets or other proprietary information of third parties,
or to claims that we have improperly used or obtained such trade secrets. Litigation may be necessary to defend against these claims.
If we fail in defending such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights
and face increased competition to our business. A loss of key research personnel work product could hamper or prevent our ability
to commercialize potential products, which could harm our business. Even if we are successful in defending against these claims,
litigation could result in substantial costs and be a distraction to management.
Further, competitors could attempt to
replicate some or all of the competitive advantages we derive from our development efforts, willfully infringe our intellectual
property rights, design around our protected technology or develop their own competitive technologies that fall outside of our
intellectual property rights. Others may independently develop similar or alternative products and technologies or replicate any
of our products and technologies. If our intellectual property does not adequately protect us against competitors’ products
and methods, our competitive position could be adversely affected, as could our business.
We have not yet registered certain of
our trademarks in all of our potential markets. If we apply to register these trademarks, our applications may not be allowed for
registration in a timely fashion or at all, and our registered trademarks may not be maintained or enforced. In addition, opposition
or cancellation proceedings may be filed against our trademark applications and registrations, and our trademarks may not survive
such proceedings. If we do not secure registrations for our trademarks, we may encounter more difficulty in enforcing them against
third parties than we otherwise would.
To the extent our intellectual property
offers inadequate protection, or is found to be invalid or unenforceable, we would be exposed to a greater risk of direct competition.
If our intellectual property does not provide adequate coverage of our competitors’ products, our competitive position could
be adversely affected, as could our business. Both the patent application process and the process of managing patent disputes can
be time consuming and expensive.
We may be involved in
litigation related to intellectual property, which could be time-intensive and costly and may adversely affect our business, operating
results or financial condition.
We may receive notices of claims of direct
or indirect infringement or misappropriation or misuse of other parties’ proprietary rights from time to time. Some of these
claims may lead to litigation. We cannot assure you that we will prevail in such actions, or that other actions alleging misappropriation
or misuse by us of third-party trade secrets, infringement by us of third-party patents and trademarks or other rights, or the
validity of our patents, trademarks or other rights, will not be asserted or prosecuted against us.
We might not have been the first to
make the inventions covered by each of our pending patent applications and we might not have been the first to file patent applications
for these inventions. To determine the priority of these inventions, we may have to participate in interference proceedings, derivation
proceedings, or other post-grant proceedings declared by the United States Patent and Trademark Office that could result in substantial
cost to us. No assurance can be given that other patent applications will not have priority over our patent applications. In addition,
recent changes to the patent laws of the United States allow for various post-grant opposition proceedings that have not been extensively
tested, and their outcome is therefore uncertain. Furthermore, if third parties bring these proceedings against our patents, we
could experience significant costs and management distraction.
Litigation may be necessary for us to
enforce our patent and proprietary rights or to determine the scope, coverage and validity of the proprietary rights of others.
The outcome of any litigation or other proceeding is inherently uncertain and might not be favorable to us, and we might not be
able to obtain licenses to technology that we require on acceptable terms or at all. Further, we could encounter delays in product
introductions, or interruptions in product sales, as we develop alternative methods or products. In addition, if we resort to legal
proceedings to enforce our intellectual property rights or to determine the validity, scope and coverage of the intellectual property
or other proprietary rights of others, the proceedings could be burdensome and expensive, even if we were to prevail. Any litigation
that may be necessary in the future could result in substantial costs and diversion of resources and could have a material adverse
effect on our business, operating results or financial condition.
As we move into new markets and
applications for our products, incumbent participants in such markets may assert their patents and other proprietary rights against
us as a means of slowing our entry into such markets or as a means to extract substantial license and royalty payments from us.
Our competitors and others may now and, in the future, have significantly larger and more mature patent portfolios than we currently
have. In addition, future litigation may involve patent holding companies or other adverse patent owners who have no relevant product
revenue and against whom our own patents may provide little or no deterrence or protection. Therefore, our commercial success may
depend in part on our non-infringement of the patents or proprietary rights of third parties. Numerous significant intellectual
property issues have been litigated, and will likely continue to be litigated, between existing and new participants in our existing
and targeted markets and competitors may assert that our products infringe their intellectual property rights as part of a business
strategy to impede our successful entry into or growth in those markets. Third parties may assert that we are employing their proprietary
technology without authorization. In addition, our competitors and others may have patents or may in the future obtain patents
and claim that making, having made, using, selling, offering to sell or importing our products infringes these patents. We could
incur substantial costs and divert the attention of our management and technical personnel in defending against any of these claims.
Parties making claims against us may be able to obtain injunctive or other relief, which could block our ability to develop, commercialize
and sell products, and could result in the award of substantial damages against us. In the event of a successful claim of infringement
against us, we may be required to pay damages and ongoing royalties, and obtain one or more licenses from third parties, or be
prohibited from selling certain products. We may not be able to obtain these licenses on acceptable terms, if at all. We could
incur substantial costs related to royalty payments for licenses obtained from third parties, which could negatively affect our
financial results. In addition, we could encounter delays in product introductions while we attempt to develop alternative methods
or products to avoid infringing third-party patents or proprietary rights. Defense of any lawsuit or failure to obtain any of these
licenses could prevent us from commercializing products, and the prohibition of sale of any of our products could materially affect
our business and our ability to gain market acceptance for our products.
Furthermore, because of the substantial
amount of discovery required in connection with intellectual property litigation, there is a risk that some of our confidential
information could be compromised by disclosure during this type of litigation. In addition, during the course of this kind of litigation,
there could be public announcements of the results of hearings, motions or other interim proceedings or developments. If securities
analysts or investors perceive these results to be negative, it could have a substantial adverse effect on the price of our common
stock.
In addition, our agreements with
some of our customers, suppliers or other entities with whom we do business require us to defend or indemnify these parties to
the extent they become involved in infringement claims, including the types of claims described above. We could also voluntarily
agree to defend or indemnify third parties in instances where we are not obligated to do so if we determine it would be important
to our business relationships. If we are required or agree to defend or indemnify third parties in connection with any infringement
claims, we could incur significant costs and expenses that could adversely affect our business, operating results, or financial
condition.
The COVID-19 pandemic has adversely impacted our business,
financial condition and results of operations.
The COVID-19
pandemic has impacted the global economy and has impacted our operations in the United States and abroad, including by negatively
impacting our sales and revenue. As a result, we have implemented certain operational changes in order to address the evolving
challenges presented by the global pandemic. We have experienced significant reductions in the demand for certain of our products,
particularly due to the decline in elective medical procedures and medical treatment unrelated to COVID-19, which negatively impacted
our revenues in fiscal year 2020 and into 2021. As the pandemic continues, we expect to continue to experience weakened demand
for these products as a result of the reduction in elective and nonessential procedures, lower utilization of routine testing and
related specimen collection, reduced spending by customers and reduced demand from research laboratories.
Healthcare
providers, including our strategic partners, are focused almost exclusively on dealing with COVID-19, and may be unable to continue
to participate in our clinical activities. For example, some clinical trial sites have imposed restrictions on site visits by sponsors
and CROs, the initiation of new trials, and new patient enrollment to protect both site staff and patients from possible COVID-19
exposure and to focus medical resources on patients suffering from COVID-19. The pandemic will therefore likely delay enrollment
in and completion of our clinical trials due to prioritization of hospital resources toward the outbreak, and some patients may
not be able to comply with clinical trial protocols if quarantines impede patient movement or interrupt healthcare services. Moreover,
due to site and participant availability during the pandemic and in the interest of patient safety, many of our partners have paused
new subject enrollment for most clinical trials.
For ongoing
and/or planned future trials, we have seen an increasing number of clinical trial sites imposing restrictions on patient visits
to limit risks of possible COVID-19 exposure, and we may experience issues with participant compliance with clinical trial protocols
as a result of quarantines, travel restrictions and interruptions to healthcare services. The current pressures on medical systems
and the prioritization of healthcare resources toward the COVID-19 pandemic have also resulted in interruptions in data collection
and submissions for certain clinical trials and delayed starts for certain planned studies. Further, health regulatory agencies
globally may also experience disruptions in their operations as a result of the COVID-19 pandemic. The FDA and comparable foreign
regulatory agencies have had and may continue to have slower response times or be under-resourced, which could significantly delay
the FDA’s ability to timely review and process any submissions we or our partners have filed or may file. The FDA recently
notified us that the agency plans to continue prioritizing emergency use authorization requests for diagnostic products intended
to address the COVID-19 pandemic into 2021, which despite the fact that the FDA informed the Company of their re-start of the review
of our response submitted to the AI letters at the end of January 2021, will continue to impact the statutory review periods for
submissions, including the potential clearance decision on our Acuitas AMR Gene Panel (isolates) submission since the FDA does
not currently commit to any MDUFA timelines.
As a result
of the outbreak, we and certain of our suppliers may also be affected and could experience closures and labor shortages, which
could disrupt activities. We could therefore face difficulty sourcing key components necessary to produce our product candidates,
which may negatively affect our clinical development activities. Even if we are able to find alternate sources for some of these
components, they may cost more, which could affect our results of operations and financial position.
At this point
in time, there remains significant uncertainty relating to the potential effect of the novel coronavirus on our business and results
of operations. As coronavirus and its mutations becomes more widespread, each day manufacturing closures, travel restrictions or
lockdowns may remain or worsen, all of which would have a negative impact on our ability to operate our business, financial condition
and results of operations as well as virtual marketing, sales and customer service interactions not being as effective as in-person
interactions. While several vaccines have been approved for use, and with vaccination programs underway in many countries, the
limited availability of vaccine and potential failure to be effective for all known mutations of the SARS-CoV-2 virus still makes
it hard to predict if and when the pandemic will subside.
Moreover,
we have transitioned a significant subset of our office-based employee population to a remote work environment in an effort to
mitigate the spread of COVID-19, which may exacerbate certain risks to our business, including cybersecurity attacks and risk of
phishing due to an increase in the number of points of potential attack, such as laptops and mobile devices (both of which are
now being used in increased numbers). Additionally, we may find that remote work arrangements are not as efficient as physical
operations.
Our
wholly-owned subsidiary, Curetis USA, accepted loans under the CARES Act pursuant to the Paycheck Protection Program, or the PPP,
which loan may not be forgiven or may subject us to challenges and investigations regarding qualification for the loan.
Our wholly-owned
subsidiary, Curetis USA, secured a loan under the CARES Act Paycheck Protection Program (“PPP”) in the aggregate amount
of approximately $259 thousand. We intend to use such funds for the intended purposes to maintain our employee base and pay rent
and utility expenses. There has been significant negative publicity regarding the receipt of PPP loans by publicly traded companies,
and there is a risk that our receipt of PPP loans will be closely scrutinized, and additional requirements will be imposed on us
by the lender and the Small Business Association, or the SBA.
The PPP loan
application required us to certify, among other things, that the current economic uncertainty made the PPP loan request necessary
to support our ongoing operations. While we made this certification in good faith after analyzing, among other things, our financial
situation and access to alternative forms of capital and believe that we satisfied all eligibility criteria for the PPP loan and
that our receipt of the PPP loans is consistent with the broad objectives of the PPP of the CARES Act, the certification described
above does not contain any objective criteria and is subject to interpretation.
In addition,
the SBA previously stated that it is unlikely that a public company with substantial market value and access to capital markets
will be able to make the required certification in good faith. The lack of clarity regarding loan eligibility under the PPP has
resulted in significant media coverage and controversy with respect to public companies applying for and receiving loans. If, despite
our good faith belief that we satisfied all eligibility requirements for the PPP loans, we are found to have been ineligible to
receive the PPP loans or in violation of any of the laws or governmental regulations that apply to us in connection with the PPP
loans, including the False Claims Act, we may be subject to penalties, including significant civil, criminal and administrative
penalties and could be required to repay the PPP loans.
During November
of 2020, we filed for forgiveness of the secured loan we received under the PPP. As part of the forgiveness process, we were required
to make certain certifications which will be subject to audit and review by governmental entities and could subject us to significant
penalties and liabilities if found to be inaccurate, including under the False Claims Act. In addition, our receipt of the PPP
loans may result in adverse publicity and damage to our reputation, and a review or audit by the SBA or other government entity
or claims under the False Claims Act could consume significant financial and management resources. Any of these events could harm
our business, results of operations and financial condition.
Customer
demand for and our ability to sell and market our products may be adversely affected by the COVID-19 pandemic and the legislative
and regulatory responses thereto.
U.S. state and local
governments as well as many governments around the world have imposed orders, restrictions and recommendations resulting in closures
of businesses, work stoppages, travel restrictions, social distancing practices and cancellations of gatherings and events. Such
orders, restrictions and recommendations, combined with fears of the spreading of COVID-19, has and may continue to cause certain
of our customers to delay, cancel or reduce orders of our products and makes it difficult to facilitate meetings with current and
potential customers, as our sales personnel often rely on in-person meetings and interaction with our customers. COVID-19 related
restrictions have thus harmed our sales efforts, and continued restrictions could have a negative impact on our sales and results
of operations. We are unable to accurately predict how these factors will reduce our sales going forward and when these orders,
restrictions and recommendations will be relaxed or lifted. There can be no assurances that our customers and distributors will
resume purchases of our products upon termination of these governmental orders, restrictions and recommendations, particularly
if there remains any continued community outbreak of COVID-19. A prolonged economic contraction or recession may also result in
our customers seeking to reduce their costs and expenditures, which could result in lower demand for our products. If our sales
decline, or if such lost sales are not recoverable in the future, our revenues, business and results of operations will be significantly
adversely affected.
It is not possible to predict the future
of the COVID-19 global pandemic or the development of potential tests or treatments. No assurance can be given that our products
will aid in the testing or the treatment of this virus.
We offer products for the testing for SARS-CoV-2,
the causal pathogen of COVID-19. We may offer other products for testing or treatment of coronavirus in the future. There can be
no assurance that test for which our products are used, or any such future tests will be broadly adopted for use. We are among
many companies that are trying to develop and commercialize tests for COVID-19, most of whom have far greater resources than us.
If one of these companies develops an effective test, our development of such tests may not significantly increase our revenues
and results of operations.
We incurred significant indebtedness
as a result of the combination with Curetis, which could have a material adverse effect on our financial condition.
On April 1, 2020, we assumed the
indebtedness of Curetis GmbH. As of December 31, 2020, we owed indebtedness of $25.9 million of principal (plus deferred interest
of $3.8 million) under a loan provided by the European Investment Bank with maturities in 2022, 2023, and 2024. OpGen may not be
able to generate sufficient cash to service all of its indebtedness and may be forced to take other actions to satisfy its obligations
under indebtedness that may not be successful. The inability in the future to repay such indebtedness when due would have a material
adverse effect on us.
The business combination transaction
with Curetis significantly changed our business and operations. We may face challenges integrating the Curetis businesses.
Following the consummation of the combination
with Curetis, we continued as the operating entity and both the size and geographic scope of our business significantly increased.
Most of the Curetis business is currently conducted in Europe, Asia and other countries outside of the United States, and many
of the Curetis employees are located outside of the United States. We have and may face further challenges integrating such geographically
diverse businesses and implementing a smooth transition of business focus and governance in a timely or efficient manner, especially
in light of the global COVID-19 pandemic. In particular, if the effort we devote to the integration of our businesses diverts more
management time or other resources from carrying out our operations than we originally planned, our ability to maintain and increase
revenues as well as manage our costs could be impaired. Furthermore, our capacity to expand other parts of our existing businesses
may be impaired. We also cannot assure you that our combination with Curetis will function as we anticipate, or that significant
synergies will result from the business combination. Any of the above could have a material adverse effect on our business.
Recent changes to our management
and our board of directors may have a material impact on our business.
Oliver Schacht, Ph.D., the prior chief
executive officer of Curetis N.V., became our chief executive officer at the closing of our business combination with Curetis in
April 2020. Additionally, pursuant to the business combination, four new members of our board of directors were appointed by Curetis
N.V. in April 2020. These new members of management and directors have different backgrounds, experiences and perspectives from
those individuals who previously served as executive officers or directors and, thus, may have different views on the issues that
will determine our future. Further, the ability of our new directors to quickly expand their knowledge of our operations is critical
to their ability to make informed decisions about our business and strategies, particularly given the competitive environment in
which we operate. As a result, our future strategy and plans may differ materially from those of the past.
Our insurance policies are expensive
and protect us only from some business risks, which will leave us exposed to significant uninsured liabilities.
We do not carry insurance for all categories
of risk that our business may encounter. Some of the policies we currently maintain include general liability, employee benefits
liability, property, umbrella, business interruption, workers’ compensation, product liability, errors and omissions and
directors’ and officers’ insurance. We do not know, however, if we will be able to maintain existing insurance with
adequate levels of coverage. Any significant uninsured liability may require us to pay substantial amounts, which would adversely
affect our cash position and results of operations.
The integration of the Curetis
businesses may not lead to the growth and success of the combined business that we believe will occur.
Although we believe the combination of
the OpGen and Curetis businesses provides a significant commercial opportunity for growth, we may not realize all of the synergies
that we anticipate and may not be successful in implementing our commercialization strategy. Our combined business will be subject
to all of the risks and uncertainties inherent in the pursuit of growth in our industry and we may not be able to successfully
sell our products, obtain the regulatory clearances and approvals we apply for or, or realize the anticipated benefits from our
distribution, collaboration and other commercial partners. If we are not able to grow our business as a commercial enterprise,
our financial condition will be negatively impacted.
Integrating the businesses of
OpGen and Curetis may disrupt or have a negative impact on OpGen.
We could have difficulty integrating
the assets, personnel and businesses of OpGen and Curetis. The proposed transaction was complex and we have devoted and will need
to continue to devote significant time and resources to integrating the businesses. Risks that could impact us negatively include:
|
·
|
the difficulty of integrating the acquired companies, and their concepts and operations;
|
|
·
|
the difficulty in combining our financial operations and reporting;
|
|
·
|
the potential disruption of the ongoing businesses and distraction of our management;
|
|
·
|
changes in our business focus and/or management;
|
|
·
|
risks related to international operations;
|
|
·
|
the potential impairment of relationships with employees and partners as a result of any integration
of new management personnel; and
|
|
·
|
the potential inability to manage an increased number of locations and employees.
|
If we are not successful in addressing these risks effectively,
our business could be severely impaired.
While we currently qualify as a
smaller reporting company under SEC regulations, we cannot be certain if we take advantage of the reduced disclosure requirements
applicable to these companies that we will not make our common stock less attractive to investors. Once we lose smaller reporting
company status, the costs and demands placed upon our management are expected to increase.
The SEC’s rules permit smaller
reporting companies to take advantage of certain exemptions from various reporting requirements applicable to other public companies.
As long as we qualify as a smaller reporting company, based on our public float, and report less than $100 million in annual revenues
in a fiscal year we are permitted, and we intend to, omit the auditor’s attestation on internal control over financial reporting
that would otherwise be required by the Sarbanes-Oxley Act.
We lost our status as an emerging growth
company as of December 31, 2020. While we expect to remain a smaller reporting company and non-accelerated filer, we now face increased
disclosure requirements as a non-emerging growth company, such as stockholder advisory votes on executive compensation (“say-on-pay”).
Until such time that we lose smaller reporting company status, it is unclear if investors will find our common stock less attractive
because we may rely on certain disclosure exemptions. If some investors find our common stock less attractive as a result, there
may be a less active trading market for our common stock and our stock price may be more volatile and could cause our stock price
to decline.
As a result of the loss of our emerging
growth company status, we expect the costs and demands placed upon our management to increase, as we now have to comply with additional
disclosure and accounting requirements. In addition, even if we remain a smaller reporting company, if our public float exceeds
$75 million and we report $100 million or more in annual revenues in a fiscal year, we will become subject to the provisions of
Section 404(b) of the Sarbanes-Oxley Act requiring an independent registered public accounting firm to provide an attestation report
on the effectiveness of our internal control over financial reporting, making the public reporting process more costly.
General Risk Factors
We incur increased costs and demands
on management as a result of compliance with laws and regulations applicable to public companies, which could harm our operating
results.
As a public company, we incur significant
legal, accounting and other expenses that we did not incur as a private company, including costs associated with public company
reporting requirements. In addition, the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act of 2010, as well as rules implemented
by the SEC and the Nasdaq Stock Market, impose a number of requirements on public companies, including with respect to corporate
governance practices. Our management and other personnel need to devote a substantial amount of time to these compliance and disclosure
obligations. Moreover, compliance with these rules and regulations has increased our legal, accounting and financial compliance
costs and has made some activities more time-consuming and costly. It is also more expensive for us to obtain director and officer
liability insurance.
We may be adversely affected
by the current economic environment and future adverse economic environments.
Our ability to attract and retain customers,
invest in and grow our business and meet our financial obligations depends on our operating and financial performance, which, in
turn, is subject to numerous factors, including the prevailing economic conditions and financial, business and other factors beyond
our control, such as the rate of unemployment, the number of uninsured persons in the United States and inflationary pressures.
We cannot anticipate all the ways in which the current economic climate and financial market conditions, and those in the future,
could adversely impact our business.
We are exposed to risks associated with
reduced profitability and the potential financial instability of our customers, many of which may be adversely affected by volatile
conditions in the financial markets. For example, unemployment and underemployment, and the resultant loss of insurance, may decrease
the demand for healthcare services and diagnostic testing. If fewer patients are seeking medical care because they do not have
insurance coverage, we may experience reductions in revenues, profitability and/or cash flow. In addition, if economic challenges
in the United States result in widespread and prolonged unemployment, either regionally or on a national basis, a substantial number
of people may become uninsured or underinsured. To the extent such economic challenges result in less demand for our proprietary
tests, our business, results of operations, financial condition and cash flows could be adversely affected.