Item 1.01. Entry Into a Material Definitive Agreement.
Securities Purchase Agreement
On October 13, 2021, OpGen, Inc. (the “Company”)
entered into a Securities Purchase Agreement (the “Purchase Agreement”) with a institutional investor (the “Investor”),
pursuant to which the Company agreed to issue and sell to the Investor in a registered direct offering (the “Offering”) (i)
150,000 shares of the Company’s Series B Convertible Preferred Stock (the “Preferred Stock”), par value $0.01 per share
(the “Preferred Stock”), and (ii) 7,500,000 warrants (the “Common Warrants”) to purchase an aggregate of 7,500,000
shares of the Company’s common stock (“Common Stock”). The shares of Preferred Stock will have a stated value of $100
per share and are convertible into an aggregate of 7,500,000 shares of Common Stock at a conversion price of $2.00 per share at any time
after the Company receives stockholder approval to increase the number of authorized shares of Common Stock of the Company. The Company
expects to receive aggregate gross proceeds from the Offering of $15 million before deducting the placement agent’s fees and the
Company’s Offering expenses. The Offering is expected to close on or about October 18, 2021, subject to satisfaction of customary
closing conditions.
In connection with the Offering and in accordance
with the Purchase Agreement, the Company plans to call a special meeting of stockholders to consider the following two proposed amendments
(the “Proposals”) to the Company’s Certificate of Incorporation, as amended (the “Charter”): (i) an amendment
to the Charter to reduce the stockholder approval requirement for changes to the Charter and bylaws to a majority of the outstanding shares
entitled to vote; and (ii) an amendment to the Charter to increase the authorized number of shares of capital stock from 60,000,000 shares
to 110,000,000 and the authorized number of shares of Common Stock from 50,000,000 to 100,000,000 shares. The Investor has agreed in the
Purchase Agreement to vote the shares of Preferred Stock purchased in the Offering in favor of such Proposals.
Pursuant to the Purchase Agreement, the Company
will file a certificate of designation (the “Certificate of Designation”) with the Secretary of State of Delaware designating
the rights, preferences and limitations of the shares of Preferred Stock. The Certificate of Designation will provide, in particular,
that the Preferred Stock will have no voting rights, other than the right to vote as a class on certain matters, except that each share
of Preferred Stock will have the right to cast 30,000 votes per share of Preferred Stock on the Proposals; provided, that with respect
to the proposal to increase the authorized shares of Common Stock and in accordance with Nasdaq listing rules, the votes cast by the holder
of the Preferred Stock must be counted by the Company in the same proportion as the aggregate shares of Common Stock voted on this proposal.
The holder of Preferred Stock will be entitled
to dividends, on an as-if converted basis, equal to dividends actually paid, if any, on shares of Common Stock. The Preferred Stock is
convertible into shares of Common Stock at a rate of $2.00 per share. The conversion price can be adjusted pursuant to the Certificate
of Designation for stock dividends and stock splits, subsequent rights offerings, pro rata distributions of dividends or the occurrence
of a fundamental transaction (as defined in the Certificate of Designation). The Preferred Stock can be converted at the option of the
holder at any time after the Company has received stockholder approval for the amendment to increase its authorized shares of Common Stock.
In addition, following the receipt of stockholder approval for such amendment, and subject to the satisfaction of certain conditions,
the Company can cause the holder of the Preferred Stock to convert their shares of Preferred Stock; provided, that shares of Preferred
Stock cannot be converted to Common Stock if the holder would beneficially own in excess of 9.99% of the Company’s outstanding Common
Stock.
The Common Warrants will have an exercise price
of $2.05 per share, will be exercisable on the later of the date of stockholder approval and six months following the date of issuance,
and will expire five years following the initial exercise date. The exercise price and the number of shares of Common Stock issuable upon
exercise of each Common Warrant is subject to appropriate adjustments in the event of certain stock dividends and distributions, stock
splits, stock combinations, reclassifications or similar events affecting the Common Stock. In addition, in certain circumstances, upon
a fundamental transaction, a holder of Warrants will be entitled to receive, upon exercise of the Common Warrants, the kind and amount
of securities, cash or other property that such holder would have received had they exercised the Common Warrants immediately prior to
the fundamental transaction; provided, however, that in the event of a fundamental transaction where the consideration consists solely
of cash, solely of marketable securities or a combination thereof, each Common Warrant will be deemed to be exercised in full in a cashless
exercise effective immediately prior to and contingent upon the consummation of such fundamental transaction.
The Company may not effect the exercise of
certain Common Warrants, and the applicable holder will not be entitled to exercise any portion of any such Common Warrant, which, upon
giving effect to such exercise, would cause the aggregate number of shares of Common Stock beneficially owned by the holder of such Common
Warrant (together with its affiliates) to exceed 4.99% of the number of shares of Common Stock outstanding immediately after giving effect
to the exercise, as such percentage ownership is determined in accordance with the terms of such Common Warrants.
The representations, warranties and covenants
contained in the Purchase Agreement were made solely for the benefit of the parties to the Purchase Agreement and may be subject to limitations
agreed upon by the contracting parties. Accordingly, the Purchase Agreement is incorporated herein by reference only to provide investors
with information regarding the terms of the Purchase Agreement, and not to provide investors with any other factual information regarding
the Company or its business, and should be read in conjunction with the disclosures in the Company’s periodic reports and other
filings with the Securities and Exchange Commission.
The foregoing description of the Purchase
Agreement, Common Warrants, and the Certificate of Designation do not purport to be complete and are qualified in their entirety by
reference to the full text of the form of Purchase Agreement, Common Warrants and Certificate of Designation which are filed as
Exhibits 10.1, 4.1 and 3.1, respectively, to this Current Report on Form 8-K and incorporated herein by reference. The legal
opinion, including the related consent, of Ballard Spahr LLP relating to the issuance and sale of the Preferred Stock and the
Warrants and the shares issuable upon the conversion of the Preferred Stock and the exercise of the Common Warrants is filed as
Exhibit 5.1 hereto.