Assignment of the Agreement for the Issuance of and Subscription to Notes Convertible into Shares, dated February 24, 2020, among OpGen, Inc., YA II PN, LTD, and Curetis N.V

Exhibit 10.1

ASSIGNMENT OF THE AGREEMENT FOR THE ISSUANCE OF AND
SUBSCRIPTION TO NOTES CONVERTIBLES INTO SHARES

AMONG

OPGEN, INC.,

YA II PN, LTD

AND

CURETIS N.V.

DATED: FEBRUARY 24, 2020

THIS AGREEMENT IS MADE ON FEBRUARY 24, 2020

AMONG:

(1)        OPGEN, INC., a Delaware corporation having its principal address at 708 Quince Orchard Road, Gaithersburg, MD, 20878 (“OpGen”);

(2)        YA II pn, LTD, a limited liability company incorporated under the laws of the Cayman Islands, having its registered office at Maples Corporate Services, Ugland House, George Town, Grand Cayman, and its principal office at 1012 Springfield Avenue Mountainside, NJ 07092, USA, represented by its Investment Manager Yorkville Advisors Global, LP, itself represented by its General Partner Yorkville Advisors Global II, LLC (the “Investor”); and

(3)        CURETIS N.V., a Dutch public limited liability company (naamloze vennootschap) incorporated under the laws of the Netherlands, having its statutory seat (statutaire zetel) in Amsterdam, the Netherlands, and its office address at Max-Eyth-Str. 42, 71088 Holzgerlingen, Germany, and registered with the trade registry of the Dutch Chamber of Commerce under number 64302679 (“Curetis”).

OpGen, the Investor and Curetis are each a “Party” to this Agreement and collectively are the “Parties” to the Agreement.

WHEREAS,

IT IS THEREFORE AGREED AS FOLLOWS:

1.                  Assumption of Notes. The Parties agree that, as of the date of this Agreement, the outstanding Notes total EUR 1.3 million in principal and that effective as of the Closing under the Implementation Agreement, OpGen hereby assumes and agrees to pay, perform and discharge all outstanding obligations of Curetis under the Notes. For the avoidance of doubt, the effectiveness of this Agreement is expressly conditions upon the occurrence of the Closing under the Implementation Agreement and, if for any reason the Closing of the business combination between OpGen and Curetis under the Implementation Agreement has not occurred by March 31, 2020, or such later date as may be agreed in writing by the parties, then this Agreement shall automatically, and without any action by any party hereto, terminate and be null and void.

2.                  Initial Conversions. As of the date of the Closing under the Implementation Agreement, five hundred thousand (500,000) of the shares of OpGen common stock (the “Initial Tranche OpGen Shares”) that comprise the Consideration under the Implementation Agreement shall be set aside and reserved for issuance to the Investor from time to time upon conversions by the Investor of portions of that amount of principal of the outstanding Notes using the same conversion terms under the Original Agreement, but substituting OpGen Shares for Curetis Shares (the “Initial Conversions”).

3.                  Subsequent Conversions. The remaining outstanding Notes indebtedness following completion of the Initial Conversions (the “Remaining Notes”) shall be convertible at the election of the Investor, from time to time, into OpGen Shares in accordance with the following provisions:

4.                  Registration of Additional OpGen Shares. Within sixty (60) days following the later of the filing of the OpGen Annual Report on Form 10-K for the year ending December 31, 2019, and the Closing under the Implementation Agreement, OpGen shall file a registration statement to register up to 1,000,000 additional OpGen Shares to provide OpGen Shares for the conversion, from time to time of the Remaining Notes, including resale of such OpGen Shares by the Investor. The Investor and OpGen will enter into a registration rights agreement prior to the Closing.

5.                  No Share Subscription Warrants. The Parties agree that no Share Subscription Warrants shall need to be offered or issued by OpGen under this Agreement or the Original Agreement.

6.                  Repayment of Notes. OpGen will pay the Remaining Notes that are not converted by the Investor in accordance with the terms of the Original Agreement. For the avoidance of doubt, the provisions of the Original Agreement providing an option to extend the Maturity Date by twelve (12) months after the June 2020 Maturity Date will be exercisable by OpGen following the Closing.

7.                  Additional Financing. After the Closing, OpGen shall have the right to access up to US5,000,000 of additional financing subject to negotiation of terms and conditions acceptable to OpGen.

8.                  Miscellaneous.

a.                   Notices. Any notice, demand, consent, waiver or other communication required, given or made under this Agreement, including any Conversion Notices (a “Notice”) shall be made in writing, duly signed on behalf of the Party from which it originates. The form of Conversion Notice is attached to this Agreement as Exhibit A.

Any Notice sent by email shall be deemed to have been delivered on the day of transmission, provided however that, if a Notice is sent by e-mail and received by the addressee on a day which is not a Trading Day or after 4.00 p.m. Eastern Time on a Trading Day, it will instead be deemed to have been given or made on the next Trading Day.

The address and e-mail address for such Notice shall be:

If to OpGen:

OpGen, Inc.

708 Quince Orchard Road
Gaithersburg, MD 20878

Attention: Timothy C. Dec

Email: ***@***

Telephone: +1 ###-###-####

Copy:

Ballard Spahr LLP
1735 Market Street, 51^st Fl

Philadelphia, PA 19103

Attention:

Email:

Telephone:

if to the Investor:

YA II PN, LTD

Address: 1012 Springfield Avenue Mountainside, NJ 07092, USA

Attention to: Saad Gilani

E-mail addresses: ***@*** and ***@***

Phone number: + 1 ###-###-####

Copy:

Jeantet AARPI

Address: 87 avenue Kléber, 75116 Paris, France

Attention to: Cyril Deniaud

E-mail address: ***@***

Phone number: +33 (0)1 45 05 80 08

if to Curetis:

CURETIS N.V.

Address: Max-Eyth-Str. 42, 71088 Holzgerlingen, Germany

Attention to: Oliver Schacht and Bernd Bleile

E-mail addresses: ***@*** and ***@***

Phone number: +49 ###-###-####

Copy:

Linklaters LLP

Address: World Trade Centre, Zuidplein 180, Amsterdam, the Netherlands

Attention to: Joost Dantuma and Alexander Harmse

E-mail addresses: ***@*** and ***@***

Phone number: +31 20 7996 261 and +31 20 7996 216

Each Party shall provide three (3) calendar days prior notice to the other Party of any change in address or e-mail address.

9.                  Waivers and Amendments; Non-Contractual Remedies; Preservation of Remedies. This Agreement may be amended, superseded, cancelled, renewed or extended, and the terms hereof may be waived, only by a written instrument signed by authorized representatives of the Parties or, in the case of a waiver, by an authorized representative of the Party waiving a condition or compliance. No such written instrument shall be effective unless it expressly recites that it is intended to amend, supersede, cancel, renew or extend this Agreement or to waive a condition or compliance with one or more of the terms hereof, as the case may be.

No delay on the part of either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of either Party of any such right, power or privilege, or any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege.

The rights and remedies herein provided are cumulative that either Party based upon, arising out of or otherwise in respect of any inaccuracy in or breach of any representation, warranty, covenant or agreement contained in this Agreement shall in no way be limited by the fact that the act, omission, occurrence or other facts upon which any claim of any such inaccuracy or breach is based may also be the subject matter of any other representation, warranty, covenant or agreement contained in this Agreement (or in any other agreement between the Parties) as to which there is no inaccuracy or breach.

10.              Binding Effect; No Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement is not assignable except by operation of law; provided that the Investor may assign all or any of its rights under this Agreement to one or more companies of the Investor Group, it being understood that if the Investor makes such an assignment, it shall nonetheless remain liable for the performance of its obligations pursuant to this Agreement. For the avoidance of doubt, this Section 8 does not impact or prohibit the transferability of the Notes to be issued under this Agreement.

11.              Captions. All Section titles or captions contained in this Agreement are for convenience only, shall not be deemed a part of this Agreement and shall not affect the meaning or interpretation of this Agreement. All references herein to sections or clauses shall be deemed references to such parts of this Agreement, unless the context shall otherwise require.

12.              Costs. Each Party shall pay its own costs and expenses, incurred in relation to the negotiation, preparation, signing and carrying into effect of this Agreement.

13.              Governing Law. This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with Delaware law.

14.              Jurisdiction. Any dispute arising in connection with this Agreement shall be subject to the exclusive jurisdiction of the competent court in New York City, New York.

15.              Entire Agreement. This Agreement represents the full agreement of the Parties. It is a substitute for and replaces all agreements and negotiations, oral or written, past and present dealing and agreements with respect to the matters discussed herein.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective officers hereunto duly authorized on the date first above written.

In two (2) original copies

OPGEN, INC.

By: /s/ Timothy C. Dec          

Name: Timothy C. Dec

Title: CFO

YA II PN, LTD

/s/ David Gonzalez            

Signed by David Gonzalez, in his capacity as Member of Yorkville Advisors Global II, LLC

CURETIS N.V.

/s/ Oliver Schacht                       

Signed by Oliver Schacht, Ph.D.

CEO

CURETIS N.V.

/s/ Johannes Bacher                 

Signed by Johannes Bacher

COO

EXHIBIT A

FORM OF CONVERSION NOTICE

VIA EMAIL

OpGen, Inc.

708 Quince Orchard Road
Gaithersburg, MD 20878

Attention: Timothy C. Dec

Email: ***@***

Conversion Notice date: [∙]

Please find below a Note holder’s notification with respect to the agreement for the issuance of and subscription to notes convertible into shares with share subscription warrants attached dated October 2, 2018, as amended and assumed by OpGen, Inc. pursuant to the Assignment of the Agreement for the Issuance of and Subscription to Notes Convertibles Into Shares dated February ___, 2020 (the “Agreement”).

All terms written with a capital initial letter shall have the definition ascribed to them in the Agreement.

Sincerely,

[Name of the Note holder]

¹ Trading Days during which the Investor (or the relevant Note holder, as the case may be) has not sold any Share in the market among the ten (10) consecutive Trading Days immediately preceding the date of receipt by OpGen, Inc. of a Conversion Notice.