Delaware (State or other jurisdiction of incorporation or organization)

001-37367 (Commission File Number)

06-1614015 (I.R.S. Employer Identification No.)

OpGen, Inc.
By:		/s/ Timothy C. Dec
		Name:	Timothy C. Dec
		Title:	Chief Financial Officer

Exhibit No.	Document
2.1	Agreement and Plan of Merger, dated as of July 14, 2015, by and among OpGen, Inc., Velox Acquisition Corp, AdvanDx, Inc., Stockholder Parties and Representatives.
10.1	Common Stock and Note Purchase Agreement, dated as of July 14, 2015, by and between OpGen, Inc. and Merck Global Health Innovation Fund, LLC.
10.2	Senior Secured Promissory Note, dated as of July 14, 2015, by and between OpGen, Inc. and Merck Global Health Innovation Fund, LLC.
10.3	Registration Rights Agreement, dated as of July 14, 2015, by and among OpGen, Inc., Merck Global Health Innovation Fund, LLC, SLS Invest AB and LD Pensions.

 

 

Exhibit 2.1

 

AGREEMENT AND PLAN OF MERGER

Dated as of July 14, 2015

among

OPGEN, INC.

VELOX ACQUISITION CORP.

ADVANDX, INC.

THE STOCKHOLDER PARTIES (as defined herein)

and

THE REPRESENTATIVES (as defined herein)

 

---

The Merger Agreement contains representations and warranties by the parties thereto. A party's representations and warranties were made solely for the benefit of the other party or parties and (i) were not intended to be treated as categorical statements of fact, but rather as a way of allocating the risk to the party or parties making the representation and warranty if it proves to be inaccurate; (ii) may have been qualified in the Merger Agreement by disclosures that were made to the other party or parties in connection with the negotiation of the Merger Agreement (provided that any specific facts that contradict the representations and warranties in the Merger Agreement in any material respect have been disclosed); (iii) may apply contract standards of "materiality" that are different from "materiality" under the applicable securities laws; and (iv) were made only as of the date of the Merger Agreement or such other date or dates as may be specified in the Merger Agreement.

 

 

 

 

 

 

---

Table of Contents

 

	ARTICLE I THE MERGER
Section 1.1	The Merger.	1
Section 1.2	Closing.	1
Section 1.3	Effective Time.	2
Section 1.4	Effects of the Merger.	2
Section 1.5	Certificate of Incorporation and Bylaws of the Surviving Corporation.	2
Section 1.6	Directors and Officers of the Surviving Corporation.	2
Section 1.7	Subsequent Actions.	2
Section 1.8	Tax Consequences.	3
	ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK; EXCHANGE OF CERTIFICATES; COMPANY EQUITY AWARDS
Section 2.1	Effect on Capital Stock.	3
Section 2.2	Exchange of Certificates.	5
Section 2.3	Equity Awards.	7
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1	Organization, Standing and Corporate Power.	7
Section 3.2	Capitalization.	8
Section 3.3	Authority; Non-contravention; Voting Requirements.	9
Section 3.4	Governmental Approvals, Filings and Consents.	11
Section 3.5	Financial Statements; Undisclosed Liabilities; Related Matters.	11
Section 3.6	Absence of Certain Changes or Events.	12
Section 3.7	Legal Proceedings	12
Section 3.8	Compliance With Laws; Regulatory Matters.	12
Section 3.9	Warranties and Company Products.	16
Section 3.10	Tax Matters.	16
Section 3.11	Employee Benefits and Labor Matters.	18
Section 3.12	Environmental Matters.	21
Section 3.13	Contracts.	23
Section 3.14	Title to Properties.	24

 

 

 

---

Section 3.15	Intellectual Property.	25
Section 3.16	Insurance.	28
Section 3.17	Customers.	29
Section 3.18	Brokers and Other Advisors.	29
Section 3.19	State Takeover Statutes; No Rights Plan.	29
Section 3.20	Delaware Law Compliance.	30
Section 3.21	No Additional Representations	30
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Section 4.1	Organization, Standing and Corporate Power.	30
Section 4.2	Authority; Noncontravention.	30
Section 4.3	Governmental Approvals, Filings and Consents.	31
Section 4.4	Ownership and Operations of Merger Sub.	31
Section 4.5	Brokers and Other Advisors.	31
Section 4.6	Litigation.	32
Section 4.7	Securities Matters.	33
Section 4.8	No Additional Representations.
	ARTICLE V ADDITIONAL COVENANTS AND AGREEMENTS
Section 5.1	Liabilities of the Company.	33
Section 5.2	Public Announcements.	33
Section 5.3	Access to Information; Confidentiality.	33
Section 5.4	Notification of Certain Matters.	34
Section 5.5	Securityholder Litigation.	34
Section 5.6	Fees and Expenses.	34
Section 5.7	Certain Employee-Related Matters.	34
Section 5.8	Resignations and Related Matters.	35
Section 5.9	Private Placement Transaction.	35
Section 5.10	Registration Rights Agreement.	35
Section 5.11	Tax Matters.	35
Section 5.12	Indemnification and Insurance.	26

 

---

	ARTICLE VI CONDITIONS PRECEDENT
Section 6.1	Conditions to Each Party's Obligation.	37
Section 6.2	Conditions to Obligations of Parent and Merger Sub	37
Section 6.3	Conditions to Obligation of the Company	38
	ARTICLE VII SURVIVAL AND INDEMNIFICATION
Section 7.1	Survival.	39
Section 7.2	Indemnification.	40
Section 7.3	Procedure.	40
Section 7.4	Claims Against the Holdback Amount and Release of Holdback Amount.	41
Section 7.5	Matters Relating to Indemnification.	42
Section 7.6	Representatives.	43
	ARTICLE VIII MISCELLANEOUS
Section 8.1	Amendment or Supplement.	44
Section 8.2	Extension of Time, Waiver.	44
Section 8.3	Assignment.	45
Section 8.4	Counterparts.	45
Section 8.5	Entire Agreement; No Third-Party Beneficiaries.	45
Section 8.6	Governing Law; Jurisdiction.	46
Section 8.7	WAIVER OF JURY TRIAL.	46
Section 8.8	Specific Enforcement.	46
Section 8.9	Notices.	46
Section 8.10	Severability.	47
Section 8.11	Definitions.	48
Section 8.12	Interpretation; Other	53

 

---

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER, dated as of July 14, 2015 (this "Agreement"), is among OpGen, a Delaware corporation ("Parent"), Velox Acquisition Corp., a Delaware corporation and a wholly owned Subsidiary of Parent ("Merger Sub"), AdvanDx, Inc., a Delaware corporation (the "Company"), and for purposes of Article VII only Merck Global Health Innovation Fund, LLC and SLS Invest AB, in their joint capacity as the Representatives of the Stockholder Parties hereunder and each as a Stockholder Party hereunder (individually a "Representative" and together the "Representatives"), and each of the other Persons listed on the signature pages hereto (collectively, the "Stockholder Parties"). Certain terms used in this Agreement are used as defined in Section 8.11.

WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the Company, and the stockholders of the Company, have approved this Agreement and the merger of Merger Sub with and into the Company (the "Merger") upon the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, pursuant to the Merger, shares of the Company's common stock, par value $0.0001 per share ("Company Common Stock") and Company Preferred Stock (as defined herein) shall be, except as otherwise provided herein, converted into the right to receive the applicable portion of the Merger Consideration (as defined herein) in the manner and on the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as follows:

Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the General Corporation Law of the State of Delaware (the "DGCL"), at the Effective Time, Merger Sub shall be merged with and into the Company, and the separate corporate existence of Merger Sub shall thereupon cease, and the Company shall be the surviving corporation in the Merger (the "Surviving Corporation") and shall continue its existence under the DGCL as a wholly-owned Subsidiary of Parent.

The closing of the Merger (the "Closing") shall take place at 10:00 a.m. (Philadelphia, PA time) on a date to be specified by the parties (the "Closing Date"), which date shall be no later than the third business day after satisfaction or waiver of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time), at the offices of Ballard Spahr LLP, 1735 Market Street, 51^st Floor, Philadelphia PA 19103, unless another time, date or place is agreed to in writing by the parties hereto.

 

---

 

Subject to the provisions of this Agreement, as soon as practicable on the Closing Date the parties shall file with the Secretary of State of the State of Delaware a certificate of merger (the "Certificate of Merger") in the form attached as Exhibit A satisfying the applicable requirements of the DGCL and duly executed in accordance with the relevant provisions of the DGCL. The Merger shall become effective upon the filing of the Certificate of Merger or at such later time as is agreed to by the parties hereto and specified in the Certificate of Merger (the time at which the Merger becomes effective is herein referred to as the "Effective Time").

The Merger shall have the effects set forth in applicable provisions of Delaware law and this Agreement. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the properties, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities, obligations and duties of the Company and Merger Sub shall become the debts, liabilities, obligations and duties of the Surviving Corporation.

The directors and officers of Merger Sub immediately prior to the Effective Time, as set forth on Schedule 1.6 attached hereto, shall be the directors and officers of the Surviving Corporation immediately following the Effective Time, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors are duly elected or appointed and qualified or their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation.

If at any time after the Effective Time the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

 

---

 

It is intended by the parties hereto that the Merger shall constitute a taxable transaction for U.S. federal income tax purposes and not a tax-free reorganization under Section 368(a) of the Internal Revenue Code of 1986, as amended , and the rules and regulations promulgated thereunder (the "Code"); provided, however, that no party hereto makes any representation or warranty to any other party that the Merger constitutes a taxable transaction for U.S. federal income tax purposes. Each of the parties hereto agrees to report the Merger for U.S. federal and state income Tax purposes as a taxable transaction except to the extent (i) required pursuant to a "determination" within the meaning of Section 1313(a) of the Code (or any comparable provision of any state, local or foreign law), or (ii) otherwise prohibited by the Code or any other provision of applicable Law.

At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of any shares of Company Common Stock or Company Preferred Stock (collectively, the "Shares") or of any shares of capital stock of Merger Sub:

 

---

 

 

---

 

 

 

---

 

---

 

Except as set forth in the disclosure schedule delivered by the Company to Parent simultaneously with the execution of this Agreement and signed by an authorized officer of the Company solely in his or her capacity as an officer of the Company (the "Company Disclosure Schedule"), with specific reference to the Section or subsection of this Agreement to which the information stated in such disclosure relates (it being agreed that disclosure of any information in a particular section or subsection of the Company Disclosure Schedule corresponding to this Article III shall be deemed to be disclosed with respect to any other section or subsection of this Article III to the extent such disclosure is accompanied by an appropriate cross reference to such other section or subsection or to the extent that it is reasonably apparent from a reading of the text of such disclosure as set forth in the Company Disclosure Schedule (and without reference to the contents of any Contract or document or other materials referenced in such disclosure) that such disclosure also qualifies or applies to such other section or subsection), the Company represents and warrants to Parent and Merger Sub as follows:

 

---

 

 

---

 

 

---

 

 

---

 

 

Except for consents, approvals, filings and/or notices pursuant to or required by the DGCL, including the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no consents or approvals of, or filings, declarations or registrations with, any Governmental Authority are necessary to be obtained or made by the Company or its Subsidiary in connection with the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions, other than such other consents, approvals, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be expected to impair in any material respect the ability of the Company to perform its obligations hereunder, or prevent or materially impede, interfere with, hinder or delay the consummation of the Transactions.

 

---

 

Since the Balance Sheet Date, (a) there has not been any event, circumstance, change, occurrence or effect that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect; (b) the Company and its Subsidiary have operated their respective businesses in all material respects in the ordinary course of business consistent with past practice, except as otherwise permitted or required by this Agreement after the date of this Agreement; and (c) there has not occurred any damage, destruction or loss (whether or not covered by insurance) of any tangible asset of the Company or its Subsidiary which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect.

Except as set forth on Section 3.7 of the Company Disclosure Schedule, there is no pending or, to the Knowledge of the Company, threatened, material legal, administrative, arbitral or other proceeding, claim, suit or action against, or governmental or regulatory investigation of, the Company or its Subsidiary, nor is there any injunction, order, judgment, ruling or decree imposed (or, to the Knowledge of the Company, threatened to be imposed) upon the Company, its Subsidiary or the assets of the Company or its Subsidiary, by or before any Governmental Authority. Except as set forth on Section 3.7 of the Company Disclosure Schedule, neither the Company nor its Subsidiary is currently subject to any settlement agreement or stipulation with respect to any legal, administrative, arbitral or other proceeding, claim, suit or action.

 

---

 

 

---

 

 

---

 

 

---

 

Section 3.9 of the Company Disclosure Schedule sets forth a true and complete list of all outstanding product and service warranties and guarantees with respect to any of the Company Products or services.  There are no (a) outstanding or, to the Knowledge of the Company, threatened, product liability claims that relate to any Company Product, (b) outstanding or, to the Knowledge of the Company, threatened, claims for the breach of any express or implied warranty or similar claims with respect to any Company Product or service of the Company other than pursuant to standard warranty obligations (to replace, repair or refund) incurred in the ordinary course of business which are not, individually or in the aggregate, material in amount or (c) design defects, failures to provide adequate warning, manufacturing deficiencies or systemic or chronic problems that would provide the basis for any product liability suit or similar claim or suit against the Company, or any material liabilities for warranty or other material claims or returns with respect to any Company Product relating to any such defects or problems.

 

---

 

 

---

 

 

---

 

 

---

 

 

---

 

 

---

 

 

---

 

 

---

 

 

---

 

 

---

 

 

---

 

 

 

---

 

Section 3.16 of the Company Disclosure Schedule sets forth a correct and complete list of all insurance policies (including information on the premiums payable in connection therewith and the scope and amount of the coverage provided thereunder) maintained by the Company or its Subsidiary (the "Policies"). Neither the Company nor its Subsidiary is in material breach or default, and neither the Company nor its Subsidiary have taken any action or failed to take any action which, with notice or the lapse of time, would constitute such a breach or default, or permit termination or modification, of any of the Policies. No notice of cancellation or termination has been received by the Company with respect to any of the Policies. The consummation of the Transactions, in and of itself, will not cause the termination, revocation or cancellation of any Policy.

 

---

 

Section 3.17 of the Company Disclosure Schedule sets forth a list of the 10 largest customers of the Company and its Subsidiary, as measured by the dollar amount of purchases therefrom or thereby, during each of the fiscal years ended December 31, 2012, 2013 and 2014, showing the approximate total sales by the Company and its Subsidiary to each such customer during such period. Since the Balance Sheet Date through the date of this Agreement, (i) no customer listed on such schedule has terminated its relationship with the Company or its Subsidiary or materially reduced or changed the pricing or other terms of its business with the Company or its Subsidiary and (ii) to the Knowledge of the Company, no customer on such schedule has notified the Company or its Subsidiary in writing that it intends to terminate or materially reduce or change the pricing or other terms of its business with the Company or its Subsidiary.

Except for BroadOak Partners (the "Financial Advisor"), the fees and expenses of which will be paid by the Company, no broker, investment banker, financial advisor or other Person is entitled to any broker's, finder's, financial advisor's or other similar fee or commission, or the reimbursement of expenses, in connection with the Transactions based upon arrangements made by or on behalf of the Company or its Subsidiary. The Company has heretofore delivered to Parent a correct and complete copy of the Company's engagement letter with the Financial Advisor, which letter describes all fees payable to the Financial Advisor in connection with the Transactions, all agreements under which any such fees or any expenses are payable and all indemnification and other agreements related to the engagement of the Financial Advisor (the "Engagement Letter").

No "fair price," "moratorium," "control share acquisition" or other similar antitakeover statute or regulation enacted under state or federal Laws in the United States applicable to the Company is applicable to the Transactions. The Company is not a party to any rights agreement, rights plan, "poison pill" or similar agreement or plan (collectively, "Rights Plan") providing for the issuance of any preferred or common stock purchase rights, nor has the Company issued to its stockholders any preferred or common stock purchase rights pursuant to any such Rights Plan or otherwise.

 

---

 

Since January 1, 2013, the Company has conducted all financings, and has conducted the transactions contemplated by this Agreement, in accordance with the DGCL, except where  the failure to do so would not have reasonably been expected to have a Company Material Adverse Effect. 

Except for the representations and warranties made by the Company contained in this Agreement (including in Article III and the related portions of the Company Disclosure Schedule), the Company has not made and makes no other express or implied representation or warranty, either written or oral, on behalf of the Company or Company Subsidiary or in connection with this Agreement or the Transactions.

Parent and Merger Sub jointly and severally represent and warrant to the Company as follows:

Each of Parent and Merger Sub is a corporation duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated.

 

---

 

Except for consents, approvals, filings and/or notices pursuant to or required by (a) the SEC, including any filings required under, and compliance with the applicable requirements of, the Exchange Act and the rules and regulations promulgated thereunder, (b) the rules and regulations of the NASDAQ, and (c) the DGCL, including the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no consents or approvals of, or filings, declarations or registrations with, any Governmental Authority are necessary to be obtained or made by Parent or Merger Sub in connection with the execution and delivery of this Agreement by Parent and Merger Sub or the consummation by Parent and Merger Sub of the Transactions, other than such other consents, approvals, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

Parent owns beneficially and of record all of the outstanding capital stock of Merger Sub. Merger Sub was formed solely for the purpose of engaging in the Transactions, has engaged in no other business activities and has conducted its operations only as contemplated hereby.

No broker, investment banker, financial advisor or other Person is entitled to any broker's, finder's, financial advisor's or other similar fee or commission in connection with the Transactions based upon arrangements made by or on behalf of Parent, Merger Sub or its Subsidiary, except for any such fees or commissions or expenses which will be paid by Parent.

As of the date of this Agreement, there are no actions, suits, proceedings or claims pending or, to the knowledge of Parent or Merger Sub, threatened in writing against Parent and/or Merger Sub or any of their respective Affiliates with respect to this Agreement and the Transactions.

 

---

 

 

---

 

Except for the representations and warranties made by Parent or Merger Sub contained in this Agreement (including Article IV), Parent and Merger Sub have not made and make no other express or implied representation or warranty, either written or oral, on behalf of Parent or Merger Sub or in connection with this Agreement or the Transactions.

In connection with the consummation of the transactions contemplated by this Agreement, at the Effective Time, the Company and the Parent shall have agreed upon the method of payment of the liabilities set forth on Schedule 5.1, and each of such liabilities shall have been paid by either the Company or the Parent, as mutually agreed upon.

The initial press release with respect to the execution of this Agreement shall be a joint press release to be reasonably agreed upon by Parent and the Company. Thereafter, neither the Company nor Parent shall issue or cause the publication of any press release or other public announcement (to the extent not previously issued or made in accordance with this Agreement) with respect to the Merger, this Agreement or the other Transactions without the prior consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed), except (a) as such release or announcement may be required by Law or the rules or regulations of any securities exchange, as determined by the Company or Parent, as applicable, in their reasonable discretion, in which case the party required to make the release or announcement shall use its reasonable efforts to allow the other parties reasonable time to comment on such release or announcement in advance of such issuance, or (b) as otherwise contemplated by this Agreement.

 

---

 

The Company has notified Parent of (i) any notice or other communication received by the Company from any Governmental Authority in connection with the Transactions or from any Person alleging that the consent of such Person is or may be required in connection with the Transactions, if the subject matter of such communication or the failure of such party to obtain such consent could be material to the Company, the Surviving Corporation or Parent, (ii) any actions, suits, claims, investigations or proceedings commenced or, to the Knowledge of the Company, threatened in writing against, relating to or involving or otherwise affecting the Company or its Subsidiary, (iii) the discovery of any fact or circumstance that, or the occurrence or non-occurrence of any event that, would cause any representation or warranty made by the Company contained in this Agreement to be untrue in any material respect, and (iv) any material failure of the Company to comply with or satisfy any covenant or agreement contemplated pursuant to this Agreement; provided, however, that the delivery of any notice pursuant to this Section 5.4 shall not (x) cure any breach of, or non-compliance with, any other provision of this Agreement or (y) limit the remedies available to the party receiving such notice. Notwithstanding the foregoing, the failure to comply with this Section 5.4 will not constitute the failure of any condition set forth in Article VI to be satisfied unless the underlying event would independently result in the failure of any such condition to be so satisfied.

Following the Effective Date, the Stockholders and the former officers and directors of the Company shall give Parent the opportunity to participate in (but not control) the defense or settlement of any securityholder litigation against the Company and/or its officers or directors relating to the Transactions, subject to a customary joint defense agreement, and no such settlement shall be agreed to without Parent's prior written consent, not to be unreasonably withheld, conditioned or delayed.

All fees and expenses incurred in connection with this Agreement, the Merger and the Transactions shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated.

 

---

 

The Company has delivered to Parent at the Closing evidence reasonably satisfactory to Parent of (i) the resignations of all directors of the Company and of the resignations from office with the Company of those officers of the Company specified by Parent reasonably in advance of the Closing and, in each case, effective at the Effective Time, and (ii) the taking of all such actions (including the adoption of any necessary resolutions by the Company Board of Directors) as may be necessary to effect as of the Effective Time the actions (including the officer and director appointments) set forth in Sections 1.5 and 1.6. The Company and Parent agree that any such resignation as an officer or director does not terminate any employment relationship of such individual with the Company, and shall be without prejudice to any rights that such director or officer may have under any existing employment, severance or other similar agreement with the Company or under applicable Law.

The issuance of the Aggregate Merger Consideration to the stockholders of the Company shall be conducted as a private placement of securities under Regulation D, Rule 506 promulgated under the Securities Act.  The stockholders of the Company will cooperate with the reasonable requests for information regarding their accredited investor status and other investor-related determinations conducted by Parent.

Parent shall enter into a Registration Rights Agreement, in the form of Exhibit C to this Agreement (the "Registration Rights Agreement") with the stockholders of the Company as of the Effective Time.

 

---

 

 

---

 

The obligations of Parent, Merger Sub and the Company to effect the Merger shall be subject to the satisfaction or waiver in writing, on or prior to the Closing Date, of the following conditions:

 

 

---

 

---

 

 

---

 

If within forty-five (45) days from the date of delivery of a Notice of Claim by an Indemnified Party to the Representative, the Representative shall not have notified the Parent that there is or may be a dispute relating in any way to such Notice of Claim or the matters set forth therein, or both, then the Parent shall deduct the amount set forth in such Notice of Claim from (but only to the extent of) the Available Holdback Amount after the expiration of such 20-day period and shall give notice of such deduction to the Representative.

If within twenty (20) days from the date of delivery of a Notice of Claim by an Indemnified Party to the Representative, the Representative shall have notified the Parent that there is or may be a dispute relating in any way to such Notice of Claim or the matters set forth therein, or both (a "Notice of Disputed Claim"), then the Parent shall deduct from (but only to the extent of) the Available Holdback Amount only to the extent of the undisputed amount, pending the resolution of such dispute in accordance with the provisions of this Section 7.3.  The amount in dispute as set forth in such Notice of Disputed Claim shall, after such Notice of Disputed Claim has been given, remain in and part of the Available Holdback Amount until such time as either (x) the Representative and the Parent such dispute in writing, or (y) a copy of an order or determination from a court of competent jurisdiction setting forth the resolution of such dispute.  Upon such mutual agreement or receipt of such order or determination, the Parent shall promptly deduct from (but only to the extent of) the Available Holdback Amount the amount set forth therein and shall give prompt notice of such deduction to the Representative.

 

---

 

 

---

 

 

---

 

By the execution of this Agreement, each Stockholder Party hereby irrevocably constitutes and appoints each Representative as the true and lawful agent and attorney‑in‑fact of such Stockholder Party with full powers of substitution (and, if substituted, the Representatives will promptly notify Parent of such substitution) to act in the name, place and stead of such Stockholder Party with respect to this Agreement or the Ancillary Documents to which the Representatives are parties, as the same may be from time to time amended, and with respect to the indemnification hereunder and the other transactions contemplated by this Article VII, and to do or refrain from doing all such acts and things, and to execute all such documents, as the Representatives shall deem necessary or appropriate in connection with this Agreement, the Ancillary Documents to which the Representatives are a party or any of the transactions contemplated hereby or thereby.

 

---

 

The Representatives are hereby authorized to take all actions on behalf of the Stockholder Parties in connection with any actions taken or to be taken under this Article VII (including accepting service of process upon such Stockholder Parties and accepting or compromising any claim for indemnification).  The Stockholder Representatives will take only such actions, or omit to take any action, which may be taken by the Stockholder Representatives, by mutual agreement.  All decisions and actions of the Representatives shall be final, binding and conclusive on the Stockholder Parties and may be relied upon by Parent and its Affiliates as the decisions and actions of the Stockholder Parties.  The Representatives shall not be liable to any of the Stockholder Parties for any act done or omitted by the Representatives in good faith pursuant to this Agreement or any of the Ancillary Documents to which the Representatives are a party or any mistake of fact or Law unless caused by its own willful misconduct in the performance of such Representative's duties under this Agreement.

Each Stockholder Party hereby irrevocably relinquishes such Stockholder Party's right to act independently and other than through the Representatives.  The Representatives each hereby acknowledges and accepts the foregoing authorization and appointment and agrees to serve as Representative of the Stockholder Parties in accordance with the terms of this Article VII.

Notices or communications to or from the Representative shall constitute notice to or from each of Stockholder Parties.  Each Representative organized as an entity shall designate in writing a single natural person authorized to act on behalf of the entity in its capacity as Representative, such writing to be delivered to Parent pursuant to the notice provisions of this Agreement.

Each Representative may resign at any time upon not less than thirty (30) days' notice to Parent and the Stockholder Parties.  A replacement Representative shall be selected by the Stockholder Parties from among the Stockholder Parties; provided, however, that if one Representative resigns but the other is willing to continue service, no replacement Representative for the resigning Representative need be named.

At any time prior to the Effective Time, this Agreement may be amended or supplemented in any and all respects, whether before or after receipt of the Company Stockholder Approval, by written agreement of the parties hereto, by action taken by their respective Boards of Directors; provided, however, that following the adoption of this Agreement by the stockholders of the Company, there shall be no amendment or change to the provisions hereof which by Law would require further approval by the stockholders of the Company without such approval.

At any time prior to the Effective Time, any party may, subject to applicable Law, (a) waive any inaccuracies in the representations and warranties of any other party hereto, (b) extend the time for the performance of any of the obligations or acts of any other party hereto or (c) waive compliance by the other party with any of the agreements contained herein or, except as otherwise provided herein, waive any of such party's conditions. Notwithstanding the foregoing, no failure or delay by the Company, Parent or Merger Sub in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party hereto, constitutes a waiver by the party taking such action of compliance with any provision of this Agreement. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. The waiver by any party hereto of any provision of this Agreement is effective only in the instance and only for the purpose that it is given and does not operate and is not to be construed as a further or continuing waiver of such provision or as a waiver of any other provision.

 

---

 

Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, by any of the parties without the prior written consent of the other parties, except that Merger Sub may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to Parent or to any wholly owned Subsidiary of Parent, but no such assignment shall relieve Parent or Merger Sub of any of its obligations hereunder. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns. Any purported assignment not permitted under this Section shall be null and void.

This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in "pdf" form) in any number of counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. Delivery of an executed counterpart signature page is as effective as executing and delivering this Agreement in the presence of the other parties to this Agreement.

Neither this Agreement nor any of the terms or provisions hereof are binding upon or enforceable against any party hereto unless and until the same is executed by all of the parties hereto. This Agreement, the Company Disclosure Schedule and the Confidentiality Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof and (b) are not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder.

 

---

 

EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Chancery Court of the State of Delaware (or if such court lacks jurisdiction any federal court sitting in the State of Delaware), without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity.

All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered personally, by facsimile (which is confirmed by an acknowledgement or transmission report generated by the machine from which the facsimile was sent indicating that the facsimile was sent in its entirety to the addressee's facsimile number), or sent by overnight courier (providing proof of delivery) to the parties at the following addresses:

 

---

 

If to Parent or Merger Sub, to:

OpGen, Inc.

708 Quince Orchard Road

Gaithersburg, MD 20878

Attention: Chief Financial Officer

Facsimile: (301) 869-9684

with a copy (which shall not constitute notice) to:

Ballard Spahr LLP

1735 Market Street, 51^st Floor

Philadelphia, PA 19103

Attention: Mary J Mullany

Facsimile: (215) 864-8999

If to the Company, to:

AdvanDx, Inc.

400 Trade Center, Suite 6990

Waltham, MA 01801

Attention:  President

Facsimile: (781) 376-0111

with a copy (which shall not constitute notice) to:

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

One Financial Center

Boston, MA 02111

Attention: Jonathan L. Kravetz

Facsimile: (617) 542-2241

or such other address or facsimile number as such party may hereafter specify by like notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt. In the event that an addressee of a notice or communication rejects or otherwise refuses to accept a notice or other communication delivered or sent in accordance with this Section 8.9, or if the notice or other communication cannot be delivered because of a change in address for which no notice was given, then such notice or other communication is deemed to have been received upon such rejection, refusal or inability to deliver.

If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the Transactions are fulfilled to the extent possible.

 

---

 

As used in this Agreement, the following terms have the meanings ascribed thereto below:

"Affiliate" means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. For this purpose, "control" (including, with its correlative meanings, "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.

"Aggregate Merger Consideration" means $3,000,003.60, payable in shares of Parent's Common Stock at a price of $4.40 per share issuable to the stockholders of the Company immediately prior to the Effective Time as applicable Merger Consideration based on their respective liquidation preferences in accordance with Schedule 2.1(c).

"Ancillary Document" means each other instrument executed or to be executed in connection with this Agreement.

"Appraised Value" means the per-share value of any Dissenting Shares determined pursuant to a judicial appraisal process.

"Available Holdback Amount" means the Holdback Amount less (i) any Holdback Release Payment and (ii) any deductions from the Holdback Amount in accordance with this Agreement, as of any determination date hereunder.

beneficial ownership" (and its correlative terms) have the meanings assigned to such terms in Rule 13d-3 under the Exchange Act.

"business day" has the meaning assigned to such term in Rule 14d-1(g)(3) under the Exchange Act.

"Company Material Adverse Effect" means any event, circumstance, change, occurrence or effect that (i) is materially adverse to, or has a material adverse effect on, the business, properties, financial condition or results of operations of the Company and its Subsidiary taken as a whole; or (ii) prevents or materially adversely affects the Company's ability to perform its obligations under this Agreement or to consummate the Transactions, excluding any such event, circumstance, change, occurrence or effect arising out of, resulting from or attributable to: (A) acts of war or major armed hostilities, sabotage, or terrorism or any escalation or worsening of any acts of war, major armed hostilities, sabotage or terrorism; (B) compliance with the terms of, or the taking of any action required by, this Agreement; (C) changes in Laws (other than changes that have a disproportionate adverse impact on the Company and its Subsidiary taken as a whole compared to other businesses competing in the industries in which the Company does business) or GAAP; (D) the announcement of the Transactions or the taking of any action pursuant to this Agreement or otherwise with the written consent of Parent, including the impact thereof on the relationships of the Company with customers, suppliers, distributors, consultants, employees or independent contractors or any other Person with whom the Company has any relationship; (E) changes generally affecting the industries in which the Company and its Subsidiary operate (other than changes that have a disproportionate adverse impact on the Company and its Subsidiary taken as a whole compared to other businesses competing in the industries in which the Company does business); (F) any change generally affecting the economy, financial or securities markets or political or economic conditions, or regulatory conditions (other than changes in regulatory conditions that have a disproportionate adverse impact on the Company and its Subsidiary taken as a whole compared to other businesses competing in the industries in which the Company does business) in any geographic region in which the Company conducts business (it being understood that the circumstances underlying such change may be deemed to constitute, or may be taken into account in determining whether there has been, a Company Material Adverse Effect) and (G) any failure, in and of itself, by the Company to meet any internal forecasts, or predictions of revenue, earnings or other financial measure (it being understood that the circumstances underlying such failure may be deemed to constitute, or may be taken into account in determining whether there has been, a Company Material Adverse Effect).

 

---

 

"Company Board of Directors" means the Company's Board of Directors.

"Company Facilities" means any properties or facilities used, leased or occupied by the Company or its Subsidiary.

"Company Preferred Stock" means the Series A Preferred Stock, Series A-1 Preferred Stock and Series B-1 Preferred Stock of the Company.

"Company Product" means any product or service manufactured, marketed, distributed, licensed for commercial use or sale, or sold at any time by the Company or its Subsidiary.

"Company Stock Plans" means the Company's Non-Qualified Stock Option Plan and under the Company's 2012 Employee, Director and Consultant Equity Incentive Plan and any other employee benefit plan of the Company or its Subsidiary that provides for any equity award to directors, officers, consultants, agents or other participants thereunder.

"Contract" means any loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, license, lease, distribution agreement, supply agreement, marketing or sales agreement, contract or other agreement, instrument or obligation.

"Current Company Business" means the business of the Company and its Subsidiary as currently conducted as of the date of this Agreement.

"Fundamental Representations" means the representations and warranties of the Company set forth in Sections 3.1 (Corporate Organization), 3.2 (Capitalization), 3.3 (Authority) 3.10 (Tax Matters) and 3.19 (Financial Advisors and Brokers).

"GAAP" means generally accepted accounting principles in the United States.

 

---

 

"Governmental Authority" means any government, court, arbitrator, regulatory or administrative agency, international institution, commission or authority or other governmental instrumentality, whether federal, state, national, or local, domestic, foreign or multinational, and whether executive, legislative or judicial, of competent jurisdiction.

"HIPAA" means the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder.

"Holdback Amount" means $600,000.00; provided, however, that as long as there are no pending or closed claims for indemnification with an actual or estimated value that exceeds $300,000.00 for which any Parent Indemnified Party is seeking or has received indemnification, the Holdback Amount shall be and mean $300,000.00 as of and after the first anniversary of the Closing Date.

"Holdback Release Payment" means any portion of the Holdback Amount released to the Paying Agent pursuant to the terms of this Agreement.

"Information Privacy and Security Laws" mean all Laws that apply to the Company concerning the privacy and/or security of information pertaining to an individual, including, where applicable, HIPAA, state data breach notification Laws, state social security number protection Laws, the European Union Directive 95/46/EC, the Federal Trade Commission Act, Canada's Personal Information Protection and Electronic Documents Act, the Gramm Leach Bliley Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Transactions Act, and state consumer protection Laws.

"Knowledge of the Company" means the actual knowledge of Donald B. Hawthorne, Andrew Levitch, Geoffrey A. McKinley, Jeff A. Moyer, Emmanuelle Pierre-Victor, Emad Lababidi, Martin Fuchs and Dale Shelton.

"Laws" means any foreign, national, European Union, federal, state, and local statutes, common law, ordinances, rules, regulations, resolutions, orders, determinations, writs, injunctions, awards (including, without limitation, awards of any arbitrator), judgments and decrees applicable to the specified Persons or entities.

"Liens" means liens, pledges, charges, mortgages, encumbrances, adverse rights or claims and security interests of any kind or nature whatsoever (including any restriction on the right to vote or transfer the same, except for such transfer restrictions of general applicability as may be provided under the Securities Act and the "blue sky" Laws of the various States of the United States).

"Litigation" means claims, suits, actions, litigations, causes of action, arbitrations, charges, formal hearings or proceedings, including any administrative hearings or investigations.

"Losses" means losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers; provided, however, that "Losses" shall not include incidental or consequential damages or punitive damages, except in the case of fraud or to the extent actually awarded to a Governmental Authority or other third party.

 

---

 

"Merger Consideration" or "applicable Merger Consideration," as the context requires, refers to the amount of the Aggregate Merger Consideration received by a holder of Merger Shares at the Effective Time, based on the liquidation preference as set forth on Schedule 2.1(c).

"NASDAQ" means The NASDAQ Stock Market LLC.

"Non-Consenting Shares" means the Company Shares that are issued and outstanding immediately prior to the Effective Time and that are held by a Person who shall not have voted in favor of the Merger or consented thereto in writing.

"Option" means any option to acquire shares of Company Common Stock issued under any Company Stock Plan (or any predecessor plan providing for the issuance of options to any service provider of the Company or its Subsidiary).

"Person" means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity, including a Governmental Authority.

"Personal Information" means the information pertaining to an individual that is regulated or protected by one or more of the Information Privacy and Security Laws.

"SEC" means the United States Securities and Exchange Commission.

"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

"Subsidiary" when used with respect to any Person, means any corporation, limited liability company, partnership, association, trust or other entity the accounts of which would be consolidated with those of such Person in such Person's consolidated financial statements if such financial statements were prepared in accordance with GAAP, as well as any other corporation, limited liability company, partnership, association, trust or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power (or, in the case of a partnership, more than 50% of the general partnership interests) are, as of such date, owned by such Person or one or more Subsidiary of such Person or by such Person and one or more Subsidiary of such Person.

"Transactions" means each of the transactions contemplated by this Agreement, including the Merger.

"Warrants" means the outstanding Warrants to acquire Company Common Stock or Company Preferred Stock set forth on Schedule 2.3(b).

 

---

 

The following terms are defined in the section of this Agreement set forth after such term below:

2012 Plan	Section 2.3(a)
Agreement	Recitals
Balance Sheet Date	Section 3.5(i)
Bankruptcy and Equity Exception	Section 3.3(a)
Cap	Section 5.12(a)
Certificate of Merger	Section 1.3
Certificates	Section 2.2(b)
CLIA	Section 3.8(a)
Closing	Section 1.2
Closing Date	Section 1.2
Code	Section 1.8
Company	Recitals
Company 401(k) Plan	Section 5.7(d)
Company Balance Sheet	Section 3.5(i)
Company Board Recommendation	Section 3.3(b)
Company Charter Documents	Section 3.1(c)
Company Common Stock	Recitals
Company Disclosure Schedule	Article III
Company Financial Statements	Section 3.5(a)
Company Intellectual Property	Section 3.15(a)(i)
Company Licenses	Section 3.8(a)
Company Plans	Section 3.11(a)
Company Stockholder Approval	Section 3.3(d)
Confidentiality Agreement	Section 5.3(b)
Continuing Employee	Section 5.7(c)
Copyrights	Section 3.15(a)(ii)
DGCL	Section 1.1
Dissenting Shares	Section 2.1(e)
Dissenting Stockholders	Section 2.1(e)
Effective Time	Section 1.3
Engagement Letter	Section 3.19
Environmental Claims	Section 3.12(i)(i)
Environmental Damages	Section 3.12(i)(ii)
Environmental Laws	Section 3.12(i)(iii)
Environmental Permits	Section 3.12(i)(iv)
ERISA	Section 3.11(a)
ERISA Affiliate	Section 5.7(c)
Exchange Act	Section 4.7(a)
Evaluation Date	Section 4.7(d)
FDA	Section 3.8(f)
FDCA	Section 3.8(c)
Final Holdback Release Date	Section 7.4(b)
Financial Advisor	Section 3.18
First Holdback Release Date	Section 7.4(b)
Hazardous Materials	Section 3.12(i)(v)
Indemnified Party	Section 7.3(a)
Indemnifying Party	Section 7.3(a)
Intellectual Property Rights	Section 3.15(a)(ii)
IRS	Section 3.10(o)
Leased Real Property	Section 3.14(b)
License Agreements	Section 3.15(c)

 

 

---

 

Marks	Section 3.15(a)(ii)
Material Contract(s)	Section 3.13(a)(xiii)
Materiality Qualifier	Section 6.2(a)(i)
Merger	Recitals
Merger Shares	Section 2.1(c)
Merger Sub	Recitals
Multiemployer Plan	Section 3.11(a)
Notice of Claim	Section 7.3(a)
Notice of Disputed Claim	Section 7.3(a)
Other Company Plan	Section 5.7(e)
Owned Real Property	Section 3.14(a)
Parent	Recitals
Parent Benefit Plans	Section 5.7(c)
Parent Indemnified Party	Section 7.2(a)
Parent Material Adverse Effect	Section 4.2(b)
Patents	Section 3.15(a)(ii)
Paying Agent	Section 2.2(a)
Paying Agent Agreement	Section 2.2(a)
Payment Program	Section 3.8(h)
Plan Termination Date	Section 5.7(d)
Policies	Section 3.16
Pre-Closing Taxes	Section 5.11(a)
Preferred Stock	Section 3.2(a)
Real Property Lease	Section 3.14(b)
Release	Section 3.12(i)(vi)
Registration Rights Agreement	Section 5.10
Remediation	Section 3.12(i)(vii)
Representative	Recitals
Restated Certificate	Section 2.1(c)
Rights Plan	Section 3.20
SEC Documents	Section 4.7(a)
Share(s)	Section 2.1
Software	Section 3.15(a)(iii)
Straddle Period	Section 5.11(c)
Stockholder Parties	Recitals
Stockholder Party Basket Exceptions	Section 7.5(c)
Subsidiary Organizational Documents	Section 3.1(c)
Surviving Corporation	Section 1.1
Tax Contest	Section 5.11(c)
Tax Returns	Section 3.10(r)
Taxes	Section 3.10(r)
Trade Secrets	Section 3.15(a)(ii)
Uncertificated Shares	Section 2.2(b)
WARN	Section 3.11(k)

 

---

 

[signature page follows]

 

 

---

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the date first above written.

 

	OPGEN, INC.
	By:  /s/ Timothy C. Dec
	Name:Timothy C. Dec
	Title:CFO
	VELOX ACQUISITION CORP.
	By:  /s/ Timothy C. Dec
	Name:Timothy C. Dec
	Title:CFO
	ADVANDX, INC.
	By:  /s/ Donald B. Hawthorne
	Name:Donald B. Hawthorne
	Title:Chief Executive Officer
	FOR PURPOSES OF ARTICLE VII ONLY:   REPRESENTATIVES:
	MERCK GLOBAL HEALTH INNOVATION FUND, LLC
	By:  /s/ William J. Taranto
	Name:William J. Taranto
	Title:President
	SLS INVEST AB
	By:  /s/ Hans Andreasson
	Name:Hans Andreasson
	Title:Investment Director

	STOCKHOLDER PARTIES: MERCK GLOBAL HEALTH INNOVATION FUND, LLC
	By:  /s/ William J. Taranto
	Name:William J. Taranto
	Title:President
	SLS INVEST AB
	By:  /s/ Hans Andreasson
	Name:Hans Andreasson
	Title:Investment Director
	LD PENSIONS
	By:  /s/ Lars Wallberg
	Name:Lars Wallberg
	Title:Finansdirektor/CFO
	By:  /s/ Karin Korneliussen
	Name:Karin Korneliussen
	Title:Controller
	MARTIN FUCHS
	By:  /s/ Martin Fuchs

 

 

Exhibit 10.1

 

 

 

 

 

 

 

 

 

20

Exhibit 10.2

 

 

 

 

 

 

Exhibit 10.3