As filed with the Securities and Exchange
Commission on October 25, 2019
Registration No. 333-233775
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
___________________
OPGEN, INC.
(Exact name of registrant as specified in its charter)
|
Delaware
(State or other jurisdiction of incorporation
or organization) |
8071
(Primary Standard Industrial
Classification Code Number) |
06-1614015
(I.R.S. Employer
Identification Number) |
708 Quince Orchard Road, Suite 205
Gaithersburg, MD 20878
(240) 813-1260
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
___________________
Evan Jones
Chief Executive Officer
708 Quince Orchard Road
Gaithersburg, MD 20878
(301) 869-9683
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
___________________
Copies to:
|
Mary J. Mullany, Esq.
Ballard Spahr LLP
1735 Market Street
51st Floor
Philadelphia, PA 19103
(215) 665-8500 |
Rick A. Werner, Esq.
Matthew L. Fry, Esq.
Haynes and Boone, LLP
30 Rockefeller Plaza, 26th Floor
New York, New York 10112
(212) 659-7300 |
___________________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement.
If any of the securities being
registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box. [X]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. [_]
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. [_]
If this Form is a post-effective
amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. [X] (File
No. 333-233775)
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company”
in Rule 12b-2 of the Exchange Act.
| Large Accelerated Filer [_] |
Accelerated Filer [_] |
| Non-Accelerated Filer [X] |
Smaller Reporting Company [X] |
| |
Emerging Growth Company [X] |
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided
to Section 7(a)(2)(B) of the Securities Act. [_]
___________________
This post-effective amendment shall become effective upon
filing with the Securities and Exchange Commission in accordance with Rule 462(d) under the Securities Act of 1933, as amended.
EXPLANATORY NOTE
This Post-Effective
Amendment No. 1 (this “Amendment”) relates to the Registrant’s Registration Statement on Form S-1 (File No. 333-233775),
as amended, declared effective on October 23, 2019 by the Securities and Exchange Commission. The Registrant is filing this Amendment
for the sole purpose of replacing Exhibit 5.1 to the Registration Statement. This Amendment does not modify any provision of Part
I or Part II of the Registration Statement other than Item 16(a) of Part II as set forth below.
PART II
Information Not Required in Prospectus
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits:
EXHIBIT INDEX
Exhibit
Number |
|
Description |
| |
|
|
| 1.1 |
|
Form of Underwriting Agreement (incorporated by reference
to Exhibit 1.1 to the Registrant’s Registration Statement on Form S-1, Amendment No. 1, File No. 333-233775, filed on
October 15, 2019) |
| |
|
|
| 2.1 |
|
Implementation
Agreement, dated as of September 4, 2019, by and among Curetis N.V., as Seller, and Crystal GmbH, as Purchaser and OpGen,
Inc. (incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K, filed on September 4,
2019) ^ |
| |
|
|
| 3.1 |
|
Amended
and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of the Registrant’s
Current Report on Form 8-K, File No. 001-37367, filed on May 13, 2015) ^ |
| |
|
|
| 3.2 |
|
Certificate
of Correction to Amended and Restated Certificate of Incorporation of the Registrant, dated June 6, 2016 (incorporated by
reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K, filed on June 6, 2016) ^ |
| |
|
|
| 3.3 |
|
Certificate
of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant dated and filed with the Delaware
Secretary of State on January 17, 2018 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report
on Form 8-K filed on January 17, 2018) ^ |
| |
|
|
| 3.4 |
|
Certificate
of Amendment to the Amended and Restated Certificate of Incorporation, as amended, of the Registrant dated and filed with
the Delaware Secretary of State on August 28, 2019 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current
Report on Form 8-K filed on August 28, 2019) ^ |
| |
|
|
| 3.5 |
|
Amended
and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Form S-1, File No.
333-202478, filed on March 3, 2015) |
| |
|
|
| 4.1 |
|
Form
of Common Stock Certificate of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Annual Report
on Form 10-K for the year ended December 31, 2018, filed on February 27, 2019) ^ |
| |
|
|
| 4.2 |
|
Form
of Offered Warrant to Purchase Common Stock (IPO Warrant) (incorporated by reference to Exhibit 4.8 of the Registrant’s
Form S-1/A, File No. 333-202478, filed on March 20, 2015) |
| |
|
|
| 4.3 |
|
Form
of Warrant to Purchase Common Stock (issued to jVen Capital, LLC and Merck Global Health Innovation Fund) (incorporated by
reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K Amendment No. 2, filed on July 10, 2017) ^ |
| |
|
|
| 4.4 |
|
Form
of Common Stock Purchase Warrant for February 2018 Public Offering (incorporated by reference to Exhibit 4.3 to the Registrant’s
Form S-1/A, File No. 333-222140, filed on January 31, 2018) |
| |
|
|
| 4.5 |
|
Form
of Pre-Funded Common Stock Purchase Warrant for February 2018 Public Offering (incorporated by reference to Exhibit 4.4 to
the Registrant’s Form S-1/A, File No. 333-222140, filed on January 31, 2018) |
| |
|
|
| 4.6 |
|
Form
of Placement Agent Warrant for February 2018 Public Offering (incorporated by reference to Exhibit 4.5 to the Registrant’s
Form S-1/A, File No. 333-222140, filed on January 31, 2018) |
| |
|
|
| 4.7 |
|
Form
of Common Stock Purchase Warrant for July 2017 Public Offering (incorporated by reference to Exhibit 4.4 to the Registrant’s
Form S-1, Amendment No. 2, File No. 333-218392, filed on July 11, 2017) |
| |
|
|
| 4.8 |
|
Form
of Placement Agent Warrant for July 2017 Public Offering (incorporated by reference to Exhibit 4.5 to the Registrant’s
Form S-1, File No. 333-218392, filed on July 11, 2017) |
| |
|
|
| 4.9 |
|
Form of Pre-funded Warrant (incorporated by reference to
Exhibit 4.9 to the Registrant's Registration Statement on Form S-1, Amendment No. 1, File No. 333-233775, filed on October
15, 2019) |
| |
|
|
| 4.10 |
|
Form of Underwriter’s Warrant (incorporated by reference
to Exhibit 4.10 to the Registrant’s Registration Statement on Form S-1, Amendment No. 1, File No. 333-233775, filed
on October 15, 2019) |
| |
|
|
| 4.11 |
|
Form of Common Stock Purchase Warrant (incorporated by reference
to Exhibit 4.11 to the Registrant’s Registration Statement on Form S-1, Amendment No. 1, File No. 333-233775, filed
on October 15, 2019) |
| |
|
|
| 5.1* |
|
Opinion of Ballard Spahr LLP |
| |
|
|
| 10.1 |
|
Lease
Agreement, dated as of June 30, 2008, between the Registrant and ARE-708 Quince Orchard, LLC (the “Landlord”)
(incorporated by reference to Exhibit 10.1 of Form S-1/A, file No. 333-202478, filed March 3, 2015) |
| |
|
|
| 10.1.1 |
|
First
Amendment to Lease, dated as of April 4, 2011, between the Registrant and the Landlord (incorporated by reference to Exhibit
10.1.1 of Form S-1, File No. 333-202478, filed March 3, 2015) |
| |
|
|
| 10.1.2 |
|
Second
Amendment to Lease Agreement, dated as of August 15, 2012, between the Registrant and the Landlord (incorporated by reference
to Exhibit 10.1.2 of Form S-1, File No. 333-202478, filed March 3, 2015) |
| |
|
|
| 10.1.3 |
|
Third
Amendment to Lease, dated as of December 30, 2013, between the Registrant and the Landlord (incorporated by reference to Exhibit
10.1.3 of Form S-1, File No. 333-202478, filed March 3, 2015) |
| |
|
|
| 10.1.4 |
|
Fourth
Amendment to Lease Agreement, dated as of March 21, 2014, between the Registrant and the Landlord (incorporated by reference
to Exhibit 10.4 of Form S-1, File No. 333-202478, filed March 3, 2015) |
| |
|
|
| 10.1.5 |
|
Fifth
Amendment to Lease Agreement, dated as of March 20, 2015, between the Registrant and the Landlord (incorporated by reference
to Exhibit 10.1.5 of Form S-1, Amendment No. 1, File No. 333-202478, filed on March 20, 2015) |
| |
|
|
| 10.1.6 |
|
Sixth
Amendment to Lease Agreement (and Amendment to Reimbursement Agreement), dated as of April 30, 2015, between the Registrant
and the Landlord (incorporated by reference to Exhibit 10.1.6 of Form S-1, Amendment No. 8, File No. 333-202478, filed on
May 1, 2015) |
| |
|
|
| 10.1.7 |
|
Seventh
Amendment to Lease Agreement, dated as of June 30, 2015, between the Registrant and the Landlord (incorporated by reference
to Exhibit 10.1 of Current Report on Form 8-K, filed on July 7, 2015) ^ |
| |
|
|
| 10.1.8 |
|
Eighth
Amendment to Lease Agreement, dated September 8, 2015, between the Registrant and the Landlord (incorporated by reference
to Exhibit 10.6 of Quarterly Report on Form 10-Q, filed on November 13, 2015) ^ |
| |
|
|
| 10.2 |
|
Lease
Extension #6, dated October 14, 2016, by and between the Registrant and Cummings Properties, LLC (related to AdvanDx facility)
(incorporated by reference to Exhibit 10.2 of Quarterly Report on Form 10-Q, filed November 14, 2016) ^ |
| |
|
|
| 10.3 |
|
Form
of Indemnification Agreement between the Registrant and each of its directors and executive officers (incorporated by reference
to Exhibit 10.2 of Form S-1, File No. 333-202478, filed on March 3, 2015) |
| |
|
|
| 10.4 |
|
2015
Equity Incentive Plan, as amended and restated on March 29, 2018 (incorporated by reference to Exhibit 10.4 to the Registrant’s
Annual Report on Form 10-K for the year ended December 31, 2017, filed on March 29, 2018) ^ |
| |
|
|
| 10.5 ! |
|
Non-Employee Director Compensation Policy (incorporated by
reference to the Registrant’s Registration Statement on Form S-1, SEC File No. 333-233775, filed on September 16, 2019) |
| |
|
|
| 10.6 |
|
Warrant
Agreement, dated as of May 8, 2015, between the Registrant and Philadelphia Stock Transfer, Inc., as warrant agent
(incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on May 13, 2015) ^ |
| |
|
|
| 10.7.1 ! |
|
Form
of Stock Option Agreement under the 2015 Equity Incentive Plan for employees and consultants (incorporated by reference to
Exhibit 10.9.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016, filed on March 24,
2017) ^ |
| |
|
|
| 10.7.2 ! |
|
Form
of Stock Option Agreement under the 2015 Equity Incentive Plan for non-employee directors (initial grant) (incorporated by
reference to Exhibit 10.9.2 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016, filed
on March 24, 2017) ^ |
| |
|
|
| 10.7.3 ! |
|
Form
of Stock Option Agreement under the 2015 Equity Incentive Plan for non-employee directors (annual grant) (incorporated by
reference to Exhibit 10.9.3 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016, filed
on March 24, 2017) ^ |
| |
|
|
| 10.8 ! |
|
Form
of Restricted Stock Unit Award Agreement under 2015 Equity Incentive Plan (incorporated by reference to Exhibit 10.10 to the
Registrant’s Annual Report on Form 10-K for the year ended December 31, 2016, filed March 24, 2017) ^ |
| |
|
|
| 10.9 |
|
Common
Stock and Note Purchase Agreement, dated as of July 14, 2015, between the Registrant and Merck Global Health Innovation
Fund, LLC (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on July
16, 2015) ^ |
| |
|
|
| 10.10 |
|
Senior
Secured Promissory Note, dated as of July 14, 2015, between the Registrant and Merck Global Health Innovation Fund, LLC
(incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K, filed on July 16, 2015) ^ |
| |
|
|
| 10.10.1 |
|
Second
Amended & Restated Senior Secured Promissory Note, dated June 28, 2017, by and between the Registrant and Merck Global
Health Innovation Fund, LLC (incorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K,
Amendment No. 1, filed on June 28, 2017) ^ |
| |
|
|
| 10.10.2 |
|
Allonge,
dated June 11, 2018, to the Second Amended and Restated Senior Secured Promissory Note, dated June 28, 2017, with a principal
amount of $1,000,000 issued by OpGen, Inc. to Merck Global Health Innovation Fund, LLC (incorporated by reference to Exhibit
10.1 to the Registrant’s Current Report on Form 8-K, filed on June 11, 2018) ^ |
| |
|
|
| 10.11 |
|
Third
Amended and Restated Investors’ Rights Agreement, dated as of December 18, 2013, among the Registrant and, certain investors
(registration rights provisions) (incorporated by reference to Exhibit 4.2 to the Registrant’s Form S-1, File No. 333-202478,
filed on March 3, 2015) |
| |
|
|
| 10.12 |
|
Registration
Rights Agreement, dated as of July 14, 2015, among the Registrant, Merck Global Health Innovation Fund, LLC, SLS Invest AB
and LD Pensions (incorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K, filed on
July 16, 2015) ^ |
| |
|
|
| 10.13 |
|
Letter
Agreement, dated July 12, 2015, between the Registrant and Fluidigm Corporation (incorporated by reference to Exhibit 10.5
to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, filed on August 14, 2015) ^ |
| |
|
|
| 10.14 |
|
Securities
Purchase Agreement, dated as of May 12, 2016, by and between the Registrant and the Purchasers party thereto (incorporated
by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on May 17, 2016) ^ |
| |
|
|
| 10.15 |
|
Amended
and Restated Securities Purchase Agreement, dated as of May 18, 2016, by and between the Registrant and the Purchasers party
thereto (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on May 20,
2016) ^ |
| |
|
|
| 10.16 ! |
|
Stock
Option Award Agreement, dated April 28, 2016, by and between the Registrant and Evan Jones (incorporated by reference to
Exhibit 10.5 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2016, filed on August
11, 2016) ^ |
| |
|
|
| 10.17 |
|
Common
Stock Sales Agreement, dated September 13, 2016, by and between the Registrant and Cowen and Company, LLC (incorporated by
reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on September 14, 2016) ^ |
| |
|
|
| 10.18 |
|
Amended
& Restated Note Purchase Agreement, dated as of July 10, 2017, by and between the Registrant and jVen Capital, LLC
(incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, Amendment No. 2, filed
on July 10, 2017) ^ |
| |
|
|
| 10.19 |
|
Form
of Secured Convertible Promissory Note #1 to be issued to jVen Capital, LLC (incorporated by reference to Exhibit 10.2 to
the Registrant’s Current Report on Form 8-K/A, filed on July 10, 2017) ^ |
| |
|
|
| 10.20 |
|
Form
of Secured Promissory Note #2 and #3 to be issued to jVen Capital, LLC (incorporated by reference to Exhibit 10.3 to the Registrant’s
Current Report on Form 8-K/A, filed on July 10, 2017) ^ |
| |
|
|
| 10.21 |
|
Amended
and Restated Registration Rights Agreement, dated as of June 6, 2017, by and between the Registrant and the Investors party
thereto (incorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K, filed on June 6,
2017) ^ |
| |
|
|
| 10.22± |
|
Supply
Agreement, dated as of June 15, 2017, by and between the Registrant and Life Technologies Corporation (incorporated by reference
to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on June 19, 2017) ^ |
| |
|
|
| 10.23 |
|
Securities
Purchase Agreement, dated as of July 12, 2017, among the Registrant and the purchasers signatory thereto, (incorporated by
reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on July 14, 2017) ^ |
| |
|
|
| 10.24 |
|
Engagement
Letter with H.C Wainwright & Co., dated as of June 12, 2017 (incorporated by reference to Exhibit 1.2 to the Registrant’s
Registration Statement on Form S-1, Amendment No. 2, File No. 333-218392, filed on July 11, 2017) |
| |
|
|
| 10.25 ! |
|
Executive
Change In Control and Severance Benefits Agreement, dated September 24, 2018 between OpGen, Inc. and Evan Jones
(incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K, filed on September 25,
2018) ^ |
| |
|
|
| 10.26 ! |
|
Executive
Change In Control and Severance Benefits Agreement, dated September 24, 2018 between OpGen, Inc. and Timothy C. Dec
(incorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K, filed on September 25,
2018) ^ |
| |
|
|
| 10.27 ! |
|
Executive
Change In Control and Severance Benefits Agreement, dated September 24, 2018 between OpGen, Inc. and Vadim Sapiro
(incorporated by reference to Exhibit 10.4 to the Registrant’s Current Report on Form 8-K, filed on September 25,
2018). ^ |
| |
|
|
| 10.28 |
|
Form
of Securities Purchase Agreement between the Registrant and the purchasers signatory thereto (incorporated by reference to
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on February 2, 2018) ^ |
| |
|
|
| 10.29 |
|
Engagement
Letter, dated as of December 18, 2017, between the Registrant and H.C. Wainwright & Co., LLC (incorporated by reference
to Exhibit 1.2 to the Registrant’s Registration Statement on Form S-1, Amendment No. 1, File No. 333-222140, filed on
January 31, 2018) |
| |
|
|
| 10.30 ! |
|
OpGen,
Inc. Retention Plan for Executives (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on
Form 8-K, filed on September 25, 2018) ^ |
| |
|
|
| 21.1 |
|
Subsidiaries
of the Registrant (incorporated by reference to Exhibit 21.1 to the Registrant’s Annual Report on Form 10-K for the
year ended December 31, 2018, filed on February 27, 2019) ^ |
| |
|
|
| 23.1 |
|
Consent of CohnReznick LLP (incorporated by reference to Exhibit 23.1 to the Registrant’s Registration Statement on Form S-1, Amendment
No. 2, File No. 333-233775, filed on October 17, 2019) |
| |
|
|
| 23.2 |
|
Consent of PricewaterhouseCoopers GmbH
Wirtschaftsprüfungsgesellschaft (incorporated by reference to Exhibit 23.2 to the Registrant’s Registration Statement on Form S-1, Amendment
No. 2, File No. 333-233775, filed on October 17, 2019) |
| |
|
|
| 23.3 * |
|
Consent of Ballard Spahr LLP (included in Exhibit 5.1) |
| |
|
|
| 24.1 |
|
Power of attorney (included on signature page to the Registrant’s Registration Statement on Form S-1, SEC File No. 333-233775
filed on September 16, 2019) |
| |
|
|
| 99.1 |
|
Consent of Oliver Schacht, Ph.D. (incorporated by reference to Exhibit 99.1 to the Registrant’s Registration Statement on Form S-1, Amendment
No. 2, File No. 333-233775, filed on October 17, 2019) |
| |
|
|
| 99.2 |
|
Consent of William Rhodes (incorporated by reference to Exhibit 99.2 to the Registrant’s Registration Statement on Form S-1, Amendment
No. 2, File No. 333-233775, filed on October 17, 2019) |
| |
|
|
_____________
* Filed
herewith
! Denotes
management compensation plan or contract
±
Confidential treatment has been requested for certain portions of this agreement pursuant to an application for confidential
treatment filed with the Securities and Exchange Commission on June 19, 2017. Such provisions have been filed separately
with the Commission.
^ SEC
File No. 001-37367
(b) Financial Statements
Schedules:
Schedules have been omitted because the information required
to be set forth therein is not applicable or is shown in the financial statements or notes thereto.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant has duly caused this Post-Effective Amendment No. 1 to the Registration Statement on Form S-1 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Gaithersburg, State of Maryland, on October 25, 2019.
OPGEN, INC.
By: /s/ Evan Jones
Evan Jones
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Post-Effective Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities
and on the date indicated.
| Signature |
Title |
Date
|
|
/s/ Evan Jones
Evan Jones |
Chief Executive Officer and Director (principal executive officer)
|
October 25, 2019 |
|
/s/ Timothy C. Dec
Timothy C. Dec |
Chief Financial Officer (principal financial officer and principal
accounting officer)
|
October 25, 2019 |
|
*
R. Donald Elsey |
Director |
October 25, 2019 |
|
*
Tina S. Nova |
Director |
October 25, 2019 |
|
*
Misti Ushio |
Director |
October 25, 2019 |
| |
|
|
*/s/ Timothy C. Dec
Timothy C. Dec, as attorney in fact |
|
October 25, 2019 |
Exhibit 5.1
October 25, 2019
|
OpGen, Inc.
708 Quince Orchard Road
Suite 205
Gaithersburg, Maryland 20878 |
RE: OpGen, Inc. Form S-1 Registration
Statement
Ladies and Gentlemen:
We have acted as counsel to OpGen, Inc., a Delaware corporation
(the “Company”), in connection with the preparation of a Registration Statement on Form S-1
(Registration No. 333-233775) (the
“Registration Statement”) filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”),
on September 16, 2019,
as amended on
October 15, 2019 and October 17, 2019, with respect to the offer and sale of (i) 2,590,170
firm units (the “Units”), each Unit consisting of one share of Common
Stock of the Company, $0.01 par value per share (the “Common Stock”)
and one warrant to purchase one share of Common Stock (each, a “Common Warrant” and collectively, the “Common
Warrants”), (ii) 2,109,830
pre-funded units (the “Firm Pre-Funded Units”), the “Pre-Funded Units”), each Pre-Funded
Unit consisting of one pre-funded warrant to
purchase one share
of Common Stock (each
a “Pre-Funded Warrant” and collectively, the “Pre-Funded
Warrants”) and one Common Warrant, (iii) up to 705,000 shares
of Common Stock and/or Common Warrants subject to an over-allotment option granted to the Underwriter (the “Option
Securities”), and (iv) warrants to purchase 235,000 shares of Common Stock, or 270,250 shares of Common Stock
if the Underwriter exercises its over-allotment option in full (the “HCW Warrants”),
to be issued to H.C. Wainwright & Co., LLC (the “Underwriter”)
as compensation for its services pursuant to that certain Underwriting Agreement, dated
October 23, 2019, by and between the Company and the Underwriter (the “Underwriting Agreement”). The HCW Warrants,
the Common Warrants included in the Option Securities, the Common Warrants and the Pre-Funded Warrants are collectively referred
to herein as the “Warrants,”
and the Units, Pre-Funded Units, the shares of Common Stock included in the Units, the shares of Common Stock included in
the Option Securities, the shares of Common Stock underlying the HCW Warrants, the shares of Common Stock underlying the Common
Warrants and the shares of Common Stock underlying the
Pre-Funded Warrants are collectively referred
to herein as the “Securities.”
OpGen, Inc.
October 25, 2019
Page 2
The Securities
are to be
sold by the
Company pursuant to
a prospectus to be
filed with the
Registration Statement (the
“Prospectus”), the Warrants and
the Underwriting Agreement.
We have examined originals or copies (certified or otherwise
identified to our satisfaction) of (i) the Amended and Restated Certificate of Incorporation of the Company together with
all amendments thereto; (ii) the Certificate of Correction to the Amended and Restated Certificate of Incorporation; (iii) the
Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock; (iv) the Amended
and Restated Bylaws of the Company; (v) the Registration Statement and the exhibits thereto; (vi) the Prospectus; (vii) the
Underwriting Agreement; (viii) such other corporate records, agreements, documents and instruments; and (ix) such certificates
or comparable documents of public officials and other sources, believed by us to be reliable, and of officers and representatives
of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as
a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness
of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity
of the originals of such latter documents. As to all questions of fact material to this opinion that have not been independently
established, we have relied upon certificates or comparable documents of officers and representatives of the Company.
Based upon the foregoing, and subject to the qualifications,
assumptions and limitations set forth herein, we are of the opinion that (i) the Securities are or will be, upon issuance,
duly authorized, and,
when issued and
sold in accordance
with the terms
and conditions of
the Underwriting Agreement,
the Warrants and
the Prospectus, as applicable, will be validly issued, fully paid and non-assessable
and (ii) provided
that the Warrants
have been duly
executed and delivered by
the Company and
duly delivered to
the purchasers thereof,
the Warrants, when
issued and sold
as contemplated in
the Underwriting Agreement, the Registration
Statement and the Prospectus in exchange for the requisite payment therefor, will be valid and legally binding obligations of the
Company.
Our opinion is limited to the laws of the State of Delaware,
the laws of the State of New York and the United States federal laws, and we express no opinion with respect to the laws of any
other jurisdiction. No opinion is expressed herein with respect to the qualification of the Securities under the securities or
blue sky laws of any state or any foreign jurisdiction.
We hereby consent to the filing of this opinion with
the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation
S-K promulgated under the Securities Act, and to the use of this firm’s name therein and in the Prospectus under the caption
“Legal Matters.” In giving this consent, we do not admit that we are within the category of persons whose
consent is required by Section 7 of the Securities Act and the rules and regulations promulgated thereunder.
Sincerely yours,
/s/ Ballard Spahr LLP
