Securities Registration: Employee Benefit Plan (s-8)
June 03 2022 - 3:51PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on June 3, 2022
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OpGen, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
06-1614015 |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
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9717 Key West Ave, Suite 100
Rockville, MD 20850 |
20850 |
(Address of Principal Executive Offices) |
(Zip Code) |
STOCK OPTION INDUCEMENT AWARDS
(Full title of the plan)
Albert Weber
Chief Financial Officer
9717 Key West Ave, Suite 100
Rockville, MD 20850
(Name and address of agent for service)
(240) 813-1260
(Telephone number, including area code, of agent for
service)
with a copy to:
Peter Jaslow, Esquire
Ballard Spahr LLP
1735 Market Street
51st Floor
Philadelphia, Pennsylvania 19103
215-665-8500
Indicate by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth 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 o |
Accelerated filer o |
Non-accelerated filer þ |
Smaller reporting company þ |
|
Emerging growth company o |
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. ☐
EXPLANATORY NOTE
This Registration on Form S-8 registers shares of common stock, par value
$0.01 per share (“Common Stock”), of OpGen, Inc. (the “Registrant”) issuable pursuant to stock options to purchase
210,000 shares of Common Stock granted by the Registrant to the Registrant’s Chief Financial Officer, Albert Weber, on January 3,
2022 (the “Inducement Award”). The Inducement Award was approved by the Registrant’s Board of Directors as an inducement
material to the individual’s acceptance of employment with the Registrant in compliance with and in reliance on Nasdaq Listing Rule
5635(c)(4). The Inducement Awards were granted outside of the Registrant’s 2015 Equity Incentive Plan, as amended and restated.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information
specified in Part I are not required to be filed with the Securities and Exchange Commission (the “Commission”) as part of
this Registration Statement on Form S-8 (the “Registration Statement”).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, filed or to be filed with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by
reference:
| · | The description of the Registrant’s common stock contained
in the Registrant’s Registration Statement on Form 8-A (File No. 001-37367) filed with the Commission on April 30, 2015, pursuant
to Section 12(b) of the Securities Exchange Act of 1934, as amended (the ‟Exchange Act”), including any amendment or
report filed for the purpose of updating such description. |
In addition, all reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of filing of such document. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or supersedes such statement. The statements required to be
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, or the DGCL, authorizes
a corporation to indemnify its directors and officers against liabilities arising out of actions, suits and proceedings to which they
are made or threatened to be made a party by reason of the fact that they have served or are currently serving as a director or officer
to a corporation. The indemnity may cover expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement actually
and reasonably incurred by the director or officer in connection with any such action, suit or proceeding. Section 145 permits corporations
to pay expenses (including attorneys’ fees) incurred by directors and officers in advance of the final disposition of such action,
suit or proceeding. In addition, Section 145 provides that a corporation has the power to purchase and maintain insurance on behalf of
its directors and officers against any liability asserted against them and incurred by them in their capacity as a director or officer,
or arising out of their status as such, whether or not the corporation would have the power to indemnify the director or officer against
such liability under Section 145.
We have adopted provisions in our certificate of incorporation and bylaws
that limit or eliminate the personal liability of our directors to the fullest extent permitted by the DGCL, as it now exists or may in
the future be amended. Consequently, a director will not be personally liable to us or our stockholders for monetary damages or breach
of fiduciary duty as a director, except for liability for:
| o | any breach of the director’s duty of loyalty to us or our stockholders; |
| o | any act or omission not in good faith or that involves intentional misconduct or a knowing violation
of law; |
| o | any unlawful payments related to dividends or unlawful stock purchases, redemptions or other distributions;
or |
| o | any transaction from which the director derived an improper personal benefit. |
These limitations of liability do not alter director liability under the
federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.
In addition, our bylaws provide that:
| o | we will indemnify our directors, officers and, in the discretion of our board of directors, certain
employees to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended; and |
| o | we will advance reasonable expenses, including attorneys’ fees, to our directors and, in the discretion
of our board of directors, to our officers and certain employees, in connection with legal proceedings relating to their service for or
on behalf of us, subject to limited exceptions. |
We have entered into indemnification agreements with each of our directors
and executive officers. These agreements provide that we will indemnify each of our directors, such executive officers and, at times,
their affiliates to the fullest extent permitted by Delaware law. We will advance expenses, including attorneys’ fees (but excluding
judgments, fines and settlement amounts), to each indemnified director, executive officer or affiliate in connection with any proceeding
in which indemnification is available and we will indemnify our directors and officers for any action or proceeding arising out of that
person’s services as a director or officer brought on behalf of us and/or in furtherance of our rights. Additionally, each of our
directors may have certain rights to indemnification, advancement of expenses and/or insurance provided by their affiliates, which indemnification
relates to and might apply to the same proceedings arising out of such director’s services as a director referenced herein. Nonetheless,
we have agreed in the indemnification agreements that our obligations to those same directors are primary and any obligation of the affiliates
of those directors to advance expenses or to provide indemnification for the expenses or liabilities incurred by those directors are secondary.
We also maintain general liability insurance which covers certain liabilities
of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers, including
liabilities under the Securities Act.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits accompanying this Registration Statement are listed on the
accompanying Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration
Statement; and
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act, that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM
S-8
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Rockville, State of Maryland on June 3, 2022.
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OPGEN, INC. |
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By: |
/s/ Oliver Schacht, Ph.D |
|
Name:
Title: |
Oliver Schacht, Ph.D Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Oliver Schacht, Ph.D and Albert Weber and each of them, as the true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any
and all capacities, to sign any or all amendments to this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Oliver Schacht |
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Chief Executive Officer and Director |
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June 3, 2022 |
Oliver Schacht, Ph.D |
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(principal executive officer) |
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/s/ Albert Weber |
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Chief Financial Officer |
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June 3, 2022 |
Albert Weber |
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(principal financial officer and principal accounting officer) |
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/s/ Mario Crovetto |
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Director |
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June 3, 2022 |
Mario Crovetto |
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/s/ R. Donald Elsey |
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Director |
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June 3, 2022 |
R. Donald Elsey |
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/s/ Prabha Fernandes |
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Director |
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June 3, 2022 |
Prabha Fernandes |
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/s/ William Rhodes |
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Director |
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June 3, 2022 |
William Rhodes |
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