Exhibit 10.2


 


 


 


 


November 23, 2020


 


OpGen, Inc.


708 Quince Orchard Road,
Suite 205


Gaithersburg, Maryland 20878


Attn: Timothy C. Dec, Chief
Financial Officer


 


Dear Mr. Dec:


 


This letter (the “Agreement”)
constitutes the agreement between A.G.P./Alliance Global Partners (the “Placement Agent”) and OpGen, Inc., a
Delaware corporation (the “Company”), that the Placement Agent shall serve as the exclusive placement agent
for the Company, on a “reasonable best efforts” basis, in connection with the proposed placement (the “Placement”)
of (i) shares (the “Shares”) of the Company’s Common Stock, par value $0.01 per share (the “Common
Stock”), (ii) warrants to purchase shares of Common Stock (the “Common Warrants”) and (iii) pre-funded
warrants to purchase shares of Common Stock (the “Pre-Funded Warrants” and together with the Shares and Common
Warrants, the “Securities”). The Securities actually placed by the Placement Agent are referred to herein as
the “Placement Agent Securities.” The terms of the Placement shall be mutually agreed upon by the Company and
the purchasers (each, a “Purchaser” and collectively, the “Purchasers”), and nothing herein
constitutes that the Placement Agent would have the power or authority to bind the Company or any Purchaser, or an obligation for
the Company will issue any Securities or complete the Placement. The Company expressly acknowledges and agrees that the Placement
Agent’s obligations hereunder are on a reasonable best efforts basis only and that the execution of this Agreement does not
constitute a commitment by the Placement Agent to purchase the Securities and does not ensure the successful placement of the Securities
or any portion thereof or the success of the Placement Agent with respect to securing any other financing on behalf of the Company.
The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection with
the Placement. Certain affiliates of the Placement Agent may participate in the Placement by purchasing some of the Placement Agent
Securities. The sale of Placement Agent Securities to any Purchaser will be evidenced by a securities purchase agreement (the “Purchase
Agreement”) between the Company and such Purchaser, in a form reasonably acceptable to the Company and the Purchaser.
Capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Purchase Agreement. Prior
to the signing of any Purchase Agreement, officers of the Company will be available to answer inquiries from prospective Purchasers.


 


SECTION 1.REPRESENTATIONS
AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.


 


A.                 
Representations of the Company. With respect to the Placement Agent Securities, each
of the representations and warranties (together with any related disclosure schedules thereto) and covenants made by the Company
to the Purchasers in the Purchase Agreement in connection with the Placement, are hereby incorporated herein by reference into
this Agreement (as though fully restated herein) and is, as of the date of this Agreement and as of each Closing Date, hereby made
to, and in favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that there are no affiliations
with any FINRA member firm among the Company's officers, directors or, to the knowledge of the Company, any five percent (5.0%)
or greater securityholder of the Company, except as set forth in the Purchase Agreement.


 


B.                 
Covenants of the Company. The Company covenants and agrees to continue to retain (i)
a firm of independent PCAOB registered public accountants for a period of at least five (5) years after each Closing Date and (ii)
a competent transfer agent with respect to the Common Stock for a period of five (5) years after the Closing Dates. In addition,
from the date hereof until 90 days after each relevant Closing Date (the “Restriction Period”), neither the
Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any
shares of Common Stock or Common Stock Equivalents, except that such restriction shall not apply with respect to an Exempt Issuance;
provided, that, the Company’s ATM Agreement shall not constitute a conflict with or violation of this section, provided further
that the Company shall not utilize the ATM Agreement during the Restriction Period.


 






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SECTION 2.       REPRESENTATIONS
OF THE PLACEMENT AGENT. The Placement Agent represents and warrants that it (i) is a member in good standing of FINRA, (ii)
is registered as a broker/dealer under the Exchange Act, (iii) is licensed as a broker/dealer under the laws of the United States
of America, applicable to the offers and sales of the Placement Agent Securities by the Placement Agent, (iv) is and will be a
corporate body validly existing under the laws of its place of incorporation, (v) has full power and authority to enter into and
perform its obligations under this Agreement. The Placement Agent will immediately notify the Company in writing of any change
in its status with respect to subsections (i) through (v) above. The Placement Agent covenants that it will use its reasonable
best efforts to conduct the Placement hereunder in compliance with the provisions of this Agreement and the requirements of applicable
law.  


 


SECTION 3.        COMPENSATION.
In consideration of the services to be provided for hereunder, the Company shall pay to the Placement Agent and/or its respective
designees a cash fee of 7.0% of the aggregate gross proceeds raised from the sale of the Placement Agent Securities (the “Cash
Fee”). The Cash Fee shall be paid on each Closing Date. In addition, the Company shall issue the Placement Agent (and/or
its designees) on each Closing Date warrants (the “Placement Agent Warrants”) to purchase shares of Common Stock
in an amount equal to 5% of the Shares and shares of Common Stock issuable upon exercise of the Pre-Funded Warrants sold in the
Placement. The Placement Agent Warrants shall be in substantially the form of Warrants sold in the Placement, shall be exercisable,
in whole or in part, commencing on a date which is six (6) months after the pricing of the Placement and expiring on the five
year anniversary of the pricing of the Placement, at an initial exercise price per share of Common Stock equal to 130% of
the public offering price of each Share. The terms of the Placement Agent Warrants shall comply, in all respects with the requirements
of the Financial Industry Regulatory Authority, Inc. (“FINRA”), including with respect to FINRA Rule 5110.
The Placement Agent reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the
event that a determination shall be made by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess
of FINRA Rules or that the terms thereof require adjustment.


 


SECTION 4.       INDEMNIFICATION.


 


A.                 
To the extent permitted by law, with respect to the Placement Agent Securities, the Company
will indemnify the Placement Agent and its affiliates, stockholders, directors, officers, employees, members and controlling persons
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) against all losses, claims, damages,
expenses and liabilities, as the same are incurred (including the reasonable fees and expenses of counsel), relating to or arising
out of its activities hereunder or pursuant to this Agreement, except to the extent that any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) are found in a final judgment (not subject to appeal) by a court of law to have
resulted primarily and directly from the Placement Agent’s fraud, willful misconduct or gross negligence in performing the
services described herein.


 


B.                 
Promptly after receipt by the Placement Agent of notice of any claim or the commencement of
any action or proceeding with respect to which the Placement Agent is entitled to indemnity hereunder, the Placement Agent will
notify the Company in writing of such claim or of the commencement of such action or proceeding, but failure to so notify the Company
shall not relieve the Company from any obligation it may have hereunder, except and only to the extent such failure results in
the forfeiture by the Company of substantial rights and defenses. If the Company so elects or is requested by the Placement Agent,
the Company will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory to the Placement
Agent and will pay the fees and expenses of such counsel. Notwithstanding the preceding sentence, the Placement Agent will be entitled
to employ counsel separate from counsel for the Company and from any other party in such action if counsel for the Placement Agent
reasonably determines that it would be inappropriate under the applicable rules of professional responsibility for the same counsel
to represent both the Company and the Placement Agent. In such event, the reasonable fees and disbursements of no more than one
such separate counsel will be paid by the Company, in addition to fees of local counsel. The Company will have the right to settle
the claim or proceeding provided that the Company will not settle any such claim, action or proceeding without the prior written
consent of the Placement Agent, which will not be unreasonably withheld. The Company shall not be liable for any settlement of
any action effected without its written consent, which will not be unreasonably withheld.


 






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C.                 
The Company agrees to notify the Placement Agent promptly of the assertion against it or any
other person of any claim or the commencement of any action or proceeding relating to a transaction contemplated by this Agreement.


 


D.                 
If for any reason the foregoing indemnity is unavailable to the Placement Agent or insufficient
to hold the Placement Agent harmless, then the Company shall contribute to the amount paid or payable by the Placement Agent as
a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits
received by the Company on the one hand and the Placement Agent on the other, but also the relative fault of the Company on the
one hand and the Placement Agent on the other that resulted in such losses, claims, damages or liabilities, as well as any relevant
equitable considerations. The amounts paid or payable by a party in respect of losses, claims, damages and liabilities referred
to above shall be deemed to include any legal or other fees and expenses incurred in defending any litigation, proceeding or other
action or claim. Notwithstanding the provisions hereof, the Placement Agent’s share of the liability hereunder shall not
be in excess of the amount of fees actually received, or to be received, by the Placement Agent under this Agreement.


 


E.                  
These indemnification provisions shall remain in full force and effect whether or not the
transaction contemplated by this Agreement is completed and shall survive the termination of this Agreement, and shall be in addition
to any liability that the Company might otherwise have to any indemnified party under this Agreement or otherwise.


 


SECTION 5.       ENGAGEMENT
TERM. The Placement Agent’s engagement hereunder will be until the earlier of (i) December 15, 2020 and (ii) the Second
Closing Date. The date of termination of this Agreement is referred to herein as the “Termination Date.” In
the event, however, in the course of the Placement Agent’s performance of due diligence it deems it necessary to terminate
the engagement, the Placement Agent may do so prior to the Termination Date. The Company may elect to terminate the engagement
hereunder for any reason prior to the Termination Date but will remain responsible for fees pursuant to Section 3 hereof and fees
with respect to the Placement Agent Securities if sold in the Placement. Notwithstanding anything to the contrary contained herein,
the provisions concerning the Company’s obligation to pay any fees actually earned pursuant to Section 3 hereof, and the
provisions concerning confidentiality, indemnification and contribution contained herein will survive any expiration or termination
of this Agreement. If this Agreement is terminated prior to the completion of the Placement, all fees due to the Placement Agent
shall be paid by the Company to the Placement Agent on or before the Termination Date (in the event such fees are earned or owed
as of the Termination Date). The Placement Agent agrees not to use any confidential information concerning the Company provided
to the Placement Agent by the Company for any purposes other than those contemplated under this Agreement.


 


SECTION 6.      PLACEMENT
AGENT INFORMATION. The Company agrees that any information or advice rendered by the Placement Agent in connection with this
engagement is for the confidential use of the Company only in their evaluation of the Placement and, except as otherwise required
by law, the Company will not disclose or otherwise refer to the advice or information in any manner without the Placement Agent’s
prior written consent.


 


SECTION 7.       NO
FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall not be construed as creating rights enforceable by any person
or entity not a party hereto, except those entitled hereto by virtue of the indemnification provisions hereof. The Company acknowledges
and agrees that the Placement Agent is not and shall not be construed as a fiduciary of the Company and shall have no duties or
liabilities to the equity holders or the creditors of the Company or any other person by virtue of this Agreement or the retention
of the Placement Agent hereunder, all of which are hereby expressly waived.


 


SECTION 8.       CLOSING.
The obligations of the Placement Agent, and the closing of the sale of the Placement Agent Securities hereunder are subject to
the accuracy, when made and on each Closing Date, of the representations and warranties on the part of the Company contained herein
and in the Purchase Agreement, to the performance by the Company of its obligations hereunder and in the Purchase Agreement, and
to each of the following additional terms and conditions, except as otherwise disclosed to and acknowledged and waived by the Placement
Agent:


 






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A.                 
All corporate proceedings and other legal matters incident to the authorization, form, execution,
delivery and validity of each of this Agreement, the Placement Agent Securities, and all other legal matters relating to this Agreement
and the transactions contemplated hereby with respect to the Placement Agent Securities shall be reasonably satisfactory in all
material respects to the Placement Agent.


 


B.                 
The Placement Agent shall have received from outside U.S. counsel to the Company each such
counsel’s written opinion with respect to the Placement Agent Securities, addressed to the Placement Agent and dated as of
each Closing Date, in form and substance reasonably satisfactory to the Placement Agent.


 


C.                 
The Placement Agent shall have received the Placement Agent Warrants. 


 


D.                 
The Placement Agent shall have received customary certificates of the Company’s executive
officers, as to the accuracy of the representations and warranties contains in the Purchase Agreement, and a certificate of the
Company’s secretary certifying that the Company’s charter documents are true and complete, have not been modified and
are in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Placement are
in full force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company. 


 


E.                  
The Placement Agent shall have received an executed FINRA questionnaire from each of the Company
(with respect to the FINRA questionnaire only) and the Company’s executive officers, directors and 5% or greater securityholders.


 


F.                  
The Common Stock shall be registered under the Exchange Act and, as of the Second Closing
Date, the Common Stock and shares issuable upon exercise of the Warrants shall be listed and admitted and authorized for trading
on the Trading Market or other applicable U.S. national exchange and satisfactory evidence of such action shall have been provided
to the Placement Agent. The Company shall have taken no action designed to, or likely to have the effect of terminating the registration
of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market or
other applicable U.S. national exchange, nor has the Company received any information suggesting that the Commission or the Trading
Market or other U.S. applicable national exchange is contemplating terminating such registration or listing.


 


G.                 
No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency or body which would, as of each Closing Date, prevent the issuance or sale
of the Placement Agent Securities or materially and adversely affect or potentially and adversely affect the business or operations
of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction
shall have been issued as of each Closing Date which would prevent the issuance or sale of the Placement Agent Securities or materially
and adversely affect or potentially and adversely affect the business or operations of the Company.


 


H.                 
The Company shall have entered into a Purchase Agreement with each of the Purchasers of the
Placement Agent Securities and such agreements shall be in full force and effect and shall contain representations, warranties
and covenants of the Company as agreed upon between the Company and the Purchasers.


 


I.                   
FINRA shall have raised no objection to the fairness and reasonableness of the terms and arrangements
of this Agreement. In addition, the Company shall, if requested by the Placement Agent, make or authorize Placement Agent’s
counsel to make on the Company’s behalf, any filing with the FINRA Corporate Financing Department pursuant to FINRA Rule
2710 with respect to the Placement and pay all filing fees required in connection therewith.


 


If any of the conditions
specified in this Section 8 shall not have been fulfilled when and as required by this Agreement, all obligations of the Placement
Agent hereunder may be cancelled by the Placement Agent at, or at any time prior to, each Closing Date. Notice of such cancellation
shall be given to the Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.


 






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SECTION 9.     GOVERNING
LAW. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable to
agreements made and to be performed entirely in such State, without regard to its conflict of laws principles. This Agreement may
not be assigned by either party without the prior written consent of the other party. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors and permitted assigns. Any right to trial by jury with
respect to any dispute arising under this Agreement or any transaction or conduct in connection herewith is waived. Any dispute
arising under this Agreement may be brought into the courts of the State of New York or into the Federal Court located in New York,
New York and, by execution and delivery of this Agreement, the Company hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or proceeding by delivering a copy thereof via overnight
delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law. If either party shall commence an action or proceeding
to enforce any provisions of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the
other party for its attorney's fees and other costs and expenses incurred with the investigation, preparation and prosecution of
such action or proceeding.


  


SECTION 10.     ENTIRE
AGREEMENT/MISCELLANEOUS. This Agreement embodies the entire agreement and understanding between the parties hereto, and supersedes
all prior agreements and understandings, relating to the subject matter hereof. If any provision of this Agreement is determined
to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any other
provision of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise modified
or waived except by an instrument in writing signed by both the Placement Agent and the Company. The representations, warranties,
agreements and covenants contained herein shall survive the Closing Dates of the Placement and delivery of the Placement Agent
Securities. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one
and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party,
it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile
transmission or a .pdf format file, such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such facsimile or .pdf signature page were an original
thereof.


 


SECTION 12.     NOTICES.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is sent to
the email address specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a business day, (b)
the next business day after the date of transmission, if such notice or communication is sent to the email address on the signature
pages attached hereto on a day that is not a business day or later than 6:30 p.m. (New York City time) on any business day, (c)
the third business day following the date of mailing, if sent by U.S. internationally recognized air courier service, or (d) upon
actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall
be as set forth on the signature pages hereto.


 


SECTION 13.Press
Announcements. The Company agrees that the Placement Agent shall, on and after each Closing Date, have the right to
reference the Placement and the Placement Agent’s role in connection therewith in the Placement Agent’s marketing materials
and on its website and to place advertisements in financial and other newspapers and journals, in each case at its own expense.


 


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Please confirm that the
foregoing correctly sets forth our agreement by signing and returning to the Placement Agent the enclosed copy of this Agreement.


 


	 	Very truly yours,
	 	 
	 	A.G.P./ALLIANCE GLOBAL PARTNERS
	 	 
	 	By: 	/s/ Thomas J. Higgins
	 	 	Name: Thomas J. Higgins
	 	 	Title:   Managing Director
	 	 
	 	Address for notice:
	 	
        590 Madison Avenue 36th Floor

        New York, New York 10022

        Attn: Thomas Higgins

        Email: thiggins@allianceg.com             

	 	 
	 	 


 


Accepted and Agreed to
as of


the date first written
above:


 


	OPGEN, INC.
	 	 
	By: 	/s/ Timothy C. Dec	 
	 	Name: Timothy C. Dec	 
	 	Title:   Chief Financial Officer	 
	 	 	 	 


 


Address for notice:


OpGen, Inc.


708 Quince Orchard Road,
Suite 205


Gaithersburg, Maryland
20878


Attn: Timothy C. Dec,
Chief Financial Officer


	 
	
         

         

         

         

         

         

         

         

         

         

         

         



 


[Signature Page to Placement
Agent Agreement.]