UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
October 2, 2024
Date of Report (date of earliest event reported)
OpGen, Inc.
(Exact name of Registrant as specified in its charter)
| Delaware | 001-37367 | 06-1614015 | ||
| (State or other jurisdiction of incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification Number) |
23219 Stringtown Road, Suite 300
Clarksburg, MD 20871
(Address of principal executive offices)(Zip code)
(240) 813-1260
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Common Stock | OPGN | The Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
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 pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On January 2, 2024, AEI Capital Ltd., the Company’s controlling stockholder (“AEI Capital”), entered into a Letter of Engagement with a privately held company (the “Client”), pursuant to which AEI Capital agreed to provide certain listing advisory services relating to the preparation and facilitation of an initial public offering for the Client (the “Engagement Agreement”). In consideration for such services, AEI Capital is entitled to receive a fee consisting of: (i) 2.1% of the outstanding equity interests of the Client (the “Equity Consideration”) and (ii) $120,000 (the “Cash Consideration,” and collectively, with the Equity Consideration, the “Consideration”). The Equity Consideration is payable as follows: (a) 0.5% of the Equity Consideration was paid on October 10, 2024 (the “First Tranche”); (b) 0.4% of the Equity Consideration will be payable after five calendar quarters from the date of the Engagement Agreement; and (c) 1.2% of the Equity Consideration will be payable one month prior to the planned filing of the Client’s application for listing. The Cash Consideration is payable as follows: (1) $60,000 is payable after 14 months from the date of the Engagement Agreement; and (2) $60,000 is payable upon successful completion of the Client’s listing. All Consideration under the Engagement Agreement must be paid within 14 days of the occurrence of the event giving rise to the payment. The Engagement Agreement contains other customary representations, warranties, and agreements of the parties as well as customary indemnification rights and obligations of the Client.
On October 2, 2024, CapForce International Holdings Ltd. (“CapForce”), a limited liability company incorporated in Malaysia and wholly owned subsidiary of OpGen, Inc. (the “Company”), which was organized by the Company for purposes of repositioning itself as a new business in the digital investment banking industry powered by financial technology, entered into an Agreement of Assignment of Mandate with AEI Capital in respect of Direct Listing Sponsorship Advisory Services (the “Assignment Agreement”), pursuant to which AEI Capital assigned all of its rights to the Consideration to CapForce. As a result, in October 2024, AEI Capital transferred and assigned to CapForce the First Tranche of the Equity Consideration. Following the assignment, pursuant to the Assignment Agreement, CapForce anticipates assisting with and performing the services contemplated by the Engagement Agreement.
In addition, on April 3, 2025, CapForce entered into a Joint Venture Agreement (the “JV Agreement”) with the European Credit Investment Bank (“ECIB”), a full-fledged, global facing mid-shore investment bank in Labuan, Malaysia licensed by the Labuan Financial Services Authority, pursuant to which the parties agreed to form a joint venture company named CapForce EC Capital Markets Ltd. (the “Joint Venture”) for purposes of developing and operating a stock trading platform (the “Trading Platform”) and digital investment banking platform across Asia and the rest of the world (the “Digital IB Platform,” and together with the Trading Platform, the “Platforms”). The Platforms encompass (i) a community-focused cross border stock trading platform; (ii) a FinTech-enabled cap table management platform; and (iii) an AI-powered robo-advisory investment bank platform for public listing sponsorship and wealth management. Pursuant to the JV Agreement, CapForce will own 49% of the outstanding equity interests of the Joint Venture, and ECIB will own 51% of outstanding equity interests of the Joint Venture. Under the JV Agreement, the parties agreed to strategically collaborate in order to develop the Platforms. The parties agreed to equally split all profits earned by the Joint Venture and all capital expenditures and operating expenses in the development and operation of the Trading Platform. With respect to operations unrelated to the Trading Platform, CapForce will be entitled to receive 80% of the profits of the Joint Venture if the Joint Ventures revenues are less than $10.0 million or 90% of the profits of the Joint Venture if its revenues exceed $10.0 million. The JV Agreement includes customary representations, warranties, covenants and agreements of the parties, including relating to the responsibilities and obligations of each party in managing and governing the Joint Venture. In particular, CapForce will have the right to appoint two directors to the board of directors of the Joint Venture, and ECIB will have the right to appoint one director to the board of directors of the Joint Venture.
In the JV Agreement, ECIB granted CapForce an option to purchase between 11% and 30% of the equity interests of ECIB held in the Joint Venture. The purchase price for such option and the actual amount of equity interests must be mutually agreed upon by the parties. Upon the formation of the Joint Venture, CapForce will retain contractual control over the Joint Venture, including for accounting consolidation purposes.
The foregoing descriptions of the Engagement Agreement, the Assignment Agreement and the JV Agreement do not purport to be complete and are qualified in their entirety by reference to the complete text of such documents, which are filed as Exhibits 10.1, 10.2 and 10.3 to this Current Report on Form 8-K and incorporated herein by reference.
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Forward-Looking Statements
This Current Report on Form 8-K contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that are intended to qualify for the safe harbor from liability established thereunder. Such forward-looking statements are subject to risks and uncertainties that are often difficult to predict, are beyond the Company’s control, and which may cause results to differ materially from expectations, including the risks that the transactions described herein will not be consummated. In addition, for a further discussion of factors that could materially affect the outcome of the Company’s forward-looking statements and its future results and financial condition, see "Risk Factors" in Part I, Item 1A, of the Company’s Annual Report on Form 10-K for the year ended December 31, 2023 and its other reports filed with the Securities and Exchange Commission. The Company does not undertake any obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| * | Certain portions of this exhibit have been redacted in accordance with Item 601(b)(10) of Regulation S-K. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Date: May 29, 2025 | OpGen, Inc. | ||
| By: |
/s/ John Tan Honjian | ||
| Name: | John Tan Honjian | ||
| Title: | Chairman and Chief Executive Officer | ||
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Exhibit 10.1
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY […***…], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT OPGEN, INC. TREATS AS PRIVATE OR CONFIDENTIAL
STRICTLY PRIVATE AND CONFIDENTIAL
LETTER OF ENGAGEMENT
FOR US DIRECT LISTING SPONSORSHIP ADVISORY
Date: 02/01/2024
| To: | [***] |
[***] [***]
(Hereinafter to be referred to as “Company” or “Client”)
| From: | AEI Capital Ltd. (Registration No. 970490-V) |
Intershore Chambers, Road Town,
Tortola, British Virgin Islands
(Hereinafter to be referred to as the “Direct Listing Advisor”)
| RE: | ENGAGEMENT OF US DIRECT LISTING SPONSORSHIP ADVISORY SERVICES |
This Letter of Engagement sets forth the terms and conditions upon which the Company hereby agrees to engage the Direct Listing Advisor, in collaboration with European Credit Investment Bank (Bank License No. 090099BI) and a United States’ (“US”) investment bank, Maxim Group LLC (LEI: 254900OJ6JZO6SDMHQ83), as i) the Company’s US NASDAQ stock market direct listing incubation and sponsorship advisor and ii) the Company’s public listing consultant, in respect of the scope of subject matters stated herein (hereinafter to be referred to as “Advisory Mandate”).
| 1) | SCOPE OF THE ENGAGEMENT |
| 1.1 | Strategic Partnership and Network |
The Direct Listing Advisor will leverage their network and expertise to provide Advisory Mandate services for the Company (including its listing entity and group companies) by being the lead advisor coordinating with IPO underwriter, legal counsel, auditor and any other relevant professional institutions required to complete direct listing of the Company on NASDAQ (“Direct Listing”). Also, the Direct Listing Advisor will resolve issues and questions arising from aforesaid professional parties.
| 1.2 | Information & Material |
The Direct Listing Advisor will be responsible for instructing, preparing, compiling and coordinating documents for the Company as required, the Direct Listing Advisor will also prepare the roadshow materials and presentations for the underwriters and sponsor investors, and assist the sponsors by preparing an analysis of the target landscape in order to reach potential investors, funders, partners or institutions and any professional firms interested or involved in the Direct Listing.
| 1.3 | Transaction Management |
| ● | The Direct Listing Advisor will help the Company to build up and maintain relationship with all the requisite professional firms, potential investors and institutions worldwide including but not limited to venture capital firms, funds, banks, multi-lateral/bi-lateral or development agencies, family offices, and publicly traded companies with corresponding investment criteria in the industry. The Direct Listing Advisor can manage the signing of non-disclosure agreements (“NDA”), drafting of the information memorandum and sending the same to the shortlisted potential professional service providers and/or potential investors showing interest. |
| ● | The Direct Listing Advisor should be responsible for the below duties: |
| ○ | Coordinating with other professional parties to complete the whole Direct Listing exercise; |
| ○ | Promptly report the progress to the Company; |
| ○ | Formulating the plan and coordinating the share offer and fund-raising arrangement; |
| ○ | Providing update and continuous professional guidance on listing rules and other related regulatory requirements. |
| ● | The Direct Listing Advisor will also assist the Company in negotiating the indicative offer(s) with shortlisted potential professional service providers and/or potential investors in the Direct Listing process, and co-ordinate and assist with: |
| ○ | Proposing solutions of all additional questions and queries from the shortlisted professional service providers and/or potential investors; |
| ○ | Management of negotiation, including but not limited to liaising with the valuer and targeted company regarding the valuation and/or the commercial terms; |
| ○ | Preparing a term sheet containing commercial terms and conditions which would be subjected to review by the Company’s legal advisors; |
| ○ | Conceptualising, formulating, developing and evaluating various transaction structures of the Company from a commercial perspective; |
| ○ | The signing of Non-Binding Offer(s) (indicative offer / term sheet / expression of interest). |
| 1.4 | Closing Phase Assistance |
The Direct Listing Advisor will handle the following tasks for the Company:
| ● | Optimise and organise the due diligence process; and |
| ● | Follow up and coordinate on the Direct Listing until it is completed and the Company receives its proposed IPO proceeds (“IPO Proceeds”). |
By accepting this Letter of Engagement, the Company agrees to supply the Direct Listing Advisor, upon its request, of representation letters that, among other things, will confirm their responsibility for the disclosed information and for the underlying assumptions used in the connection with any projections furnished, the appropriateness of any financial statements that they have prepared and their active decision participation in this Engagement.
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| 2) | TERMS OF ENGAGEMENT |
The term of the Engagement shall last for three (3) years starting from the date in which this Letter of Engagement is executed by all parties.
| 3) | FEES AND PAYMENT TERMS |
The professional fees and remuneration associated with the Direct Listing Advisor in relation to the Advisory Mandate and payable to the Direct Listing Advisor are detailed below:
| 3.1 | Advisory Fee for Direct Listing Incubation and Sponsorship Service: |
| i) | Equity Fee – Total 2.1% Equity of the Company |
| Tranche 1: | 0.5% equity, payable after three (3) quarters from the date of mandate grant. |
| Tranche 2: | 0.4% equity, payable after five (5) quarters from the date of mandate grant. |
| Tranche 3: | 1.2% equity, payable one (1) month prior to the planned filing of the listing submission, expected in April-May 2025. |
| ii) | Cash Fee – Total USD 120,000 |
| Tranche 1: | USD 60,000, payable after fourteen (14) months from the date of mandate grant. |
| Tranche 2: | USD 60,000, payable upon successful completion of the listing. |
| 3.2 | Advisory Fee for Public Listing Consultancy Service: |
| i) | Equity Fee – Total 1.4% Equity of the Company |
| Tranche 1: | 0.6% equity, payable after five (5) quarters from the date of mandate grant. |
| Tranche 2: | 0.8% equity, payable one (1) month prior to the planned filing of the listing submission, expected in April-May 2025. |
| ii) | Cash Fee – Total USD 80,000 |
| Tranche 1: | USD 40,000, payable after fourteen (14) months from the date of mandate grant. |
| Tranche 2: | USD 40,000, payable upon successful completion of the listing. |
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| 3.3 | Other Payment Terms |
| i) | All fees, whether in equity or cash, shall be deemed earned upon their respective due dates and shall be non-refundable. |
| ii) | The payment rights of the Advisory Fee, whether in equity or cash, may be assigned to a third party at the discretion of Direct Listing Advisor, subject to prior written notice to the Company. The Company shall acknowledge and honor such assignment accordingly. |
| iii) | The payment of the Advisory Fee, whether in cash or equity, shall be made by the Company to the Direct Listing Advisor within fourteen (14) days of the occurrence of the respective event, in accordance with this Letter of Engagement. |
| iv) | All potential bank charges related to the remitting bank for wire transfers shall be borne by the Company. The Direct Listing Advisor will accept payments in United States Dollars (“USD”) and Malaysian Ringgit (“MYR”). Upon receipt of the Company’s decision, the Direct Listing Advisor will apply the prevailing conversion rate on the date of invoicing. By default, all invoices will be issued in USD. |
| 3.4 | Reimbursable Expenses |
From time to time, and during the Term, the Direct Listing Advisor and their management team may incur out-of-pocket expenses, that include but not limited to the following out-of-pocket expenses:
| - | Travels, such as transportation tickets |
| - | Lodging |
| - | Subsistence allowance |
| - | Printing and phone bills |
| - | Investor relation management |
| 4) | ADDITIONAL ENGAGEMENT TERMS |
| 4.1 | Indemnification |
The Company hereby indemnifies and holds the Direct Listing Advisor and their partners, principals, agents, consultants, and employees (the “Indemnified Party(ies)”) harmless from and against any losses, claims, damages, or liabilities (or actions in respect thereof) to which an Indemnified Party may become subject as a result of or in connection with the Direct Listing Advisor rendering services hereunder unless it is finally judicially determined that such losses, claims, damages, or liabilities were caused by fraud or willful misconduct or negligence on the part of that Indemnified Party in performing its obligations under this Letter of Engagement.
This indemnification shall be in relation to any losses incurred by the Indemnified party resulting from any misrepresentation by the Company. In the event that full indemnification is not available to the Indemnified Parties as a matter of law, then their aggregate liability shall be limited to the total fees collected for the services rendered and, in any event, shall be limited by a final adjudication of their relative degree of fault and benefit received.
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| 4.2 | Non-Circumvention |
Until three (3) years from the date of this Letter of Engagement, the Company may not enter into any discussion, negotiation or execute any agreement, understanding or undertaking with any party or initiate or maintain contact with any party introduced to the Company by the Direct Listing Advisor without the prior consent of the Direct Listing Advisor. In the event that the Company enters into an agreement or relationship with any party referred by the Direct Listing Advisor that results in investment and/or financing with gross proceeds/investments received by/from the Company from such a party either during the Term (as defined herein) or within two (2) years from the expiration of the Term, the Company acknowledges that the Direct Listing Advisor is entitled to the fees set forth in Paragraph 3.
| 4.3 | Marketing |
The Company hereby grant the Direct Listing Advisor permission to use its name, deal information and any other marketing materials as deemed fit by the Direct Listing Advisor. Nevertheless, the Direct Listing Advisor is prohibited to share the Company’s confidential information with the public and may remove specifics that the Company reasonably request to keep confidential.
| 4.4 | Confidentiality |
All information of this Letter of Engagement as well as all information provided by the Company to the Direct Listing Advisor, or that may arise from the services provided during the existence of this Letter of Engagement and after its termination shall be maintained confidential. Any NDA signed between the parties hereto shall serve as a complement to this sub-paragraph.
| 4.5 | Disclosure |
The Company hereby agrees and confirms that all supporting documents provided to the Direct Listing Advisor are correct and compliant to the applicable jurisdictions. The Direct Listing Advisor shall not be responsible for any losses caused by the inaccuracy, fraudulence and/or lack of supporting documents provided by the Company. Both parties hereby confirm that in the event of any conflicts arising involving the Company and the Direct Listing Advisor, including their respective partners, principals, agents, consultants, directors, and employees, each party shall take the initiative to inform the other party. The Direct Listing Advisor shall not be held responsible for any legal liabilities or losses arising from the non-disclosure of conflicts of interest by any personnel associated with either party.
| 4.6 | Assignment And Successors Bound |
Direct Listing Advisor may elect to assign and/or novate this Letter of Engagement and Advisory Mandate (including its rights, benefits, entitlements, obligations and liabilities) to a sister/related company of Direct Listing Advisor. Except as otherwise expressly provided in this Agreement, none of the Parties shall assign or transfer the whole or any part of this Agreement or any rights under this Agreement without the prior written consent of the other Party. However, this Agreement shall be binding on the successors in title and permitted assigns of the Parties hereto.
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| 5) | GOVERNING LAW AND DISPUTE RESOLUTION |
This Letter of Engagement shall be governed by and construed in accordance with the Laws of Hong Kong SAR.
Any dispute arising out of or in connection with this Letter of Engagement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre in accordance with the HKIAC Arbitration Rules. The seat of arbitration shall be Hong Kong. The Tribunal shall consist of one (1) arbitrator. The appointing authority shall be the Hong Kong International Arbitration Centre. The language of the arbitration shall be English.
| 6) | NOTICES |
All notices and other communications shall be in writing and shall be deemed given if delivered by hand or sent by registered mail or delivered by an express courier (with confirmation) to the parties at the following addressed set forth herein below:
| Company: | [***] [***] [***] | |
| Direct Listing Advisor: |
AEI Capital Ltd. Intershore Chambers, Road Town, Tortola, British Virgin Islands |
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Agreed and accepted for and on behalf of AEI Capital Ltd.,
| /s/ Ethan Low | ||
| Name: | Ethan Low | |
| Title: | Deputy President | |
Agreed and accepted for and on behalf of [***],
| Name: | [***] | |
| Title: | Director | |
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Exhibit 10.2
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY […***…], HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT OPGEN, INC. TREATS AS PRIVATE OR CONFIDENTIAL
AGREEMENT OF ASSIGNMENT OF MANDATE IN
RESPECT OF DIRECT LISTING SPONSORSHIP ADVISORY SERVICES WITH
[***].
This Assignment of Mandate in respect of US Direct Listing Sponsorship Advisory Services (this “Assignment”) with [***], a limited liability company (the “Company’’) incorporated under the laws of Malaysia, is dated and effective as of 2/10/2024 (the “Effective Date”), by and amongst: -
| I. | AEI Capital Ltd. (Registration No. 970490-V), a private limited company incorporated under the laws of British Virgin Islands and having its registered office at Intershore Chambers, Road Town, Tortola, British Virgin Islands (hereinafter referred to as the “Assignor”) |
And
| II. | CapForce International Holdings Ltd. (Registration No. LL20994), a limited liability company incorporated in Labuan, Malaysia having its registered address at Unit Level 11(A), Main Office Tower, Financial Park Labuan, Jalan Merdeka, 87000, Federal Territory of Labuan, Malaysia (hereinafter referred to as the “Assignee”) |
WHEREAS, the Company had on 02/01/2024 entered into a Letter of Engagement for US Direct Listing Sponsorship Advisory with the Assignor (“Advisory Mandate”);
WHEREAS, the Assignor wishes to assign its rights and obligations within Clause 3.1 of the Advisory Mandate with the Advisory Fee equivalent to 2.1% of the common stock in the Company and USD120,000 cash (“Assigned Advisory Fee”) to the Assignee as of the Effective Date, and the Assignee wishes to accept such assignment of the Assigned Advisory Fee for the consideration and upon the terms and conditions of this Agreement;
WHEREAS, the Assignee is willing to undertake all of the obligations of the Assignor in the Advisory Mandate arising from the Assigned Advisory Fee (the “Obligations”); and
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration hereinafter described, the receipt and sufficiency of which are acknowledged, the parties agree as follows: -
| 1. | That as of the Effective Date, the Assignor assigns to the Assignee and the Assignee accepts from the Assignor, the Assignor’s right, title and interest stipulated under Clause 3.1 of the Advisory Mandate (“Assigned Interest”). |
| 2. | The Assignor hereby represents and warrants the following: |
| a. | Authorisation. The Assignor has the power and authority to execute, deliver and perform its obligations under this Agreement. |
| b. | No Conflicts. To the Assignor’s actual knowledge, the execution, delivery and performance by the Assignor of this Agreement and the performance of the transactions contemplated hereby and thereby will not (A) violate (1) any provision of law, statute, rule or regulation the effect of which would be to cause or be reasonably expected to have a material adverse effect on the ability of the Assignor to perform any of its obligations under this Agreement, (2) any order of any governmental authority having proper jurisdiction over the Assignor, or (3) any provision of any indenture, loan agreement or other material agreement to which the Assignor is a party or by which it or any of its property is or may be bound, (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, loan agreement or other material agreement or (C) result in the creation or imposition of any mortgage, deed of trust, lien, pledge, claim, equity interest, participation interest, security interest or other charge or encumbrance of any kind with respect to the Assigned Interest. |
| c. | Enforceability. This Agreement has been duly authorised, executed and delivered by the Assignor and the terms hereof constitute the legal, valid and binding obligations of the Assignor enforceable against the Assignor in accordance with its terms, subject to bankruptcy, insolvency, reorganisation, moratorium or similar laws affecting creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). |
| d. | Title and Ownership. Assignor shall be the sole legal and beneficial owner of the entire Advisory Interest and have full power and lawful authority to transfer, convey and assign to the Assignee all of the Assignor’s right, title and interest in and to the Assigned Interest in the manner contemplated hereby. After giving effect to the consummation of the transactions contemplated hereby, neither the Assignor nor any person claiming under or through the Assignor has any valid claim to or interest in the Assigned Interest. |
| e. | Survival. The above representations, warranties, covenants and agreements of the Assignor shall survive the execution and delivery of this Agreement and the closing hereunder. |
| 3. | In consideration of the assignment effected hereby, the Assignee hereby assumes and agrees to discharge all of the Obligations from and after the Effective Date. Assignee further covenants and agrees to promptly pay when due any and all transfer taxes and assessments resulting from the transfer of the Assigned Advisory Fee from the Assignor to the Assignee, where applicable. |
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| 4. | The Assignee represents and warrants to the Assignor that: |
| a. | Organisation: Powers. The Assignee (i) has all requisite power and authority to own its property and assets and to carry on its business as now conducted and as proposed to be conducted, (ii) are qualified to do business in every jurisdiction where such qualification is required, except where the failure to so qualify would not have a material adverse effect on the performance by the Assignee of their obligations under this Agreement, and (iii) have the power and authority to execute, deliver and perform their obligations under this Agreement. |
| b. | Authorisation. The execution, delivery and performance by the Assignee of this Agreement, and the performance of the transactions contemplated hereby and thereby (i) have been duly authorised by all requisite action and (ii) will not (A) violate (1) any provision of law, statute, rule or regulation the effect of which would be to cause or be reasonably expected to have a material adverse effect on the ability of the Assignee to perform any of its obligations under this Agreement, (2) any order of any governmental authority having proper jurisdiction over the Assignee, (3) any provision of the organisational documents of the Assignee, or (4) any provision of any indenture, loan agreement or other material agreement to which the Assignee is a party or by which it or any of its property is or may be bound, or (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, loan agreement or other material agreement. |
| c. | Enforceability. This Agreement has been duly authorised, executed and delivered by the Assignee and the terms hereof constitute the legal, valid and binding obligations of the Assignee enforceable against the Assignee in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors, rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). |
| d. | Consents and Approvals. No consent, approval or authorisation from, or filing or declaration with, any Person or any governmental authority is required to be made by the Assignor to give the Assignee a perfected ownership interest in the Assigned Interest or for the consummation of the transactions contemplated hereby. |
| e. | Survival. The above representations, warranties, covenants and agreements of the Assignee shall survive the execution and delivery of this Agreement and the closing hereunder. |
| 5. | The Assignor, on behalf of itself and its affiliates, hereby (i) acknowledges the assignment of the Assigned Interest and assumption by the Assignee of the Obligations pursuant to this Agreement and (ii) except as to paragraph 3, releases, remises and forever discharges the Assignor from all of the Obligations and from any and all other liabilities, claims, actions, or cause of actions, known or unknown, asserted or unasserted, which they may have relating to or growing out of any action or inaction taken or not taken in connection with the Assigned Interest and/or this Agreement and the transaction described herein. Accordingly, from and after the Effective Date, the Assignee shall be responsible for all of the Obligations of the Assignor in the Advisory Mandate in respect of the Assigned Interest. |
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| 6. | By its execution hereof, the Assignee hereby agrees to become a direct listing advisor of the Advisory Mandate and, subject to the foregoing provisions of this Agreement, agrees to be bound (to the same extent as the Assignor was bound) by the Advisory Mandate entered between the Assignor and Company. |
| 7. | The parties hereto hereby acknowledge that the Assignee shall succeed to all rights and obligations of the Assignor in the Advisory Mandate arising from the Assigned Interest as of the Effective Date. |
| 8. | Except as otherwise provided in Section 1 hereof, the parties hereto hereby agree that the assignment of the Assigned Interest and the other transactions effected hereby shall be effective for all purposes as of the Effective Date. |
| 9. | The Assignor undertakes that the Company hereby consents to the transfer and assignment of the Assigned Interest to the Assignee and the admission of the Assignee as the direct listing incubator and sponsor (“Direct Listing Incubator & Sponsor”) with respect to the Assigned Interest pursuant to this Agreement without any conditions or requirements other than with respect to the representations, warranties, covenants and undertakings of the parties expressly set forth in this Agreement, including, without limitation, the Assignee’s (i) assumption of, and agreement to pay, the Obligations, and (ii) agreement to be bound by the terms of the Advisory Mandate. |
| 10. | The parties hereto hereby agree to reasonably cooperate in good-faith to take such other steps as may be necessary or appropriate in order to more fully reflect and further evidence the assignment of the Assigned Interest and the other transactions effected hereby. |
| 11. | This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties have not signed the original or the same counterpart. |
[The rest of this page is intentionally left blank]
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In witness whereof, the Parties have cause this Agreement to be duly executed and delivered under seal as of the Effective Date.
| Assignor | /s/ John Tan | ||
| Executed and delivered by | ) | ||
| AEI Capital Ltd. | ) | ||
| Registration No. 970490-V | ) | ||
| Acting by | ) | ||
| John Tan | ) |
| Assignee | /s/ John Tan | ||
| Executed and delivered by | ) | ||
| CapForce International Holdings Ltd. | ) | ||
| Registration No. LL20994 | ) | ||
| Acting by | ) | ||
| John Tan | ) |
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Exhibit 10.3
JOINT VENTURE AGREEMENT
This Agreement is made on 3rd April 2025.
BETWEEN
| 1. | EUROPEAN CREDIT INVESTMENT BANK (Bank License No. 090099BI), a licensed bank with an office located at Level 6G (2), Main Office Tower, Financial Park Labuan, Jalan Merdeka 87000, Federal Territory of Labuan, Malaysia (hereinafter referred to as “ECIB”); |
AND
| 2. | CAPFORCE INTERNATIONAL HOLDINGS LTD. (Company No. LL20994) (the 100% subsidiary of OpGen, Inc.), a company incorporated under the laws of Labuan, Malaysia having a registered office at Unit Level 11(A), Main Office Tower, Financial Park Labuan, Jalan Merdeka, 87000 Federal Territory of Labuan, Malaysia (hereinafter referred to as “CapForce”); |
(Collectively, to be referred to as the “Parties”, or individually as the “Party”).
Recitals:
| A | CapForce is a wholly-owned subsidiary of OpGen Inc. (stock code as NASDAQ:OPGN before NASDAQ trade suspension, current interim stock code as OTCMKTS:OPGN), being a Delaware corporation having a business address at 9717 Key West Avenue, Suite 100 Rockville, MD, 20850 -3982 United States, with a potential arrangement to be renamed as CapForce Inc.. |
| B | Whereas, ECIB and CapForce possess complementary strengths, resources, teams, skills and offerings, and believe that together they can add value to each other, leverage their combined strengths and jointly develop a variety of business lines as set out in Clause 2.1 below (“Purpose”), wish to enter into a Joint Venture Agreement (“Agreement”) subject to the terms and conditions contained herein. |
| C | The Parties hereby agrees that a new joint venture company with the name CapForce EC Capital Markets Ltd. shall be set up for the Purpose (“JV Company”) wherein the Parties shall have equity shareholding in the respective proportion as follows |
| Name of Party | Equity Shareholding in JV Company (%) | ||
| ECIB | 51 | ||
| CapForce | 49 |
| D | The Parties hereby agree that the joint venture shall commence on a contractual consortium basis pending the formation of the JV Company above and regulatory endorsement on the same. |
| E | The Parties hereby agree that the JV Company shall run at a profit-sharing model and/or policy upon formation, in accordance to the terms and conditions under this Agreement. |
IT IS HEREBY AGREED as follows:
| 1. | Definitions And Interpretations |
| 1.1 | In this Agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings: |
“CapForce” means CapForce International Holdings Ltd. (the 100% subsidiary of OpGen, Inc.), a Labuan corporation with a registered office at Unit Level 11(A), Main Office Tower, Financial Park Labuan, Jalan Merdeka, 87000 Federal Territory of Labuan, Malaysia.
“Digital Investment Banking JV Consortium Business” means the variety of business lines as stipulated under Clause 2.1.
“ECIB” means European Credit Investment Bank (Bank License No. 090099BI) with a registered business address at Level 6G(2), Main Office Tower, Financial Park Labuan, Jalan Merdeka 87000, Federal Territory of Labuan, Malaysia.
| 1.2 | Unless the context otherwise requires, in this agreement: |
| (a) | Words importing the singular number shall include the plural number and vice-versa; and |
| (b) | Words importing natural persons shall include a company, body corporate, government agency or association, whether incorporated or not. |
| 2. | Joint Venture |
As of the date hereof, subject to the terms and conditions set forth herein, ECIB and CapForce shall enter into a joint venture, whereby all Parties agree and undertake the following: -
| 2.1 | Objective of Joint Venture: |
| (a) | The Parties agree to strategically collaborate, targeting both ECIB’s and CapForce’s (and its affiliated companies’) client base across Asia and/or the world in a variety of business lines as follows (the list below is non-exhaustive): |
| (i) | Labuan-based cross border stock trading platform focused on major global stock markets, catered for various niche communities across Asia named CapForce EC (“CapForce Stock Trading Platform”); and |
| (ii) | digital investment banking platform powered by financial technology (Fintech), riding on Big Data and Artificial Intelligence technologies that enable automated mining, mapping and onboarding of mid-sized pre-listing or late stage growth companies across Asia and the world, onto its Fintech-enabled cap table management platform, which shall give rise to its automated pre-listing private equity investment and public listing sponsorship platform powered by its investment banking robo-advisory Fintech engine (“CapForce Digital Investment Banking Platform”), |
(collectively referred to as “Digital Investment Banking JV Consortium Business”).
| (b) | The Parties hereby agree that all capital expenditures and operating expenses (“Capex and Opex”) of the JV Company shall be borne and split equally among the Parties in relation to the operation of the CapForce Stock Trading Platform. |
| 2.2 | Shareholding Structure: |
| (a) | The Parties will form a JV Company to run the Digital Investment Banking JV Consortium Business. |
| (b) | ECIB will hold Fifty-One per centum (51%) of the ordinary shares in the JV Company. |
| (c) | CapForce will hold Forty-Nine per centum (49%) of the ordinary shares in the JV Company. |
| 2.3 | Profit Sharing: |
| (a) | The Parties hereby agree that all profits from trading fee and/or commission earned from profits (“Profits”) of the JV Company shall be borne and split equally among the Parties in relation to the operation of the CapForce Stock Trading Platform. |
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| (b) | Further to the above, in relation to the business lines other than the CapForce Stock Trading Platform, the Parties hereby agree that the profit-sharing ratio split between the Parties shall be as follows: - |
| (i) | For annual fee revenue exceeding USD10,000,000.00 brought by CapForce to JV Company |
| Name of Party | Profit Sharing Ratio | ||
| ECIB | 10 | ||
| CapForce | 90 |
| (ii) | For annual fee revenue below USD10,000,000.00 brought by CapForce to JV Company |
| Name of Party | Profit Sharing Ratio | ||
| ECIB | 20 | ||
| CapForce | 80 |
| 2.4 | Contractual Arrangement Prior to Formation of JV Company: |
The Parties shall commence the joint venture on a contractual consortium basis pending the formation of the JV Company above and regulatory endorsement on the same.
| 2.5 | Term: |
This Agreement shall come into force on the date of this Agreement and shall continue to be in force for an indefinite period unless terminated by either Party in accordance with Clause 7.3 below.
| 2.6 | Variable Interest Entity Structure |
Upon formation of the JV Company, the JV Company shall enter into a set of Variable Interest Entity (“VIE”) transaction documents with CapForce for CapForce’s financial consolidation with the JV Company.
3. General Duties and Obligation of the Parties
| 3.1 | For ECIB |
| (a) | General Duties |
ECIB shall use its best efforts to cooperate with CapForce to enhance and maximize the returns of investment of the JV Company in the Digital Investment Banking JV Consortium Business.
| (b) | Obligations |
At all times throughout the Term of this Agreement, ECIB shall: -
| (i) | provide reasonable assistance to CapForce in the day-to-day operations, management and functions of the JV Company, where reasonably required, provided that ECIB has the specialization and/or capacity to provide such assistance; |
| (ii) | appoint at least one (1) director to seat in the Board of Directors of the JV Company; and |
| (iii) | make and/or ensure payment of the capital call (if any) is made to the designated bank account of the JV Company and/or its nominee’s designated bank account, as mutually agreed by the Parties. |
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| 3.2 | For CapForce |
| (a) | General Duties |
CapForce shall use its best efforts: -
| (i) | to operate and manage the day-to-day operations, management and functions of the JV Company which includes the execution of the investments in the Digital Investment Banking JV Consortium Business, and where reasonable and/or required, seek ECIB’s opinion and/or consent before execution of the same. |
| (b) | Obligations |
At all times throughout the Term of this Agreement, CapForce shall: -
| (i) | appoint at least two (2) directors to seat in the Board of Directors of the JV Company; |
| (ii) | keep good and proper record of all investment made, books of record and accounts, in which full and correct entries shall be made of all the JV Company’s financial transaction in accordance with the generally accepted accounting principles consistently applied; |
| (iii) | not assume any liability beyond the ordinary course of business of the JV Company; and |
| (iv) | save and except for the usual and ordinary course of business, not take any major actions and/or decisions that may materially affect the JV Company’s rights and/or liabilities. |
| 4. | Call Option |
The Parties hereby agree that ECIB shall grant CapForce a call option to acquire a further 11% - 30% shares from it in the JV Company, the purchase price and actual percentage of shareholdings to be acquired by CapForce be subjected to the agreement of ECIB and regulatory approval where applicable.
| 5. | Non-Circumvention |
| 5.1 | All Parties shall not directly or indirectly interfere with, circumvent or attempt to circumvent, avoid, by-pass or obviate the other Party’s interest, or the interest or relationship between the other Party and its clients, suppliers, service providers and any related parties via the connection of the other Party. In the event of circumvention by either party, directly or indirectly, the circumvented Party shall be entitled to a legal monetary penalty equal to the value of the transaction or the benefits derived thereof, whichever is higher. |
6. Warranties
| 6.1 | Each Party hereby severally represents and warrants to the other Party that: |
| (a) | Each Party is duly incorporated and validly existing under the laws of its place of incorporation; |
| (b) | Each Party has the power and authority to execute, deliver and perform their obligations under this Agreement, and this Agreement is binding upon it and enforceable in accordance with its terms; and |
| (c) | Each Party has complied with and will continue to comply with all laws, rules and regulation or court and governmental orders by which it is bound or to which it is subject in connection with the execution and performance of this Agreement. |
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7. General
| 7.1 | Confidentiality |
Any information, material, negotiation and discussion outcome communicated between the Parties pertaining to this Agreement (“Confidential Information”) shall be kept strictly confidential by all Parties and their respective holding companies, subsidiaries, associate companies, sister or related companies including but not limited to their respective shareholders, directors, employees, agents or any other person having access to such Confidential Information unless being authorised otherwise by the other Party in writing.
| 7.2 | Entire Agreement |
This Agreement sets forth the entire agreement and understanding between the Parties in connection with the matters dealt with and described herein and no Party has relied on any oral or written representation made to it by any other Party.
| 7.3 | Duration Of Agreement |
The terms of this Agreement shall be effective from the date hereof until the formation of the JV Company, after which the Shareholders Agreement of the JV Company shall incorporate all key commercial joint venture terms herein and this Agreement shall be superseded.
| 7.4 | Governing Law and Jurisdiction |
This Agreement shall be governed by and construed in accordance with the laws of Malaysia. In case any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, all parties shall discuss and make the effort to settle amicably. Any disputes arising out of this Agreement which cannot be settled amicably, shall be submitted to an Asian International Arbitration Centre (“AIAC”) in Kuala Lumpur, Malaysia to be mutually agreed upon. The language of the arbitration shall be English.
| 7.5 | Variation And Amendment |
No purported variation of this Agreement shall be effective unless made in writing and signed on behalf of each of the Parties hereto.
| 7.6 | Severability |
If any provision of this Agreement shall be held to be illegal, void, invalid or unenforceable in any respect under the applicable laws of any jurisdiction to which this Agreement is subject, such provision shall be deemed to be severable from this Agreement, neither the legality, validity and enforceability of the remainder of this Agreement, nor the legality, validity and enforceability of such provision under the applicable laws of any other jurisdiction shall in any way be affected or impaired thereby. All Parties shall negotiate in good faith to agree the terms of a mutually acceptable and satisfactory alternative provision in place of the provision so severed.
| 7.7 | No Partnership Or Joint Venture |
Nothing herein contained shall constitute a partnership between or joint venture by the Parties hereto or constitute any Party the agent of the others. No Party shall have any express or implied right or authority to assume or create any obligations on behalf of, or in the name of, the other Party, or to bind the other Party to any contract, agreement or undertaking with any third party.
| 7.8 | Waiver |
The failure by any Party at any time to exercise any right, power, privilege or remedy, or to require performance by any other Party, or to claim a breach of any term of this Agreement, shall not be deemed to be a waiver of any other rights or remedies available to it.
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| 7.9 | Indemnity |
| (a) | The Party in breach of any terms and conditions under this Agreement (“The Defaulting Party”) shall be liable for any loss and/or damage caused by the Defaulting Party’s breach of this Agreement or fraud or bad will misconduct or any negligent act or omission in performance of this Agreement and etc. |
| (b) | The Defaulting Party shall indemnify the other Party (“Non-Defaulting Party”) against any loss, damage or claims arising from the Defaulting Party’s act as described in Clause 6.9(a) above. |
| 7.10 | Assignment And Successors Bound |
Except as otherwise expressly provided in this Agreement, none of the Parties shall assign or transfer the whole or any part of this Agreement or any rights under this Agreement without the prior written consent of the other Party. However, this Agreement shall be binding on the successors in title and permitted assigns of the Parties hereto.
| 7.11 | Force Majeure |
Neither Party shall be responsible for any failure or delay to perform its duties under this Agreement if such failure or delay is caused by, or directly or indirectly due to, act of God, natural disasters, war, hostilities, invasion, enemy action, requisition, embargo, the act or regulation of any government or other competent authority, riot, insurrection, rebellion, revolution, terrorism, pandemics, or any other cause beyond the control of the relevant Party and could not reasonably have been foreseen or provided against, provided that the relevant Party shall use all reasonable efforts to minimise the effects of the same.
| 7.12 | Notices |
| (a) | Any notice required to be given in accordance with this Agreement shall be in writing in the English language and may be delivered by hand, courier, mailed by prepaid airmail, or emailed to the address specified below: |
| (i) | To ECIB at: |
European Credit Investment Bank
Level 6G (2), Main Office Tower, Financial Park Labuan, Jalan Merdeka 87000, Federal Territory of Labuan, Malaysia
Email Address: ken.lim@ecibank.com
| (ii) | To CapForce at: |
CapForce International Holdings Ltd.
Unit Level 11(A), Main Office Tower, Financial Park Labuan, Jalan Merdeka, 87000 Federal Territory of Labuan, Malaysia
Email Address: johntan@aeicapital.com
| (b) | Notice shall be deemed to have been duly given: |
| (i) | Where delivered by hand, upon receipt; |
| (ii) | Where couriered, on such day as delivery is confirmed by the courier; |
| (iii) | Where mailed, on the fifth business day following the date sent; |
| (iv) | Where emailed, on the business day on which the recipient receives the email in readable form. |
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| 7.13 | Counterparts |
This Agreement may be executed in several counterparts and all counterparts so executed shall constitute on agreement binding on all Parties hereto, notwithstanding that all Parties have not signed the original or the same counterpart.
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement on the date first above written.
| ECIB | /s/ Ken Lim | ||
| Executed and delivered by | ) | ||
| EUROPEAN CREDIT INVESTMENT BANK | ) | ||
| (Bank License No. 090099BI) | ) | ||
| Acting by Executive Director | ) | ||
| Ken Lim | ) |
| CapForce | /s/ Mohd Azham Bin Azudin | ||
| Executed and delivered by | ) | ||
| CAPFORCE INTERNATIONAL HOLDINGS LTD. | ) | ||
| Acting by Director | ) | ||
| Mohd Azham Bin Azudin | ) |
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