form8-k.htm

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BJXDQDCut48jplW4en5ldsGUMK4E0ZXgx39makzW3jPyFPUwNU2nJ958ZWkqRdRr MJhPXXr6tlG4W8/DIGUBgQ== 0001368993-09-000011.txt : 20090414 0001368993-09-000011.hdr.sgml : 20090414 20090414172510 ACCESSION NUMBER: 0001368993-09-000011 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20090414 ITEM INFORMATION: Entry into a Material Definitive Agreement FILED AS OF DATE: 20090414 DATE AS OF CHANGE: 20090414 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WaferGen Bio-systems, Inc. CENTRAL INDEX KEY: 0001368993 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 203699764 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-53252 FILM NUMBER: 09749399 BUSINESS ADDRESS: STREET 1: BAYSIDE TECHNOLOGY CENTER STREET 2: 46571 FREMONT BLVD. CITY: FREMONT STATE: CA ZIP: 94538 BUSINESS PHONE: (510) 651-4450 MAIL ADDRESS: STREET 1: BAYSIDE TECHNOLOGY CENTER STREET 2: 46571 FREMONT BLVD. CITY: FREMONT STATE: CA ZIP: 94538 FORMER COMPANY: FORMER CONFORMED NAME: La Burbuja Cafe, Inc. DATE OF NAME CHANGE: 20060714 8-K 1 form8-k.htm FORM 8-K 4/3/09 form8-k.htm

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of report (Date of earliest event reported): April 3, 2009 WaferGen Bio-systems, Inc. (Exact name of registrant as specified in its charter)
Nevada	333-136424	90-0416683
(State or other jurisdiction	(Commission	(I.R.S. Employer
of incorporation)	File Number)	Identification No.)

Bayside Technology Center 46531 Fremont Blvd. Fremont, CA		94538
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (510) 651-4450

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))

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Item 1.01. Entry into a Material Definitive Agreement.

On April 3, 2009, WaferGen Bio-systems, Inc. (the “Company”) and the Company’s subsidiary, WaferGen Bio-systems (M) Sdn. Bhd. (the “Malaysian Subsidiary”), entered into a subscription agreement with Prima Mahawangsa Sdn. Bhd. and Expedient Equity Ventures Sdn. Bhd. (the “Investors”) pursuant to which the Malaysian Subsidiary has agreed to sell 666,666 shares of Series B redeemable convertible preference shares to the Investors in a private placement at a price of US$2.25 per share. The aggregate purchase price for the preferred shares is US$1.5 million. The closing of the private placement is expected to occur by the end of April 2009. The closing is subject to certain conditions and there can be no assurance that the closing will occur in a timely manner, if at all. The proceeds from the private placement will be used to support the high-volume manufacturing of the Company’s SmartChip™ System.

The preferred shares will have a liquidation preference over the Malaysian Subsidiary’s ordinary shares in an amount equal to the purchase price of the preferred shares, plus any accrued but unpaid dividends. The Malaysian subsidiary is not obligated to declare or pay dividends on the preferred shares. Holders of the preferred shares generally will not have voting rights, except as required under Malaysian law. The Malaysian Subsidiary also will be required to obtain the consent of the holders of at least a majority of the outstanding preferred shares prior to taking certain actions. Each preferred share will be convertible into ordinary shares of the Malaysian Subsidiary at the option of the holder at any time based on the applicable conversion rate at such time.

The holders of the preferred shares shall have the right, at any time after December 31, 2011, to cause the Malaysian subsidiary to redeem the preferred shares at a price equal to the purchase price of the preferred shares, plus a redemption premium of 20% per annum. The holders of the preferred shares also will have certain put rights with respect to their shares as follows: (1) the holders will have the right to cause the Company to exchange their preferred shares for common stock of the Company at an effective exchange rate of US$2.25 per share of common stock, provided that if during the 10-day trading period immediately prior to the holder’s conversion notice the average closing price of the Company’s common stock is less than US$2.647, then the holder’s preferred shares shall convert at an exchange rate equal to 85% of such 10-day average closing price; (2) the holders will have the right to cause the Company to purchase all of the preferred shares at a price of US$2.25 per share, plus interest at a rate of 8% per annum with yearly rests, if (x) there is a breach of the subscription agreement by the Company or the Malaysian Subsidiary or (y) during the year 2011, the price of the Company’s stock is below US$2.25 or the holder is unable to exercise its put as described in clause (1) above as a result of any breach or default of the subscription agreement by the Company and (3) the holders will have the right until December 31, 2010, subject to certain exceptions, to put to Alnoor Shivji, the Company’s Chairman, Chief Executive Officer and President, their preferred shares for US$5.625 per share in cash upon the occurrence of certain events, including (x) the transfer by Mr. Shivji, in one or more transactions, of more than 2,603,425 shares of common stock of the Company beneficially held by him to one or more persons, other than his affiliates or relatives, or (y) Mr. Shivji’s voluntary resignation from the board of directors of the Company if such resignation is not approved by, or is not pursuant to a restructuring of the Company or the Malaysian Subsidiary approved by, holders of a majority of the outstanding preferred shares at the time of such resignation. In connection with the closing of the private placement, the Malaysian Subsidiary will provide the investors who purchased the Malaysian Subsidiary’s Series A redeemable convertible preference shares in May 2008, with rights and privileges with respect to their Series A preference shares that are consistent with the rights of the holders of the Series B preference share as described above.

The foregoing summary of the terms of the subscription agreement, the preferred shares and the put rights do not purport to be complete and are qualified in their entirety by the subscription agreement and the forms of the put agreements, copies of which are attached hereto as Exhibits 10.1, 10.2 and 10.3 and incorporated herein by reference.

Item 7.01. Regulation FD Disclosure.

The Company issued a press release on April 14, 2009 regarding the private placement described in Item 1.01 above. The full text of the press release is furnished hereto as Exhibit 99.1.

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Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

Ex. No.

Description

10.1 Share Subscription Agreement dated April 3, 2009, by and among WaferGen Bio-systems, Inc.,WaferGen Biosystems (M) Sdn. Bhd., Primar Mahawangsa Sdn. Bhd. and Expedient Equity Ventures SdnBhd.

10.2 Form of Put Agreement by and among WaferGen Bio-systems, Inc., Primar Mahawangsa Sdn. Bhd. and Expedient Equity Ventures Sdn Bhd.

10.3 Form of Put Agreement by and among Alnoor Shivji, Primar Mahawangsa Sdn. Bhd. and Expedient EquityVentures Sdn. Bhd.

99.1 Press release issued on April 14, 2009 by WaferGen Bio-systems, Inc.

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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 hereunto duly authorized.

	WaferGen Bio-systems, Inc.
Date: April 14, 2009	By:	/s/ Amjad Huda
		Amjad Huda
		Chief Financial Officer

EX-10.1 2 ex10-1.htm EXHIBIT 10.1 ex10-1.htm

Exhibit 10.1

Dated April 3, 2009

Between

Wafergen Bio-Systems Inc

and

Prima Mahawangsa Sdn Bhd

and

Expedient Equity Ventures Sdn Bhd

and

Wafergen Biosystems (M) Sdn Bhd

Share Subscription Agreement

Proposed subscription of shares in Wafergen Biosystems (M) Sdn Bhd (formerly known as Global Dupleks Sdn Bhd)

Share Subscription Agreement |

Contents

Recitals [INSERT PAGE NUMBER]

1 Definitions and Interpretations [INSERT PAGE NUMBER]

1.1 Definitions [INSERT PAGE NUMBER]

1.2 Interpretation [INSERT PAGE NUMBER]

2. Conditions [INSERT PAGE NUMBER]

2.1 Conditions Precedent [INSERT PAGE NUMBER]

2.2 Undertaking by the Company [INSERT PAGE NUMBER]

2.3 Waiver [INSERT PAGE NUMBER]

2.4 Non-fulfillment [INSERT PAGE NUMBER]

3. Share Capital [INSERT PAGE NUMBER]

3.1 Subscription for Preference Shares [INSERT PAGE NUMBER]

4. Subscription Completion Date [INSERT PAGE NUMBER]

4A. Utilisation of Funds [INSERT PAGE NUMBER]

5. Undertakings, Warranties and Representations by the Parties [INSERT PAGE NUMBER]

6 Put Options [INSERT PAGE NUMBER]

6.1 Investor’s Put Right for shares in the Existing Shareholder [INSERT PAGE NUMBER]

6.2 Investor’s Put Option for Series B RCPS or Conversion Shares [INSERT PAGE NUMBER]

7. Previous Agreements and Prevalence of Agreement [INSERT PAGE NUMBER]

8. Remedy on an Event of Default [INSERT PAGE NUMBER]

9. Confidentiality [INSERT PAGE NUMBER]

10. Further Assurance [INSERT PAGE NUMBER]

11. Remedies [INSERT PAGE NUMBER]

12. Waiver and Variation [INSERT PAGE NUMBER]

12.1 Rights not affected [INSERT PAGE NUMBER]

12.2 Cumulative rights and remedies [INSERT PAGE NUMBER]

12.3 Variation [INSERT PAGE NUMBER]

13. Severability [INSERT PAGE NUMBER]

14. Continuing Effect [INSERT PAGE NUMBER]

15. Time [INSERT PAGE NUMBER]

16. Legal Relationship [INSERT PAGE NUMBER]

17. Costs and Expenses [INSERT PAGE NUMBER]

18. Assignment; Successors [INSERT PAGE NUMBER]

18.1 Assignment [INSERT PAGE NUMBER]

18.2 Successors and assigns [INSERT PAGE NUMBER]

19. Notices [INSERT PAGE NUMBER]

20. Entire agreement [INSERT PAGE NUMBER]

21. Counterparts [INSERT PAGE NUMBER]

22. Governing Law and Jurisdiction [INSERT PAGE NUMBER]

SCHEDULE 1 [INSERT PAGE NUMBER]

1. Subscription Price and par value [INSERT PAGE NUMBER]

2. Premium [INSERT PAGE NUMBER]

3. Dividend Provision [INSERT PAGE NUMBER]

4. Liquidation Preference [INSERT PAGE NUMBER]

5. Conversion [INSERT PAGE NUMBER]

6. [Deleted] [INSERT PAGE NUMBER]

7. Redemption Rights [INSERT PAGE NUMBER]

8. Voting Rights [INSERT PAGE NUMBER]

9. Protective Provisions [INSERT PAGE NUMBER]

10. No Variation [INSERT PAGE NUMBER]

SCHEDULE 2 [INSERT PAGE NUMBER]

1. Representations and Warranties by the Investor [INSERT PAGE NUMBER]

2. Representations and Warranties by the Existing Shareholder and the Company [INSERT PAGE NUMBER]

SCHEDULE 3 [INSERT PAGE NUMBER]

Execution [INSERT PAGE NUMBER]

Share Subscription Agreement |

This Agreement is made on April 3, 2009 between:

(1)	Wafergen Bio-Systems, Inc (WGBS.OB), a Nevada USA incorporated company with a registered address and place of business at Bayside Technology Center, 46531 Fremont Blvd, Fremont, CA 94538, USA (“Existing Shareholder”);

and

(2)	Prima Mahawangsa Sdn Bhd (Company No. 833152-M), a company incorporated in Malaysia with a registered address at 5th Floor, Bangunan CIMB, Jalan Semantan, Damansara Heights , 50490 Kuala Lumpur (“PMSB”);

and

(3)	Expedient Equity Ventures Sdn Bhd (Company No 780509-U), a company incorporated in Malaysia with a registered address at Level 11, Menara Bank Pembangunan, 1016, Bandar Wawasan, Jalan Sultan Ismail, 50300, Kuala Lumpur (“EEV”);

and

(4)	Wafergen Biosystems (M) Sdn Bhd (formerly known as Global Dupleks Sdn Bhd) (Company No 795066-H), a company incorporated in Malaysia with a registered address at Unit C-12-4, Megan Avenue 11, No 12, Jalan Yap Kwan Seng, 50450 Kuala Lumpur (“Company”).

(PMSB and EEV are collectively referred to as “Investors”)

Recitals

(A)	The Company is a private company limited by shares incorporated under the laws of Malaysia and has at the date of this Agreement an authorised share capital of RM10,000,000 divided into 8,000,000 ordinary shares of RM1.00 each and 200,000,000 redeemable convertible preference shares of RM0.01 each.

(B)	The Existing Shareholder is the legal and beneficial owner of the 300,000 ordinary shares of RM1.00 each in the Company, representing 100% of the issued and paid-up ordinary share capital of the Company.

(C)

The Existing Shareholder, the Company and Malaysian Technology Development Corporation Sdn Bhd (“MTDC”) have entered into a Share Subscription and Shareholders’ Agreement dated 8 May 2008 (“SSSA”) where MTDC agreed to subscribe for 888,888 Series A Redeemable Convertible Preference Shares (“Series A RCPS”) in the Company, pursuant to the terms and conditions in the SSSA.

(D)	MTDC is, as at the date of this Agreement, the legal and beneficial owner of 444,444 Series A RCPS in the Company, representing 100% of the issued and paid up preference share capital of the Company.

(E)	The Existing Shareholder and the Company intend to raise a further USD1,500,000 in multiple tranches, in addition to the USD2,000,000 to be raised pursuant to the SSSA.

(F)	The Existing Shareholder and the Company have requested the Investors to, and the Investors have agreed to, participate in the Company by way of subscription for

Share Subscription Agreement |

the Series B RCPS (as defined below) upon the terms and subject to the conditions set out in this Agreement.

(G)	PMSB and EEV have entered or will enter into a deed of adherence and have agreed to accede to the relevant terms and conditions of the SSSA, effective from the PMSB Initial Closing and EEV Initial Closing respectively.

It is agreed as follows:

1 Definitions and Interpretations

1.1 Definitions

In this Agreement, unless the context otherwise requires:

Act	means the Companies Act 1965;
Alpha Stage	means the successful completion of Alpha based on the written report from the Principal Researcher from UPMC indicating that the SmartChip system has performed to its specifications, that is the SmartChip system is able to perform six SmartChip experiments by following instructions provided in the SmartChip user manual using UPMC biological specimens and generate gene expression data using fully integrated SmartChip components, such as content ready chip, nano-dispenser and the real-time qPCR instrument;
Articles	means the articles of association of the Company;
Board	means the board of directors of the Company;
PMSB Initial Closing	means completion of the subscription by PMSB of the relevant Tranche A Shares in accordance with Clauses 3 and 4;
PMSB Initial Closing Date	means twenty one (21) days from the date of this Agreement or such later date as PMSB, the Existing Shareholder and the Company may mutually agree on;
PMSB Subsequent Closing	means upon fulfilment of the milestones provided for in Clause 3.1.1(b);
Conversion Shares	means the Shares resulting from the conversion of the RCPS, such Conversion Shares to rank pari passu in all respects with all other then existing Shares, and “Conversion Share” means one of the Conversion Shares;

Share Subscription Agreement |

Deed of Adherence	means the Deed of Adherence dated the same day as this Agreement between the Existing Shareholder, the Company, MTDC, PMSB and EEV;
Director	means any director of the Company appointed on the Board including, where applicable, any alternate director;
EEV Initial Closing	means completion of the subscription by EEV of the relevant Tranche A Shares in accordance with Clauses 3 and 4;
EEV Initial Closing Date	means twenty one (21) days from the date of this Agreement or such later date as EEV, the Existing Shareholder and the Company may mutually agree on;
EEV Subsequent Closing	means upon fulfilment of the milestones provided for in Clause 3.1.2(b);
Encumbrance	means any mortgage, charge, pledge, lien, assignment, hypothecation, security interest, title retention, right of first refusal, pre-emption right, option, preferential right or trust arrangement or other security arrangement or agreement conferring a right to a priority of payment;
Investors	means PMSB and EEV;
IPO	means the listing of the Company on any approved stock exchange;
Parties	means the Existing Shareholder, the Investors and the Company, and “Party” refers to any one (1) of them;
RCPS	means the Series A RCPS and/or the Series B RCPS;
Series A RCPS	means Series A Redeemable Convertible Preference Shares of the Company with principal terms as set out in Schedule 1 of the SSSA including the amendments as set out in the Deed of Adherence;
Series B RCPS	means Series B Redeemable Convertible Preference Shares of the Company with principal terms as set out in Schedule 1 of this Agreement;
Shares	means ordinary shares of RM1.00 each in the share capital of the Company, and “Share” refers to any one (1) of them;

Share Subscription Agreement |

Subscription Notice	means the subscription notice to be issued by the New Investors to the Company from time to time in accordance with this Agreement in the form as annexed herewith in Schedule 3
Subscription Price	means the Ringgit Malaysia equivalent to USD2.25 calculated at the prevailing exchange rate on the date payment of the Subscription Price is effected, payable by the Investors for each Series B RCPS under this Agreement, out of which RM0.01 is to be paid towards the par value of each Series B RCPS and the difference between the Subscription Price and the par value of RM0.01 (constituting the subscription premium) is to be credited to the share premium account of the Company;
Tranche A Shares	means 333,333 new Series B RCPS of RM0.01 each in the Company to be issued at the Subscription Price;
Tranche B Shares	means 333,333 new Series B RCPS of RM0.01 each in the Company to be issued at the Subscription Price;
Warranties	means the representations and warranties made by the Investor, the Existing Shareholder and the Company, as set out in Schedule 2; and
USD	means United States Dollar, the lawful currency of the United States of America;

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

(a)

headings and underlining are for convenience only and do not affect the interpretation of this Agreement;

(b)

words importing the singular include the plural and vice versa;

(c)

words importing a gender include any gender;

(d)

an expression importing a natural person includes any corporation or other body corporate, partnership, association, governmental agency, two or more persons having a joint or common interest, or any other legal or commercial entity or undertaking;

(e)

a reference to a party to a document includes that party's successors and permitted assigns;

(f)

any part of speech or grammatical form of a word or phrase defined in this Agreement has a corresponding meaning; and

(g)

a warranty, representation, covenant or agreement on the part of two or more persons binds them jointly and severally.

Share Subscription Agreement |

2. Conditions

2.1 Conditions Precedent

2.1.1

The subscription for the Series B RCPS by PMSB is subject to, and conditional upon, the fulfilment of the following conditions precedent within 21 days from the date of this Agreement (subject to extension by agreement of PMSB, the Existing Shareholder and the Company):

(a)

the approval and agreement of the investment committee of PMSB;

(b)

the successful completion of the due diligence exercise and PMSB being satisfied with the results of their investigation or due diligence exercise on the Company;

(c)

the Company secretarial forms and documents (including the register of members) having been updated and filed with the relevant authorities or bodies to reflect the change in directorship, shareholder and shareholding in the Company, in accordance with the terms and conditions of this Agreement;

(d)

PMSB being satisfied that all internal resolutions regarding the Company and its activities are up to date and in order (where confirmation of satisfaction shall not be unreasonably withheld);

(e)

amendments to the Articles as are necessary to reflect in full the terms of this Agreement;

(f)

statutory declaration signed by the Existing Shareholder;

(g)

there being no material adverse change in the financial condition or operations of the Company or the Existing Shareholder;

(h)

execution of the deed of adherence referred to in Recital G; and

(i)

the Existing Shareholder entering into a product licensing agreement with the Company in relation to the SmartChipTM Real-Time PCR System and SmartSlideTM MicroIncubation System which provides that the intellectual property rights to the improvements developed by the Company in relation to the SmartChipTM Real-Time PCR System and SmartSlideTM MicroIncubation System shall vest in the Company and the Company shall grant the Existing Shareholder a perpetual royalty free licence in relation to the intellectual property rights to the improvements and a right to sub-licence to any other party without territorial restrictions.

2.1.2

The subscription for the Series B RCPS by EEV is subject to, and conditional upon, the fulfilment of the following conditions precedent within 21 days from the date of this Agreement (subject to extension by agreement of EEV, the Existing Shareholder and the Company):

Share Subscription Agreement |

(a)

the approval and agreement of the investment committee of EEV;

(b)

the successful completion of the due diligence exercise and EEV being satisfied with the results of their investigation or due diligence exercise on the Company;

(c)

(d)

EEV being satisfied that all internal resolutions regarding the Company and its activities are up to date and in order (where confirmation of satisfaction shall not be unreasonably withheld);

(e)

amendments to the Articles as are necessary to reflect in full the terms of this Agreement;

(f)

statutory declaration signed by the Existing Shareholder;

(g)

there being no material adverse change in the financial condition or operations of the Company or the Existing Shareholder;

(h)

execution of the deed of adherence referred to in Recital G; and

(i)

2.2 Undertaking by the Company

Subject to the PMSB Initial Closing and EEV Initial Closing, the Company undertakes to PMSB and EEV (as the case may be) to carry out the following within 1 year from the PMSB Subsequent Closing and EEV Subsequent Closing (as the case may be) (subject to extension by agreement with PMSB or EEV (as the case may be)):

(a)

to provide to PMSB and EEV (as the case may be) a clear arrangement on the ownership of future intellectual property developed by the Company;

(b)

to put in place a comprehensive training programme to transfer the know-how from US experts to the Malaysian team; and

(c)

the Company entering into a research and development agreement or understanding to pursue agrobiotechnology research and development with a reputable Malaysian entity.

Share Subscription Agreement |

2.3 Waiver

To the extent permitted by law, PMSB and EEV may waive the fulfilment of any condition precedent in Clause 2.1.1 or Clause 2.1.2 respectively, and any undertaking in Clause 2.2.

2.4 Non-fulfillment

2.4.1

Unless specifically waived under Clause 2.3, if the condition precedent in Sub -clauses 2.1.1(a), (b) and (h) are not fulfilled within 21 days after the date of this Agreement (or such later date as the relevant Parties may mutually agree on):

(a)

this Agreement shall automatically cease and terminate in relation to PMSB;

(b)

all obligations and liabilities of PMSB under this Agreement shall cease to have effect;

(c)

PMSB shall not have any claim against any other party in relation to this Agreement; and

(d)

PMSB shall pay the Existing Shareholder all costs and fees incurred by the Existing Shareholder in relation to the preparation of this Agreement,

but notwithstanding anything to the contrary in this Clause, a party shall be liable for any antecedent breach of this Agreement and continue to be liable in relation to Clause 9.

2.4.2

Unless specifically waived under Clause 2.3, if any condition precedent in Sub-clauses 2.1.2 (a), (b) and (h) are not fulfilled within 21 days after the date of this Agreement (or such later date as the relevant Parties may mutually agree on):

(a)

this Agreement shall automatically cease and terminate in relation to EEV;

(b)

all obligations and liabilities of EEV under this Agreement shall cease to have effect; and

(c)

EEV shall not have any claim against any other party in relation to this Agreement; and

(d)

EEV shall pay the Existing Shareholder all costs and fees incurred by the Existing Shareholder in relation to the preparation of this Agreement,

but notwithstanding anything to the contrary in this Clause, a party shall be liable for any antecedent breach of this Agreement and continue to be liable in relation to Clause 9.

2.4.3

Unless specifically waived under Clause 2.3, if the condition precedent in Sub-clauses 2.1.1(c), (e), (f), (g) and (h) and Sub-clauses 2.1.2(c), (e), (f), (g) and (h) are not fulfilled within 21 days after the date of this Agreement (or such later date as the relevant Parties may mutually agree on):

(a)

this Agreement shall automatically cease and terminate in relation to PMSB and EEV;

(b)

all obligations and liabilities of PMSB and EEV under this Agreement shall cease to have effect;

Share Subscription Agreement |

(c)

the Existing Shareholder shall not have any claim against any other party in relation to this Agreement; and

(d)

the Existing Shareholder shall pay PMSB and EEV (as the case may be) all costs and fees incurred by the PMSB and EEV (as the case may be) in relation to the preparation of this Agreement,

but notwithstanding anything to the contrary in this Clause, a party shall be liable for any antecedent breach of this Agreement and continue to be liable in relation to Clause 9.

3. Share Capital

3.1 Subscription for Preference Shares

3.1.1

Subject to the terms and conditions of this Agreement, PMSB shall subscribe in cash for 444,444 Series B RCPS, allocated across several tranches as follows:

(a)

at the PMSB Initial Closing Date, PMSB will subscribe for Tranche A Shares, and the Company will allot and issue Tranche A Shares to PMSB, free from any Encumbrance; and

(b)

upon successful completion of the Alpha Stage (“PMSB Subsequent Closing”), PMSB will subscribe for Tranche B Shares, and the Company will allot and issue Tranche B Shares to PMSB, free from any Encumbrance.

3.1.2

Subject to the terms and conditions of this Agreement, EEV shall subscribe in for 222,222 Series B RCPS, allocated across several tranches as follows:

(a)

at the EEV Initial Closing Date, EEV will subscribe for Tranche A Shares, and the Company will allot and issue Tranche A Shares to EEV, free from any Encumbrance; and

(b)

upon successful completion of the Alpha Stage (“EEV Subsequent Closing”), EEV will subscribe for Tranche B Shares, and the Company will allot and issue Tranche B Shares to EEV, free from any Encumbrance.

3.1.3

The Investors shall subscribe for the amount of shares and consideration as follows:

Name of Investor	Tranche A		Tranche B		Total
	No. of RCPS	Consider-ation (USD)	No. of RCPS	Consider-ation (USD)	No. of RCPS	Consider-ation (USD)
PMSB	222,222	500,000	222,222	500,000	444,444	1,000,000
EEVB	111,111	250,000	111,111	250,000	222,222	500,000

Share Subscription Agreement |

The principal terms of the Series B RCPS are set out in Schedule 1.

3.1.4

The subscription for the Series B RCPS by PMSB is not dependant or interconditional with the subscription of the Series B RCPS by EEV and the subscription of the Series B RCPS by EEV is not dependant or interconditional with the subscription of the Series B RCPS by PMSB, and neither is dependant or interconditional on completion or performance of the SSSA.

3.1.5

In respect of each subscription for Series B RCPS under this Agreement, the Company will issue a Subscription Notice to the Investors. The Subscription Notice will specify the number of Series B RCPS to be subscribed by the Investors under Tranche A at the PMSB Initial Closing and EEV Initial Closing, and Tranche B at the PMSB Subsequent Closing and EEV Subsequent Closing, and the Subscription Price.

3.1.6

The Existing Shareholder irrevocably confirms its waiver of all rights of pre-emption whatsoever that it may have in connection with the issue and conversion of the Series B RCPS to the Investors pursuant to the terms of this Agreement.

4. Subscription Completion Date

4.1	Subject to fulfilment or waiver of all conditions precedent in Clause 2.1.1, the completion of each allotment and issue of the Series B RCPS to PMSB pursuant to this Agreement shall take place at the registered office of the Company as follows:

(a) Tranche A Shares at the PMSB Initial Closing Date; and

(b)

Tranche B Shares at the PMSB Subsequent Closing;

or such other date and time as may be mutually agreed by the Company and PMSB in writing.

4.2	Subject to fulfilment or waiver of all conditions precedent in Clause 2.1.2, the completion of each allotment and issue of the Series B RCPS to EEV pursuant to this Agreement shall take place at the registered office of the Company as follows:

(a) Tranche A Shares at the EEV Initial Closing Date; and

(b) Tranche B Shares at the EEV Subsequent Closing;

or such other date and time as may be mutually agreed by the Company and EEV in writing.

4.3

The Investors shall cause or procure a cheque, bank draft or cashier’s order in favour of the Company to be deposited, or a telegraphic or electronic transfer made, to the bank account of the Company held with HSBC Bank Berhad for the total subscription monies payable for the number of Series B RCPS to be subscribed (as set out in the relevant Subscription Notice), in exchange for the delivery by the Company of the following:

Share Subscription Agreement |

(a)

at the PMSB Initial Closing and EEV Initial Closing, the share certificates in respect of the Series B RCPS, a certified extract of the shareholders' resolution of the Company approving the subscription of the Tranche A Shares by PMSB at the PMSB Initial Closing and by EEV at the EEV Initial Closing (as the case may be) (including amendment of the Articles of Association of the Company where required), pursuant to the terms and subject to the conditions of this Agreement;

(b)

at the PMSB Subsequent Closing and EEV Subsequent Closing, the share certificates in respect of the Series B RCPS, a certified extract of the shareholders' resolution of the Company approving the subscription of the Tranche B Shares by at the PMSB Subsequent Closing and by EEV at the EEV Subsequent Closing (as the case may be), pursuant to the terms and subject to the conditions of this Agreement; and

(c)

a certified extract of the resolution of the Board confirming the allotment and issue of the relevant number of the Series B RCPS to be subscribed by the Investors:

(i)

at both the PMSB Initial Closing and PMSB Subsequent Closing; and

(ii)

at both the EEV Initial Closing and the EEV Subsequent Closing,

pursuant to the relevant Subscription Notice.

4A.	Utilisation of Funds

The Parties agree that 60% of the total investment raised through the issuance of the Series A RCPS and the Series B RCPS will be utilised for the operations of the Company in Malaysia. The remaining 40% of the total investment raised through the issuance of the Series A RCPS and Series B RCPS shall be utilized in the best interest of the Company.

5.	Undertakings, Warranties and Representations by the Parties

5.1

Subject to any exceptions expressly and specifically disclosed in any correspondence, communication, document or information in writing prior to or after the execution of this Agreement and prior to the completion of the subscription of the Series B RCPS, the Parties warrant to each other that the information and statements set out in the Warranties are true, accurate and correct in all respects at the date of this Agreement. To this effect, the Warranties will be deemed to be repeated during this period as if they had been entered into afresh during the said period in relation to the facts and circumstances then existing.

5.2	The Parties acknowledge and agree that each of them entered into this Agreement in reliance on the Warranties.

5.3	Each of the Warranties is separate and is to be construed independently of the others and is not limited by reference to any of the other Warranties.

Share Subscription Agreement |

Save as disclosed to the Investors in any correspondence, communication, document or information in writing prior to or after the execution of this Agreement and prior to the completion of this Agreement, no information relating to the Series B RCPS or the Company will limit the nature of the Warranties given by the Company under this Agreement, or will prejudice any claim to be made by the Investors against the Company for any breach of the Warranties.

5.4	Each Party will indemnify and will keep the other Parties indemnified against all losses, damages, costs and expenses which the other Parties may incur or be liable for in respect of any claim, demand, liability, action, proceedings or suits arising out of or in connection with :

(a)

a breach of a Warranty;

(b)

any Warranty not being true and correct in all respects; or

(c)

any Warranty being misleading in any respect,

save and except where any of the matters set out in Clauses 5.1 to 5.3 shall have been apparent in any correspondence, communication, document or information in writing and disclosed or provided to the Investors prior to or after the execution of this Agreement and prior to the completion of this Agreement.

6. Put Options

6.1 Investor’s Put Right for shares in the Existing Shareholder

The Existing Shareholder will grant to each of the Investors an option to sell all the Series B RCPS held by the Investors to the Existing Shareholder upon the terms and conditions of the Put Agreement to be entered into between the Existing Shareholder and the Investors.

6.2 Investor’s Put Option for Series B RCPS or Conversion Shares

The Investors shall each have the option to require the Existing Shareholder to purchase all (but not less than all) of the Conversion Shares or Series B RCPS held by the Investors, upon thirty (30) days’ notice in writing to the Existing Shareholder. The price payable for each Conversion Share shall be calculated based on the formula for the issue price per Conversion Share set out in paragraph 5 of Schedule 1 of this Agreement whereas the price payable for each Series B RCPS is USD2.25, such price compounded at the rate of 8% per annum with yearly rests, up to the date of exercise of the option, and at the discretion of the Investors, may be satisfied by either cash or the issuance of shares in the Existing Shareholder. The option shall be exercisable as follows:

(a)

any time after the PMSB Initial Closing or EEV Initial Closing (where relevant) for as long as the PMSB or EEV (as the case may be) is the holder of Series B RCPS in the Company, in the event there is a material breach or default by the Company or the Existing Shareholder in any of their representations, warranties, undertakings, covenants and obligations under

Share Subscription Agreement |

this Agreement which has not been remedied after 30 days written notice of such material breach or default; or

(b)

any time between 1 January 2011 and 31 December 2011 and subject to the following:

(i)

the share price of the Existing Shareholder’s shares is below USD2.25; or

(ii)

due to any breach or default attributable to the Existing Shareholder, the Investor is unable to exercise its rights under the Put Agreement.

7. Previous Agreements and Prevalence of Agreement

7.1	This Agreement and the documents referred to in its provisions are in substitution for all previous agreements between all or any of the Parties and contain the whole agreement between the Parties relating to the subject matter of this Agreement.

8. Remedy on an Event of Default

8.1	Each of the following will be regarded as an Event of Default:

(a)

either of the Parties committing a breach of its obligations under this Agreement and, in the case of a breach capable of remedy, failing to remedy the same within twenty one (21) days of being specifically required in writing so to do by the other Party; or

(b)

any distress, execution, sequestration or other process being levied or enforced upon or sued out against the property of any of the Parties which is not discharged within ten (10) days; or

(c)

any encumbrancer taking possession of or a receiver or trustee being appointed over the whole or any part of the undertaking, property or assets of any of the Parties; or

(d)

the making of an order or the passing of a resolution for the winding up of any of the Parties, otherwise than for the purpose of a reconstruction or amalgamation without insolvency or previously approved by the other Parties (such approval not to be unreasonably withheld).

8.2	In the event of an Event of Default taking place prior to the PMSB Initial Closing or EEV Initial Closing (as the case may be),

(a)

where the Company or the Existing Shareholder is the defaulting Party, PMSB and EEV shall be entitled to terminate this Agreement;

(b)

where PMSB is the defaulting Party, the Company and the Existing Shareholder shall be entitled to terminate this Agreement as against PMSB and to proceed with the completion of this Agreement with EEV;

(c)

where EEV is the defaulting Party, the Company and the Existing Shareholder shall be entitled to terminate this Agreement as against EEV and to proceed with the completion of this Agreement with PMSB;

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without prejudice to any rights or remedies the non-defaulting Parties may have against the defaulting Party for any antecedent breach.

8.3	Notwithstanding any provision in this Agreement to the contrary, this Agreement shall remain in full force and effect for so long as shall be necessary to fulfil and give effect to the arrangements and undertakings contained in this Agreement.

8.4

Termination of this Agreement for any cause in accordance with the provisions of this Agreement shall not release any Party from any liability which at the time of termination has already accrued to the other or which thereafter may accrue in respect of any act or omission prior to such termination or which has accrued in consequence of this clause.

9. Confidentiality

Parties shall :

(a)

ensure the confidentiality of this Agreement and the transactions contemplated in this Agreement;

(b) not disclose any provision of this Agreement except :

(i)

where required by law or any relevant governmental regulatory body or competent authority;

(ii) to any financier or professional adviser acting for the party; or

(iii)

the information is public knowledge otherwise than as a consequence of breach of this Clause.

All public announcements where references are made to the Investors or companies related to the Investors shall only be made with the prior written consent of the relevant Investor (which shall not be unreasonably withheld), irrespective of the jurisdiction in which the announcement is made.

This restriction continues to apply after the expiration or sooner termination of this Agreement without limit in point of time but ceases to apply to information or knowledge which may properly come into the public domain through no fault of the Party so restricted.

10. Further Assurance

Each party shall execute and do all such documents and things as are necessary to carry this Agreement into effect or to give full effect to this Agreement.

11. Remedies

If a Party does not comply with its obligations under this Agreement, the other Parties are entitled to the remedy of specific performance and injunctive relief (as may be applicable), and monetary compensation by itself is not an adequate remedy.

Share Subscription Agreement |

12. Waiver and Variation

12.1 Rights not affected

The rights which each Party has under this Agreement shall not be prejudiced or restricted by any delay in exercising or failure to exercise any right or remedy under this Agreement. Unless otherwise agreed in writing, no waiver by any party in respect of a breach shall operate as a waiver in respect of any subsequent breach.

12.2 Cumulative rights and remedies

The rights and remedies provided in this Agreement are in addition to, and do not exclude or limit, any rights or remedies provided by law or equity.

12.3 Variation

This Agreement shall not be varied unless the variation is expressly agreed in writing by each Party.

13. Severability

If any provision of this Agreement is void or unenforceable, it shall be regarded as deleted from this Agreement, and the remaining provisions shall continue to apply.

14. Continuing Effect

Notwithstanding the completion of the transaction contemplated in this Agreement, the provisions of this Agreement shall continue to survive or subsist so long as may be necessary for the purpose of giving effect to each of them.

15. Time

Time wherever mentioned in this Agreement shall be of the essence of this Agreement.

16. Legal Relationship

Nothing in this Agreement shall create, or be regarded as creating, a partnership or the relationship of employer and employee between the Parties. Neither Party has any authority to bind the other in any way.

The Parties are all separate legal entities and as such no third parties shall have any claim or recourse against the Company for the liabilities and obligations of the Existing Shareholder to the abovementioned third parties.

Share Subscription Agreement |

17. Costs and Expenses

The Parties shall be liable for their own respective costs incurred, as follows:

(a) due diligence costs;

(b) fees for the solicitors’, company secretary, tax advisers and accountants; and

18. Assignment; Successors

18.1 Assignment

Parties may not assign or otherwise deal with its respective rights or benefits under this Agreement without the prior written consent of the other Parties.

18.2 Successors and assigns

This Agreement shall be binding upon the parties and their respective successors, permitted assigns and personal representatives.

19. Notices

Without affecting any other effective mode of service, any notice given under this Agreement :

(a)

must be in writing and may be delivered personally or sent by registered post to the intended recipient at the address shown below or the address last notified by the intended recipient to the sender :

For the Investors :

PMSB

5th Floor, Bangunan CIMB,

Jalan Semantan, Damansara Heights,

50490 Kuala Lumpur

Attn: Darawati Hussain

Tel: +603 2084 8888

Fax: +603 2093 9688

c/o

Trupartners Sdn Bhd

M-2-1, Block M,

Share Subscription Agreement |

Plaza Damas,

60 Jalan Sri Hartamas 1,

54080 Kuala Lumpur

Attn: Norazharuddin Abu Talib

Tel: +603 6203 3030

Fax: +603 6203 3131

EEV

Suite 064, Kompleks Eureka,

University Sains Malaysia,

Minden

11800, Penang

Attn: Mohd Daniel

Tel: +604-6599721

Fax: +604-6599723

For the Existing Shareholder:

Wafergen Bio-Systems Inc

Bayside Technology Center,

46531 Fremont Blvd,

Fremont, CA 94538, USA

Attn : Alnoor Shivji

Tel : +1 (510) 468-0546

Fax : +1 (510) 651-4599

For the Company:

Wafergen Biosystems (M) Sdn Bhd (formerly known as Global Dupleks Sdn Bhd)

Suite B.3(2), Ground Floor

KHTP Business Centre

KHTP, 09000 Kulim

Kedah Darul Aman, Malaysia

Tel : +6019 312 4751

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Fax : +604 402 3305

Attn: Nazri Said

(b)

must be signed; and

(c)

will be taken to be duly given or made :

(i)

(in the case of delivery in person) when delivered, received or left at the above address; and

(ii)

(in the case of delivery by registered post) 48 hours after posting, and in proving service it shall only be necessary to prove that the communication was contained in an envelop which was duly addressed and posted in accordance with this Clause,

but if delivery, receipt or service occurs, or will be taken to occur, on a day on which business is not generally carried on in the place to which the communication is sent or is later than 4 p.m. (local time) it will be taken to have been duly given or made at the commencement of business on the next day on which business is generally carried on in the place.

20. Entire agreement

This Agreement is the entire agreement between the Parties in respect of its subject matter and supersedes all previous agreements with respect to its subject matter.

21. Counterparts

This Agreement may be executed in any number of counterparts, and all counterparts taken together constitute one and the same instrument.

22. Governing Law and Jurisdiction

This Agreement is governed by the laws of Malaysia, and each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Malaysia.

Share Subscription Agreement |

SCHEDULE 1

Principal Terms of the Series B RCPS

1. Subscription Price and par value

The subscription price for each Series B RCPS shall be Ringgit Malaysia equivalent to USD2.25 calculated at the prevailing exchange rate on the on the date of payment of the Subscription Price is effected. Each Series B RCPS shall have a par value of RM0.01.

2. Premium

Each Series B RCPS shall be issued at a premium being the difference between the Subscription Price and the par value of RM0.01.

3. Dividend Provision

There is no specific dividend rate attached to the Series B RCPS and the Company is not obliged to declare and pay any dividend while the Investors are holding the Series B RCPS.

4. Liquidation Preference

In the event of any liquidation, dissolution or winding up of the Company, the holders of the Series B RCPS will be entitled to receive only in preference to the holders of Shares, and not the Series A RCPS (which rank pari passu for the purposes of this provision), the relevant Subscription Price paid for the Series B RCPS plus all accrued but unpaid dividends and dividends in arrears, if any.

5. Conversion

Each holder of the Series B RCPS will have the right, at the option of the holder at any time, to convert all or part of the Series B RCPS into such number of Shares as may be determined in accordance with the following formula:

A x (Total Number of + Total Number of RCPS

(A + B + USD10 million) RCPS subscribed subscribed by all other = N

By the holder holders (past and present)

of RCPS)

represents the aggregate original investment amount in USD (comprising the subscription moneys paid to the Company for subscription for RCPS) of the holder in the Company

represents the aggregate original investment amount in USD (comprising the subscription moneys paid to the Company for subscription for RCPS) of all other holders (past and present) of RCPS in the Company

Share Subscription Agreement |

The conversion is to be effected by and subject to the redemption of the Series B RCPS from funds legally available for distribution at the redemption price of USD2.25 per Series B RCPS and the issuance of such number of new Shares to the holder with the issue price based on the following formula:

Issue price per Share = A

and applying the redemption monies towards such issue price.

PROVIDED THAT

(i)	where N includes any fractions, N is to be rounded downwards to the nearest whole number

(ii)	where the number of new Shares to be issued includes any fractions, such number of new Shares is to be rounded downwards to the nearest whole number

(iii)

where the issue price includes any fractions of sen, the issue price is to be rounded downwards to the nearest sen

For the purposes of this provision:

(a)	the amount in USD of the investment amount is based on the value in USD of the subscription moneys as at the respective date(s) of the relevant subscription(s).

(b)	for the avoidance of doubt, where any RCPS has been held by more than one holder, such RCPS and investment amount in relation to the RCPS, is to be counted only once.

To effect the above conversion, a conversion notice shall be sent by the holder(s) of the Series B RCPS to the Company not less than thirty (30) days before the intended date of conversion. Such notice shall be in writing and shall fix the date and the time for the conversion.

The Company may from time to time consult with, and make proposals to, the holder(s) of Series B RCPS in relation to the exercise of the holder(s)’ entitlement to convert the Series B RCPS.

Completion of the conversion of the Series B RCPS into Conversion Shares shall be effected at the registered office of the Company unless agreed otherwise by the holder(s) of the Series B RCPS and the Company. On the date fixed for conversion, the holder(s) of the Series B RCPS shall deliver to the Company the share certificate(s) for the relevant Series B RCPS in exchange for share certificates in relation to the relevant amount of Conversion Shares resulting from the conversion of those Series B RCPS. If any share certificate so delivered to the Company relates to any Series B RCPS which are not to be converted on that day, a fresh share certificate for those Series B RCPS shall be immediately issued by the Company to such holder(s).

Share Subscription Agreement |

6. [Deleted]

7. Redemption Rights

The holders of the Series B RCPS may at any time after 31 December 2011, subject to the completion of the PMSB Subsequent Closing or EEV Subsequent Closing (where relevant), by giving a thirty (30) day notice of redemption in such form as may be acceptable to the Company (“Notice of Redemption”), redeem any or all Series B RCPS registered in the name of the holder of the Series B RCPS. The RCPS will be redeemable from funds legally available for distribution at the redemption price (“Redemption Price”) which comprises a par value of RM0.01 with redemption premium equivalent to the difference between (i) the aggregate of the Subscription Price and such price multiplied at the rate of 20% per annum prorated by day, up to the date of the redemption based on a 365-days year (and without any compounding or addition to the principal Subscription Price) and (ii) the par value of RM0.01 per Series B RCPS plus all accrued but unpaid dividends and dividends in arrears, if any.

All redemption of the Series B RCPS shall be effected at the registered office of the Company unless agreed otherwise by the holder(s) of the Series B RCPS and the Company. On the date fixed for redemption, the holder(s) of the Series B RCPS shall deliver to the Company the share certificate(s) for the relevant Series B RCPS in exchange for payment in cash (by way of bank draft or any other manner acceptable to the holder(s)) by the Company of the aggregate Redemption Price for the time being payable for those Series B RCPS. If any share certificate so delivered to the Company relates to any Series B RCPS which are not to be redeemed on that day, a fresh share certificate for those Series B RCPS shall be issued by the Company to such holder(s).

No Series B RCPS redeemed by the Company shall be capable of reissue.

8. Voting Rights

The holder of the RCPS will be entitled to the voting rights as referred to in Section 148(2) of the Act.

9. Protective Provisions

Without the approval of the holders of at least a majority of the Series B RCPS, the Company will not take any action, whether by merger, consolidation or otherwise, that:

(a)	effects a sale, lease, license or other disposition of all or substantially all of the Company’s assets, property or business or undertakings in excess of RM250,000.00;

Share Subscription Agreement |

(b)	effects or enters into any agreement regarding any transaction, or series of transactions, which results in the holders of the Series B RCPS prior to the transaction owning less than 50% of the voting power of the Company’s Series B RCPS after the transaction(s),

(c)	alters or changes the rights, preferences or privileges of the Series B RCPS,

(d)	increases or decreases the number of authorized Series B RCPS,

(e)	authorises the issuance of securities having a preference over or on a parity with the Series B RCPS,

(f)	changes the number of directors,

(g)	amends, modifies or repeals the Memorandum of Association and/or Articles of the Company in a manner which adversely affects the holders of the Series B RCPS,

(h)	effects any recapitalization or reorganization, or any voluntary or involuntary liquidation under applicable bankruptcy or reorganization legislation, or any dissolution, liquidation, or winding up of the Company,

(i)	declares or pays dividends on or makes any distributions with respect to any share capital of the Company.

For purposes of these protective provisions, any reference to the Company will be deemed to include any subsidiary of the Company.

10. No Variation

The rights attached to the Series B RCPS shall not be varied, modified or deleted unless in accordance with paragraph 9 above.

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Share Subscription Agreement |

SCHEDULE 2

Representations and Warranties

1. Representations and Warranties by the Investor

The Investors warrant to the Company and the Existing Shareholder as follows.

1.1

Capacity and Authority

The Investors are duly incorporated and validly exist under the laws of Malaysia and have the power to own their assets and carry on their business as now being conducted.

1.2

Power to execute this Agreement

(a)

The Investors have the right, power and authority, and have taken or will take all action necessary, to validly execute, deliver and exercise their rights, and perform their obligations under this Agreement;

(b)

Other than those set out in this Agreement, no other consent, approval, authorization or other order of any court, regulatory body, administrative agency or other order of any other governmental body is required for the execution and delivery by the Investors of this Agreement or the performance by the Investors of the transactions contemplated under this Agreement;

(c)

This Agreement is a valid and binding obligation of the Investors and is enforceable against the Investors in accordance with its terms;

(d)

The execution, delivery and performance of this Agreement will not violate any judgment, order or decree to which the Investors are subject and will not be inconsistent with any constitutional documents or contracts to which the Investors are a party to or otherwise binding on the Investors; and

(e)

There is no action, proceeding, claim or investigation pending against the Investors before any court or administrative authority, which, if determined against the Investors, may reasonably be expected to have a material adverse effect on the Investors’ ability to perform the obligations hereunder.

2.	Representations and Warranties by the Existing Shareholder and the Company

The Existing Shareholder and the Company warrant to the Investors as follows.

2.1

Capacity and Authority

The Company is duly incorporated and validly exists under the laws of Malaysia and has the power to own its assets and carry on the Business.

2.2

Power to execute this Agreement

Share Subscription Agreement |

(a)

The Existing Shareholder and Company have the right, power and authority, and have taken or will take all action necessary, to validly execute, deliver and exercise their rights, and perform their obligations under this Agreement;

(b)

Other than those set out in this Agreement, no other consent, approval, authorization or other order of any court, regulatory body, administrative agency or other order of any other governmental body is required for the execution and delivery by the Existing Shareholder and the Company of this Agreement or the performance by the Existing Shareholder and the Company of the transactions contemplated under this Agreement;

(c)

This Agreement is a valid and binding obligation of the Existing Shareholder and the Company and after fulfillment of the conditions precedent is enforceable against the Existing Shareholder and the Company in accordance with its terms;

(d)

The execution, delivery and performance of this Agreement will not violate any judgment, order or decree to which the Existing Shareholder and the Company is subject and save as otherwise disclosed, will not be inconsistent with any constitutional documents or contracts to which the Existing Shareholder and/or the Company is a party to or otherwise binding on the Existing Shareholder and/or the Company; and

(e)

There is no action, proceeding, claim or investigation pending against the Existing Shareholder and/or the Company before any court or administrative authority, which, if determined against the Existing Shareholder and/or the Company, may reasonably be expected to have a material adverse effect on the Existing Shareholder and the Company’s ability to perform the obligations hereunder.

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Share Subscription Agreement |

SCHEDULE 3

Subscription Notice

From : Wafergen Biosystems (M) Sdn Bhd

To : [Investor]

SHARE SUBSCRIPTION AGREEMENT DATED ** (“Subscription Agreement”)

We refer to the Subscription Agreement made between yourselves, [], the Existing Shareholder, and us. Terms defined in the Subscription Agreement have the same meanings when used in this notice.

We hereby give you notice, in accordance with the terms and conditions of the Subscription Agreement, of your required subscription for [222,222/111,111]* of the Series B RCPS at a total Subscription Price of [USD500,000/USD250,000]* (equivalent to RM ** based on the exchange rate as at **), such subscription to be completed on [date] at [time], being the [PMSB/EEV] [Initial Closing/Subsequent Closing]*.

Dated :

Yours faithfully

For and on behalf of

Wafergen Biosystems (M) Sdn Bhd

By:

Name:

Title:

* (delete whichever is not applicable)

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Execution

Executed as an Agreement.

Signed for and on behalf of WaferGen Bio-systems, Inc (WGBS.OB) in the presence of:

Witness		Signatory /s/
Name:		Name:
NRIC No:		Designation:
		NRIC No:

Signed for and on behalf of Prima Mahawangsa Sdn Bhd (Company No833152-M) in the presence of:

Witness		Signatory /s/
Name:		Name:
NRIC No:		Designation:
		NRIC No:

Share Subscription Agreement |

Signed for and on behalf of Expedient Equity Ventures Sdn Bhd (Company No 780509-U) in the presence of:

Witness		Signatory /s/
Name:		Name:
NRIC No:		Designation:
		NRIC No:

Signed for and on behalf of Wafergen Biosystems (M) Sdn Bhd (Company No 795066-H) in the presence of:

Witness		Signatory /s/
Name:		Name:
NRIC No:		Designation:
		NRIC No:

EX-10.2 3 ex10-2.htm EXHIBIT 10.2 ex10-2.htm

60; Exhibit 10.2

WAFERGEN BIO-SYSTEMS, INC.

PUT AGREEMENT

THIS PUT AGREEMENT (this “Agreement”) is entered into as of ________ __, 2009, by and among WaferGen Bio-systems, Inc., a Nevada corporation (“WaferGen US”), and the purchasers (the “WaferGen Malaysian Investors” or “Holders”) of the Series B Redeemable Convertible Preference Shares in WaferGen Biosystems (M) Sdn. Bhd. (formerly known as Global Dupleks Sdn. Bhd.), a Malaysian corporation (the “Company”) (“Series B Shares”) pursuant to that certain Share Subscription and Shareholders Agreement dated as of the date hereof among WaferGen US, the WaferGen Malaysian Investors and the Company (the “Purchase Agreement”). Any term not defined herein shall have the meaning ascribed to such term in the Purchase Agreement.

RECITALS

A. WHEREAS, the WaferGen Malaysian Investors have entered into the Purchase Agreement for the purchase of and subscription for certain Series B Shares of the Company.

B. WHEREAS, in order to induce the WaferGen Malaysian Investors to enter into the Purchase Agreement, WaferGen US has agreed to grant to each WaferGen Malaysian Investor an option to put (the “Put Right”) to WaferGen US the Series B Shares held by such WaferGen Malaysian Investor, whereby the Series B Shares held by such WaferGen Malaysian Investor will be exchanged for shares of Common Stock of WaferGen US on the terms set forth below.

C. WHEREAS, certain capitalized terms used in this Agreement are defined in Section 2.12 hereof.

NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement, the parties mutually agree as follows:

AGREEMENT

SECTION 1

PUT RIGHT

1.1 Put Right. Upon receipt by WaferGen US of a written request from a Holder of Holder’s desire to exercise the Holder’s Put Right (a “Holder’s Put Notice”), then all, but not less than all, of such Holder’s Series B Shares shall be exchanged as described in Section 1.2 below (the “Exchange”). For the avoidance of doubt, each Holder shall have the right to exercise such Put Right individually. After delivery of such Holder’s Put Notice, the Holder shall deliver all of such Holder’s share certificates and duly executed share transfer forms with respect to such Series B Shares to the Secretary of WaferGen US (or to his/her order) as promptly as practicable (but in no event more than 30 days after the date thereof) and take any other actions reasonably required to effectuate the transfer of all such Holder’s Series B Shares to WaferGen US. WaferGen US may nominate its nominee(s) to accept the transfer of the Series B Shares. WaferGen US shall be required to comply with the requirements of this paragraph until the fifth anniversary of the date of this Agreement, but may in its sole discretion comply with provisions of this paragraph after such date.

1.2 The Exchange; No Fractional Shares.

(a) Upon the occurrence of an Exchange, each of the Holder’s Series B Shares subject to such Holder’s Put Notice shall be converted into the right to receive that number of Exchange Securities equal to the U.S. dollar equivalent of the original purchase or subscription price per share paid for each such Holder’s Series B Share (with such conversion to U.S. dollars being calculated as of the date of purchase and equaling USD $2.25 on the date of purchase) pursuant to the Purchase Agreement, divided by the Exchange Price (in each case as adjusted for stock splits, recapitalization, combinations and similar transactions).

(b) Notwithstanding Section 1.2(a) above, if the Holder’s Put Notice is delivered to WaferGen US on or after August 1, 2010, the Holder’s Series B Shares shall convert into the right to receive the following number of Exchange Securities:

(i) If during the ten-day trading period immediately prior to the date on which the Company receives the Holder’s Put Notice the average closing price of WaferGen US’s shares of Common Stock on the OTC Bulletin Board or stock exchange on which such shares are listed at such time (to the extent such shares are then listed) is less than USD $2.647 per share (as adjusted for stock splits, recapitalization, combinations and similar transactions), then each of the Holder’s Series B Shares subject to such Holder’s Put Notice shall be converted into the right to receive that number of Exchange Securities equal to the U.S. dollar equivalent of the original purchase or subscription price per share paid for each such Holder’s Series B Share (with such conversion to U.S. dollars being calculated as of the date of purchase and equaling USD $2.25 on the date of purchase) pursuant to the Purchase Agreement, divided by the Adjusted Exchange Price (in each case as adjusted for stock splits, recapitalization, combinations and similar transactions).

(ii) If during the ten-day trading period immediately prior to the date on which the Company receives the Holder’s Put Notice the average closing price of WaferGen US’s shares of Common Stock on the OTC Bulletin Board or stock exchange on which such shares are listed at such time (to the extent such shares are then listed) is equal to or exceeds USD $2.647 per share (as adjusted for stock splits, recapitalization, combinations and similar transactions), then each of the Holder’s Series B Shares subject to such Holder’s Put Notice shall be converted into the right to receive that number of Exchange Securities as set forth in Section 1.2(a).

(c) All Exchange Securities shall be aggregated and issued to such Holder, except that no fractional shares of Exchange Securities shall be issued upon the occurrence of an Exchange. If, after the aforementioned aggregation, the conversion would result in the issuance of any fractional share, WaferGen US shall, in lieu of issuing any fractional share, pay cash equal to the product of such fraction multiplied by the per share fair market value of the Exchange Securities (as determined in good faith by the Board of Directors of WaferGen US).

(d) Subject to the delivery by the Holder of its share certificates and other documents to WaferGen US as required hereby, upon the occurrence of the Exchange, WaferGen US shall as soon as practicable (but in no event more than 30 days after the date of the Exchange) issue to such Holder share certificates representing the Exchange Securities.

1.3 Rights After Exchange. From and after the applicable Exchange, all rights of the Holder with respect to the exchanged Holder’s Series B Shares shall cease with respect to such shares (except the right to receive the Exchange Securities, and any cash payment for fractional shares, without interest upon surrender of their certificate or certificates), and such shares shall be owned legally and beneficially by WaferGen US for all purposes and will be transferred to WaferGen US on the books and records of the Company.

1.4 Rights After Conversion. If at any time any or all of Holder’s Series B Shares are converted into Ordinary Shares of the Company for any reason, such Holder’s Put Right pursuant to this Agreement with respect to all of such Holder’s Series B Shares shall terminate and expire in its entirety upon such conversion, and such Holder shall have not have any Put Right with respect to any Ordinary Shares held by such Holder.

SECTION 2

MISCELLANEOUS

2.1 Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California in the United States of America, without giving effect to the choice of law provisions thereof.

2.2 Arbitration. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by their mutual agreement shall be submitted to final and binding arbitration in San Francisco, California before JAMS, or its successor, pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq. Any party may commence the arbitration process called for in this Agreement by filing a written demand for arbitration with JAMS, with a copy to the other party. The arbitration will be conducted in accordance with the provisions of JAMS’ Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The parties will cooperate with JAMS and with one another in selecting an arbitrator from JAMS’ panel of neutrals, and in scheduling the arbitration proceedings. The parties covenant that they will participate in the arbitration in good faith, and that they will share equally in its costs. The provisions of this Section 2.2 may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys fees, to be paid by the party against whom enforcement is ordered.

2.3 Assignment of Put Right. The Put Right granted in this Agreement may only be assigned by a Holder in connection with a permitted transfer of Series B Shares by the Holder in accordance with Clause 10 of the Purchase Agreement.

2.4 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties (including permitted transferees of any Series B Shares). Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

2.5 Severability. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

2.6 Amendment and Waiver. Except as otherwise expressly provided, the obligations of WaferGen US and the rights of the Holders under this Agreement may be amended, modified or waived only with the written consent of WaferGen US and Holders holding at least a majority of all Series B Shares then held by all Holders (excluding for purposes of this calculation any Series B Shares held by WaferGen US or its nominee(s)).

2.7 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power, or remedy accruing to any Holder, upon any breach, default or noncompliance of WaferGen US under this Agreement, shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent, or approval of any kind or character on any Holder’s part of any breach, default or noncompliance under the Agreement or any waiver on such Holder’s part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not alternative.

2.8 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a United States recognized overnight courier, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the party to be notified at the address as set forth on the signature pages hereof or at the current address of the Holder on the books and records of the Company or at such other address as such party may designate by ten (10) days’ advance written notice to the other parties hereto. All notices sent to the Company or WaferGen US shall also be sent to: Morrison & Foerster LLP, 425 Market Street, San Francisco, CA 94105, Attention: John M. Rafferty (Telecopier: (415) 268-7305).

2.9 Attorneys’ Fees. In the event that any dispute among the parties to this Agreement should result in litigation, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

2.10 Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

2.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

2.12 Definitions. For purposes of this Agreement, the terms below shall have the definitions ascribed to them below:

2.12.1 The “Adjusted Exchange Price” shall be equal to the product of (x) the average closing price of WaferGen US’s shares of Common Stock on the OTC Bulletin Board or stock exchange on which such shares are listed at such time (to the extent such shares are then listed) for the ten-day trading period immediately prior to the date on which the Company receives the Holder’s Put Notice and (y) 0.85.

2.12.2 “Common Stock” means the common stock, par value $0.001 per share, of WaferGen US.

2.12.3 The “Exchange Price” shall be equal to USD $2.25 per share.

2.12.4 “Exchange Securities” shall mean shares of Common Stock of WaferGen US.

2.13 Certain Restrictions. Each Holder understands that any shares of Common Stock of WaferGen US to be received in an Exchange may be characterized as “restricted securities” under the federal securities laws inasmuch as they would be acquired from WaferGen US in a transaction not involving a public offering and that under such laws and applicable regulations, such securities may be resold without registration under the Securities Act of 1933, as amended (the “Act”), only in certain limited circumstances. In this regard, the Holder represents that it is familiar with Rule 144 under the Act, as presently in effect, and understands the resale limitations imposed thereby and by the Act. WaferGen US hereby agrees to use its commercially reasonable efforts to cause any shares of Common Stock of WaferGen US received in an Exchange to be registered for resale under the Act as soon as practicable following such Exchange. Absent such registration, the Holder understands that any shares of Common Stock of WaferGen US received in an Exchange will not have been registered under the Act, and thus the Holder will not be able to resell or otherwise transfer any such shares of Common Stock unless they are registered under the Act or an exemption from such registration or qualification is available.

2.14 Transfer Taxes. All excise, transfer, stamp, documentary, filing, recordation and other similar taxes which may be imposed or assessed as the result of any Exchange, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties, shall be borne equally by WaferGen US and the Holder consummating such Exchange.

2.15

[THIS SPACE INTENTIONALLY LEFT BLANK]

In Witness Whereof, the parties hereto have executed this Put Agreement as of the date set forth in the first paragraph hereof.

WAFERGEN US:

WAFERGEN BIO-SYSTEMS, INC.

By:

Alnoor Shivji

Chairman, President & Chief Executive Officer

Address:

WaferGen Bio-systems, Inc.

Bayside Technology Center

46531 Fremont Blvd.

Fremont, CA 94538, USA

Facsimile: 510 651 4599

Signature Page to Put Agreement

WAFERGEN MALAYSIAN INVESTOR:

Prima Mahawangsa Sdn Bhd

By:

Name:

Title:

Address:

5th Floor, Bangunan CIMB,

Jalan Semantan, Damansara Heights,

50490 Kuala Lumpur

Facsimile: 603 2093 9688

EX-10.3 4 ex10-3.htm EXHIBIT 10.3 ex10-3.htm

60; Exhibit 10.3

WAFERGEN BIO-SYSTEMS, INC.

PUT OPTION AGREEMENT

THIS PUT OPTION AGREEMENT (this “Agreement”) is entered into as of ___________ __, 2009, by and among (i) Alnoor Shivji (the “Founder”), the founder and chairman, chief executive officer and president of WaferGen Bio-systems, Inc., a Nevada corporation (“WaferGen US”), and (ii) Prima Mahawangsa Sdn Bhd (the “Investor”), a purchaser of Series B Redeemable Convertible Preference Shares (“Series B Shares”) issued by WaferGen Biosystems (M) Sdn. Bhd. (formerly known as Global Dupleks Sdn. Bhd.), a Malaysian corporation (the “Company”), pursuant to that certain Share Subscription and Shareholders Agreement dated as of the date hereof (the “Purchase Agreement”) between WaferGen US, the Investor and the Company.

RECITALS

A. WHEREAS, the Investor has entered into the Purchase Agreement for the purchase and subscription of certain Series B Shares of the Company.

B. WHEREAS, in order to induce the Investor to enter into the Purchase Agreement, the Founder has agreed to grant to the Investor an option to put (the “Put Right”) to the Founder the Series B Shares purchased by the Investor pursuant to the Purchase Agreement upon the occurrence of a Triggering Event, as such term is defined below.

NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement, the parties mutually agree as follows:

AGREEMENT

SECTION 1

PUT OPTION

1.1 Grant of Put Option. Upon receipt by the Investor of written notice by the Founder of a Triggering Event, the Investor shall have the option (the “Put Option”) to require the Founder to purchase from the Investor, subject to the conditions set forth in this Agreement, all of the Series B Shares initially purchased by the Investor pursuant to the Purchase Agreement or the number of Series B Shares then held by the Investor, whichever is less (the “Put Shares”), at a per share purchase price equal to $5.625 (as adjusted for stock splits, stock dividends and similar recapitalizations or reorganizations) (the “Put Option Price”). In order to exercise such Put Option, the Investor must deliver written notice to the Founder of the Investor’s election to exercise the Put Option in accordance with Section 1.3 of this Agreement within 15 days of the date on which the Investor receives written notice of the Triggering Event from the Founder.

1.2 Notice of Triggering Event. The Founder shall provide the Investor written notice of a Triggering Event within seven days of the date on which the Triggering Event occurs. A “Triggering Event” shall occur when any of the following events shall occur: (i) the Founder sells or transfers, prior to December 31, 2010, in one or more transactions, greater than 2,603,425 shares of Common Stock of WaferGen US (which amount equals approximately 80% of the shares of Common Stock of WaferGen US owned by the Founder on the date hereof) to one or more Third Parties, (ii) the Founder voluntarily resigns from the Board of Directors of WaferGen US and such resignation is not approved by, or is not pursuant to a restructuring of the Company or WaferGen US approved by, holders of a majority of the outstanding Series A Shares at the time of such resignation, or (iii) the Founder is convicted of a felony involving fraud or dishonesty, provided that the Founder was actively involved in the management of the Company at the time at which any such crime was committed. For purposes of this Section 1.2, (i) “Third Party” means any person or entity other than the Founder’s Affiliates (as defined below), or the relatives (by blood or marriage) of the Founder or the Founder’s Affiliates; provided, however, that in the event of any transfer or sale of any shares by the Founder to the Founder’s Affiliates or the relatives of the Founder or the Founder’s Affiliates (such person or entity, a “Transferee”), such Transferee shall agree in writing to be bound by the terms of this Agreement with respect to such Put Shares; and “Affiliate” means, with respect to a person or entity, any other person or entity directly or indirectly controlling, controlled by, or under common control with such person or entity.

1.3 Manner of Exercise. The Investor shall exercise the Put Option by giving an irrevocable written notice to the Founder, within 15 days of the date on which the Investor receives written notice of the Triggering Event from the Founder, that the Investor elects to exercise such Put Option upon the terms and subject to the conditions set forth in this Agreement.

1.4 Closing and Payment. The closing of the purchase and sale of the Put Shares shall occur on the date designated in writing by the Founder to the Investor, which date shall be within 120 days following the date upon which the Founder received the written notice from the Investor that the Investor was electing to exercise the Put Option. The aggregate Put Option Price shall be payable to the Investor by the Founder by wire transfer of immediately available funds on the closing date to an account designated in writing by the Investor or by delivery of a certified or cashiers’ check by the Founder to the Investor, in each case against the Founder’s receipt of the Investor’s share certificates of the Put Shares and share transfer forms duly executed by the Investor for the transfer of the Put Shares to the Founder or any other nominee of the Founder.

1.5 Rights After Closing. From and after the closing of the purchase of the Put Shares by the Founder, all rights of the Investor with respect to the Put Shares shall cease, and such shares shall be owned legally and beneficially by the Founder for all purposes and will be transferred to the Founder on the books and records of the Company.

1.6 Partial Purchase. The Founder shall not be obligated to purchase the Put Shares if the Founder shall be unable to do so without a breach or violation of the provisions of applicable law or the certificate of incorporation or bylaws of WaferGen US as in effect on such date. If the Founder is unable to purchase all of the Put Shares at one time due to any such restriction, the Founder shall purchase such securities as the Founder is able without a breach or violation of applicable law or the certificate of incorporation or bylaws of WaferGen US, and the Founder shall use reasonable efforts to remove any such limitations upon the Founder’s ability to effect such purchase.

1.7 Termination of Put Option Agreement. This Agreement shall terminate immediately prior to the earlier to occur of the following (the “Put Option Termination Date”):

(a) December 31, 2010;

(b) an IPO (as defined in the Purchase Agreement) of the Company;

(c) the sale of all or substantially all of the assets of the Company or WaferGen US, or the consolidation or merger of the Company or WaferGen US with or into any other business entity pursuant to which shareholders of the Company or WaferGen US, as applicable, prior to such consolidation or merger hold less than 50% of the voting equity of the surviving or resulting entity;

(d) the liquidation, dissolution or winding up of the business operations of the Company or WaferGen US;

(e) the execution by the Company or WaferGen US of a general assignment for the benefit of creditors or the appointment of a receiver or trustee to take possession of the property and assets of the Company or WaferGen US; and

(f) the termination of the Founder’s employment with WaferGen US by the board of directors of WaferGen US for any reason.

1.8 No Re-Exercise of Put Right. In the event the Investor fails to exercise the Put Option pursuant to the requirements of this Agreement in connection with a Triggering Event, the Investor shall not thereafter have the ability to re-exercise such Put Option to the extent a subsequent Triggering Event occurs.

SECTION 2

MISCELLANEOUS

2.2 Arbitration. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by their mutual agreement shall be submitted to final and binding arbitration in San Francisco, California before JAMS, or its successor, pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq. Any party may commence the arbitration process called for in this agreement by filing a written demand for arbitration with JAMS, with a copy to the other party. The arbitration will be conducted in accordance with the provisions of JAMS’ Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The parties will cooperate with JAMS and with one another in selecting an arbitrator from JAMS’ panel of neutrals, and in scheduling the arbitration proceedings. The parties covenant that they will participate in the arbitration in good faith, and that they will share equally in its costs. The provisions of this Section 2.2 may be enforced by any court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys fees, to be paid by the party against whom enforcement is ordered.

2.3 Assignment of Put Option. The Put Option granted in this Agreement may not be assignable or transferable by the Investor.

2.4 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

2.6 Amendment and Waiver. Except as otherwise expressly provided, the obligations of the Founder and the rights of the Investor under this Agreement may be amended, modified or waived only with the written consent of the Founder and the Investor.

2.7 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power, or remedy accruing to either party, upon any breach, default or noncompliance of the other party under this Agreement, shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent, or approval of any kind or character on either party’s part of any breach, default or noncompliance under the Agreement or any waiver on either party’s part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, by law, or otherwise afforded to either party shall be cumulative and not alternative.

2.8 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a United States recognized overnight courier, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the party to be notified at the address as set forth on the signature pages hereof or at such other address as such party may designate by ten (10) days’ advance written notice to the other parties hereto. All notices sent to the Founder shall also be sent to: Morrison & Foerster LLP, 425 Market Street, San Francisco, CA 94105, Attention: John M. Rafferty (Telecopier: (415) 268-7305).

2.10 Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

2.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

2.12 Representation of Financial Sophistication. The Investor represents that it is an “accredited investor” within the meaning of Securities and Exchange Commission Rule 501 of Regulation D, as presently in effect.

2.13 Transfer Taxes. All excise, transfer, stamp, documentary, filing, recordation and other similar taxes which may be imposed or assessed as the result of any payment related to the Put Option, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties, shall be borne by the Investor.

[Signature page follows]

In Witness Whereof, the parties hereto have executed this Put Option Agreement as of the date set forth in the first paragraph hereof.

FOUNDER

By:

Alnoor Shivji

Address:

WaferGen Bio-systems, Inc.

Bayside Technology Center

46531 Fremont Blvd.

Fremont, CA 94538, USA

Facsimile: 510 651 4599

INVESTOR:

Prima Mahawangsa Sdn Bhd

By:

Name:

Title:

Address:

5th Floor, Bangunan CIMB,

Jalan Semantan, Damansara Heights,

50490 Kuala Lumpur

Facsimile: 603 2093 9688

EX-99.1 5 ex99-1.htm EXHIBIT 99.1 ex99-1.htm

Exhibit 99.1

Press Release Source: WaferGen Biosystems, Inc.

WaferGen Announces Signing of Private Financing

FREMONT, Calif., April 14 /PRNewswire-FirstCall/ -- WaferGen Biosystems, Inc. (OTC Bulletin Board: WGBS - News), a leading developer of state-of-the-art genetic analysis systems, today announced that it has signed a definitive agreement to sell redeemable convertible preferred shares in the company's wholly owned Malaysian subsidiary, WaferGen Biosystems (M) Sdn. Bhd., in a private financing placement with total gross proceeds of $1.5 million. Strategic investors participating in the financing, which the company expects will close this month, include Prima Mahawangsa Sdn Bhd, a wholly owned subsidiary of CAV Private Equity Management Sdn Bhd (a member of the CIMB Group), and Expedient Equity Ventures Sdn Bhd. Proceeds from this financing are expected to be used to manufacture and commercialize WaferGen's SmartChip(TM) Real-Time PCR System.

Under the terms of the agreement, WaferGen has agreed to sell 666,666 redeemable convertible preferred Series B shares in the subsidiary for gross proceeds of $1,500,000. Each share of convertible preferred stock is exchangeable, at the election of the holder and subject to the terms of the financing documents, into one share of WaferGen common stock, at an effective exchange price of $2.25 per share. This financing is subject to certain closing conditions and there can be no assurance that the closing of the financing will occur in a timely manner, if at all.

"We are pleased to announce the raising of additional capital to support our ongoing development and commercialization of the SmartChip Real-Time PCR System. We believe that the fact that we were able to sign definitive financing documents during such a difficult and uncertain economic time provides strong validation for the SmartChip platform and demonstrates the faith that investors have in this revolutionary product," stated Alnoor Shivji, WaferGen's chairman and chief executive officer. "We are happy to welcome Prima Mahawangsa and Expedient Equity Ventures as new investors in WaferGen and are pleased to have the support of these experienced investors as we continue to advance the development of the SmartChip platform toward commercialization."

This press release shall not constitute an offer to sell or a solicitation of an offer to purchase any of securities referenced herein, and shall not constitute an offer, solicitation or sale in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful. The securities being offered have not been registered under the Securities Act of 1933 and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements. This press release is being issued pursuant to and in accordance with Rule 135c under the Securities Act of 1933, as amended.

About WaferGen

WaferGen Biosystems, Inc. is a leader in the development, manufacture and sale of state-of-the-art systems for genetic analysis for the life science and pharmaceutical industries. The company is actively developing its SmartChip(TM) product for the gene expression and genotyping markets. SmartChip is being developed as the first whole genome, high throughput gene expression real-time PCR platform. This innovative system, combined with next-generation chemistry and optimized assays being developed by WaferGen, promises to deliver significant speed and cost advantages to researchers in the gene expression and genotyping markets. Based on collaborations established with leading research institutions, WaferGen believes that the SmartChip Real-Time PCR System is positioned as the platform of choice for biomarker discovery and validation. WaferGen currently markets its SmartSlide(TM) family of products to companies and organizations involved in stem cell and cell biology research. SmartSlide represents the first fluidics integrated micro-incubators enabling cell biology and stem cell research.

Forward-Looking Statements

This press release contains certain "forward-looking statements". Such statements relate to future events or to the company's future financial performance and are not historical facts, including statements which may be preceded by the words "intends," "may," "will," "plans," "expects," "anticipates," "projects," "predicts," "estimates," "aims," "believes," "hopes," "potential" or similar words.

Forward-looking statements are not guarantees of future performance, are based on certain assumptions and are subject to various known and unknown risks and uncertainties, many of which are beyond the control of the company. Actual results may differ materially from the expectations contained in the forward-looking statements. Factors that may cause such differences include the risks that: (i) the company may not be able to close the Malaysian financing, which is subject to a number of conditions beyond the company's control; (ii) the company may be unsuccessful in commercially developing its products or in achieving market acceptance of new and relatively unproven technologies; (iii) the company will need to raise additional capital to meet its business requirements in the future and the company may not be able to do so on reasonable terms or at all; (iv) the company's proprietary intellectual property rights may not adequately protect its products and technologies; and (v) the company expects intense competition in its target markets, including from companies that have much greater resources than the company, and there can be no assurance that the company will be able to compete effectively. More detailed information about the company and the risk factors that may affect the realization of forward-looking statements is set forth in the company's filings with the Securities and Exchange Commission, including the company's Annual Report on Form 10-K for the year ended December 31, 2008. Investors and security holders are urged to read this document free of charge on the SEC's web site at www.sec.gov. The company does not undertake to publicly update or revise its forward-looking statements as a result of new information, future events or otherwise.

Contact:

Vida Communication (Media) The Trout Group (Investors)

On Behalf of WaferGen On Behalf of WaferGen

Tim Brons Peter Rahmer

415-675-7400 646-378-2973

tbrons@vidacommunication.com San Francisco, CA

Christine Yang

646-378-2929

New York, NY

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