Attached files
| file | filename |
|---|---|
| 8-K - WaferGen Bio-systems, Inc. | v205599_8k.htm |
| EX-99.1 - WaferGen Bio-systems, Inc. | v205599_ex99-1.htm |
| EX-10.3 - WaferGen Bio-systems, Inc. | v205599_ex10-3.htm |
| EX-10.2 - WaferGen Bio-systems, Inc. | v205599_ex10-2.htm |
 |
 |
Dated
December 14, 2010
Between
Wafergen
Bio-Systems Inc
and
Malaysian
Technology Development Corporation Sdn Bhd
and
Wafergen
Biosystems (M) Sdn Bhd
Share
Subscription
Agreement
Proposed
subscription of shares in Wafergen
Biosystems
(M) Sdn Bhd
Series C Share Subscription
Agreement |
Contents
|
Recitals
|
1
|
|
|
1
|
Definitions and
Interpretations
|
2
|
|
1.1
Definitions
|
2
|
|
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1.2
Interpretation
|
4
|
|
|
2.
|
Conditions
|
4
|
|
2.1
Conditions
Precedent
|
4
|
|
|
2.2
Non-fulfillment
|
5
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|
|
3.
|
Share Capital
|
5
|
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3.1
Subscription for Preference
Shares
|
5
|
|
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4.
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Subscription Completion
Date
|
5
|
|
4A.
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Utilisation of Funds
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6
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|
5.
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Undertakings, Warranties and Representations by
the Parties
|
6
|
|
6
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Put Options
|
7
|
|
6.1
Investor’s Put Right for shares in
the Existing Shareholder
|
7
|
|
|
6.2
Investor’s Put Option for Series C
RCPS
|
7
|
|
|
7.
|
Previous Agreements and Prevalence of
Agreement
|
8
|
|
8.
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Remedy on an Event of
Default
|
8
|
|
9.
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Confidentiality
|
9
|
|
10.
|
Further Assurance
|
9
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11.
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Remedies
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9
|
|
12.
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Waiver and Variation
|
9
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12.1 Rights not affected
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9
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|
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12.2 Cumulative rights and
remedies
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9
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12.3 Variation
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10
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|
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13.
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Severability
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10
|
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14.
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Continuing Effect
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10
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15.
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Time
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10
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16.
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Legal Relationship
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10
|
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17.
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Costs and Expenses
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10
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18.
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Assignment; Successors
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10
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18.1 Assignment
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10
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18.2 Successors and assigns
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10
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|
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19.
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Notices
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11
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20.
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Entire agreement
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12
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21.
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Counterparts
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12
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22.
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Governing Law and
Jurisdiction
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12
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SCHEDULE 1
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13
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1.
Subscription Price and par
value
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13
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2.
Premium
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13
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3.
Dividend
Provision
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13
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Page | i
Series C Share Subscription
Agreement |
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4.
Liquidation
Preference
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13
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5.
Conversion
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13
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6.
[Deleted]
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14
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|
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7.
Redemption
Rights
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14
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|
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8.
Voting Rights
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14
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|
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9.
Protective
Provisions
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14
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10. No Variation
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15
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SCHEDULE 2
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16
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1.
Representations and Warranties by the
Investor
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16
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|
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2.
Representations and Warranties by the
Existing Shareholder and the Company
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16
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|
|
SCHEDULE 3
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18
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Page | ii
Series C Share Subscription
Agreement |
This
Agreement is made on December 14, 2010 between:
|
(1)
|
Wafergen
Bio-Systems, Inc (WGBS.OB), a Nevada USA incorporated company with a
registered address and place of business at 7400 Paseo Padre Parkway,
Fremont, CA 94555, USA (“Existing
Shareholder”);
|
and
|
(2)
|
Malaysian
Technology Development Corporation Sdn Bhd (Company No 235796-U), a
company incorporated in Malaysia with a registered address at Level 8,
Menara Yayasan Tun Razak, Jalan Bukit Bintang, 55100 Kuala Lumpur (“MTDC” or “Investor”);
|
and
|
(3)
|
Wafergen
Biosystems (M) Sdn Bhd (Company No 795066-H), a company
incorporated in Malaysia with a registered address at Suite 2-1, 2nd
Floor, Menara Penang Garden, 42A, Jalan Sultan Ahmad Shah, 10050 Penang
(“Company”).
|
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 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. MTDC is,
as at the date of this Agreement, the legal and beneficial owner of
888,888 Series A RCPS in the
Company.
|
|
(D)
|
The
Existing Shareholder, the Company, Prima Mahawangsa Sdn Bhd (“PMSB”) and Expedient
Equity Ventures Sdn Bhd (“EEV”) have entered into
a Share Subscription Agreement (“Subscription Agreement”)
and Deed of Adherence (“DA”) both dated 3 April
2009 where PMSB agreed to subscribe for 444,444 Series B Redeemable
Convertible Preference Shares (“Series B RCPS”) in the
Company and EEV agreed to subscribe for 222,222 Series B RCPS, pursuant to
the terms and conditions in the Subscription Agreement and
DA.
|
|
(E)
|
The
Existing Shareholder, the Company and Kumpulan Modal Perdana Sdn Bhd
(“KMP”) have
entered into a Share Subscription Agreement and Deed of Adherence both
dated 1 July 2009 where KMP agreed to subscribe for 188,057 Series
B RCPS pursuant to the terms and conditions in the Share Subscription
Agreement and Deed of Adherence both dated 1 July
2009.
|
|
(F)
|
Pursuant
to certain put agreements entered into with the Existing Shareholder, EEV
and KMP have exercised their right to exchange the Series B RCPS held by
them for shares in the Existing Shareholder and as at the date of this
Agreement, the Series B RCPS shareholding in the Company is as
follows:
|
Page | 1
Series C Share Subscription
Agreement |
|
PMSB
|
444,444
|
|
Existing
Shareholder
|
410,279
|
|
(G)
|
The
Existing Shareholder and the Company intend to raise a further USD
7,500,000 in multiple tranches.
|
|
(H)
|
The
Existing Shareholder and the Company have invited MTDC, PMSB, EEV and KMP
to participate in the subscription of the Series C Redeemable Convertible
Preference Shares (“Series C RCPS”). PMSB,
EEV and KMP have declined to subscribe for the Series C RCPS whereas MTDC
has agreed to subscribe for the Series C RCPS upon the terms and subject
to the conditions set out in this
Agreement.
|
|
(I)
|
The
Existing Shareholder, the Company, MTDC and PMSB have entered into an
amended and restated shareholders agreement simultaneously with this
Agreement in place of the SSSA which will be
terminated.
|
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;
|
|
|
Articles
|
means
the articles of association of the Company;
|
|
|
Board
|
means
the board of directors of the Company;
|
|
|
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;
|
|
|
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;
|
|
|
Initial
Closing
|
means
completion of the subscription by MTDC of the relevant Tranche A Shares in
accordance with Clauses 3 and 4 within fourteen (14) days from the date of
this
Agreement;
|
Page | 2
Series C Share Subscription
Agreement |
|
Initial
Closing Date
|
means
fourteen (14) days from the date of this Agreement or such later date as
MTDC, the Existing Shareholder and the Company may mutually agree
on;
|
|
|
Initial
Subscription Price
|
means
the Ringgit Malaysia equivalent to USD1.5462 calculated at the prevailing
exchange rate on the date payment of the Initial Subscription Price is
effected, payable by MTDC for each Series C RCPS under this Agreement, out
of which RM0.01 is to be paid towards the par value of each Series C RCPS
and the difference between the Initial 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;
|
|
|
Parties
|
means
the Existing Shareholder, MTDC and the Company, and “Party” refers to any
one (1) of them;
|
|
|
RCPS
|
means
the Series A RCPS and/or the Series B RCPS and/or Series C
RCPS;
|
|
|
Series
C RCPS
|
means
Series C 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;
|
|
|
Subscription
Notice
|
means
the subscription notice to be issued by the Company to MTDC from time to
time in accordance with this Agreement in the form as annexed herewith in
Schedule 3;
|
|
|
Subsequent
Closing
|
means
completion of the subscription by MTDC of the relevant Tranche B Shares in
accordance with Clauses 3 and 4 within thirty six (36) months from the
Initial Closing Date;
|
|
|
Subsequent
Closing Date
|
means
within thirty six (36) months from the Initial Closing
Date;
|
|
|
Subsequent
Subscription Price
|
means
the Ringgit Malaysia equivalent to USD2.3193 calculated at the prevailing
exchange rate on the date payment of the Subsequent Subscription Price is
effected, payable by MTDC for each Series C RCPS under this Agreement, out
of which RM0.01 is to be paid towards the par value of each Series C RCPS
and the difference between the Subsequent 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;
|
Page | 3
Series C Share Subscription
Agreement |
|
Tranche
A Shares
|
means
3,233,734 new Series C RCPS of RM0.01 each in the Company to be issued at
the Initial Subscription Price;
|
|
|
Tranche
B Shares
|
means
1,077,911 new Series C RCPS of RM0.01 each in the Company to be issued at
the Subsequent Subscription Price;
|
|
|
USD
|
means
United States Dollar, the lawful currency of the United States of America;
and
|
|
|
Warranties
|
|
means
the representations and warranties made by the Investor, the
Existing Shareholder and the Company, as set out in Schedule
2.
|
|
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.
|
|
2.
|
Conditions
|
|
2.1
|
Conditions
Precedent
|
|
|
2.1.1
|
The
subscription for the Series C RCPS by MTDC is subject to, and conditional
upon, the fulfilment of the following conditions precedent within 14 days
from the date of this Agreement (subject to extension by agreement of
MTDC, the Existing Shareholder and the
Company):
|
|
|
(a)
|
amendments
to the Articles as are necessary to reflect in full the terms of this
Agreement and the new shareholders agreement referred to in Recital (I);
and
|
|
|
(b)
|
execution
of the new shareholders agreement referred to in Recital
(I).
|
Page | 4
Series C Share Subscription
Agreement |
|
2.2
|
Non-fulfillment
|
|
2.2.1
|
If
the conditions precedent in Sub-clauses 2.1.1 are not fulfilled within 14
days from 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;
|
|
|
(b)
|
all
obligations and liabilities of the Parties under this Agreement shall
cease to have effect; and
|
|
|
(c)
|
none
of the Parties shall have any claim against any other party in relation to
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, MTDC shall subscribe in
cash for Tranche A Shares and the Company will allot and issue Tranche A
Shares to MTDC, free from any Encumbrance at Initial
Closing.
|
|
|
3.1.2
|
Subject
to the terms and conditions of this Agreement, MTDC shall have the option
to subscribe for Tranche B Shares prior to the Subsequent Closing Date and
the Company will allot and issue Tranche B Shares to MTDC, free from any
Encumbrance at Subsequent Closing.
|
The
principal terms of the Series C RCPS are set out in Schedule
1.
|
|
3.1.3
|
In
respect of each subscription for Series C RCPS under this Agreement, the
Company will issue a Subscription Notice to MTDC. The Subscription Notice
will specify the number of Series C RCPS to be subscribed by MTDC under
Tranche A at the Initial Closing, and Tranche B at the Subsequent Closing,
and the Initial Subscription Price and Subsequent Subscription Price
respectively.
|
|
|
3.1.4
|
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 C RCPS to MTDC 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 C RCPS to MTDC
pursuant to this Agreement shall take place at the registered office of
the Company as follows:
|
|
(a)
|
Tranche
A Shares at the Initial Closing;
and
|
Page | 5
Series C Share Subscription
Agreement |
|
|
(b)
|
Tranche
B Shares at the Subsequent Closing;
|
or such
other date and time as may be mutually agreed by the Company and MTDC in
writing.
|
4.2
|
The
Investor 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
C RCPS to be subscribed (as set out in the relevant Subscription Notice),
in exchange for the delivery by the Company of the
following:
|
|
|
(a)
|
at
the Initial Closing, the share certificates in respect of the Series C
RCPS, a certified extract of the shareholders’ resolution of the Company
approving the subscription of the Tranche A Shares by MTDC at the Initial
Closing (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 Subsequent Closing, the share certificates in respect of the Series C
RCPS, a certified extract of the shareholders’ resolution of the Company
approving the subscription of the Tranche B Shares at the Subsequent
Closing, 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 C RCPS to be subscribed by
the Investor at both the Initial Closing and Subsequent Closing and
pursuant
to the relevant Subscription
Notice.
|
|
4A.
|
Utilisation
of Funds
|
|
4A.1
|
The
Parties agree that investment amounts raised through the issuance of the
Series C RCPS will be utilised for the working capital requirements of the
Company and/or loaned to the Existing Shareholder for its working capital
requirements, as determined by the Existing
Shareholder.
|
|
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 C 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.
|
Page | 6
Series C Share Subscription
Agreement |
|
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.
|
Save as
disclosed to the Investor 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
C 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
Investor 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 Investor 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 the Investor an option to exchange all the
Series C RCPS held by the Investor for shares in the Existing Shareholder upon
the terms and conditions of the Put Agreement to be entered into between the
Existing Shareholder and the Investor.
|
6.2
|
Investor’s
Put Option for Series C RCPS
|
|
|
If
the Investor is prohibited under US Federal or State Law from exchanging
the Series C RCPS it holds for shares in the Existing Shareholder on the
selected exchange date (“Exchange Date”) in
accordance with the Put Agreement referred to in Clause 6.1, the Investor
shall have the option to require the Existing Shareholder to purchase all
(but not less than all) of the Series C RCPS held by the Investor, upon
thirty (30) days’ notice in writing to the Existing Shareholder. The price
payable for each Series C RCPS shall be at a price equal to the lower
of:
|
|
(i)
|
USD2.25;
or
|
|
|
(ii)
|
the
closing share price of the Existing Shareholder on the over-the-counter
bulletin board or relevant stock exchange (as the case may be) on the
Exchange Date.
|
The
option shall be exercisable for as long as MTDC is the holder of Series C RCPS
in the Company and any time after the Initial Closing or Subsequent Closing
(where relevant) and subject to and in accordance with the Put
Agreement.
Page | 7
Series C Share Subscription
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 Initial
Closing,
|
|
|
(a)
|
where
the Company or the Existing Shareholder is the defaulting Party, MTDC
shall be entitled to terminate this
Agreement;
|
|
|
(b)
|
where
MTDC is the defaulting Party, the Company and the Existing Shareholder
shall be entitled to terminate this Agreement as against
MTDC,
|
|
|
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.
|
Page | 8
Series C Share Subscription
Agreement |
|
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 Investor or
companies related to the Investor shall only be made with the prior
written consent of the 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 Party
is entitled to the remedy of specific performance and injunctive relief (as may
be applicable), and monetary compensation by itself is not an adequate
remedy.
|
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.
Page | 9
Series C Share Subscription
Agreement |
|
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. None of
the Parties shall have 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.
|
|
17.
|
Costs
and Expenses
|
The
Parties shall be liable for their own respective costs incurred, as
follows:
(a) fees
for the solicitors’, company secretary, tax advisers and accountants;
and
(b) notarisation
and the commercial register.
|
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.
Page | 10
Series C Share Subscription
Agreement |
|
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
Investor:
Malaysian
Technology Development Corporation Sdn Bhd
Level 8,
Menara Yayasan Tun Razak,
Jalan
Bukit Bintang,
55100
Kuala Lumpur
Attn:
Norhalim Bin Yunus, Chief Executive Officer
Tel:
03-2172 6000
Fax:
03-2163 7542
For the
Existing Shareholder:
Wafergen
Bio-Systems Inc
7400
Paseo Padre Parkway
Fremont,
CA 94555, USA
Attn:
Alnoor Shivji
Tel: +1
(510) 468-0546
Fax: +1
(510) 651-4599
For the
Company:
Wafergen Biosystems (M) Sdn
Bhd
Suite
B.3(2), Ground Floor
KHTP
Business Centre
KHTP,
09000 Kulim
Kedah
Darul Aman, Malaysia
Tel:
+6019 312 4751
Fax: +604
402 3305
Attn:
Nazri Said
Page | 11
Series C Share Subscription
Agreement |
|
|
(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 envelope 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.
Page | 12
Series C Share Subscription
Agreement |
SCHEDULE
1
Principal
Terms of the Series C RCPS
|
1.
|
Subscription
Price and par value
|
The
subscription price for each Series C RCPS at the Initial Closing shall be
Ringgit Malaysia equivalent to USD1.5462 calculated at the prevailing exchange
rate on the date of payment of the Initial Subscription Price is effected. The
subscription price for each Series C RCPS at the Subsequent Closing shall be
Ringgit Malaysia equivalent to USD2.3193 calculated at the prevailing exchange
rate on the date of payment of the Subsequent Subscription Price is effected.
Each Series C RCPS shall have a par value of RM0.01.
|
2.
|
Premium
|
Each
Series C RCPS shall be issued at a premium being the difference between the
Initial Subscription Price or Subsequent Subscription Price (as the case may be)
and the par value of RM0.01.
|
3.
|
Dividend
Provision
|
There is
no specific dividend rate attached to the Series C RCPS and the Company is not
obliged to declare and pay any dividend while the Investor is holding the Series
C RCPS.
|
4.
|
Liquidation
Preference
|
In the
event of any liquidation, dissolution or winding up of the Company, the holders
of the Series C RCPS will be entitled to receive only in preference to the
holders of Shares, and not the Series A RCPS and Series B RCPS (which rank pari
passu for the purposes of this provision), the relevant Initial Subscription
Price and Subsequent Subscription Price (as the case may be) paid for the Series
C RCPS plus all accrued but unpaid dividends and dividends in arrears, if
any.
|
5.
|
Conversion
|
Each
holder of the Series C RCPS will have the right, at the option of the holder at
any time, to convert all or part of the Series C RCPS into such number of Shares
at a conversion ratio of one hundred-to-one (100 Series C RCPS : 1
Share).
The
conversion is to be effected by way of consolidating the par value of every one
hundred Series C RCPS of RM0.01 each, into the total par value of RM1.00 of each
Share.
To effect
the above conversion, a conversion notice shall be sent by the holder(s) of the
Series C 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 C RCPS in relation to the exercise of the holder(s)’ entitlement to
convert the Series C RCPS.
Page | 13
Series C Share Subscription
Agreement |
Completion
of the conversion of the Series C RCPS into Conversion Shares shall be effected
at the registered office of the Company unless agreed otherwise by the holder(s)
of the Series C RCPS and the Company. On the date fixed for
conversion, the holder(s) of the Series C RCPS shall deliver to the Company the
share certificate(s) for the relevant Series C RCPS in exchange for share
certificates in relation to the relevant amount of Conversion Shares resulting
from the conversion of those Series C RCPS. If any share certificate
so delivered to the Company relates to any Series C RCPS which are not to be
converted on that day, a fresh share certificate for those Series C RCPS shall
be immediately issued by the Company to such holder(s).
|
6.
|
[Deleted]
|
|
7.
|
Redemption
Rights
|
|
7.1
|
The
Company may redeem any or all Series C RCPS registered in the name of the
holder of the Series C RCPS at any time if the Company is prohibited from
granting a loan to the Existing Shareholder using the proceeds from the
issuance of the Series C RCPS due to legal or regulatory restrictions in
Malaysia, by giving a Notice of Redemption. The Series C 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
Initial Subscription Price or Subsequent Subscription Price (as the case
may be) and such price multiplied at the rate of 5% 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 Initial Subscription
Price or Subsequent Subscription Price (as the case may be)) and (ii) the
par value of RM0.01 per Series C RCPS plus all accrued but unpaid
dividends and dividends in arrears, if
any.
|
|
7.2
|
All
redemption of the Series C RCPS shall be effected at the registered office
of the Company unless agreed otherwise by the holder(s) of the Series C
RCPS and the Company. On the date fixed for redemption, the
holder(s) of the Series C RCPS shall deliver to the Company the share
certificate(s) for the relevant Series C 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 C RCPS. If any share certificate
so delivered to the Company relates to any Series C RCPS which are not to
be redeemed on that day, a fresh share certificate for those Series C RCPS
shall be issued by the Company to such
holder(s).
|
|
|
No
Series C RCPS redeemed by the Company shall be capable of
reissue.
|
|
8.
|
Voting
Rights
|
The
holder of the Series C RCCPS 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 holder of the Series C RCPS, the Company will not take any
action, whether by merger, consolidation or otherwise, that:
Page | 14
Series C Share Subscription
Agreement |
|
|
(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,
|
|
|
(b)
|
effects
or enters into any agreement regarding any transaction, or series of
transactions, which results in the holders of the Series C RCPS prior to
the transaction owning less than 50% of the voting power of the Company’s
Series C RCPS after the
transaction(s),
|
|
|
(c)
|
alters
or changes the rights, preferences or privileges of the Series C
RCPS,
|
|
|
(d)
|
increases
or decreases the number of authorized Series C
RCPS,
|
|
|
(e)
|
authorises
the issuance of securities having a preference over or on a parity with
the Series C 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 C
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 C RCPS shall not be varied, modified or deleted
unless in accordance with paragraph 9 above.
[The remainder of this page is
intentionally left blank]
Page | 15
Series C Share Subscription
Agreement |
SCHEDULE
2
Representations
and Warranties
|
1.
|
Representations
and Warranties by the Investor
|
The
Investor warrants to the Company and the Existing Shareholder as
follows.
|
|
1.1
|
Capacity and
Authority
|
The
Investor is duly incorporated and validly exists under the laws of Malaysia and
has the power to own its assets and carry on its business as now being
conducted.
|
|
1.2
|
Power to execute this
Agreement
|
|
|
(a)
|
The
Investor has the right, power and authority, and has taken or will take
all action necessary, to validly execute, deliver and exercise its 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 Investor of this Agreement or the
performance by the Investor of the transactions contemplated under this
Agreement;
|
|
|
(c)
|
This
Agreement is a valid and binding obligation of the Investor and is
enforceable against the Investor 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 Investor is subject and will not be
inconsistent with any constitutional documents or contracts to which the
Investor id a party to or otherwise binding on the Investor;
and
|
|
|
(e)
|
There
is no action, proceeding, claim or investigation pending against the
Investor before any court or administrative authority, which, if
determined against the Investor, may reasonably be expected to have a
material adverse effect on the Investor’s 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 Investor 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.
Page | 16
Series C Share Subscription
Agreement |
|
|
2.2
|
Power to execute this
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.
|
[The remainder of this page is
intentionally left blank]
Page | 17
Series C Share Subscription
Agreement |
SCHEDULE
3
Subscription
Notice
From: Wafergen
Biosystems (M) Sdn Bhd
To: Malaysian
Technology Development Corporation Sdn Bhd
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 [3,233,734/1,077,911]* of the Series C RCPS at a total
Subscription Price of [USD 5,000,000/USD 2,500,000]* (equivalent to RM ** based
on the exchange rate as at **), such subscription to be completed on [date] at
[time], being the [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)
Page | 18
Series C Share Subscription
Agreement |
Execution
Executed
as an Agreement.
|
Signed
for and on behalf of WaferGen Bio-systems,
Inc (WGBS.OB) in the presence of:
|
 |
|
|
|
|
|
|
Witness
|
Signatory
|
|
|
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
|
|
|
Name:
|
Name:
|
|
|
NRIC
No:
|
Designation:
|
|
|
NRIC
No:
|
Page | 19
Series C Share Subscription
Agreement |
|
Signed
for and on behalf of Malaysian Technology
Development Corporation Sdn Bhd (Company No 235796-U) in the
presence of:
|
|
|
|
|
|
|
|
Witness
|
Signatory
|
|
|
Name:
|
Name:
|
|
|
NRIC
No:
|
Designation:
|
|
|
NRIC
No:
|
Page | 20