WAFERGEN BIO-SYSTEMS, INC. PUT OPTION AGREEMENT
EXHIBIT
10.3
THIS PUT OPTION AGREEMENT
(this “Agreement”) is
entered into as of ____________ __, 2009, by and among (i) Xxxxxx Xxxxxx (the
“Founder”), the founder
and chairman, chief executive officer and president of WaferGen Bio-systems,
Inc., a Nevada corporation (“WaferGen US”), and (ii)
Kumpulan Modal Perdana Sdn Bhd (the “Investor”), a purchaser of
Series B Redeemable Convertible Preference Shares (“Series B Shares”) issued by
WaferGen Biosystems (M) Sdn. Bhd., a Malaysian corporation (the “Company”), pursuant to that
certain Share Subscription Agreement dated as of ____________ __, 2009 (the
“Purchase Agreement”)
between WaferGen US, the Investor and the Company.
SECTION 1
2
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.
SECTION 2
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.
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4
[Signature
page follows]
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In Witness
Whereof, the parties hereto have executed this Put Option
Agreement as of the date set forth in the first paragraph
hereof.
By:
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Xxxxxx
Xxxxxx
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Address:
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Bayside
Technology Center
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00000
Xxxxxxx Xxxx.
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Xxxxxxx,
XX 00000, XXX
Facsimile:
000 000 0000
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INVESTOR:
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Kumpulan
Modal Perdana Sdn Bhd
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By:
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Name:
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Title:
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Address:
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Xxxxx
0, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxxx,
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Xxxxx
Bandar Xxxxxxxxx, Xxxxxxxxx Xxxxxxx,
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00000
Xxxxx Xxxxxx
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Facsimile:
x000 0000
0000
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