Dated
EXHIBIT 10.4
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Dated
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Between
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Wafergen
Biosystems (M) Sdn Bhd
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and
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Wafergen
Bio-Systems Inc
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and
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Prima
Mahawangsa Sdn Bhd
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and
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Expedient
Equity Ventures Sdn Bhd
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and
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Malaysian
Technology Development Corporation Sdn Bhd
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and
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Kumpulan
Modal Perdana Sdn Bhd
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Deed
of Adherence
To
the Share Subscription and Shareholders’ Agreement dated 8 May 2008 and
Share Subscription Agreement dated 3 April
2009
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Contents
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Recitals
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1
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1.
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Interpretation
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2
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2.
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Adherence
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2
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3.
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Amendment
to the Shareholders’ Agreement
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2
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4.
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Share
Capital
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3
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5.
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Amendments
and Waiver
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4
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6.
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Notices
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4
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7.
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Costs
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4
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8.
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Governing
law
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4
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Execution
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5
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Page | i
Deed
of Adherence
This Deed
is made
on between:
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(1)
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Wafergen
Biosystems (M) Sdn Bhd (Company No 795066-H), a company
incorporated in Malaysia with a registered address at Xxxx X-00-0, Xxxxx
Xxxxxx 11, Xx 00, Xxxxx Xxx Xxxx Xxxx, 00000 Xxxxx Xxxxxx (“Company”);
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and
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(2)
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Wafergen
Bio-Systems, Inc (WGBS.OB), a Nevada USA incorporated company with a
registered address and place of business at Bayside Technology Center,
00000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000, XXX (“Wafergen
US”);
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and
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(3)
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Malaysian
Technology Development Corporation Sdn Bhd (Company No 235796-U), a
company incorporated in Malaysia with a registered address at Xxxxx 0-0,
Xxxxxx Yayasan Xxx Xxxxx, Xxxxx Xxxxx Xxxxxxx, 00000 Xxxxx Xxxxxx (“MTDC);
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and
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(4)
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Prima
Mahawangsa Sdn Bhd (Company No. 833152-M), a company incorporated in
Malaysia with a registered address at 5th Floor, Bangunan XXXX, Xxxxx
Xxxxxxxx, Xxxxxxxxx Xxxxxxx , 00000 Xxxxx Xxxxxx (“PMSB”);
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and
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(5)
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Expedient
Equity Ventures Sdn Bhd (Company No 780509-U), a company incorporated in
Malaysia with a registered address at Xxxxx 00, Xxxxxx Xxxx Pembangunan,
1016, Bandar Wawasan, Xxxxx Xxxxxx Xxxxxx, 00000, Xxxxx Xxxxxx (“EEV”);
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and
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(6)
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Kumpulan
Modal Perdana Sdn Bhd (Company No 547734-D), a company incorporated in
Malaysia with a registered address at Xxxxx 0, Xxxxxx Xxxxxxxx, Xxxxx
Xxxxxxxxx, Xxxxx Bandar Xxxxxxxxx, Xxxxxxxxx Xxxxxxx, 00000 Xxxxx Xxxxxx
(“KMP”).
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(The
Company, Wafergen US, MTDC, PMSB, EEV and KMP are collectively referred to
as “Parties” and
each as a “Party”)
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Recitals
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A)
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Pursuant
to a Share Subscription and Shareholders’ Agreement dated 8 May 2008
between the Company, Wafergen US and MTDC (“Shareholders’
Agreement”), MTDC agreed to subscribe for 888,888 redeemable
convertible preference shares of RM0.01 each in the capital of the Company
(“Series A RCPS”)
and the Company, Wafergen US and MTDC agreed to regulate the affairs and
their relationship in the Company in accordance with the Shareholders’
Agreement.
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B)
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Pursuant
to a subscription agreement dated 3 April 2009 between the Company,
Wafergen US, PMSB and EEV, (“Subscription
Agreement”), PMSB and EEV agreed to subscribe for 666,666
redeemable convertible preference shares of RM0.01 each in the capital of
the Company (“Series B
RCPS”) pursuant to the terms and conditions of the Subscription
Agreement.
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Deed of Adherence
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C)
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Under
the Shareholders’ Agreement the Parties may enter into a deed of adherence
by and amongst themselves to include additional subscribers for the
redeemable convertible preference shares of the Company and the Company,
Wafergen US, MTDC, PMSB and EEV have entered into a deed of adherence
dated 3 April 2009.
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D)
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Pursuant
to an additional subscription agreement dated 1 July 2009 between KMP, the
Company and Wafergen US (“KMP Subscription
Agreement”), KMP agreed to subscribe for 188,057 Series B RCPS
pursuant to the terms and conditions of the KMP Subscription
Agreement.
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E)
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KMP
has agreed to enter into this deed of adherence with the Company, Wafergen
US, MTDC, PMSB and EEV and to accede to the terms and conditions of the
Shareholders’ Agreement including any amendments thereto and hereinafter
appearing.
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F)
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This
Deed is conditional upon and shall only be effective against KMP upon
completion of the Closing (as defined in the KMP Subscription Agreement),
pursuant to the KMP Subscription
Agreement.
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It
is agreed as follows:
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1.
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Interpretation
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Words
and/or expressions defined in the Shareholders’ Agreement, Subscription
Agreement and KMP Subscription Agreement shall, unless the context otherwise
indicates, have the same meanings when used in this Deed.
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2.
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Adherence
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2.1
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In
consideration of KMP agreeing to enter into this Deed, the Parties agree
that, with effect from the date KMP subscribes for the Series B RCPS in
the Company (“KMP
Effective Date”), the following shall
apply:
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a)
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KMP
undertakes to the other Parties that KMP shall be bound by and perform the
obligations under the Shareholders’ Agreement as if KMP is a party to the
Shareholders’ Agreement (other than clauses 2, 3, 4, 5 and
11);
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b)
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KMP
adheres and accedes to the Shareholders’ Agreement and KMP shall be bound
by the provisions of the Shareholders’ Agreement and shall be entitled to
rights as if KMP is a party to the Shareholders’ Agreement (other than
clauses 2, 3, 4, 5 and 11); and
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c)
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KMP
becomes an “Investor” for the purposes of the Shareholders’ Agreement
(other than clauses 2, 3, 4, 5 and
11).
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3.
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Amendment
to the Shareholders’ Agreement
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3.1
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The
Shareholders’ Agreement is amended as follows with effect from the date of
this Deed :
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Deed of Adherence
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3.1.1
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to
insert “KMP” as a new definition in clause 1.1 of the Shareholders’
Agreement as follows:
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“means
Kumpulan Modal Perdana Sdn Bhd (Company No. 547734-D), a company incorporated in
Malaysia with a registered address at Suite 7.01, Xxxxx 0, Xxx Xxxxxxx Xxxxx
Xxxxx, Xxx Xxxxxx Xxxx, Xxxxxxxxx Xxxx Xxxxx, 00000 Xxxxx Xxxxxx”
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3.2
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The
Shareholders’ Agreement is amended as follows with effect from the KMP
Effective Date:
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3.2.1
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the
definition of “Investor” in clause 1.1 of the Shareholders’ Agreement is
amended to include KMP;
and
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3.2.2
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the
definition of “Parties” in clause 1.1 of the Shareholders’ Agreement is
amended to include KMP.
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4.
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Share
Capital
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The
shares in the Company to be subscribed pursuant to and subject to the
Shareholders’ Agreement, the Subscription Agreement and the KMP Subscription
Agreement are as follows.
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Number
of shares to be subscribed
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Shareholder
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Type
of
shares
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Initial
Closing/PMSB
Initial
Closing/
EEV
Initial
Closing
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Subsequent
Closing
Closing/PMSB
Subsequent
Closing
/EEV
Subsequent
Closing
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Closing
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Total
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Existing
Shareholder
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Shares
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300,000 | 300,000 | ||||||||||||
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MTDC
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Series
A RCPS
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444,444 | 444,444 | 888,888 | |||||||||||
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PMSB
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Series
B RCPS
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222,222 | 222,222 | 444,444 | |||||||||||
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EEV
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Series
B RCPS
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111,111 | 111,111 | 222,222 | |||||||||||
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KMP
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Series
B RCPS
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188,057
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188,057 | ||||||||||||
Deed of Adherence
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5.
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Amendments
and Waiver
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5.1
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Both
the Existing Shareholder, MTDC, PMSB and EEV agree to execute and do and
procure all other necessary persons or companies, if any, to execute and
do all such further deed, issuance, acts and things as may be required to
give full effect to the terms and conditions of this Deed, including but
not limited to amending the Articles and assisting with the satisfaction
of the conditions precedent in the KMP Subscription Agreement, where
applicable.
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5.2
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The
Existing Shareholder, MTDC, PMSB and EEV irrevocably confirm their waiver
of all rights of pre-emption whatsoever that they may have in connection
with the issue and conversion of the Series B RCPS to KMP pursuant to the
terms of the Subscription Agreement, the Shareholders’ Agreement, the KMP
Subscription Agreement and this
Deed.
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5.3
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KMP
also irrevocably confirm their waiver of all rights of pre-emption
whatsoever that they may have in connection with the issue and conversion
of the Series A RCPS to MTDC and the Series B RCPS to PMSB and EEV
pursuant to the terms of the Shareholders’ Agreement and Subscription
Agreement respectively and this
Deed.
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6.
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Notices
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For the
purposes of Clause 26 of the Shareholders’ Agreement, the addresses for all
notices given thereunder to KMP shall be as follows:
KMP
Xxxxx 0,
Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxxx,
Xxxxx
Bandar Xxxxxxxxx, Xxxxxxxxx Xxxxxxx,
00000
Xxxxx Xxxxxx
Attn:
Dato' Ramli Abbas (Chairman) / Xxxxxx Xxxxxx Xxxxxx (Assistant Vice
President)
Tel: x000
0000 0000
Fax: x000
0000 0000
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7.
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Costs
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The
Company shall bear all costs and expenses incurred in connection with the
preparation, negotiation and execution of this Deed. The cost of stamping shall
be borne by the Company.
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8.
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Governing
law
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This
Deed shall be governed by and construed in accordance with the laws for
the time being enforced in Malaysia. The Parties unconditionally submit to
the non-exclusive jurisdiction of the Courts of Malaysia in connection
with all matters under this Deed.
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Deed of Adherence
Execution
Executed
as a Deed.
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Signed
for and on behalf of WaferGen Bio-systems,
Inc (WGBS.OB) in the
presence of:
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Witness
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Signatory
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Name:
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Name:
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NRIC
No:
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Designation:
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NRIC
No
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Signed
for and on behalf of Wafergen Biosystems (M) Sdn Bhd
(Company No 795066-H) in the presence of:
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Witness
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Signatory
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Name:
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Name:
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NRIC
No:
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Designation:
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NRIC
No:
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Deed of Adherence
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Signed
for and on behalf of
Malaysian Technology Development Corporation Sdn Bhd (Company No 235796-U) in
the presence of:
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Witness
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Signatory
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Name:
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Name:
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NRIC
No:
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Designation:
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NRIC
No:
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Signed
for and on behalf of Prima Mahawangsa Sdn Bhd
(Company No 833152-M) in the
presence of:
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Witness
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Signatory
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Name:
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Name:
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NRIC
No:
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Designation:
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NRIC
No:
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Deed of Adherence
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Signed
for and on behalf of Expedient Equity Ventures Sdn
Bhd (Company No 780509-U) in the
presence of:
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Witness
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Signatory
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Name:
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Name:
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NRIC
No:
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Designation:
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NRIC
No:
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Signed
for and on behalf of Kumpulan Modal Perdana Sdn
Bhd (Company No 547734-D) in the
presence of:
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Witness
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Signatory
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Name:
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Name:
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NRIC
No:
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Designation:
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NRIC
No:
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