LOCK-UP LETTER AGREEMENT January 14, 2008
Exhibit
4.1
January
14, 2008
00000
Xxxxxxx Xxxx.
Xxxxxxx,
XX 00000
Ladies
and Gentlemen:
Reference
is hereby made to the registration statement on Form SB-2/A filed by WaferGen
Bio-systems, Inc. (the “Company”) on December 17, 2007, relating to the offering
(the “Offering”) by the selling stockholders of the Company of up to 10,924,907
shares of common stock, par value $0.001 per share, of the Company. These shares
include 8,008,448 issued and outstanding shares of common stock and 2,916,459
shares of common stock underlying warrants, issued to the selling stockholders
in connection with a private placement offering. Xxxxxx & Xxxxxxx, LLC (the
“Placement Agent”) participated as placement agent in the private placement
offering.
In
connection with the private placement offering, the Placement Agent received
five-year warrants (the “Xxxxxx Warrants”) to purchase 513,926 shares of the
Company’s common stock (equal to 7% of the number of shares of the Company’s
common stock on which the cash fee was payable for units sold in the Offering)
at an exercise price of $2.25 per share. In addition, R&R Biotech Partners
LLC, an affiliate of the Placement Agent (“R&R Biotech”) participated as an
investor in the private placement offering and acquired 166,667 shares of the
Company’s common stock (the “Shares”) and warrants to purchase 50,000 shares of
common stock an exercise price of $2.25 per share (the “R&R Biotech
Warrants” and, together with the Xxxxxx Warrants and the Shares, the
“Securities”).
Each
of
the Placement Agent and R&R Biotech hereby agrees, with respect to the
Securities and all shares issuable upon the exercise of the Xxxxxx Warrants
or
the R&R Biotech Warrants (together, the “Restricted Shares”), not to sell,
transfer, assign, pledge, or hypothecate, or allow the Restricted Shares to
be
the subject of any hedging, short sale, derivative, put, or call transaction
that would result in the effective economic disposition of the Restricted Shares
by any person for a period of 180 days immediately following the date of
effectiveness or commencement of sales in the Offering, except as provided
below.
Notwithstanding
the above, the following shall not be prohibited:
| (A) |
the
transfer of any security:
|
|
(i)
|
by
operation of law or by reason of reorganization of the Company;
|
|
(ii)
|
to
any member participating in the Offering and the officers or partners
thereof, if all securities so transferred remain subject to the lock-up
restriction set forth above for the remainder of the time period;
|
|
(iii)
|
if
the aggregate amount of securities of the Company held by the underwriter
or related person do not exceed 1% of the securities being offered;
|
|
(iv)
|
that
is beneficially owned on a pro-rata basis by all equity owners of
an
investment fund, provided that no participating member manages or
otherwise directs investments by the fund, and participating members
in
the aggregate do not own more than 10% of the equity in the fund;
|
|
(v)
|
that
is not an item of value under Rule 2710(c)(3)(B)(iii) through (vii)
of the
manual (“Manual”) of the National Association of Securities Dealers, Inc.;
|
|
(vi)
|
that
is eligible for the limited filing requirement in Rule 2710(b)(6)(A)(iv)b
of the Manual and has not been deemed to be underwriting compensation
under the Rule;
|
|
(vii)
|
that
was previously but is no longer subject to the lock-up restriction
set
forth above in connection with a prior public offering (or a lock-up
restriction in the predecessor rule), provided that if the prior
restricted period has not been completed, the security will continue
to be
subject to such prior restriction until it is completed;
or
|
|
(viii)
|
that
was acquired subsequent to the Company’s initial public offering in a
transaction exempt from registration under SEC Rule 144A;
or
|
|
(B)
|
the
exercise or conversion of any security, if all securities received
remain
subject to the lock-up restriction set forth above for the remainder
of
the time period.
|
| XXXXXX & XXXXXXX, LLC | ||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name: Xxx Xxxxx |
||
| Title: Chief Financial Officer | ||
|
R&R
BIOTECH PARTNERS LLC
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||
| |
|
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| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name: Xxx Xxxxx |
||
| Title: Chief Financial Officer | ||
ACKNOWLEDGED
AND AGREED TO BY
| By: |
/s/
Xxxxxx Xxxxxx
|
||
|
Name: Xxxxxx
Xxxxxx
|
|||
| Title: President |
