WAFERGEN BIO-SYSTEMS, INC. PUT AGREEMENT
EXHIBIT
10.2
THIS
PUT
AGREEMENT (this “Agreement”)
is entered into as of May 28, 2008, by
and
among
WaferGen Bio-systems, Inc., a Nevada corporation (“WaferGen
US”), and the
purchasers
(the “WaferGen
Malaysian Investors” or “Holders”)
of the Series A Redeemable
Convertible
Preference Shares in WaferGen Biosystems (M) Sdn. Bhd. (formerly known
as
Global
Dupleks Sdn. Bhd.), a Malaysian corporation (the “Company”)
(“Series
A 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 A 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 A Shares held by such
WaferGen
Malaysian Investor, whereby the Series A 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 A 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 A 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 A Shares
to
WaferGen US. WaferGen US may nominate its nominee(s) to accept the transfer
of
the Series
1
A
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. Upon the occurrence of an Exchange, each
of
the
Holder’s Series A 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 A
Share
(with
such conversion to U.S. dollars being calculated as of the date of purchase)
pursuant to the
Purchase
Agreement, divided by the Exchange Price1 (in each case as adjusted
for
stock splits,
recapitalization,
combinations and similar transactions). 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). 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 A 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 A 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 A 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
2
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 A 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 A
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 A Shares then held by all Holders (excluding for purposes of this
calculation any
Series
A
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
3
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:
Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000,
Attention:
Xxxx
X.
Xxxxxxxx (Telecopier: (000) 000-0000).
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 “Common
Stock” means the common stock, par value $0.001 per share,
of
WaferGen
US.
2.12.2 The
“Exchange
Price” shall be equal to USD $2.25 per share.
2.12.3 “Exchange
Securities” shall mean shares of Common Stock of WaferGen
US.
2.12.4
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. The Holder understands that any shares of
Common
Stock
of
WaferGen US received in an Exchange have not been and will not be registered
under
the
Act
and have not been and will not be registered or qualified in any state in which
they are
offered,
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 and registered or qualified
under
4
applicable
state securities laws, 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.
5
IN
WITNESS WHEREOF, the
parties hereto have executed this PUT OPTION AGREEMENT as of the
date set forth in the first paragraph hereof.
WAFERGEN
US:
|
By:
/s/ Xxxxxx
Xxxxxx
|
|||
|
Xxxxxx
Xxxxxx
|
|||
|
Chairman,
President & Chief Executive Officer
|
Address:
Bayside
Technology Center
00000
Xxxxxxx Xxxx.
Xxxxxxx,
XX 00000, XXX
Facsimile:
000 000 0000
WAFERGEN
MALAYSIAN INVESTOR:
MALAYSIAN
TECHNOLOGY DEVELOPMENT CORPORATION SDN BHD
|
By:
/s/ Dato'
Xxxxx b. Alias
|
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|
Dato'
Xxxxx b.
Alias
|
|||
Address:
Xxxxx
0-0, Xxxxxx Yayasan Tun Razak,
Xxxxx
Xxxxx Xxxxxxx,
00000
Xxxxx Xxxxxx
Facsimile:
00-0000 0000
6
