SUBSCRIPTION AGREEMENT
EXHIBIT 10.5
Bayside
Technology Center
00000
Xxxxxxx Xxxx.
Xxxxxxx,
XX 00000
This
Subscription Agreement (this “Agreement”)
has been executed by the subscriber set forth in the signature page attached
hereto (the “Subscriber”)
in connection with the private placement offering (the “Offering”)
of a minimum of 3,200,000 and a maximum of 6,400,000 units of securities (the
“PPO
Units”) issued by WaferGen Bio-systems, Inc., a Nevada Corporation (the
“Company”),
at a purchase price of $1.25 per PPO Unit. Each PPO Unit consists of
(i) one share of the Company’s common stock, par value $0.001 per share (“Common
Stock”), and (ii) a warrant, substantially in the form of Exhibit D to the
Memorandum (as defined below) (the “Warrants”),
representing the right to purchase 30% of one share of Common Stock, exercisable
for a period of five years at an exercise price of $2.00 per whole share; and in
the event the Offering is oversubscribed, the Company may, in its discretion,
sell up to 1,600,000 additional Units at the same purchase price per
Unit. This subscription is being submitted to you in accordance with
and subject to the terms and conditions described in this Agreement and the
Confidential Private Placement Memorandum of the Company dated May 18, 2009, as
amended and supplemented from time to time, including all attachments, schedules
and exhibits thereto (the “Memorandum”),
relating to the Offering.
The PPO
Units being subscribed for pursuant to this Agreement have not been registered
under the Securities Act of 1933, as amended (the “Securities
Act”). The Offering is being made on a “best efforts” basis to
“accredited investors,” as defined in Regulation D under the Securities Act, and
non-”U.S. persons,” as defined in Regulation S under the Securities
Act. The Company reserves the right, in its sole discretion and for
any reason, to reject any Subscriber’s subscription in whole or in part, or to
allot less than the number of PPO Units subscribed for.
The
undersigned acknowledges receipt of a copy of the Registration Rights Agreement,
substantially in the form of Exhibit C to the
Memorandum (the “Registration
Rights Agreement”).
The
closing of the Offering (the “Closing;”
and the date on which such Closing occurs hereinafter referred to as the “Closing
Date”) shall be at the offices of Xxxxxxxx & Xxxxxxxx LLP, as counsel
to the Company, at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 (or such other
place as is mutually agreed to by the Company). The Company may
conduct multiple closings for the sale of the PPO Units until the termination of
the Offering. The Offering shall continue until May 29, 2009, which
date may be extended until June 30, 2009 by the mutual agreement of the Company
and the Company’s selling agent, and which date may subsequently be further
extended to a date not later than July 31, 2009 by the mutual agreement of the
Company and the Company’s selling agent.
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1. Subscription. The
undersigned Subscriber hereby subscribes to purchase the number of PPO Units set
forth on the signature page attached hereto, at an aggregate price as set forth
on such signature page (the “Purchase
Price”), subject to the terms and conditions of this Agreement and on the
basis of the representations, warranties, covenants and agreements contained
herein.
2. Subscription
Procedure. To complete a subscription for the PPO Units, the
Subscriber must fully comply with the subscription procedure provided in this
Section on or before the Closing Date.
a. Transaction
Documents. On or before the Closing Date, the Subscriber shall
review, complete and execute the Omnibus Signature Page to this Agreement and
the Investor Certification, attached hereto as Appendix A
(collectively, the “Transaction
Documents”), and deliver the Transaction Documents, together with a check
in the full amount of the Purchase Price, if paying by check, to the Company’s
selling agent as set forth on page 11 hereof. Executed documents may
be delivered by facsimile or electronic mail (e-mail), if the Subscriber
delivers the original copies of the documents to the Company’s selling agent as
soon as practicable thereafter.
b. Purchase
Price. Simultaneously with the delivery of the Transaction
Documents as provided herein, and in any event on or prior to the Closing Date,
the Subscriber shall deliver to the Escrow Agent the full Purchase Price by wire
transfer of immediately available funds, if the Subscriber has not previously
delivered a check in the full amount of the Purchase Price to the Company’s
selling agent.
c. Company
Discretion. The Subscriber understands and agrees that the
Company in its sole discretion reserves the right to accept or reject this or
any other subscription for PPO Units, in whole or in part, notwithstanding prior
receipt by the Subscriber of notice of acceptance of this
subscription. The Company shall have no obligation hereunder until
the Company shall execute and deliver to the Subscriber an executed copy of this
Agreement. If this subscription is rejected in whole, or the offering
of PPO Units is terminated, all funds received from the Subscriber will be
returned without interest or offset, and this Agreement shall thereafter be of
no further force or effect. If this subscription is rejected in part,
the funds for the rejected portion of this subscription will be returned without
interest or offset, and this Agreement will continue in full force and effect to
the extent this subscription was accepted.
3. Representations and Warranties of the
Company. The Company hereby represents and warrants to the
Subscriber the following:
a. Organization and
Qualification. The Company is a corporation duly organized and
validly existing under the laws of the State of Nevada. The Company
has all requisite power and authority to carry on its business as currently
conducted. The Company is duly qualified to transact business in each
jurisdiction in which the failure to be so qualified would not reasonably be
expected to have a material adverse effect on the Company’s business, properties
or financial condition (a “Material
Adverse Effect”).
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b. Authorization. As
of the Closing, all action on the part of the Company, its board of directors,
officers and existing stockholders necessary for the authorization, execution
and delivery of this Agreement, the Registration Rights Agreement, the Warrant
and the performance of all obligations of the Company hereunder and thereunder
shall have been taken, and this Agreement, the Registration Rights Agreement and
the Warrant, assuming due execution by the parties hereto and thereto, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, subject to: (i) judicial principles
limiting the availability of specific performance, injunctive relief, and other
equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect generally relating to or
affecting creditors’ rights.
c. Valid Issuance of the Common
Stock and the Warrant. The shares of Common Stock and the
Warrant, when issued, sold and delivered in accordance with the terms of this
Agreement for the consideration expressed herein, and the shares of Common Stock
underlying the Warrant, when issued and delivered in accordance with the terms
of the Warrant, shall be duly and validly issued and will be free of
restrictions on transfer directly or indirectly created by the Company other
than restrictions on transfer under this Agreement, the Registration Rights
Agreement and the terms of the Warrant and under applicable federal and state
securities laws.
d. Governmental
Consents. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the offer, sale or issuance of the PPO Units, except
for the following: (i) the filing of such notices as may be required under the
Securities Act and (ii) the compliance with any applicable state securities
laws, which compliance will have occurred within the appropriate time periods
therefor.
e. Litigation. There
are no actions, suits, proceedings or investigations pending or, to the best of
the Company’s knowledge, threatened before any court, administrative agency or
other governmental body against the Company which question the validity of this
Agreement, the Registration Rights Agreement or the Warrant, or the right of the
Company to enter into any of them, or to consummate the transactions
contemplated hereby or thereby, or which would reasonably be expected to have a
Material Adverse Effect. The Company is not a party or subject to,
and none of its assets is bound by, the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality which would reasonably be expected to have a Material Adverse
Effect.
f. Compliance with Other
Instruments. The Company is not in violation or default of any
provision of its Articles of Incorporation, each as in effect immediately prior
to the Closing, except for such failures as would not reasonably be expected to
have a Material Adverse Effect. Except as disclosed in the Memorandum, the
Company is not in violation or default of any provision of any material
instrument, mortgage, deed of trust, loan, contract, commitment, judgment,
decree, order or obligation to which it is a party or by which it or any of its
properties or assets are bound which would reasonably be expected to have a
Material Adverse Effect. To the best of its knowledge, the Company is
not in violation or default of any provision of any federal, state or local
statute, rule or governmental regulation which would reasonably
be
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expected
to have a Material Adverse Effect. The execution, delivery and
performance of and compliance with this Agreement, the Registration Rights
Agreement and the issuance and sale of the PPO Units, will not result in any
such violation, be in conflict with or constitute, with or without the passage
of time or giving of notice, a default under any such provision, require any
consent or waiver under any such provision (other than any consents or waivers
that have been obtained), or result in the creation of any mortgage, pledge,
lien, encumbrance or charge upon any of the properties or assets of the Company
pursuant to any such provision.
g. Certain Registration
Matters. Assuming the accuracy of the Subscriber’s
representations and warranties set forth in this Agreement and the Transaction
Documents, and the representations and warranties made by all other Subscribers
of PPO Units in the Offering, no registration under the Securities Act is
required for the offer and sale of the PPO Units by the Company to the
Subscriber hereunder.
h. No General
Solicitation. Neither the Company nor any person acting on
behalf of the Company has offered or sold any of the PPO Units by any form of
general solicitation or general advertising (within the meaning of Regulation
D).
4. Representations and Warranties of the
Subscriber. The Subscriber represents and warrants to the
Company the following:
a. The
Subscriber, its advisers, if any, and designated representatives, if any, have
the knowledge and experience in financial and business matters necessary to
evaluate the merits and risks of its prospective investment in the Company, and
have carefully reviewed and understand the risks of, and other considerations
relating to, the purchase of PPO Units and the tax consequences of the
investment, and have the ability to bear the economic risks of the
investment.
b. The
Subscriber is acquiring the PPO Units for investment for its own account and not
with the view to, or for resale in connection with, any distribution
thereof. The Subscriber understands and acknowledges that the PPO
Units, the shares of Common Stock, the Warrants and the shares of Common Stock
issuable upon exercise of the Warrants (the “Warrant
Shares”) have not been registered under the Securities Act or any state
securities laws, by reason of a specific exemption from the registration
provisions of the Securities Act and applicable state securities laws, which
depends upon, among other things, the bona fide nature of the investment intent
as expressed herein. The Subscriber further represents that it does
not have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to any third person with respect to any of
the PPO Units, the shares of Common Stock, the Warrant or the Warrant
Shares. The Subscriber understands and acknowledges that the offering
of the PPO Units pursuant to this Agreement will not be registered under the
Securities Act nor under the state securities laws on the ground that the sale
provided for in this Agreement and the issuance of securities hereunder is
exempt from the registration requirements of the Securities Act and any
applicable state securities laws.
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c. The
Subscriber understands that no public market now exists, and there may never be
a public market for, the PPO Units, that an active public market for the
Company’s Common Stock does not now exist and that there may never be an active
public market for the shares of Common Stock sold in the Offering and the shares
of Common Stock underlying the Warrants sold in the Offering.
d. The
Subscriber, its advisers, if any, and designated representatives, if any, have
received and reviewed information about the Company and have had an opportunity
to discuss the Company’s business, management and financial affairs with its
management. The Subscriber understands that such discussions, as well
as any written information provided by the Company, were intended to describe
the aspects of the Company’s business and prospects which the Company believes
to be material, but were not necessarily a thorough or exhaustive description,
and except as expressly set forth in this Agreement, the Company makes no
representation or warranty with respect to the completeness of such information
and makes no representation or warranty of any kind with respect to any
information provided by any entity other than the Company. Some of
such information includes projections as to the future performance of the
Company, which projections may not be realized, are based on assumptions which
may not be correct and are subject to numerous factors beyond the Company’s
control.
e. As of the
Closing, all action on the part of Subscriber, and its officers, directors and
partners, if applicable, necessary for the authorization, execution and delivery
of this Agreement and the Registration Rights Agreement and the performance of
all obligations of the Subscriber hereunder and thereunder shall have been
taken, and this Agreement and the Registration Rights Agreement, assuming due
execution by the parties hereto and thereto, constitute valid and legally
binding obligations of the Subscriber, enforceable in accordance with their
respective terms, subject to: (i) judicial principles limiting the availability
of specific performance, injunctive relief, and other equitable remedies and
(ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect generally relating to or affecting creditors’
rights.
f. The
Subscriber either (i) is an “accredited investor” as defined in Rule 501 of
Regulation D as promulgated by the Securities and Exchange Commission under the
Securities Act or (ii) is not a “U.S. Person” as defined in Regulation S as
promulgated by the Securities and Exchange Commission under the Securities Act,
and, in each case, shall submit to the Company such further assurances of such
status as may be reasonably requested by the Company.
g. The
Subscriber, if a non-U.S. Person, agrees that it is acquiring the Shares in an
offshore transaction pursuant to Regulation S and hereby represents to the
Company as follows:
(i) Subscriber
is outside the United States when receiving and executing this Subscription
Agreement; and
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(ii) Subscriber
has not acquired the Shares as a result of, and will not itself engage in, any
“directed selling efforts” (as defined in Regulation S) in the United States in
respect of the Shares which would include any activities undertaken for the
purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States for the resale of the Shares;
provided, however, that the Subscriber may sell or otherwise dispose of the
Shares pursuant to registration of the Shares under the Securities Act and any
applicable state and provincial securities laws or under an exemption from such
registration requirements and as otherwise provided herein.
(iii) The
Subscriber understands and agrees that offers and sales of any of the Shares
prior to the expiration of a period of one year after the date of transfer of
the Shares under this Subscription Agreement (the “Distribution Compliance
Period”), shall only be made in compliance with the safe harbor provisions set
forth in Regulation S, pursuant to the registration provisions of the Securities
Act or an exemption therefrom, and that all offers and sales after the
Distribution Compliance Period shall be made only in compliance with the
registration provisions of the Securities Act or an exemption therefrom, and in
each case only in accordance with all applicable securities laws.
(iv) The
Subscriber understands and agrees not to engage in any hedging transactions
involving the Shares prior to the end of the Distribution Compliance Period
unless such transactions are in compliance with the Securities Act.
(v) The
Subscriber hereby represents that it has satisfied itself as to the full
observance of the laws of its jurisdiction in connection with any invitation to
subscribe for the PPO Units or any use of this Subscription Agreement,
including: (a) the legal requirements within its jurisdiction for the purchase
of the PPO Units; (b) any foreign exchange restrictions applicable to such
purchase; (c) any governmental or other consents that may need to be obtained;
and (d) the income tax and other tax consequences, if any, that may be relevant
to the purchase, holding, redemption, sale or transfer of the PPO Units. Such
Subscriber’s subscription and payment for, and its continued beneficial
ownership of the PPO Units, will not violate any applicable securities or other
laws of the Subscriber’s jurisdiction.
h. The
Subscriber or its duly authorized representative realizes that because of the
inherently speculative nature of investments of the kind contemplated by the
Company, the Company’s investment results may be expected to fluctuate from
month to month and from period to period and will, generally, involve a high
degree of financial and market risk that can result in substantial or, at times,
even total losses.
i. The
Subscriber has adequate means of providing for its current and anticipated
financial needs and contingencies, is able to bear the economic risk for an
indefinite period of time and has no need for liquidity of the investment in the
PPO Units and could afford complete loss of such investment.
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j. The
Subscriber is not subscribing for PPO Units as a result of or subsequent to any
advertisement, article, notice or other communication, published in any
newspaper, magazine or similar media or broadcast over television, radio, or the
internet, or presented at any seminar or meeting, or any solicitation of a
subscription by a person not previously known to the Subscriber in connection
with investments in securities generally.
k. The
Subscriber agrees to be bound by all of the terms and conditions of the
Registration Rights Agreement and to perform all obligations thereby imposed
upon it.
l. All of
the information that the Subscriber has heretofore furnished or which is set
forth herein is correct and complete as of the date of this Agreement, and, if
there should be any material change in such information prior to the admission
of the undersigned to the Company, the Subscriber will immediately furnish
revised or corrected information to the Company.
m. The Subscriber should check the
Office of Foreign Assets Control (“OFAC”) website at
<xxxx://xxx.xxxxx.xxx/xxxx> before making the following
representations. The Subscriber represents that the amounts invested by
it in the Company in the Offering were not and are not directly or indirectly
derived from activities that contravene federal, state or international laws and
regulations, including anti-money laundering laws and regulations. Federal
regulations and Executive Orders administered by OFAC prohibit, among other
things, the engagement in transactions with, and the provision of services to,
certain foreign countries, territories, entities and individuals. The
lists of OFAC prohibited countries, territories, persons and entities can be
found on the OFAC website at <xxxx://xxx.xxxxx.xxx/xxxx>. In
addition, the programs administered by OFAC (the “OFAC Programs”) prohibit
dealing with individuals1 or entities in certain countries regardless of
whether such individuals or entities appear on the OFAC lists;
n. To the
best of the Subscriber’s knowledge, none of: (1) the Subscriber; (2) any person
controlling or controlled by the Subscriber; (3) if the Subscriber is a
privately-held entity, any person having a beneficial interest in the
Subscriber; or (4) any person for whom the Subscriber is acting as agent or
nominee in connection with this investment is a country, territory, individual
or entity named on an OFAC list, or a person or entity prohibited under the OFAC
Programs. Please be advised that the Company may not accept any
amounts from a prospective investor if such prospective investor cannot make the
representation set forth in the preceding paragraph. The Subscriber
agrees to promptly notify the Company should the Subscriber become aware of any
change in the information set forth in these representations. The
Subscriber understands and acknowledges that, by law, the Company may be
obligated to “freeze the account” of the Subscriber, either by prohibiting
additional subscriptions from the Subscriber, declining any redemption requests
and/or segregating the assets in the account in compliance with governmental
regulations, and the Company or its agents may also be required to report such
action and to disclose the Subscriber’s identity to OFAC. The
Subscriber further acknowledges that the Company may, by written notice to the
Subscriber, suspend the
1 These individuals include
specially designated nationals, specially designated narcotics traffickers and
other parties subject to OFAC sanctions and embargo
programs.
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redemption
rights, if any, of the Subscriber if the Company reasonably deems it necessary
to do so to comply with anti-money laundering regulations applicable to the
Company, its agents or any of the Company’s other service
providers. These individuals include specially designated nationals,
specially designated narcotics traffickers and other parties subject to OFAC
sanctions and embargo programs;
o. To the
best of the Subscriber’s knowledge, none of: (1) the Subscriber; (2) any person
controlling or controlled by the Subscriber; (3) if the Subscriber is a
privately-held entity, any person having a beneficial interest in the
Subscriber; or (4) any person for whom the Subscriber is acting as agent or
nominee in connection with this investment is a senior foreign political
figure2, or
any immediate family3 member or
close associate4 of a
senior foreign political figure, as such terms are defined in the footnotes
below; and
p. If the
Subscriber is affiliated with a non-U.S. banking institution (a “Foreign
Bank”), or if the Subscriber receives deposits from, makes payments on
behalf of, or handles other financial transactions related to a Foreign Bank,
the Subscriber represents and warrants to the Company that: (1) the Foreign Bank
has a fixed address, other than solely an electronic address, in a country in
which the Foreign Bank is authorized to conduct banking activities; (2) the
Foreign Bank maintains operating records related to its banking activities; (3)
the Foreign Bank is subject to inspection by the banking authority that licensed
the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does
not provide banking services to any other Foreign Bank that does not have a
physical presence in any country and that is not a regulated
affiliate.
5. Transfer
Restrictions. The Subscriber acknowledges and agrees as
follows:
a. The PPO
Units, the shares of Common Stock, the Warrant and the Warrant Shares have not
been registered for sale under the Securities Act, in reliance on the private
offering exemption in Section 4(2) thereof; except as provided in the
Registration Rights Agreement, the Company does not intend to register the PPO
Units, the shares of Common Stock, the Warrant Shares and the Warrant under the
Securities Act at any time in the future; and the undersigned will not
immediately be entitled to the benefits of Rule 144 with respect to the PPO
Units, the shares of Common Stock and the Warrant.
b. The
Subscriber understands that the certificates representing the Shares and the
Warrants, until such time as the Shares or Warrant Shares (as the case may
be) have been registered under the Securities Act, shall bear a
restrictive legend in substantially the following
2 A “senior foreign
political figure” is defined as a senior official in the executive, legislative,
administrative, military or judicial branches of a foreign government (whether
elected or not), a senior official of a major foreign political party, or a
senior executive of a foreign government-owned corporation. In addition, a
“senior foreign political figure” includes any corporation, business or other
entity that has been formed by, or for the benefit of, a senior foreign
political figure.
3 “Immediate family” of a
senior foreign political figure typically includes the figure’s parents,
siblings, spouse, children and in-laws.
4 A “close associate” of a senior foreign
political figure is a person who is widely and publicly known to maintain an
unusually close relationship with the senior foreign political figure, and
includes a person who is in a position to conduct substantial domestic and
international financial transactions on behalf of the senior foreign political
figure.
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form (and
a stop-transfer order may be placed against transfer of such certificates or
other instruments):
For U.S.
Persons:
THE
SECURITIES REPRESENTED HEREBY (AND THE SECURITIES ISSUABLE UPON THE EXERCISE
HEREOF) HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES,
AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THE SECURITIES ARE REGISTERED
UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT IS AVAILABLE. IN ADDITION, HEDGING TRANSACTIONS
INVOLVING SUCH SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE
SECURITIES ACT.
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For
Non-U.S. Persons:
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THESE
SECURITIES WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S.
PERSONS (AS DEFINED IN REGULATION S) PURSUANT TO REGULATION S UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”). ACCORDINGLY, NONE OF
THE SECURITIES TO WHICH THIS CERTIFICATE RELATES HAVE BEEN REGISTERED UNDER THE
1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY
BE OFFERED OR SOLD IN THE UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S.
PERSONS EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING THE
SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE 1933
ACT.
Furthermore,
the Warrants issued to Subscribers purchasing Units in this Offering in an
offshore transaction outside the United States in reliance on Regulation S will
bear an additional restrictive legend to the following effect:
THIS
WARRANT MAY NOT BE EXERCISED IN THE UNITED STATES OR BY OR ON BEHALF OF A U.S.
PERSON OR A PERSON IN THE UNITED STATES UNLESS THE UNDERLYING SECURITIES HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES
LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS IS AVAILABLE.
9
The
legend(s) set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of such securities upon which it
is stamped, if (a) such securities are being sold pursuant to a
registration statement under the Securities Act, or (b) such holder
delivers to the Company an opinion of counsel, in a reasonably acceptable form,
to the Company that a disposition of the securities is being made pursuant to an
exemption from such registration.
c. No
governmental agency has passed upon the PPO Units, the shares of Common Stock,
the Warrant Shares and the Warrant or made any finding or determination as to
the wisdom of any investments therein.
d. There are
substantial restrictions on the transferability of the shares of Common Stock,
and if the Company decides to issue certificates representing the shares of
Common Stock, restrictive legends will be placed on any such
certificates.
6. Indemnification. The
Subscriber agrees to indemnify and hold harmless the Company, any placement agent,
dealer or finder in the Offering, and their respective officers, directors,
employees, agents, advisors, control persons and affiliates from and against all
losses, liabilities, claims, damages, costs, fees and expenses whatsoever
(including, but not limited to, any and all expenses incurred in investigating,
preparing or defending against any litigation commenced or threatened) based
upon or arising out of any actual or alleged false acknowledgment,
representation or warranty, or misrepresentation or omission to state a material
fact, or breach by the Subscriber of any covenant or agreement made by the
Subscriber herein or in any other document delivered in connection with this
Agreement. The Company agrees to indemnify and hold harmless the
Subscriber, and its respective officers, directors, employees, agents, advisors,
control persons and affiliates from and against all losses, liabilities, claims,
damages, costs, fees and expenses whatsoever (including, but not limited to, any
and all expenses incurred in investigating, preparing or defending against any
litigation commenced or threatened) based upon or arising out of any actual or
alleged false acknowledgment, representation or warranty, or misrepresentation
or omission to state a material fact, or breach by the Company of any covenant
or agreement made by the Company herein or in any other document delivered in
connection with this Agreement.
7. Irrevocability; Binding
Effect. The Subscriber hereby acknowledges and agrees that the
subscription hereunder is irrevocable by the Subscriber, except as required by
applicable law, and that this Agreement shall survive the death or disability of
the Subscriber and shall be binding upon and inure to the benefit of the parties
and their heirs, executors, administrators, successors, legal representatives
and permitted assigns. If the Subscriber is more than one person, the
obligations of the Subscriber hereunder shall be joint and several and the
agreements, representations, warranties and acknowledgments herein shall be
deemed to be made by and be binding upon each such person and such person’s
heirs, executors, administrators, successors, legal representatives and
permitted assigns.
8. Modification. This
Agreement shall not be modified or waived except by an instrument in writing
signed by the party against whom any such modification or waiver is
sought.
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9. Immaterial Modifications to the
Registration Rights
Agreement. The Company may, at any
time prior to the initial Closing, amend the Registration Rights Agreement if
necessary to clarify any provision therein, without first providing notice or
obtaining prior consent of the Subscriber.
10. Notices. All
notices or other communications which are required or permitted under this
Agreement shall be in writing and sufficient if transmitted by hand delivery, by
facsimile transmission, by registered or certified mail, postage pre-paid, by
electronic mail, or by nationally recognized overnight carrier, to the persons
at the addresses set forth below (or at such other address as may be provided
hereunder), and shall be deemed to have been delivered (i) if transmitted by
hand delivery, as of the date delivered, (ii) if transmitted by facsimile or
electronic mail, as of the date so transmitted with an automated confirmation of
delivery, (iii) if transmitted by nationally recognized overnight carrier, as of
the Business Day following the date of delivery to the carrier, and (iv) if
transmitted by registered or certified mail, postage pre-paid, on the third
Business Day following posting with the U.S. Postal Service: (a) if to the
Company, at the address set forth above, or (b) if to the Subscriber, at the
address set forth on the signature page hereof (or, in either case, to such
other address as the party shall have furnished in writing in accordance with
the provisions of this Section 10).
11. Assignability. This
Agreement and the rights, interests and obligations hereunder are not
transferable or assignable by the Subscriber and the transfer or assignment of
the PPO Units, the shares of Common Stock, the Warrant or the shares of Common
Stock underlying the Warrants shall be made only in accordance with all
applicable laws.
12. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to the
principles thereof relating to the conflict of laws.
13. Arbitration. The
parties agree to submit all controversies to arbitration in accordance with the
provisions set forth below and understand that:
(a) Arbitration
is final and binding on the parties.
(b) The
parties are waiving their right to seek remedies in court, including the right
to a jury trial.
(c) Pre-arbitration
discovery is generally more limited and different from court
proceedings.
(d) The
arbitrator’s award is not required to include factual findings or legal
reasoning and any party’s right to appeal or to seek modification of rulings by
arbitrators is strictly limited.
(e) The
panel of arbitrators will typically include a minority of arbitrators who were
or are affiliated with the securities industry.
11
(f) All
controversies which may arise between the parties concerning this Agreement
shall be determined by arbitration pursuant to the rules then pertaining to the
Financial Industry Regulatory Authority in New York City, New
York. Judgment on any award of any such arbitration may be entered in
the Supreme Court of the State of New York or in any other court having
jurisdiction of the person or persons against whom such award is
rendered. Any notice of such arbitration or for the confirmation of
any award in any arbitration shall be sufficient if given in accordance with the
provisions of this Agreement. The parties agree that the
determination of the arbitrators shall be binding and conclusive upon
them.
14. Blue Sky
Qualification. The purchase of PPO Units under this Agreement
is expressly conditioned upon the exemption from qualification of the offer and
sale of the PPO Units from applicable federal and state securities
laws. The Company shall not be required to qualify this transaction
under the securities laws of any jurisdiction and, should qualification be
necessary, the Company shall be released from any and all obligations to
maintain its offer, and may rescind any sale contracted, in the
jurisdiction.
15. Use of
Pronouns. All pronouns and any variations thereof used herein
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the person or persons referred to may require.
16. Confidentiality. The
Subscriber acknowledges and agrees that any information or data the Subscriber
has acquired from or about the Company, not otherwise properly in the public
domain, including, without limitation, the business summary of the Company, was
received in confidence. The Subscriber agrees not to divulge,
communicate or disclose, except as may be required by law or for the performance
of this Agreement, or use to the detriment of the Company or for the benefit of
any other person, or misuse in any way, any confidential information of the
Company, including any scientific, technical, trade or business secrets of the
Company and any scientific, technical, trade or business materials that are
treated by the Company as confidential or proprietary, including, but not
limited to, ideas, discoveries, inventions, developments and improvements
belonging to the Company and confidential information obtained by or given to
the Company about or belonging to third parties.
17. Miscellaneous.
(a) This
Agreement, together with the Registration Rights Agreement, constitute the
entire agreement between the Subscriber and the Company with respect to the
subject matter hereof and supersede all prior oral or written agreements and
understandings, if any, relating to the subject matter hereof. The
terms and provisions of this Agreement may be waived, or consent for the
departure therefrom granted, only by a written document executed by the party
entitled to the benefits of such terms or provisions.
12
(b) The
representations and warranties of the Company and the Subscriber made in this
Agreement shall survive the execution and delivery hereof and delivery of the
Common Stock and the Warrants contained in the PPO Units.
(c) Each
of the parties hereto shall pay its own fees and expenses (including the fees of
any attorneys, accountants, appraisers or others engaged by such party) in
connection with this Agreement and the transactions contemplated hereby, whether
or not the transactions contemplated hereby are consummated.
(d) This
Agreement may be executed in one or more original or facsimile counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument.
(e) Each
provision of this Agreement shall be considered separable and, if for any reason
any provision or provisions hereof are determined to be invalid or contrary to
applicable law, such invalidity or illegality shall not impair the operation of
or affect the remaining portions of this Agreement.
(f) Paragraph
titles are for descriptive purposes only and shall not control or alter the
meaning of this Agreement as set forth in the text.
(g) The
Subscriber understands and acknowledges that there may be multiple Closings for
the Offering.
(h) The
Subscriber hereby agrees to furnish the Company such other information as the
Company may request prior to the Closing with respect to its subscription
hereunder.
18. Omnibus Signature
Page. This Agreement is intended to be read and construed in
conjunction with the Registration Rights Agreement pertaining to the issuance by
the Company of the PPO Units, the shares of Common Stock, the Warrant, the
Warrant Shares and the shares of Common Stock underlying the Warrant to
subscribers in the Offering. Accordingly, pursuant to the terms and
conditions of this Agreement and such related agreements, it is hereby agreed
that the execution by the Subscriber of this Agreement, in the place set forth
herein, shall constitute agreement to be bound by the terms and conditions
hereof and the terms and conditions of the Registration Rights Agreement, with
the same effect as if each of such separate but related agreement were
separately signed.
19. Public
Disclosure. Neither the Subscriber nor any officer, manager,
director, member, partner, stockholder, employee, affiliate, affiliated person
or entity of the Subscriber shall make or issue any press releases or otherwise
make any public statements or make any disclosures to any third person or entity
with respect to the transactions contemplated herein and will not make or issue
any press releases or otherwise make any public statements of any nature
whatsoever with respect to the Company without the Company’s express prior
approval. The Company has the right to withhold such approval in its
sole discretion.
13
ANTI-MONEY
LAUNDERING REQUIREMENTS
|
The
USA PATRIOT Act
|
What
is money laundering?
|
How
big is the problem and why is it important?
|
|
The
USA PATRIOT Act is designed to detect, deter, and punish terrorists in the
United States and abroad. The Act imposes new anti-money
laundering requirements on brokerage firms and financial
institutions. Since April 24, 2002 all brokerage firms have
been required to have new, comprehensive anti-money laundering
programs.
To
help you understand these efforts, we want to provide you with some
information about money laundering and our steps to implement the USA
PATRIOT Act.
|
Money
laundering is the process of disguising illegally obtained money so that
the funds appear to come from legitimate sources or
activities. Money laundering occurs in connection with a wide
variety of crimes, including illegal arms sales, drug trafficking,
robbery, fraud, racketeering, and terrorism.
|
The
use of the U.S. financial system by criminals to facilitate terrorism or
other crimes could well taint our financial markets. According
to the U.S. State Department, one recent estimate puts the amount of
worldwide money laundering activity at $1 trillion a
year.
|
|
What
are we required to do to eliminate money laundering?
|
|
|
Under
new rules required by the USA PATRIOT Act, our anti-money laundering
program must designate a special compliance officer, set up employee
training, conduct independent audits, and establish policies and
procedures to detect and report suspicious transaction and ensure
compliance with the new laws.
|
As
part of our required program, we may ask you to provide various
identification documents or other information. Until you
provide the information or documents we need, we may not be able to effect
any transactions for you.
|
14
How
to subscribe for PPO Units in the private offering of
|
1.
|
Date and Fill in the
number of PPO Units being purchased and Complete and Sign the
Omnibus Signature Page.
|
|
2.
|
Initial the Investor
Certification page.
|
|
3.
|
Complete and return the
Investor Profile and, if applicable, Wire Transfer Authorization attached
to this Subscription Agreement.
|
|
4.
|
Fax or email all forms and
then send all signed original documents
to:
|
XxXxx
Xxxxx
Xxxxxxx
Xxxxx Ventures, Inc.
0000 Xxxx
Xxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxxxx, Xx. 00000
Facsimile
Number: (000) 000-0000
Telephone
Number: (000) 000-0000, ext. 672
E-mail
Address: xxxxxx@xxxxxxxxxxxx.xxx
|
5.
|
If
you are paying the Purchase Price by check, a check for the
exact dollar amount of the Purchase Price for the number of PPO Units you are
purchasing should be made payable to the order of “Signature Bank, Escrow Agent
for WAFERGEN BIO-SYSTEMS, INC.” and should be sent to XxXxx Xxxxx
with your other subscription
documents.
|
|
6.
|
If
you are paying the Purchase Price by wire transfer, you should send
a wire transfer for the exact dollar amount of the Purchase Price for the
number of PPO Units you are purchasing according to the following
instructions:
|
|
Bank:
|
Signature
Bank
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxx Xxxxxx
|
|
ABA
Routing #:
|
000000000
|
|
Account
Name
|
Signature
Bank as Escrow Agent for WaferGen Bio-systems, Inc.
|
|
Account
#:
|
1501012080
|
|
Swift
Code
|
XXXXXX00
(for foreign wires only)
|
|
Reference:
|
[Insert the Name of Subscriber exactly as it
appears on the Omnibus Signature
Page]
|
Thank you
for your interest,
15
OMNIBUS
SIGNATURE PAGE TO
REGISTRATION
RIGHTS AGREEMENT
IN
WITNESS WHEREOF, the Subscriber hereby executes this Subscription Agreement and
the Registration Rights Agreement.
Dated: ,
2009
SUBSCRIBER
(individual) SUBSCRIBER
(entity)
Signature
Name of Entity
Print
Name
Signature
Print
Name:
Signature
(if Joint Tenants or Tenants in Common)
Title:
Address
of Principal Residence: Address of Executive Offices:
Social
Security
Number(s): IRS
Tax Identification Number:
Telephone
Number:
Telephone Number:
Facsimile
Number:
Facsimile Number:
E-mail
Address:
E-mail Address:
X $1.25 = $
Number of
PPO
Units Price
per PPO
Unit Purchase
Price
16
IN
WITNESS WHEREOF, the Company has duly executed this Subscription
Agreement.
By:
Name: Xxxxxx
Xxxxxx
Title: Chief
Executive Officer, President
and Chairman of the Board
17
Appendix A
Appendix
A
INVESTOR
CERTIFICATION
For
Individual Accredited Investors Only
(all
Individual Accredited Investors must INITIAL where
appropriate):
|
Initial
_______
|
I
have a net worth (including home, furnishings and automobiles) in excess
of $1,000,000 either individually or through aggregating my individual
holdings and those in which I have a joint, community property or other
similar shared ownership interest with my
spouse.
|
|
Initial
_______
|
I
have had an annual gross income for the past two years of at least
$200,000 (or $300,000 jointly with my spouse) and expect my income (or
joint income, as appropriate) to reach the same level in the current
year.
|
|
|
For Non-Individual
Accredited Investors
|
|
|
(all Non-Individual
Accredited Investors must INITIAL where
appropriate):
|
|
Initial
_______
|
The
investor certifies that it is a partnership, corporation, limited
liability company or business trust that is 100% owned by persons who meet
at least one of the criteria for Individual Investors set forth
above.
|
|
Initial
_______
|
The
investor certifies that it is a partnership, corporation, limited
liability company or business trust that has total assets of at least $5
million and was not formed for the purpose of investing in the
Company.
|
|
Initial
_______
|
The
investor certifies that it is an employee benefit plan whose investment
decision is made by a plan fiduciary (as defined in ERISA §3(21)) that is
a bank, savings and loan association, insurance company or registered
investment adviser.
|
|
Initial
_______
|
The
investor certifies that it is an employee benefit plan whose total assets
exceed $5,000,000 as of the date of this
Agreement.
|
|
Initial
_______
|
The
undersigned certifies that it is a self-directed employee benefit plan
whose investment decisions are made solely by persons who meet either of
the criteria for Individual
Investors.
|
|
Initial
_______
|
The
investor certifies that it is a U.S. bank, U.S. savings and loan
association or other similar U.S. institution acting in its individual or
fiduciary capacity.
|
|
Initial
_______
|
The
undersigned certifies that it is a broker-dealer registered pursuant to
§15 of the Securities Exchange Act of
1934.
|
|
Initial
_______
|
The
investor certifies that it is an organization described in §501(c)(3) of
the Internal Revenue Code with total assets exceeding $5,000,000 and not
formed for the specific purpose of investing in the
Company.
|
|
Initial
_______
|
The
investor certifies that it is a trust with total assets of at least
$5,000,000, not formed for the specific purpose of investing in the
Company, and whose purchase is directed by a person with such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of the prospective
investment.
|
|
Initial
_______
|
The
investor certifies that it is a plan established and maintained by a state
or its political subdivisions, or any agency or instrumentality thereof,
for the benefit of its employees, and which has total assets in excess of
$5,000,000.
|
|
Initial
_______
|
The
investor certifies that it is an insurance company as defined in §2(13) of
the Securities Act, or a registered investment
company.
|
18
Appendix A
|
|
WAFERGEN BIO-SYSTEMS,
INC.
|
|
|
INVESTOR
CERTIFICATION (continued)
|
|
|
For
Non-U.S. Person Investors
|
(all Investors who are not a U.S.
Person must INITIAL this section):
|
Initial
_______
|
The
Investor is not a “U.S. Person” as defined in Regulation S; and
specifically the Subscriber is not:
|
|
|
A.
|
a
natural person resident in the United States of America, including its
territories and possessions (“United
States”);
|
|
|
B.
|
a
partnership or corporation organized or incorporated under the laws of the
United States;
|
|
|
C.
|
an
estate of which any executor or administrator is a U.S.
Person;
|
|
|
D.
|
a
trust of which any trustee is a U.S.
Person;
|
|
|
E.
|
an
agency or branch of a foreign entity located in the United
States;
|
|
|
F.
|
a
non-discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a
U.S. Person;
|
|
|
G.
|
a
discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary organized, incorporated, or (if an
individual) resident in the United States;
or
|
|
|
H.
|
a
partnership or corporation: (i) organized or incorporated under the laws
of any foreign jurisdiction; and (ii) formed by a U.S. Person principally
for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
accredited investors (as defined in Rule 501(a) under the Act) who are not
natural persons, estates or trusts.
|
|
|
And,
in addition:
|
|
|
I.
|
the
Subscriber was not offered the Units in the United
States;
|
|
|
J.
|
at
the time the buy-order for the Units was originated, the Subscriber was
outside the United States; and
|
|
|
K.
|
the
Subscriber is purchasing the Units for its own account and not on behalf
of any U.S. Person (as defined in Regulation S) and a sale of the Units
has not been pre-arranged with a Subscriber in the United
States.
|
19
Appendix A
[Missing Graphic Reference]
WAFERGEN
BIO-SYSTEMS, INC.
Investor
Profile
(Must be completed by
Investor)
a) Section A - Personal
Investor Information
Investor
Name(s):
_________________________________________________________________________
Individual
executing Profile or Trustee:
________________________________________________________
Social
Security Numbers / Federal I.D. Number:
_________________________________________________
Date of
Birth: _________________ Marital
Status: _______________________
Joint
Party Date of
Birth: _________________ Investment
Experience (Years): __________
Annual
Income: _________________ Liquid
Net Worth: _____________________
Net
Worth: _________________
Tax
Bracket: ______
15% or below _____ 25% -
27.5% _____ Over 27.5%
|
Investment
Objectives (circle one
or more):Preservation of Capital,
|
Income,
Capital Appreciation, Trading Profits, Speculation or Other (please
specify) * See definitions on following
page
|
Home
Street Address:
______________________________________________________________________
Home
City, State & Zip Code:
_______________________________________________________________
Home
Phone: ________________________ Home Fax: _____________________ Home
Email: _________
Employer:
_______________________________________________________________________________
Employer
Street Address:
___________________________________________________________________
Employer
City, State & Zip Code:
____________________________________________________________
Bus.
Phone: __________________________ Bus. Fax: __________________________ Bus.
Email: _______
Type of
Business:
_________________________________________________________________________
Xxxxxxx
Xxxxx Account Executive / Outside Broker/Dealer:
________________________________________
If you
are a United States
citizen, please list the number and jurisdiction of issuance of any other
government-issued document evidencing residence and bearing a photograph or
similar safeguard (such as a driver’s license or passport), and provide a
photocopy of each of the documents you have listed.
________________________________________________________________________________________
If you
are NOT a
United
States citizen, for each jurisdiction of which you are a citizen or in
which you work or reside, please list (i) your passport number and country of
issuance or (ii) alien identification card number AND (iii) number and
country of issuance of any other government-issued document evidencing
nationality or residence and bearing a photograph or similar safeguard, and
provide a photocopy of each of these documents you have listed. These
photocopies must be certified by a lawyer as to authenticity.
________________________________________________________________________________________
20
Appendix A
b)Section B – Certificate
Delivery Instructions
____
Please deliver Shares to the Employer Address listed in Section A.
____
Please deliver Shares to the Home Address listed in Section A.
____
Please deliver Shares to the following address:
_________________________________.
Section C – Form of Payment
– Check or Wire Transfer
____
Check payable to Signature
Bank, As Escrow Agent for Wafergen Bio-systems,
Inc.
____ Wire
funds from my outside account according to the "How to subscribe for Units"
Page.
____ Wire
funds from my Xxxxxxx Xxxxx Account - See Following Page.
____ The funds for this investment are
rolled over, tax deferred from _________ within the allowed 60 day
window.
(a) Please
check if you are a FINRA member or affiliate of a FINRA member firm:
________
_________________________ ______________________
Investor
Signature Date
Investor
Signature Date
21
Appendix A
Investment Objectives: The
typical investment listed with each objective are only some examples of the
kinds of investments that have historically been consistent with the listed
objectives. However, neither Wafergen Bio-systems, Inc. nor Xxxxxxx
Xxxxx Ventures, Inc. can assure that any investment will achieve your intended
objective. You must make your own investment decisions and determine
for yourself if the investments you select are appropriate and consistent with
your investment objectives.
Neither
WaferGen Bio-systems, Inc. nor Xxxxxxx Xxxxx Ventures, Inc. assume
responsibility to you for determining if the investments you selected are
suitable for you.
Preservation of Capital: An
investment objective of Preservation of Capital
indicates you seek to maintain the principal value of your investments and are
interested in investments that have historically demonstrated a very low degree
of risk of loss of principal value. Some examples of typical
investments might include money market funds and high quality, short-term fixed
income products.
Income: An
investment objective of Income
indicates you seek to generate from investments and are interested in
investments that have historically demonstrated a low degree of risk of loss of
principal value. Some examples of typical investments might include
high quality, short and medium-term fixed income products, short-term bond funds
and covered call options.
Capital
Appreciation: An investment objective of Capital Appreciation
indicates you seek to grow the principal value of your investments over time and
are willing to invest in securities that have historically demonstrated a
moderate to above average degree of risk of loss of principal value to pursue
this objective. Some examples of typical investments might include
common stocks, lower quality, medium-term fixed income products, equity mutual
funds and index funds.
Trading Profits: An investment
objective of Trading
Profits indicates you seek to take advantage of short-term trading
opportunities, which may involve establishing and liquidating positions
quickly. Some examples of typical investments might include
short-term purchases and sales of volatile or low priced common stocks, put or
call options, spreads, straddles and/or combinations on equities or
indexes. This is a high-risk strategy.
Speculation: An
investment objective of Speculation indicates you
seek a significant increase in the principal value of your investments and are
willing to accept a corresponding greater degree of risk by investing in
securities that have historically demonstrated a high degree of risk of loss of
principal value to pursue this objective. Some examples of typical
investments might include lower quality, long-term fixed income products,
initial public offerings, volatile or low priced common stocks, the purchase of
sale of put or call options, spreads, straddles and/or combinations on equities
or indexes, and the use of short-term or day trading strategies.
Other: Please
specify.
22
Appendix A
Memorandum
Wire
Transfer Authorization
TO: Xxxxx
Xxxxx - Operations Manager
Xxxxxxx Xxxxx Ventures, Inc.
RE: Client
Wire Transfer Authorization
WAFERGEN BIO-SYSTEMS, INC.
DATE:
________________
This
memorandum authorizes the transfer of the following listed funds from my Xxxxxxx
Xxxxx Brokerage Account as follows:
Xxxxxxx
Xxxxx Brokerage Account
# ______________________
Wire
Amount $______________________
BANK NAME: SIGNATURE BANK
2. ABA NUMBER:
000000000
3. A/C
NAME: SIGNATURE BANK, AS ESCROW
AGENTFOR WAFERGEN BIO-SYSTEMS, INC.
4. SWIFT CODE: XXXXXX00 (for
foreign wires only)
A/C
Number:
REFERENCE:
SUBSCRIBER LEGAL NAME
__________________________________
TAX ID
NUMBER
__________________________________
SUBSCRIBER ADDRESS __________________________________
FBO: ________________________________________________
Investment
Title: ________________________________________________
Signature:
________________________________________________
Signature: ________________________________________________
(Joint Signature)
23
