Dated 3 April, 2009 Between Wafergen Biosystems (M) Sdn Bhd and Wafergen Bio- Systems Inc and Prima Mahawangsa Sdn Bhd and Expedient Equity Ventures Sdn Bhd and Malaysian Technology Development Corporation Sdn Bhd
EXHIBIT
10.4
Dated 3
April, 2009
Between
Wafergen Biosystems
(M) Sdn Bhd
and
Wafergen Bio-Systems
Inc
and
Prima Mahawangsa Sdn
Bhd
and
Expedient Equity
Ventures Sdn Bhd
and
Malaysian Technology
Development Corporation Sdn Bhd
To the Share
Subscription and Shareholders’ Agreement dated 8 May 2008
Contents
| Recitals................................................................................................................................................................................................................................................ | 1 | |||
| 1. |
Interpretation.............................................................................................................................................................................................................
|
2 | ||
| 2. | Adherence................................................................................................................................................................................................................... | 2 | ||
| 3. | Amendment to the Shareholders' Agreement..................................................................................................................................................... | 3 | ||
| 4. | Share Capital............................................................................................................................................................................................................. | 8 | ||
| 5. | Amendments and Waiver......................................................................................................................................................................................... | 9 | ||
| 6. | Prevalence of Agreement......................................................................................................................................................................................... | 9 | ||
| 7. | Notices......................................................................................................................................................................................................................... | 9 | ||
| 8. | Costs............................................................................................................................................................................................................................ | 10 | ||
| 9. | Governing law............................................................................................................................................................................................................ | 10 | ||
| Schedule.............................................................................................................................................................................................................................................. | 11 | |||
| 1. | Subscription Price and par value....................................................................................................................................................... | 11 | ||
| 2. |
Premium.................................................................................................................................................................................................
|
11 | ||
| 3. | Dividend Provision.............................................................................................................................................................................. | 11 | ||
| 4. | Liquidation Preference........................................................................................................................................................................ | 11 | ||
| 5. | Conversion........................................................................................................................................................................................... | 11 | ||
| 6. | [Deleted]................................................................................................................................................................................................ | 13 | ||
| 7. | Redemption Rights.............................................................................................................................................................................. | 13 | ||
| 8. | Voting Rights....................................................................................................................................................................................... | 13 | ||
| 9. | Protective Provisions.......................................................................................................................................................................... | 13 | ||
| 10. | No Variation.......................................................................................................................................................................................... | 14 | ||
| Execution............................................................................................................................................................................................................................................. | 15 | |||
|
This Deed
is made on April 3, 2009 between:
|
(1)
|
Wafergen
Biosystems (M) Sdn Bhd (formerly known as Global Dupleks Sdn Bhd) (Company
No 795066-H), a company incorporated in Malaysia with a registered address
at ▇▇▇▇ ▇-▇▇-▇, ▇▇▇▇▇ ▇▇▇▇▇▇ 11, ▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ (“Company”);
and
|
|
(2)
|
Wafergen
Bio-Systems, Inc (WGBS.OB), a Nevada USA incorporated company with a
registered address and place of business at Bayside Technology Center,
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ (“Wafergen US”);
and
|
|
(3)
|
Malaysian
Technology Development Corporation Sdn Bhd (Company No 235796-U), a
company incorporated in Malaysia with a registered address at ▇▇▇▇▇ ▇-▇,
▇▇▇▇▇▇ Yayasan ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (“MTDC);and
|
|
(4)
|
Prima
Mahawangsa Sdn Bhd (Company No. 833152-M), a company incorporated in
Malaysia with a registered address at 5th Floor, Bangunan ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ , ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (“PMSB”);and
|
|
(5)
|
Expedient
Equity Ventures Sdn Bhd (Company No 780509-U)), a company incorporated in
Malaysia with a registered address at ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇ Pembangunan,
1016, Bandar Wawasan, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ (“EEV”);
|
|
|
(PMSB
and EEV are collectively referred to as “Acceding Parties”, and
the Company, Wafergen US, MTDC and the Acceding Parties are collectively
referred to as “Parties”) and each as a
“Party”).
|
Recitals
|
A)
|
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 redeemable convertible
preference shares in the Company and the Company, Wafergen US and MTDC
agreed to regulate the affairs and their relationship in the Company in
accordance with the Shareholders’
Agreement.
|
|
B)
|
Pursuant
to a subscription agreement
dated
2009 between the Company, Wafergen US, PMSB and EEV, (“Subscription
Agreement”), the Acceding Parties 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.
|
|
C)
|
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.
|
1
|
D)
|
PMSB
and EEV agree to enter into this deed of adherence with the Parties and to
accede to the terms and conditions of the Shareholders’ Agreement and
hereinafter appearing.
|
|
E)
|
This
Deed is conditional upon and shall only be effective against PMSB and EEV
respectively upon completion of the PMSB Initial Closing and EEV Initial
Closing (both as defined in the Subscription Agreement), pursuant to the
Subscription Agreement.
|
It
is agreed as follows:
1. Interpretation
Words
and/or expressions defined in the Shareholders’ Agreement and Subscription
Agreement shall, unless the context otherwise indicates, have the same meanings
when used in this Deed.
2. Adherence
|
2.1
|
In
consideration of PMSB agreeing to enter into this Deed, the Parties agree
that, with effect from the date PMSB subscribes for the Series B RCPS in
the Company (“PMSB
Effective Date”),
the following shall apply:
|
|
a)
|
PMSB
undertakes to the other Parties that PMSB shall be bound by and perform
the obligations under the Shareholders’ Agreement as if PMSB is a party to
the Shareholders’ Agreement (other than clauses 2, 3, 4, 5 and
11);
|
|
|
b)
|
PMSB
adheres and accedes to the Shareholders’ Agreement and PMSB shall be bound
by the provisions of the Shareholders’ Agreement and shall be entitled to
rights as if PMSB is a party to the Shareholders’ Agreement (other than
clauses 2, 3, 4, 5 and 11); and
|
|
|
c)
|
PMSB
becomes an “Investor” for the purposes of the Shareholders’ Agreement
(other than clauses 2, 3, 4, 5 and
11).
|
|
2.2
|
In
consideration of EEV agreeing to enter into this Deed, the Parties agree
that, with effect from the date EEV subscribes for the Series B RCPS in
the Company (“EEV
Effective Date”),
the following shall apply:
|
|
a)
|
EEV
undertakes to the other Parties that EEV shall be bound by and perform the
obligations under the Shareholders’ Agreement as if EEV is a party to the
Shareholders’ Agreement (other than clauses 2, 3, 4, 5 and
11);
|
|
|
b)
|
EEV
adheres and accedes to the Shareholders’ Agreement and EEV shall be bound
by the provisions of the Shareholders’ Agreement and shall be
entitled to rights as if EEV is a party to the Shareholders’ Agreement
(other than clauses 2, 3, 4, 5 and 11);
and
|
|
|
c)
|
EEV
becomes an “Investor” for the purposes of the Shareholders’ Agreement
(other than clauses 2, 3, 4, 5 and
11).
|
2
3. Amendment
to the Shareholders’ Agreement
|
3.1
|
The
Shareholders’ Agreement is amended as follows with effect from the date of
this Deed :
|
|
3.1.1
|
to
insert “PMSB” as a new definition in clause 1.1 of the Shareholders’
Agreement as follows:
|
“means
Commerce Agro Ventures Sdn Bhd (Company No 702700-W) a company incorporated in
Malaysia with a registered office at ▇▇. ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇-▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ Satu, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇)”
|
3.1.2
|
to
insert “EEV” as a new definition in clause 1.1 of the Shareholders’
Agreement as follows:
|
“means
Expedient Equity Ventures Sdn Bhd (Company No 780509-U) a company incorporated
in Malaysia with a registered office at ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇,
Bandar Wawasan, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇”
|
3.1.3
|
to
insert “Series B RCPS” as a new definition in clause 1.1 of the
Shareholders’ Agreement as follows:
|
“means
Series B Redeemable Convertible Preference Shares of the Company with principal
terms as set out in Schedule 4”
|
3.1.4
|
to
insert “Put Agreement” as a new definition in clause 1.1 of the
Shareholders’ Agreement as follows:
|
“means a
put agreement entered into by MTDC with the Existing Shareholder pursuant to
this Agreement or pursuant to a subscription agreement with the
Company”
|
3.1.5
|
the
defined term of “RCPS” in clause 1.1 of the Shareholders’ Agreement and
all references to “RCPS” in the Shareholders’ Agreement (other than
clauses 9 and 12) are amended to “Series A
RCPS”;
|
|
3.1.6
|
to
insert “RCPS” as a new definition in clause 1.1 of the Shareholders’
Agreement as follows:
|
“means
the Series A RCPS and/or the Series B RCPS”
|
3.1.7
|
to
delete the words “of the Shareholders” in the first line of clauses 7.1
and 7.2 of the Shareholders’
Agreement.
|
3
|
3.1.8
|
all
references to “Shareholders” and “Shareholder” in clause 7 of the
Shareholders’ Agreement are amended to “holders of the
Shares”.
|
|
3.1.9
|
to
insert as clause 9.1 (vii) of the Shareholders’ Agreement the
following:
|
|
|
“any
issue of new Shares to the Existing Shareholder for consideration in cash
or in kind of up to 1,000,000 Shares, in addition to the initial share
capital provided for in Clauses 3.1 and 3.2 and for the avoidance of
doubt, any such consideration in kind may comprise capitalization of the
value (or part of the value) of intellectual property or other rights
granted or undertakings pursuant to the product licensing agreement
between the Existing Shareholder and the Company based on the valuation of
USD10,000,000 agreed by the
parties.”
|
|
3.1.10
|
to
replace Section 4 in Schedule 1 (Principal Terms of the Series A RCPS) of
the Shareholders’ Agreement as
follows:
|
“In the
event of any liquidation, dissolution or winding up of the Company, the holders
of the Series A RCPS will be entitled to receive only in preference to the
holders of Shares, and not the Series B RCPS (which rank pari passu for the
purposes of this provision), the relevant Subscription Price paid for the Series
A RCPS plus all accrued but unpaid dividends and dividends in arrears, if
any.”
|
3.1.11
|
to
insert the “Principal Terms of the Series B RCPS” as Schedule 4 to the
Shareholders Agreement as appearing in the Schedule to this
Deed.
|
|
3.2
|
The
Shareholders’ Agreement is amended as follows with effect from the date of
completion of the PMSB Initial
Closing:
|
|
3.2.1
|
the
definition of “Investor” in clause 1.1 of the Shareholders’ Agreement is
amended to include PMSB;
|
|
3.2.2
|
the
definition of “Parties” in clause 1.1 of the Shareholders’ Agreement is
amended to include PMSB;
|
|
3.2.3
|
to
amend the first paragraph of clause 6.1 of the Shareholders’ Agreement as
follows:
|
“The
Board shall comprise 7 directors of which:”
|
3.2.4
|
to
insert after clause 6.1(b) of the Shareholders’ Agreement the
following:
|
|
|
“(c)
|
PMSB
shall have the right to appoint one (1) director (“Series B Director”) and
PMSB shall procure that (if relevant), the Series B Director shall, prior
to his appointment as a director of the Company, provide a confidentiality
and non-competition undertaking to the
Company.”
|
4
|
3.2.5
|
to
insert after the fourth paragraph in clause 6.1 of the Shareholders’
Agreement as follows:
|
“The
right of appointment of the Series B Director shall include the right for PMSB
to remove such person at any time from such office and also the right to
determine from time to time the period which such person shall hold office as
the Series B Director. Upon PMSB ceasing to be a shareholder in the
Company, PMSB shall simultaneously procure the resignation of the Series B
Director. The Series B Director may not be removed by the Existing Shareholder
or any other party except when PMSB ceases to be a shareholder in the
Company. Any appointment or removal of the Series B Director by PMSB
shall be made in writing and shall be delivered to the registered office of the
Company.”
|
3.2.6
|
to
replace the first paragraph in clause 6.2 of the Shareholders’ Agreement
as follows:
|
“The
quorum at all meetings shall be at least four (4) Directors and must include one
Series A Director (or his alternate) and one Series B Director (or his
alternate). If a
quorum is not present within 45 minutes after the time appointed for the
commencement of a meeting of the Board, that meeting shall be adjourned to the
same time 7 days after that meeting at the same place provided that at such
adjourned meeting (for the same agenda), the quorum shall be any three (3)
Directors.”
|
3.2.7
|
to
insert at the end of the first sentence of paragraph 1 in clause 6.3 of
the Shareholders’ Agreement as
follows:
|
“and at
least one vote from a Series B Director”.
|
3.2.8
|
to
replace paragraph 1 in clause 6.8 of the Shareholders’ Agreement as
follows:
|
“The
parties acknowledge that as the Series A Director is a nominee of MTDC and that
the Series B Director is a nominee of PMSB, the Series A Director and the Series
B Director shall be entitled to report all matters concerning the Company,
including but not limited to matters discussed at any meeting of the Board, to
MTDC and PMSB and their shareholders respectively and that the Series A Director
may take advice and obtain instructions from MTDC whereas the Series B Director
may take advice and obtain instructions from PMSB.”
|
3.2.9
|
to
insert after “Series A Director” in paragraph 2 of clause 6.8 of the
Shareholders’ Agreement as follows:
|
“and
Series B Director”
5
|
3.3
|
The
Shareholders’ Agreement is amended as follows with effect from the date of
completion of the EEV Initial
Closing:
|
|
3.3.1
|
the
definition of “Investor” in clause 1.1 of the Shareholders’ Agreement is
amended to include EEV;
|
|
3.3.2
|
the
definition of “Parties” in clause 1.1 of the Shareholders’ Agreement is
amended to include EEV;
|
|
3.3.3
|
to
insert after the third paragraph in clause 6.2 of the Shareholders’
Agreement as follows:
|
|
|
“EEV
shall be granted the right for one of its representatives to observe and
to attend at least 75% of the meetings in a
year.”
|
|
3.4
|
The
Shareholders’ Agreement is amended as follows with effect from the date of
completion of the PMSB Initial Closing or EEV Initial Closing (whichever
is earlier):
|
|
3.4.1
|
to
replace Section 5 in Schedule 1 (Principal Terms of the Series A RCPS) of
the Shareholders’ Agreement as
follows:
|
“Each
holder of the Series A RCPS will have the right, at the option of the holder at
any time, to convert all or part of the Series A RCPS into such number of Shares
as may be determined in accordance with the following formula:
|
A
|
x
|
Total Number of |
+
|
Total Number of RCPS |
=
|
N | |
|
A + B + USD10
million
|
RCPS subscribed | subscribed by all other | |||||
| by the holder | holders (past and present) | ||||||
| of RCPS |
|
|
A
|
represents
the aggregate original investment amount in USD (comprising the
subscription moneys paid to the Company for subscription for RCPS) of the
holder in the Company
|
|
|
B
|
represents
the aggregate original investment amount in USD (comprising the
subscription moneys paid to the Company for subscription for RCPS) of all
other holders (past and present) of RCPS in the
Company
|
The
conversion is to be effected by and subject to the redemption of the Series A
RCPS from funds legally available for distribution at the redemption price of
USD2.25 per Series A RCPS and the issuance of such number of new Shares to the
holder with the issue price based on the following formula:
6
| Issue price per Share |
=
|
A
|
|
|
N
|
and
applying the redemption monies towards such issue price.
PROVIDED
THAT
|
(i)
|
where
N includes any fractions, N is to be rounded downwards to the nearest
whole number
|
|
(ii)
|
where
the number of new Shares to be issued includes any fractions, such number
of new Shares is to be rounded downwards to the nearest whole
number
|
|
(iii)
|
where
the issue price includes any fractions of sen, the issue price is to be
rounded downwards to the nearest
sen
|
For the
purposes of this provision:
|
(a)
|
the
amount in USD of the investment amount is based on the value in USD of the
subscription moneys as at the respective date(s) of the relevant
subscription(s).
|
|
(b)
|
for
the avoidance of doubt, where any RCPS has been held by more than one
holder, such RCPS and investment amount in relation to the RCPS, is to be
counted only once.
|
To effect
the above conversion, a conversion notice shall be sent by the holder(s) of the
Series A RCPS to the Company not less than thirty (30) days before the intended
date of conversion. Such notice shall be in writing and shall fix the
date and the time for the conversion.
The
Company may from time to time consult with, and make proposals to, the holder(s)
of Series A RCPS in relation to the exercise of the holder(s)’ entitlement to
convert the Series A RCPS.
Completion
of the conversion of the Series A RCPS into Conversion Shares shall be effected
at the registered office of the Company unless agreed otherwise by the holder(s)
of the Series A RCPS and the Company. On the date fixed for
conversion, the holder(s) of the Series A RCPS shall deliver to the Company the
share certificate(s) for the relevant Series A RCPS in exchange for share
certificates in relation to the relevant amount of Conversion Shares resulting
from the conversion of those Series A RCPS. If any share certificate
so delivered to the Company relates to any Series A RCPS which are not to be
converted on that day, a fresh share certificate for those Series A RCPS shall
be immediately issued by the Company to such holder(s).”
7
|
3.4.2
|
to
replace Section 7 in Schedule 1 (Principal Terms of the Series A RCPS) of
the Shareholders’ Agreement as
follows:
|
|
|
“The
holders of the Series A RCPS may at any time after 31 December 2011,
subject to the completion of the PMSB Subsequent Closing or EEV Subsequent
Closing (where relevant), by giving a thirty (30) day notice of redemption
in such form as may be acceptable to the Company (“Notice of Redemption”),
redeem any or all Series A RCPS registered in the name of the holder of
the Series A RCPS. The RCPS will be redeemable from funds legally
available for distribution at the redemption price (“Redemption Price”) which
comprises a par value of RM0.01 with redemption premium equivalent to the
difference between (i) the aggregate of the Subscription Price and such
price multiplied at the rate of 20% per annum prorated by day, up to the
date of the redemption based on a 365-days year (and without any
compounding or addition to the principal Subscription Price) and (ii) the
par value of RM0.01 per Series A RCPS plus all accrued but unpaid
dividends and dividends in arrears, if any.
|
All
redemption of the Series A RCPS shall be effected at the registered office of
the Company unless agreed otherwise by the holder(s) of the Series A RCPS and
the Company. On the date fixed for redemption, the holder(s) of the
Series A RCPS shall deliver to the Company the share certificate(s) for the
relevant Series A RCPS in exchange for payment in cash (by way of bank draft or
any other manner acceptable to the holder(s)) by the Company of the aggregate
Redemption Price for the time being payable for those Series A
RCPS. If any share certificate so delivered to the Company relates to
any Series A RCPS which are not to be redeemed on that day, a fresh share
certificate for those Series A RCPS shall be issued by the Company to such
holder(s).
No Series
A RCPS redeemed by the Company shall be capable of reissue.”
|
3.4.3
|
to
replace Section 9(a) in Schedule 1 (Principal Terms of the Series A RCPS)
of the Shareholders’ Agreement as
follows:
|
“effects
a sale, lease, license or other disposition of all or substantially all of the
Company’s assets, property or business or undertakings in excess of
RM250,000.00”
4. Share
Capital
The
shares in the Company to be subscribed pursuant to and subject to the
Shareholders’ Agreement and the Subscription Agreement are as
follows.
|
Shareholder
|
Type
of shares
|
Number
of shares to be subscribed
|
|||
|
Initial
Closing/PMSB Initial Closing/ EEV Initial Closing
|
Subsequent
Closing Closing/PMSB Subsequent Closing /EEV Subsequent
Closing
|
Total
|
|||
|
Existing
Shareholder
|
Shares
|
300,000
|
300,000
|
||
|
MTDC
|
Series
A RCPS
|
444,444
|
444,444
|
888,888
|
|
|
PMSB
|
Series
B RCPS
|
222,222
|
222,222
|
444,444
|
|
|
EEV
|
Series
B RCPS
|
111,111
|
111,111
|
222,222
|
|
5. Amendments
and Waiver
|
5.1
|
The
Parties shall take immediate steps to amend and/or to procure the
amendment of the Articles so as to conform the Articles to the provisions
of this Deed in relation to the principal terms of the Series A RCPS and
the Series B RCPS.
|
|
5.2
|
Both
the Existing Shareholder and MTDC 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 Subscription Agreement, where
applicable.
|
|
5.3
|
Both
the Existing Shareholder and MTDC 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 PMSB and EEV pursuant to the
terms of the Subscription Agreement, the Shareholders’ Agreement and this
Deed.
|
|
5.4
|
Both
PMSB and EEV 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 pursuant to the terms of the
Shareholders’ Agreement and this
Deed.
|
6. Prevalence
of Agreement
|
6.1
|
If,
during the continuance of this Deed, there is any conflict between this
Deed and the Articles, the provisions of this Deed shall prevail between
the parties. In the event of such conflict arising, the parties
shall procure and take all necessary steps including effecting such
alteration to the Articles as may be necessary to resolve such
conflict.
|
8
7. Notices
For the
purposes of Clause 26 of the Shareholders’ Agreement, the addresses for all
notices given thereunder to PMSB and EEV shall be as follows:
PMSB
5th
Floor, Bangunan ▇▇▇▇,
▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Attn: Darawati Hussain
Tel: ▇▇▇▇
▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇
▇▇▇▇ ▇▇▇▇
or
c/o
Trupartners
Sdn Bhd
▇-▇-▇,
▇▇▇▇▇ ▇,
▇▇▇▇▇
Damas,
▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Attn:
Norazharuddin Abu Talib
Tel: ▇▇▇▇
▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇
▇▇▇▇ ▇▇▇▇
EEV
▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇,
Bandar Wawasan,
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇
Tel:
▇▇▇▇-▇▇▇▇▇▇▇
Fax:
▇▇▇▇-▇▇▇▇▇▇▇
9
8. Costs
|
8.1
|
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.
|
9. Governing
law
|
|
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.
|
[the
remainder of this page is intentionally left blank]
Schedule
Principal
Terms of the Series B RCPS
1. Subscription
Price and par value
The
subscription price for each Series B RCPS shall be Ringgit Malaysia equivalent
to USD2.25 calculated at the prevailing exchange rate on the on the date payment
of the Subscription Price is effected. Each Series B RCPS shall have
a par value of RM0.01.
2. Premium
Each
Series B RCPS shall be issued at a premium being the difference between the
Subscription Price and the par value of RM0.01.
3. Dividend
Provision
There is
no specific dividend rate attached to the Series B RCPS and the Company is not
obliged to declare and pay any dividend while the Investor is holding the Series
B RCPS.
4. Liquidation
Preference
In the
event of any liquidation, dissolution or winding up of the Company, the holders
of the Series B RCPS will be entitled to receive only in preference to the
holders of Shares, and not the Series A RCPS (which rank pari passu for the
purposes of this provision), the relevant Subscription Price paid for the Series
B RCPS (subject to adjustments for share dividends, splits, combinations and
similar events plus accrued dividends (other than any special dividends), if
any.
5. Conversion
Each
holder of the Series B RCPS will have the right, at the option of the holder at
any time, to convert all or part of the Series B RCPS into such number of Shares
as may be determined in accordance with the following formula:
10
|
A
|
x
|
Total Number of |
+
|
Total Number of RCPS |
=
|
N | |
|
A + B + USD10
million
|
RCPS subscribed | subscribed by all other | |||||
| by the holder | holders (past and present) | ||||||
| of RCPS |
|
|
A
|
represents
the aggregate original investment amount in USD (comprising the
subscription moneys paid to the Company for subscription for RCPS) of the
holder in the Company
|
|
|
B
|
represents
the aggregate original investment amount in USD (comprising the
subscription moneys paid to the Company for subscription for RCPS) of all
other holders (past and present) of RCPS in the
Company
|
The
conversion is to be effected by and subject to the redemption of the Series B
RCPS from funds legally available for distribution at the redemption price of
USD2.25 per Series B RCPS and the issuance of such number of new Shares to the
holder with the issue price based on the following formula:
|
Issue price
per Share
|
=
|
A
|
||
|
N
|
and
applying the redemption monies towards such issue price.
PROVIDED
THAT
|
(i)
|
where
N includes any fractions, N is to be rounded downwards to the nearest
whole number
|
|
(ii)
|
where
the number of new Shares to be issued includes any fractions, such number
of new Shares is to be rounded downwards to the nearest whole
number
|
|
(iii)
|
where
the issue price includes any fractions of sen, the issue price is to be
rounded downwards to the nearest
sen
|
For the
purposes of this provision:
|
(a)
|
the
amount in USD of the investment amount is based on the value in USD of the
subscription moneys as at the respective date(s) of the relevant
subscription(s).
|
|
(b)
|
for
the avoidance of doubt, where any RCPS has been held by more than one
holder, such RCPS and investment amount in relation to the RCPS, is to be
counted only once.
|
11
To effect
the above conversion, a conversion notice shall be sent by the holder(s) of the
Series B RCPS to the Company not less than thirty (30) days before the intended
date of conversion. Such notice shall be in writing and shall fix the
date and the time for the conversion.
The
Company may from time to time consult with, and make proposals to, the holder(s)
of Series B RCPS in relation to the exercise of the holder(s)’ entitlement to
convert the Series B RCPS.
Completion
of the conversion of the Series B RCPS into Conversion Shares shall be effected
at the registered office of the Company unless agreed otherwise by the holder(s)
of the Series B RCPS and the Company. On the date fixed for
conversion, the holder(s) of the Series B RCPS shall deliver to the Company the
share certificate(s) for the relevant Series B RCPS in exchange for share
certificates in relation to the relevant amount of Conversion Shares resulting
from the conversion of those Series B RCPS. If any share certificate
so delivered to the Company relates to any Series B RCPS which are not to be
converted on that day, a fresh share certificate for those Series B RCPS shall
be immediately issued by the Company to such holder(s).
6. [Deleted]
7. Redemption
Rights
|
|
The
holders of the Series B RCPS may at any time after 31 December 2011,
subject to the completion of the PMSB Subsequent Closing or EEV Subsequent
Closing (where relevant), by giving a thirty (30) day notice of redemption
in such form as may be acceptable to the Company (“Notice of Redemption”),
redeem any or all Series B RCPS registered in the name of the holder of
the Series B RCPS. The RCPS will be redeemable from funds legally
available for distribution at the redemption price (“Redemption Price”) which
comprises a par value of RM0.01 with redemption premium equivalent to the
difference between (i) the aggregate of the Subscription Price and such
price multiplied at the rate of 20% per annum prorated by day, up to the
date of the redemption based on a 365-days year (and without any
compounding or addition to the principal Subscription Price) and (ii) the
par value of RM0.01 per Series B RCPS plus all accrued but unpaid
dividends and dividends in arrears, if
any.
|
All
redemption of the Series B RCPS shall be effected at the registered office of
the Company unless agreed otherwise by the holder(s) of the Series B RCPS and
the Company. On the date fixed for redemption, the holder(s) of the
Series B RCPS shall deliver to the Company the share certificate(s) for the
relevant Series B RCPS in exchange for payment in cash (by way of bank draft or
any other manner acceptable to the holder(s)) by the Company of the aggregate
Redemption Price for the time being payable for those Series B
RCPS. If any share certificate so delivered to the Company relates to
any Series B RCPS which are not to be redeemed on that day, a fresh share
certificate for those Series B RCPS shall be issued by the Company to such
holder(s).
No Series
B RCPS redeemed by the Company shall be capable of reissue.
12
8. Voting
Rights
The
holder of the Series B RCPS will be entitled to the voting rights as referred to
in Section 148(2) of the Act.
9. Protective
Provisions
Without
the approval of the holders of at least a majority of the Series B RCPS, the
Company will not take any action, whether by merger, consolidation or otherwise,
that:
|
(a)
|
effects
a sale, lease, license or other disposition of all or substantially all of
the Company’s assets, property or business or undertakings in excess of
RM250,000.00;
|
|
(b)
|
effects
or enters into any agreement regarding any transaction, or series of
transactions, which results in the holders of the Series B RCPS prior to
the transaction owning less than 50% of the voting power of the Company’s
Series B RCPS after the
transaction(s),
|
|
(c)
|
alters
or changes the rights, preferences or privileges of the Series B
RCPS,
|
|
(d)
|
increases
or decreases the number of authorized the Series B
RCPS,
|
|
(e)
|
authorises
the issuance of securities having a preference over or on a parity with
the Series B RCPS,
|
|
(f)
|
changes
the number of directors,
|
|
(g)
|
amends,
modifies or repeals the Memorandum of Association and/or Articles of the
Company in a manner which adversely affects the holders of the Series B
RCPS,
|
|
(h)
|
effects
any recapitalization or reorganization, or any voluntary or involuntary
liquidation under applicable bankruptcy or reorganization legislation, or
any dissolution, liquidation, or winding up of the
Company,
|
|
(i)
|
declares
or pays dividends on or makes any distributions with respect to any share
capital of the Company.
|
For
purposes of these protective provisions, any reference to the Company will be
deemed to include any subsidiary of the Company.
10. No
Variation
The
rights attached to the Series B RCPS shall not be varied, modified or deleted
unless in accordance with paragraph 9 above.”
13
Execution
Executed
as a Deed.
|
Signed
for and on behalf of WaferGen Bio-systems,
Inc (WGBS.OB) in the
presence of:
|
||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Witness
/s/ Nazri Bin Said
|
Signatory
|
|
|
Name:
Nazri Bin Said
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
NRIC
No:550521025665
|
Designation:
CEO
|
|
|
NRIC
No:
|
|
Signed
for and on behalf of Wafergen Biosystems (M) Sdn Bhd
(Company No 795066-H) in the presence of:
|
||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
|
Witness
/s/ Nazri Bin Said
|
Signatory
|
|
|
Name:
Nazri Bin Said
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
NRIC
No: 550521025665
|
Designation:
CEO
|
|
|
NRIC
No:
|
14
|
Signed
for and on behalf of
Malaysian Technology Development Corporation Sdn Bhd (Company No 235796-U) in
the presence of:
|
||
| /s/ Narhalim Bin Yunus | ||
|
Witness
/s/ Jamaludin Bujang
|
Signatory
|
|
|
Name:
Jamaludin Bujang
|
Name:
Noorhalim Bin Yunus
|
|
|
NRIC
No: 650318-71-5095
|
Designation:
Chief Executive Officer
|
|
|
NRIC
No: 631220-05-5435
|
|
Signed
for and on behalf of Prima Mahawangsa Sdn Bhd
(Company No 833152-M) in the
presence of:
|
||
| /s/ Darawati Hussain | ||
|
Witness
/s/ ▇▇▇▇▇ ▇▇▇▇▇ Bin ▇▇▇▇▇▇
|
Signatory
|
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇ Bin Hassan
|
Name:
Darawati Hussain
|
|
|
NRIC
No: 771212-14-5785
|
Designation:
Director
|
|
|
NRIC
No: 691202-10-6168
|
15
|
Signed
for and on behalf of Expedient Equity Ventures Sdn
Bhd (Company No 780509-U) in the
presence of:
|
||
| /s/ ▇▇▇▇ ▇▇▇▇▇▇ Bin May Nah | ||
|
Witness
/s/ Suzilawati Md Rodhi
|
Signatory
|
|
|
Name:
Suzilawati Md Rodhi
|
Name:
▇▇▇▇ ▇▇▇▇▇▇ Bin Mat Noh
|
|
|
NRIC
No: 771016-07-6196
|
Designation:
Director
|
|
|
NRIC
No: 591007-08-6327
|