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SHARE SUBSCRIPTION AND SHAREHOLDERS' AGREEMENT

Shareholder Agreement

SHARE SUBSCRIPTION AND SHAREHOLDERS' AGREEMENT | Document Parties: WAFERGEN BIO-SYSTEMS, INC. You are currently viewing:
This Shareholder Agreement involves

WAFERGEN BIO-SYSTEMS, INC.

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Title: SHARE SUBSCRIPTION AND SHAREHOLDERS' AGREEMENT
Date: 11/14/2008
Industry: Medical Equipment and Supplies     Sector: Healthcare

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EXHIBIT 10.1

 

 

 

Dated 8 May 2008

 

Between

 

Wafergen Bio-Systems Inc

 

and

 

Malaysian Technology Development Corporation Sdn Bhd

 

and

 

Wafergen Biosystems (M) Sdn Bhd (formerly known as Global Dupleks Sdn Bhd)

 

 

 

 

 

 

Share Subscription and Shareholders’ Agreement

Proposed subscription of shares in Wafergen Biosystems (M) Sdn Bhd (formerly known as Global Dupleks Sdn Bhd)

 

 

 

 


 

 

Contents

 

 

 

1.1             Definitions   [INSERT PAGE NUMBER]

1.2             Interpretation   [INSERT PAGE NUMBER]

 

2.             Conditions Precedent   [INSERT PAGE NUMBER]

2.1             Conditionality   [INSERT PAGE NUMBER]

2.2             Waiver   [INSERT PAGE NUMBER]

2.3             Non-fulfillment   [INSERT PAGE NUMBER]

 

3.             Share Capital   [INSERT PAGE NUMBER]

 

 

 

6.1             Board of Directors   [INSERT PAGE NUMBER]

6.2             Board Meetings   [INSERT PAGE NUMBER]

6.4             Resolutions   [INSERT PAGE NUMBER]

6.5             Circular resolution   [INSERT PAGE NUMBER]

6.7             Management   [INSERT PAGE NUMBER]

6.8             Nominees   [INSERT PAGE NUMBER]

 

7.             General meetings   [INSERT PAGE NUMBER]

7.1             General meetings   [INSERT PAGE NUMBER]

7.2             Quorum   [INSERT PAGE NUMBER]

7.3.1             Ordinary Resolution   [INSERT PAGE NUMBER]

7.3.2             Special Resolution   [INSERT PAGE NUMBER]

 

8.             Business of the Company   [INSERT PAGE NUMBER]

 

9             New Issues of Shares   [INSERT PAGE NUMBER]

9.1             New Issues by Company   [INSERT PAGE NUMBER]

9.2             Offer to Shareholders   [INSERT PAGE NUMBER]

 

10.1             Pre-emption Rights   [INSERT PAGE NUMBER]

 

11             Put Options   [INSERT PAGE NUMBER]

 

 

 

 

15.             Confidentiality   [INSERT PAGE NUMBER]

 

  |  


 

 

 

 

 

16.             Deadlock   [INSERT PAGE NUMBER]

16.1             Disputes   [INSERT PAGE NUMBER]

16.2             Artificial Deadlock   [INSERT PAGE NUMBER]

 

17.             Further Assurance   [INSERT PAGE NUMBER]

19.1             Rights not affected   [INSERT PAGE NUMBER]

19.3             Variation   [INSERT PAGE NUMBER]

 

20.             Severability   [INSERT PAGE NUMBER]

 

21.             Continuing Effect   [INSERT PAGE NUMBER]

 

22.             Time   [INSERT PAGE NUMBER]

 

23.             Legal Relationship   [INSERT PAGE NUMBER]

 

24.             Costs and Expenses   [INSERT PAGE NUMBER]

 

25.             Assignment; Successors   [INSERT PAGE NUMBER]

25.1             Assignment   [INSERT PAGE NUMBER]

 

26.             Notices   [INSERT PAGE NUMBER]

 

27.             Entire agreement   [INSERT PAGE NUMBER]

 

28.             Counterparts   [INSERT PAGE NUMBER]

 

 

2.             Premium   [INSERT PAGE NUMBER]

3.             Dividend Provision   [INSERT PAGE NUMBER]

4.             Liquidation Preference   [INSERT PAGE NUMBER]

5.             Conversion   [INSERT PAGE NUMBER]

6.             [Deleted]   [INSERT PAGE NUMBER]

7.             Redemption Rights   [INSERT PAGE NUMBER]

8.             Voting Rights   [INSERT PAGE NUMBER]

9.             Protective Provisions   [INSERT PAGE NUMBER]

10.             No Variation   [INSERT PAGE NUMBER]

 

 

 

 

 

 

 

  |  


 

 

 

This Agreement is made on                                                                            May 2008 between:

 

(1)

Wafergen Bio-Systems, Inc (WGBS.OB), a Nevada USA incorporated company with a registered address and place of business at Bayside Technology Center, 46531 Fremont Blvd, Fremont, CA 94538, USA (“ Existing Shareholder ”);

 

and

 

(2)

Malaysian Technology Development Corporation Sdn Bhd (Company No 235796-U), a company incorporated in Malaysia with a registered address at Level 8-9, Menara Yayasan Tun Razak, Jalan Bukit Bintang, 55100 Kuala Lumpur (“ MTDC );

 

 

and

 

(3)

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 Unit C-12-4, Megan Avenue 11, No 12, Jalan Yap Kwan Seng, 50450 Kuala Lumpur (“ Company ”).

 

 

 

 

Recitals

 

(A)

The Company is a private company limited by shares incorporated under the laws of Malaysia and has at the date of this Agreement an authorised share capital of RM100,000 divided into 100,000 ordinary shares of RM1.00 each .

 

(B)

The Existing Shareholder is the legal and beneficial owner of the entire issued and paid-up share capital of the Company of RM2 divided into 2 ordinary shares of RM1.00 each.

 

(C)

The Company shall increase its authorised share capital from RM100,000 divided into 100,000 ordinary shares of RM1.00 each, to RM10,000,000 divided into 8,000,000 ordinary shares of RM1.00 each and 200,000,000 redeemable convertible preference shares of RM0.01 each.

 

(D)

The Existing Shareholder and the Investor are desirous of undertaking the Business through the Company and agree to regulate their relationship as shareholders of the Company in accordance with the terms and conditions of this Agreement.

 

(E)

The Existing Shareholder and the Company intend to raise up to USD3,500,000 in multiple tranches. The Existing Shareholder and the Company have requested the Investor to, and the Investor has agreed to, participate in the Company by way of subscription for the RCPS upon the terms and subject to the conditions set out in this Agreement.

 

 

 

 

 

 

 |  


 

 

 

 

It is agreed as follows:

 

1            Definitions and Interpretations

 

 

1.1            Definitions

 

 

 

In this Agreement, unless the context otherwise requires:

 

 

Act

means the Companies Act 1965;

Articles

means the articles of association of the Company;

Board

means the board of directors of the Company;

Business

means the business of the Company as defined in Clause 8.1;

Conversion Shares

means the Shares resulting from the conversion of the RCPS, such Conversion Shares to rank pari passu in all respects with all other then existing Shares, and “Conversion Share” means one of the Conversion Shares;

Director

means any director of the Company appointed on the Board including, where applicable, any alternate director;

Initial Closing

means twenty one (21) days from the date of this Agreement or such later date as the Parties may mutually agree on;

IPO

means the listing of the Company on any approved stock exchange;

Investor

means MTDC, and any other person acceding to this Agreement;

Encumbrance

means any mortgage, charge, pledge, lien, assignment, hypothecation, security interest, title retention, right of first refusal, pre-emption right, option, preferential right or trust arrangement or other security arrangement or agreement  conferring a right to a priority of payment;

RCPS

means Series A Redeemable Convertible Preference Shares of the Company with principal terms as set out in Schedule 1;

Parties

means the Existing Shareholder, the Investor and the Company, and “Party” refers to any one (1) of them;

Series A Director

means the director as defined in Clause 6.1;

Shareholders

means the shareholders of the Company from time to time;

Shares

means ordinary shares of RM1.00 each in the share capital of the Company, and “ Share ” refers to any one (1) of them;

Subscription Price

means the Ringgit Malaysia equivalent to USD2.25 calculated at the prevailing exchange rate on the date payment of the Subscription Price is effected, payable by the Investor for each RCPS under this Agreement, out of which RM0.01 is to be paid towards the par value of each RCPS and the difference between the Subscription Price and the par value of RM0.01 (constituting the subscription premium) is to be credited to the share premium account of the Company;

Subsequent Closing

means upon fulfilment of the milestones provided for in Clause 3.1.1(b);

Tranche A Shares

means 444,444 new RCPS of RM0.01 each in the Company to be issued at an issue price in Ringgit Malaysia equivalent to USD2.25 each;

Tranche B Shares

means 444,444 new RCPS of RM0.01 each in the Company to be issued at an issue price in Ringgit Malaysia equivalent to  USD2.25 each; and

Warranties

means the representations and warranties made by the Investor, the Existing  Shareholder and the Company, as set out in Schedule 2.

 

 

 

1.2            Interpretation

 

 

 

In this Agreement, unless the context otherwise requires:

 

(a) 

headings and underlining are for convenience only and do not affect the interpretation of this Agreement;

 

 

(b) 

words importing the singular include the plural and vice versa;

 

 

(c) 

words importing a gender include any gender;

 

 

(d) 

an expression importing a natural person includes any corporation or other body corporate, partnership, association, governmental agency, two or more persons having a joint or common interest, or any other legal or commercial entity or undertaking;

 

 

(e) 

a reference to a party to a document includes that party's successors and permitted assigns;

 

 

  |  


 

 

 

 

 

(f) 

any part of speech or grammatical form of a word or phrase defined in this Agreement has a corresponding meaning; and

 

 

(g) 

a warranty, representation, covenant or agreement on the part of two or more persons binds them jointly and severally.

 

 

2.            Conditions Precedent

 

 

2.1            Conditionality

 

The subscription for the RCPS by the Investor is subject to, and conditional upon, the fulfilment of the following conditions precedent within 21 days from the date of this Agreement (subject to extension by agreement of the Parties):

 

 

(a)

the approval of the investment committee of the Investor;

 

 

(b)

the Investor being satisfied with the results of their investigation or due diligence exercise on the Company;

 

 

(c)

the signing of a put agreement between the Existing Shareholder and MTDC;

 

 

(d)

the signing of the put option agreement between Alnoor Shivji and MTDC;

 

 

(e)

increase in the paid up share capital in the Company by the Existing Shareholder to at least RM300,000 in cash or otherwise, in accordance with Clause 3.2.1; and

 

 

(f)

there being no material adverse change in the operations or financial conditions of the Company or the Existing Shareholder prior to Initial Closing.

 

 

2.2            Waiver

 

 

To the extent permitted by law, the Parties reserve the right to agree in writing to mutually waive the fulfilment of any conditions precedent in Clause 2.1.

 

 

2.3            Non-fulfillment

 

Unless specifically waived under Clause 2.2, if any conditions precedent is not fulfilled within 21 days after the date of this Agreement (or such later date as the Parties may mutually agree on):

 

 

(a)

this Agreement shall automatically cease and terminate;

 

 

(b)

all obligations and liabilities of the parties under this Agreement shall cease to have effect; and

 

 

(c)

none of the parties shall have any claim against any other party in relation to this Agreement,

 

but notwithstanding anything to the contrary in this Clause, a party shall be liable for any antecedent breach of this Agreement.

 

 

  |  


 

 

 

3.            Share Capital

 

 

3.1            Subscription for Preference Shares

 

 

3.1.1

Subject to the terms and conditions of this Agreement, the Investor shall subscribe in cash up to a maximum of 888,888 RCPS, allocated across several tranches as follows:

 

 

(a)

at Initial Closing, MTDC will subscribe for Tranche A Shares, and the Company will allot and issue Tranche A Shares to MTDC, free from any Encumbrance; and

 

 

(b)

upon fulfilment of the following milestones:

 

 

(i)

delivery of the Smartchip Alpha System to the University of Pittsburgh; and

 

 

(ii)

the publication of the results from the University of Pittsburgh,

 

 

(“ Subsequent Closing ”), the Investor will subscribe for Tranche B Shares, and the Company will allot and issue Tranche B Shares to the Investor, free from any Encumbrance.

 

 

3.1.2

The Investor shall subscribe for the amount of shares and consideration as follows:

 

Name of Investor

Tranche A

Tranche B

Total

 

No. of RCPS

Consider-ation (USD)

No. of RCPS

Consider-ation (USD)

No. of RCPS

Consider-ation (USD)

MTDC

444,444

1,000,000

444,444

1,000,000

888,888

2,000,000

 

 

The principal terms of the RCPS are set out in Schedule 1.

 

 

3.1.3

In respect of each subscription for RCPS under this Agreement, the Company will issue a Subscription Notice to the Investor. The Subscription Notice will specify the number of RCPS to be subscribed by the Investor under Tranche A at the Initial Closing, and Tranche B at the Subsequent Closing, and the Subscription Price.

 

 

3.1.4

The Existing Shareholder irrevocably confirms its waiver of all rights of pre-emption whatsoever that it may have in connection with the issue and conversion of the RCPS to the Investor pursuant to the terms of this Agreement.

 

 

3.1.5

The Company shall endeavour to raise a further USD1.5 million through the issue of RCPS within one year from the Initial Closing. The Investor irrevocably confirms its waiver of all rights of pre-emption whatsoever that it may have in connection with the issue and conversion of such RCPS.

 

 

 |  


 

 

 

 

 

3.2            Subscription for Shares

 

 

3.2.1

Prior to the Initial Closing, and subject to all other conditions precedent in Clause 2.1 being fulfilled, the Company shall increase its issued and paid-up share capital from RM2 to RM300,000 by way of allotment and issue of 299,998 Shares and the Existing Shareholder shall subscribe and satisfy the subscription money for such Shares by cash or otherwise. The Investor agrees that the manner of satisfaction of such subscription money may include capitalisation of amounts owing from the Company to the Existing Shareholder, or other consideration otherwise than in cash.

 

 

4.            Subscription Completion Date

 

4.1

Subject to fulfilment of all conditions precedent in Clause 2.1, the completion of each allotment and issue of the RCPS to the Investor pursuant to this Agreement shall take place at the registered office of the Company as follows:

 

(a)            Tranche A Shares at the Initial Closing; and

 

(b)            Tranche B Shares at the Subsequent Closing;

 

or such other date and time as may be mutually agreed by the Parties in writing.

 

4.2

The Investors shall cause or procure a cheque, bank draft or cashier’s order in favour of the Company to be deposited, or a telegraphic or electronic transfer made, to the bank account of the Company held with HSBC Bank Berhad for the total subscription monies payable for the number of RCPS to be subscribed (as set out in the relevant Subscription Notice), in exchange for the delivery by the Company of the following:

 

 

(a)

at the Initial Closing, the share certificates in respect of the RCPS, a certified extract of the shareholders' resolution of the Company approving the subscription of the Tranche A Shares by MTDC at the Initial Closing (including amendment of the Articles of Association of the Company where required), pursuant to the terms and subject to the conditions of this Agreement;  

 

 

(b)

at the Subsequent Closing, the share certificates in respect of the RCPS, a certified extract of the shareholders' resolution of the Company approving the subscription of the Tranche B Shares by MTDC at the Subsequent Closing, pursuant to the terms and subject to the conditions of this Agreement; and

 

 

(c)

at both the Initial Closing and the Subsequent Closing, a certified extract of the resolution of the Board confirming the allotment and issue of the relevant number of RCPS to be subscribed by MTDC pursuant to the relevant Subscription Notice.

 

 

 |  


 

 

 

 

5.

Undertakings, Warranties and Representations by the Parties

 

5.1

Subject to any exceptions expressly and specifically disclosed in any correspondence, communication, document or information in writing prior to or after the execution of this Agreement and prior to the completion of the subscription of the RCPS, the Parties warrant to each other that the information and statements set out in the Warranties are true, accurate and correct in all respects at the date of this Agreement. To this effect, the Warranties will be deemed to be repeated during this period as if they had been entered into afresh during the said period in relation to the facts and circumstances then existing.

 

5.2

The Parties acknowledge and agree that each of them entered into this Agreement in reliance on the Warranties.

 

5.3

Each of the Warranties is separate and is to be construed independently of the others and is not limited by reference to any of the other Warranties.

 

Save as disclosed to the Investors in any correspondence, communication, document or information in writing prior to or after the execution of this Agreement and prior to the Completion of this Agreement, no information relating to the RCPS or the Company will limit the nature of the Warranties given by the Company under this Agreement, or will prejudice any claim to be made by the Investors against the Company for any breach of the Warranties.

 

Each of the Party will indemnify and will keep the other Parties indemnified against all losses, damages, costs and expenses which the other Parties may incur or be liable for in respect of any claim, demand, liability, action, proceedings or suits arising out of or in connection with :

 

 

(a)

a breach of a Warranty;

 

 

(b)

any Warranty not being true and correct in all respects; or

 

 

(c)

any Warranty being misleading in any respect,

 

save and except where any of the matters set out in paragraphs 5.1 to 5.3 above shall have been apparent in any correspondence, communication, document or information in writing and  disclosed or provided to the Investors prior to or after the execution of this Agreement and prior to the Completion of this Agreement.

 

 

6.            Management of the Company

 

 

6.1            Board of Directors

 

 

The Board shall comprise 6 directors of which:

 

 

(a)

MTDC shall have the right to appoint one (1) director (“ Series ADirector ”) and MTDC shall procure that (if relevant), the Series A Director shall, prior to his appointment as a director of the Company, provide a confidentiality and non-competition undertaking to the Company; and

 

 

  |  


 

 

 

 

 

(b)

the Existing Shareholder shall have the right to appoint five (5) directors and such right shall include the appointment of the Chief Executive Officer.

 

MTDC shall have the right to nominate an alternate to the Series A Director and the Existing Shareholder shall have the right to nominate an alternate director to such directors appointed under paragraph 6.1(b).

 

MTDC and the Existing Shareholder will jointly appoint an independent director to the Board with the requirement that the independent director has relevant international industry experience in the Business.

 

 

The right of appointment of the Series A Director shall include the right for MTDC 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 A Director. Upon MTDC ceasing to be a shareholder in the Company, MTDC shall simultaneously procure the resignation of the Series A Director. The Series A Director may not be removed by the Existing Shareholder or any other party except when MTDC ceases to be a shareholder in the Company. Any appointment or removal of the Series A Director by MTDC shall be made in writing and shall be delivered to the registered office of the Company.

 

 

6.2            Board Meetings

 

The quorum at all meetings shall be at least three (3) Directors and must include the Series A 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 two (2) Directors.

 

The Directors may meet together either in person or by telephone, radio, video conference or similar communication equipment or any other form of audio or audio-visual instantaneous communication by which all persons participating in the meeting are able to hear and be heard by all other participants and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting.

 

The Company’s Articles shall be amended to provide that a quorum of the Board must include at least one Series A Director, except at any adjourned meeting.

 

 

6.3            Provisions in respect of meetings

 

Any Director may at any time request for a meeting to be convened, subject to the Board meeting at least once quarterly unless otherwise agreed to by a vote of a majority of Directors including at least one vote from a Series A Director. The request for a meeting must be made in writing and delivered to the company secretary of the Company.

 

Upon receiving the request, the company secretary is to issue a notice, giving at least 7 days’ prior written notice to all Directors and their alternates. The notice shall set out the date, time, venue and the agenda or matters to be discussed for the Board meeting.  Such notice shall not be required if all Directors are present or

 

 

 


 

 

represented at the meeting or if the absent Directors agree in writing to waive the requirement of such notice.

 

 

6.4  

Resolutions

 

So long as a quorum is present throughout the meeting of the Board in accordance with clause 6.2, all resolutions or decisions of the Board are to be by a simple majority of all the Directors present and capable of voting at the meeting of the Board.

 

 

6.5            Circular resolution

 

A written resolution or minute of a decision made by the Board which is signed by all the Directors is regarded as valid and effectual as if it had been passed at a duly convened Board meeting. Any such written resolution or minute may consist of several documents (or facsimiles thereof) in like form or in one or more counterparts, each signed by one or more of the Directors, and all counterparts taken together constitute one document.

 

 

6.6            No shareholding requirement

 

The Directors need not be shareholders of the Company and are not liable to retire by rotation until removed/replaced by the Party nominating them.

 

 

6.7            Management

 

The operations of the Company will be managed by the Board, but the day to day administration or management of the Company may be vested in a management committee (“ Management Committee ”) appointed by the Board from time to time who shall at all times be responsible and subject to the control of the Board. The Management Committee may comprise members of the Board.

 

 

6.8            Nominees

 

The parties acknowledge that as the Series A Director is a nominee of MTDC, the Series A 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 its shareholders and that the Series A Director may take advice and obtain instructions MTDC.

 

The Company agrees to indemnify and keep the Series A Director indemnified,  subject to section 140 of the Act..

 

 

7.            General meetings

 

 

7.1            General meetings

 

Annual general meetings and extraordinary general meetings of the Shareholders are to be held in accordance with the provisions of the Act.

 

 

7.2            Quorum

 

The


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