SECURITIES
AND EXCHANGE COMMISSION
 UNITED
STATES
 Washington,
D.C. 20549
  Form
10-K/A
 Amendment
No. 1
 
 S ANNUAL REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
  For the
fiscal year ended December 31, 2008
 
 £ TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
  For the
transition period from __________ to ___________
  Commission
File Number 333-136424
  WaferGen
Bio-systems, Inc.
 (Exact
Name of Registrant as Specified in its Charter)
 
 Nevada
              20-3699764(State
      or other jurisdiction of incorporation or organization)
              (IRS
      Employer Identification No.)Bayside
      Technology Center46531
      Fremont Blvd.Fremont,
      CA
              
              94538(Address
      of principal executive offices)
              
              (Zip
      Code)
 
 Registrant’s
telephone number, including area code: (510) 651-4450
  Securities
registered under Section 12(b) of the Exchange Act:
 
 Title
      of each class:
              
              
              Name
      of each exchange on which registered:None
              
              
              N/A
 
 Securities
registered under Section 12(g) of the Exchange Act:
 
 Common
      stock, $0.001 par value per share(Title
      of Class)
 
 Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities
Act.                                                                                                                                                                  
 Yes £ No S
  Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the
Act.                                                                                                                                                                Yes £ No S
 
 
 Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes S No £
 
 Indicate
by check mark if disclosure of delinquent filers in response to Item 405 of
Regulation S-K (§229.405 of this chapter) is not contained herein, and will not
be contained, to the best of the registrant’s knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. £
  Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer,” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
 
 Large
accelerated
filer                              £                                                      Accelerated
filer                                £
 Non-accelerated
filer                                £                                                      Smaller
reporting
company              S
 (Do not
check if a smaller reporting company)
 
 Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act).    Yes £ No S
 
 As of
June 30, 2008 (the last business day of the registrant’s most recently completed
second fiscal quarter), the aggregate market value of voting and nonvoting
common equity held by non-affiliates of the registrant was $55,516,178. As of
that date, 20,187,701 shares of the registrant’s common stock, $0.001 par value
per share, were held by non-affiliates. For purposes of this information, the
outstanding shares of common stock that were held by directors and executive
officers of the registrant were deemed to be shares of common stock held by
affiliates at that date.  This determination of affiliate status is
not necessarily a conclusive determination for other purposes.
 
 As of
April 28, 2009, the registrant had a total of 24,830,932 shares of common stock
issued and outstanding.
 
 DOCUMENTS
INCORPORATED BY REFERENCE
 
 None
  
  EXPLANATORY
NOTE
 
 We are
filing this Amendment No. 1 (the “Amended Report”) to our Annual Report on Form
10-K for the fiscal year ended December 31, 2008 (the “Original Report”) in
order to include the information required to be disclosed pursuant to Part III
of Form 10-K, which we had intended to incorporate by reference to the proxy
statement for our 2009 annual meeting of stockholders (the “2009 Proxy
Statement”). Because we do not expect to file the 2009 Proxy Statement on or
before April 30, 2009, we hereby amend the following Items of the Original
Report:
 
 ITEM 10.                           Directors,
      Executive Officers and Corporate
Governance
 ITEM 11.                           Executive
      Compensation
 ITEM 12.                          
      Security Ownership of Certain Beneficial Owners and Management and Related
      Stockholder Matters
 ITEM 13.                           Certain
      Relationships and Related Transactions, and Director
      Independence
 ITEM 14.                           Principal
      Accountant Fees and Services.
 
 
 As
required by the rules of the Securities and Exchange Commission (the “SEC”),
this Amended Report includes new certifications of our principal executive
officer and principal financial officer, as set forth in Exhibits 31.3 and 31.4
to this Amended Report.
  Except
for those Items as expressly set forth above, this Amended Report continues to
speak as of the date of the Original Report, and the Company has not updated the
financial disclosures or any other disclosures contained therein to reflect
events that have occurred subsequent to the filing of the Original Report.
Accordingly, this Amended Report should be read in conjunction with the Original
Report and the Company’s other filings made with the SEC subsequent to the
filing of the Original Report.
 
 As used in this Annual Report on
Form 10-K/A, all references to the “Company,” “we,” “our” and “us” for periods
prior to May 31, 2007 refer to WaferGen, Inc. (or “WaferGen”) and for periods on
or after May 31, 2007 refer to WaferGen Bio-systems, Inc. (or
“WBSI”).  On May 31, 2007, WaferGen was acquired by
WBSI.  In the transactions, WaferGen merged with a subsidiary of WBSI
and became a wholly-owned subsidiary of WBSI (the “Merger”). WaferGen was
considered the “acquirer” for accounting purposes, and accordingly the
historical financial statements of WaferGen for periods prior to the Merger
replaced those of WBSI.  Other terms defined in the Original Report
are used on this Amended Report as so defined.
 
  
    TABLE OF CONTENTSPageFORWARD-LOOKING
      STATEMENTS
                                  
                                  
                                  1PART
      IIIITEM
      10.
                                  Directors,
      Executive Officers and Corporate Governance
                                  
                                  
                                  2ITEM
      11.
                                  Executive
      Compensation
                                  
                                  
                                  6ITEM
      12.
                                  Security
      Ownership of Certain Beneficial Owners and Management and Related
      Stockholder Matters
                                  
                                  
                                  12ITEM
      13.
                                  Certain
      Relationships and Related Transactions, and Director
      Independence
                                  
                                  
                                  13ITEM
      14.
                                  Principal
      Accountant Fees and Services
                                  
                                  
                                  15PART
      IVITEM
      15.
                                  Exhibits
      and Financial Statement Schedules
                                  
                                  
                                  16Signatures
                                  
                                  
                                  
                                  20Exhibit
      Index
                                  
                                  
                                  
                                  21
  
  
 FORWARD
LOOKING STATEMENTS
  Information
included in this Form 10-K/A may contain forward-looking statements. Except for
the historical information contained in this discussion of the business and the
discussion and analysis of financial condition and results of operations, the
matters discussed herein are forward looking statements. These forward looking
statements include but are not limited to the Company’s plans for sales growth
and expectations of gross margin, expenses, new product introduction, and the
Company’s liquidity and capital needs. This information may involve known and
unknown risks, uncertainties and other factors which may cause our actual
results, performance or achievements to be materially different from future
results, performance or achievements expressed or implied by any forward-looking
statements. Forward-looking statements, which involve assumptions and describe
our future plans, strategies and expectations, are generally identifiable by use
of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,”
“believe,” “intend” or “project” or the negative of these words or other
variations on these words or comparable terminology. In addition to the risks
and uncertainties described in “Risk Factors” in the Original Report, these
risks and uncertainties may include consumer trends, business cycles, scientific
developments, changes in governmental policy and regulation, currency
fluctuations, economic trends in the United States and inflation.
Forward-looking statements are based on assumptions that may be incorrect, and
there can be no assurance that any projections or other expectations included in
any forward-looking statements will come to pass. Our actual results could
differ materially from those expressed or implied by the forward-looking
statements as a result of various factors. Except as required by applicable
laws, we undertake no obligation to update publicly any forward-looking
statements for any reason, even if new information becomes available or other
events occur in the future.
  
 
 
 
 
 
 
 
 
 
  
  1
  PART
III
 
 Item
      10.
              Directors,
      Executive Officers and Corporate
Governance
 
  Set forth
below is certain information regarding our directors and executive
officers:
  Name
                  
                  Age
                  
                  PositionAlnoor
      Shivji
                  
                  
                  52
                  
                  Chief
      Executive Officer, President and Chairman of the BoardVictor
      Joseph
                  
                  
                  57
                  
                  Chief
      Technical Officer, Secretary and DirectorAmjad
      Huda
                  
                  
                  49
                  
                  Chief
      Financial Officer, Treasurer and DirectorMona
      Chadha
                  
                  
                  48
                  
                  Executive
      Vice President, Marketing and Business DevelopmentR.
      Dean Hautamaki
                  
                  
                  46
                  
                  DirectorMakoto
      Kaneshiro
                  
                  
                  50
                  
                  DirectorJoel
      Kanter
                  
                  
                  52
                  
                  DirectorNadine
      C. Smith
                  
                  
                  51
                  
                  Director
 
  Our
bylaws provide that our Board will consist of between one and fifteen members,
with the number of directors determined from time to time by our Board. The
number of directors is currently set at seven. Our directors hold office for
one-year terms until the earlier of their death, resignation or removal or until
their successors have been elected and qualified. Any vacancies occurring in the
Board between annual meetings may be filled by the vote a majority of the
remaining directors. Our officers are appointed by the Board of Directors and
serve at the discretion of the Board.
  There are
no family relationships among our directors and executive officers. None of our
above-listed executive officers and directors has been convicted in any criminal
proceeding during the past five years or has been a party to any judicial or
administrative proceeding during the past five years that resulted in a
judgment, decree or final order enjoining him or her from future violations of,
or prohibiting activities subject to, federal or state securities laws or a
finding of any violation of federal of state securities laws or commodities
laws. Similarly, no bankruptcy petitions have been filed by or against any
business or property of any of our directors or executive officers, nor has a
bankruptcy petition been filed against a partnership or business association in
which these persons were general partners or executive officers.
  Alnoor
Shivji, Amjad Huda, Victor Joseph and Makoto Kaneshiro were former directors of
WaferGen, Inc. and became our directors on May 31, 2007 in connection with the
Merger as described below in Item 13, “Certain Relationships and Related
Transactions, and Director Independence.” Raymond Dean Hautamaki was appointed
to serve as a director on May 31, 2007.  Joel Kanter was appointed to
serve as a director on June 12, 2007. Nadine C. Smith was appointed to serve as
a director on November 12, 2008.
  Alnoor
Shivji, Chief Executive
Officer, President and Chairman of the Board.  Mr. Shivji has
served as our Chief Executive Officer, President and Chairman of the Board since
the closing of the Merger. He is a co-founder of WaferGen and has served as its
Chief Executive Officer and President since April 1, 2003, and as Chairman of
the Board since October 2002. Between December 2003 and July 2006, he was also
the Investment Director at VPSA, Inc. in Paris, France, and between October 2001
and February 2002, he was the President and Chief Executive Officer of Redwave
Networks, Inc. From April 2001 to August 2001, Mr. Shivji was President of Metro
Switching Division of Ciena Corp. Between August 1998 and March 2001, he was the
Founder, President and Chief Executive Officer of Cyras Systems. He co-founded
Fiberlane Communications, Inc. and was President of Fiberlane Communications
(Canada), Inc. from December 1996 to April 1998. Mr. Shivji also co-founded
Osiware, an enterprise software company sold to Infonet Services Corporation,
which was later bought by BT Group plc. Currently, he is a General Partner with
Global Asset Capital, a venture capital firm with which he has been associated
since March 2002, and has a long history advising and investing in Silicon
Valley startups. Mr. Shivji has a BS degree from University of British
Columbia.
  Victor
Joseph, Chief Technical
Officer, Secretary and Director.  Mr. Joseph hasserved as our Chief
Technical Officer, Secretary and a director since the closing of the Merger. He
is a co-founder of WaferGen and has served as its Chief Technical Officer and
Secretary since April 1, 2003, and as a director since October 2002. Mr. Joseph
has over 20 years of experience working in research and development,
manufacturing, consulting and management in a variety of industries including
Semiconductor IC, inkjet, personal computers, optical communication, disk drives
and specialty chemicals. Between April 2001 and March 2003 he was the Vice
President of the Switching Products Group of Avrio Technologies. From January
2000 to April 2001 he was a Technology Assessment Manager with Cisco Systems,
Inc. and served as a Senior Business Development Manager and Senior Engineer
with Hewlett-Packard Company between November 1993 and January 2000. Throughout
his career, Mr. Joseph has maintained his intellectual property through patents,
of which he currently holds three in inkjet technology, one in fiber optic
switch technology, one in
integrated biochip technology and seven in-house pending patents. He holds a
Master of Science degree from the University of Toronto in IE/OR and BS ChemE
from REC Warangal, India.
   2
   Amjad
Huda, Chief Financial
Officer, Treasurer and Director.  Mr. Huda has served as our
Chief Financial Officer, Treasurer and a director since the closing of the
Merger. He is a co-founder of WaferGen and has served as its Chief Financial
Officer and Treasurer since January 1, 2004, and as a director since October
2002. In addition to his role as the Chief Financial Officer, he served as
WaferGen’s Chief Operations Officer from January 2004 to February 2007. Between
September 1997 and December 2003, he worked for Nortel Networks Corporation in
its international research and development operations. Between September 1995
and September 1997, Mr. Huda worked for KPMG, LLP; between March 1991 and August
1995, Mr. Huda worked for Coopers & Lybrand (now PriceWaterhouseCoopers);
and between September 1985 and February 1991, Mr. Huda worked for General Foods
(now Kraft Foods, Inc.). Mr. Huda holds a Bachelor of Science in Industrial
Engineering from St. Cloud State University (St. Cloud, Minnesota) and an MBA in
Finance from Golden Gate University (San Francisco, California).
  Mona
Chadha, Executive Vice
President of Marketing and Business Development and interim Chief Operating Officer. Ms. Chadha
on March 20, 2009 was promoted from Vice President of Marketing, Business
Development and Corporate Communications to Executive Vice President of
Marketing, Business Development and Corporate Communications and Interim Chief
Operating Officer. Ms. Chadha has served as our Vice President of Marketing,
Business Development and Corporate Communications since the closing of the
Merger. She joined WaferGen in July 2006 as its Vice President, Marketing and
Business Development. Ms. Chadha has over 15 years of experience in global
product commercialization for leading biotechnology companies. From July 2003
through July 2006, she was the Associate Director of Technology Marketing at
Nektar Therapeutics, where she led the company’s repositioning and branding
efforts and co-marketing of inhaled insulin. She spent nine years with Applied
Biosystems Group (Applera Corporation), from 1993 through 2001, in multiple top
tier jobs, including Product Manager, Senior Product Manager and Product Line
Manager. Before joining Applied Biosystems, she was with CLONTECH Laboratories,
Inc. during 1992 and 1993 as product manager and worked between 1988 and 1992 at
Pharmacia LKB Biotechnology, Inc. as a Technical Specialist and Marketing
Applications Specialist. She holds a double Masters degree in Cell Biology and
Anatomy from Columbia University and Microbiology from India. She also completed
the Executive Marketing Management Certificate Program at Stanford
University.
  Dr. R. Dean
Hautamaki, Director.  Dr.
Hautamaki has served as our director since the closing of the Merger. Dr.
Hautamaki is a practicing physician and since January 2005 has been the
Assistant Clinical Professor of Medicine at the Florida State University College
of Medicine in Tallahassee, Florida. From September 2003 to December 2005, Dr.
Hautamaki was the Chairman of the Department of Medicine at Sarasota Memorial
Hospital in Sarasota, Florida. From September 1997 through December 2005, he was
a partner at Lung Associates of Sarasota in Sarasota, Florida. Dr. Hautamaki has
authored over 12 papers and presented in several conferences.
  Makoto
Kaneshiro, Director.  Mr.
Kaneshiro has served as our director since the closing of the Merger. He has
also served as a director of WaferGen since March 2005. Mr. Kaneshiro is a
founding member of Genetic Devices, Co., Ltd. in Japan and prior to that was the
Executive Director of Overseas Investment for CSK Venture Capital Co., Ltd.,
where he had been since 2001. Previously, Mr. Kaneshiro was Executive Vice
President of Sega.com and Sega of America. Before Sega, he was a member of the
business development and corporate planning team of Sony Corporation of America.
From 2003 to 2004, Mr. Kaneshiro was a member of the Board of Directors of Sega
Corporation which was a publicly traded company in Japan. He holds an MBA from
Yale University.
  Joel
Kanter, Director.  Joel
Kanter has served as our director since June 2007.  He has been in the
financial services industry for over three decades and has focused on providing
equity and bridge financing to small and mid-size companies and institutional
financing to mature enterprises. He has served as President of Windy City, Inc.,
a privately held investment firm, and as the Chief Executive Officer and
President of Walnut Financial Services, Inc., a publicly traded company. Mr.
Kanter currently serves on the Board of Directors of several public companies,
including: Aquamatrix, Inc., I-Flow Corporation, Magna-Lab, Inc., Medgenics,
Inc., Modigene, Inc., and Pet DRx Corporation, as well as a number of private
concerns. Mr. Kanter has a B.A. in Political Science and a B.S. in Psychology
from Tulane University.
  Nadine C. Smith,Director. Ms.
Smith has served as our director since November 2008.  She serves as
Chairman of the Board, Vice President, Interim Chief Financial Officer and
Interim Treasurer of La Cortez Energy, Inc., a publicly held, early stage
company that plans to be involved in the oil and gas sector in South America,
and as Chairman of the Board of Loreto Resources Corporation, a publicly
held, early stage company that plans to be involved in the mining sector in
South America. Ms. Smith has previously served as a director of Gran Tierra
Energy, Inc., Patterson-UTI Energy Inc. and American Retirement Corporation, all
public companies. Ms. Smith has been a private investor and business
consultant since 1990.
  We have
three standing committees of the Board of Directors: the Audit Committee; the
Corporate Governance Committee; and the Compensation Committee.
  Audit
Committee
 
 Our
current Audit Committee was formed during September 2007. It attends to and
reports to our Board of Directors with respect to matters regarding our
independent registered public accounting firm, including, without limitation:
reviewing the annual registration; approving the firm to be engaged as our
independent registered public accounting firm for the next fiscal year;
reviewing with our independent
registered public accounting firm the scope and results of their audit and any
related management letter; consulting with our independent registered public
accounting firm and our management with regard to our accounting methods and
adequacy of our internal controls over financial reporting; approving the
professional services rendered by our independent registered public accounting
firm; reviewing the independence, management consulting services and fees of our
independent registered public accounting firm; inquiring about significant risks
or exposures and methods to minimize such risk; ensuring effective use of audit
resources; and preparing and supervising the SEC reporting requirements. On
September 30, 2008 the Board of director approved the audit committee charter.
Our Audit Committee currently consists of Mr. Kanter (Chairman), Dr. Hautamaki,
and Mr. Kaneshiro. In addition, the Board of Directors believes that Mr. Kanter
meets the definition of “audit committee financial expert,” and is “independent”
as such terms are defined by SEC rules.
  3
  
 Corporate
Governance Committee
 
 The
Corporate Governance Committee of the Board of Directors is appointed by the
Board (i) to oversee the selection of new directors, (ii) to oversee the
function of the Board in its committees, and (iii) to evaluate the Board’s
performance as well as the relationship between the Board and the Company’s
management. The Corporate Governance Committee currently consists of Mr.
Kaneshiro (Chairman), Dr. Hautamaki, and Mr. Kanter.
 
 Compensation
Committee
 
 Our
Compensation Committee was formed in September 2007 to attend to and report to
our Board of Directors with respect to the appropriate compensation of our
directors and executive officers and is responsible for administering all of our
employee benefit plans. We do not have a compensation committee charter. The
Compensation Committee currently consists of Mr. Kaneshiro (Chairman), Dr.
Hautamaki, and Mr. Kanter.
  Nomination
of Directors
  There
have been no material changes to the procedures by which security holders may
recommend nominees to our Board of Directors implemented since the filing of our
Proxy Statement for our 2008 Annual Meeting of Stockholders.
  Section
16(a) Beneficial Ownership Reporting Compliance
   Based
solely upon a review of Forms 3 and 4 and amendments thereto furnished to the
Company under  Rule 16a-3(e) under the Exchange Act during its most
recent fiscal year and Forms 5 and amendments thereto furnished to the Company
with respect to its most recent fiscal year, and any written representation to
the Company from the reporting person that no Form 5 is required, no person who,
at any time during the fiscal year, was a director, officer, beneficial owner of
more than ten percent of the Company’s Common Stock, or any other person known
to the Company to be subject to section 16 of the Exchange Act with respect to
the Company, failed to file on a timely basis, as disclosed in the above Forms,
reports required by section 16(a) of the Exchange Act during the most recent
fiscal year or prior fiscal years, except as described below:
  Name
                                      
                                      No.
      of late reports
                                      
                                      
                                      No.
      of transactions that were not reported on a
      timely basis
                                      
                                      Failure to file a required
    FormR.
      Dean Hautamaki
                                      
                                      
                                      3
                                      
                                      
                                      
                                      4
                                      
                                      0Amjad
      Huda
                                      
                                      
                                      2
                                      
                                      
                                      
                                      2
                                      
                                      0Victor
      Joseph
                                      
                                      
                                      2
                                      
                                      
                                      
                                      2
                                      
                                      0Makoto
      Kaneshiro
                                      
                                      
                                      2
                                      
                                      
                                      
                                      4
                                      
                                      0Joel
      S. Kanter
                                      
                                      
                                      1
                                      
                                      
                                      
                                      1
                                      
                                      0Alnoor
      Shivji
                                      
                                      
                                      6
                                      
                                      
                                      
                                      32
                                      
                                      0Nadine
      C. Smith
                                      
                                      
                                      0
                                      
                                      
                                      
                                      0
                                      
                                      0
  
 4
 
 Code
of Ethics
 
 Effective
December 28, 2007, our Company’s Board of Directors adopted a Code of Business
Conduct and Ethics that applies to, among other persons, our Company’s President
(our executive officer) and our Chief Financial Officer (our principal financial
and accounting officer), as well as persons performing similar functions. As
adopted, our Code of Business Conduct and Ethics set forth written standards
that are designed to deter wrongdoing and promote:
 
 (1)
              handling
      honest and ethical conduct, including the ethical of actual or apparent
      conflicts of interest between personal and professional
      relationships;
 
 (2)
              full,
      fair, accurate, timely, and understandable disclosure in report and
      document that we file with, or submit to, the Security and Exchange
      Commission and in other public communications made by
  us;
 
 (3)
              compliance
      with applicable government laws, rules and
  regulations;
 
 (4)
              the
      prompt internal reporting of violations of Code of Business Conduct and
      Ethics to an appropriate person or persons identified in the Code of
      Business Conduct and Ethics; and
 
 (5)
              accountability
      for adherence to the Code of Business Conduct and
  Ethics.
 
 Our Code
of Business Conduct and Ethics requires, among other things, that all of our
Company’s personnel shall be accorded full access to our President, Secretary,
and Chief Financial Officer with respect to any matter which may arise relating
to the Code of Business Conduct and Ethics. Further, all of our Company’s
personnel are to be accorded full access to our Company’s Board of Directors if
any such matter involves an alleged breach of the Code of Business Conduct and
Ethics by our president, secretary, and chief financial officer.
  In
addition, our Code of Business Conduct and Ethics emphasizes that all employees,
and particularly managers and/or supervisors, have a responsibility for
maintaining financial integrity within our Company, consistent with generally
accepted accounting principles, and federal, provincial and state security laws.
Any employee who become aware of any incident involving financial or accounting
manipulation or other irregularities, whether by witnessing the incident or
being told of it, must report it to his or her immediate supervisor or to our
Company’s president, secretary, or chief financial officer. If the incident
involves an alleged breach of the Code of Business Conduct and Ethics by the
president, secretary, or chief financial officer, the incident must be reported
to the Audit Committee. Any failure to report such inappropriate or irregular
conduct of other is to be treated as a severe disciplinary matter. It is against
our Company policy to retaliate against any individual who reports in good faith
the violation or potential violation of our Company’s Code of Business Conduct
and Ethics by another.
  Our Code
of Business Conduct and Ethics is filed as Exhibit 10.30 to this
Report.
  We will
provide a copy of the Code of Business Conduct and Ethics to any person without
charge, upon request. Request can be sent to: WaferGen Bio-systems, Inc. at
46531 Fremont Blvd. Fremont, California 94538.
  
   5
  
 Item
      11.
              Executive
      Compensation
  The
following table summarizes all compensation recorded by us in each of fiscal
year 2008 and 2007 for (i) our principal executive officer, and (ii) our two
most highly compensated executive officers other than our principal executive
officer, each of whom was serving as an executive officer at the end of fiscal
year 2008 and whose total compensation exceeded $100,000 in fiscal year. Such
officers are referred to herein as our “Named Executive Officers.”
  Name
      and Principal Position
                  
                  Fiscal
                    Year
                  
                  Salary
                    ($)
                  
                  Bonus
                    ($)
                  
                  Option
      Awards
                    ($)
                  
                  Total
                    ($)Alnoor
      Shivji
                  
                  
                  2008
                  
                  
                  $
                  254,974
                  (1)
                  
                  $
                  62,500
                  (3)
                  
                  $
                  25,939
                  (4)
                  
                  $
                  343,413Chief
      Executive Officer
                  
                  
                  2007
                  
                  
                  $
                  229,166
                  
                  
                  $
                  —
                  (2)
                  
                  $
                  215,308
                  (4)
                  
                  $
                  444,474Amjad
      Huda
                  
                  
                  2008
                  
                  
                  $
                  254,974
                  (1)
                  
                  $
                  62,500
                  (3)
                  
                  $
                  21,011
                  (4)
                  
                  $
                  338,485Chief
      Financial Officer
                  
                  
                  2007
                  
                  
                  $
                  229,166
                  
                  
                  $
                  —
                  (2)
                  
                  $
                  215,308
                  (4)
                  
                  $
                  444,474Victor
      Joseph
                  
                  
                  2008
                  
                  
                  $
                  254,974
                  (1)
                  
                  $
                  62,500
                  (3)
                  
                  $
                  21,866
                  (4)
                  
                  $
                  339,340Chief
      Technology Officer
                  
                  
                  2007
                  
                  
                  $
                  229,166
                  
                  
                  $
                  —
                  (2)
                  
                  $
                  215,308
                  (4)
                  
                  $
                  444,474
 
 (1)
                Annual
      salary of $262,500 commenced on May 31, 2008,  after one year of
      the date of executive officer’s employment agreement with WaferGen. On
      November 30, 2008 the Company adjusted the salary to
      $223,000  until the Company raises $5 million in gross proceeds
      from the sale of its securities in one or more financings on or prior to
      March 30, 2009, excluding any gross proceeds received in connection with
      any financings completed by its subsidiary, WaferGen Biosystems (M) Sd.
      Bhd., a Malaysian corporation; or (b) raises after March 30, 2009 funds
      sufficient to finance WaferGen’s operations at its then-current burn rate
      for an additional nine months after the closing of such financing, as
      reasonably determined by the compensation committee of the board of
      directors of WaferGen.
 
 (2)
                Under
      such executive officer’s employment agreement, the executive officer is
      entitled to a performance-based bonus of up to 25% of his salary. The
      Compensation Committee of the Board has determined that each such
      executive shall receive a bonus in 2008 for the executive’s performance in
      2007 equal to 25% of his base salary (or $62,500) upon the completion of a
      financing transaction by the Company above a certain threshold amount. No
      bonuses were paid for the year
2008.
 
 (3)
                Bonus
      earned in 2007 but paid in
2008.
 
 (4)
              The
      value of the Option Award has been computed in accordance with SFAS No.
      123(R), “Share-Based Payment,” which requires that we recognize as
      compensation expense the value of all stock-based awards, including stock
      options granted to employees in exchange for services over the requisite
      service period, which is typically the vesting period. For more
      information, see Note 2, "Summary of Significant Accounting
      Policies--Stock-Based Compensation" and Note 9, "Stock Option and
      Warrants," to the Finacial Statements contained in Item 8 in the Original
      Report.
 
   6
  Outstanding
Equity Awards at Fiscal Year-End 2008 (1)
  Name
                      
                      Number
      of
                        Securities
                        Underlying
      Unexercised
                        Options
      (#)
                        Exercisable
                      
                      Number
      of
                        Securities
                        Underlying
                        Unexercised
                        Options
      (#)
                        Unexercisable
                      
                      Option
                        Exercise
                        Price
                        ($)
                      
                      Option
                        Expiration
                        DateAlnoor
      Shivji
                      
                      
                      —
                      
                      
                      
                      75,000
                      (2)
                      
                      $
                      1.95
                      
                      
                      
                      4/17/2018—
                      
                      
                      
                      75,000
                      (4)
                      
                      $
                      1.35
                      
                      
                      
                      9/30/2015—
                      
                      
                      
                      25,000
                      (5)
                      
                      $
                      1.00
                      
                      
                      
                      10/24/201565,973
                      (6)
                      
                      
                      100,694
                      (6)
                      
                      $
                      1.50
                      
                      
                      
                      5/31/2017Amjad
      Huda
                      
                      
                      —
                      
                      
                      
                      25,000
                      (2)
                      
                      $
                      1.95
                      
                      
                      
                      4/17/2018—
                      
                      
                      
                      37,500
                      (4
      )
                      
                      $
                      1.35
                      
                      
                      
                      9/30/2015—
                      
                      
                      
                      20,000
                      (5)
                      
                      $
                      1.00
                      
                      
                      
                      10/24/201565,973
                      (6)
                      
                      
                      100,694
                      (6)
                      
                      $
                      1.50
                      
                      
                      
                      5/31/2017134,979
                      (7)
                      
                      
                      —
                      
                      
                      $
                      0.46
                      
                      
                      
                      1/3/2017Victor
      Joseph
                      
                      
                      —
                      
                      
                      
                      25,000
                      (2)
                      
                      $
                      1.95
                      
                      
                      
                      4/17/2018—
                      
                      
                      
                      12,500
                      (3)
                      
                      $
                      2.10
                      
                      
                      
                      4/30/2018—
                      
                      
                      
                      37,500
                      (4)
                      
                      $
                      1.35
                      
                      
                      
                      9/30/2015—
                      
                      
                      
                      20,000
                      (5)
                      
                      $
                      1.00
                      
                      
                      
                      10/24/201565,972
                      (6)
                      
                      
                      100,694
                      (6)
                      
                      $
                      1.50
                      
                      
                      
                      5/31/2017134,979
                      (7)
                      
                      
                      —
                      
                      
                      $
                      0.46
                      
                      
                      
                      1/3/2017
 (1)
              Option
      numbers and prices are presented as of December 31, 2008. Upon the Merger,
      we adopted and assumed WaferGen’s 2003 Stock Incentive Plan and the then
      outstanding options automatically converted into options to purchase
      shares of our common stock using the same exchange ratio applied to
      convert the WaferGen shares into our common stock in the merger. Upon the
      Merger, the vesting of all options issued under the 2003 Stock Incentive
      Plan was accelerated, and all the options became immediately
      exercisable.
 
 (2)
              Option
      to purchase shares of our common stock at an exercise price of $1.95 per
      share granted on April 17, 2008, which option vests with respect to the
      first 25% of the shares when the optionee completes 12 months of
      continuous service after the vesting start date, and with respect to an
      additional 1/48th
      of the shares when the optionee completes each full month of continuous
      service thereafter, and expires 10 years after the date of
      grant.
 
 (3)
              Option
      to purchase our common stock at an exercise price of $2.10 per share
      granted on April 30, 2008, which option vests with respect to the first
      25% of the shares when the optionee completes 12 months of continuous
      service after the vesting start date, and with respect to an additional
      1/48th
      of the shares when optionee completes each full month of continuous
      service thereafter,and
      expires 10 years after the date of grant.
 (4)
              Option
      to purchase shares of our common stock at an exercise price of $1.35 per
      share granted on September 30, 2008, which option vests with respect to
      the first 25% of the shares when the optionee completes 12 months of
      continuous services after the vesting start date, and with respect to an
      additional 1/48th
      of the shares when optionee completes each full month of continuous
      service thereafter, and expires seven years after the date of
      grant.
 
 (5)
              Option
      to purchase shares of our common stock at an exercise price of $1.00 per
      share granted on October 24, 2008, which option vests with respect to the
      first 25% of the shares when the optionee completes 12 months of
      continuous service after the vesting start date, and with respect to an
      additional 1/48th
      of the shares when optionee completes each full month of continuous
      service thereafter, and expires 7 years after the date of
      grant.
  7
  
 (6)
              Option
      to purchase 166,666 shares of our common stock at an exercise price of
      $1.50 per share granted on May 31, 2007, which option vests in equal
      monthly installments over four years and expires 10 years after the date
      of grant.
 
 (7)
              Option
      to purchase 134,979 shares of our common stock at an exercise price of
      $0.46 per share granted on January 3, 2007 under the 2003 Stock Incentive
      Plan, which option became fully vested upon the Merger and expires 10
      years after the date of grant.
  Employment
Agreements
  Alnoor
Shivji
  We have
entered into an employment agreement with Alnoor Shivji to serve as our Chairman
and Chief Executive Officer, for renewable one year terms. Pursuant to this
employment agreement, Mr. Shivji is entitled to receive an annual base salary of
$250,000, subject to annual reviews by our Compensation Committee. Mr. Shivji is
also entitled to a performance-based bonus of up to 25% of his salary. Upon
execution of his employment agreement, we granted Mr. Shivji an option to
purchase 166,666 shares of our common stock at an exercise price of $1.50 per
share, which option shall vest in equal monthly installments over four years. If
we terminate Mr. Shivji’s employment without cause or if Mr. Shivji resigns for
good reason, we will pay Mr. Shivji his then current annual base salary for one
year, payable in accordance with standard payroll procedures, any earned but
unpaid base salary, any unpaid pro rata annual bonus and any amounts necessary
to reimburse Mr. Shivji for employment-related expenses and for unused, but
accrued, vacation days. Our failure to renew this agreement for any subsequent
one-year term shall be deemed to be a termination without cause. This agreement
prohibits Mr. Shivji from competing with us for the greater of (i) one year
after the termination of his employment or (ii) the length of time Mr. Shivji
receives severance payments from us. On January 16, 2009, Mr. Shivji agreed in a
letter agreement with the Company to reduce his base salary by 15% from $262,500
to $223,000.  The letter agreement confirms the prior salary reduction
that was voluntarily agreed to by this officer effective as of November 1,
2008.  The letter agreement provides that the base salary will return
to its prior level in the event that the Company raises $5 million in gross
proceeds from the sale of its securities in one or more financings on or prior
to March 20, 2009 (excluding any gross proceeds received in connection with any
financings completed by the Company’s Malaysian subsidiary), or the Company
raises after March 30, 2009 funds sufficient to finance the Company’s operations
at its then-current burn rate for an additional nine months after the closing of
such financing. The compensation committee of the Company’s board of directors
approved of the foregoing salary reduction as set forth in the letter
agreement.
  Amjad
Huda
  We have
entered into an employment agreement with Amjad Huda to serve as our Chief
Financial Officer and Treasurer, for renewable one year terms. Pursuant to this
employment agreement, Mr. Huda is entitled to receive an annual base salary of
$250,000, subject to annual reviews by our Compensation Committee. Mr. Huda is
also entitled to a performance-based bonus of up to 25% of his salary. Upon
execution of his employment agreement, we granted Mr. Huda an option to purchase
166,667 shares of our common stock at an exercise price of $1.50 per share,
which option shall vest in equal monthly installments over four years. If we
terminate Mr. Huda’s employment without cause or if Mr. Huda resigns for good
reason, we will pay Mr. Huda his then current annual base salary for one year,
payable in accordance with standard payroll procedures, any earned but unpaid
base salary, any unpaid pro rata annual bonus and any amounts necessary to
reimburse Mr. Huda for employment related expenses and for unused, but accrued,
vacation days. Our failure to renew this agreement for any subsequent one-year
term shall be deemed to be a termination without cause. This agreement prohibits
Mr. Huda from competing with us for the greater of (i) one year after the
termination of his employment or (ii) the length of time Mr. Huda receives
severance payments from us. On January 16, 2009, Mr. Huda agreed in a letter
agreement with the Company to reduce his base salary by 15% from $262,500 to
$223,000.  The letter agreement confirms the prior salary reduction
that was voluntarily agreed to by this officer effective as of November 1,
2008.  The letter agreement provides that the base salary will return
to its prior level in the event that the Company raises $5 million in gross
proceeds from the sale of its securities in one or more financings on or prior
to March 20, 2009 (excluding any gross proceeds received in connection with any
financings completed by the Company’s Malaysian subsidiary), or the Company
raises after March 30, 2009 funds sufficient to finance the Company’s operations
at its then-current burn rate for an additional nine months after the closing of
such financing. The compensation committee of the Company’s board of directors
approved of the foregoing salary reduction as set forth in the letter
agreement.
   8
  Victor
Joseph
  We have
entered into an employment agreement with Victor Joseph to serve as our Chief
Technical Officer and Secretary, for renewable one year terms. Pursuant to this
employment agreement, Mr. Joseph is entitled to receive an annual base salary of
$250,000, subject to annual reviews by our Compensation Committee. Mr. Joseph is
also entitled to a performance-based bonus of up to 25% of his salary. Upon
execution of his employment agreement, we granted Mr. Joseph an option to
purchase 166,667 shares of our common stock at an exercise price of $1.50 per
share, which option shall vest in equal monthly installments over four years. If
we terminate Mr. Joseph’s employment without cause or if Mr. Joseph resigns for
good reason, we will pay Mr. Joseph his then current annual base salary for one
year, payable in accordance with standard payroll procedures, any earned but
unpaid base salary, any unpaid pro rata annual bonus and any amounts necessary
to reimburse Mr. Joseph for employment related expenses and for unused, but
accrued, vacation days. Our failure to renew this agreement for any subsequent
one-year term shall be deemed to be a termination without cause. This agreement
prohibits Mr. Joseph from competing with us for the greater of (i) one year
after the termination of his employment or (ii) the length of time Mr. Joseph
receives severance payments from us. On January 16, 2009, Mr. Joseph agreed in a
letter agreement with the Company to reduce his base salary by 15% from $262,500
to $223,000.  The letter agreement confirms the prior salary reduction
that was voluntarily agreed to by this officer effective as of November 1,
2008.  The letter agreement provides that the base salary will return
to its prior level in the event that the Company raises $5 million in gross
proceeds from the sale of its securities in one or more financings on or prior
to March 20, 2009 (excluding any gross proceeds received in connection with any
financings completed by the Company’s Malaysian subsidiary), or the Company
raises after March 30, 2009 funds sufficient to finance the Company’s operations
at its then-current burn rate for an additional nine months after the closing of
such financing. The compensation committee of the Company’s board of directors
approved of the foregoing salary reduction as set forth in the letter
agreement.
   Director
Compensation
  The table
below summarizes the compensation paid by the Company to non-employee directors
for the fiscal year ended December 31, 2008.
  (a)
                  
                  (b)
                  
                  (c)
                  
                  (d)
                  
                  (e)
                  
                  (f)
                  
                  (g)
                  
                  (h)Name
                  
                  Fees
      Earned
                    or
      Paid in
                    Cash
                    ($)
                  
                  Stock
                    Awards
                    ($)
                  
                  Option
      Awards
                    ($)(1)
                  
                  Non-Equity
                    Incentive
                    Plan
                    Compensation
                    ($)
                  
                  Change
      in
                    Pension
                    Value
      and
                    Nonqualified
                    Deferred
                    Compensation
                    Earnings
                    ($)
                  
                  All
      Other
                    Compensation
                    ($)
                  
                  Total
                    ($)Makoto
      Kaneshiro
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  22,226
                  (1)
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  22,226Dr.
      R. Dean Hautamaki
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  47,657
                  (1)
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  47,657Joel
      Kanter
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  22,226
                  (1)
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  22,226Nadine
      C. Smith
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  4,710
                  (1)
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  —
                  
                  
                  $
                  4,710
 
 
 (1)
              The
      amounts shown in column (d) represent the compensation costs of stock
      options for financial reporting purposes for fiscal year 2008 under FAS
      No. 123R, rather than an amount paid to or realized by the director. The
      FAS No. 123R value as of the grant date for options is spread over the
      number of months of service required for the grant to become
      non-forfeitable.
 In
January 2008, the Board of Directors approved the following compensation for all
non-employee directors:
 
 •
              Each
      non-employee director will receive an initial option grant (the “Initial
      Grant”) of 40,000 stock options upon the director’s appointment to Board,
      with 50% of the options vested upon grant and the remaining 50% of the
      options vesting over one year with 25% of the options vesting every three
      months; provided, however, that the first Initial Grant made to
      non-employee directors in January 2008 was fully vested on the date of
      grant; and
 
  9
  
 •
              Immediately
      following each annual meeting of the Company’s stockholders commencing
      with the annual meeting of the Company’s stockholders in 2008, each
      non-employee director who continues as a non-employee director following
      such annual meeting shall receive an award of 15,000 stock options (the
      “Subsequent Grant”) vesting over one year with 25% of the option vesting
      every three months; provided that no Subsequent Grant shall be made to any
      non-employee director who has not served as a director of the Company, as
      of the time of such annual meeting, for at least six (6)
      months.
 Each
Initial Grant and each Subsequent Grant shall provide that in the event of a
change in control of the Company, such option shall automatically become fully
vested and no longer subject to forfeiture immediately prior to the specified
effective date of such change in control. The exercise price for all Initial
Grants and Subsequent Grants shall be the fair market value of the Company’s
Common Stock in accordance with the terms of the Company’s stock incentive
plan.
  Consideration
and Determination of Executive and Director Compensation
  Because
compensation decisions for executive officers are made by our entire Board of
Directors, several employees, including our senior executives and our Chief
Executive Officer and President, Alnoor Shivji, participate in the determination
of compensation policy. As members of the Board of Directors, these executive
officers make recommendations and participate in the voting with respect to the
compensation of executive officers.
  Stock
Incentive Plans
  In 2003,
the Company’s Board of Directors adopted a 2003 Incentive Stock Plan (the “2003
Plan”). The 2003 Plan authorized the Board of Directors to grant incentive stock
options and nonstatutory stock options to employees, directors, and consultants
for up to 1,500,000 shares of common stock. Under the Plan, incentive stock
options and nonqualified stock options can be granted. Incentive stock options
are to be granted at a price that is no less than 100% of the fair value of the
stock at the date of grant. Options will be vested over a period according to
the Option Agreement, and are exercisable for a maximum period of ten years
after date of grant. Options granted to stockholders who own more than 10% of
the outstanding stock of the Company at the time of grant must be issued at an
exercise price no less than 110% of the fair value of the stock on the date of
grant.
 
 In
November 2006, the Company increased the aggregate number of shares of Common
Stock that may be issued under the 2003 Plan to a total authorized reserve of
2,500,000 shares, a 1,000,000 share increase.
 
 In
January, 2007 WaferGen Bio-systems, Inc’s Board of Directors and stockholders
adopted the 2007 Stock Option Plan (the “2007 Plan”). The purpose of the 2007
Plan is to provide an incentive to retain the employment of directors, officer,
consultants, advisors and employees of the Company, persons of training,
experience and ability, to attract new directors, officers, consultants,
advisors and employees whose services are considered valuable, to encourage the
sense of proprietorship, and to stimulate the active interest of such persons
into the Company’s development and financial success. Under the 2007 Plan, the
Company is authorized to issue incentive stock options intended to qualify under
Section 422 of the Code, no-qualified stock options and restricted stock. The
2007 Plan shall be administered by the Company’s Board of
Directors.
 
 On
June 5, 2008, the Company's stockholders adopted the 2008 Stock Incentive Plan
(the “2008 Plan”) following approval of the 2008 Plan by the Board of Directors.
The 2008 Plan authorizes the issuance of up to 2,000,000 shares of common stock
pursuant to the terms of the 2008 Plan. The purpose of the 2008 Plan is to
provide an incentive to retain the employment of directors, officers,
consultants, advisors and employees of the Company, persons of training,
experience and ability, to attract new directors, officers, consultants,
advisors and employees whose services are considered valuable, to encourage the
sense of proprietorship, and to stimulate the active interest of such persons
into the Company's development and financial success. Under the 2008 Plan, the
Company is authorized to issue incentive stock options intended to qualify under
Section 422 of the Code, non-qualified stock options and restricted stock.
Awards may vest over varying periods, as specified by the Company's Board of
Directors for each grant, and have a maximum term of seven years from the grant
date. The 2008 Plan is administered by the Company’s Board of
Directors.
  10
  
 Securities
Authorized For Issuance under Equity Compensation Plans
  The
following table sets forth information regarding our compensation plans under
which equity securities are authorized for issuance to our employees, as of
December 31, 2008:
  Plan
      Category
                                        
                                        Number
      of
                                          Securities
      to Be
                                          Issued
      upon
                                          Exercise
      of
                                          Outstanding
      Options,
                                          Warrants
      and Rights
                                          (a)
                                        
                                        
                                        Weighted-Average
                                          Exercise
      Price of
                                          Outstanding
                                          Options,
      Warrants
                                          and
      Rights
                                          (b)
                                        
                                        Number
      of
                                          Securities
                                          Remaining
                                          Available
      for
                                          Future
      Issuance Under Equity
                                          Compensation
                                          Plans
                                          (Excluding
                                          Securities
                                          Reflected
      in
                                          Column
      (a))
                                          (c)Equity
      compensation plans approved by security holders
                                        
                                        
                                        3,686,700
                                        
                                        
                                        $
                                        1.45
                                        
                                        
                                        
                                        734,500Equity
      compensation plans not approved by security holders
                                        
                                        
                                        —
                                        
                                        
                                        
                                        —
                                        
                                        
                                        
                                        —Total
                                        
                                        
                                        3,686,700
                                        
                                        
                                        $
                                        1.45
                                        
                                        
                                        
                                        734,500
 
  11
  
 Item
      12.
              Security
      Ownership of Certain Beneficial Owners and Management and Related
      Stockholder Matters
  The
following table sets forth certain information regarding the beneficial
ownership of our common stock by (i) each person who, to our knowledge, owns
more than 5% of our common stock, (ii) each of our directors and executive
officers, and (iii) all of our executive officers and directors as a group.
Unless otherwise indicated in the footnotes to the following table, each person
named in the table has sole voting and investment power and that person’s
address is: c/o WaferGen Bio-systems, Inc., Bayside Technology Center, 46531
Fremont Blvd., Fremont, CA 94538. Shares of our Common Stock subject to options,
warrants, or other rights currently exercisable or exercisable within 60 days of
April 29, 2009, are deemed to be beneficially owned and outstanding for
computing the share ownership and percentage of the person holding such options,
warrants or other rights, but are not deemed outstanding for computing the
percentage of any other person.
  Name
      of Beneficial Owner
                  
                  Number
      of
                    Shares
                    Beneficially
                    Owned
                  
                  Percentage
                    Beneficially
                    Owned(1)The
      Shivji Family Trust dated June 12, 2000
                  
                  
                  1,903,174
                  (2)
                  
                  
                  7.60
                  %CSK-VC
      Life Science Investment Fund LP
                  
                  
                  1,690,610
                  (3)
                  
                  
                  6.79
                  %Directors
      and Executive Officers:Alnoor
      Shivji
                  
                  
                  3,528,480
                  (4)
                  
                  
                  13.86
                  %Victor
      Joseph
                  
                  
                  1,049,922
                  (5)
                  
                  
                  4.18
                  %Amjad
      Huda
                  
                  
                  1,049,922
                  (5)
                  
                  
                  4.18
                  %Nadine
      C. Smith
                  
                  
                  1,042,488
                  (6)
                  
                  
                  4.16
                  %Raymond
      Dean Hautamaki
                  
                  
                  283,258
                  (7)
                  
                  
                  1.13
                  %Makoto
      Kaneshiro
                  
                  
                  155,336
                  (8)
                  
                  
                  *Joel
      Kanter
                  
                  
                  152,500
                  (9)
                  
                  
                  *Mona
      Chadha
                  
                  
                  58,472
                  (10)
                  
                  
                  *Directors
      and Executive Officers as a Group (9 persons)
                  
                  
                  7,320,378
                  
                  
                  
                  28.97
                  %
 
 *
              Less
      than 1%
 
 (1)
              Based
      on 24,830,932 shares of our common stock issued and outstanding as of
      April 29, 2009.
 
 (2)
              Includes
      194,444 shares of common stock issuable upon the exercise of currently
      exercisable warrants. Excludes 54,821 shares of common stock that are
      being held in escrow for two years in connection with the Merger, and over
      which The Shivji Family Trust dated June 12, 2000 does not currently have
      voting or dispositive power. Alnoor Shivji and his wife, Mariam Shivji,
      are the co-trustees of The Shivji Trust. Its address is 692 Hillcrest
      Terrace, Fremont, CA 94539. See also footnote (4) in this
      section.
 
 (3)
              Includes
      50,000 shares of common stock issuable upon the exercise of currently
      exercisable warrants. Excludes 77,576 shares of common stock that are
      being held in escrow for two years in connection with the Merger, and over
      which CSK-VC Life Science Investment Fund does not currently have voting
      or dispositive power. Hiromichi Tabata has the power to vote and dispose
      of the shares being registered on behalf of CSK-VC Life Science Investment
      Fund. Its address is 5th Floor, Riviera Minami Aoyama Building, 3-3-3,
      Minami-Aoyama, Minato-Ku, Tokyo 107-0062
Japan.
 
 (4)
              Includes
      (i) 329,258 shares of common stock issuable upon the exercise of currently
      exercisable warrants, (ii) 105,209 shares of common stock issuable upon
      the exercise of options that are exercisable within 60 days, (iii)
      1,708,730 shares of common stock held by The Shivji Trust and (iv) 194,444
      shares of common stock issuable upon the exercise of currently exercisable
      warrants held by The Shivji Trust. Mr. Shivji and his wife, Mariam Shivji,
      are the co-trustees of The Shivji Trust. Mr. Shivji disclaims beneficial
      ownership of the securities held by The Shivji Trust, except to the extent
      he has a pecuniary interest therein. Excludes an aggregate of 410,726
      shares of common stock that are being held in escrow for two years in
      connection with the Merger. Also excludes 134,979 restricted options, and
      over which Mr. Shivji currently has voting but not dispositive power
      pursuant to an escrow agreement among WGBS, Mr. Shivji and Gottbetter
      & Partners, LLP, as escrow agent. Mr. Shivji disclaims beneficialownership
      of the shares held in escrow, except to the extent he has a pecuniary
      interest therein. Excludes options to purchase 236,457 shares of common
      stock that are not exercisable within 60
  days.
  12
  
 (5)
              Includes
      229,251 shares of common stock issuable upon the exercise of options that
      are exercisable within 60 days. Excludes (i) options to purchase 167,395
      shares of common stock that are not exercisable within 60 days and (ii)
      43,193 shares of common stock that are being held in escrow for two years
      in connection with the Merger, and over which the stockholder does not
      currently have voting or dispositive
power.
 
 (6)
              Includes
      193,888 shares of common stock issuable upon the exercise of currently
      exercisable warrants, 30,000 shares of common stock issuable upon the
      exercise of options that are exercisable within 60 days. Excludes (i)
      options to purchase 10,000 shares of common stock that are not exercisable
      within 60 days.
 
 (7)
              Consists
      of (i) 170,625 shares of common stock issuable upon the exercise of
      options that are exercisable within 60 days, (ii) 90,633 shares of common
      stock held by Cojack Investment Opportunities, LLC (“Cojack”) and (iii)
      16,000 shares and 6,000 shares of common stock issuable upon the exercise
      of currently exercisable warrants held by Cojack and Mr. Hautamaki. Mr.
      Hautamaki has voting and dispositive power over the securities held by
      Cojack. Excludes options to purchase 164,375 shares of common stock that
      are not exercisable within 60 days.
 
 (8)
              Consists
      of 155,336 shares of common stock issuable upon the exercise of options
      that are exercisable within 60 days. Excludes options to purchase 18,446
      shares of common stock that are not exercisable within 60
      days.
 
 (9)
              Includes
      (i) 55,000 shares of common stock issuable upon the exercise of options
      that are exercisable within 60 days. Consists of (ii) 75,000 shares of
      common stock held by the Kanter Family Foundation and (iii) 22,500 shares
      of common stock issuable upon exercise of currently exercisable warrants
      held by the Kanter Family Foundation. Joel Kanter and his brother, Joshua
      Kanter, have voting and dispositive power over all of the securities held
      by the Kanter Family Foundation. Mr. Kanter disclaims beneficial ownership
      of the securities held by the Kanter Family Foundation, except to the
      extent he has a pecuniary interest
therein.
 
 (10)
              Consists
      of 58,472 shares of common stock issuable upon the exercise of options
      that are exercisable within 60 days. Excludes options to purchase 346,717
      shares of common stock that are not exercisable within 60
      days.
 
  Item
      13.
              Certain
      Relationships and Related Transactions, and Director
      Independence
 
 The
Merger
 
 On May
31, 2007, we entered into an agreement and plan of merger and reorganization
(the “Merger Agreement”) with WaferGen Acquisition Corp., a wholly owned
Delaware subsidiary of the Company, and WaferGen, Inc., a Delaware corporation.
On that date, WaferGen Acquisition Corp. merged with and into WaferGen, Inc.
with WaferGen, Inc. remaining as the surviving corporation and our wholly-owned
subsidiary.
 
 At the
closing of the Merger, each share of WaferGen, Inc.’s common stock issued and
outstanding immediately prior to the closing of the Merger was converted into
the right to receive 0.53991522 shares of the Company’s common stock, and each
option and warrant to purchase WaferGen, Inc.’s common stock was converted on
the same basis into, respectively, an option or, in the case of consenting
warrant holders, warrants to purchase the Company’s common stock. An aggregate
of 8,214,523 shares of the Company’s common stock was issued to the holders of
WaferGen, Inc.’s common stock, and an aggregate of 670,035 and 115,442 shares of
the Company’s common stock was reserved for issuance under such the Company
options and warrants, respectively.
 Immediately
following the closing of the Merger, under the terms of a split-off agreement,
we transferred all of our pre-Merger operating assets and liabilities to our
wholly-owned subsidiary, La Burbuja Leaseco, Inc. a Nevada corporation, and
transferred all of its outstanding capital stock to our then-majority
stockholder in exchange for cancellation of shares of our common stock held by
that stockholder.
 
 As a
result of the Merger and the split-off, there was a change of control of
WaferGen, Inc. and we succeeded to the business of WaferGen, Inc. as our sole
line of business.
 
 In
accordance with the Merger Agreement, 5% of the shares of common stock issuable
to the former stockholders of WaferGen in the Merger are being held in escrow
for two years, pursuant to the terms of an Escrow Agreement among us, Alnoor
Shivji and Gottbetter & Partners, LLP, as Escrow Agent, in order to secure
certain indemnification obligations under the Merger Agreement. The Escrow
Agreement provides that Mr. Shivji has the right to direct the Escrow Agent in
writing as to the exercise of any voting rights pertaining to the escrow
shares.
  13
  
 Private
Placement of Securities
 
 On May
19, 2008, we sold in a private placement 1,585,550 units consisting of an
aggregate of 1,585,550 shares of our common stock and five-year warrants to
purchase an aggregate of up to 634,220 shares of our common stock with an
exercise price of $3.00 per share. Under certain circumstances, the Warrants
will be exercisable using cashless exercise. The purchase price for the units
was $2.25 per unit, or $3,567,487 in the aggregate.
 
 The
purchase agreement for the units contains certain negative covenants that
restrict: (i) for 180 days after the closing the ability of the Company and its
subsidiaries to issue shares of common stock or equivalents (subject to certain
exempt issuances), and (ii) for 24 months after closing, the ability of the
Company to enter into variable rate transactions. The investors are also
entitled to “piggyback” registration rights.
 
 The
purchasers included The Shivji Family Trust dated June 12, 2000 (which is an
affiliate of Alnoor Shivji, our Chairman, President and Chief Executive
Officer), Cojack Investment Opportunities, LLC (which is an affiliate of Dr.
Raymond Dean Hautamaki, a member of our board of directors), Nadine Smith (now a
member of our board of directors (but not at the time)), and certain other
investors that participated in the Company’s previous private placements. The
Shivji Family Trust, Cojack Investment Opportunities and Ms. Smith purchased
111,110, 30,000 and 222,220 units, respectively (for an aggregate purchase price
of $249,998, $67,500 and $499,995, respectively. The Shivji Family Trust, Cojack
Investment Opportunities and Ms. Smith each participated in the private
placement on substantially the same terms as the other purchasers.
 
 Net
proceeds received from the private placement were used for research and
development, sales and marketing, an investor relations program and repayment of
debt and for working capital and other general corporate purposes.
 
 The
private placement was made solely to “accredited investors,” as defined in
Regulation D under the Securities Act, or “qualified institutional buyers”
as defined in Rule 144A(a) under the Securities Act. The units and the common
stock sold in the private placement were not registered under the Securities
Act, or the securities laws of any state, and were offered and sold in reliance
on the exemption from registration afforded by Section 4(2) and Regulation D
(Rule 506) under the Securities Act and corresponding provisions of state
securities laws, which exempt transactions by an issuer not involving any public
offering.
 
  Compensation
Arrangements
  See Item
11, “Executive Compensation,”  above for information about employment
agreements and other compensation arrangements between the Company and its
executive officers and directors.
 
 Director
Independence
 
 We are
not currently listed on any national securities exchange that has a requirement
that the Board of Directors be independent. However, in evaluating the
independence of its members and the composition of the committees of the Board
of Directors, the Board utilizes the definition of “independence” as that term
is defined by SEC rules.
 
 Our Board
of Directors believes that Messrs. Kaneshiro, Kanter, Dr. Hautamaki, and
Smith qualify as “independent” directors, as that term is defined by SEC
rules.
   14
  
 Item
      14.
              Principal
      Accountant Fees and Services
  Set
forth below is a summary of aggregate fees billed by Rowbotham & Company LLP
for services performed during the fiscal years ended December 31, 2008 and
2007.
  2008
                                      
                                      2007Audit
      fees
                                      
                                      $
                                      98,194
                                      
                                      
                                      $
                                      162,068Audit
      related fees
                                      
                                      
                                      39,271
                                      
                                      
                                      
                                      54,110Tax
      fees
                                      
                                      
                                      24,586
                                      
                                      
                                      
                                      15,711All
      other fees
                                      
                                      
                                      —
                                      
                                      
                                      
                                      —Total
      Fees
                                      
                                      $
                                      162,051
                                      
                                      
                                      $
                                      231,889
 
 Audit
Fees
  Audit
fees consist of fees and reimbursement of expenses for professional services
provided in connection with the audit of the Company’s financial statements and
review of the Company’s quarterly financial statements.
  Audit
Related Fees
  Audit
related fees consist of accounting consultation and services provided in
connection with other statutory or regulatory filings that are not included
under audit fees.
  Tax
Fees
  Tax fees
consist of fees and reimbursement of expenses for professional services provided
in connection with the preparation of the Company’s federal and state tax
returns.
  Pre-Approval
Policies and Procedures
  Our Audit
Committee pre-approves all services to be provided by Rowbotham & Company
LLP.
  
 
 
   
 
  15
  PART
IV
  Item
15.                                Exhibits,
Financial Statement Schedules
  See Form 10-K, as
originally filed.
  Exhibits
 
 The
following Exhibits are being filed with this Annual Report on Form
10-K/A.
  In
reviewing the agreements included as exhibits to this Form 10-K/A, please
remember that they are included to provide you with information regarding their
terms and are not intended to provide any other factual or disclosure
information about the Company or the other parties to the agreements. The
agreements may contain representations and warranties by each of the parties to
the applicable agreement. These representations and warranties have been made
solely for the benefit of the parties to the applicable agreement
and:
  ·
                should
      not in all instances be treated as categorical statements of fact, but
      rather as a way of allocating the risk to one of the parties if those
      statements prove to be inaccurate;
  ·
                have
      been qualified by disclosures that were made to the other party in
      connection with the negotiation of the applicable agreement, which
      disclosures are not necessarily reflected in the
  agreement;
  ·
                may
      apply standards of materiality in a way that is different from what may be
      viewed as material to you or other investors;
  and
  ·
                were
      made only as of the date of the applicable agreement or such other date or
      dates as may be specified in the agreement and are subject to more recent
      developments.
  Accordingly,
these representations and warranties may not describe the actual state of
affairs as of the date they were made or at any other time. Additional
information about the Company may be found elsewhere in this Form 10-K and the
Company’s other public filings, which are available without charge through the
SEC’s website at http://www.sec.gov.
See “Available Information.”
   Exhibit
      No.
                  Description2.1(4)
                  Agreement
      and Plan of Merger and Reorganization, dated as of May 31, 2007, by and
      among WBSI, WaferGen Acquisition Corp., and WaferGen, Inc.2.2(4)
                  Certificate
      of Merger and Reorganization, dated as of May 31, 2007, by and among WBSI,
      WaferGen Acquisition Corp., and WaferGen, Inc.3.1(1)
                  Certificate
      of Incorporation of WBSI3.2(3)
                  Certificate
      of Amendment to the Certificate of Incorporation of WBSI,
      dated January 31, 20073.3(2)
                  Bylaws
      of WBSI4.1(4)
                  Lockup
      Agreement dated January 14, 2008, among WGBS, Rodman & Renshaw LLC and
      R&R Biotech Partners LLC10.1(5)†
                  WaferGen
      Bio-systems, Inc. 2007 Stock Option Plan10.2(5)†
                  Note
      and Warrant Purchase Agreement between WaferGen, Inc. and Alnoor Shivji,
      dated as of January 30, 200710.3(5)†
                  Form
      of 7% Promissory Notes, in the aggregate principal amount of $262,000,
      issued pursuant to the Note and Warrant Purchase Agreement, dated January
      30, 200710.4(5)†
                  Form
      of Warrants, made as of January 30, 2007, to purchase up to an aggregate
      of 86,182 shares of WBSI’s Series B Preferred Stock
  16
  
 10.5(5)†
                  Amendment,
      dated February 28, 2007, to Note and Warrant Purchase Agreement, dated
      January 30, 200710.6(5)†
                  7%
      Promissory Note, dated February 28, 2007, in the aggregate principal
      amount of $138,000, issued pursuant to the Note and Warrant Purchase
      Agreement, dated January 30, 2007, as amended10.7(5)†
                  Warrant,
      made as of February 28, 2007, to purchase up to 45,395 shares of WBSI’s
      Series B Preferred Stock, issued pursuant to the Note and Warrant Purchase
      Agreement, dated January 30, 2007, as amended10.8(5)†
                  Second
      Amendment, dated March 30, 2007, to Note and Warrant Purchase Agreement,
      dated January 30, 200710.9(5)†
                  7%
      Promissory Note, dated March 30, 2007, in the aggregate principal amount
      of $250,000, issued pursuant to the Note and Warrant Purchase Agreement,
      dated January 30, 2007, as amended10.10(5)†
                  Warrant,
      made as of March 30, 2007, to purchase up to 82,237 shares of WBSI’s
      Series B Preferred Stock, issued pursuant to the Note and Warrant Purchase
      Agreement, dated January 30, 2007, as amended10.11(5)†
                  Form
      of Allonge to Promissory Notes, dated as of March 31, 200710.12(5)†
                  Third
      Amendment, dated May 14, 2007, to Note and Warrant Purchase Agreement,
      dated January 30, 200710.13(5)†
                  7%
      Promissory Note, dated May 14 , 2007, in the aggregate principal amount of
      $100,000, issued pursuant to the Note and Warrant Purchase Agreement,
      dated January 30, 2007, as amended10.14(5)†
                  Form
      of Second Allonge to Promissory Notes, dated as of May 14,
      200710.15
                  [Reserved]10.16
                  [Reserved]10.17(5)
                  Placement
      Agency Agreement dated April 12, 2007, between WaferGen, Inc. and Rodman
      & Renshaw, LLC10.18(5)
                  Form
      of Lockup Agreement10.19(5)
                  Form
      of Subscription Agreement10.20(5)
                  Form
      of Registration Rights Agreement10.21(5)
                  Form
      of Warrants issued to investors in a private placement, the initial
      closing of which was held on May 31, 200710.22(5)
                  Form
      of Warrant issued to Placement Agent in connection with a private
      placement, the initial closing of which was held on May 31,
      200710.23(5)
                  Escrow
      Agreement, dated as of May 31, 2007, by and among WBSI, Alnoor Shivji and
      Gottbetter & Partners, LLP, as Escrow Agent10.24(5)
                  Split-Off
      Agreement, dated as of May 31, 2007, by and among WBSI, WaferGen, Inc., La
      Burbuja Leaseco, Inc. and Maria Maribel Jaramillo de La O10.25(5)
                  General
      Release Agreement, dated as of May 31, 2007, by and among WBSI, WaferGen,
      Inc., La Burbuja Leaseco, Inc. and Maria Maribel Jaramillo de La
      O10.26(5)†
                  Employment
      Agreement dated May 31, 2007, between WBSI and Alnoor Shivji10.27(5)†
                  Employment
      Agreement dated May 31, 2007, between WBSI and Amjad Huda
  17
  
 10.28(5)†
                  Employment
      Agreement dated May 31, 2007, between WBSI and Victor Joseph10.29(6)
                  Mutual
      Separation Agreement, dated February 26, 2008, between the Company and
      Terry Osborn10.30(6)
                  Code
      of Business Conduct and Ethics10.31(7)
                  Securities
      Purchase Agreement, dated May 19, 2008, by and among WaferGen Bio-systems,
      Inc. and the purchasers identified on the signature pages
      thereto10.32(8)
                  Form
      of Common Stock Purchase Warrant10.33(9)†
                  WaferGen
      Bio-Systems, Inc. 2008 Stock Incentive Plan10.34
                  [Reserved]10.35*†
                  Form
      of Non-Qualified Stock Option award under 2008 Stock Incentive
      Plan10.36(10)
                  Share
      Subscription Agreement and Shareholders’ Agreement dated May 8, 2008, by
      and among Holders defined therein and WaferGen Biosystems (M) Sdn.
      Bhd.10.37(11)
                  Put
      Agreement dated May 28, 2008, by and among WaferGen Bio-systems, Inc.,
      Malaysian Technology Development Corporation Sdn. Bhd., and WaferGen
      Biosystems (M) Sdn. Bhd.10.38(12)
                  Put
      Agreement dated May 28, 2008, by and among Alnoor Shivji, WaferGen
      Bio-systems, Inc., Malaysian Technology Development Corporation Sdn. Bhd.,
      and WaferGen Biosystems (M) Sdn. Bhd.10.39*†
                  Letter
      Agreement dated January 16, 2009, by and between WBSI and Alnoor
      Shivji10.40*†
                  Letter
      Agreement dated January 16, 2009, by and between WBSI and Amjad
      Huda10.41*†
                  Letter
      Agreement dated January 16, 2009, by and between WBSI and Victor
      Joseph10.42*
                  Form
      of WBSI Distribution Agreement21.1*
                  Subsidiaries
      of the Registrant23.1*
                  Letter
      of Consent from Independent Registered Public Accounting Firm, Rowbotham
      & Company, LLP31.1*
                  Rule
      13a-14(a)/15d-14(a) Certification of Chief Executive Officer31.2*
                  Rule
      13a-14(a)/15d-14(a) Certification of Chief Financial Officer31.3**
                  Rule
      13a-14(a)/15d-14(a) Certification of Chief Executive Officer31.4**
                  Rule
      13a-14(a)/15d-14(a) Certification of Chief Financial Officer32.1*
                  Section
      1350 Certification of Chief Executive Officer  (This certification is being
      furnished and shall not be deemed “filed” with the SEC for purposes of
      Section 18 of the Exchange Act, or otherwise subject to the liability
      of that section, and shall not be deemed to be incorporated by reference
      into any filing under the Securities Act or the Exchange Act, except to
      the extent that the Registrant specifically incorporates it by
      reference.)32.2*
                  Section
      1350 Certification of Chief Financial Officer  (This certification is being
      furnished and shall not be deemed “filed” with the SEC for purposes of
      Section 18 of the Exchange Act, or otherwise subject to the liability
      of that section, and shall not be deemed to be incorporated by reference
      into any filing under the Securities Act or the Exchange Act, except to
      the extent that the Registrant specifically incorporates it by
      reference.)
  18
  
 
 (1)
              Incorporated
      herein by reference to Exhibit 3.1 to the Company’s Registration Statement
      on Form SB-2 filed with the Commission on August 9,
  2006.(2)
              Incorporated
      herein by reference to Exhibit 3.2 to the Company’s Registration Statement
      on Form SB-2 filed with the Commission on August 9,
      2006.(3)
              Incorporated
      herein by reference to Exhibit 3.1 to the Company’s current Report on Form
      8-K filed with the Commission February 1, 2007.(4)
              Incorporated
      herein by reference to Exhibit 4.1 to Amendment No. 2 to the Company's
      Registration Statement on Form SB-2 filed with the Commission on January
      16, 2008(5)
              Incorporated
      herein by reference to identically numbered Exhibit to the Company’s
      current Report on Form 8-K filed with the Commission on June 5,
      2007
 
 (6)
              Incorporated
      herein by reference to the identically numbered Exhibit to the Company’s
      Annual Report on Form 10-K filed with the Commission on March 31,
      2008.
 
 (7)
              Incorporated
      herein by reference as Exhibit 10.1 to the Company’s Current Report on
      Form 8-K filed with the Commission on May 21,
  2008.
 
 (8)
              Incorporated
      herein by reference as Exhibit 10.2 to the Company’s Current Report on
      Form 8-K filed with the Commission on May 21,
  2008.
 
 (9)
              Incorporated
      herein by reference as Exhibit 10.1 to the Company’s Current Report on
      Form 8-K filed with the Commission on July 3,
  2008.
 
 (10)
              Incorporated
      herein by reference as Exhibit 10.1 to the Company’s Quarterly Report on
      Form 10-Q field with the Commission on November 14,
  2008.
 
 (11)
              Incorporated
      herein by reference as Exhibit 10.2 to the Company’s Quarterly Report on
      Form 10-Q filed with the Commission on November 14,
  2008.
 
 (12)
              Incorporated
      herein by reference as Exhibit 10.3 to the Company’s Quarterly Report on
      Form 10-Q filed with the Commission on November 14,
  2008.
 
 *
              Filed/furnished with the Original
      Report.**
              Filed/furnished
      herewith.
 
 †
              Indicates
      a management contract or compensatory plan or
  arrangement.
 
    19
  SIGNATURES
  Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this Amendment No. 1 to Annual
Report on Form 10-K/A to be signed on its behalf by the undersigned, thereunto
duly authorized.
 
  WAFERGEN
      BIO-SYSTEMS, INC.By:
              /s/  Alnoor
      ShivjiDate:
      April 30, 2009
              
              Alnoor
      ShivjiChairman,
      President and Chief Executive Officer
   20
   
 EXHIBIT
INDEX
 
 Exhibit
      No.
              Description31.3
              Rule
      13a-14(a)/15d-14(a) Certification of Chief Executive Officer31.4
              Rule
      13a-14(a)/15d-14(a) Certification of Chief Financial Officer