Unassociated Document


 




Dated:  January 12, 2012


 





	
To:

	
WaferGen Bio-systems, Inc.








	
  

	
7400 Paseo Padre Parkway








	
  

	
Fremont, CA  94555







 


Ladies and Gentlemen:


 


Reference is made to that certain Purchase Agreement (the “Purchase Agreement”), dated as of May 25, 2011, by and among WaferGen Bio-systems, Inc. (the “Company”) and the investors who have executed the signature page(s) thereto (collectively, the “Investors”) and that certain Release Agreement (the “Release Agreement”), by and among the Company and the Investors.  Capitalized terms used but not defined in this letter shall have the respective meanings ascribed to them in the Purchase Agreement.


 


The Company and the Investors hereby agree as follows:







1.           Designated Board Seat.  In addition to the rights relating to a designated seat on the Company’s Board of Directors set forth in Section 4.4 of the Purchase Agreement, the Company shall use reasonable best efforts to ensure that (i) one (1) additional individual, as may be designated by Great Point Partners, LLC (“Great Point”) from time to time in a writing delivered to the Company, is elected as a member of the Board of Directors of the Company, such that a total of two (2) individuals may be designated for service on the Board of Directors by Great Point (collectively, the “Great Point Designees”)), (ii) no such director designated and elected pursuant to clause (i) of this sentence be removed from office unless such removal is directed or approved in writing by Great Point, and (iii) any vacancy created by the resignation, removal or death of any such director designated and elected pursuant to clause (i) of this sentence be filled pursuant to clause (i) of this sentence.







2.           Finance Committee.  On the date hereof, the Board of Directors of the Company shall approve of the following: (i) the appointment of Scott Davidson and Joe Pesce to the Board of Directors of the Company, as the two Great Point Designees, (ii) the formation of a Finance Committee consisting of Bob Coradini, Scott Davidson, Joel Kanter and Joe Pesce, and (iii) the adoption of a charter of the Finance Committee in the form attached hereto as Exhibit A.







3.           Director and Officer Insurance.  So long as any Great Point Designee is serving on the Board, the Company shall maintain coverage under its current director and officer liability insurance policy (or another policy with at least substantially comparable coverage as such current policy), unless otherwise approved by the majority of the Board, including at least one of the Great Point Designees.  So long as any Great Point Designee is serving on the Board, the Company shall ensure that any Great Point Designees are covered by such policy.









  





  











  




 




4.           Miscellaneous.  In connection with the delivery of this letter, the Investors will deliver to the Company a release of certain claims in form and substance acceptable to the Company.  The parties hereto agree that in case, at any time after the date hereof, any further action is necessary or desirable to carry out the purposes and intent of this letter, the parties will take such further action as any party or parties may reasonably request.  This letter may be executed in one or more counterparts, and by different parties hereto on separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Any signature page of any such counterpart, or any electronic facsimile thereof, may be attached or appended to any other counterpart to complete a fully executed counterpart of this letter, and any telecopy or other facsimile transmission of any signature shall be deemed an original.







Please confirm your agreement with the foregoing by signing and returning to Great Point Partners, LLC the duplicate copy of this letter agreement enclosed herewith.


 




	 	

Very truly yours,

	 
	 	 	 
	 	

INVESTORS:

	 
	 	 	 
	 	 	 
	 	

GREAT POINT PARTNERS, LLC

	 
	 	 	 	 	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Jeffrey R. Jay	 
	 	 	Name: 	Jeffrey R. Jay	 
	 	 	Title: 	 	 
	 	 	 	 	 







 




  





2











  







 




	 	



BIOMEDICAL VALUE FUND, L.P.



	 
	 	

By: Great Point Partners, LLC, its investment manager

	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Jeffrey R. Jay	 
	 	 	Name: 	Jeffrey R. Jay	 
	 	 	Title: 	Managing Director	 
	 	 	 	 	 








 




	 	





BIOMEDICAL INSTITUTIONAL VALUE FUND, L.P.





	 
	 	



By: Great Point Partners, LLC, its investment manager



	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Jeffrey R. Jay	 
	 	 	Name: 	Jeffrey R. Jay	 
	 	 	Title: 	Managing Director	 
	 	 	 	 	 








 




	 	







BIOMEDICAL OFFSHORE VALUE FUND, LTD.







	 
	 	





By: Great Point Partners, LLC, its investment manager





	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Jeffrey R. Jay	 
	 	 	Name: 	Jeffrey R. Jay	 
	 	 	Title: 	Managing Director	 
	 	 	 	 	 








 




	 	









WS INVESTMENTS III, LLC









	 
	 	







By: Great Point Partners, LLC, its investment manager







	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Jeffrey R. Jay	 
	 	 	Name: 	Jeffrey R. Jay	 
	 	 	Title: 	Managing Director	 
	 	 	 	 	 








 




	 	











DAVID J. MORRISON











	 
	 	









By: Great Point Partners, LLC, its investment manager









	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Jeffrey R. Jay	 
	 	 	Name: 	Jeffrey R. Jay	 
	 	 	Title: 	Managing Director	 
	 	 	 	 	 









 




	 	













CLASS D SERIES OF GEF-PS, L.P.













	 
	 	











By: Great Point Partners, LLC, its investment manager











	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Jeffrey R. Jay	 
	 	 	Name: 	Jeffrey R. Jay	 
	 	 	Title: 	Managing Director	 
	 	 	 	 	 



 






  





3











  








 




	 	















LYRICAL MULTI-MANAGER FUND, L.P.















	 
	 	













By: Great Point Partners, LLC, its investment manager













	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Jeffrey R. Jay	 
	 	 	Name: 	Jeffrey R. Jay	 
	 	 	Title: 	Managing Director	 
	 	 	 	 	 



 



	 	

















JEFFREY R. JAY, TRUSTEE FOR THE BENEFIT OF THOMAS C. JAY QPERT

















	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Jeffrey R. Jay	 
	 	 	Name: 	Jeffrey R. Jay	 
	 	 	Title: 	 	 
	 	 	 	 	 



 



	 	



















JEFFREY R. JAY, TRUSTEE FOR THE BENEFIT OF CAROLYN JAY TRUST



















	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Kevin Penn	 
	 	 	Name: 	Kevin Penn	 
	 	 	Title: 	 	 
	 	 	 	 	 



 



	 	



















JEFFREY R. JAY, TRUSTEE FOR THE BENEFIT OF JR JAY JR TRUST



















	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Kevin Penn	 
	 	 	Name: 	Kevin Penn	 
	 	 	Title: 	 	 
	 	 	 	 	 



 

	 	



















JEFFREY R. JAY



















	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Jeffrey R. Jay	 
	 	 	 	 	 



 




  





4











  








 




	 	

DEERFIELD SPECIAL SITUATION FUND, L.P.

	 
	 	By: 	Deerfield Capital, L.P.	 
	 	 	

General Partner

	 
	 	 	

By: 

	J.E. Flynn Capital, LLC	 
	 	 	 	

General Partner

	 
	 	 	 	 	 
	
 

	 	 	
By: 

	 	/s/ David Clark	 
	 	 	 	 	Name: 	David Clark	 
	 	 	 	 	Title: 	Authorized Signatory	 
	 	 	 	 	 	 	 



 



	 	





















DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL LIMITED





















	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ David Clark	 
	 	 	Name: 	David Clark	 
	 	 	Title: 	Authorized Signatory	 
	 	 	 	 	 



 




	 	



DEERFIELD PRIVATE DESIGN FUND II, L.P.



	 
	 	By: 	Deerfield Capital, L.P.	 
	 	 	

General Partner

	 
	 	 	

By: 

	J.E. Flynn Capital, LLC	 
	 	 	 	

General Partner

	 
	 	 	 	 	 
	
 

	 	 	
By: 

	 	/s/ David Clark	 
	 	 	 	 	Name: 	David Clark	 
	 	 	 	 	Title: 	Authorized Signatory	 
	 	 	 	 	 	 	 




 



	 	





DEERFIELD PRIVATE DESIGN INTERNATIONAL II, L.P.





	 
	 	By: 	Deerfield Capital, L.P.	 
	 	 	

General Partner

	 
	 	 	

By: 

	J.E. Flynn Capital, LLC	 
	 	 	 	

General Partner

	 
	 	 	 	 	 
	
 

	 	 	
By: 

	 	/s/ David Clark	 
	 	 	 	 	Name: 	David Clark	 
	 	 	 	 	Title: 	Authorized Signatory	 
	 	 	 	 	 	 	 



 




  





5











  









































 



	 	























PAUL SCHIMMEL ROLLOVER IRA























	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Paul Schimmel	 
	 	 	Name: 	 	 
	 	 	Title: 	 	 
	 	 	 	 	 



 



	 	MERLIN NEXUS III, LP	 
	 	

By: 

	Merlin Nexus III, LLC (Its General Partner)	 
	 	 	 	 	 	 
	
 

	 	
By: 

	 	/s/ Alberto Bianchinotti	 
	 	 	 	Name: 	Alberto Bianchinotti	 
	 	 	 	Title: 	CFO	 
	 	 	 	 	 	 



 




  





6











  











 



	 	

























THE SHIVJI FAMILY TRUST DATED JUNE 12, 2000

























	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Alnoor Shivji	 
	 	 	Name: 	Alnoor Shivji	 
	 	 	Title: 	Trustee	 
	 	 	 	 	 



 




  





7











  











 



	 	



























CIBC TRUST COMPANY (BAHAMAS) LIMITED AS TRUSTEE



























	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Helen M. Carroll   /s/ Linda G. Williams	 
	 	 	Name: 	Helen M. Carroll & Linda G. Williams	 
	 	 	Title: 	Authorised Signatories	 
	 	 	 	 	 




 



	 	



























KANTER FAMILY FOUNDATION



























	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Joel Kanter	 
	 	 	Name: 	Joel Kanter	 
	 	 	Title: 	President	 
	 	 	 	 	 




 



	 	



























JOEL KANTER



























	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Joel Kanter	 
	 	 	 	 	 






















  





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ROBERT CORADINI





























	 
	 	 	 	 	 
	
 

	
By: 

	 	/s/ Robert Coradini	 
	 	 	 	 	 














  





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Accepted and agreed:



	 	 
	 	 	 
	

WaferGen Bio-systems, Inc.

	 	 
	 	 	 
	 	 	 
	
By: 

	 	/s/ Donald Huffman	 	 
	 	Name: 	Donald Huffman	 	 
	 	Title: 	Office of the President and	 	 
	 	 	Chief Financial Officer	 	 





 




  





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