ex10_2.htm


    
      

      

    

     

    EXHIBIT
      10.2

    WAFERGEN
      BIO-SYSTEMS, INC.

     

    PUT
      AGREEMENT

     

        THIS
      PUT
      AGREEMENT (this “Agreement”)
      is entered into as of May 28, 2008, by

    and
      among
      WaferGen Bio-systems, Inc., a Nevada corporation (“WaferGen
      US”), and the

    purchasers
      (the “WaferGen
      Malaysian Investors” or “Holders”)
      of the Series A Redeemable

    Convertible
      Preference Shares in WaferGen Biosystems (M) Sdn. Bhd. (formerly known
      as

    Global
      Dupleks Sdn. Bhd.), a Malaysian corporation (the “Company”)
      (“Series
      A Shares”)

    pursuant
      to that certain Share Subscription and Shareholders Agreement dated as of the
      date

    hereof
      among WaferGen US, the WaferGen Malaysian Investors and the Company
      (the

    “Purchase
      Agreement”). Any term not defined herein shall have the meaning ascribed
      to such

    term
      in
      the Purchase Agreement.

     

    RECITALS

        

        A.    WHEREAS,
      the
      WaferGen Malaysian Investors have entered into the Purchase

    Agreement
      for the purchase of and subscription for certain Series A Shares of the
      Company.

        

        B.    WHEREAS,
      in
      order to induce the WaferGen Malaysian Investors to enter into

    the
      Purchase Agreement, WaferGen US has agreed to grant to each WaferGen
      Malaysian

    Investor
      an option to put (the “Put
      Right”) to WaferGen US the Series A Shares held by such

    WaferGen
      Malaysian Investor, whereby the Series A Shares held by such WaferGen
      Malaysian

    Investor
      will be exchanged for shares of Common Stock of WaferGen US on the terms set
      forth

    below.

        

        C.    WHEREAS,
      certain capitalized terms used in this Agreement are defined in

    Section
      2.12 hereof.

     

        NOW,
      THEREFORE, in consideration of the mutual promises,
      representations,

    warranties,
      covenants and conditions set forth in this Agreement, the parties mutually
      agree
      as

    follows:

     

    AGREEMENT

     

    SECTION
      1

    PUT
      RIGHT

     

        1.1    Put
      Right.
      Upon receipt by WaferGen US of a written request from a Holder of

    Holder’s
      desire to exercise the Holder’s Put Right (a “Holder’s
      Put Notice”), then all, but not

    less
      than
      all, of such Holder’s Series A Shares shall be exchanged as described in Section
      1.2

    below
      (the “Exchange”).
      For the avoidance of doubt, each Holder shall have the right to

    exercise
      such Put Right individually. After delivery of such Holder’s Put Notice, the
      Holder

    shall
      deliver all of such Holder’s share certificates and duly executed share transfer
      forms with

    respect
      to such Series A Shares to the Secretary of WaferGen US (or to his/her order)
      as

    promptly
      as practicable (but in no event more than 30 days after the date thereof) and
      take any

    other
      actions reasonably required to effectuate the transfer of all such Holder’s
      Series A Shares

    to
      WaferGen US. WaferGen US may nominate its nominee(s) to accept the transfer
      of
      the Series

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    A
      Shares.
      WaferGen US shall be required to comply with the requirements of this
      paragraph

    until
      the
      fifth anniversary of the date of this Agreement, but may in its sole discretion
      comply

    with
      provisions of this paragraph after such date.

     

        1.2    The
      Exchange;
      No Fractional Shares. Upon the occurrence of an Exchange, each

    of
      the
      Holder’s Series A Shares subject to such Holder’s Put Notice shall be converted
      into the

    right
      to
      receive that number of Exchange Securities equal to the U.S. dollar equivalent
      of the

    original
      purchase or subscription price per share paid for each such Holder’s Series A
      Share

    (with
      such conversion to U.S. dollars being calculated as of the date of purchase)
      pursuant to the

    Purchase
      Agreement, divided by the Exchange Price1 (in each case as adjusted
      for
      stock splits,

    recapitalization,
      combinations and similar transactions). All Exchange Securities shall
      be

    aggregated
      and issued to such Holder, except that no fractional shares of Exchange
      Securities

    shall
      be
      issued upon the occurrence of an Exchange. If, after the aforementioned
      aggregation,

    the
      conversion would result in the issuance of any fractional share, WaferGen US
      shall, in lieu of

    issuing
      any fractional share, pay cash equal to the product of such fraction multiplied
      by the per

    share
      fair market value of the Exchange Securities (as determined in good faith by
      the
      Board of

    Directors
      of WaferGen US). Subject to the delivery by the Holder of its share certificates
      and

    other
      documents to WaferGen US as required hereby, upon the occurrence of the
      Exchange,

    WaferGen
      US shall as soon as practicable (but in no event more than 30 days after the
      date of the

    Exchange)
      issue to such Holder share certificates representing the Exchange
      Securities.

     

        1.3    Rights
      After
      Exchange. From and after the applicable Exchange, all rights of the

    Holder
      with respect to the exchanged Holder’s Series A Shares shall cease with respect
      to such

    shares
      (except the right to receive the Exchange Securities, and any cash payment
      for
      fractional

    shares,
      without interest upon surrender of their certificate or certificates), and
      such
      shares shall

    be
      owned
      legally and beneficially by WaferGen US for all purposes and will be transferred
      to

    WaferGen
      US on the books and records of the Company.

     

        1.4    Rights
      After
      Conversion. If at any time any or all of Holder’s Series A Shares
      are

    converted
      into Ordinary Shares of the Company for any reason, such Holder’s Put
      Right

    pursuant
      to this Agreement with respect to all of such Holder’s Series A Shares shall
      terminate

    and
      expire in its entirety upon such conversion, and such Holder shall have not
      have
      any Put

    Right
      with respect to any Ordinary Shares held by such Holder.

     

    SECTION
      2

    MISCELLANEOUS

     

        2.1    Governing
      Law. This Agreement and all acts and transactions pursuant hereto

    and
      the
      rights and obligations of the parties hereto shall be governed, construed and
      interpreted

    in
      accordance with the laws of the State of California in the United States of
      America, without

    giving
      effect to the choice of law provisions thereof.

     

        2.2    Arbitration.
      The parties agree that any and all disputes, claims or
      controversies

    arising
      out of or relating to this Agreement that are not resolved by their mutual
      agreement shall

    be
      submitted to final and binding arbitration in San Francisco, California before
      JAMS, or its

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    successor,
      pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq. Any
      party
      may

    commence
      the arbitration process called for in this Agreement by filing a written demand
      for

    arbitration
      with JAMS, with a copy to the other party. The arbitration will be conducted
      in

    accordance
      with the provisions of JAMS’ Streamlined Arbitration Rules and Procedures in
      effect

    at
      the
      time of filing of the demand for arbitration. The parties will cooperate with
      JAMS and

    with
      one
      another in selecting an arbitrator from JAMS’ panel of neutrals, and in
      scheduling the

    arbitration
      proceedings. The parties covenant that they will participate in the arbitration
      in good

    faith,
      and that they will share equally in its costs. The provisions of this Section
      2.2 may be

    enforced
      by any court of competent jurisdiction, and the party seeking enforcement shall
      be

    entitled
      to an award of all costs, fees and expenses, including attorneys fees, to be
      paid by the

    party
      against whom enforcement is ordered.

     

        2.3    Assignment
      of
      Put Right. The Put Right granted in this Agreement may only be

    assigned
      by a Holder in connection with a permitted transfer of Series A Shares by the
      Holder in

    accordance
      with Clause 10 of the Purchase Agreement.

     

        2.4    Successors
      and Assigns. Except as otherwise provided herein, the terms and

    conditions
      of this Agreement shall inure to the benefit of and be binding upon the
      respective

    successors
      and assigns of the parties (including permitted transferees of any Series A
      Shares).

    Nothing
      in this Agreement, express or implied, is intended to confer upon any party
      other than

    the
      parties hereto or their respective successors and assigns any rights, remedies,
      obligations, or

    liabilities
      under or by reason of this Agreement, except as expressly provided in this
      Agreement.

     

        2.5    Severability.
      In case any provision of this Agreement shall be invalid, illegal,
      or

    unenforceable,
      the validity, legality, and enforceability of the remaining provisions shall
      not
      in

    any
      way
      be affected or impaired thereby.

     

        2.6    Amendment
      and
      Waiver. Except as otherwise expressly provided, the obligations

    of
      WaferGen US and the rights of the Holders under this Agreement may be amended,
      modified

    or
      waived
      only with the written consent of WaferGen US and Holders holding at least a
      majority

    of
      all
      Series A Shares then held by all Holders (excluding for purposes of this
      calculation any

    Series
      A
      Shares held by WaferGen US or its nominee(s)).

     

        2.7    Delays
      or
      Omissions. It is agreed that no delay or omission to exercise any
      right,

    power,
      or
      remedy accruing to any Holder, upon any breach, default or noncompliance
      of

    WaferGen
      US under this Agreement, shall impair any such right, power, or remedy, nor
      shall it

    be
      construed to be a waiver of any such breach, default or noncompliance, or any
      acquiescence

    therein,
      or of any similar breach, default or noncompliance thereafter occurring. It
      is
      further

    agreed
      that any waiver, permit, consent, or approval of any kind or character on any
      Holder’s

    part
      of
      any breach, default or noncompliance under the Agreement or any waiver on
      such

    Holder’s
      part of any provisions or conditions of this Agreement must be in writing and
      shall be

    effective
      only to the extent specifically set forth in such writing. All remedies, either
      under this

    Agreement,
      by law, or otherwise afforded to Holders, shall be cumulative and not
      alternative.

     

        2.8    Notices.
      All
      notices required or permitted hereunder shall be in writing and
      shall

    be
      deemed
      effectively given: (i) upon personal delivery to the party to be notified,
      (ii)
      when sent

    by
      confirmed telex or facsimile if sent during normal business hours of the
      recipient; if not, then

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    on
      the
      next business day, (iii) five (5) days after having been sent by registered
      or
      certified mail,

    return
      receipt requested, postage prepaid, or (iv) one (1) day after deposit with
      a
      United States

    recognized
      overnight courier, specifying next-day delivery, with written verification
      of
      receipt.

    All
      communications shall be sent to the party to be notified at the address as
      set
      forth on the

    signature
      pages hereof or at the current address of the Holder on the books and records
      of
      the

    Company
      or at such other address as such party may designate by ten (10) days’ advance
      written

    notice
      to
      the other parties hereto. All notices sent to the Company or WaferGen US shall
      also be

    sent
      to:
      Morrison & Foerster LLP, 425 Market Street, San Francisco, CA 94105,
      Attention:

    John
      M.
      Rafferty (Telecopier: (415) 268-7305).

     

        2.9    Attorneys’
      Fees. In the event that any dispute among the parties to this

    Agreement
      should result in litigation, the prevailing party in such dispute shall be
      entitled to

    recover
      from the losing party all fees, costs and expenses of enforcing any right of
      such

    prevailing
      party under or with respect to this Agreement, including without limitation,
      such

    reasonable
      fees and expenses of attorneys and accountants, which shall include,
      without

    limitation,
      all fees, costs and expenses of appeals.

     

        2.10    Titles
      and
      Subtitles. The titles of the sections and subsections of this
      Agreement

    are
      for
      convenience of reference only and are not to be considered in construing this
      Agreement.

     

        2.11    Counterparts.
      This Agreement may be executed in any number of counterparts,

    each
      of
      which shall be an original, but all of which together shall constitute one
      instrument.

     

        2.12    Definitions.
      For purposes of this Agreement, the terms below shall have the

    definitions
      ascribed to them below:

     

            2.12.1    “Common
      Stock” means the common stock, par value $0.001 per share,

                   of
      WaferGen
      US.

     

            2.12.2    The
“Exchange
      Price” shall be equal to USD $2.25 per share.

     

            2.12.3    “Exchange
      Securities” shall mean shares of Common Stock of WaferGen

                 US.

     

            2.12.4

     

        2.13    Certain
      Restrictions. Each Holder understands that any shares of Common
      Stock

    of
      WaferGen US to be received in an Exchange may be characterized as “restricted
      securities”

    under
      the
      federal securities laws inasmuch as they would be acquired from WaferGen US
      in
      a

    transaction
      not involving a public offering and that under such laws and applicable
      regulations,

    such
      securities may be resold without registration under the Securities Act of 1933,
      as amended

    (the
      “Act”), only in certain limited circumstances. In this regard, the Holder
      represents that it is

    familiar
      with Rule 144 under the Act, as presently in effect, and understands the
      resale

    limitations
      imposed thereby and by the Act. The Holder understands that any shares of
      Common

    Stock
      of
      WaferGen US received in an Exchange have not been and will not be registered
      under

    the
      Act
      and have not been and will not be registered or qualified in any state in which
      they are

    offered,
      and thus the Holder will not be able to resell or otherwise transfer any such
      shares of

    Common
      Stock unless they are registered under the Act and registered or qualified
      under

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    applicable
      state securities laws, or an exemption from such registration or qualification
      is

    available.

     

        2.14    Transfer
      Taxes. All excise, transfer, stamp, documentary, filing, recordation
      and

    other
      similar taxes which may be imposed or assessed as the result of any Exchange,
      together

    with
      any
      interest, additions or penalties with respect thereto and any interest in
      respect of such

    additions
      or penalties, shall be borne equally by WaferGen US and the Holder
      consummating

    such
      Exchange.

     

     

     

     

    
      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

    

    


    
 

    
      
        IN
          WITNESS WHEREOF, the
          parties hereto have executed this PUT OPTION AGREEMENT as of the
          date set forth in the first paragraph hereof.

        


        


        WAFERGEN
          US:

        


        WAFERGEN
          BIO-SYSTEMS, INC.

        


        


        
          	 	
                   By:
                    /s/ Alnoor
                    Shivji

                	 	 
	 	
                   Alnoor
                    Shivji

                	 	 
	 	
                   Chairman,
                    President & Chief Executive Officer

                	 	 


        

        


        Address:

        WaferGen
          Bio-systems, Inc.

        Bayside
          Technology Center

        46531
          Fremont Blvd.

        Fremont,
          CA 94538, USA

        Facsimile:
          510 651 4599

        


        


        WAFERGEN
          MALAYSIAN INVESTOR:

        


        MALAYSIAN
          TECHNOLOGY DEVELOPMENT CORPORATION SDN BHD

        


        


        
          	 	
                   By:
                    /s/ Dato'
                    Azlin b. Alias

                	 	 
	 	
                   Dato'
                    Azlin b.
                    Alias

                	 	 
	 	 	 	 


        

        


        


        Address:

        Level
          8-9, Menara Yayasan Tun Razak,

        Jalan
          Bukit Bintang,

        55100
          Kuala Lumpur

        Facsimile:
          03-2163 7570

        


        


        


        


        


        


        


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