Fluidigm Corporation CONVERTIBLE NOTE PURCHASE AGREEMENT (US$15 Million Credit Facility) August 7, 2006
TABLE OF CONTENTS
| Page | ||||||||
| 1. | The First Note | 2 | ||||||
| 1.1 | Authorization; Purchaser’s Obligation to Purchase | 2 | ||||||
| 1.2 | First Note Procedure | 2 | ||||||
| 1.3 | Closing of First Note Purchase | 2 | ||||||
| 1.4 | Effect of Change in Series E Preferred Stock | 2 | ||||||
| 2. | Representations and Warranties of the Company | 2 | ||||||
| 2.1 | Organization, Good Standing and Qualification | 2 | ||||||
| 2.2 | Corporate Power | 3 | ||||||
| 2.3 | Subsidiaries | 3 | ||||||
| 2.4 | Capitalization | 3 | ||||||
| 2.5 | Authorization | 4 | ||||||
| 2.6 | Valid Issuance of Note and Conversion Shares | 4 | ||||||
| 2.7 | Governmental Consents | 4 | ||||||
| 2.8 | Litigation | 5 | ||||||
| 2.9 | Employees | 5 | ||||||
| 2.10 | Patents and Other Intangible Assets | 5 | ||||||
| 2.11 | Compliance with Other Instruments | 7 | ||||||
| 2.12 | Permits | 8 | ||||||
| 2.13 | Environmental and Safety Laws | 8 | ||||||
| 2.14 | Title to Property and Assets | 8 | ||||||
| 2.15 | Agreements; Action | 8 | ||||||
| 2.16 | Financial Statements | 9 | ||||||
| 2.17 | Changes | 9 | ||||||
| 2.18 | Brokers or Finders | 10 | ||||||
| 2.19 | Employee Benefit Plans | 10 | ||||||
| 2.20 | Tax Matters | 10 | ||||||
| 2.21 | Insurance | 10 | ||||||
| 2.22 | Corporate Documents | 11 | ||||||
| 2.23 | Disclosure | 11 | ||||||
| 2.24 | Offering | 11 | ||||||
| 2.25 | Returns and Complaints | 11 | ||||||
| 3. | Representations and Warranties of the Purchasers | 11 | ||||||
| 3.1 | Experience | 11 | ||||||
| 3.2 | Investment | 11 | ||||||
| 3.3 | Rule 144 | 12 | ||||||
| 3.4 | No Public Market | 12 | ||||||
| 3.5 | Access to Data | 12 | ||||||
| 3.6 | Authorization | 12 | ||||||
| 3.7 | Accredited Investor | 12 | ||||||
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TABLE OF CONTENTS
(Continued)
(Continued)
| Page | ||||||||
| 3.8 | Public Solicitation | 12 | ||||||
| 3.9 | Tax Advisors | 12 | ||||||
| 3.10 | Purchaser Counsel | 13 | ||||||
| 3.11 | Brokers or Finders | 13 | ||||||
| 3.12 | Non-United States Persons | 13 | ||||||
| 4. | Covenants of the Company | 13 | ||||||
| 4.1 | Subsidiary Business Plan | 13 | ||||||
| 4.2 | Subsidiary Board of Directors | 14 | ||||||
| 4.3 | Affirmative Covenants | 14 | ||||||
| 4.4 | Preservation of Existence | 14 | ||||||
| 4.5 | Payment of Taxes | 14 | ||||||
| 4.6 | Compliance with Laws | 14 | ||||||
| 4.7 | Maintenance of Properties | 14 | ||||||
| 4.8 | Government Authority | 14 | ||||||
| 4.9 | Opinion of Company Counsel | 15 | ||||||
| 5. | Covenants of the Purchaser | 15 | ||||||
| 5.1 | Transfers | 15 | ||||||
| 5.2 | Additional Convertible Promissory Notes | 15 | ||||||
| 6. | Termination | 17 | ||||||
| 7. | Miscellaneous | 17 | ||||||
| 7.1 | Governing Law | 17 | ||||||
| 7.2 | California Corporate Securities Law | 17 | ||||||
| 7.3 | Survival | 17 | ||||||
| 7.4 | Successors and Assigns | 18 | ||||||
| 7.5 | Entire Agreement; Amendment | 18 | ||||||
| 7.6 | Notices, etc. | 18 | ||||||
| 7.7 | Counterparts; Facsimile | 19 | ||||||
| 7.8 | Severability | 19 | ||||||
| 7.9 | Expenses | 19 | ||||||
| 7.10 | Titles and Subtitles | 19 | ||||||
| 7.11 | Jury Trial | 19 | ||||||
| 7.12 | Jurisdiction; Venue | 19 | ||||||
| 7.13 | Currency | 19 | ||||||
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| EXHIBITS | ||
A
|
Form of Convertible Promissory Note (First Note) | |
B
|
Form of Convertible Promissory Note (Second Note) | |
C
|
Form of Convertible Promissory Note (Third Note) | |
D
|
Compliance Certificate | |
E
|
Investment Representation Statement | |
F
|
Legal Opinion | |
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Fluidigm Corporation
CONVERTIBLE NOTE PURCHASE AGREEMENT
(US$15 Million Credit Facility)
(US$15 Million Credit Facility)
This Convertible Note Purchase Agreement (the “Agreement”) is made as of August 7, 2006, by
and between Fluidigm Corporation, a California corporation (the “Company”), and Biomedical Sciences
Investment Fund Pte Ltd (“Purchaser”).
WHEREAS, the Purchaser has agreed to purchase, pursuant to the terms of this Agreement and
upon the election of the Company, up to US$15,000,000 in aggregate principal of Convertible
Promissory Notes of the Company;
WHEREAS, the Purchaser has agreed that the Company may elect to sell to the Purchaser within
the time periods set forth herein, and the Purchaser has agreed to purchase should the Company so
elect, a Convertible Promissory Note in the principal amount of US$5,000,000 in substantially the
form attached hereto as Exhibit A (the “First Note”), the principal and interest on which
are convertible into shares of Series E Preferred Stock of the Company upon the happening of
certain events described in the First Note;
WHEREAS, provided that the First Note has converted (as set forth in the First Note), the
Purchaser has agreed that the Company may elect to sell to the Purchaser within the time periods
set forth herein, and Purchaser has agreed to purchase should the Company so elect, a second
Convertible Promissory Note of the Company in the principal amount of US$5,000,000, in
substantially the form attached hereto as Exhibit B (the “Second Note”), the principal and
interest on which are convertible into shares of Series E Preferred Stock of the Company upon the
happening of certain events as described in the Second Note; and
WHEREAS, provided that the Second Note has converted (as set forth in the Second Note), the
Purchaser has agreed that the Company may elect to sell to the Purchaser within the time periods
set forth herein, and Purchaser has agreed to purchase should the Company so elect, a third
Convertible Promissory Note of the Company in the principal amount of US$5,000,000, in
substantially the form attached hereto as Exhibit C (the “Third Note,” and together with
the First Note and the Second Note, an “Additional Note” or the “Additional Notes”), the principal
and interest on which are convertible into shares of Series E Preferred Stock of the Company upon
the happening of certain events as described in the Third Note.
NOW, THEREFORE, the parties hereby agree as follows:
1. The First Note.
1.1 Authorization; Purchaser’s Obligation to Purchase. The Purchaser shall, at the
Company’s election and in accordance with the procedures set forth in this Section 1, purchase the
First Note. Such election shall indicate that the Company has authorized the sale and issuance of
the First Note in the principal amount of US$5,000,000, convertible (i) at the election of the
Purchaser, (ii) upon the achievement of certain Milestones (as set forth in the First Note), or
(iii) as otherwise as set forth in the First Note into shares of Series E Preferred Stock of the
Company at a conversion price of US$3.60 per share. Shares of Series E Preferred Stock together
with any other securities which may be issued upon conversion of any of the Additional Notes are
referred to herein as the “Note Shares.” The Additional Notes, the Note Shares and securities of
the Company issued or issuable upon conversion thereof are referred to herein as the “Securities.”
1.2 First Note Procedure. Subject to Section 1.1, the Company may exercise its option to
require the Purchaser to purchase the First Note at any time on or before September 30, 2006 by
giving Purchaser written notice thereof (the “First Note Election Notice”). The First Note
Election Notice shall state that the Company has elected to require the Purchaser to purchase the
First Note and shall indicate the date, time, and location of the closing of the purchase and sale
of the First Note (the “First Note Closing”), which shall occur no sooner than 14 days or later
than 25 days after the date of the First Note Election Notice.
1.3 Closing of First Note Purchase. At the First Note Closing, the Company shall deliver
to the Purchaser the First Note and a duly executed Compliance Certificate in the form attached
hereto as Exhibit D (the “Compliance Certificate”). At the First Note Closing, the
Purchaser shall deliver to the Company (i) the aggregate principal amount of the First Note
totalling US$5,000,000 by check or wire transfer and (ii) the Investment Representation Statement,
duly executed by Purchaser, in the form attached hereto as Exhibit E (the “Investment
Representation Statement”).
1.4 Effect of Change in Series E Preferred Stock. The form of the First Note will be
modified upon the happening of certain events as set forth in Section 5.2(d).
2. Representations and Warranties of the Company. Except as set forth in the Schedule of
Exceptions dated of even date hereof and separately delivered to Purchaser contemporaneously with
the execution and delivery of this Agreement (the
“Schedule of Exceptions”), the Company represents and warrants to Purchaser as of the date
hereof as follows:
2.1 Organization, Good Standing and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of California and has
all requisite corporate power and authority to carry on its business as currently conducted. The
Company is duly qualified to transact business and is in good standing in each jurisdiction in
which the failure to so qualify, individually or in the aggregate, would have a material adverse
effect on its business (as now conducted), properties, or financial condition.
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2.2 Corporate Power. The Company has all requisite legal and corporate power and
authority to execute and deliver this Agreement and to carry out and perform its obligations under
the terms of this Agreement. Subject to the corporate authorization of and election to sell and
issue any of the Additional Notes hereunder, the Company will have all requisite legal and
corporate power and authority to (i) sell and issue the Additional Notes hereunder and (ii) issue
the Series E Preferred Stock initially issuable upon conversion of any of the Additional Notes.
2.3 Subsidiaries. The Company does not presently own or control, directly or indirectly,
any interest in any other corporation, association, or other business entity.
2.4 Capitalization. The authorized capital stock of the Company consists of 77,857,144
shares of Common Stock (“Common Stock”), of which 9,422,895 shares are issued and outstanding and
51,687,948 shares of Preferred Stock (“Preferred Stock”), 2,727,273 of which are designated
Series A Preferred Stock of which 2,727,273 are outstanding, 6,460,675 of which are designated
Series B Preferred Stock of which 6,460,675 are outstanding, 17,000,000 of which are designated
Series C Preferred Stock, 16,364,832 of which are issued and outstanding, 15,500,000 of which are
designated Series D Preferred Stock, 12,196,191 of which are issued and outstanding, and 10,000,000
of which are designated Series E Preferred Stock, 1,250,000 of which are issued and outstanding.
All such issued and outstanding shares have been duly authorized and validly issued in compliance
with applicable laws, and are fully paid and nonassessable.
In connection with the sale and issuance of any Additional Notes, the Company will have
reserved 4,166,667 shares of Series E Preferred Stock for issuance upon conversion of such
Additional Note (the “Conversion Shares”) and 4,166,667 shares of Common Stock for issuance upon
conversion of such Conversion Shares. As of the date of this Agreement, the Company has reserved:
(i) 10,000,000 shares of Common Stock for issuance upon conversion of the outstanding shares of
Series E Preferred Stock; (ii) 12,196,191 shares of Common Stock for issuance upon
conversion of the outstanding shares of Series D Preferred Stock; (iii) 408,928 shares of
Series D Preferred Stock for issuance upon exercise of outstanding warrants and 408,928 shares of
Common Stock for issuance upon conversion of such Series D Preferred Stock; (iv) 16,364,832 shares
of Common Stock for issuance upon conversion of the outstanding shares of Series C Preferred Stock;
(v) 294,868 shares of Series C Preferred Stock for issuance upon exercise of outstanding warrants
and 294,868 shares of Common Stock for issuance upon conversion of such Series C Preferred Stock;
(vi) 6,460,675 shares of Common Stock for issuance upon conversion of the outstanding Series B
Preferred Stock; (vii) 2,727,273 shares of Common Stock for issuance upon conversion of the
outstanding Series A Preferred Stock; and (viii) an aggregate of 10,800,000 shares of Common Stock
for issuance to employees and consultants of the Company pursuant to the Company’s 1999 Stock Plan,
pursuant to which options to purchase 5,276,828 shares are granted and outstanding and 1,727,039
shares are available for future grant. Other than with respect to the shares reserved for issuance
in the preceding sentence, or as set forth in this Agreement, the Investor Rights Agreement (as
defined below) or the Voting Agreement (as defined below), there are no outstanding rights,
options, warrants, conversion rights, preemptive rights, rights of first refusal or similar rights
for the purchase or acquisition from the Company of any securities of the Company. There are no
outstanding obligations of the Company to repurchase or redeem any of its securities.
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Except as contemplated in the Eighth Amended and Restated Investor Rights Agreement dated
June 13, 2006 (the “Investor Rights Agreement”), the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity. Except as contemplated
in the Second Amended and Restated Voting Agreement dated August 16, 2005 (the “Voting Agreement”),
the Company is not a party or subject to any agreement or understanding, and to the Company’s
knowledge, there is no agreement or understanding between any person or entities, which relates to
the voting or the giving of written consents with respect to any security of the Company or by a
director of the Company.
2.5 Authorization. All corporate action on the part of the Company, its officers,
directors and shareholders necessary for the authorization, execution and delivery of this
Agreement, the performance of all obligations of the Company under this Agreement has been taken,
subject to corporate authorization of any election to require the Purchasers to purchase Additional
Notes pursuant to this Agreement. This Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, subject to: (i) judicial
principles limiting the availability of specific performance, injunctive relief, and other
equitable remedies; and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect generally relating to or affecting creditors’ rights.
2.6 Valid Issuance of Note and Conversion Shares. Any Additional Note that is purchased
by the Purchaser hereunder, when issued, sold and delivered in accordance with the terms of this
Agreement, will be free of restrictions on transfer other than restrictions on transfer under this
Agreement, such Additional Note, and the Investor
Rights Agreement and under applicable state and federal securities laws as in effect on the
date of issuance of such Additional Note. Any Conversion Shares (and the shares of Common Stock
issuable upon conversion thereof) will have been duly and validly reserved for issuance, and, upon
issuance in accordance with the terms of the applicable Additional Note and the Amended and
Restated Articles of Incorporation of the Company as amended through the date of issuance of such
Additional Note (the “Restated Articles”), will be duly and validly issued, fully paid, and
nonassessable and will be free of restrictions on transfer other than restrictions on transfer
under this Agreement, the terms of the applicable Additional Note, and the Investor Rights
Agreement and under applicable state and federal securities laws as in effect on the date of
issuance of such Additional Note. The Conversion Shares (and the shares of Common Stock issuable
upon conversion thereof) may be issued without any registration or qualification under state and
federal securities laws as such laws are in effect as of the date of this Agreement.
2.7 Governmental Consents. As of the date of this Agreement, no consent, approval, order
or authorization of, or registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company would be required in
connection with the offer, sale or issuance of any of the Additional Notes or the Conversion Shares
(and the shares of Common Stock issuable upon conversion thereof) or the consummation of any other
transaction contemplated hereby, except in connection with the sale and issuance of Additional
Notes for filings that may be required pursuant to applicable federal and state securities laws and
blue sky laws, which filings, the Company covenants to complete within the required statutory
period.
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2.8 Litigation. There is no action, suit, proceeding or investigation pending or, to the
Company’s knowledge, currently threatened against the Company before any court, administrative
agency or other governmental body which questions the validity of this Agreement or the Investor
Rights Agreement or the right of the Company to enter into any of them, or to consummate the
transactions contemplated hereby or thereby, or which could result, either individually or in the
aggregate, in any material adverse change in the condition (financial or otherwise), business,
property, assets or liabilities of the Company, nor is the Company aware that there is any basis
for the foregoing. The Company is not a party or subject to, and none of its assets is bound by,
the provisions of any order, writ, injunction, judgment or decree of any court or government agency
or instrumentality. There is no action, suit, proceeding or investigation by or involving the
Company currently pending or that the Company intends to initiate.
2.9 Employees. Each employee of the Company has executed a proprietary information and
invention assignment agreement substantially in the form or forms made available to the Purchaser.
To the Company’s knowledge, no officer or key employee is in violation of any prior employee
contract or proprietary information agreement. No employees of the Company are represented by any
labor union or covered by any collective bargaining agreement. There is no pending or, to the
Company’s
knowledge, threatened labor dispute involving the Company and any group of its employees. The
Company is not aware that any officer or key employee intends to terminate his or her employment
with the Company within the six months after the date of this Agreement. The Company does not have
a present intention to terminate the employment of any officer or key employee. Each officer and
key employee is devoting 100% of his or her business time to the conduct of the business of the
Company. The Company is not aware that any officer or key employee intends to work less than full
time during the six months after the date of this Agreement. Subject to general principles related
to wrongful termination of employees, the employment of each officer and employee of the Company is
terminable at will.
2.10 Patents and Other Intangible Assets.
(a) The Company owns, or is licensed or otherwise has the legally enforceable right to use,
all copyrights, domain names, maskworks, applications for the issuance or registration of any of
the foregoing, trade secrets, confidential or proprietary know-how, data and information, ideas,
inventions, designs, developments, algorithms, processes, schematics, techniques, computer
programs, applications and other software, works of authorship, creative effort and, to the
Company’s knowledge after such investigation as the Company deemed reasonable, patents, patent
applications, trademarks (including service marks and design marks) and applications therefor,
tradenames (all of the foregoing generically, “Intellectual Property Rights”) utilized in, or
necessary for, its business as now conducted (collectively, the “Company Intellectual Property”)
without infringing upon the right of any person, corporation or other entity.
(b) Section 2.10 of the Schedule of Exceptions lists (i) all patents and patent applications
and all registered and unregistered trademarks, trade names, copyrights and maskworks and
registered domain names included in the Company Intellectual Property, including the jurisdictions
in which each such intellectual property right has been issued or registered or in
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which any
application for such issuance or registration has been filed, (ii) all licenses, sublicenses,
collaborations and other agreements (or options for any of the foregoing) to which the Company is a
party and pursuant to which any person, corporation or other entity is authorized to use any of the
Company Intellectual Property, and (iii) all licenses, sublicenses, collaborations and other
agreements (or options for any of the foregoing) to which the Company is a party and pursuant to
which the Company is authorized to use any Intellectual Property Right of any third party (other
than standard licenses for commercially available software). Each of the agreements in (ii) and
(iii) above remain in full force and effect and, to the Company’s knowledge, no party to any such
agreement is in material breach or default under such agreement, and the Company is not aware of
any act or failure to act by a party which would constitute a material breach or default under any
such agreement, give rise to a right of the licensor to terminate any such agreement or otherwise
result in termination of, or suspension or loss of exclusive rights under, any such agreement.
(c) To the Company’s knowledge, the Company has not infringed or misappropriated any
Intellectual Property Right of any other person, corporation or other entity. The Company has not
received any communication or otherwise received any information alleging any
such conduct by the Company or asserting a claim by any third party to the ownership of, or
right to use, any of the Company Intellectual Property, and the Company does not know of any basis
for any such claim. The Company is not aware of any action, suit, proceeding or investigation
pending or currently threatened against the Company (or any third party owner or licensor of rights
to the Company of any of the Company Intellectual Property) which would have a material impact on
the Company’s ownership of or exclusive or co-exclusive rights to use, the Company Intellectual
Property.
(d) The Company is not aware that any of its employees is obligated under any agreement, or
subject to any judgment, decree or order of any court or administrative agency, that would
materially interfere with his or her ability to fully and freely perform their duties to the
Company or that would conflict with the Company’s business. To the Company’s knowledge, neither
the execution and delivery of this Agreement nor the issuance of any of the Additional Notes nor
the carrying on of the Company’s business by the employees of the Company, will conflict with or
result in a material breach of the terms, conditions, or provisions of, or constitute a default
under, any agreement under which any such employee is now obligated. The Company does not utilize,
and will not be required to utilize, any invention, development or work of authorship of any of its
employees (or persons it currently intends to hire) made prior to their employment by the Company.
(e) Except as described in Schedule 2.10, (i) the Company is not obligated, or under any
liability whatsoever to make any payments by way of royalties, fees or otherwise, to any owner or
licensor of, or other claimant to, any Company Intellectual Property, and (ii) the Company is not a
party to any agreement concerning the Company Intellectual Property or any other Intellectual
Property Right used or to be used by the Company in its business as conducted. No founder,
director, officer or employee of the Company, or, to the Company’s knowledge, no shareholder of the
Company has any interest in the Company Intellectual Property.
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(f) Except with respect to any rights granted under the agreements described in Schedule 2.10,
the Company owns exclusively all rights arising from or associated with the research and
development efforts of the Company, its founders, employees and independent contractors relating to
the Company’s business as now conducted, and all such rights form part of the Company Intellectual
Property. The Company has secured valid written assignments from all employees and independent
contractors who contributed to the creation or development of any of the Company Intellectual
Property of the rights to such contributions that the Company does not already own by operation of
law. The Company has not received notice of any claim being asserted by any current or former
employee, independent contractor or other third party to the ownership, of or right to use, any of
the Company Intellectual Property, or challenging or questioning the validity of any of the Company
Intellectual Property, and the Company is not aware of any basis for any such claim.
(g) The Company has taken reasonable steps to protect and preserve the confidentiality of all
material trade secrets included in Company Intellectual Property not otherwise protected by patents
or copyright (“Confidential Information”). All disclosure of Confidential Information to a third
party has been pursuant to the terms of a written confidentiality or non-disclosure agreement
between the Company and such third party.
(h) The Company hereby represents and warrants that the data, written and oral reports and
other representations and information that the Company provided to its investors (or their counsel)
pertaining to the Company Intellectual Property, when taken as a whole, were truthful and, to the
Company’s knowledge, accurate in all material respects, and there was no omission therefrom which
made such information misleading, or incomplete in any material way.
2.11 Compliance with Other Instruments. The Company is not in violation or default of any
provision of its Articles of Incorporation or Bylaws, each as amended and in effect on and as of
the date hereof. The Company is not in violation or default of any material provision of any
instrument, mortgage, deed of trust, loan, contract, commitment, judgment, decree, order or
obligation to which it is a party or by which it or any of its properties or assets are bound or,
to the best of its knowledge, of any provision of any federal, state or local statute, rule or
governmental regulation. The execution, delivery and performance of and compliance with this
Agreement, the Investor Rights Agreement and the Voting Agreement and the issuance and sale of the
Additional Notes, will not result in any such violation, be in conflict with or constitute, with or
without the passage of time or giving of notice, a default under any such provision, license,
indenture, instrument, mortgage, deed of trust, loan, contract, commitment, judgment, decree, order
or obligation; or require any consent or waiver under any such provision, license, indenture,
instrument, mortgage, deed of trust, loan, contract, commitment, judgment, decree, order or
obligation (other than any consents or waivers that have been obtained); or result in the creation
of any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of the
Company pursuant to any such provision, license, indenture, instrument, mortgage, deed of trust,
loan, contract, commitment, judgment, decree, order or obligation.
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2.12 Permits. The Company has all franchises, permits, licenses, and any similar authority
necessary for the conduct of its business as now being conducted by it. The Company is not in
default in any material respect under any of such franchises, permits, licenses, or other similar
authority.
2.13 Environmental and Safety Laws. To its knowledge, the Company is not in violation of
any applicable statute, law, or regulation relating to the environment or occupational health and
safety, and to its knowledge, no material expenditures by the Company are or will be required in
order to comply with any such existing statute, law, or regulation.
2.14 Title to Property and Assets. The Company has good and marketable title to all of its
properties and assets free and clear of all pledges, mortgages, liens, security interests, charges
and encumbrances, except liens for current taxes and assessments not yet due and possible minor
liens and encumbrances which do not,
in any case, individually or in the aggregate, materially detract from the value of the
property subject thereto or materially impair the ownership or use of said property or assets, or
the operations of the Company. With respect to the property and assets it leases, the Company is
in compliance with such leases and, to the best of its knowledge, holds a valid leasehold interest
free of all liens, claims or encumbrances. The Company’s properties and assets are in good
condition and repair in all material respects.
2.15 Agreements; Action.
(a) Except for agreements contemplated by this Agreement, there are no agreements,
understandings or proposed transactions between the Company and any of its officers, directors,
affiliates, or any affiliate thereof other than standard option grants and stock purchase
agreements entered into prior to the date of this Agreement.
(b) There are no agreements, understandings, instruments, contracts, proposed transactions,
judgments, orders, writs or decrees to which the Company is a party or by which it is bound that
may involve (i) obligations (contingent or otherwise) of, or payments by the Company in excess of,
US$100,000, other than in the ordinary course of business, (ii) the license of any patent,
copyright, trade secret or other proprietary right to or from the Company other than standard
commercial software licenses, (iii) provisions restricting or adversely affecting the development,
manufacture or distribution of the Company’s products or services, or (iv) indemnification by the
Company with respect to infringements of proprietary rights other than indemnifications entered
into in the ordinary course of business.
(c) For the purposes of subsection (b) above, all indebtedness, liabilities, agreements,
understandings, instruments, contracts and proposed transactions involving the same person or
entity (including persons or entities the Company has reason to believe are affiliated therewith)
shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such
subsection.
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(d) The Company is not a party to and is not bound by any contract, agreement or instrument,
or subject to any restriction under its Restated Articles or its Bylaws that adversely affects its
business as now conducted, its properties or its financial condition.
(e) The Company is not a guarantor or indemnitor of any indebtedness of any other person or
entity.
(f) The Company has not engaged in the past three months in any discussion (i) with any
representative of any entity or entities regarding the merger of the Company with or into any such
entity or entities or any affiliate thereof, (ii) with any representative of any entity or any
individual regarding the sale, conveyance or disposition of all or substantially all of the assets
of the Company or a transaction or series of related transactions in which more than fifty
percent (50%) of the voting power of the Company would be disposed of, or (iii) regarding any
other form of liquidation, dissolution or winding up of the Company.
2.16 Financial Statements. The Company has fully provided the Purchaser with all the
information that the Purchaser has requested for deciding whether to enter into this Agreement and
to acquire the Additional Notes. The Company has made available to Purchaser its audited balance
sheets dated as of December 31, 2005 and the audited statement of operations for the fiscal year
then ended, its unaudited balance sheets as of March 31, 2006, and its unaudited statement of
operations and cash flow statement covering the three month period then ended (collectively, the
“Financial Statements”). The Financial Statements are complete and correct in all material
respects and have been prepared in accordance with generally accepted accounting principles applied
on a consistent basis throughout the periods indicated. The Financial Statements accurately set
out and describe the financial condition and operating results of the Company as of the date, and
during the periods, indicated therein. Except as set forth in the Financial Statements, the
Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred
in the ordinary course of business subsequent to March 31, 2006 and (ii) obligations under
contracts and commitments incurred in the ordinary course of business and not required under
generally accepted accounting principles to be reflected in the Financial Statements, which, in
both cases, individually or in the aggregate are not material to the financial condition or
operating results of the Company.
2.17 Changes. Since March 31, 2006:
(a) the Company has not (i) declared or paid any dividends or authorized or made any
distribution upon or with respect to any class or series of its capital stock, (ii) incurred any
indebtedness for money borrowed or any other liabilities outside the ordinary course of its
business individually in excess of US$100,000 or, in the case of indebtedness and/or liabilities
individually less than US$100,000, in excess of US$200,000 in the aggregate, (iii) made any loans
or advances to any person, other than ordinary advances for reimbursable businesses expenses,
(iv) sold, exchanged, assigned, transferred, licensed or otherwise disposed of any of its assets or
rights (including Company Intellectual Property), other than the sale of its inventory in the
ordinary course of business, (v) waived or compromised a valuable right or a material debt owed to
it, (vi) materially changed any compensation arrangement or agreement with any employee, officer,
-9-
director or shareholder, or (vii) arranged or committed to do any of the things described in this
subsection (a); and
(b) there has not been (i) a loss of, or a material order cancellation by, any major customer
of the Company, (ii) any damage, destruction or loss, whether or not covered by insurance,
materially and adversely affecting the business, properties, or financial condition of the Company,
(iii) any change in the assets, liabilities, financial condition or operating results of the
Company from that reflected in the Financial Statements, except changes in the ordinary course of
business that have not been, in the aggregate, materially adverse, (iv) any resignation or
termination
of any officer or key employee of the Company, and the Company is not aware of the impending
resignation or termination of employment of any such officer, or (v) to the best of the Company’s
knowledge, any other event or condition of any character that would materially and adversely affect
the business, properties, or financial condition of the Company.
2.18 Brokers or Finders. The Company has not agreed to incur, directly or indirectly, any
liability for brokerage or finders’ fees, agents’ commissions or other similar charges in
connection with this Agreement or any of the transactions contemplated hereby.
2.19 Employee Benefit Plans. The Company does not have any Employee Benefit Plan as
defined in the Employee Retirement Income Security Act of 1974 other than the Company’s 401(k)
Plan. The Company is in material compliance with the terms of the Company’s 401(k) Plan and has
not received notice of any material increase in the costs of such plans.
2.20 Tax Matters. The Company has filed all tax returns and reports as required by law.
These returns and reports are true and correct in all material respects. The Company has paid all
taxes and other assessments due. The Company has not elected pursuant to the Code, to be treated
as a Subchapter S corporation or a collapsible corporation pursuant to Section 1362(a) or
Section 341(f) of the Code, nor has it made any other elections pursuant to the Code (other than
elections that relate solely to methods of accounting, depreciation or amortization) that would
have a material effect on the business, properties or condition (financial or otherwise) of the
Company. None of the Company’s tax returns have ever been audited by any governmental authorities.
The Company has withheld or collected from each payment made to its employees the amount of all
taxes (including without limitation, federal income taxes, Federal Insurance Contribution Act taxes
and Federal Unemployment Tax Act taxes) required to be withheld or collected therefrom, and has
paid the same to the proper tax receiving officers or authorized depositories.
2.21 Insurance. The Company has in full force and effect fire and casualty insurance
policies, with extended coverage, sufficient in amount (subject to reasonable deductibles) to allow
it to replace any of its properties that might be damaged or destroyed. The Company has obtained
term life insurance payable to the Company on the lives of Xxxxxxx Xxxxx and Xxxxx Xxxxxxxxxxx in
the amount of US$500,000. The Company has in full force and effect directors and officers
liability insurance, covering its directors, with aggregate coverage in the amount of US$2,000,000.
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2.22 Corporate Documents. The Restated Articles and By-Laws of the Company are in the form made available to the
Purchaser. The copy of the minute books of the Company made available to Purchaser’s counsel
contains true and correct minutes of all meetings of directors (including any committees thereof)
and shareholders and all actions by written consent taken without a meeting by the directors and
shareholders since December 18, 2003.
2.23 Disclosure. The Company has fully provided Purchaser with all the information which
Purchaser has requested in connection with the purchase of the Additional Notes hereunder, as well
as all information which the Company in its judgment believes is reasonably necessary to enable
Purchaser to make a decision as to whether to enter into this Agreement and to invest in the
Company. Neither this Agreement with the Exhibits hereto, nor any other statements, certificates
or documents made or delivered in connection herewith or therewith, contains any untrue statement
of a material fact or omits to state a material fact necessary to make the statements herein or
therein not misleading in light of the circumstances under which they were made. The financial
projections made available to the Purchaser (the “Projections”) were prepared in good faith and
based upon assumptions that the Company believes are reasonable, and represent the Company’s good
faith estimate of its future plans and results; provided however, that the Company does not
represent or warrant that it will achieve any of the Projections.
2.24 Offering. Subject in part to the truth and accuracy of Purchaser’s representations
set forth in this Agreement, the offer, sale and issuance of the Additional Notes as contemplated
by this Agreement would be, if issued as of this date of this Agreement, exempt from the
registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), and
neither the Company nor any authorized agent acting on its behalf will take any action hereafter
that would cause the loss of such exemption.
2.25 Returns and Complaints. The Company has not received customer complaints concerning
alleged defects in the design of its products that, if true, would have, individually or in the
aggregate, a material adverse effect on its business, properties, or financial condition.
3. Representations and Warranties of the Purchasers. Purchaser hereby represents,
warrants and agrees as follows:
3.1 Experience. Purchaser is experienced in evaluating start-up companies such as the
Company, is able to evaluate and represent its own interests in transactions such as the one
contemplated by this Agreement, has such knowledge and experience in financial and business matters
such that
Purchaser is capable of evaluating the merits and risks of Purchaser’s investment in the
Company, and has the ability to bear the economic risks of its investment.
3.2 Investment. Purchaser is acquiring and will acquire, the Securities, for investment
for Purchaser’s own account and not with the view to, or for resale in connection with, any
distribution thereof. Purchaser understands that the Securities have not been registered under the
Securities Act by reason of a specific exemption from the registration provisions of the Securities
Act, which depends upon, among other things, the bona fide nature of Purchaser’s investment intent
as expressed herein. Purchaser further represents that it does not have any contract, undertaking,
-11-
agreement or arrangement with any person to sell, transfer or grant participation to any third
person with respect to any of the Securities other than a transfer not involving a change of
beneficial ownership. Purchaser understands and acknowledges that the offering of the Securities
pursuant to this Agreement will not be registered under the Securities Act on the ground that the
sale provided for in this Agreement is exempt from the registration requirements of the Securities
Act.
3.3 Rule 144. Purchaser acknowledges that the Securities must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such registration is
available. Purchaser is aware of the provisions of Rule 144 promulgated under the Securities Act,
which permit limited resale of shares purchased in a private placement subject to the satisfaction
of certain conditions. Purchaser covenants that, in the absence of an effective registration
statement covering the securities in question, Purchaser will sell, transfer, or otherwise dispose
of the Securities only in accordance with applicable securities laws and in a manner consistent
with Purchaser’s representations and covenants set forth in this Agreement and the applicable
Additional Note. In connection therewith, Purchaser acknowledges that the Company will make a
notation on its stock books regarding the restrictions on transfer set forth in this Agreement and
the applicable Additional Note and will transfer securities on the books of the Company only to the
extent not inconsistent therewith.
3.4 No Public Market. Purchaser understands that no public market now exists for any of
the securities issued by the Company, and that the Company has made no assurances that a public
market will ever exist for the Securities.
3.5 Access to Data. Purchaser has received and reviewed information about the Company and
has had an opportunity to discuss the Company’s business, management and financial affairs with its
management and to review the Company’s facilities.
3.6 Authorization. This Agreement when executed and delivered by the Purchaser will constitute a valid and
legally binding obligation of the Purchaser, enforceable against the Purchaser in accordance with
its terms, subject to: (i) judicial principles respecting election of remedies or limiting the
availability of specific performance, injunctive relief, and other equitable remedies; and
(ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect generally relating to or affecting creditors’ rights.
3.7 Accredited Investor. Purchaser acknowledges that it is an “accredited investor” as
defined in Rule 501 of Regulation D as promulgated by the United States Securities and Exchange
Commission (the “Commission”) under the Securities Act and shall submit to the Company such further
assurances of such status as may be reasonably requested by the Company. The principal address of
such Purchaser is as set forth on the signature page hereto.
3.8 Public Solicitation. Purchaser knows of no public solicitation or advertisement of an
offer in connection with the proposed issuance and sale of the Securities.
3.9 Tax Advisors. Purchaser has reviewed with its own tax advisors the tax consequences
of the purchase of the Securities and the transactions contemplated by this Agreement.
-12-
Purchaser
is relying solely on such advisors and not on any statements or representations of the Company or
any of its agents and understands that Purchaser (and not the Company) shall be responsible for the
Purchaser’s own tax liability that may arise as a result of the Purchase of the Securities or the
transactions contemplated by this Agreement.
3.10 Purchaser Counsel. Purchaser acknowledges that it has had the opportunity to review
this Agreement and the exhibits hereto and the transactions contemplated by this Agreement with its
own legal counsel. Purchaser is relying solely on such counsel and not on any statements or
representations of the Company or any of its agents for legal advice with respect to this
investment or the transactions contemplated by this Agreement.
3.11 Brokers or Finders. The Company has not incurred and will not incur, directly or
indirectly, as a result of any action taken by such Purchaser, any liability for brokerage or
finders’ fees or agents’ commissions or any similar changes in connection with this Agreement.
3.12 Non-United States Persons. Purchaser hereby represents that Purchaser is satisfied as to the full observance of the
laws of Purchaser’s jurisdiction in connection with any invitation to subscribe for the Securities
and the Additional Notes (and securities issuable upon conversion thereof) or any use of this
Agreement, including (i) the legal requirements within Purchaser’s jurisdiction for the purchase of
the Securities and the Additional Notes (and securities issuable upon conversion thereof), (ii) any
foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents
that may need to be obtained and (iv) the income tax and other tax consequences, if any, that may
be relevant to the purchase, holding, redemption, sale or transfer of such securities. Purchaser’s
subscription and payment for, and Purchaser’s continued beneficial ownership of, the Securities and
the Additional Notes (and securities issuable on conversion thereof) will not violate any
applicable securities or other laws of Purchaser’s jurisdiction.
4. Covenants of the Company. The Company hereby covenants and agrees as follows:
4.1 Subsidiary Business Plan. The Company has incorporated a wholly owned (either
directly or indirectly through another subsidiary of the Company) subsidiary of the Company in
Singapore (the “Subsidiary”). Unless prohibited by applicable law, or unless the Company and the
Purchaser otherwise agree in writing, from and after incorporation of the Subsidiary, the Company
shall cause the Subsidiary to use commercially reasonable efforts to conduct, its activities
materially in accordance with the provisions of the business plan as established by the Board of
Directors of the Subsidiary and described to the Purchaser, including the Subsidiary’s plans with
respect to the BioMark II project, as may be modified as set forth in this Section 4.1 (the
“Subsidiary Business Plan”); provided, however, that the Company and the Subsidiary
shall have no such obligation in the event the Subsidiary does not receive a grant under the
Singapore Research Incentive Scheme for Companies (“RISC”) and tax incentives from the Economic
Development Board of Singapore (the “EDB”) consistent with the application submitted by the Company
to the EDB. Notwithstanding any provision in this Agreement to the contrary, the Company and
Purchaser agree that the Subsidiary Business Plan may only be modified by the Board of Directors of
the Subsidiary.
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4.2 Subsidiary Board of Directors. Unless the Purchaser or its affiliates (as such term
is defined under Rule 12b-2 promulgated by the Commission under the Securities Exchange Act of
1934, as amended) shall fail to hold 500,000 shares of the Company’s Common Stock (on an as
converted basis), the Company agrees that it will vote the voting securities of the Subsidiary now
or hereafter held by the Company in such a manner as may be necessary to elect a nominee of
Purchaser to the Board of Directors of the Subsidiary (the “Nominee”). The Purchaser may notify
the Company in writing of an intention to remove from the Subsidiary’s Board of Directors any
incumbent Nominee or notify the Company in writing of an intention to select a new Nominee. In
such event the Company shall take reasonable actions necessary to facilitate such removal and
election of the new Nominee to the Board of Directors of the Subsidiary.
4.3 Affirmative Covenants. So long as any of the Additional Notes (if issued) shall
remain unpaid or unconverted or the Purchaser shall have any obligation to purchase any of the
Additional Notes hereunder, the Company agrees that:
4.4 Preservation of Existence. It will maintain and preserve, through itself or any
successor to its business, its corporate existence and its rights to transact business and will
maintain and preserve, through itself or any successor to its business, such other rights,
franchises and privileges as it may in good faith determine necessary or desirable in the normal
course of its business and operations and the ownership of its material properties.
4.5 Payment of Taxes. It will pay and discharge all taxes, fees, assessments and
governmental charges or levies imposed upon it or upon its properties or assets prior to the date
on which material penalties attach thereto, and all lawful claims for labor, materials and supplies
which, if unpaid, might become a material lien upon any properties or assets of the Company, except
to the extent such taxes, fees, assessments or governmental charges or levies, or such claims, are
being contested in good faith by appropriate proceedings and are adequately reserved against in
accordance with generally accepted accounting principles.
4.6 Compliance with Laws. It will comply in all material respects with the requirements
of all applicable laws, rules, regulations and orders of any governmental authority and the terms
of any material indenture, contract or other instrument to which it may be a party or under which
it or its properties may be bound, except to the extent failure to so comply would not have a
material adverse effect on the Company’s business.
4.7 Maintenance of Properties. It will use commercially reasonable efforts to maintain
and preserve all of its material properties, as it may in good faith determine to be necessary or
useful in the proper conduct of its business, in good working order and condition in accordance
with the general practice of other corporations of similar character and size, ordinary wear and
tear accepted.
4.8 Government Authority. It will use commercially reasonable efforts to obtain and
maintain all authorizations, consents, filings, exemptions, registrations and other governmental
approvals necessary in connection with the execution, delivery and performance of this Agreement,
the consummation of the transactions contemplated hereby or the operation and conduct of its
-14-
business and ownership of
its properties, except to the extent such failure to obtain or maintain would not have a
material adverse effect on the Company’s business or financial condition or its ability to deliver
or perform under this Agreement or consummate the transactions contemplated hereby.
4.9 Opinion of Company Counsel. Contemporaneously with the execution and delivery of this
Agreement, the Purchaser will receive from Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the
Company, an opinion, dated as of the date of this Agreement, in the form attached hereto as
Exhibit F (the “Legal Opinion”), relating to the sale and issuance of the First Note
pursuant to this Agreement.
5. Covenants of the Purchaser. The Purchaser hereby covenants and agrees as follows:
5.1 Transfers. Purchaser shall be bound by the restrictions on transfer of the Securities
as set forth in the applicable Additional Note. Any permitted purchaser, assignee, transferee or
pledgee of securities issued on conversion of the applicable Additional Note shall agree in writing
to take and hold such securities subject to and upon the conditions set forth in the this
Agreement, the applicable Additional Note, the Investor Rights Agreement, and the Voting Agreement,
as each may be amended from time to time.
5.2 Additional Convertible Promissory Notes.
(a) Purchaser’s Obligation to Purchase. In the event that the First Note is converted
as set forth in the First Note, the Purchaser shall, at the Company’s election, purchase the Second
Note in the principal amount of US$5,000,000 (the “Additional Note Principal”) in accordance with
Section 5.2(b), and in the event the Second Note is converted as set forth in the Second Note, the
Purchaser shall, at the Company’s election, purchase the Third Note in the principal amount equal
to the Additional Note Principal in accordance with Section 5.2(b).
(b) Additional Notes Procedure. Subject to Section 5.2(a), the Company may exercise
its option to require the Purchaser to purchase the (i) Second Note at any time within 45 days
following the conversion of the First Note and (ii) the Third Note at any time within 45 days
following the conversion of the Second Note by giving Purchaser written notice thereof (the
“Election Notice”). The Election Notice shall state that the Company has elected to require the
Purchaser to purchase the Second Note or the Third Note, as the case may require, and shall
indicate the date, time and location of the closing of the purchase and sale of the Second Note or
the Third Note, as the case may require (each, an “Additional Note Closing”), which shall occur no
sooner than 28 days or later than 50 days after the date of the Election Notice.
(c) Closing of Subsequent Purchase. At an Additional Note Closing, the Company shall
deliver to the Purchaser the Second Note, or the Third Note, as the case may require, and a duly
executed Compliance Certificate in substantially the form attached hereto as Exhibit D. At
an Additional Note Closing, the Purchaser shall deliver to the Company (i) the Additional Note
Principal by check or wire transfer and (ii) the Investment Representation Statement, duly executed
by Purchaser.
-15-
(d) Effect of Change in Series E Preferred Stock on Additional Notes. The forms of
any then-unissued Additional Notes attached hereto as Exhibits A, B, and C shall be
modified upon the happening of certain events as follows:
(i) In the event the Company should at any time prior to the First Note Closing or an
Additional Note Closing split or subdivide the outstanding shares of its Series E Preferred Stock
(or other securities that would be issuable upon conversion of any then-unissued Additional Note)
or issue additional shares of Series E Preferred Stock (or other securities that would be issuable
upon conversion of any then-unissued Additional Note) to the holders thereof as a dividend or make
any other distribution payable in additional shares of Series E Preferred Stock (or other
securities that would be issuable upon conversion of any then-unissued Additional Note) to the
holders thereof without payment of any consideration by such holder for the additional shares of
Series E Preferred Stock (or such other securities), then, as of the date of such dividend,
distribution, split or subdivision, the Conversion Price as set forth in the form of Additional
Note shall be appropriately decreased so that the number of shares of Series E Preferred Stock or
other securities issuable upon conversion of the Additional Note shall be increased in proportion
to such increase of outstanding shares of Series E Preferred Stock or other securities issuable
upon conversion of the Additional Note, as applicable. If the number of shares of Series E
Preferred Stock (or other securities that would be issuable upon conversion of any then-unissued
Additional Note) outstanding at any time prior to the First Note Closing or an Additional Note
Closing is decreased by a combination of the outstanding shares of Series E Preferred Stock (or
such other securities), then, following the record date of such combination, the Conversion Price
set forth in the form of Additional Note shall be appropriately increased so that the number of
shares of Series E Preferred Stock or other securities issuable upon conversion of the Additional
Note shall be decreased in proportion to such decrease in outstanding shares of Series E Preferred
Stock or other securities issuable upon conversion of the Additional Note, as applicable.
(ii) In case of any reclassification, capital reorganization, or change in the Series E
Preferred Stock (or other securities that would be issuable upon conversion of any then-unissued
Additional Note) of the Company prior to the First Note Closing or an Additional Note Closing,
including conversion of such shares pursuant to the Company’s Articles of Incorporation then in
effect (other than as a result of a split, subdivision, combination, or stock dividend provided for
in Section 5.2(d)(i)), then appropriate adjustment shall be made to the Conversion Price and kind
of securities or other property issuable upon conversion of the form of Additional Note so that the
Additional Note if purchased shall be convertible upon the terms set forth therein as of the date
of such First Note Closing or Additional Note Closing, as applicable, into the kind and amount of
shares of stock and other securities and property receivable in connection
with such reclassification, reorganization, or change by a holder of the same number of shares
of Series E Preferred Stock or other securities as would be issuable on conversion of the
Additional Note as of the First Note Closing or such Additional Note Closing, as the case may
require.
(iii) If at any time prior to the First Note Closing or an Additional Note Closing, as the
case may require, there shall be an acquisition of the Company by merger, consolidation or
otherwise where the Company is not the surviving corporation or as a result of
-16-
which all of the
outstanding capital stock of the Company is exchanged for capital stock of another corporation,
then, as a part of such acquisition, the Conversion Price and kind of securities issuable upon
conversion of the form of Additional Note shall be appropriately adjusted so that if such
Additional Note is purchased such Additional Note shall initially be convertible into, the number
of shares of stock or other securities or property of the surviving or successor corporation
resulting from such acquisition (or the corporation the capital stock of which is issued in
exchange for the capital stock of the Company), to which a holder of the securities that would be
issuable upon conversion of such Additional Note would have been entitled in such acquisition if
such Additional Note had been converted immediately before such acquisition.
(e) Transfer. In the event that the Company issues any of the Additional Notes to the
Purchaser, each issued Additional Note and any securities issued on conversion thereof (including
securities issued on conversion of such securities) shall be subject to Section 4.1 of this
Agreement, the Investment Representation Statement and the restrictions on transfer set forth in
such Additional Note.
6. Termination. This Agreement shall terminate and shall be of no further force or
effect at such time as (i) the Company has paid to Purchaser in cash, by check or by wire transfer
the principal amount and accrued interest owing under all outstanding Additional Notes or all
outstanding Additional Notes have been converted into Note Shares in accordance with their Terms
and (ii) the Company has no further right to require the Purchaser to purchase any Additional Notes
pursuant to this Agreement; provided, however, that in the event of the conversion
of any of the Additional Notes, Section 12 of each such Additional Note, and Section 3, Section 5.1
and Section 8 hereof shall survive such termination.
7. Miscellaneous.
7.1 Governing Law. This Agreement and the Additional Notes (if issued) shall in all
respects be governed by and construed and enforced in accordance with the laws of the State of
California, without reference to the conflicts of law provisions thereof.
7.2 California Corporate Securities Law. THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED
WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT AND RECEIPT OF ANY PART OF THE CONSIDERATION THEREFROM PRIOR TO SUCH
REGISTRATION IS UNLAWFUL UNLESS AN EXEMPTION FROM SUCH QUALIFICATION IS AVAILABLE. THE RIGHTS OF
ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON REGISTRATION BEING OBTAINED, UNLESS
THE SALE IS SO EXEMPT.
7.3 Survival. The representations, warranties, covenants and agreements made in this
Agreement shall survive any investigation made by any party hereto and the closing of the
transactions contemplated hereby.
-17-
7.4 Successors and Assigns. Except as otherwise provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto; provided, however, that the covenants and agreements of the
Company set forth in Section 4 and the obligation of the Purchaser to purchase the Additional Notes
as set forth in Section 1.1 and Section 5.2 shall not be assigned or transferred by Purchaser by
operation of law or otherwise without the prior written consent of the Company.
7.5 Entire Agreement; Amendment. This Agreement (including its exhibits), the Schedule of
Exceptions, the Business Plan, and the Additional Notes constitute the full and entire
understanding and agreement between the parties with regard to the subjects hereof and thereof, and
no party shall be liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or therein. Except as
expressly provided herein, neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
7.6 Notices, etc. Any notice, request, other communication, or payment required or
permitted hereunder shall be in writing and shall be deemed to have been duly given upon delivery,
if delivered personally or by facsimile, or by recognized overnight courier service, or five days
after deposit, if deposited in the United States mail for mailing by registered or certified mail,
postage prepaid, and addressed as follows:
| If to Purchaser: | Biomedical Sciences Investment Fund Pte Ltd | |||
| 00 Xxxxxxxx Xxx | ||||
| #00-00 Xxxxxxx | ||||
| Xxxxxxxxx 000000 | ||||
| Attention: Xxx Xxxx Yeok | ||||
| Tel: 00-0000-0000 | ||||
| Fax: 00-0000-0000 | ||||
| If to the Company: | Fluidigm Corporation | |||
| 0000 Xxxxxxxxx Xxxxx | ||||
| Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||
| Attention: Chief Executive Officer | ||||
| Tel: (000) 000-0000 | ||||
| Fax: (000) 000-0000 | ||||
| with a copy to: | Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. | |||
| 000 Xxxx Xxxx Xxxx | ||||
| Xxxx Xxxx, Xxxxxxxxxx 00000-0000 | ||||
| Attention: Xxx Xxxxx and Xxxxxx Xxxxxxxx | ||||
| Tel: (000) 000-0000 | ||||
| Fax: (000) 000-0000 |
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Each of the above addressees may change its address or facsimile number for purposes of this
paragraph by giving to the other addressee notice of such new address in conformity with this
paragraph.
7.7 Counterparts; Facsimile. This Agreement may be executed in counterparts, each of
which shall be enforceable against the party or parties actually executing such counterparts, and
all of which together shall constitute one instrument. This Agreement may be executed by facsimile
signature.
7.8 Severability. In the event that any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision.
7.9 Expenses. Except as set forth in the Purchase Agreement, each party shall pay all
costs and expenses that it incurs with respect to the negotiation, execution and delivery and
performance of this Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, or any of the Additional Notes, the prevailing party shall
be entitled to reasonable
attorney’s fees, costs and necessary distributions in addition to any other relief to which
such party may be entitled.
7.10 Titles and Subtitles. The titles and subtitles used in this Agreement are used for
convenience only and are not considered in construing or interpreting this Agreement.
7.11 Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT.
7.12 Jurisdiction; Venue. The parties hereto agree to submit to the jurisdiction of and
venue in the federal and state courts of San Mateo County, California with respect to the breach or
interpretation of this Agreement or the enforcement of any and all rights, duties, liabilities,
obligations, powers, and other relations between the parties arising under this Agreement.
7.13 Currency. Any reference to “dollars” or “$” in this Agreement shall refer to the
lawful currency of the United States of America.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have caused this Convertible Note Purchase Agreement to be
duly executed and delivered by their proper and duly authorized officers as of the date and year
first written above.
| COMPANY: Fluidigm Corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxxxx | |||
| Xxxxx X. Xxxxxxxxxxx | ||||
| Chief Executive Officer | ||||
| PURCHASER: | ||||||
| Biomedical Sciences Investment Fund Pte Ltd | ||||||
| By: | /s/ Xxx Xxxx Yeok
|
|||||
| Print Name: | Xxx Xxxx Yeok
|
| Title: | Director
|
[SIGNATURE PAGE TO CONVERTIBLE NOTE PURCHASE AGREEMENT]
