Common use of Valuation of Non-Cash Consideration Clause in Contracts

Valuation of Non-Cash Consideration. If any assets of the Corporation distributed to stockholders in connection with any Deemed Liquidation Event are other than cash (the “Distribution”), then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors, except that any publicly-traded securities to be distributed to stockholders in a Deemed Liquidation Event shall be valued as follows: (a) if the securities are then traded on a national securities exchange or the Nasdaq Stock Market (or a similar national quotation system), then the value of the securities shall be deemed to be the average of the closing prices of the securities on such exchange or system over the ten (10) trading day period ending five (5) trading days prior to the Distribution; (b) if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities over the thirty (30) trading day period ending five (5) trading days prior to the Distribution; and (c) if the consideration received by the Corporation or the proceeds to be distributed to holders of shares of the Corporation's capital stock is other than cash and the definitive merger agreement, asset purchase agreement or other definitive transaction document entered into with respect to such liquidation, dissolution or winding up specifies an alternative method of determining the value of such consideration or proceeds, then, for the purpose of this Subsection 2.3.4, the value of such consideration or proceeds shall be determined in accordance with the method set forth in such merger agreement, asset purchase agreement or other definitive transaction document, as applicable. In the event of a transaction referenced in Subsection 2.3.4, the Distribution date for purposes of the foregoing calculations shall be deemed to be the date such transaction closes.

Valuation of Non-Cash Consideration. If any assets of the Corporation distributed to stockholders shareholders in connection with any Deemed Liquidation Event liquidation, dissolution, or winding up of the Corporation are other than cash (the “Distribution”)cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors, except that any publicly-traded securities to be distributed to stockholders shareholders in a Deemed Liquidation Event liquidation, dissolution, or winding up of the Corporation shall be valued as follows: (ai) if If the securities are then traded on a national securities exchange or the Nasdaq Stock Market System (or a similar national quotation system), then the value of the securities shall be deemed to be to the average of the closing prices of the securities on such exchange or system over the ten (10) trading day period ending five (5) trading days prior to the Distributiondistribution; (bii) if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities over the thirty ten (3010) trading day period ending five (5) trading days prior to the Distributiondistribution; andor (ciii) if there is no active public market for the consideration received by the Corporation or the proceeds to be distributed to holders of shares of the Corporation's capital stock is other than cash and the definitive merger agreementsecurities, asset purchase agreement or other definitive transaction document entered into with respect to such liquidation, dissolution or winding up specifies an alternative method of determining then the value of such consideration or proceeds, then, for the purpose of this Subsection 2.3.4, the value of such consideration or proceeds securities shall be deemed to be the fair market value thereof as determined in accordance with good faith by the method set forth in such merger agreement, asset purchase agreement or other definitive transaction document, as applicableBoard of Directors which determination shall include consideration of the illiquidity of the securities. In the event of a transaction referenced in Subsection 2.3.4merger or other acquisition of the Corporation by another entity, the Distribution distribution date for purposes of the foregoing calculations shall be deemed to be the date such transaction closes. For the purposes of this Section 3(h), “trading day” shall mean any day on which the exchange or system on which the securities to be distributed are traded is open, and “closing prices” or “closing bid prices” shall be deemed to be: (i) for securities traded primarily on the New York Stock Exchange, the American Stock Exchange or Nasdaq, the last reported trade price or sale price, as the case may be, at 4:00 p.m., New York time, on that day and (ii) for securities listed or traded on other exchanges, markets and systems, the market price as of the end of the “regular hours” trading period that is generally accepted as such for such exchange, market or system. If, after the date hereof, the benchmark times generally accepted in the securities industry for determining the market price of a stock as of a given trading day shall change from those set forth above, the fair market value shall be determined as of such other generally accepted benchmark times.

Valuation of Non-Cash Consideration. If any assets of the Corporation distributed to stockholders shareholders in connection with any Deemed Liquidation Event liquidation, dissolution, or winding up of the Corporation are other than cash (the “Distribution”)cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors, except that any publicly-traded securities to be distributed to stockholders shareholders in a Deemed Liquidation Event liquidation, dissolution, or winding up of the Corporation shall be valued as follows: (ai) if If the securities are then traded on a national securities exchange or the Nasdaq Stock Market System (or a similar national quotation system), then the value of the securities shall be deemed to be to the average of the closing prices of the securities on such exchange or system over the ten (10) trading day period ending five (5) trading days prior to the Distributiondistribution; (bii) if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities over the thirty ten (3010) trading day period ending five (5) trading days prior to the Distributiondistribution; andor (ciii) if there is no active public market for the consideration received by the Corporation or the proceeds to be distributed to holders of shares of the Corporation's capital stock is other than cash and the definitive merger agreementsecurities, asset purchase agreement or other definitive transaction document entered into with respect to such liquidation, dissolution or winding up specifies an alternative method of determining then the value of such consideration or proceeds, then, for the purpose of this Subsection 2.3.4, the value of such consideration or proceeds securities shall be deemed to be the fair market value thereof as determined in accordance with good faith by the method set forth in such merger agreement, asset purchase agreement or other definitive transaction document, as applicableBoard of Directors which determination shall include consideration of the illiquidity of the securities. In the event of a transaction referenced in Subsection 2.3.4merger or other acquisition of the Corporation by another entity, the Distribution distribution date for purposes of the foregoing calculations shall be deemed to be the date such transaction closes. For the purposes of this subsection 3(g), “trading day” shall mean any day on which the exchange or system on which the securities to be distributed are traded is open, and “closing prices” or “closing bid prices” shall be deemed to be: (i) for securities traded primarily on the New York Stock Exchange, the American Stock Exchange or Nasdaq, the last reported trade price or sale price, as the case may be, at 4:00 p.m., New York time, on that day and (ii) for securities listed or traded on other exchanges, markets and systems, the market price as of the end of the “regular hours” trading period that is generally accepted as such for such exchange, market or system. If, after the date hereof, the benchmark times generally accepted in the securities industry for determining the market price of a stock as of a given trading day shall change from those set forth above, the fair market value shall be determined as of such other generally accepted benchmark times.

Valuation of Non-Cash Consideration. If any assets of the Corporation distributed to stockholders shareholders in connection with any Deemed Liquidation Event liquidation, dissolution, or winding up of the Corporation are other than cash (the “Distribution”)cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors, except that any publicly-traded securities to be distributed to stockholders shareholders in a Deemed Liquidation Event liquidation, dissolution, or winding up of the Corporation shall be valued as follows: (ai) if If the securities are then traded on a national securities exchange or the Nasdaq Stock Market System (or a similar national quotation system), then the value of the securities shall be deemed to be to the average of the closing prices of the securities on such exchange or system over the ten (10) trading day period ending five (5) trading days prior to the Distributiondistribution; (bii) if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities over the thirty ten (3010) trading day period ending five (5) trading days prior to the Distributiondistribution; andor (ciii) if there is no active public market for the consideration received by the Corporation or the proceeds to be distributed to holders of shares of the Corporation's capital stock is other than cash and the definitive merger agreementsecurities, asset purchase agreement or other definitive transaction document entered into with respect to such liquidation, dissolution or winding up specifies an alternative method of determining then the value of such consideration or proceeds, then, for the purpose of this Subsection 2.3.4, the value of such consideration or proceeds securities shall be deemed to be the fair market value thereof as determined in accordance with good faith by the method set forth in such merger agreement, asset purchase agreement or other definitive transaction document, as applicableBoard of Directors which determination shall include consideration of the illiquidity of the securities. In the event of a transaction referenced in Subsection 2.3.4merger or other acquisition of the Corporation by another entity, the Distribution distribution date for purposes of the foregoing calculations shall be deemed to be the date such transaction closes. For the purposes of this Section 3(h), “trading day” shall mean any day on which the exchange or system on which the securities to be distributed are traded is open, and “closing prices” or “closing bid prices” shall be deemed to be: (i) for securities traded primarily on the New York Stock Exchange, the American Stock Exchange or Nasdaq, the last reported trade price or sale price, [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. as the case may be, at 4:00 p.m., New York time, on that day and (ii) for securities listed or traded on other exchanges, markets and systems, the market price as of the end of the “regular hours” trading period that is generally accepted as such for such exchange, market or system. If, after the date hereof, the benchmark times generally accepted in the securities industry for determining the market price of a stock as of a given trading day shall change from those set forth above, the fair market value shall be determined as of such other generally accepted benchmark times.

Valuation of Non-Cash Consideration. If any assets In the event the consideration for the Capital Stock as disclosed in the Right of the Corporation distributed to stockholders in connection with any Deemed Liquidation Event are First Refusal Notice is other than cash (cash, a promissory note or a combination thereof, the “Distribution”), then price for such Capital Stock shall be the value of that consideration as agreed to by the Management Stockholder on the one hand and Majority Stockholder, the Company, or the Exercising Management Stockholders, as the case may be, on the other hand, or, if no agreement can be reached as to the valuation of such assets shall be their consideration, the fair market value of such consideration as determined in good faith by two appraisers (one appointed by the Board of DirectorsManagement Stockholder and one appointed by the Majority Stockholder or the Company, except that any publicly-traded securities as the case may be). In the event the two appraisers are unable to be distributed to stockholders in a Deemed Liquidation Event shall be valued as follows: (a) if the securities are then traded agree on a national securities exchange or fair market value within 20 days after they are appointed and further negotiations, in the Nasdaq Stock Market (or a similar national quotation system)opinion of either of the appraisers, then would not result in an agreement, the fair market value of the securities consideration shall be deemed to be the average of the closing prices appraised values of the securities on such exchange or system over two appraisers; provided, however, that if the appraised values of the two appraisers differ by more than ten percent (10%) trading day period ending five (5) trading of the higher of the two appraised values, the two respective appointed appraisers shall select a third appraiser who shall independently, within 20 days prior to the Distribution; (b) if the securities are actively traded over-the-counterafter his appointment, then make a determination of the value of the securities shall be deemed to be consideration, and the average of the closing bid prices appraised values of the securities over three appraisers shall be the thirty (30) trading day period ending five (5) trading days prior purchase price and shall be binding on the parties hereto. The Majority Stockholder, the Company or the Exercising Management Stockholders, as the case may be, and the Management Stockholder whose Capital Stock is subject to the Distribution; and (c) if Right of First Refusal Notice, shall each bear the consideration received by cost of their respective appraisers and shall share the Corporation or the proceeds to be distributed to holders of shares cost equally of the Corporation's capital stock third appraiser, if any. Notwithstanding anything herein to the contrary, if an appraisal is other than cash and the definitive merger agreement, asset purchase agreement or other definitive transaction document entered into with respect used to such liquidation, dissolution or winding up specifies an alternative method of determining determine the value of such the consideration or proceeds, then, for the purpose of pursuant to this Subsection 2.3.4Section 2(e)(iv), the value of such consideration or proceeds time periods provided for in 8 Sections 2(e)(i), (2(e)(ii) and 2(e)(iii) shall be determined in accordance with tolled from the method set forth in such merger agreement, asset purchase agreement or other definitive transaction document, as applicable. In the event of a transaction referenced in Subsection 2.3.4, the Distribution date for purposes time of the foregoing calculations shall be deemed initial appointment of the two appraisers until a final appraised value is determined pursuant to be the date such transaction closesthis Section 2(e)(iv).

Valuation of Non-Cash Consideration. If any assets of the Corporation distributed to stockholders shareholders in connection with any Deemed Liquidation Event liquidation, dissolution, or winding up of the Corporation are other than cash (the “Distribution”)cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors, except that any publicly-traded securities to be distributed to stockholders shareholders in a Deemed Liquidation Event liquidation, dissolution, or winding up of the Corporation shall be valued as follows: (ai) if If the securities are then traded on a national securities exchange or the Nasdaq Stock Market System (or a similar national quotation system), then the value of the securities shall be deemed to be to the average of the closing prices of the securities on such exchange or system over the ten (10) trading day period ending five (5) trading days prior to the Distributiondistribution; (bii) if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities over the thirty ten (3010) trading day period ending five (5) trading days prior to the Distributiondistribution; andor (ciii) if there is no active public market for the consideration received by the Corporation or the proceeds to be distributed to holders of shares of the Corporation's capital stock is other than cash and the definitive merger agreementsecurities, asset purchase agreement or other definitive transaction document entered into with respect to such liquidation, dissolution or winding up specifies an alternative method of determining then the value of such consideration or proceeds, then, for the purpose of this Subsection 2.3.4, the value of such consideration or proceeds securities shall be deemed to be the fair market value thereof as determined in accordance with good faith by the method set forth in such merger agreement, asset purchase agreement or other definitive transaction document, as applicableBoard of Directors which determination shall include consideration of the illiquidity of the securities. In the event of a transaction referenced in Subsection 2.3.4merger or other acquisition of the Corporation by another entity, the Distribution distribution date for purposes of the foregoing calculations shall be deemed to be the date such transaction closes. For the purposes of this Section 3(h), “trading day” shall mean any day on which the exchange or system on which the securities to be distributed are traded is open, and “closing prices” or “closing bid prices” shall be deemed to be: (i) for securities traded primarily on the New York Stock Exchange, the American Stock Exchange or Nasdaq, the last reported trade price or sale price, [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. Confidential Treatment Requested by Fluidigm Corporation as the case may be, at 4:00 p.m., New York time, on that day and (ii) for securities listed or traded on other exchanges, markets and systems, the market price as of the end of the “regular hours” trading period that is generally accepted as such for such exchange, market or system. If, after the date hereof, the benchmark times generally accepted in the securities industry for determining the market price of a stock as of a given trading day shall change from those set forth above, the fair market value shall be determined as of such other generally accepted benchmark times.

Valuation of Non-Cash Consideration. If any assets of the Corporation assets or other property of the Company distributed to stockholders the Holders in connection with any Deemed Liquidation Event are other than cash (the “Distribution”)cash, then the value of such assets or other property shall be their fair market value as mutually determined in good faith by the Board of DirectorsDirectors of the Company and the Holders of a majority of the then outstanding Series A Preferred Stock, or if the Board of Directors of the Company and the Holders of a majority of the then outstanding Series A Preferred Stock shall fail to agree, at the Company’s expense by an appraiser chosen by the Board of Directors and reasonably acceptable to the Holders of a majority of the then outstanding Series A Preferred Stock; except that any publicly-publicly traded securities to be distributed to stockholders shareholders in a Deemed Liquidation Event shall be valued as follows: (a) if If the securities are then traded on a national securities exchange or the Nasdaq Stock National Market (or a similar national quotation system), then the value of the securities shall be deemed to be the average of the closing prices of the securities on such exchange or system over the ten (10) trading day period ending five three (53) trading days prior to the Distribution;distribution; or (b) if If the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities over the thirty ten (3010) trading day period ending five three (53) trading days prior to the Distribution; and (c) if the consideration received by the Corporation or the proceeds to be distributed to holders of shares of the Corporation's capital stock is other than cash and the definitive merger agreement, asset purchase agreement or other definitive transaction document entered into with respect to such liquidation, dissolution or winding up specifies an alternative method of determining the value of such consideration or proceeds, then, for the purpose of this Subsection 2.3.4, the value of such consideration or proceeds shall be determined in accordance with the method set forth in such merger agreement, asset purchase agreement or other definitive transaction document, as applicabledistribution. In the event of a merger or other acquisition of the Company by another entity or other transaction referenced described in Subsection 2.3.4Section 4.4 hereof, the Distribution distribution date for purposes of the foregoing calculations shall be deemed to be the date such transaction closes. For purposes of this Section 4.5, “trading day” shall mean any day which the exchange or system on which the securities to be distributed are traded is open and “closing prices” or “closing bid prices” shall be deemed to be: (i) for securities traded primarily on the New York Stock Exchange, the American Stock Exchange or Nasdaq, the last reported trade price or sale price, as the case may be, at 4:00 p.m., New York time, on that day; and (ii) for securities listed or traded on other exchanges, markets and systems, the market price as of the end of the regular hours trading period that is generally accepted as such for such exchange, market or system. If, after the date hereof, the benchmark times generally accepted in the securities industry for determining the market price of a stock as of a given trading day shall change from those set forth above, the fair market value shall be determined as of such other generally accepted benchmark times.