EMPLOYEE LOAN AGREEMENT
Exhibit 10.15
THIS EMPLOYEE LOAN AGREEMENT (the “Agreement”) is entered into as of January 20, 2004,
by and between Fluidigm Corporation, a California corporation (the “Lender”), and Xxxxx X.
Xxxxxxxxxxx (“Borrower”).
RECITALS
A. Borrower is employed by the Lender as its Chief Executive Officer and President.
B. The Lender and Borrower desire that the Lender lend to Borrower the sum of Two Hundred
Fifty Thousand Dollars ($250,000.00) for the purposes described in Section 1 below.
C. Borrower owns 2,447,000 shares of the Common Stock of the Lender, of which 833,334 shares,
together with the other collateral described in the Stock Pledge Agreement, shall constitute
security for the Loan (as defined below).
NOW, THEREFORE, the Lender and Borrower agree as follows:
AGREEMENT
1. PAYMENT: The Lender will lend to Borrower the amount of Two Hundred Fifty Thousand Dollars
($250,000.00) (the “Loan”), such Loan to be made for the purposes of assisting Borrower to
pay any costs, fees, or expenses (including, without limitation, purchase consideration, broker’s
or agents commissions, mortgage points, closing costs, or similar costs or expenses) associated
with Borrower’s purchase of a principal residence in the San Francisco Bay Area (the
“Property”) and/or any improvements or other modifications made to any Property so
purchased.
2. CONDITIONS PRECEDENT: The Lender’s obligation to extend the Loan to Borrower pursuant to
this Agreement is expressly conditioned upon the satisfaction of or waiver by the Lender of all of
the following conditions precedent, each of which is exclusively for the benefit of the Lender:
2.1 Borrower shall have delivered to the Lender each of the following (herein collectively
referred to as “Loan Documents”):
(a) One (1) original promissory note in the amount of Two Hundred Fifty Thousand Dollars
($250,000.00) in substantially the same form as Exhibit A attached hereto (the
“Note”), with all uncompleted information fully completed;
(b) One (1) fully executed, validly acknowledged Stock Pledge Agreement, providing for the
pledge of 833,334 shares of Common Stock of the Lender and certain other collateral as security for
the Note (collectively, the “Pledged Collateral”), in substantially the same form as
Exhibit B attached hereto, with all uncompleted information fully completed (the “Stock
Pledge Agreement”);
C-1
(c) Two (2) fully executed Stock Powers and Assignments Separate From Certificate attached as
a part of Exhibit B hereto, with all uncompleted information fully completed, unless
otherwise indicated thereon (the “Stock Power”);
(d) All certificates representing the securities that constitute Pledged Collateral as of the
date of the closing of the Loan; and
(e) Two (2) fully executed Spousal Consents, in substantially the same form as
Exhibit C attached hereto, with all uncompleted information fully completed (the
“Spousal Consent”).
3. BORROWER’S REPRESENTATIONS AND WARRANTIES: Borrower hereby makes the following
representations and warranties to the Lender, which representations and warranties shall be true
and correct as of the date hereof and as of the date of the closing of the Loan, and Borrower
acknowledges that the Lender is relying on such representations in making the Loan:
3.1 The Borrower has good and marketable title to the Pledged Collateral free and clear of any
security interests, liens or encumbrances other than (i) joint ownership of the Pledged Collateral
with Borrower’s spouse, and (ii) a right of first refusal and certain repurchase rights in favor of
Lender. All of the shares that constitute Pledged Collateral are fully vested.
3.2 Other than the consent of Borrower’s spouse and the Lender, the consent of no other person
or entity is required to grant the Lender the security interest in the Pledged Collateral.
3.3 There are no actions, proceedings, claims or disputes pending or, to Borrower’s knowledge,
threatened against or affecting Borrower, the Pledged Collateral, or any other properties of
Borrower.
4. BORROWER’S ADDITIONAL OBLIGATIONS: Borrower shall take any and all further actions that may
from time to time be required to ensure that the Stock Pledge Agreement creates a security interest
in favor of the Lender, which shall secure the Note. Borrower shall not sell, hypothecate or
otherwise dispose of any interest in the Pledged Collateral and shall not encumber the Pledged
Collateral or permit any lien to encumber the Pledged Collateral.
5. REPAYMENT OF LOAN: Borrower shall pay to the Lender the outstanding principal balance of
the Note, together with all accrued, but unpaid interest thereon, and all other sums due hereunder,
under the Note, the Stock Pledge Agreement or under any other document executed by Borrower in
connection herewith in accordance with the terms and conditions of this Agreement, the Note, the
Stock Pledge Agreement or such other document.
6. MATURITY EVENT: The Note shall immediately become due and payable, without notice or
demand, upon the earlier to occur of January 20, 2011 or the occurrence of any “Maturity Event” as
defined in the Note.
7. INTEREST PAYABLE BY BORROWER: Interest shall accrue on the unpaid principal amounts of the
Note at the rate specified in the Note.
8. ENTIRE AGREEMENT: This Agreement, together with the Loan Documents, constitutes the full
and entire understanding and agreement between the parties hereto with regard to the subject matter
hereof.
9. NO COVENANT FOR EMPLOYMENT OR ADVANCES: Borrower understands and acknowledges that neither
this Agreement nor any other Loan Document modifies Borrower’s at-will status at the Lender and
does not constitute an employment agreement or a promise by the Lender to continue Borrower’s
employment. Either the Lender or Borrower may terminate such employment relationship at any time,
with or without cause.
10. NOTICES: All notices and other communications required or permitted hereunder shall be in
writing and may be given by (a) personal delivery, (b) certified mail, postage prepaid,
return-receipt requested, (c) courier service, fully prepaid for next business day delivery, or (d)
facsimile. Any such notice shall be properly addressed to the address of the parties set forth on
the signature page hereof and shall be deemed to have been given (i) if personally delivered, when
delivered, (ii) if by certified mail, return-receipt requested, when delivered or refused, (iii) if
by courier service, on the next business day following deposit, cost prepaid, with Federal Express
or similar private carrier, or (iv) if by facsimile, instantaneously upon confirmation of receipt
of facsimile. The Lender or Borrower may change their respective addresses by giving notice of the
same in accordance with this paragraph. The term “business day” shall mean a day on which national
banks are open for business in San Francisco, California.
11. ASSIGNMENT: Borrower may not assign any of his rights and/or duties under this Agreement
(or any other Loan Document) without the prior written consent of the Lender, which consent may be
withheld in the sole discretion of Lender. All of the rights and/or duties of the Lender under the
Loan Documents, or any of them, shall be freely assignable. Subject to the foregoing, the rights
and obligations of the Borrower and Lender under the Loan Documents shall be binding upon and shall
inure to the benefit of the Borrower and Lender and their respective personal representatives,
successors, heirs, and permitted assigns.
12. INCOME TAX CONSEQUENCES: Borrower hereby acknowledges that the Lender has made no
representation or warranty to Borrower concerning the income tax consequences of the loan to
Borrower and Borrower shall be solely responsible for ascertaining and bearing such tax
consequences.
13. GOVERNING LAW: This Agreement shall be governed in all respects by the laws of the State
of California.
14. HEADINGS: The titles and headings of the various paragraphs hereof are intended for means
of reference and are not intended to place any construction on the provisions hereof.
15. INVALIDITY: If any provision of this Agreement shall be invalid or unenforceable, the
remaining provisions shall not be affected thereby and every provision hereof shall be valid and
enforceable to the fullest extent permitted by law.
16. COUNTERPARTS: This Agreement may be executed in one (1) or more separate counterparts,
each of which, when so executed, shall be deemed to be an original. Such counterparts, together,
shall constitute one and the same instrument.
17. MISCELLANEOUS: Time is of the essence of this Agreement, the Loan Documents, and any other
document executed by Borrower in connection therewith. If any action shall be commenced between the
parties with respect to the Loan, the prevailing party shall be entitled to recover its reasonable
attorneys’ fees and expenses from the non-prevailing party or parties. Liability hereunder shall
be joint and several among Borrower and all other persons and entities now or hereafter liable for
all or any part of the Loan. Notwithstanding any provision above to the contrary, the Lender may
waive in writing or by notation initialed hereon any obligation of Borrower provided for herein.
18. JURY TRIAL: EACH OF LENDER AND BORROWER TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTE OR THE STOCK
PLEDGE AGREEMENT.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.
| BORROWER: | THE LENDER: | |||||||
| FLUIDIGM CORPORATION | ||||||||
/s/ Xxxxx X. Xxxxxxxxxxx
|
By: | /s/ Xxxx X. Xxxxxxxx
|
||||||
| Name: Xxxx X. Xxxxxxxx | ||||||||
| Title: Chief Financial Officer | ||||||||
Address:
|
Address: 0000 Xxxxxxxxx Xxxxx | |||||||
| Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||||||
Telephone:
|
Telephone: (000) 000-0000 | |||||||
Facsimile:
|
Facsimile: (000) 000-0000 | |||||||
