August 3, 2006 Confidential Ciphergen Biosystems, Inc. 6611 Dumbarton Circle Fremont, CA 94555

Exhibit 10.49

August 3, 2006

Confidential

Ciphergen Biosystems, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000

Attn.: Xx. Xxxx X. Page
Chief Executive Officer

Dear Ms. Page:

This letter (the “Agreement”) will set forth the terms of the engagement whereby Ciphergen Biosystems, Inc., a Delaware corporation (“Ciphergen” or the “Company”), has requested Xxxxxxxxxxx & Co. Inc. (“Xxxxxxxxxxx”) to provide a fairness opinion (the “Opinion”), from a financial point of view, of the terms of the proposed sale (the “Sale”) of the assets of Ciphergen’s tools business to Bio-Rad Laboratories, Inc (“Bio-Rad”). Xxxxxxxxxxx intends to issue the Opinion as to the fairness of the terms of the proposed Sale, from a financial point of view, to the public stockholders of Ciphergen.

As the case may be, Xxxxxxxxxxx’x Opinion will be based on: 1) an evaluation of the consideration received; 2) a review of information concerning the results of operations and financial condition of the tools business; 3) to the extent Xxxxxxxxxxx deems appropriate, a comparison of Ciphergen’s tools business with companies regarded by Xxxxxxxxxxx as comparable with respect to nature of business, results of operations, financial condition, and by other factors considered relevant by Xxxxxxxxxxx; 4) a comparison of prices paid in transactions regarded by Xxxxxxxxxxx as comparable to the proposed Sale, if available; 5) a review of all documents and drafts thereof relating to the proposed Sale; and 6) such other matters and information as Xxxxxxxxxxx considers appropriate. It is understood that Xxxxxxxxxxx will not conduct any independent verification of information or material furnished by Ciphergen, that Xxxxxxxxxxx is entitled to rely on the accuracy and completeness of such information and material, that Xxxxxxxxxxx is entitled to rely solely on the accuracy and completeness of the public information and any other information supplied to us by Ciphergen regarding Bio-Rad and that Xxxxxxxxxxx will not conduct any independent verification of that information, and that Xxxxxxxxxxx’x Opinion may be qualified to reflect the foregoing.

Xxxxxxxxxxx’x Opinion will be furnished in writing. It is Xxxxxxxxxxx’x understanding that the Opinion will be included in a proxy statement to be filed with the SEC and provided to the stockholders of Ciphergen in order to receive shareholder approval for the Sale. Until the Opinion has been delivered in writing, neither the Opinion nor any advice (written or oral) of Xxxxxxxxxxx with regard to any aspect thereof shall be used, reproduced, disseminated, quoted or referred to at any time, in any manner or for any purpose, nor shall any public references be made to Xxxxxxxxxxx, except with Xxxxxxxxxxx’x prior written consent. It is understood that any fee owed to Xxxxxxxxxxx for advisory services may be required to be disclosed in the materials filed with the Securities and Exchange Commission and appropriate language may be required in such materials to reflect the relationship of Xxxxxxxxxxx to Ciphergen in rendering such advisory services.

Ciphergen will promptly supply Xxxxxxxxxxx directly with such information indicated in the second paragraph of this Agreement that Xxxxxxxxxxx deems necessary or appropriate for its financial review and analysis and the furnishing of its Opinion. Ciphergen will cooperate fully with Xxxxxxxxxxx in connection with its financial review and analysis and the rendering of the Opinion. The Company will represent and warrant to Xxxxxxxxxxx that, on the date of the Opinion, all such information provided by Ciphergen, including any projections, will be complete, accurate and not misleading.

For our services in providing the Opinion, Ciphergen will pay Xxxxxxxxxxx a cash fee of $250,000, of which $50,000 will be payable promptly upon signing of this Agreement, $150,000 will be payable upon delivery of the written Opinion to Ciphergen and the remaining balance of $50,000 will be payable upon closing of the Sale. In addition, Ciphergen will promptly reimburse Xxxxxxxxxxx for reasonable out-of-pocket expenses incurred by Xxxxxxxxxxx in preparing the Opinion, including but not limited to travel, legal expenses (if any), production and media expenses, and use of data base services related to the preparation of the Opinion.

Ciphergen and Xxxxxxxxxxx entered into a separate indemnification agreement attached as Exhibit A to the engagement letter for advisory services related to the Recapitalization dated August 3, 2006, providing for the indemnification of Xxxxxxxxxxx by Ciphergen, which shall also apply to this Agreement.

This agreement shall be governed and construed in accordance with the laws of the State of New York.

If the foregoing reflects your understanding of the arrangements between Ciphergen and Xxxxxxxxxxx with respect to Xxxxxxxxxxx’x engagement, please sign, date and return to the undersigned the enclosed copy of this letter, whereupon it shall become a binding agreement between Ciphergen and Oppenheimer.

	Very truly yours, Xxxxxxxxxxx & Co. Inc.
	By:	/s/ Xxx Xxxxx
		Xxx Xxxxx
		Managing Director

ACCEPTED: Ciphergen Biosystems, Inc.
By:	/s/ Xxxxx X. Xxxxxxxxxxxx on behalf of
	Xxxx X. Page
	Chief Executive Officer

Xxxxx X. Xxxxxxxxxxxx
EVP Sales & Marketing

Date: 8/3/06