Contract
Exhibit 4.4A
NEITHER THIS WARRANT NOR THE SHARES OF CAPITAL STOCK ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“1933 ACT”), OR ANY APPLICABLE STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN
ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE COMPANY, TO THE EFFECT THAT SUCH SALE
OR TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS.
| Warrant No. | Number of Shares: initially, 185,714 Series D Preferred Stock subject to increase as set forth below |
Fluidigm Corporation
Effective
as of March 29, 2005
Void after March 29, 2012
1. Issuance. This Preferred Stock Purchase Warrant (the “Warrant”) is issued to
Lighthouse Capital Partners V, L.P. by Fluidigm Corporation, a California corporation
(hereinafter with its successors
called the “Company”).
2. Purchase Price; Number of Shares.
(a) The registered holder of this Warrant (the “Holder”), commencing on the date hereof, is
entitled
upon surrender of this Warrant with the subscription form annexed hereto duly executed, at the
principal office of
the Company, to purchase from the Company, at a price per share of $2.80 (the “Purchase
Price”), 185,714 fully
paid and nonassessable shares of the Company’s Series D Preferred Stock, (the “Exercise
Quantity”), $0.001 par
value (the “Preferred Stock”).
(b) On the Commitment Termination Date, the Exercise Quantity shall automatically be increased
by
such additional number of shares (rounded to the nearest whole share) of Series D Preferred
Stock, if any, as is equal
to the amount determined by dividing (A) 4% of the Aggregate Advances under the Loan
Agreement, if any, by (B)
the Purchase Price
In addition to other terms which may be defined herein, the following terms, as used in this
Warrant, shall have the following meanings:
| (i) | “Aggregate Advances” means the aggregate original dollar amount of all Advances made under the Loan Agreement, whether such Advances are outstanding or prepaid, at the time of any scheduled adjustment to the Exercise Quantity. | ||
| (ii) | “Loan Agreement” means that certain Loan and Security Agreement No. 4561 dated March 29, 2005 between the Company and Lighthouse Capital Partners V, L.P.. |
Any capitalized term not defined herein shall have the meaning as set forth in the Loan Agreement.
1.
Until such time as this Warrant is exercised in full or expires, the Purchase Price and the
securities issuable upon exercise of this Warrant are subject to adjustment as hereinafter
provided. The person or persons in whose name or names any certificate representing shares of
Preferred Stock is issued hereunder shall be deemed to have become the holder of record of the
shares represented thereby as at the close of business on the date this Warrant is exercised with
respect to such shares, whether or not the transfer books of the Company shall be closed.
3. Payment of Purchase Price. The Purchase Price may be paid (i) in cash or by check, (ii) by
the
surrender by the Holder to the Company of any promissory notes or other obligations issued by
the Company, with
all such notes and obligations so surrendered being credited against the Purchase Price in an
amount equal to the
principal amount thereof plus accrued interest to the date of surrender, or (iii) by any
combination of the foregoing.
4. Net Issue Election. The Holder may elect to receive, without the payment by the Holder of
any
additional consideration, shares of Preferred Stock equal to the value of this Warrant or any
portion hereof by the
surrender of this Warrant or such portion to the Company, with the net issue election notice
annexed hereto duly
executed, at the principal office of the Company. Thereupon, the Company shall issue to the
Holder such number of
fully paid and nonassessable shares of Preferred Stock as is computed using the following
formula:
X
|
Y(A-B) | |||||
| A |
where: X =
|
the number of shares of Preferred Stock to be issued to the Holder pursuant to this Section 4. | |
Y =
|
the number of shares of Preferred Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 4. | |
A =
|
the Fair Market Value (defined below) of one share of Preferred Stock, as determined at the time the net issue election is made pursuant to this Section 4. | |
B =
|
the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4. |
“Fair Market Value” of a share of Preferred Stock (or fully paid and nonassessable shares of
the Company’s common stock, $0.001 par value (the “Common Stock”) if the Preferred Stock has been
automatically converted into Common Stock) as of the date that the net issue election is made (the
“Determination Date”) shall mean:
(i) If the net issue election is made in connection with and contingent upon the closing of the
sale of the Company’s Common Stock to the public in a public offering pursuant to a Registration
Statement under the Securities Act of 1933, as amended (a “Public Offering”), and if the Company’s
Registration Statement relating to such Public Offering (“Registration Statement”) has been
declared effective by the Securities and Exchange Commission, then the initial “Price to Public”
specified in the final prospectus with respect to such offering multiplied by the number of shares
of Common Stock into which each share of Preferred Stock is then convertible.
(ii) If the net issue election is not made in connection with and contingent upon a Public
Offering, then as follows:
(a) If traded on a securities exchange or the Nasdaq National Market, the fair
market value of the Common Stock shall be deemed to be the average of the closing or last reported
sale prices of the Common Stock on such exchange or market over the five day period ending five
trading days prior to the Determination Date, and the fair market value of the Preferred Stock
shall be deemed to be such fair market value of the Common Stock multiplied by the number of
shares of Common Stock into which each share of Preferred Stock is then convertible;
2.
(b) If otherwise traded in an over-the-counter market, the fair
market value of the
Common Stock shall be deemed to be the average of the closing ask prices of the Common Stock over
the five day period ending five trading days prior to the Determination Date, and the fair market
value of the Preferred Stock shall be deemed to be such fair market value of the Common Stock
multiplied by the number of shares of Common Stock into which each share of Preferred Stock is then
convertible; and
(c) If there is no public market for the Common Stock, then fair market value shall
be determined in good faith by the Company’s Board of Directors.
5. Partial Exercise. This Warrant may be exercised in part, and the Holder shall be entitled
to
receive a new warrant, which shall be dated as of the date of this Warrant, covering the
number of shares in respect
of which this Warrant shall not have been exercised.
6. Fractional Shares. In no event shall any fractional share of Preferred Stock be issued
upon any
exercise of this Warrant. If, upon exercise of this Warrant in its entirety, the Holder
would, except as provided in
this Section 6, be entitled to receive a fractional share of Preferred Stock, then the Company
shall issue the next
higher number of full shares of Preferred Stock, issuing a full share with respect to such
fractional share.
7. Expiration Date; Automatic Exercise. This Warrant shall expire at the close of
business on
March 29, 2012, and shall be void thereafter (the “Expiration Date”). Notwithstanding the
term of this Warrant
fixed pursuant to this Section 7, and provided Holder has received advance written notice of
at least twenty (20)
days and has not earlier exercised this Warrant, and provided this Warrant has not been
assumed by the successor
entity (or parent thereof), upon the consummation of a Merger (as defined below), this Warrant
shall automatically
be exercised pursuant to Section 4 hereof, without any action by Holder. “Merger” means: (i)
a sale of all or
substantially all of the Company’s assets to an Unaffiliated Entity (as defined below), or
(ii) the merger,
consolidation or acquisition of the Company with, into or by an Unaffiliated Entity (other
than a merger or
consolidation for the principle purpose of changing the domicile of the Company or a bona fide
round of preferred
stock equity financing), that results in the Company’s shareholders immediately prior to such
merger, consolidation,
or acquisition holding, immediately thereafter, less than a majority of the outstanding
voting securities of the
successor corporation or its parent. “Unaffiliated Entity” means any entity that is owned or
controlled by parties
who own less than twenty percent (20%) of the combined voting power of the voting securities
of the Company
immediately prior to such merger or sale of assets, consolidation or acquisition.
Notwithstanding the foregoing, in
the event that any outstanding warrants to purchase equity securities of the Company (it being
acknowledged and
agreed that options to acquire common stock issued to officers, directors, employees and
consultants shall not be
deemed “warrants”) are assumed by the successor entity of a Merger (or parent thereof), this
Warrant shall also be
similarly assumed and the automatic exercise provision in this Section 7 shall have no effect.
The Company agrees
to give the Holder written notice promptly after it has entered into a definitive agreement
relating to any proposed
Merger and written notice of termination of any definitive agreement relating to any proposed
Merger.
Notwithstanding anything to the contrary in this Warrant, (i) the Holder may expressly make
any voluntary exercise
of this Warrant contingent on, and effective immediately prior to, the consummation of such
Merger and (ii) any
automatic exercise of this Warrant in connection with a Merger shall be conditioned on
consummation of such
Merger and shall be effective immediately prior thereto.
8. Reserved Shares; Valid Issuance. The Company covenants that it will at all times from and
after
the date hereof reserve and keep available such number of its authorized shares of Preferred
Stock and Common
Stock free from all preemptive or similar rights therein, as will be sufficient to permit,
respectively, the exercise of
this Warrant in full and the conversion into shares of Common Stock of all shares of Preferred
Stock receivable
upon such exercise. The Company further covenants that such shares as may be issued pursuant
to such exercise
and/or conversion will, upon issuance, be duly and validly issued, fully paid and
nonassessable and free from all
taxes, liens and charges with respect to the issuance thereof.
9. Stock Splits and Dividends. If after the date hereof the Company shall subdivide the
Preferred
Stock, by split-up or otherwise, or combine the Preferred Stock, or issue additional shares of
Preferred Stock in
payment of a stock dividend on the Preferred Stock, the number of shares of Preferred Stock
issuable on the exercise
3.
of this Warrant shall forthwith be proportionately increased in the case of a subdivision or
stock dividend, or proportionately decreased in the case of a combination, and the Purchase Price
shall forthwith be proportionately decreased in the case of a subdivision or stock dividend, or
proportionately increased in the case of a combination.
10. Adjustments for Diluting Issuances. The antidilution rights applicable to the Series D
Preferred Stock of the Company are set forth in the Amended and Restated Articles of
Incorporation, as amended from time to time (the “Articles”), a true and complete copy in its
current form which has been made available to Holder. Such rights shall not be restated, amended
or modified in any manner which affects the Holder differently than the holders of outstanding
Series D Preferred Stock without such Holder’s prior written consent. The Company shall provide
the Holder hereof with any restatement, amendment or modification to the Articles promptly after
the same has been made.
11.
Mergers and Reclassifications. (a) Except as set forth in Section 7, If after the
date hereof the Company shall enter into any Reorganization (as hereinafter defined), then, as a
condition of such Reorganization, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the Holder, so that
the Holder shall thereafter have the right to purchase, at a total price not to exceed that
payable upon the exercise of this Warrant in full, the kind and amount of shares of stock and
other securities and property receivable upon such Reorganization by a holder of the number of
shares of Preferred Stock which might have been purchased by the Holder immediately prior to such
Reorganization, and in any such case appropriate provisions shall be made with respect to the
rights and interest of the Holder to the end that the provisions hereof (including without
limitation, provisions for the adjustment of the Purchase Price and the number of shares issuable
hereunder and the provisions relating to the net issue election) shall thereafter be applicable in
relation to any shares of stock or other securities and property thereafter deliverable upon
exercise hereof. For the purposes of this Section 11, the term “Reorganization” shall include
without limitation any reclassification, capital reorganization or change of the Preferred Stock
(other than as a result of a subdivision, combination or stock dividend provided for in Section 9
hereof), or any consolidation of the Company with, or merger of the Company into, another
corporation or other business organization (other than a merger in which the Company is the
surviving corporation and which does not result in any reclassification or change of the
outstanding Preferred Stock), or any sale or conveyance to another corporation or other business
organization of all or substantially all of the assets of the Company.
(b) Notwithstanding any other provision of this Warrant, in the event of an automatic
conversion of the Company’s outstanding Series D Preferred Stock into Common Stock in accordance
with the Company’s Articles, as in effect from time to time, this Warrant shall thereafter
represent the right to acquire for the aggregate Purchase Price (as then in effect) the number of
shares of Common Stock into which the number of shares of Preferred Stock issuable upon exercise
of this Warrant would have then been convertible.
12. Certificate of Adjustment. Whenever the Purchase Price is adjusted, as herein provided,
the
Company shall promptly deliver to the Holder a certificate of the Company’s chief financial
officer (or other
appropriate officer) setting forth the Purchase Price after such adjustment and setting forth
a brief statement of the
facts requiring such adjustment.
13. Notices of Record Date, Etc. In the event of:
(a) any taking by the Company of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any dividend or other
distribution, or any right
to subscribe for, purchase, sell or otherwise acquire or dispose of any shares of stock of any
class or any other
securities or property, or to receive any other right;
(b) any reclassification of the capital stock of the Company, capital reorganization of the
Company, consolidation or merger involving the Company, or sale or conveyance of all or
substantially all of its
assets; or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of the
Company;
4.
then in each such event the Company will provide or cause to be provided to the Holder a
written notice thereof. Such notice shall be provided at least twenty (20) business days prior to
the date specified in such notice on which any such action is to be taken.
14. Representations, Warranties and Covenants. This Warrant is issued and delivered by the
Company and accepted by each Holder on the basis of the following representations, warranties
and covenants made
by the Company:
(a) The Company has all necessary corporate power and authority to issue, execute and
deliver this Warrant and to perform its obligations hereunder. This Warrant has been duly
authorized issued,
executed and delivered by the Company and is the valid and binding obligation of the Company,
enforceable in
accordance with its terms, except as enforceability may be limited by bankruptcy or similar
laws relating to the
enforcement of creditors’ rights generally.
(b) The shares of Preferred Stock issuable upon the exercise of this Warrant have been duly
authorized and reserved for issuance by the Company and, when issued in accordance with the
terms hereof, will be
validly issued, fully paid and nonassessable.
(c) The issuance, execution and delivery of this Warrant do not, and the issuance of the
shares of Preferred Stock upon the exercise of this Warrant in accordance with the terms
hereof will not, (i) violate
or contravene the Company’s Articles or by-laws, or any law, statute, regulation, rule,
judgment or order applicable
to the Company, (ii) violate, contravene or result in a breach or default under any contract,
agreement or instrument
to which the Company is a party or by which the Company or any of its assets are bound or
(iii) require the consent
or approval of or the filing of any notice or registration with any person or entity (other
than such notices or filings
as may be required under applicable securities laws).
(d) As long as this Warrant is, or any shares of Preferred Stock issued upon exercise of this
Warrant or any shares of Common Stock issued upon conversion of such shares of Preferred Stock
are, issued and
outstanding, the Company will provide to the Holder the financial and other information
described in that certain
Loan and Security Agreement No. 4561 between the Company and Lighthouse Capital Partners V,
L.P. dated as of
March 29, 2005.
(e) As of the date hereof, the authorized capital stock of the Company consists of (i)
65,500,000 shares of Common Stock, of which 8,909,357 shares are issued and outstanding and
185,714 shares are
reserved for issuance upon the exercise of this Warrant with respect to Common Stock and the
conversion of the
Preferred Stock into Common Stock if this Warrant is exercised with respect to Preferred
Stock, (ii) 2,727,273
shares of Series A Preferred Stock, of which 2,727,273 are issued and outstanding shares,
(iii) 6,460,675 shares of
Series B Preferred Stock, of which 6,460,675 are issued and outstanding shares, (iv)
20,551,163 shares of Series C
Preferred Stock, of which 16,364,832 are issued and outstanding shares, and (v) 13,887,716
shares of Series D
Preferred Stock, of which 7,292,127 are issued and outstanding shares. Company has delivered
a capitalization
table to Holder summarizing the capitalization of the Company. At the request of Holder, not
more than once per
calendar quarter, the Company will provide Holder with a current capitalization table
indicating changes, if any, to
the number of outstanding shares of common stock and preferred stock.
15. Registration Rights. The Company grants to the Holder all the rights of a “Holder” [and
an “Investor” under the Company’s Amended and
Restated Investors’ Rights Agreement dated as of
December 18,
2003 (the “Rights Agreement”), including, without limitation, the registration rights
contained therein, and agrees to
amend the Rights Agreement so that (i) the shares of Common Stock issuable upon conversion of
the shares of
Preferred Stock issuable upon exercise of this Warrant shall be “Registrable Securities” and
(ii) the Holder shall be
a “Holder” [and an “Investor” for all purposes of such Rights Agreement.
16. Amendment. The terms of this Warrant may be amended, modified or waived only with the
written consent of the Holder and the Company.
5.
17. Representations and Covenants of the Holder. This Warrant has been entered into
by the
Company in reliance upon the following representations and covenants of the Holder, which by
its execution hereof
the Holder hereby confirms:
(a) Investment Purpose. The right to acquire Preferred Stock or the Preferred Stock
issuable upon exercise of the Holder’s rights contained herein will be acquired for investment
and not with a view to
the sale or distribution of any part thereof, and the Holder has no present intention of
selling or engaging in any
public distribution of the same except pursuant to a registration or exemption.
(b) Accredited Investor. Holder is an “accredited investor” within the meaning of Rule 501
of Regulation D, promulgated under the 1933 Act as presently in effect.
(c) Private Issue. The Holder understands (i) that neither the issuance of this Warrant nor
the issuance of any shares of the Company’s capital stock issuable upon exercise of the
Holder’s rights contained
herein has been registered under the 1933 Act or qualified under applicable state securities
laws on the ground that
the issuances contemplated by this Warrant will be exempt from the registration and
qualifications requirements
thereof, and (ii) that the Company’s reliance on such exemption is predicated on the
representations of the Holderset
forth in this Section 17.
(d) Financial Risk. The Holder has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of its investment and has
the ability to bear the
economic risks of its investment.
18. Notices, Transfers, Etc.
(a) Any notice or written communication required or permitted to be given to the Holder may
be given by certified mail or delivered to the Holder at the address most recently provided by
the Holder to the
Company.
(b) Subject to compliance with applicable federal and state securities laws, this Warrant may
be transferred by the Holder with respect to any or all of the shares purchasable hereunder.
Upon surrender of this
Warrant to the Company, together with the assignment notice annexed hereto duly executed, for
transfer of this
Warrant as an entirety by the Holder, the Company shall issue a new warrant of the same
denomination to the
assignee. Upon surrender of this Warrant to the Company, together with the assignment hereof
properly endorsed,
by the Holder for transfer with respect to a portion of the shares of Preferred Stock
purchasable hereunder, the
Company shall issue a new warrant to the assignee, in such denomination as shall be requested
by the Holder hereof,
and shall issue to such Holder a new warrant covering the number of shares in respect of which
this Warrant shall
not have been transferred.
(c) In case this Warrant shall be mutilated, lost, stolen or destroyed, the Company shall
issue
a new warrant of like tenor and denomination and deliver the same (i) in exchange and
substitution for and upon
surrender and cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant lost,
stolen or destroyed, upon
receipt of an affidavit of the Holder or other evidence reasonably satisfactory to the Company
of the loss, theft or
destruction of such Warrant
19. No Impairment. The Company will not, by amendment of its Articles or through any
reclassification, capital reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation,
issue or sale of securities or any other voluntary action, avoid or seek to avoid the
observance of performance of any
of the terms of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect the rights of
the Holder. In no event
shall any reclassification, capital reorganization, consolidation, merger, sale or conveyance
of assets, dissolution,
liquidation, issue or sale of securities or any other transaction be deemed an “impairment”
for purposes of this
Section 18 if the shares of the Company’s capital stock issuable upon exercise of this Warrant
are affected thereby in
the same manner as outstanding shares of such capital stock.
6.
20. Governing Law. The provisions and terms of this Warrant shall be governed by and
construed in accordance with the internal laws of the State of California without giving effect to its
principles regarding conflicts
of laws.
21. Successors and Assigns. This Warrant shall be binding upon the Company’s successors and
assigns and shall inure to the benefit of the Holder’s successors, legal representatives and
permitted assigns.
22. Business Days. If the last or appointed day for the taking of any action required or the
expiration
of any rights granted herein shall be a Saturday or Sunday or a legal holiday in California,
then such action may be
taken or right may be exercised on the next succeeding day which is not a Saturday or Sunday
or such a legal
holiday.
23. Value. The Company and the Holder agree that the value of this Warrant on the date of
grant is
$100.
| Fluidigm Corporation | ||||||
| By: | /s/ Xxxxx Xxxxxxxxxxx | |||||
| Name: | Xxxxx Xxxxxxxxxxx | |||||
| Title: | President & CEO | |||||
7.
Subscription
To:
|
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Date: |
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The
undersigned hereby subscribes for
shares of Preferred Stock covered by this Warrant. The
certificate(s) for such shares shall be issued in the name of the undersigned or as otherwise
indicated below:
Signature
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Name for Registration |
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Mailing Address |
1.
Net Issue Election Notice
| To: | Date: |
The undersigned hereby elects under Section 4 to surrender the right to purchase shares of
Preferred Stock pursuant to this Warrant. The certificate(s) for such shares issuable upon such net
issue election shall be issued in the name of the undersigned or as otherwise indicated below:
Signature
|
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Name for Registration |
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Mailing Address |
1.
Assignment
For value received hereby sells, assigns and transfers unto
the within
Warrant, and does hereby irrevocably constitute and appoint
its attorney to transfer the within Warrant on the books of the within named Company with full
power of substitution on the premises.
Dated:
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Signature
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Name for Registration |
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In the Presence of: |
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1.
