Contract
Exhibit 4.5A
THIS NOTE AND THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR PLEDGED IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
(WHICH MAY BE COUNSEL FOR THE COMPANY), OR OTHER EVIDENCE, REASONABLY ACCEPTABLE TO
IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE SECURITIES ACT. THIS NOTE MAY ONLY BE TRANSFERRED UPON
THE TERMS AND CONDITIONS CONTAINED IN THE NOTE AND IN AN AGREEMENT BETWEEN HOLDER
AND THE COMPANY
NOTE NUMBER E-3 (REVISED)
| US$5,000,000 | April 19, 0000 | |
| Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx |
1. Principal and Interest. Fluidigm Corporation (the “Company”), a
California corporation, for value received, hereby promises to pay to the order of Biomedical
Sciences Investment Fund Pte Ltd (the “Holder”) in lawful money of the United States of
America, the principal amount of Five Million Dollars (US$5,000,000), or such lesser amount as
shall equal the outstanding principal amount hereof, together with interest from the date of this
Note on the unpaid principal balance at a rate equal to 8.00% per annum, computed on the basis of
the actual number of days elapsed and a year of 365 days, compounded annually.
This Convertible Promissory Note (“Note”) is the third Note issued pursuant to that
certain Convertible Note Purchase Agreement dated August 7, 2006 (as amended, modified or
supplemented, the “Note Purchase Agreement”) between the Company and the Holder. Unless
defined herein, capitalized terms shall have the same meanings ascribed to them in the Note
Purchase Agreement.
Unless converted in accordance with Section 3, this Note shall become due and payable as to
both accrued interest and principal on the Payment Date (as defined in Section 3). This Note may
be prepaid by Company at any time, in accordance with the terms of Section 2 of this Note. Upon
payment in full of all principal and interest payable hereunder (including upon any conversion),
this Note shall be surrendered to the Company for cancellation. All payments hereon shall be
applied first to accrued interest and second to the reduction of principal.
2. Prepayment of Note. Upon five days prior written notice to Holder (the
“Prepayment Notice”), the Company may prepay this Note in whole or in part; provided that
any such prepayment will be applied first to the payment of expenses due under this Note, second to
interest accrued on this Note and third, if the amount of prepayment exceeds the amount of all such
expenses and accrued interest, to the payment of principal of this Note. In the event that the
Holder desires to avoid prepayment of the Note by the Company, the Holder must within five days of
its receipt of the Prepayment Notice deliver to the Company the Conversion Notice pursuant to
Section 3(c)(iii) electing to convert this Note, in which case this Note will not be prepaid as
provided in the Prepayment Notice and will instead be converted into shares of Series E Preferred
Stock of the Company in accordance with Section 3 of this Note.
3. Conversion.
(a) Conversion Events. Upon the earlier to occur of (i) an Initial Public Offering
(as defined below) or (ii) satisfaction of each of the Milestones pursuant to Section 3(b)(iv)
below (either, a “Conversion Event”), all of the then outstanding principal and accrued
interest owing under this Note shall convert into that number of shares of Series E Preferred Stock
of the Company determined by dividing (i) the aggregate principal and accrued interest owing under
this Note as of the date of such Conversion Event by (ii) the Conversion Price (as defined below).
Notwithstanding the foregoing, by complying with Section 3(c)(iii) hereof, the Holder may at any
time earlier elect to convert this Note into that number of shares of Series E Preferred Stock
determined by dividing (i) the aggregate principal and accrued interest owing under this Note as of
the date of the Conversion Notice (as defined in Section 3(c)(iii)) by (ii) the Conversion Price
(as defined below).
(b) Definitions. For purposes of this Note, the following terms shall have the
following meanings:
(i) The term “Change of Control Transaction” shall mean (i) the acquisition of the
Company by another entity by means of any transaction or series of related transactions (including,
without limitation, any stock acquisition, reorganization, merger or consolidation but excluding
any merger effected exclusively for the purpose of changing the domicile of the Corporation) other
than a transaction or series of transactions in which the holders of the voting securities of the
Company outstanding immediately prior to such transaction or series of transactions continue to
retain (either by such voting securities remaining outstanding or by such voting securities being
converted into voting securities of the surviving entity), as a result of shares in the Company
held by such holders prior to such transaction, at least fifty percent (50%) of the total voting
power represented by the voting securities of the Company or such surviving entity outstanding
immediately after such transaction or series of transactions; or (ii) a sale, transfer, lease or
other conveyance of all or substantially all of the assets of the Corporation.
(ii) The term “Conversion Price” shall mean US$3.60, subject to adjustment as set
forth in Section 5 below.
(iii) The term “Initial Public Offering” shall mean the first sale of securities of
the Company pursuant to an effective registration statement under the Securities Act of 1933 (the
“Securities Act”) after or in connection with which the outstanding shares of Preferred
Stock of the
Company have been converted into Common Stock pursuant to the Company’s then existing Articles
of Incorporation or otherwise.
(iv) Unless otherwise agreed in writing between the Company and the Holder, the term
“Milestones” shall mean satisfaction of the following on or before April 30, 2008:
(1) The
Company will have released the BioMark II Chip Loader to
manufacturing, as
demonstrated by a Manufacturing Release approval form duly signed-off. The approval is typically
characterized by having completed standard prototype development,
including building and testing of
suitable prototypes;
(2) The
approved BioMark II Chip Loader (or a subsequent version thereof)
will be made
generally available to customers, as demonstrated by a Company
product announcement;
(3) The
Subsidiary will also have
produced prototype BioMark II End Point Readers and made
them available to at least three (3) customers;
(4) The
Subsidiary will have at least maintained the number of Research and Development
Engineers hired to achieve Milestones in the First Note and the
Milestones in the Second Note; and
(5) The
Company will be manufacturing the BioMark II Chip Loader through the Subsidiary in
Singapore, and the Company’s then-current financial and
business plan will provide for the
manufacturing of the BioMark II End Point Readers through the
Subsidiary in Singapore; provided
that if the Holder provides the Company with a
Milestone Response Notice pursuant to Section
3(c)(ii) below, then the Company shall have 30 days following the Company’s receipt of the
Milestone Response Notice (the “Milestones Cure
Period”) to cure any failure to satisfy the
Milestones identified by the Holder in the
Milestone Response Notice.
(v) The term “Payment Date” shall mean April 19, 2009 or such later date as may be
mutually agreed in writing by Holder and the Company.
(c) Conversion Procedure.
(i) Conversion in Connection with Initial Public Offering. Upon the occurrence of an
Initial Public Offering as set forth in Section 3(a), this Note shall convert automatically without
further action on the part of the Holder hereof. Written notice shall be delivered to Holder at
the address last shown on the records of Company for Holder or given by Holder to Company for the
purpose of notice notifying Holder of the conversion effected or to be effected, specifying the
Conversion Price, the date on which such conversion occurred or is expected to occur and calling
upon such Holder to surrender to Company, in the manner and at the place designated, the Note.
(ii) Conversion in Connection with Satisfaction of Milestones. If the Company
reasonably believes that it has satisfied all of the Milestones, it may send written notice thereof
(the “Milestone Completion Notice”) to the Holder (at the address last shown on the records
of the Company for the Holder or given by Holder to Company for the purpose of notice)
specifying the Conversion Price, the date on which the Company reasonably believes all of the
Milestones were satisfied (the “Notified Milestone Completion Date”), together with a duly
executed compliance certificate dated as of the Notified Milestone Completion Date substantially in
the form attached hereto as Exhibit A (the “Compliance Certificate”), and calling
upon Holder to surrender to the Company the Note. In the event that the Holder reasonably believes
that any of (i) the Milestones have not been satisfied or (ii) the representations and warranties
made in the Compliance Certificate are inaccurate in any material respect, the Holder may provide
written notice (the “Milestone Response Notice”) to the Company of such disagreement and/or
inaccuracy within 30 days of its receipt of the Milestone Completion Notice. The Milestone
Response Notice shall specify in reasonable detail the reasons for such disagreement and/or basis
for belief that any of the representations and warranties made in the Compliance Certificate are
inaccurate and shall be accompanied by reasonably available support documentation evidencing the
basis for such disagreement or belief. If the Holder shall fail to provide the Milestone Response
Notice within such time period, the Milestones shall be deemed satisfied as of the Notified
Milestone Completion Date and this Note shall be automatically converted as set forth in
Section 3(a). If the Holder shall have timely provided the Milestone Response Notice, the Company
and the Holder shall in good faith attempt to resolve their disagreement as to the satisfaction of
the Milestones and/or the accuracy of the representations and warranties in the Compliance
Certificate. If the Company and Holder are unable to resolve their disagreement within the
Milestones Cure Period, the Company may pay to the Holder the principal and interest owing under
this Note as of the Notified Milestone Completion Date (in which case the Note shall be cancelled
and surrendered) or may pursue any other remedy that may be available to it under applicable law.
(iii) Elective Conversion. If the Holder wishes to voluntarily convert this Note as
set forth in Section 3(a) hereof prior to a Conversion Event, the Holder shall surrender this Note
to the Company and provide the Company with a written notice (the “Conversion Notice”) to
that effect.
(iv) Certificate; Time of Conversion. Upon conversion of this Note, the Holder shall
promptly surrender this Note, duly endorsed, at the principal office of Company. At its expense,
the Company shall, as soon as practicable thereafter, issue and deliver to such Holder at such
principal office a certificate or certificates for the number of shares to which Holder shall be
entitled upon such conversion (bearing such legends as are required by this Note and the Note
Purchase Agreement and applicable state and federal securities laws in the opinion of counsel to
Company), together with any other securities and property to which Holder is entitled upon such
conversion under the terms of this Note, including a check payable to Holder for any cash amounts
payable as described in Section 3(d). Any such conversion of this Note shall be deemed to have
been made immediately prior to the Conversion Event as described in Section 3(a) (or in the case of
delivery of the Conversion Notice as set forth in Section 3(c)(iii), upon the Company’s receipt of
such Conversion Notice); provided, however, the Holder shall not be deemed a record
holder of such shares or a purchaser of such shares until the Holder has delivered the Note for
conversion. On and after such date, the Holder shall be treated as a purchaser of such shares
under the Note Purchase Agreement and shall be bound by the applicable terms of this Note and Note
Purchase Agreement.
(d) Fractional Shares. No fractional shares will be issued upon any conversion of
this Note. In lieu of any fractional share to which the Holder would otherwise be entitled, the
Company will pay to the Holder in cash that amount of the unconverted principal and interest
balance of this Note.
(e) Reservation of Shares. The Company will at all times reserve and keep available
out of its authorized but unissued shares or shares held in treasury, sufficient shares of Series E
Preferred Stock or other securities to permit the full conversion of the outstanding principal and
interest of this Note pursuant to the terms of this Note. In the event the Company shall have
insufficient shares of Series E Preferred Stock or other securities to permit the full conversion
of the outstanding principal and accrued interest of this Note pursuant to the terms hereof, the
Company hereby covenants and agrees that the Company shall use its commercially reasonable efforts
to seek board and shareholder approval of an amendment to the Company’s Articles of Incorporation
in order to authorize an increase in the number of authorized shares of Series E Preferred Stock or
other securities of the Company in a sufficient amount so that the aggregate number of shares of
Series E Preferred Stock or other securities issuable upon conversion of this Note will then be
authorized and available for issuance.
4. Change of Control Transaction. The Company shall provide the Holder with 15 days
written notice of the closing of a Change of Control Transaction, specifying in reasonable detail
the terms of such Change of Control Transaction. If the Holder shall not have voluntarily elected
to convert this Note as set forth in Section 3(c)(iii) within such 15 day period, the Company may
prepay the entire principal amount and interest owing under this Note as of the date of such
prepayment. The Holder shall thereafter promptly return the Note to the Company for cancellation.
5. Change in Series E Preferred Stock.
(a) Split, Subdivision or Combination of Series E Preferred Stock. In the event the
Company should at any time or from time to time after the date of issuance hereof split or
subdivide the outstanding shares of its Series E Preferred Stock (or other securities issuable upon
conversion of this Note) or issue additional shares of Series E Preferred Stock (or other
securities issuable upon conversion of this 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
issuable upon conversion of this 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 of
this Note shall be appropriately decreased so that the number of shares of Series E Preferred Stock
or other securities issuable upon conversion of this Note shall be increased in proportion to such
increase of outstanding shares of Series E Preferred Stock or other securities issuable upon
conversion of this Note, as applicable. If the number of shares of Series E Preferred Stock (or
other securities issuable upon conversion of this Note) outstanding at any time after the date
hereof is decreased by a combination of the outstanding shares of Series E Preferred Stock (or
other securities issuable upon conversion of this Note), then, following the record date of such
combination, the Conversion Price for this Note shall be appropriately increased so that the number
of shares of Series E Preferred Stock or other securities issuable on conversion hereof shall be
decreased in proportion to such
decrease in outstanding shares of Series E Preferred Stock or other securities issuable upon
conversion of this Note, as applicable.
(b) Reclassification etc. In case of any reclassification, capital reorganization, or
change in the Series E Preferred Stock (or other securities issuable upon conversion of this Note)
of the Company, 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(a) above), then appropriate adjustment shall be made to the
Conversion Price and kind of securities or other property issuable upon conversion of this Note so
that this Note shall be convertible upon the terms set forth herein 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 are issuable on conversion of this Note.
(c) Merger or Consolidation. Other than a Change of Control Transaction in connection
with which this Note has been converted or prepaid, if at any time 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 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 hereof shall be appropriately
adjusted so that the Holder shall receive upon conversion of this Note, 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 issuable upon conversion of this Note
would have been entitled in such acquisition if this Note had been converted immediately before
such acquisition.
6. Payment Due Date. If not previously converted into shares of Series E Preferred
Stock pursuant to Section 3 hereof and if not sooner prepaid by the Company pursuant to Section 2
hereof or accelerated and declared due and owing by the Holder pursuant to Section 7 hereof, the
principal amount and any accrued interest due thereon then outstanding under this Note will become
due and payable on the Payment Date.
7. Default. The Company shall be deemed to be in default under this Note in the event
(i) the Company shall fail to materially perform any covenant or agreement of the Company contained
in Section 4 of the Note Purchase Agreement for a period of 30 days after written notice of such
failure from Holder; (ii) the Company shall have failed to make payment of principal or interest
due on the Note when such principal and interest becomes due; or (iii) the Company shall commence,
whether voluntarily or involuntarily a case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or consent to any such relief or to the appointment of or
taking possession of its property by any official in an involuntary case or other proceeding
commenced against it. In the case of an event of default, the Holder may, by written notice to the
Company, declare the unpaid principal amount of this Note, all interest accrued and unpaid hereon,
and all other amounts payable hereunder to be immediately due and payable, without presentment,
demand, protest, or further notice of any kind, as well as enforce all other rights and
remedies available to the Holder under applicable law.
8. Notices. 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 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 Holder: | 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 |
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.
9. Amendments. This Note may be amended and any provision hereof waived with the
consent of the Company and the Holder.
10. No Rights as Shareholder. Nothing in this Note shall be construed as conferring
upon the Holder or any other person the right to vote or to consent or to receive notice as a
shareholder in respect of meetings of shareholders for the election of directors of the Company or
any other matters or any rights whatsoever as a shareholder of the Company until, and only to the
extent that, this Note shall have been converted.
11. Successors and Assigns. Subject to the restrictions on transfer described in
Section 12 and in the Note Purchase Agreement, the rights and obligations of the Company and
Investor shall be binding upon and benefit the successors, assigns, heirs, administrators and
transferees of the parties.
12. Transfer of Note and Securities Issuable on Conversion Hereof. Prior to the
conversion of this Note, this Note (or the underlying securities issuable upon conversion hereof)
may not be sold, assigned, transferred, pledged or otherwise disposed of by the Holder, in whole or
in part, without the prior written consent of the Company. With respect to any sale, assignment,
transfer, pledge or other disposition of the securities into which this Note may be converted after
conversion of this Note, the Holder may only transfer such securities pursuant to, and on the
conditions set forth in that certain Eighth Amended and Restated Investor Rights Agreement dated
June 13, 2006 between the Company and certain investors in the Company (including Holder), as may
be amended from time to time (the “Rights Agreement”). The Holder shall cause any proposed
purchaser, assignee, transferee or pledgee of such securities to agree in writing to take and hold
such securities subject to and upon the conditions specified in this Note, the Note Purchase
Agreement, and the Rights Agreement, including, without limitation, Sections 1.2, 1.3, 1.4, and
1.14 of the Rights Agreement.
13. Highest Lawful Rate. Anything herein to the contrary notwithstanding, if during
any period for which interest is computed hereunder, the amount of interest computed on the basis
provided for in this Note, together will all fees, charges, and other payments or rights which are
treated as interest under applicable law, as provided for herein or in any other document executed
in connection herewith, would exceed the amount of such interest computed on the basis of the
Highest Lawful Rate, the Company shall not be obligated to pay, and the Holder shall not be
entitled to charge, collect, receive, reserve, or take, interest in excess of the Highest Lawful
Rate, and during any such period the interest payable hereunder shall be computed on the basis of
the Highest Lawful Rate. As used herein, “Highest Lawful Rate” means the maximum
non-usurious rate of interest, as in effect from time to time, which may be charged, contracted
for, reserved, received, or collected by the Holder in connection with this Note under applicable
law. In accordance with this section, any amounts received in excess of the Highest Lawful Rate
shall be applied towards the prepayment of principal then outstanding.
14. Miscellaneous. The Company agrees to pay on demand all of the losses, costs, and
expenses (including, without limitation, attorneys’ fees and disbursements) which the Holder incurs
in connection with enforcement of this Note, or the protection or preservation of the Holder’s
rights under this Note, whether by judicial proceeding or otherwise. Such costs and expenses
include, without limitation, those incurred in connection with any workout or refinancing, or any
bankruptcy, insolvency, liquidation, or similar proceedings. The Company hereby waives
presentment, demand for performance, notice of non-performance, protest, notice of protest, and
notice of dishonor. No delay on the part of the Holder in exercising any right hereunder shall
operate as a waiver of such right or any other right. This Note is being delivered in and shall be
construed in accordance with the laws of the State of California without regard to the conflicts of
law provisions thereof. Any reference to “dollars” or “$” in this Note shall refer to the lawful
money of the United States of America.
IN WITNESS WHEREOF, the Company has caused this Convertible Promissory Note to be executed by
its officer thereunto duly authorized as of the date first above written.
| Dated: April 19, 2007 | Fluidigm Corporation | |||||
| a California corporation | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxxxxx
|
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| Name: | Xxxxx Xxxxxxxxxxx
|
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| Title: | Chief Executive Officer
|
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Acknowledged and Agreed: |
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| Holder | ||||||
| Biomedical Sciences Investment Fund Pte Ltd | ||||||
| By: | /s/ Xxx Xxxx Yeok
|
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| Name: | Xxx Xxxx Yeok
|
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| Title: | Director
|
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