sv1za
As filed with the Securities and Exchange Commission on
September 22, 2008
Registration
No. 333-150227
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
AMENDMENT NO. 11 TO
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
FLUIDIGM CORPORATION
(Exact name of Registrant as
specified in its charter)
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Delaware
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3826
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77-0513190
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(State or other jurisdiction
of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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7000 Shoreline Court, Suite 100
South San Francisco, CA 94080
(650) 266-6000
(Address, including zip code,
and telephone number,
including area code, of Registrant’s principal executive
offices)
Gajus V. Worthington
President and Chief Executive Officer
7000 Shoreline Court, Suite 100
South San Francisco, CA 94080
(650) 266-6000
(Name, address, including zip
code, and telephone number,
including area code, of agent for service)
Copies to:
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David J. Segre
Robert F. Kornegay
Asaf H. Kharal
Wilson Sonsini Goodrich & Rosati P.C.
650 Page Mill Road
Palo Alto, CA 94304
Telephone:
(650) 493-9300
Telecopy:
(650) 493-6811
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William M. Smith
Vice President, Legal Affairs
and General Counsel
7000 Shoreline Court, Suite 100
South San Francisco, CA 94080
Telephone: (650) 266-6000
Telecopy: (650) 871-7152
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Charles K. Ruck
B. Shayne Kennedy
Latham & Watkins LLP
650 Town Center Drive,
20th Floor
Costa Mesa, CA 92626
Telephone: (714) 540-1235
Telecopy: (714) 755-8290
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Approximate date of commencement of proposed sale to the
public: As soon as practicable after the
effective date of this Registration Statement.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act, as amended, check the
following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
“large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Ruler
12b-2 of the
Exchange Act. (Check one):
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Large accelerated
filer o
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Accelerated
filer o
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Non-accelerated
filer o
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Smaller reporting
company o
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION
FEE
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Proposed Maximum
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Amount of
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Title of Each Class of
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Aggregate
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Registration
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Securities to be Registered
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Offering Price(1)
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Fee(2)(3)
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Common Stock $0.001 par value per share
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97,520,000
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$3,832.54
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(1)
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Estimated solely for the purpose of
computing the amount of the registration fee pursuant to Rule
457(o) under the Securities Act. Includes $12,720,000 of shares
that the underwriters have the option to purchase to cover
over-allotments, if any.
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(2)
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Calculated pursuant to Rule 457(o)
under the Securities Act based on an estimate of the proposed
maximum offering price.
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(3)
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$3,832.54 previously paid.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment that
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as
the Securities and Exchange Commission, acting pursuant to such
Section 8(a), may determine.
EXPLANATORY
NOTE
Fluidigm Corporation has prepared this Amendment No. 11 to
the Registration Statement on
Form S-1
(File No. 333-150227)
for the purpose of refiling Exhibit 4.2 to the Registration
Statement. This Amendment No. 11 does not modify any
provision of the prospectus that forms a part of the
Registration Statement, and accordingly such prospectus has not
been included herein.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 13.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth all expenses to be paid by the
registrant, other than estimated underwriting discounts and
commissions, in connection with this offering. All amounts shown
are estimates except for the SEC registration fee, the NASD
filing fee and the NASDAQ Global Market listing fee.
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SEC registration fee
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$
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3,833
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NASD filing fee
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9,700
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NASDAQ Global Market listing fee
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105,000
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Printing and engraving
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390,000
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Legal fees and expenses
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1,700,000
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Accounting fees and expenses
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850,000
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Blue sky fees and expenses (including legal fees)
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10,000
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Transfer agent and registrar fees
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2,500
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Miscellaneous
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28,967
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Total
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$
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3,100,000
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Item 14.
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Indemnification
of Directors and Officers.
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Section 145 of the Delaware General Corporation Law
authorizes a corporation’s board of directors to grant, and
authorizes a court to award, indemnity to officers, directors
and other corporate agents.
As permitted by Section 102(b)(7) of the Delaware General
Corporation Law, the registrant’s certificate of
incorporation includes provisions that eliminate the personal
liability of its directors and officers for monetary damages for
breach of their fiduciary duty as directors and officers.
In addition, as permitted by Section 145 of the Delaware
General Corporation Law, the bylaws of the registrant provide
that:
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The registrant shall indemnify its directors and officers for
serving the registrant in those capacities or for serving other
business enterprises at the registrant’s request, to the
fullest extent permitted by Delaware law. Delaware law provides
that a corporation may indemnify such person if such person
acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
registrant and, with respect to any criminal proceeding, had no
reasonable cause to believe such person’s conduct was
unlawful.
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The registrant may, in its discretion, indemnify employees and
agents in those circumstances where indemnification is not
required by law.
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The registrant is required to advance expenses, as incurred, to
its directors and officers in connection with defending a
proceeding, except that such director or officer shall undertake
to repay such advances if it is ultimately determined that such
person is not entitled to indemnification.
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The registrant will not be obligated pursuant to the bylaws to
indemnify a person with respect to proceedings initiated by that
person, except with respect to proceedings authorized by the
registrant’s Board of Directors or brought to enforce a
right to indemnification.
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The rights conferred in the bylaws are not exclusive, and the
registrant is authorized to enter into indemnification
agreements with its directors, officers, employees and agents
and to obtain insurance to indemnify such persons.
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The registrant may not retroactively amend the bylaw provisions
to reduce its indemnification obligations to directors,
officers, employees and agents.
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The registrant’s policy is to enter into separate
indemnification agreements with each of its directors and
officers that provide the maximum indemnity allowed to directors
and executive officers by Section 145 of the Delaware
General Corporation Law and also provides for certain additional
procedural protections. The registrant also maintains directors
and officers insurance to insure such persons against certain
liabilities.
These indemnification provisions and the indemnification
agreements entered into between the registrant and its officers
and directors may be sufficiently broad to permit
indemnification of the registrant’s officers and directors
for liabilities (including reimbursement of expenses incurred)
arising under the Securities Act.
The underwriting agreement filed as Exhibit 1.1 to this
registration statement provides for indemnification by the
underwriters of the registrant and its officers and directors
for certain liabilities arising under the Securities Act and
otherwise.
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Item 15.
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Recent
Sales of Unregistered Securities.
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In the three years prior to the filing of this registration
statement, the registrant has issued the following unregistered
securities:
(a) From March 2005 through July 17, 2007, Fluidigm
Corporation, a California corporation, issued and sold an
aggregate of 134,561 shares of its common stock upon the
exercise of options issued to certain employees, directors and
consultants under the registrant’s 1999 Stock Option Plan,
as amended, at exercise prices ranging from $1.05 to $2.90, for
aggregate consideration of $188,442. From July 18, 2007
through May 22, 2008, the registrant issued and sold
an aggregate of 71,634 shares of its common stock upon the
exercise of options issued to certain employees, directors and
consultants under the registrant’s 1999 Stock Option Plan,
as amended, at exercise prices ranging from $1.05 to $4.76 per
share, for aggregate consideration of $123,346.
(b) From March 2005 through July 17, 2007, Fluidigm
Corporation, a California corporation, granted to certain of its
employees, directors and consultants under the registrant’s
1999 Stock Option Plan, as amended, options to purchase an
aggregate of 1,138,869 shares of its common stock at
exercise prices ranging from $1.05 to $4.76 per share. From
July 18, 2007 through May 22, 2008, the registrant
granted to certain of its employees, directors and consultants
under the registrant’s 1999 Stock Option Plan, as amended,
options to purchase an aggregate of 129,200 shares of the
registrant’s common stock at exercise prices ranging from
$4.83 to $8.40 per share.
(c) In March and December 2005, Fluidigm Corporation, a
California corporation, pursuant to a loan and security
agreement, issued and sold warrants to purchase
106,122 shares of its Series D Preferred Stock to one
accredited investor at an exercise price of $9.80 per share. In
connection with the registrant’s reincorporation into the
State of Delaware on July 18, 2007, the warrant was
converted into a warrant to purchase an equal number of shares
of the registrant’s Series D Preferred Stock.
(d) In November 2005, Fluidigm Corporation, a California
corporation, issued and sold 20,000 shares of its common
stock to one accredited investor at an issuance price of $1.96
per share for aggregate monetary consideration of $39,200, which
amount was deemed paid by the transfer of certain rights granted
to registrant pursuant to the terms of a licensing agreement.
(e) In December 2005, Fluidigm Corporation, a California
corporation, issued 237,895 shares of its Series D
Preferred Stock to one accredited investor in connection with
the conversion of a convertible promissory note at a conversion
price per share of $9.80.
(f) In June 2006, Fluidigm Corporation, a California
corporation, issued to one accredited investor a convertible
promissory notes in an aggregate principal amount of $3,000,000
convertible into shares of its Series D Preferred Stock. In
July 2007, the notes were converted into 330,612 shares of
Series D Preferred Stock at a conversion price per share of
$9.80.
(g) In April 2006, Fluidigm Corporation, a California
corporation, issued an aggregate of 61,223 shares of its
Series D Preferred Stock to UAB Research Foundation
pursuant to the terms of a Master Closing Agreement by and among
UAB Research Foundation, Oculus Pharmaceuticals, Inc. and
Fluidigm Corporation, at an issuance price of $9.80 per share,
for aggregate monetary consideration of $599,998, which
II-2
amount was deemed paid by the transfer of certain rights granted
to registrant pursuant to the terms of such agreement and the
achievement of certain milestones thereunder; at the request of
UAB, 26,530 of such shares were issued to Oculus
Pharmaceuticals, Inc., 10,204 of such shares were issued to
Athersys, Inc. and 24,489 of such shares were issued to UAB
Research Foundation.
(h) In June 2006, Fluidigm Corporation, a California
corporation, issued 76,530 shares of its Series D
Preferred Stock to one accredited investor in connection with
the exercise of a warrant to purchase shares of its
Series D Preferred Stock at an exercise price per share of
$9.80.
(i) From August 2006 through April 2007, Fluidigm
Corporation, a California corporation, issued three convertible
promissory notes to one accredited investor in an aggregate
principal amount of $15,000,000, all of which were convertible
into shares of its Series E Preferred Stock. In March 2007,
two of the notes were converted into an aggregate of
844,095 shares of the Series E Preferred Stock of
Fluidigm Corporation, a California corporation. In connection
with the registrant’s reincorporation into the State of
Delaware on July 18, 2007, the remaining outstanding
convertible promissory note was made convertible into shares of
the registrant’s Series E Preferred Stock.
(j) In March 2007, Fluidigm Corporation, a California
corporation, issued 28,571 shares of its common stock to
one accredited investor at an issuance price of $2.90 per share,
for aggregate monetary consideration of $83,000, which amount
was deemed paid by the transfer of certain rights granted to
registrant pursuant to the terms of a licensing agreement.
(k) In May 2007, Fluidigm Corporation, a California
corporation, granted to seven of its employees and directors
under the registrant’s 1999 Stock Option Plan, as amended,
options to purchase an aggregate of 219,142 shares of its
common stock at an exercise price of $4.76 per share.
(l) In connection with the registrant’s
reincorporation into the State of Delaware on July 18,
2007, the registrant issued an aggregate of
2,770,285 shares of common stock to a total of 128
stockholders in exchange for the outstanding shares of common
stock Fluidigm Corporation, a California corporation.
(m) In connection with the registrant’s
reincorporation into the State of Delaware on July 18,
2007, the registrant issued an aggregate of 779,220 shares
of the registrant’s Series A Preferred Stock to a
total of 41 investors in exchange for the outstanding shares of
Series A Preferred Stock of Fluidigm Corporation, a
California corporation.
(n) In connection with the registrant’s
reincorporation into the State of Delaware on July 18,
2007, the registrant issued an aggregate of
1,845,907 shares of the registrant’s Series B
Preferred Stock to a total of 35 investors in exchange for the
outstanding shares of Series B Preferred Stock of Fluidigm
Corporation, a California corporation.
(o) In connection with the registrant’s
reincorporation into the State of Delaware on July 18,
2007, the registrant issued an aggregate of
4,675,666 shares of the registrant’s Series C
Preferred Stock to a total of 62 investors in exchange for the
outstanding shares of Series C Preferred Stock of Fluidigm
Corporation, a California corporation.
(p) In connection with the registrant’s
reincorporation into the State of Delaware on July 18,
2007, the registrant issued an aggregate of
3,484,626 shares of the registrant’s Series D
Preferred Stock to a total of 52 investors in exchange for the
outstanding shares of Series D Preferred Stock of Fluidigm
Corporation, a California corporation.
(q) In connection with the registrant’s
reincorporation into the State of Delaware on July 18,
2007, the registrant issued an aggregate of
2,562,810 shares of the registrant’s Series E
Preferred Stock to a total of 35 investors in exchange for the
outstanding shares of Series E Preferred Stock of Fluidigm
Corporation, a California corporation.
(r) From October 2007 through December 2007, the registrant
issued and sold an aggregate of 2,512,841 shares of
Series E Preferred Stock to a total of seven investors at
$14.00 per share, for aggregate proceeds of $35,179,780.
II-3
(s) In December 2007, the registrant issued
1,714 shares of its common stock to one accredited investor
at an issuance price of $4.76 per share for aggregate monetary
consideration of $8,160, which amount was deemed paid by the
transfer of certain rights granted to registrant pursuant to the
terms of a licensing agreement.
(t) In December 2007, the registrant granted to one of its
directors under the registrant’s 1999 Stock Option Plan, as
amended, options to purchase an aggregate of 28,571 shares
of the registrant’s common stock at an exercise price of
$8.40 per share.
(u) In February and June 2008, the registrant issued a
warrant to purchase 28,572 and 57,142 shares of the
registrant’s Series E Preferred Stock to one
accredited investor at an exercise price of $14.00 per share.
(v) In February 2008, the registrant granted to one of its
executive officers under the registrant’s 1999 Stock Option
Plan, as amended, options to purchase an aggregate of
171,427 shares of the registrant’s common stock at an
exercise price of $8.40 per share.
(w) In April 2008, the registrant granted to 110 of its
employees, consultants and directors under the registrant’s
1999 Stock Option Plan, as amended, options to purchase an
aggregate of 546,711 shares of its common stock at an
exercise price of $11.16 per share.
(x) On May 12, 2008, the registrant issued
4,692 shares of its Series C Preferred Stock to
Imperial Bank pursuant to Imperial Bank’s net exercise of
its warrant to purchase up to 11,795 shares of
Series C Preferred Stock. The remainder of the warrant was
cancelled pursuant to the terms of the net exercise.
(y) In June 2008, the registrant granted to seven of its
employees and consultants under the registrant’s 1999 Stock
Option Plan, as amended, options to purchase an aggregate of
24,426 shares of its common stock at an exercise price of
$11.97 per share.
(z) In August 2008, the registrant granted to eight of its
employees under the registrant’s 1999 Stock Option Plan, as
amended, options to purchase an aggregate of 18,426 shares
of its common stock at an exercise price of $12.71 per share.
None of the foregoing transactions involved any underwriters,
underwriting discounts or commissions, or any public offering,
and the registrant believes that each transaction was exempt
from the registration requirements of the Securities Act in
reliance on the following exemptions:
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with respect to the transactions described in paragraphs
(a) and (b), Rule 701 promulgated under the Securities
Act as transactions pursuant to a compensatory benefit plan
approved by the registrant’s Board of Directors;
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with respect to the transactions described in paragraphs (1)
through (q), Rule 145(a)(2) promulgated under the
Securities Act as transactions pursuant to a plan or agreement
for statutory merger or similar plan or acquisition in which
securities of the registrant were exchanged for the securities
of Fluidigm Corporation, a California corporation, the sole
purpose of which was to change the registrant’s domicile
solely within the United States, and a Permit granted pursuant
to Section 25121 of the California Corporations Code; and
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with respect to the transactions described in paragraphs
(c) through (k) and paragraphs (r) through (z),
Section 4(2) of the Securities Act, or Rule 506 of
Regulation D promulgated thereunder, as transactions by an
issuer not involving a public offering. Each recipient of the
securities in this transaction represented his or her intention
to acquire the securities for investment only and not with a
view to, or for resale in connection with, any distribution
thereof, and appropriate legends were affixed to the share
certificates issued in each such transaction. In each case, the
recipient received adequate information about the registrant or
had adequate access, through his or her relationship with the
registrant, to information about the registrant.
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Item 16.
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Exhibits
and Financial Statement Schedules.
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(a) Exhibits. The following exhibits are
included herein or incorporated herein by reference:
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Exhibit Number
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Description
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1
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.1(3)
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Form of Underwriting Agreement.
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3
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.1(3)
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Certificate of Incorporation of the Registrant, as currently in
effect.
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II-4
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Exhibit Number
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Description
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3
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.2(3)
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Form of Restated Certificate of Incorporation of the Registrant,
to be in effect upon the completion of this offering.
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3
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.3(3)
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Bylaws of the Registrant.
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3
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.4(3)
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Form of Amended and Restated Bylaws of the Registrant, to be in
effect upon completion of this offering.
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4
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.1(3)
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Specimen Common Stock Certificate of the Registrant.
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4
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.2(2)
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Series E Preferred Stock Purchase Agreement dated
June 13, 2006 through December 31, 2007 between the
Registrant and the Purchasers set forth therein, as amended.
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4
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.3(3)
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Eighth Amended and Restated Investor Rights Agreement between
the Registrant and certain holders of the Registrant’s
common stock named therein, including amendments No. 1 and
No. 2.
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4
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.4(2)(3)
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Loan and Security Agreement No. 4561 between the Registrant
and Lighthouse Capital Partners V, L.P. dated
March 29, 2005, including amendments Nos. 1 through 4.
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4
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.4A(3)
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Preferred Stock Purchase Warrant issued to Lighthouse Capital
Partners V, L.P. effective March 29, 2005.
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4
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.4B(3)
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Negative Pledge Agreement by and between the Registrant and
Lighthouse Capital Partners V, L.P. dated March 29,
2005.
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4
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.5(3)
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Convertible Note Purchase Agreement by and between Biomedical
Sciences Investment Fund Pte Ltd and the Registrant dated
August 7, 2006.
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4
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.5A(3)
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Convertible Promissory Note issued to Biomedical Sciences
Investment Fund Pte Ltd dated April 19, 2007, as
amended.
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4
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.6(3)
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Action By Written Consent of the holders of Preferred Stock of
the Registrant effective as of August 25, 2008 consenting
to the Conversion of all Preferred Stock.
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5
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.1(3)
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Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation.
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10
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.1(3)
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Form of Indemnification Agreement between the Registrant and its
directors and officers.
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10
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.2(3)
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1999 Stock Plan of the Registrant, as amended April 24,
2008.
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10
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.2A(3)
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Forms of agreements under the 1999 Stock Plan.
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10
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.3(3)
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2008 Equity Incentive Plan.
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10
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.3A(3)
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Forms of agreements under the 2008 Equity Incentive Plan.
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10
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.4(2)(3)
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Second Amended and Restated License Agreement by and between
California Institute of Technology and the Registrant effective
as of May 1, 2004.
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10
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.4A(2)(3)
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First Addendum, effective as of March 29, 2007, to Second
Amended and Restated License Agreement by and between California
Institute of Technology and the Registrant effective as of
May 1, 2004.
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10
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.5(2)(3)
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Co-Exclusive License Agreement between President and Fellows of
Harvard College and the Registrant effective as of
October 15, 2000.
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10
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.5A(2)(3)
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First Amendment to Co-Exclusive License Agreement between
President and Fellows of Harvard College and the Registrant
effective as of October 15, 2000.
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10
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.6(2)(3)
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Co-Exclusive License Agreement between President and Fellows of
Harvard College and the Registrant effective as of
October 15, 2000.
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10
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.7(2)(3)
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Co-Exclusive License Agreement between President and Fellows of
Harvard College and the Registrant effective as of
October 15, 2000.
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10
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.8(2)(3)
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Patent License Agreement by and between Gyros AB and the
Registrant dated January 9, 2003.
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10
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.8A(2)(3)
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Amendment No. 1 dated January 9, 2005 to Patent
License Agreement by and between Gyros AB and the Registrant
dated January 9, 2003.
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10
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.9(2)(3)
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Master Closing Agreement by and between UAB Research Foundation,
Oculus Pharmaceuticals, Inc. and the Registrant dated
March 7, 2003.
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10
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.9A(2)(3)
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License Agreement by and between UAB Research Foundation and the
Registrant dated March 7, 2003.
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II-5
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Exhibit Number
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Description
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10
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.10(2)(3)
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Amended and Restated Letter Agreement Regarding Application for
Incentives Under the Research Incentive Scheme for Companies
(RISC) dated March 27, 2008 (originally dated
October 7, 2005), by and between Singapore Economic
Development Board and Fluidigm Singapore Pte. Ltd.
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|
|
10
|
.10A(2)(3)
|
|
Supplement Dated January 11, 2006 to Letter Agreement
Relating to Application for Incentives under the Research
Incentive Scheme for Companies (RISC), dated October 7,
2005 between Singapore Economic Development Board and Fluidigm
Singapore Pte. Ltd.
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|
|
10
|
.11(2)(3)
|
|
Amended and Restated Letter Agreement Regarding Application for
Incentives Under the Research Incentive Scheme for Companies
(RISC) dated March 27, 2008 (originally dated
February 12, 2007), by and between Singapore Economic
Development Board and Fluidigm Singapore Pte. Ltd.
|
|
|
10
|
.12(2)(3)
|
|
Distribution Agreement by and between Eppendorf AG and the
Registrant effective as of April 1, 2005.
|
|
|
10
|
.12A(3)
|
|
First Amendment, effective as of December 1, 2007, to the
Distribution Agreement by and between Eppendorf AG and the
Registrant effective as of April 1, 2005.
|
|
|
10
|
.13(3)
|
|
Form of Employment and Severance Agreement between the
Registrant and each of its executive officers.
|
|
|
10
|
.14(3)
|
|
Consulting Agreement by and between the Registrant and Richard
DeLateur dated February 29, 2008.
|
|
|
10
|
.15(3)
|
|
Employee Loan Agreement with Gajus Worthington dated
January 20, 2004.
|
|
|
10
|
.15A(3)
|
|
Stock Repurchase Agreement between the Registrant and Gajus V.
Worthington dated April 10, 2008.
|
|
|
10
|
.16(3)
|
|
Offer Letter to Vikram Jog dated January 29, 2008.
|
|
|
10
|
.17(3)
|
|
Settlement Agreement and General Release of all Claims by and
between Michael Ybarra Lucero and the Registrant dated
March 20, 2008.
|
|
|
10
|
.18(2)(3)
|
|
Letter Agreement between President and Fellows of Harvard
College and the Registrant dated December 22, 2004.
|
|
|
10
|
.19(3)
|
|
Sublease, dated March 25, 2004, between Genome Therapeutics
Corporation as Sublessor and Fluidigm Corporation as Sublessee
and amendment thereto, and related master lease agreements and
amendments thereto.
|
|
|
10
|
.20(3)
|
|
Tenancy for Flatted Factory Space in Singapore between JTC
Corporation and the Registrant dated July 27, 2005 and August
12, 2008.
|
|
|
21
|
.1(3)
|
|
List of subsidiaries of Registrant.
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|
|
23
|
.1(3)
|
|
Consent of Independent Registered Public Accounting Firm.
|
|
|
23
|
.2(3)
|
|
Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation (included in Exhibit 5.1).
|
|
|
24
|
.1(3)
|
|
Power of Attorney.
|
|
|
|
|
(1)
|
|
To be filed by amendment.
|
|
(2)
|
|
Confidential treatment has been
requested with respect to certain portions of this exhibit.
Omitted portions have been filed separately with the Securities
and Exchange Commission.
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|
(3)
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|
Previously filed.
|
(b) Financial Statement Schedules.
All schedules have been omitted because the information required
to be presented in them is not applicable or is shown in the
consolidated financial statements or related notes.
Item 17. Undertakings.
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting
agreement certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
II-6
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) For the purpose of determining liability under the
Securities Act of 1933 to any purchaser, if the registrant is
subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to
an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on
Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness; provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such date of first use.
(4) For the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser to
the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchasers and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Amendment No. 11 to the
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of South San
Francisco, State of California, on the 22nd day of September
2008.
FLUIDIGM CORPORATION
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|
|
| |
By:
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/s/ Gajus
V. Worthington
|
Gajus V. Worthington
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 11 to the registration statement has been signed
by the following persons in the capacities indicated on the 22nd
day of September 2008.
| |
|
|
|
|
|
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Signature
|
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Title
|
|
Date
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|
|
|
/s/ Gajus
V. Worthington
Gajus
V. Worthington
|
|
President, Chief Executive Officer and Director (Principal
Executive Officer)
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|
September 22, 2008
|
|
|
|
|
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|
|
/s/ Vikram
Jog
Vikram
Jog
|
|
Chief Financial Officer (Principal Accounting and Financial
Officer)
|
|
September 22, 2008
|
|
|
|
|
|
|
|
*
Samuel
Colella
|
|
Director
|
|
September 22, 2008
|
|
|
|
|
|
|
|
*
Michael
W. Hunkapiller
|
|
Director
|
|
September 22, 2008
|
|
|
|
|
|
|
|
*
Elaine
V. Jones
|
|
Director
|
|
September 22, 2008
|
|
|
|
|
|
|
|
*
Kenneth
Nussbacher
|
|
Director
|
|
September 22, 2008
|
|
|
|
|
|
|
|
*
John
A. Young
|
|
Director
|
|
September 22, 2008
|
|
|
|
|
|
|
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*By:
|
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/s/ Gajus
V. Worthington
Gajus
V. Worthington
Attorney-in-Fact
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II-8
EXHIBIT INDEX
| |
|
|
|
|
|
Exhibit Number
|
|
Description
|
|
|
|
|
1
|
.1(3)
|
|
Form of Underwriting Agreement.
|
|
|
3
|
.1(3)
|
|
Certificate of Incorporation of the Registrant, as currently in
effect.
|
|
|
3
|
.2(3)
|
|
Form of Restated Certificate of Incorporation of the Registrant,
to be in effect upon the completion of this offering.
|
|
|
3
|
.3(3)
|
|
Bylaws of the Registrant.
|
|
|
3
|
.4(3)
|
|
Form of Amended and Restated Bylaws of the Registrant, to be in
effect upon completion of this offering.
|
|
|
4
|
.1(3)
|
|
Specimen Common Stock Certificate of the Registrant.
|
|
|
4
|
.2(2)
|
|
Series E Preferred Stock Purchase Agreement dated
June 13, 2006 through December 31, 2007 between the
Registrant and the Purchasers set forth therein, as amended.
|
|
|
4
|
.3(3)
|
|
Eighth Amended and Restated Investor Rights Agreement between
the Registrant and certain holders of the Registrant’s
common stock named therein, including amendments No. 1 and
No. 2.
|
|
|
4
|
.4(2)(3)
|
|
Loan and Security Agreement No. 4561 between the Registrant
and Lighthouse Capital Partners V, L.P. dated
March 29, 2005, including amendments Nos. 1 through 4.
|
|
|
4
|
.4A(3)
|
|
Preferred Stock Purchase Warrant issued to Lighthouse Capital
Partners V, L.P. effective March 29, 2005.
|
|
|
4
|
.4B(3)
|
|
Negative Pledge Agreement by and between the Registrant and
Lighthouse Capital Partners V, L.P. dated March 29,
2005.
|
|
|
4
|
.5(3)
|
|
Convertible Note Purchase Agreement by and between Biomedical
Sciences Investment Fund Pte Ltd and the Registrant dated
August 7, 2006.
|
|
|
4
|
.5A(3)
|
|
Convertible Promissory Note issued to Biomedical Sciences
Investment Fund Pte Ltd dated April 19, 2007, as
amended.
|
|
|
4
|
.6(3)
|
|
Action By Written Consent of the holders of Preferred Stock of
the Registrant effective as of August 25, 2008 consenting
to the Conversion of all Preferred Stock.
|
|
|
5
|
.1(3)
|
|
Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation.
|
|
|
10
|
.1(3)
|
|
Form of Indemnification Agreement between the Registrant and its
directors and officers.
|
|
|
10
|
.2(3)
|
|
1999 Stock Plan of the Registrant, as amended April 24,
2008.
|
|
|
10
|
.2A(3)
|
|
Forms of agreements under the 1999 Stock Plan.
|
|
|
10
|
.3(3)
|
|
2008 Equity Incentive Plan.
|
|
|
10
|
.3A(3)
|
|
Forms of agreements under the 2008 Equity Incentive Plan.
|
|
|
10
|
.4(2)(3)
|
|
Second Amended and Restated License Agreement by and between
California Institute of Technology and the Registrant effective
as of May 1, 2004.
|
|
|
10
|
.4A(2)(3)
|
|
First Addendum, effective as of March 29, 2007, to Second
Amended and Restated License Agreement by and between California
Institute of Technology and the Registrant effective as of
May 1, 2004.
|
|
|
10
|
.5(2)(3)
|
|
Co-Exclusive License Agreement between President and Fellows of
Harvard College and the Registrant effective as of
October 15, 2000.
|
|
|
10
|
.5A(2)(3)
|
|
First Amendment to Co-Exclusive License Agreement between
President and Fellows of Harvard College and the Registrant
effective as of October 15, 2000.
|
|
|
10
|
.6(2)(3)
|
|
Co-Exclusive License Agreement between President and Fellows of
Harvard College and the Registrant effective as of
October 15, 2000.
|
|
|
10
|
.7(2)(3)
|
|
Co-Exclusive License Agreement between President and Fellows of
Harvard College and the Registrant effective as of
October 15, 2000.
|
|
|
10
|
.8(2)(3)
|
|
Patent License Agreement by and between Gyros AB and the
Registrant dated January 9, 2003.
|
| |
|
|
|
|
|
Exhibit Number
|
|
Description
|
|
|
|
|
10
|
.8A(2)(3)
|
|
Amendment No. 1 dated January 9, 2005 to Patent
License Agreement by and between Gyros AB and the Registrant
dated January 9, 2003.
|
|
|
10
|
.9(2)(3)
|
|
Master Closing Agreement by and between UAB Research Foundation,
Oculus Pharmaceuticals, Inc. and the Registrant dated
March 7, 2003.
|
|
|
10
|
.9A(2)(3)
|
|
License Agreement by and between UAB Research Foundation and the
Registrant dated March 7, 2003.
|
|
|
10
|
.10(2)(3)
|
|
Amended and Restated Letter Agreement Regarding Application for
Incentives Under the Research Incentive Scheme for Companies
(RISC) dated March 27, 2008 (originally dated
October 7, 2005), by and between Singapore Economic
Development Board and Fluidigm Singapore Pte. Ltd.
|
|
|
10
|
.10A(2)(3)
|
|
Supplement Dated January 11, 2006 to Letter Agreement
Relating to Application for Incentives under the Research
Incentive Scheme for Companies (RISC), dated October 7,
2005 between Singapore Economic Development Board and Fluidigm
Singapore Pte. Ltd.
|
|
|
10
|
.11(2)(3)
|
|
Amended and Restated Letter Agreement Regarding Application for
Incentives Under the Research Incentive Scheme for Companies
(RISC) dated March 27, 2008 (originally dated
February 12, 2007), by and between Singapore Economic
Development Board and Fluidigm Singapore Pte. Ltd.
|
|
|
10
|
.12(2)(3)
|
|
Distribution Agreement by and between Eppendorf AG and the
Registrant effective as of April 1, 2005.
|
|
|
10
|
.12A(3)
|
|
First Amendment, effective as of December 1, 2007, to the
Distribution Agreement by and between Eppendorf AG and the
Registrant effective as of April 1, 2005.
|
|
|
10
|
.13(3)
|
|
Form of Employment and Severance Agreement between the
Registrant and each of its executive officers.
|
|
|
10
|
.14(3)
|
|
Consulting Agreement by and between the Registrant and Richard
DeLateur dated February 29, 2008.
|
|
|
10
|
.15(3)
|
|
Employee Loan Agreement with Gajus Worthington dated
January 20, 2004.
|
|
|
10
|
.15A(3)
|
|
Stock Repurchase Agreement between the Registrant and Gajus V.
Worthington dated April 10, 2008.
|
|
|
10
|
.16(3)
|
|
Offer Letter to Vikram Jog dated January 29, 2008.
|
|
|
10
|
.17(3)
|
|
Settlement Agreement and General Release of all Claims by and
between Michael Ybarra Lucero and the Registrant dated
March 20, 2008.
|
|
|
10
|
.18(2)(3)
|
|
Letter Agreement between President and Fellows of Harvard
College and the Registrant dated December 22, 2004.
|
|
|
10
|
.19(3)
|
|
Sublease, dated March 25, 2004, between Genome Therapeutics
Corporation as Sublessor and Fluidigm Corporation as Sublessee
and amendment thereto, and related master lease agreements and
amendments thereto.
|
|
|
10
|
.20(3)
|
|
Tenancy for Flatted Factory Space in Singapore between JTC
Corporation and the Registrant dated July 27, 2005 and August
12, 2008.
|
|
|
21
|
.1(3)
|
|
List of subsidiaries of Registrant.
|
|
|
23
|
.1(3)
|
|
Consent of Independent Registered Public Accounting Firm.
|
|
|
23
|
.2(3)
|
|
Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation (included in Exhibit 5.1).
|
|
|
24
|
.1(3)
|
|
Power of Attorney.
|
|
|
|
|
(1)
|
|
To be filed by amendment.
|
|
(2)
|
|
Confidential treatment has been
requested with respect to certain portions of this exhibit.
Omitted portions have been filed separately with the Securities
and Exchange Commission.
|
|
(3)
|
|
Previously filed.
|