exv10w9







[***] Indicates
text has been omitted from this Exhibit pursuant to a confidential treatment
request and has been filed separately with the Securities and Exchange Commission.




Exhibit 10.9



 


MASTER CLOSING AGREEMENT




By and Among




FLUIDIGM CORPORATION,

a California corporation,




OCULUS PHARMACEUTICALS, INC.,

a Delaware corporation,




and




THE UAB RESEARCH FOUNDATION




dated




March 7, 2003



 



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE I DEFINITIONS	 	 	1	 
	 
	 	1.1	 	“Affiliate”	 	 	1	 
	 
	 	1.2	 	“Ancillary Documents”	 	 	2	 
	 
	 	1.3	 	“Assigned Rights”	 	 	2	 
	 
	 	1.4	 	“Cash Consideration”	 	 	2	 
	 
	 	1.5	 	“Closing”	 	 	2	 
	 
	 	1.6	 	“Closing Cash Consideration”	 	 	2	 
	 
	 	1.7	 	“Closing Date”	 	 	2	 
	 
	 	1.8	 	“Encumbrances”	 	 	2	 
	 
	 	1.9	 	“Fluidigm Series C Preferred Stock”	 	 	2	 
	 
	 	1.10	 	“License Agreement”	 	 	2	 
	 
	 	1.11	 	“New License Agreement”	 	 	2	 
	 
	 	1.12	 	“Sponsored Research Agreement”	 	 	2	 
	 
	 	1.13	 	“Technology”	 	 	2	 
	 
	 	1.14	 	“Transfer Taxes”	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II TRANSFER OF ASSIGNED RIGHTS AND LICENSE OF TECHNOLOGY	 	 	3	 
	 
	 	2.1	 	Transfer of Rights and License of Technology	 	 	3	 
	 
	 	2.2	 	Excluded Assets and Liabilities	 	 	3	 
	 
	 	2.3	 	Payment	 	 	3	 
	 
	 	2.4	 	Taxes	 	 	3	 
	 
	 	2.5	 	Assigned Rights	 	 	3	 
	 
	 	2.6	 	Unassignable Rights	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III THE CLOSING	 	 	4	 
	 
	 	3.1	 	The Closing	 	 	4	 
	 
	 	3.2	 	Termination of License Agreement	 	 	4	 
	 
	 	3.3	 	Agreements Between Fluidigm and UABRF	 	 	5	 
	 
	 	3.4	 	Other Documents	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF OCULUS	 	 	5	 
	 
	 	4.1	 	Organization	 	 	5	 
	 
	 	4.2	 	Authorization	 	 	5	 
	 
	 	4.3	 	No Conflicts; Consents	 	 	5	 
	 
	 	4.4	 	Title to Assigned Rights	 	 	6	 
	 
	 	4.5	 	No Assignment	 	 	6	 
	 
	 	4.6	 	Litigation and Claims	 	 	6	 
	 
	 	4.7	 	Distribution Agreement	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES OF FLUIDIGM	 	 	7	 
	 
	 	5.1	 	Organization	 	 	7	 
	 
	 	5.2	 	Authorization	 	 	7	 
	 
	 	5.3	 	No Conflicts; Consents	 	 	7	 
	 
	 	5.4	 	Litigation and Claims	 	 	8	 







i









 








TABLE OF CONTENTS
 (continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	5.5	 	Securities Laws Exemptions	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES OF UABRF	 	 	8	 
	 
	 	6.1	 	Authorization	 	 	8	 
	 
	 	6.2	 	No conflicts; Consents	 	 	8	 
	 
	 	6.3	 	Title to Technology	 	 	9	 
	 
	 	6.4	 	Litigation and Claims	 	 	9	 
	 
	 	6.5	 	Distribution Agreement	 	 	9	 
	 
	 	6.6	 	Investment Representations	 	 	10	 
	 
	 	6.7	 	Restrictions	 	 	10	 
	 
	 	6.8	 	Restrictive Legend	 	 	10	 
	 
	 	6.9	 	Notice of Proposed Transfers	 	 	11	 
	 
	 	6.10	 	Standoff Agreement	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII COVENANTS OF OCULUS	 	 	12	 
	 
	 	7.1	 	Conduct of Business	 	 	12	 
	 
	 	7.2	 	Access to Information	 	 	13	 
	 
	 	7.3	 	Regulatory Approvals	 	 	13	 
	 
	 	7.4	 	Satisfaction of Conditions Precedent	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII COVENANTS OF UABRF	 	 	13	 
	 
	 	8.1	 	Conduct of Business	 	 	13	 
	 
	 	8.2	 	Access to Information	 	 	14	 
	 
	 	8.3	 	Regulatory Approvals	 	 	14	 
	 
	 	8.4	 	Satisfaction of Conditions Precedent	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX COVENANTS OF FLUIDIGM	 	 	14	 
	 
	 	9.1	 	Regulatory Approvals	 	 	14	 
	 
	 	9.2	 	Satisfaction of Conditions Precedent	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X MUTUAL COVENANTS	 	 	15	 
	 
	 	10.1	 	Confidentiality	 	 	15	 
	 
	 	10.2	 	Publicity	 	 	15	 
	 
	 	10.3	 	Governmental Filings	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI CONDITIONS TO CLOSING	 	 	15	 
	 
	 	11.1	 	Conditions to Each Party’s Obligations	 	 	15	 
	 
	 	11.2	 	Conditions to Obligations of  Oculus and UABRF	 	 	16	 
	 
	 	11.3	 	Conditions to Obligations of Fluidigm	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII POST-CLOSING MATTERS	 	 	17	 
	 
	 	12.1	 	Additional Payments by Fluidigm	 	 	17	 
	 
	 	12.2	 	Settlement of Lawsuit	 	 	18	 






ii









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE XIII TERMINATION OF AGREEMENT	 	 	18	 
	 
	 	13.1	 	Termination by Fluidigm	 	 	18	 
	 
	 	13.2	 	Termination by UABRF	 	 	18	 
	 
	 	13.3	 	Mutual Consent	 	 	18	 
	 
	 	13.4	 	Effect of Termination	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIV SURVIVAL OF REPRESENTATIONS AND WARRANTIES	 	 	19	 
	 
	 	14.1	 	Survival of Representations and Warranties	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XV GENERAL	 	 	19	 
	 
	 	15.1	 	Governing Law	 	 	19	 
	 
	 	15.2	 	Assignment; Binding upon Successors and Assigns	 	 	19	 
	 
	 	15.3	 	Severability	 	 	19	 
	 
	 	15.4	 	Entire Agreement	 	 	20	 
	 
	 	15.5	 	Counterparts	 	 	20	 
	 
	 	15.6	 	Expenses	 	 	20	 
	 
	 	15.7	 	Other Remedies	 	 	20	 
	 
	 	15.8	 	Amendment	 	 	20	 
	 
	 	15.9	 	Waiver	 	 	20	 
	 
	 	15.10	 	Informal  Resolution	 	 	21	 
	 
	 	15.11	 	Mediation	 	 	21	 
	 
	 	15.12	 	Notices	 	 	21	 
	 
	 	15.13	 	Construction and Interpretation of Agreement	 	 	22	 
	 
	 	15.14	 	No Joint Venture	 	 	22	 
	 
	 	15.15	 	Absence of Third Party Beneficiary Rights	 	 	22	 
	 
	 	15.16	 	Further Assurances	 	 	23	 






iii









 





EXHIBITS AND SCHEDULES




	 	 	 
	Exhibit	 	Description
	A

	 	Amended and Restated Articles of Incorporation of Fluidigm
	B

	 	Form of New License Agreement
	C

	 	Form of Sponsored Research Agreement
	D

	 	Description of Technology
	 
	 	 
	Schedule

	 	Description
	4.6

	 	Pending Litigation






iv









 





MASTER CLOSING AGREEMENT




     THIS
MASTER CLOSING AGREEMENT is entered into as of March 7, 2003 by and among FLUIDIGM
CORPORATION, a California corporation (“Fluidigm”), OCULUS PHARMACEUTICALS, INC., a Delaware
corporation (“Oculus”), and THE UAB RESEARCH FOUNDATION (“UABRF”).



RECITALS




     A. Oculus and UABRF have entered into a license agreement dated September 21,
2001 (together with all amendments and modifications thereto, the “License Agreement”)
under which Oculus was granted an exclusive license to practice the intellectual property and
technology relating to nanovolume crystallization arrays described in Schedule A to the
License Agreement.



     B. The parties hereto have entered into a binding letter agreement dated
December 19, 2002 (the “Letter Agreement”) under which Oculus and UABRF have agreed to
terminate the License Agreement, UABRF has agreed to grant to Fluidigm an exclusive license
to practice the intellectual property and technology relating to nanovolume crystallization
arrays covered by the License Agreement, and Fluidigm and UABRF have agreed to enter into a
sponsored research agreement. In exchange for the rights to be acquired by Fluidigm as
contemplated by the Letter Agreement, Fluidigm has paid cash in the amount of [***]
pursuant to the Letter Agreement and has agreed to the payment of additional cash and
securities as specified in the Letter Agreement.



     C. The parties desire to enter into this Agreement to set out additional terms and
conditions related to the closing of the transactions, and the payments to be made by
Fluidigm, contemplated by the Letter Agreement.



     NOW, THEREFORE, in consideration of the representations, warranties and agreements herein
contained, the parties agree as follows:



ARTICLE I




DEFINITIONS




     As used in this Agreement, the following terms shall have the meanings set forth or
referenced below:



     1.1 “Affiliate” of any specified person shall mean any other person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
specified person. For purposes of this definition, “control” when used with respect to any
specified person means the power to direct or cause the direction of the management and policies of
such person, directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to
the foregoing.



-1-









 





     1.2 “Ancillary Documents” shall mean all documents or agreements required by this
Agreement to be executed or delivered by any party hereto.



     1.3 “Assigned Rights” shall mean any intellectual property rights owned by Oculus that
pertain in any way to the Technology, including without limitation any Inventions (as such term is
defined in Section 11 of the License Agreement) and any other patent rights and other intellectual
property rights therein owned by Oculus.



     1.4 “Cash Consideration” shall mean the sum of cash in the amount of [***] paid in
accordance with the Letter Agreement and the Closing Cash Consolidation.



     1.5 “Closing” shall mean the closing of the transactions contemplated by this
Agreement.



     1.6 “Closing Cash Consideration” shall mean cash in the amount of [***].



     1.7
“Closing Date” shall mean March 7, 2003, or such other date to which the parties
shall mutually agree in writing.



     1.8 “Encumbrances” shall mean restrictions on or conditions to transfer or assignment,
claims, liabilities, licenses, immunities from lawsuits to third parties, liens, pledges, mortgages
or security interests of any kind, whether accrued, absolute, contingent, or otherwise.



     1.9 “Fluidigm Series C Preferred Stock” shall mean the Series C Preferred Stock of
Fluidigm having the rights, preferences and privileges set forth in Fluidigm’s Articles of
Incorporation attached hereto as Exhibit A.



     1.10 “License Agreement” shall mean the license agreement between Oculus and
UABRF as described in Recital A.



     1.11 “New License Agreement” shall mean the license agreement between Fluidigm and
UABRF in the form of Exhibit B attached hereto.



     1.12 “Sponsored Research Agreement” shall mean the sponsored research agreement
between Fluidigm and UABRF in the form of Exhibit C attached hereto.



     1.13 “Technology” shall mean all intellectual property and other rights relating
to nanovolume crystallization arrays described in Exhibit D attached hereto.



     1.14
“Transfer Taxes” shall mean all sales taxes, use taxes, conveyance taxes,
transfer taxes, filing fees, recording fees, reporting fees and other similar duties, taxes and
fees, if any, imposed upon, or resulting from, the transfer of the Assigned Rights hereunder,
except federal, state or local income or similar taxes based upon or measured by revenue, income,
profit or gain from the transfer of the Assigned Rights or the operation of Oculus’ business prior
to the Closing or by any increase in the value of any of the Assigned Rights through the Closing
Date.



-2-









 





ARTICLE II




TRANSFER OF ASSIGNED RIGHTS AND LICENSE OF TECHNOLOGY




     2.1
Transfer of Rights and License of Technology. Oculus and UABRF have mutually
terminated the License Agreement as of January 30, 2003 and Oculus has surrendered all rights under
the License Agreement to UABRF. Subject to and upon the terms and conditions of this Agreement,
effective as of the Closing, Fluidigm and UABRF will enter into the New License Agreement. It is
the intent of the parties that all intellectual property rights subject to the License Agreement as
of November 27, 2002 shall be transferred and/or assigned to Fluidigm, and that all such rights
owned by UABRF shall be licensed to Fluidigm under the New License Agreement, subject to the
reservation by UABRF of certain rights as set forth in the License Agreement.



     2.2 Excluded Assets and Liabilities. Notwithstanding the provisions of Section 2.1,

(a) Fluidigm and Oculus expressly acknowledge and agree that Oculus shall not sell, transfer,
assign, convey or deliver to Fluidigm, and Fluidigm shall not purchase, acquire or accept from
Oculus, any right, title or interest of Oculus in or to any other property or assets of Oculus, and

(b) Fluidigm does not assume, and Oculus does not transfer or assign, any liabilities or
obligations, whether presently fixed and determined, contingent or otherwise, of Oculus.



     2.3 Payment. In
consideration of the execution of the New License Agreement and the
transfer of the rights thereunder, Fluidigm will deliver to UABRF the Closing Cash Consideration
and [ * * * ] shares of Fluidigm Series C
Preferred Stock valued at 2.58 per share, the price at
which Fluidigm sold and issued shares of its Series C Preferred Stock to other investors.



     2.4 Taxes. Fluidigm and Oculus shall each pay (or reimburse the other for) one-half of
all Transfer Taxes, whether imposed by law on Fluidigm and Oculus or otherwise.



     2.5 Assigned Rights. Oculus hereby sells, assigns and transfers to Fluidigm
all Assigned Rights, free and clear of all Encumbrances (except to the extent that the
settlement agreement pertaining to the Lawsuit (as such term is defined in Section 6.3) may
include an immunity from lawsuits for conduct arising prior to the date of the settlement
agreement).



     2.6 Unassignable Rights.



          (a) Notwithstanding any provision of this Agreement or any of the Ancillary Documents, but
subject to Section 11.3(c), to the extent that any of the Assigned Rights are not assignable or
otherwise transferable to Fluidigm, or if such assignment or transfer would constitute a breach
thereof or a violation of any applicable law, then neither this Agreement nor such Ancillary
Documents shall constitute an assignment or transfer (or an attempted assignment or transfer)
thereof until such consent, approval or waiver of such party or parties has been duly obtained.




          (b) If any consent required to transfer the Assigned Rights to Fluidigm has not been obtained
as of the Closing Date and Fluidigm nevertheless determines to proceed with the





-3-









 







Closing, Oculus and UABRF shall, at their own expense, continue to cooperate with Fluidigm and use
commercially reasonable efforts to obtain such consent after the Closing.




          (c) If any Assigned Right is not transferred to Fluidigm at the Closing pursuant to this
Agreement, Oculus and Fluidigm shall cooperate with each other in any reasonable arrangement
designed to provide for Fluidigm all of the benefits of such Assigned Rights. At Fluidigm’s
request, Oculus shall take all reasonable actions requested by Fluidigm to enforce for the benefit
of Fluidigm any and all rights of Oculus with respect to any such Assigned Right that is not
otherwise transferred pursuant to the provisions of this Agreement. Oculus agrees to hold in trust
for, and remit promptly to, Fluidigm all future collections or payments received by Oculus in
respect of all such Assigned Rights (net of all costs and expenses incurred by Oculus in respect
thereto); provided, however, that nothing herein shall create or provide any rights or
benefits in or to third parties.




          (d) If any intellectual property rights that are described in the New License Agreement cannot
be licensed to Fluidigm by UABRF under the New License Agreement without the consent of any third
party or without resulting in a breach or default of any agreement affecting such rights, UABRF
covenants and agrees that it shall not sue or otherwise take any legal action to restrict or
prevent Fluidigm and Fluidigm’s permitted assignees and sublicensees from practicing such
intellectual property rights as purported to be granted under the terms of the New License
Agreement.




          (e) If, subsequent to the Closing, a claim brought by any party challenging any of the
transactions contemplated hereby results in any ruling or order which has the result of frustrating
in a material way the transfer of any of the Assigned Rights hereunder to Fluidigm or the grant of
rights to Fluidigm under the New License Agreement or Fluidigm’s use thereof as provided herein,
Oculus and UABRF shall cooperate with Fluidigm in any reasonable arrangement designed to give
Fluidigm, as nearly as practicable, the same economic benefits as if such transfer or license, as
the case may be, had been consummated in accordance with the provisions hereof.




          (f) Nothing in this Section 2.6 shall be deemed to modify in any respect any of the
representations or warranties of Oculus and UABRF set forth herein or the conditions to Fluidigm’s
obligations contained in this Agreement, be deemed a waiver by Fluidigm of its right to have
received on or before the Closing Date an effective assignment of all of the Assigned Rights or be
deemed to constitute an agreement to exclude any assets from the Assigned Rights.




ARTICLE III




THE CLOSING




     3.1 The Closing. The Closing shall take place at the offices of Gray Cary Ware &
Freidenrich llp, 400 Hamilton Avenue, Palo Alto, California, at 11:00 a.m., Pacific Time,
on the Closing Date, or at such other time and place as Oculus, Fluidigm and UABRF may agree.



     3.2 Termination of License Agreement. On or before the Closing, Oculus and UABRF
shall deliver to Fluidigm an agreement and acknowledgment that the License



-4-









 




Agreement has been terminated and such other agreements and instruments as may be necessary or
appropriate to evidence the return by Oculus to UABRF of all rights under the License Agreement.




     3.3
Agreements Between Fluidigm and UABRF. At the Closing, Fluidigm and UABRF shall execute and deliver the New License Agreement and the
Sponsored Research Agreement.




     3.4 Other Documents. Each party shall deliver to the other at the Closing such other
documents, certificates, schedules, agreements and instruments required by this Agreement to
be delivered at such time.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF OCULUS 




     Oculus hereby represents and warrants to Fluidigm as follows:



     4.1 Organization. Oculus is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and has all requisite corporate power to
own, lease and operate its properties and to conduct its business as it is currently being
conducted. Oculus is duly qualified or licensed to do business as a foreign corporation in
each jurisdiction in which the failure to be so qualified or licensed would have a material adverse
effect on Oculus.



     4.2  Authorization. This Agreement and all of the Ancillary Documents to which
Oculus is or will be a party have been, or upon their execution and delivery hereunder will have
been, duly and validly executed and delivered by Oculus and constitute, or will constitute, valid
and binding agreements of Oculus, enforceable against Oculus in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally or by principles of public policy
or general equitable principles or the exercise of judicial discretion in accordance with such
principles. Oculus has the requisite corporate power and authority to execute and deliver this
Agreement and the Ancillary Documents to which Oculus is or will be a party and, at the time of the
Closing, will have the requisite corporate power and authority to carry out the transactions
contemplated by this Agreement and the Ancillary Documents. The execution, delivery and performance
by Oculus of this Agreement and the Ancillary Documents have been duly and validly approved and
authorized by the Board of Directors and shareholders of Oculus.



     4.3 No Conflicts; Consents. The execution and delivery by Oculus of this Agreement
and the Ancillary Documents to which Oculus is or will be a party do not, and the consummation
of the transactions contemplated hereby and thereby and compliance by Oculus with the
provisions hereof and thereof will not, contravene, conflict with, result in a breach of,
constitute a default (with or without notice or lapse of time, or both) under or violation of, or result
in the creation of any Encumbrance pursuant to, (i) any provision of the Certificate of Incorporation
or Bylaws of Oculus, (ii) any judgment, order, decree, rule, law or regulation of any court or



-5-









 




governmental authority, foreign or domestic, applicable to Oculus or to any of the Assigned Rights,
except where any such contravention, conflict, breach or default could not reasonably be expected
to have a material adverse effect on Fluidigm’s ownership of the Assigned Rights, or (iii) any
provision of any material agreement, instrument or understanding to which Oculus is a party or by
which Oculus is bound or any of the Assigned Rights are affected, except where any such
contravention, conflict, breach or default could not reasonably be expected to have a material
adverse effect on Fluidigm’s ownership of the Assigned Rights, nor will such actions give to any
other person or entity any interests or rights of any kind, including rights of termination,
acceleration or cancellation, in or with respect to any of the Assigned Rights, or result in the
creation of any Encumbrance on any of the Assigned Rights. No consent, approval, order or
authorization of, or registration, declaration or filing with, any third party or any governmental
authority is required to be obtained on the part of Oculus to permit the consummation of the
transactions contemplated by this Agreement or the Ancillary Documents.




     4.4 Title to Assigned Rights. Oculus has good and marketable title to all of the
Assigned Rights. All of the Assigned Rights are free and clear of any Encumbrances (except to the
extent that the settlement agreement pertaining to the Lawsuit (as such term is defined in Section
6.3) may include an immunity from lawsuits for conduct arising prior to the date of the settlement
agreement). At the Closing, Oculus will sell, convey, assign, transfer and deliver to Fluidigm
good, valid and marketable title and all right and interest in and to all of the Assigned Rights,
free and clear of any Encumbrances.



     4.5 No Assignment. Oculus has not sublicensed or otherwise transferred any material
rights under the License Agreement to any third party. As of
December 19, 2002, the License
Agreement was in full force and effect in accordance with its terms. Prior to the termination of
the License Agreement, no provisions of the License Agreement had been waived in any
material respect. Exhibit D lists all of the patent filings subject to the License
Agreement. To the knowledge of Oculus, UABRF is the owner of the patent rights within the
technology and inventions subject to the License Agreement and has not granted a license to such
technology and inventions to any person or entity other than Oculus.



     4.6 Litigation and Claims. Except as set forth on Schedule 4.6 attached hereto, there
are no claims, actions, suits, proceedings arbitrations or investigations in progress or pending
(or, to the knowledge of Oculus, threatened) before any court, tribunal or governmental agency
against Oculus that relate to any of the Assigned Rights. Oculus is not a party to any judgment,
decree, order or arbitration award (or agreement entered into in any administrative, judicial or
arbitration proceeding with any governmental authority) with respect to any of the Assigned Rights.



     4.7 Distribution Agreement. Oculus has entered into a mutually acceptable
agreement with UABRF regarding the distribution of any and all consideration to be paid by
Fluidigm in connection with the transactions contemplated by this Agreement.






-6-









 








ARTICLE V




REPRESENTATIONS AND WARRANTIES OF FLUIDIGM 




     Fluidigm hereby represents and warrants to Oculus and UABRF as follows:



     5.1 Organization. Fluidigm is a corporation duly organized, validly existing and
in good standing under the laws of the State of California and has all requisite corporate power to
own, lease and operate its properties, to conduct its business as it is currently being conducted.
Fluidigm is duly qualified or licensed to do business as a foreign corporation in each jurisdiction
in which the failure to be so qualified or licensed would have a material adverse effect on
Fluidigm.



     5.2
Authorization. This Agreement and all of the Ancillary Documents to which Fluidigm
is or will be a party have been, or upon their execution and delivery hereunder will have been,
duly and validly executed by Fluidigm and constitute, or will constitute, valid and binding
agreements of Fluidigm, enforceable against Fluidigm in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally or by principles of public policy or general
equitable principles or the exercise of judicial discretion in accordance with such principles.
Fluidigm has the requisite corporate power and authority to execute and deliver this Agreement and
the Ancillary Documents to which Fluidigm is or will be a party and, at the time of the Closing,
will have the requisite corporate power and authority to sell, issue and deliver the Securities
pursuant to this Agreement and to carry out the other transactions contemplated by this Agreement
and the Ancillary Documents. The execution, delivery and performance by Fluidigm of this Agreement
and the Ancillary Documents have been duly and validly approved and authorized by Fluidigm’s Board
of Directors and by all requisite action of Fluidigm’s stockholders.



     5.3
No Conflicts; Consents. The execution and delivery by Fluidigm of this Agreement
and the Ancillary Documents to which Fluidigm is or will be a party do not, and the consummation of
the transactions contemplated hereby and thereby and compliance by Fluidigm with the provisions
hereof and thereof will not, contravene, conflict with, result in a breach of, constitute a default
(with or without notice or lapse of time, or both) under or violation of, or result in the creation
of any Encumbrance pursuant to, (i) any provision of the Articles of Incorporation or Bylaws of
Fluidigm, (ii) any judgment, order, decree, rule, law or regulation of any court or governmental
authority, foreign or domestic, applicable to Fluidigm except where such any such contravention,
conflict, breach or default could not reasonably be expected to have a material adverse effect on
the consummation of the transactions contemplated hereby, or
(iii) any provision of any agreement, instrument or understanding to which Fluidigm is a party or
by which Fluidigm is bound, except where such any such contravention, conflict, breach or default
could not reasonably be expected to have a material adverse effect on the consummation of the
transactions contemplated hereby. No consent, approval, order or authorization of, or registration,
declaration or filing with, any third party or any governmental authority is required to be
obtained on the part of Fluidigm to permit the consummation of the transactions contemplated by
this Agreement or the Ancillary Documents.



-7-









 





     5.4 Litigation and Claims. There are no claims, actions, suits, proceedings,
arbitrations or investigations in progress or pending (or, to Fluidigm’s knowledge, threatened,
other than potential claims relating to the Interfering Patent (as such term is defined in Section
12.1(a) below), including, but not limited to, a possible interference) before any court, tribunal
or governmental agency, against or relating to Fluidigm, which, if determined adversely to
Fluidigm, would be likely to have a material adverse effect upon Fluidigm’s financial condition or
materially impair its ability to carry out and perform its obligations hereunder.



     5.5 Securities Laws Exemptions. Based in part on the representations of UABRF
contained in Section 6.5, the issuance of the Securities pursuant to the terms of this Agreement
will be exempt from the registration requirements of the Securities Act and the regulations
thereunder, and the registration, permit or qualification requirements of any applicable state
securities laws.



ARTICLE VI




REPRESENTATIONS AND WARRANTIES OF UABRF




     To the best knowledge of the UABRF Director and Dr. Larry DeLucas, UABRF hereby represents to
Fluidigm as follows:



     6.1 Authorization. This Agreement and the Ancillary Documents to which UABRF is
or will be a party have been, or upon their execution and delivery hereunder will have been, duly
and validly executed and delivered by UABRF and constitute, or will constitute, valid and binding
agreements of UABRF, enforceable against UABRF in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally or by principles of public policy or general equitable
principles or the exercise of judicial discretion in accordance with such principles. UABRF has
full power and authority to execute and deliver this Agreement and the Ancillary Documents to which
UABRF is or will be a party and, at the time of the Closing, will have all requisite power and
authority to carry out the transactions contemplated by this Agreement and the Ancillary Documents.
All university, foundation and other internal approvals necessary for UABRF to consummate the
transactions contemplated by this Agreement and the Ancillary Documents to which UABRF is or will
be a party have been obtained.



     6.2 No Conflicts; Consents. The execution and delivery by UABRF of this Agreement
and the Ancillary Documents to which UABRF is or will be a party do not, and the consummation of
the transactions contemplated hereby and thereby and compliance by UABRF with the provisions hereof
and thereof will not, contravene, conflict with, result in a breach of, constitute a default (with
or without notice or lapse of time, or both) under or violation of, or result in the creation of
any Encumbrance pursuant to, (i) any provision of the charter documents of UABRF, (ii) any
judgment, order, decree, rule, law or regulation of any court or governmental authority, foreign or
domestic, applicable to UABRF or to the Technology, except where any such contravention, conflict,
breach or default could not reasonably be expected to have a material adverse effect on Fluidigm’s
rights under the New License Agreement or the consummation of the transactions contemplated hereby,
or (iii) any provision of any agreement, instrument or understanding to which UABRF is a party or
by which UABRF is bound or any of



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the Technology is affected, except where such any such contravention, conflict, breach or default
could not reasonably be expected to have a material adverse effect on Fluidigm’s rights under the
New License Agreement or the consummation of the transactions contemplated hereby, nor will such
actions give to any other person or entity any interests or rights of any kind, including rights
of termination, acceleration or cancellation, in or with respect to any of the Technology, or
result in the creation of any Encumbrance on any of the Technology. No consent, approval, order or
authorization of, or registration, declaration or filing with, any third party or any governmental
authority is required to be obtained on the part of the UABRF to permit the consummation of the
transactions contemplated by this Agreement or the Ancillary Documents.




     6.3 Title to Technology. UABRF is the sole owner of the technology, inventions and
patent rights in the Technology and subject to the License Agreement and has not granted a
license to such technology, inventions and patent rights to any person or entity other than
Oculus. The License Agreement has been mutually terminated by UABRF and Oculus and
neither Oculus nor any other party has any rights thereunder. UABRF has the right to grant an
exclusive license to the technology, inventions, patent rights and other rights under the New
License Agreement to Fluidigm, free and clear of any Encumbrances of any nature whatsoever,
subject to those liens, encumbrances or restrictions which may arise as a result of the
settlement of the litigation between Oculus and Syrrx, Inc. (“Syrrx”) described in Schedule 4.6
(the “Lawsuit”), provided that Syrrx shall have no rights that may be exercised after the
Closing to practice the technology, inventions, patent rights and
other rights subject to the New License Agreement, and the potential infringement by Diversified Scientific, Inc. of the Licensed IP
Rights (as such term is defined in the New License Agreement) described in Section 2.2.3 of
the New License Agreement. Exhibit D lists all of the patent filings subject to the
License Agreement. UABRF is not aware of any third-party challenges to the ownership, validity or
entitlement to priority date of any of the patent filings subject to the License Agreement or
the New License Agreement, except for the Lawsuit between Oculus and Syrrx and the settlement
agreement related to said Lawsuit provided to Fluidigm pursuant to Section 7.2 of this
Agreement.



     6.4 Litigation and Claims. Except as set forth on Schedule 4.6 attached hereto, there
are no claims, actions, suits, proceedings, arbitrations or investigations in progress or
pending (or, to the knowledge of UABRF, threatened) before any court, tribunal or governmental agency

against UABRF that relate to any of the Technology. UABRF is not a party to any judgment,
decree, order or arbitration award (or agreement entered into in any administrative, judicial
or arbitration proceeding with any governmental authority) with respect to any of the Technology,
except to the extent that UABRF may be deemed to be a party thereto as a result of UABRF’s
status as a shareholder of Oculus and having a member on the Board of Directors of Oculus as
well as the status of Dr. Larry DeLucas as a member of the Board of Directors of Oculus and a
shareholder of Oculus.



     6.5 Distribution Agreement. UABRF has entered into a mutually acceptable
agreement with Oculus regarding the distribution of any and all consideration to be paid
by Fluidigm in connection with the transactions contemplated by this Agreement.



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     6.6 Investment Representations



          (a) UABRF is acquiring the shares of Fluidigm capital stock to be issued
hereunder (the “Securities”) for investment and not with the view to the public resale
or distribution thereof, and UABRF has no present intention of selling, granting any
participation in, or otherwise distributing the Securities, other than in accordance with the terms of a
Termination Agreement dated as of ____, 2003 between UABRF and Oculus.
UABRF understands that the Securities have not been registered under the Securities Act by reason
of a specific exemption thereunder, which depends upon, among other things, the bona fide nature of
UABRF’s investment intent as expressed herein.




          (b) UABRF acknowledges that the Securities must be held indefinitely unless they are
subsequently registered under the Securities Act or Fluidigm receives an opinion of counsel
satisfactory to Fluidigm that such registration is not required. UABRF is aware of the provisions
of Rule 144 promulgated under the Securities Act which permit limited resale of stock purchased in
a private placement subject to the satisfaction of certain conditions.




          (c) UABRF understands that no public market now exists for the Securities and that there can
be no assurance that a public market will ever exist for the Securities.




          (d) UABRF is an “accredited investor” as defined in the Securities Act, and has such knowledge
and experience in financial and business matters that it is capable of evaluating the merits and
risks of the investment in the Securities.




          (e) UABRF has been given the opportunity to obtain any information or documents related to,
and ask questions and receive answers about Fluidigm and its business, prospects and risks which
UABRF deems necessary, to evaluate the merits and risks related to UABRF’s investment in the
Securities and to verify the information UABRF received.




          (f) UABRF’s financial condition is such that it can afford to bear the economic risk of
holding the Securities for an indefinite period of time, and it has adequate means of providing for
its current needs and contingencies and to suffer a complete loss of its investment in such
Securities.




     6.7 Restrictions. No Securities shall be sold, assigned, transferred or pledged except
upon the conditions specified in this Agreement. UABRF will cause any proposed purchaser, assignee,
transferee or pledgee of the Securities to agree in writing to take and hold such securities
subject to the provisions and upon the conditions specified in this Agreement.



     6.8 Restrictive Legend. Each certificate representing the Securities shall (unless
otherwise permitted by the provisions of Section 6.9 below) be stamped or otherwise imprinted with
a legend in the following form (in addition to any legend required under applicable state
securities laws):




“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”). SUCH



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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.”




“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A MARKET
STAND-OFF AGREEMENT IN THE EVENT OF A PUBLIC OFFERING, A COPY OF WHICH
IS ON FILE WITH THE SECRETARY OF THE COMPANY.”



     UABRF consents to Fluidigm making a notation on its records and giving instructions to any
transfer agent of the Securities in order to implement the restrictions on transfer established in
Sections 6.7 through 6.10 of this Agreement.



     6.9 Notice of Proposed Transfers. UABRF and any transferee of any certificate
representing the Securities, by acceptance thereof, agrees to comply in all respects with the
restrictions on transfer contained in Sections 6.7 through 6.10 of this Agreement. Prior to any
proposed sale, assignment, transfer or pledge of any Securities (other than any transfer not
involving a change in beneficial ownership), unless there is in effect a registration statement
under the Securities Act covering the proposed transfer, the holder thereof shall give written
notice to Fluidigm of such holder’s intention to effect such transfer, sale, assignment or pledge.
Each such notice shall describe the manner and circumstances of the
proposed transfer, sale, assignment or pledge in sufficient detail, and shall be accompanied at such holder’s expense by
either (i) a written opinion of legal counsel who shall, and whose legal opinion shall be,
reasonably satisfactory to Fluidigm, addressed to Fluidigm, to the effect that the proposed
transfer of the Securities may be effected without registration under the Securities Act, or (ii) a
“no action” letter from the Securities and Exchange Commission (the “Commission”) to the effect
that the transfer of such Securities without registration will not result in a recommendation by
the staff of the Commission that action be taken with respect thereto, or (iii) any other evidence
reasonably satisfactory to counsel to Fluidigm, whereupon the holder of such Securities shall be
entitled to transfer such Securities in accordance with the terms of the notice delivered by the
holder to Fluidigm; provided, however, that no such legal opinion, “no action” letter or other
evidence shall be required with respect to a transfer to an affiliate of the holder. Each
certificate evidencing the Securities transferred as above provided shall bear, except if such
transfer is made pursuant to Rule 144, the appropriate restrictive legend set forth in Section 6.8
above, except that such certificate shall not bear such restrictive legend if, in the opinion of
counsel for such holder and Fluidigm, such legend is not required in order to establish compliance
with any provisions of the Securities Act or this Agreement.



     6.10 Standoff Agreement. UABRF agrees in connection with Fluidigm’s initial sale of
securities pursuant to an effective registration statement, upon notice by Fluidigm or the
underwriters managing such offering, not to sell, make any short sale of, loan, pledge (or




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otherwise encumber or hypothecate), grant any option for the purchase of, or otherwise directly or
indirectly dispose of any Securities (other than those included in the registration) without the
prior written consent of Fluidigm and such managing underwriters for such period of time as
Fluidigm’s Board of Directors establishes pursuant to its good faith negotiations with such
managing underwriters; provided, however that:




               (i) such agreement shall not exceed one hundred eighty (180) days;



               (ii) such agreement shall not apply to transfers to an affiliate, provided that such
affiliate agrees to be bound by the terms of such agreement, to the same extent as if such
transferee were the original party thereunder;



               (iii) UABRF shall not be subject to such agreement unless (A) all executive officers and
directors of Fluidigm, (B) all shareholders of Fluidigm holding more than 1% of Fluidigm’s
outstanding capital stock and (C) all holders of registration rights, are subject to or obligated
to enter into similar agreements; and



               (iv) if and when any person identified in clause (iii) is released, in whole or in part,
from such agreement (whether or not such release is contemplated at the time of the offering) or if
any such agreement is terminated, UABRF shall be concurrently released on a pro rata basis based on
the number of Securities held by such person and UABRF.



          (b) UABRF agrees that prior to the initial public offering it will not transfer
securities of Fluidigm unless each transferee agrees in writing to be bound by all of the
provisions of this Section 6.10, provided that this Section 6.10 shall not apply to transfers
pursuant to a registration statement.




     UABRF hereby consents to the placement of stop transfer orders with Fluidigm’s transfer agent
in order to enforce the foregoing provision and agrees to execute a market standoff agreement with
said underwriters in customary form consistent with the provisions of this Section 6.10.



ARTICLE VII




COVENANTS OF OCULUS




     7.1 Conduct of Business. During the period from the date of this Agreement to the
Closing, Oculus will conduct its business in the ordinary course consistent with past
practices. During the period from the date of this Agreement to the Closing, Oculus will not
without the prior written consent of Fluidigm:



          (a) encumber or permit to be encumbered any of the Technology or Assigned Rights;




          (b) dispose of any of the Technology or Assigned Rights;




          (c) waive or release any right or claim relating to any Technology or Assigned Rights; or




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          (d) agree to do any of the things described in the preceding clauses of this Section 7.1.



Fluidigm agrees that the foregoing restrictions will not prevent Oculus from entering into a
settlement agreement with Syrrx to settle the Lawsuit, provided that such settlement does not
involve the sale, transfer or assignment of the Technology or the Assigned Rights, or any rights in
any of the foregoing, or result in the creation of any Encumbrance on the Technology, the Assigned
Rights, or any rights in any of the foregoing.




     7.2 Access to Information. Until the earlier of the termination of this Agreement or
the Closing, Oculus will allow Fluidigm and its agents reasonable access upon reasonable notice and
during normal working hours to its files, books, records, and offices relating to the Technology
and Assigned Rights, except where prohibited by contract or protected by privilege. In furtherance
of the above, Fluidigm and its counsel and advisors shall have reasonable access during normal
business hours to pertinent contracts of Oculus, including an unsigned final version of the
settlement agreement between Oculus and Syrrx related to the Lawsuit, and drafts of such settlement
agreement (to the extent it is permissible under applicable confidentiality terms and with the
understanding that Oculus may be required to obtain the return or destruction by Fluidigm of the
final version and drafts of such settlement agreement prior to its execution), as well as all
scientific notebooks, invention records and other documents related to the conception and reduction
to practice and prosecution of the patent filings listed on
Exhibit D, including, without
limitation, all patent searches, patent file wrappers, legal and scientific investigations and
research related to the Technology, the License Agreement and the New License Agreement.



     7.3 Regulatory Approvals. Prior to the Closing, Oculus will execute and file, or join
in the execution and filing of, any application or other document that may be reasonably necessary
in order to obtain the authorization, approval or consent of any governmental entity that may be
required in connection with the consummation of the transactions contemplated by this Agreement.
Oculus will use commercially reasonable efforts to obtain all such authorizations, approvals and
consents.



     7.4
Satisfaction of Conditions Precedent. Oculus will use commercially reasonable
efforts to satisfy or cause to be satisfied all the conditions precedent to the Closing hereunder,
and to cause the transactions contemplated hereby to be consummated, and, without limiting the
generality of the foregoing, to obtain all consents and authorizations of third parties and to make
all filings with, and give all notices to, third parties which may be necessary or reasonably
required on its part in order to effect the transactions contemplated hereby.



ARTICLE VIII




COVENANTS OF UABRF




     8.1 Conduct of Business. During the period from the date of this Agreement to
the Closing, UABRF will not without the prior written consent of Fluidigm:



          (a) encumber or permit to be encumbered any of the Technology;




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          (b) dispose
of any of the Technology;




          (c) waive or release any right or claim relating to any Technology; or




          (d) agree to do any of the things described in the preceding clauses of this
Section 8.1.



Fluidigm agrees that the foregoing restrictions will not prevent UABRF from consenting to a
settlement agreement between Oculus and Syrrx to settle the Lawsuit, provided that such
settlement does not involve the sale, transfer or assignment of the Technology or the
Assigned Rights, or any rights in any of the foregoing, or result in the creation of any
Encumbrance on the Technology, the Assigned Rights, or any rights in any of the foregoing.




     8.2 Access to Information. Until the earlier of the termination of this
Agreement or the Closing, UABRF will allow Fluidigm and its agents reasonable access upon
reasonable notice and during normal working hours to its files, books, records, and offices
relating to the Technology and Assigned Rights, except where prohibited by contract or
protected by privilege. In furtherance of the above, Fluidigm and its counsel and advisors
shall have reasonable access during normal business hours to pertinent scientific notebooks,
invention records and other documents related to the conception and reduction to practice
and prosecution of the patent filings listed on Exhibit D, including, without
limitation, all patent searches, patent file wrappers, legal and scientific investigations
and research related to the Technology, the License Agreement and the New License Agreement.



     8.3 Regulatory Approvals. Prior to the Closing, UABRF will execute and file, or
join in the execution and filing of, any application or other document that may be
reasonably necessary in order to obtain the authorization, approval or consent of any governmental entity
that may be required in connection with the consummation of the transactions contemplated by
this Agreement. UABRF will use commercially reasonable efforts to obtain all such
authorizations, approvals and consents.



     8.4 Satisfaction of Conditions Precedent. UABRF will use commercially
reasonable efforts to satisfy or cause to be satisfied all the conditions precedent to the Closing
hereunder, and to cause the transactions contemplated hereby to be consummated, and, without
limiting the generality of the foregoing, to obtain all consents and authorizations of third parties
and to make all filings with, and give all notices to, third parties which may be necessary or
reasonably required on its part in order to effect the transactions contemplated hereby.



ARTICLE IX



COVENANTS OF FLUIDIGM



     9.1 Regulatory Approvals. Prior to the Closing, Fluidigm will execute and
file, or join in the execution and filing of, any application or other document that may be
reasonably necessary in order to obtain the authorization, approval or consent of any
governmental entity that may be required in connection with the consummation of the
transactions contemplated by this Agreement. Fluidigm will use its commercially reasonable
efforts to obtain all such authorizations, approvals and consents.




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     9.2 Satisfaction of Conditions Precedent. Fluidigm will use commercially reasonable
efforts to satisfy or cause to be satisfied all the conditions precedent to the Closing hereunder,
and to cause the transactions contemplated hereby to be consummated, and, without limiting the
generality of the foregoing, to obtain all consents and authorizations of third parties and to make
all filings with, and give all notices to, third parties which may be necessary or reasonably
required on its part in order to effect the transaction contemplated hereby.



ARTICLE X




MUTUAL COVENANTS




     10.1 Confidentiality. The parties acknowledge that the Confidential Disclosure
Agreement dated as of October 8, 2002 between Fluidigm and Oculus and the Confidential Disclosure
Agreement dated December 19, 2002 between Fluidigm, Oculus and UABRF are binding upon the parties
hereto and in full force and effect, except to the extent that the provisions hereof supersede
provisions to similar effect contained in the Confidential Disclosure Agreements. The terms of the
Confidential Disclosure Agreements (exclusive of such superseded provisions) are incorporated in
this Agreement by this reference.



     10.2 Publicity. Except as may otherwise be required by law, none of the parties hereto
shall make or cause to be made any public announcements in respect of this Agreement or the
transactions contemplated herein or otherwise communicate with any news media without the prior
written consent of the other party, provided, however, that following the Closing Fluidigm may
issue a press release to announce the closing of the transactions contemplated hereby and the
execution and delivery of the New License Agreement and Sponsored Research Agreement with UABRF
provided that such press release shall not be issued prior to the execution by Syrrx
of a settlement agreement with Oculus to settle the litigation described in Schedule 4.6 but in any
event the press release may be issued no later than 30 days from the execution date of the New
License Agreement. Except for the press release issued by Fluidigm, none of the parties hereto will
make any public disclosure prior to the Closing or with respect to the Closing unless all parties
agree on the text and timing of such public disclosure, except as required by law. Nothing
contained in this Section shall prevent any party at any time from furnishing any information
pursuant to the requirements of any governmental entity; provided, however, that
if such party is required to furnish such information, it will provide a copy to the other parties.



     10.3 Governmental Filings. As promptly as practicable after the execution of this
Agreement, each party shall make any and all governmental filings required with respect to the
transactions contemplated in this Agreement and the Ancillary Documents.



ARTICLE XI




CONDITIONS TO CLOSING




     11.1 Conditions to Each Party’s Obligations. The respective obligations of each party
to effect the transactions to be performed by such party at the Closing are subject to the
satisfaction at or prior to the Closing of the following conditions any of which may be waived in
writing by each party:



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          (a) No order shall have been entered, and not vacated, by a court or administrative agency
of competent jurisdiction, in any action or proceeding which enjoins, restrains or prohibits the
sale of the Assigned Rights, the grant of rights under the New License Agreement or the
consummation of any other transaction contemplated hereby.




          (b) All permits, authorizations, approvals and orders required to be obtained under all
applicable statutes, codes, ordinances, rules and regulations in connection with the transactions
contemplated hereby shall have been obtained and shall be in full force and effect at the Closing
Date.




          (c) There shall be no litigation pending or threatened by any regulatory body or private
party in which (i) an injunction is or may be sought against the transactions contemplated hereby,
or (ii) relief is or may be sought against any party hereto as a result of this Agreement and in
which, in the good faith judgment of the Board of Directors of either Fluidigm, Oculus or UABRF
(relying on the advice of their respective legal counsel), such regulatory body or private party
has the probability of prevailing and such relief would have a material adverse affect upon such
party.




     11.2 Conditions to Obligations of Oculus and UABRF. The obligations of Oculus and UABRF
to effect the transactions to be performed by Oculus and UABRF at the Closing are subject to the
satisfaction at or prior to the Closing of the following additional conditions any of which may be
waived in writing by Oculus and UABRF:



          (a) All of the representations and warranties of Fluidigm set forth in Article V hereof
shall be true in all material respects on and as of the Closing Date with the same force and effect
as if they had been made at the Closing, except for changes contemplated by this Agreement.




          (b) All of the terms, covenants and conditions of this Agreement to be complied with and
performed by Fluidigm at or prior to the Closing shall have been duly complied with and performed
in all material respects.




     11.3 Conditions to Obligations of Fluidigm. The obligations of Fluidigm to effect the
transactions to be performed by it at the Closing are subject to the satisfaction at or prior to
the Closing of the following additional conditions any of which may be waived in writing by
Fluidigm:



          (a) All of the representations and warranties of Oculus and UABRF set forth in Articles IV
and VI hereof shall be true in all material respects on and as of the Closing Date with the same
force and effect as if they had been made at the Closing, except for changes contemplated by this
Agreement.




          (b) All of the terms, covenants and conditions of this Agreement to be complied with and
performed by Oculus and UABRF at or prior to the Closing shall have been duly complied with and
performed in all material respects.




          (c) All required consents from third parties required to allow the consummation of the sale
of the Assigned Rights, the grant of rights under the New License




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Agreement and the other transactions contemplated hereby shall have been obtained and delivered to
Fluidigm.


          (d) Fluidigm shall have received an opinion from the attorney(s) prosecuting the patent
filings listed on Exhibit D, in form and substance reasonably acceptable to Fluidigm, as to
the following matters: (i) assignments of the inventions covered by the patent filings to UABRF
have been properly filed with the United States Patent and Trademark Office (“USPTO”), (ii) UABRF
is named as the sole owner of the inventions covered by the patent filings listed on Exhibit
D, (iii) a declaration of interference was timely requested with at least one of the pending
U.S. patent applications listed on Exhibit D and U.S. Patent No. 6,296,673 with the USPTO
in accordance with U.S.C. Section 135, (iv) none of the patents listed on Exhibit D have
been held to be permanently revoked, unenforceable or invalid by a decision of a court or other
governmental agency of competent jurisdiction, unappealable or unappealed within the time allowed
for appeal, and none of the patents listed on Exhibit D have been admitted to be invalid or
unenforceable through reissue or disclaimer or otherwise, and (v) the patent applications listed on
Exhibit D were filed in good faith and have not been abandoned or finally disallowed
without the possibility of appeal or refiling of such application.


ARTICLE XII


POST-CLOSING MATTERS


     12.1 Additional Payments by Fluidigm. In addition to the consideration delivered by
Fluidigm at the Closing, Fluidigm will pay the following amounts to UABRF upon the achievement of
the following milestones:


          (a)
Milestone 1. Milestone 1 shall be satisfied [***]. Within
[***] days after [***], Fluidigm will issue shares of its stock having a
value of [***] (based on the fair value of the stock at the time Milestone 1 is achieved),
subject to compliance with applicable securities laws.


          (b)
Milestone 2. Milestone 2 shall be satisfied [***].
Within [***] days after [***], Fluidigm will issue shares of its stock having a value of [***]
(based on the fair value at the time Milestone 2 is achieved), subject to compliance with
applicable securities laws. In addition, (i) [***]


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[***]



          (c) Stock to
be Issued. If Fluidigm is a private company at the time a milestone is
achieved, upon achievement of a milestone Fluidigm will issue shares of the series of Fluidigm
Preferred Stock that was issued in Fluidigm’s most recent financing and the shares will be valued
at the price at which the shares were sold in such financing. If Fluidigm is a public company at
the time a milestone is achieved, upon achievement of a milestone Fluidigm will issue shares of
Fluidigm Common Stock and the shares will be valued at the average closing price of Fluidigm’s
Common Stock over the five trading days preceding the achievement of the milestone.




     12.2
Settlement of Lawsuit. If the Lawsuit has not been settled or dismissed as of the
Closing Date:



          (a) Oculus agrees that Fluidigm and its counsel and advisors shall have reasonable access
during normal business hours to the final version of the settlement agreement between Oculus and
Syrrx related to the Lawsuit, and drafts of such settlement agreement (to the extent permissible
under applicable confidentiality terms), in the manner contemplated by Section 7.2 of this
Agreement, until the Lawsuit is settled or dismissed.




          (b) Oculus and UABRF agree that if a settlement agreement related to the Lawsuit is entered
into after the Closing Date, the settlement will not involve the sale, transfer or assignment of
the Technology or the Assigned Rights, or any rights in any of the foregoing, or result in the
creation of any Encumbrance on the Technology, the Assigned Rights, or any rights in any of the
foregoing.




ARTICLE XIII




TERMINATION OF AGREEMENT




     13.1 Termination by Fluidigm. This Agreement may be terminated at any time before the
Closing by action of the Board of Directors of Fluidigm upon written notice to Oculus and UABRF,
specifying the basis for such termination, if (i) Oculus or UABRF shall have breached in any
material respect any of their covenants or agreements contained in this Agreement, or (ii) any
representation or warranty of Oculus or UABRF contained in this Agreement shall have been
materially inaccurate.



     13.2 Termination by UABRF. This Agreement may be terminated at any time before the
Closing by action of the Board of Directors or other governing body of UABRF upon written notice to
Fluidigm, specifying the basis for such termination, if (i) Fluidigm shall have breached in any
material respect any of its covenants or agreements contained in this Agreement, or (ii) any
representation or warranty of Fluidigm contained in this Agreement shall have been materially
inaccurate.



     13.3 Mutual Consent. This Agreement may be terminated at any time before the Closing,
by the mutual written consent of Fluidigm, Oculus and UABRF.



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     13.4
Effect of Termination. Upon any termination of this Agreement, all parties hereto
shall be relieved of all further obligations under this Agreement, except for the provisions of
Section 2.5 regarding the assignment by Oculus to Fluidigm of Assigned Rights, together with all
patent rights and all other intellectual property rights therein, Section 15.6 regarding the
payment of certain expenses and Section 10.1 regarding the continuing obligations of the parties
under the Confidential Disclosure Agreements.


ARTICLE XIV


SURVIVAL OF REPRESENTATIONS AND WARRANTIES


     14.1 Survival of Representations and Warranties. The representations and warranties set forth
in this Agreement shall survive the Closing for a period equal to the greater of 12 months after
the Closing Date or the date on which both Milestones specified in Section 12.1 have been achieved.
After the expiration of such period, such representations and warranties shall expire and be of no
further force and effect.


ARTICLE XV


GENERAL


     15.1
Governing Law. It is the intention of the parties hereto that the internal laws of
the State of California (irrespective of its choice of law principles) shall govern the validity of
this Agreement, the construction of its terms, and the interpretation and enforcement of the rights
and duties of the parties hereto; provided, however, that any disputes involving UABRF shall be
governed by the internal laws of the State of Alabama (irrespective of its choice of law principles
and any disputes involving UABRF shall be resolved Birmingham, Alabama in accordance with the
provisions of Section 15.11 and UABRF shall have the right to raise all of the defenses available
to the University of Alabama at Birmingham.


     15.2
Assignment; Binding upon Successors and Assigns. None of the parties hereto may
assign any of its rights or obligations hereunder (whether by operation of law or otherwise)
without the prior written consent of the other party; provided, however, that any party may assign
its rights and obligations under covenants and agreements to be performed after the Closing in
connection with the sale of all or substantially all of such party’s business. This Agreement will
be binding upon and inure to the benefit of the parties hereto and their respective permitted
successors and assigns.


     15.3
Severability. If any provision of this Agreement, or the application thereof,
becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable,
the remainder of this Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances shall be interpreted so as best to reasonably effect
the intent of the parties hereto. The parties further agree to replace such illegal, void or
unenforceable provision of this Agreement with a valid and enforceable provision which will
achieve, to the extent possible, the economic, business and other purposes of the illegal, void or
unenforceable provision.


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     15.4 Entire Agreement. This Agreement (including the Exhibits and Schedules hereto) the
Ancillary Agreements, the documents and instruments and other agreements among the parties hereto
referenced herein and therein, and the exhibits thereto, constitute the entire understanding and
agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede
all prior and contemporaneous agreements or understandings, inducements or conditions, express or
implied, written or oral, between the parties with respect hereto and thereto including, without
limitation, the Letter Agreement. To the extent that any provision of this Agreement conflicts with
any provision of the New License Agreement or the Sponsored Research Agreement between Fluidigm and
UABRF, the applicable provision of the New License Agreement or the Sponsored Research Agreement,
as the case may be, shall control and supersede the applicable provision of this Agreement.


     15.5 Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
instrument.


     15.6 Expenses.


          (a) The parties shall each pay their own legal, accounting and financial advisory fees and
other out-of-pocket expenses incurred incident to the negotiation, preparation and carrying out of
this Agreement and the transactions herein contemplated, whether or not the transactions
contemplated hereby are consummated.



          (b) Each party shall indemnify the other against, and agrees to hold the other harmless from,
all liabilities and expenses (including reasonable attorneys’ fees) in connection with
any claim by any person for compensation as a broker, finder or in any similar capacity, by
reason of services allegedly rendered to the indemnifying party in connection with the
transactions contemplated hereby.



     15.7 Other Remedies. Except as otherwise provided herein, any and all remedies herein
expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other
remedy conferred hereby or by law on such party, and the exercise of any one remedy shall not
preclude the exercise of any other.


     15.8 Amendment. Any term or provision of this Agreement may be amended by a written
instrument signed by Fluidigm, Oculus and UABRF; provided that any term or provision that pertains
only to UABRF and Fluidigm may be amended by a written instrument signed by UABRF and Fluidigm.


     15.9 Waiver. Any party hereto may, by written notice to the other party: (i) waive any
of the conditions to its obligations hereunder or extend the time for the performance of any of the
obligations or actions of another party; (ii) waive any inaccuracies in the representations of
another party contained in this Agreement or in any documents delivered pursuant to this Agreement;
(iii) waive compliance with any of the covenants of the other contained in this Agreement; or (iv)
waive or modify performance of any of the obligations of another party. Except as specifically
contemplated by this Agreement, no action taken pursuant to this Agreement, including without
limitation any investigation by or on behalf of any party, shall be


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deemed to constitute a waiver by the party taking such action of compliance with any
representation, warranty, condition or agreement contained herein. Waiver of the breach of any one
or more provisions of this Agreement shall not be deemed or construed to be a waiver of other
breaches or subsequent breaches of the same provisions.



     15.10
Informal Resolution. In the event of any controversy or claim arising under this
Agreement, officers or comparable officials of UABRF, Oculus and Fluidigm shall promptly meet and
attempt in good faith to reach a resolution of such controversy or claim.


     15.11
Mediation. Any controversy or claim between any of the parties hereto arising out
of or relating to this Agreement that is not resolved by the parties within thirty (30) days after
delivery of notice of such controversy or claim, upon written notice of either Fluidigm, Oculus or
UABRF, shall be submitted for resolution by mediation in accordance with commercial mediation
guidelines. Any mediation proceeding shall be conducted in the County of Cook, City of Chicago, in
the State of Illinois. The mediation shall be concluded within a ninety (90) day period after
notice.


     15.12
Notices. All notices and other communications hereunder will be in writing and will
be deemed given (i) upon receipt if delivered personally (or if mailed by registered or certified
mail), (ii) the next business day after dispatch if sent by overnight delivery
service, (iii) upon dispatch if transmitted by facsimile (and confirmed by a copy delivered in
accordance with clause (i) or (ii)), properly addressed to the parties at the following addresses:


	 	 	 	 	 
	 
	 	Fluidigm:
	 	Fluidigm Corporation
	 
	 	 	 	7100 Shoreline Court
	 
	 	 	 	South San Francisco, CA 94080
	 
	 	 	 	Attention:  President
	 
	 	 	 	Facsimile No.: (650) 871-7192
	 
	 	 	 	 
	 
	 	with a copy to:
	 	Fluidigm Corporation
	 
	 	 	 	7100 Shoreline Court
	 
	 	 	 	South San Francisco, CA 94080
	 
	 	 	 	Attention: General Counsel
	 
	 	 	 	Facsimile No.: (650) 871-7195
	 
	 	 	 	 
	 
	 	Oculus:
	 	Oculus Pharmaceuticals, Inc.
	 
	 	 	 	1601 12th Avenue South
	 
	 	 	 	Birmingham, AL 35205
	 
	 	 	 	Attention: B.J. Lehman
	 
	 	 	 	Facsimile No: (216) 361-9495
	 
	 	 	 	 
	 
	 	 	 	and
	 
	 	 	 	 
	 
	 	 	 	Oculus Pharmaceuticals, Inc.
	 
	 	 	 	3201 Carnegie Avenue
	 
	 	 	 	Cleveland, OH 44115
	 
	 	 	 	Attention: B.J. Lehman
	 	 	 	 	Facsimile No.: (216) 361-9495





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	 	 	UABRF:
	 	The UAB Research Foundation
	 	 	 	 	1120G Administration Building
	 	 	 	 	701 20th Street South
	 	 	 	 	Birmingham, AL 35294-0111
	 	 	 	 	Attention: Director
	 	 	 	 	Facsimile No.: (205) 975-5560






     Any party may change its address for such communications by giving notice thereof to the other
party in conformity with this Section.



     15.13 Construction and Interpretation of Agreement.



          (a) This Agreement has been negotiated by the parties hereto and their respective attorneys,
and the language hereof shall not be construed for or against any party.




          (b) The titles and headings herein are for reference purposes only and shall not in any
manner limit the construction of this Agreement, which shall be considered as a
whole.




          (c) Any reference to a “material adverse effect” with respect to any entity or group of
entities means a material adverse effect on the business, assets (including intangible assets),
financial condition, properties, liabilities, results of operations or prospects of such entity.




          (d) Any reference to a party’s “knowledge means such party’s actual
knowledge after reasonable inquiry of its directors, officers and other management level employees
that have responsibility for the referenced matters.




          (e) When reference is made to a Section or Article, such reference shall be to a Section or
Article of the Agreement, unless otherwise indicated.




     15.14 No Joint Venture. Nothing contained in this Agreement shall be deemed or construed
as creating a joint venture or partnership between any of the parties hereto. No party is by virtue
of this Agreement authorized as an agent, employee or legal representative of any other party. No
party shall have the power to control the activities and operations of any other and their status
is, and at all times, will continue to be, that of independent contractors with respect to each
other. No party shall have any power or authority to bind or commit any other. No party shall hold
itself out as having any authority or relationship in contravention of this Section.



     15.15 Absence of Third Party Beneficiary Rights. No provisions of this Agreement are
intended, nor shall be interpreted, to provide or create any third party beneficiary rights or any
other rights of any kind in any client, customer, affiliate, shareholder, partner of any party
hereto or any other person or entity unless specifically provided otherwise herein, and, except as
so provided, all provisions hereof shall be personal solely between the parties to this Agreement.



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     15.16 Further Assurances. In connection with this Agreement and the transactions
contemplated hereby, each party shall execute and deliver any additional documents and instruments
and perform any additional acts that may be reasonably necessary or appropriate to effectuate and
perform the provisions of this Agreement and such transactions and the intention of the parties.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth
above.


	 	 	 	 	 	 	 
	 	 	FLUIDIGM CORPORATION	 	 
	 	 	 	 	 	 	 
	 	 	By:
	 	/s/ Gajus Worthington	 	 
	 	 	 	 	 	 	 
	 
	 	 	Title:	President & CEO	 
	 	 	 	 	 	 	 
	 	 	OCULUS PHARMACEUTICALS, INC.	 	 
	 	 	 	 	 	 	 
	 	 	By:
	 	/s/ (ILLEGIBLE)	 	 
	 	 	 	 	 	 	 
	 
	 	 	Title:	President & CEO	 
	 	 	 	 	 	 	 
	 	 	THE UAB RESEARCH FOUNDATION	 	 
	 	 	 	 	 	 	 
	 	 	By:
	 	/s/ (ILLEGIBLE)	 	 
	 	 	 	 	 	 	 
	 
	 	 	Title:	Director	 





	 	 	 
	Acknowledged and agreed to	 	 
	this March 7, 2003.	 	 
	 	 	 
	/s/ Dr. Larry DeLucas
 
	 	 
	Dr. Larry DeLucas	 	 





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SCHEDULE 4.6







Lawsuit filed by Syrrx, Inc. against Oculus on April 30, 2002 in the United States District Court
for the District of Delaware — Syrrx and Oculus may enter into a settlement agreement to settle the
Lawsuit prior to the Closing under the Agreement; as part of the settlement a judgment or other
order will be entered against Oculus by the court in which the Lawsuit was filed.







 









 






EXHIBIT A




Amended and Restated

Articles of Incorporation of Fluidigm









Superseded by Exhibit 3.1 filed with Registration Statement on April 14, 2008.









 









 





EXHIBIT B




Form of New License Agreement










Superseded by Exhibit 10.9A filed with the Registration Statement on April 14, 2008.







 









 





EXHIBIT C




Form of Sponsored Research Agreement





 












 





EXHIBIT D 




PATENTS AND PATENT APPLICATIONS




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