Item 9A. Controls and Procedures
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
Our management, with the participation of our Chief Executive Officer and our Chief Financial Officer, evaluated the effectiveness of our disclosure controls and procedures as of December 31, 2020. The term “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the
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SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure. Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Based on the evaluation of our disclosure controls and procedures as of December 31, 2020, our Chief Executive Officer and Chief Financial Officer concluded that, as of such date, our disclosure controls and procedures were effective at the reasonable assurance level.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as such term is defined in Exchange Act Rule 13a-15(f) to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Management assessed our internal control over financial reporting as of December 31, 2020. Management based its assessment on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 Framework). Based on that evaluation, our management concluded that our internal control over financial reporting was effective as of December 31, 2020.
The effectiveness of our internal control over financial reporting as of December 31, 2020 has been audited by PricewaterhouseCoopers, LLP, an independent registered public accounting firm, as stated in their report included in this Annual Report on Form 10-K.
Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over financial reporting that occurred during the three months ended December 31, 2020 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Inherent Limitations on the Effectiveness of Controls
Control systems, no matter how well conceived and operated, are designed to provide a reasonable, but not an absolute, level of assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, have been detected. Because of the inherent limitations in any control system, misstatements due to error or fraud may occur and not be detected.
ITEM 9B. OTHER INFORMATION
On February 19, 2021, we and the National Institutes of Health (NIH) entered into a modification (the Modification) of our contract under the NIH Rapid Acceleration of Diagnostics program dated July 30, 2020 and amended September 28, 2020 (the NIH Contract). The Modification revised the milestones under the NIH Contract to include, in addition to the Advanta Dx SARS-CoV-2 RT-PCR Assay, the development and manufacture of a cartridge-based COVID-19 assay designed to provide a more integrated sample-to-answer workflow. The Modification also extended the period of performance under the NIH Contract through September 30, 2021. The Modification did not change the total NIH Contract value of up to approximately $34.0 million based upon our achievement of milestones.
The foregoing description of the Modification does not purport to be complete and is qualified in its entirety by reference to the Modification, which will be filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ending March 31, 2021.
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SCHEDULE II—VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
In thousands
Balance at
Beginning of
Period Additions/
Charged to
Expense Deductions Balance at
End of
Period
Year ended December 31, 2020
Accounts receivable allowance $ 6 $ 356 $ ( 6 ) $ 356
Year ended December 31, 2019
Accounts receivable allowance $ 126 $ 179 $ ( 299 ) $ 6
Year ended December 31, 2018
Accounts receivable allowance $ 391 $ 162 $ ( 427 ) $ 126
In thousands
Balance at
Beginning of
Period Additions/
Charged to
Expense Deductions Balance at
End of
Period
Year ended December 31, 2020
Warranty allowance $ 1,390 $ 1,028 $ ( 755 ) $ 1,663
Year ended December 31, 2019
Warranty allowance $ 863 $ 1,386 $ ( 859 ) $ 1,390
Year ended December 31, 2018
Warranty allowance $ 699 $ 1,573 $ ( 1,409 ) $ 863
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PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The information called for by this item will be set forth in our Proxy Statement for the Annual Meeting of Stockholders to be filed with the SEC within 120 days of the fiscal year ended December 31, 2020 and is incorporated herein by reference.
Our board of directors has adopted a Code of Ethics and Conduct that applies to all of our employees, officers and directors, including our Chief Executive Officer, Chief Financial Officer and other executive and senior financial officers. The full text of our code of business conduct and ethics is posted on the investor relations page on our website which is located at www.fluidigm.com. We will post any amendments to our code of business conduct and ethics, or waivers of its requirements, on our website.
ITEM 11. EXECUTIVE COMPENSATION
The information called for by this item will be set forth in our Proxy Statement and is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information, if any, required by this item will be set forth in our Proxy Statement and is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The information, if any, required by this item will be set forth in our Proxy Statement and is incorporated herein by reference.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
The information required by this item will be set forth in our Proxy Statement and is incorporated herein by reference.
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PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
1. Financial Statements. See “ Index to Consolidated Financial Statements ” in Part II, Item 8 of this Form 10-K.
2. Financial Statement schedule. See “ Index to Consolidated Financial Statements ” in Part II, Item 8 of this Form 10-K.
3. Exhibits. The exhibits listed in the accompanying Index to Exhibits are filed herewith or are incorporated by reference to exhibits previously filed with the U.S. Securities and Exchange Commission.
ITEM 16. FORM 10-K SUMMARY
None.
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INDEX TO EXHIBITS
Exhibit
Number
Description Incorporated
by Reference
From Form Incorporated
by Reference
From Exhibit
Number Date Filed
2.1 Agreement and Plan of Merger dated January 28, 2014 by and among Fluidigm Corporation, DVS Sciences, Inc., Dawid Merger Sub, Inc. and Shareholder Representative Services LLC.
8-K 2.1 1/29/2014
3.1 Eighth Amended and Restated Certificate of Incorporation of Fluidigm Corporation filed on February 15, 2011.
10-K 3.1 3/28/2011
3.2 Amended and Restated Bylaws of Fluidigm Corporation effective as of February 9, 2011.
10-K 3.2 3/28/2011
3.3 Certificate of Designation of Rights, Preferences and Privileges of Series A Participating Preferred Stock.
8-K 3.1 11/22/2016
3.4 Certificate of Elimination of Series A Participating Preferred Stock of Fluidigm Corporation.
8-K 3.1 8/2/2017
4.1 Specimen Common Stock Certificate of Fluidigm Corporation.
S-8 4.1 8/3/2017
4.2 Description of Securities.
Filed herewith
4.3 Indenture, dated February 4, 2014, by and between Fluidigm Corporation and U.S. Bank National Association.
8-K 4.1 2/4/2014
4.4 First Supplemental Indenture, dated February 4, 2014, by and between Fluidigm Corporation and U.S. Bank National Association.
8-K 4.2 2/4/2014
4.5 Form of Global Note (included in Exhibit 4. 4 ).
8-K 4.3 2/4/2014
4.6 Indenture, dated November 22, 2019, by and between Fluidigm Corporation and U.S. Bank National Association.
8-K 4.1 11/22/2019
4.7 Form of 5.25% Convertible Senior Note due 2024 (included in Exhibit 4. 6 ).
8-K 4.2 11/22/2019
10.1 Form of Indemnification Agreement between Fluidigm Corporation and its directors and officers.
S-1/A 10.1 1/28/2011
10.2 Lease between AP3-SF3 CT North, LLC and Fluidigm Corporation, dated March 20, 2019.
10-Q 10.1 5/7/2019
10.2A First Amendment to Lease between AP3-SF3 CT North, LLC and Fluidigm Corporation, dated April 26, 2019.
10-Q 10.2 5/7/2019
10.2B Second Amendment to Lease between AP3-SF3 CT North, LLC and Fluidigm Corporation, dated February 25, 2020.
Filed herewith
10.3† Office Lease by and among Rodick Equities Inc., Fluidigm Canada Inc., and Fluidigm Corporation, dated August 17, 2015.
10-Q 10.1 11/9/2015
10.4 Tenancy for Flatted Factory Space in Singapore between JTC Corporation and Fluidigm Corporation dated July 27, 2005, as amended August 12, 2008 and May 31, 2010.
S-1 10.20 12/3/2010
10.5 Offer of Tenancy for Facility Lease between Fluidigm Singapore Pte. Ltd. and SBC Institutional Trust Services (Singapore) Limited, as trustee of Ascendas Real Estate Investment Trust dated October 14, 2013.
10-K 10.21 3/12/2014
10.6 Offer of Tenancy for Lease of Additional Space at Singapore Facility between Fluidigm Singapore Pte. Ltd. and HSBC Institutional Trust Services (Singapore) Limited, as trustee of Ascendas Real Estate Investment Trust, dated April 2, 2015.
10-Q 10.1 8/10/2015
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Exhibit
Number
Description Incorporated
by Reference
From Form Incorporated
by Reference
From Exhibit
Number Date Filed
10.7# 2009 Equity Incentive Plan of Fluidigm Corporation, as amended.
S-1 10.3 12/3/2010
10.7A# Forms of agreements under the 2009 Equity Incentive Plan.
S-1 10.3A 12/3/2010
10.8# Fluidigm Corporation 2011 Equity Incentive Plan, as amended effective June 23, 2020.
8-K 10.2 6/24/2020
10.8A# Forms of agreements under the 2011 Equity Incentive Plan.
S-1/A 10.4A 1/28/2011
10.8B# Amendments to the Fluidigm Corporation 2011 Equity Incentive Plan and 2009 Equity Incentive Plan and the DVS Sciences, Inc. 2010 Equity Incentive Plan.
8-K 10.2 8/2/2017
10.8C# Forms of U.S. agreements under the 2011 Equity Incentive Plan.
SC TO-I (d)(2) 8/23/2017
10.8D Rules of the Fluidigm Corporation 2011 Equity Incentive Plan for Restricted Stock Unit Awards Granted to French Participants.
SC TO-I (d)(3) 8/23/2017
10.8E Rules of the Fluidigm Corporation 2011 Equity Incentive Plan for Options Granted to French Participants.
SC TO-I (d)(4) 8/23/2017
10.8F UK Sub-plan to the Fluidigm Corporation 2011 Equity Incentive Plan.
SC TO-I (d)(5) 8/23/2017
10.8G# Form of Restricted Stock Unit Agreement-Non-U.S. under the 2011 Equity Incentive Plan.
SC TO-I (d)(6) 8/23/2017
10.8H# Form of Stock Option Agreement-Non-U.S. under the 2011 Equity Incentive Plan.
SC TO-I (d)(7) 8/23/2017
10.9# Fluidigm Corporation 2017 Inducement Award Plan and related form agreements.
8-K 10.1 1/11/2017
10.10# Fluidigm Corporation 2017 Employee Stock Purchase Plan, as amended and restated effective June 23, 2020.
8-K 10.1 6/24/2020
10.11# Executive Bonus Plan.
10-K 10.25 3/28/2011
10.12† Second Amended and Restated License Agreement between California Institute of Technology and the registrant, effective as of May 1, 2004.
10-Q 10.2 11/9/2020
10.12A† First Addendum, effective as of March 29, 2007, to Second Amended and Restated License Agreement between California Institute of Technology and the registrant effective as of May 1, 2004.
10-Q 10.2A 11/9/2020
10.13† Co-Exclusive License Agreement between President and Fellows of Harvard College and the registrant effective as of October 15, 2000.
10-Q 10.3 11/9/2020
10.13A† First Amendment to Co-Exclusive License Agreement between President and Fellows of Harvard College and the registrant effective as of October 15, 2000.
10-Q 10.3A 11/9/2020
10.14† Co-Exclusive License Agreement between President and Fellows of Harvard College and the registrant effective as of October 15, 2000.
10-Q 10.4 11/9/2020
10.15† Co-Exclusive License Agreement between President and Fellows of Harvard College and the registrant effective as of October 15, 2000.
10-Q 10.5 11/9/2020
10.16† Letter Agreement between President and Fellows of Harvard College and the registrant dated December 22, 2004.
10-Q 10.6 11/9/2020
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Exhibit
Number
Description Incorporated
by Reference
From Form Incorporated
by Reference
From Exhibit
Number Date Filed
10.17† License Agreement between MDS Analytical Technologies, a business unit of MDS INC., and DVS Sciences Inc., dated July 17, 2008.
10-Q/A 10.3 9/15/2014
10.18† Sublicense Agreement between DVS Sciences Inc. and Fluidigm Corporation, dated January 28, 2014.
10-Q/A 10.4 9/15/2014
10.19 Loan and Security Agreement, dated as of August 2, 2018 by and between Fluidigm Corporation and Silicon Valley Bank .
8-K 10.1 8/2/2018
10.19A Default Waiver and First Amendment to Loan and Security Agreement, dated September 1, 2018, between the Company and Silicon Valley Bank.
10-K 10.13A 2/27/2020
10.19B Second Amendment to Loan and Security Agreement, dated November 20, 2019, between the Company and Silicon Valley Bank.
8-K 10.2 11/22/2019
10.19C Third Amendment to Loan and Security Agreement, dated April 21, 2020, between the Company and Silicon Valley Bank.
8-K 10.1 4/22/2020
10.20 Purchase Agreement, dated November 20, 2019, between Fluidigm Corporation and Barclays Capital Inc., as representative of the several initial purchasers named in Schedule I thereto.
8-K 10.1 11/22/2019
10.21 Open Market Sale Agreement, dated as of March 4, 2020, between Fluidigm Corporation and Jefferies LLC.
8-K 1.1 3/5/2020
10.22 †
Contract by and between the National Institutes of Health and the registrant effective as of July 30, 2020, as amended September 28, 2020.
10-Q 10.1 11/9/2020
10.23# Form of Amended and Restated Employment and Severance Agreement between Fluidigm Corporation and each of its executive officers.
8-K 10.14 12/11/2012
10.24# Fluidigm Corporation 2020 Change of Control and Severance Plan.
10-Q 10.5 8/7/2020
10.25# Endorsement Split-Dollar Life Insurance Agreement.
10-Q 10.5 11/7/2017
10.26# Offer Letter to Stephen Christopher Linthwaite, dated July 14, 2016.
10-Q 10.1 5/8/2018
10.27# Employment and Severance Agreement, effective as of August 1, 2016, by and between Fluidigm Corporation and Stephen Christopher Linthwaite .
10-Q 10.2 11/9/2016
10.28# Offer Letter to Vikram Jog dated January 29, 2008.
S-1 10.17 12/3/2010
10.29# Offer Letter to Bradley A. Kreger dated February 13, 2018.
10-K 10.18 3/18/2019
10.30# Offer Letter to Colin McCracken dated April 12, 2019.
Filed herewith
10.31# Offer Letter to Nick Khadder dated April 6, 2020.
Filed herewith
21.1 Subsidiaries of Fluidigm Corporation.
Filed herewith
23.1 Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
Filed herewith
24.1 Power of Attorney (contained in the signature page to this Form 10-K).
Filed herewith
31.1 Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 of Chief Executive Officer.
Filed herewith
31.2 Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 of Chief Financial Officer.
Filed herewith
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Exhibit
Number
Description Incorporated
by Reference
From Form Incorporated
by Reference
From Exhibit
Number Date Filed
32.1~ Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 of Chief Executive Officer.
Filed herewith
32.2~ Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 of Chief Fi nancial Officer.
Filed herewith
101.INS XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. Filed herewith
101.SCH XBRL Taxonomy Extension Schema Document Filed herewith
101.CAL XBRL Taxonomy Extension Calculation Linkbase Document Filed herewith
101.DEF XBRL Taxonomy Extension Definition Linkbase Document Filed herewith
101.LAB XBRL Taxonomy Extension Label Document Filed herewith
101.PRE XBRL Taxonomy Extension Presentation Document Filed herewith
# Management contracts or compensation plans or arrangements in which directors or executive officers are eligible to participate.
† Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(b)(10)(iv) or pursuant to an order granted by the Securities and Exchange Commission for confidential treatment.
~ In accordance with Item 601(b)(32)(ii) of Regulation S-K and SEC Release No. 33-8238 and 34-47986, Final Rule: Management’s Reports on Internal Control Over Financial Reporting and Certification of Disclosure in Exchange Act Periodic Reports, the certifications furnished in Exhibits 32.1 and 32.2 hereto are deemed to accompany this Form 10-K and will not be deemed “filed” for purposes of Section 18 of the Exchange Act. Such certifications will not be deemed to be incorporated by reference into any filings under the Securities Act or the Exchange Act, except to the extent that Fluidigm Corporation specifically incorporates it by reference.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
FLUIDIGM CORPORATION
Dated: February 25, 2021 By: /s/ Stephen Christopher Linthwaite
Stephen Christopher Linthwaite
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Stephen Christopher Linthwaite and Vikram Jog, jointly and severally, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this Form 10-K, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ Stephen Christopher Linthwaite President and Chief Executive Officer (Principal Executive Officer); Director February 25, 2021
Stephen Christopher Linthwaite
/s/ Vikram Jog Chief Financial Officer (Principal Financial and Accounting Officer) February 25, 2021
Vikram Jog
/s/ Carlos V. Paya Chairman of the Board of Directors February 25, 2021
Carlos V. Paya
/s/ Nicolas M. Barthelemy Director February 25, 2021
Nicolas M. Barthelemy
/s/ Gerhard F. Burbach Director February 25, 2021
Gerhard F. Burbach
/s/ Laura M. Clague Director February 25, 2021
Laura M. Clague
/s/ Bill W. Colston Director February 25, 2021
Bill W. Colston
/s/ Ana K. Stankovic Director February 25, 2021
Ana K. Stankovic
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