EXHIBIT 4.10
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated as of November 13, 2001, between
HYSEQ, INC., a Nevada corporation ("Pledgor"), and AFFYMETRIX, INC., a Delaware
corporation ("Affymetrix").
WITNESSETH:
WHEREAS, pursuant to the Preferred Stock Purchase Agreement, dated as of
the date hereof (the "Stock Purchase Agreement"), by and among Callida Genomics,
Inc., a Delaware corporation, Affymetrix and Pledgor, Affymetrix has agreed to
extend credit to the Pledgor pursuant to one or more Promissory Notes of the
Pledgor (collectively, the "Promissory Notes"); and
WHEREAS, the purchase of the Promissory Notes by Affymetrix is
conditioned upon the execution and delivery by Pledgor of this Pledge and
Security Agreement to secure the due and punctual payment of the obligations of
Pledgor to Affymetrix described below.
NOW THEREFORE, the parties hereto agree as follows:
1. Pledgor's Grant of Security Interest in Collateral. For value
received and to induce Affymetrix to extend credit to Pledgor pursuant to the
Promissory Notes, Pledgor hereby grants to Affymetrix, as security for all
obligations and liabilities of Pledgor on account of principal, interest and all
other obligations and liabilities pursuant to the Promissory Notes (the
"Obligations"), a security interest in Pledgor's right, title and interest in
the property described in Schedule A hereto (collectively referred to as the
"Collateral").
2. Delivery of Collateral. Any Pledged Securities (as defined in
Schedule A hereto) shall be evidenced by certificates, all of which shall be
delivered to and held in the possession of Affymetrix or a third party acting on
its behalf pursuant hereto. Upon delivery to Affymetrix, any Pledged Securities
in certificated form shall be in suitable form for transfer by delivery or shall
be accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance reasonably satisfactory to Affymetrix.
3. Warranties, Covenants and Agreements of Pledgor. Pledgor warrants,
covenants and agrees that:
(a) Pledgor has full corporate power and authority to enter into
this Pledge and Security Agreement and to grant to Affymetrix a security
interest therein as herein provided, all of which have been duly authorized by
all necessary corporate action; the execution and delivery and the performance
hereof are not in contravention of any charter or by-law provision or of any
indenture, agreement or undertaking to which Pledgor is a party or by which
Pledgor or its property are bound; this Pledge and Security Agreement
constitutes the valid and legally binding obligation of Pledgor enforceable in
accordance with its terms, subject, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting creditors' rights and, as to enforcement, to general equity
principles; and Pledgor owns the Collateral free and clear of any lien, claim or
encumbrance.
(b) (i) As long as any amount remains unpaid on any of the
Obligations or any additional borrowings may be made by Pledgor under any
agreements entered into in connection with the Obligations, except as expressly
permitted by any such agreements, (a) Pledgor will not enter into or execute any
security agreement or any financing statement covering the Collateral, other
than those security agreements and financing statements in favor of Affymetrix
hereunder, and further (b) Pledgor shall not file in any public office any
financing statement or statements (or any documents or papers filed as such)
covering the Collateral, other than financing statements in favor of Affymetrix
hereunder, unless in any case the prior written consent of Affymetrix shall have
been obtained.
(ii) Pledgor authorizes Affymetrix to file, in its
discretion, in jurisdictions where this authorization will be given effect, a
financing statement signed only by Affymetrix covering the Collateral, and
hereby appoints Affymetrix as Pledgor's attorney-in-fact to sign and file any
such financing statements covering the Collateral. At the request of Affymetrix,
Pledgor will join Affymetrix in executing such documents as Affymetrix may
reasonably determine, from time to time to be necessary or desirable under
provisions of any applicable Uniform Commercial Code in effect where the
Collateral is located or where Pledgor conducts business; without limiting the
generality of the foregoing, Pledgor agrees to join Affymetrix, at Affymetrix'
request, in executing one or more financing statements in form reasonably
satisfactory to Affymetrix, and Pledgor will pay the costs of filing or
recording the same, or of filing or recording this Pledge and Security
Agreement, in all public offices at any time and from time to time, whenever
filing or recording of any such financing statement or of this Pledge and
Security Agreement is deemed by Affymetrix to be necessary or desirable. In
connection with the foregoing, it is agreed and understood between the parties
hereto (and Affymetrix is hereby authorized to carry out and implement this
agreement and understanding and Pledgor hereby agrees to pay the costs thereof)
that Affymetrix may, at any time or times, file as a financing statement any
counterpart, copy or reproduction of this Pledge and Security Agreement.
4. Rights of Affymetrix and Pledgor Related to Collateral. Affymetrix
may from time to time:
(a) At any time, with respect to Pledged Securities (upon
execution of the documentation requested by Pledgor in accordance with Section
4(d)(ii) hereof) and following the occurrence and during the continuance of an
Event of Default, in the case of all other Collateral, transfer any of the
Collateral into the name of Affymetrix or its nominee.
(b) Following the occurrence of an Event of Default, notify
parties obligated on any of the Collateral to make payment to Affymetrix of any
amounts due or to become due thereunder.
(c) Following the occurrence of an Event of Default, enforce
collection of any of the Collateral by suit or otherwise; surrender, release or
exchange all or any part thereof,
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or compromise or extend or renew for any period (whether or not longer than the
original period) any obligation of any nature of any party with respect thereto
in a commercially reasonable manner; and exercise all other rights of Pledgor in
any of the Collateral, except as hereinafter provided with respect to income
from or interest on the Collateral.
(d) Following the occurrence and during the continuance of an
Event of Default, take possession or control of any proceeds of the Collateral.
Until the occurrence of an Event of Default Pledgor shall have
the right to receive all income from or interest on the Collateral, and if
Affymetrix receives any such income or interest prior to the occurrence of an
Event of Default, Affymetrix shall pay the same promptly to Pledgor, except that
in the case of securities or other property distributed by way of a dividend or
otherwise with respect to the Collateral, such securities or other property
shall be promptly delivered to Affymetrix in the manner described in Section 2
hereof to be held as Pledged Securities or other Collateral hereunder. Upon the
occurrence and during the continuance of an Event of Default, if Pledgor
receives any income or interest on the Collateral, the same shall be held by
Pledgor in trust for Affymetrix in the same medium in which received, shall not
be commingled with any assets of Pledgor and shall be delivered to Affymetrix in
the form received, properly endorsed to permit collection, not later than the
next business day following the day of its receipt. Affymetrix shall apply the
net cash received from such income or interest to payment of any of the
Obligations, provided that Affymetrix shall account for and pay over to Pledgor
any such income or interest remaining after payment in full of the Obligations
then outstanding.
So long as no Event of Default shall have occurred and be
continuing:
(i) The Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Collateral or any part
thereof for any purpose not inconsistent with the terms of this Pledge and
Security Agreement or the Promissory Notes; provided, however, that Pledgor
shall not take any action which materially and adversely affects the value of
the Collateral or Pledgor's ability to repay the Promissory Notes.
(ii) Affymetrix shall execute and deliver (or cause to be
executed and delivered) to Pledgor all such proxies and other instruments as
Pledgor may reasonably request for the purpose of enabling Pledgor to exercise
the voting and other rights which it is entitled to exercise pursuant to
paragraph (i).
Affymetrix shall be under no obligation to collect, attempt to
collect, protect or enforce the Collateral or any security therefor, which
Pledgor agrees and undertakes to do at Pledgor's expense, but Affymetrix may do
so in its reasonable discretion at any time after the occurrence and during the
continuance of an Event of Default and at such time Affymetrix shall have the
right to take any steps not inconsistent with the provisions of the Uniform
Commercial Code and this Pledge and Security Agreement, by judicial process or
otherwise, it may deem proper to effect the collection of all or any portion of
the Collateral or to protect or to enforce the Collateral or any security
therefor. All reasonable expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred or paid by Affymetrix in connection
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with or incident to any such collection or such attempt to collect the
Collateral or such actions to protect or enforce the Collateral or any security
therefor shall be borne by Pledgor or reimbursed by Pledgor to Affymetrix upon
written request therefor. The proceeds received by Affymetrix as a result of any
such actions in collecting or enforcing or protecting the Collateral shall be
held by Affymetrix without liability for interest thereon and shall be applied
by Affymetrix as provided by Section 9.
In the event Affymetrix shall reasonably pay any taxes,
assessments, interests, costs, penalties or expenses incident to or in
connection with the collection of the Collateral or protection or enforcement of
the Collateral, Pledgor, promptly following written request of Affymetrix, shall
pay to Affymetrix the full amount thereof and so long as Affymetrix shall be
entitled to any such payment, this Pledge and Security Agreement shall operate
as security therefor as fully and to the same extent as it operates as security
for payment of the other Obligations secured hereunder, and for the enforcement
of such repayment Affymetrix shall have every right and remedy provided for
enforcement of payment of the Obligations.
5. Further Assurances; Affymetrix as Agent. Pledgor agrees to take such
actions and to execute such stock or bond powers and such other or different
writings as Affymetrix may reasonably request (and in the event it shall fail to
do so, or if there shall occurred and be continuing an Event of Default,
irrevocably authorizes Affymetrix to execute such writings as Pledgor's agent
and attorney-in-fact) further to perfect, confirm and assure Affymetrix's
security interest in the Collateral pursuant hereto and to assist Affymetrix'
realization thereon including, without limitation, the right to receive,
indorse, and collect all instruments made payable to Pledgor representing any
dividend, interest payment or other distribution in respect of the Collateral or
any part thereof to the extent provided herein.
6. Events of Default. The occurrence of any "Event of Default" pursuant
to Section 5 of the Promissory Notes constitutes an event of default under this
Pledge and Security Agreement (an "Event of Default").
7. Rights and Remedies of Affymetrix Upon Default. If an Event of
Default shall have occurred and be continuing:
(a) Affymetrix shall have and may exercise with reference to the
Collateral and the Obligations any or all of the rights and remedies of a
secured party under the Uniform Commercial Code in effect in the State of
California, and as otherwise granted herein or under any other applicable law or
under any other agreement now or hereafter in effect executed by Pledgor in
favor of Affymetrix, including, without limitation, the right and power to sell,
at public or private sale or sales, or otherwise dispose of, or otherwise
utilize the Collateral and any part or parts thereof in any manner authorized or
permitted under said Uniform Commercial Code after default by a debtor, and to
apply the proceeds thereof toward payment of any reasonable costs and expenses
and reasonable attorneys' fees and expenses thereby incurred by Affymetrix and
toward payment of the Obligations as provided in Section 9. Specifically and
without limiting the foregoing, Affymetrix shall have the right to take
possession of all or any part of the Collateral, and for such purpose may enter
upon any premises upon which any of the Collateral or any security therefor are
situated and remove the same therefrom without any
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liability for trespass or damages thereby occasioned, if it proceeds without
breach of the peace. To the extent permitted by law, Pledgor expressly waives
any notice of sale or other disposition of the Collateral and all other rights
or remedies of Pledgor or formalities prescribed by law relative to sale or
disposition of the Collateral or exercise of any other right or remedy of
Affymetrix existing after default hereunder; and to the extent any such notice
is required and cannot be waived, Pledgor agrees that if such notice is given in
the manner provided in Section 13 hereof at least ten (10) calendar days before
the time of the sale or disposition, such notice shall be deemed reasonable and
shall fully satisfy any requirement for giving of said notice. Affymetrix shall
not be obligated to make any sale of Collateral regardless of notice of sale
having been given. Affymetrix may adjourn any public or private sale.
(b) Upon notice by Affymetrix to Pledgor, Affymetrix or its
nominee or nominees shall have the sole and exclusive right to exercise all
voting and consensual powers pertaining to the Collateral or any part thereof
and may exercise such powers in such manner as Affymetrix may elect.
(c) All dividends, payments of interest and other distributions
of every character made upon or in respect of the Collateral or any part thereof
shall be deemed to be Collateral and shall be paid directly to and shall be held
by Affymetrix as additional Collateral pledged under and subject to this Pledge
and Security Agreement.
(d) All rights to marshalling of assets of Pledgor, including any
such right with respects to the Collateral, are hereby waived by Pledgor.
(e) All recitals in any instrument of assignment or any other
instrument executed by Affymetrix incident to sale, lease, transfer, assignment
or other disposition, lease or utilization of the Collateral or any part thereof
hereunder shall be full proof of the matters stated therein and no other proof
shall be requisite to establish full legal propriety of the sale or other action
taken by Affymetrix or of any fact, condition or thing incident thereto and all
prerequisites of such sale or other action or of any fact, condition or thing
incident thereto shall be presumed conclusively to have been performed or to
have occurred.
8. Special Provisions for Pledged Securities.
(a) Pledgor hereby acknowledges that the sale by Affymetrix of
any Pledged Securities pursuant to the terms hereof in compliance with the
Securities Act of 1933 (as now in effect or as hereafter amended, or any similar
statute hereafter adopted with similar purpose or effect, the "Securities Act"),
as well as applicable Blue Sky or other state securities laws may require strict
limitations as to the manner in which Affymetrix or any subsequent transferee of
Pledged Securities may dispose of such securities. Pledgor understands that in
order to protect Affymetrix's interest it may be necessary to sell the Pledged
Securities at a price less than the maximum price attainable if a sale were
delayed or were made in another manner, such as a public offering requested
under the Securities Act. Pledgor has no objection to sale in such a manner and
agrees that Affymetrix shall have no obligation to obtain the maximum possible
price for the Pledged Securities.
(b) Pledgor agrees that, upon the occurrence and during the
continuance of an Event of Default, if for any reason Affymetrix desires to sell
any Pledged Securities at a
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public or private sale and in connection with such sale, in the opinion of
outside counsel from a nationally recognized U.S. law firm, no exemption from
the registration provisions of the Securities Act is available, Pledgor will,
upon the written request of Affymetrix and receipt of a written copy of such
legal opinion, at Pledgor's own expense:
(i) use its best efforts to cause such Pledged Securities to
be registered under the provisions of the Securities Act, and to cause the
registration statement relating thereto to become effective and to remain
effective for such period as prospectuses are required by law to be furnished,
and to make all amendments and supplements thereto and to the related prospectus
which, in the opinion of Affymetrix, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto;
(ii) indemnify, defend and hold harmless Affymetrix and any
underwriter from and against all losses, liability, reasonable expenses,
reasonable costs, reasonable fees and reasonable disbursements of counsel
(including, without limitation, a reasonable estimate of the cost to Affymetrix
of legal counsel), and claims (including the costs of investigation) which they
may incur insofar as such loss, liability, expense or claim arises out of or is
based upon any alleged untrue statement of a material fact contained in any
prospectus (or any amendment or supplement thereto) or in any notification or
offering circular, or arises out of or is based upon any alleged omission to
state a material fact required to be stated therein or necessary to make the
statements in any thereof not misleading, except insofar as the same may have
been caused by any untrue statement or omission based upon information furnished
in writing to the Pledgor or the issuer of such Pledged Securities by Affymetrix
expressly for use therein;
(iii) use its best efforts to qualify such Pledged Securities
under the state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of such Pledged Securities, as requested by
Affymetrix;
(iv) use its best efforts to cause each such issuer of such
Pledged Securities to make available to its security holders, as soon as
practicable, an earning statement which will satisfy the provisions of Section
11(a) of the Securities Act;
(v) bear all costs and expenses of carrying out its
obligations under this Section 8; and
(vi) use its best efforts to do or cause to be done all such
other acts and things as may be necessary to make such sale of Pledged
Securities or any part thereof valid and binding and in compliance with all
applicable law.
Nothing in this subsection (b) shall in any way alter the rights of Affymetrix
under subsection (a) above. Pledgor acknowledges that there is no adequate
remedy at law for failure by it to comply with the provisions of this Section
and that such failure would not be adequately compensable in damages, and
therefore agrees that its agreements contained in this Section 8 may be
specifically enforced.
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9. Application of Proceeds by Affymetrix. In the event Affymetrix sells
or otherwise disposes of or realizes on the Collateral in the course of
exercising the remedies provided for herein, any amounts held, realized or
received by Affymetrix pursuant to the provisions hereof, including the proceeds
of the sale of any of the Collateral or any part thereof, shall be applied by
Affymetrix first toward the payment of any reasonable costs and expenses
incurred by Affymetrix in enforcing this Pledge and Security Agreement, in
realizing on or protecting any Collateral and in enforcing or collecting any
Obligations or any guaranty thereof, including, without limitation, the actual
reasonable attorney's fees and expenses incurred by Affymetrix (all of which
costs and expenses are secured by the Collateral), all of which costs and
expenses Pledgor agrees to pay, and then between interest and principal as
Affymetrix may elect. Any amounts and any Collateral remaining after such
application and after payment to Affymetrix of all of the Obligations in full
shall be paid or delivered to Pledgor, its successor or assigns, or as a court
of competent jurisdiction may direct.
To the fullest extent permitted by applicable law, Affymetrix shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which Affymetrix accords its own property, it being
understood that Affymetrix shall not have any responsibility for (i)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
Affymetrix has or is deemed to have knowledge of such matters, or (ii) taking
any necessary steps to preserve rights against any parties with respect to any
Collateral.
10. Pledgor Fully Liable. This Pledge and Security Agreement shall not
be construed as relieving Pledgor from full liability on the Obligations and any
and all future and other indebtedness secured hereby and for any deficiency
thereon.
11. Termination. This Pledge and Security Agreement and the security
interest created hereunder shall terminate when all the Obligations have been
indefeasibly paid in full and when Affymetrix has no further obligation to
extend credit under the Stock Purchase Agreement, the Promissory Notes or any
other written agreement relating to the Obligations, at which time Affymetrix
shall execute and deliver to Pledgor all documents which Pledgor shall
reasonably request to evidence termination of such security interest and shall
return physical possession of any Collateral then held by Affymetrix to Pledgor;
provided, however, that all indemnities of the Pledgor contained in this Pledge
and Security Agreement shall survive, and remain in full force and effect
regardless of the termination of the security interest or this Pledge and
Security Agreement.
12. Additional Information. Pledgor agrees to furnish Affymetrix from
time to time with such additional information and copies of such documents
relating to this Pledge and Security Agreement, the Collateral and the
Obligations as Affymetrix may reasonably request.
13. Notices. Any notices and other communications required or permitted
under this Pledge and Security Agreement shall be effective if in writing and
delivered personally or
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sent by telecopier, Federal Express or registered or certified mail, postage
prepaid, addressed as follows:
If to Affymetrix, to: Affymetrix, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: General Counsel
with a copy to(which shall Xxxxxxxx & Xxxxxxxx
not constitute notice): 0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
If to the Pledgor, to: Hyseq, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: General Counsel
with a copy to (which shall Xxxxxx & Xxxxxxx
not constitute notice): 000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Unless otherwise specified herein, such notices or other communications
shall be deemed effective (a) on the date delivered, if delivered personally,
(b) two business days after being sent, if sent by Federal Express or other
commercial overnight delivery service, (c) one business day after being sent, if
sent by telecopier with confirmation of good transmission and receipt, and (d)
three business days after being sent, if sent by registered or certified mail.
Each of the parties hereto shall be entitled to specify another address by
giving notice as aforesaid to each of the other parties hereto.
14. Indemnity and Expenses. Pledgor agrees to indemnify Affymetrix from
and against any and all claims, losses and liabilities growing out of or
resulting from this Pledge and Security Agreement (including, without
limitation, enforcement of the Promissory Notes or this Pledge and Security
Agreement and all claims and demands of all persons at any time claiming the
Collateral or any interest therein), except claims, losses or liabilities
resulting from Affymetrix's gross negligence or willful misconduct. Pledgor
agrees to promptly pay upon written request all reasonable out-of-pocket
expenses (including the reasonable fees and
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expenses of Affymetrix's counsel, experts and agents) in any way relating to the
enforcement or protection of the rights of Affymetrix hereunder and further
agrees that the Collateral secures such payment.
15. No Waiver; Cumulative Rights. No failure on the part of Affymetrix
to exercise, and no delay in exercising, any right, remedy or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise by
Affymetrix of any right, remedy or power hereunder preclude any other or future
exercise of any other right, remedy or power. Each and every right, remedy and
power hereby granted to Affymetrix or allowed it by law or other agreement shall
be cumulative and not exclusive the one of any other, and may be exercised by
Affymetrix from time to time.
16. Submission to Jurisdiction; Waiver of Jury Trial. (a) THIS PLEDGE
AND SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF CALIFORNIA. TO INDUCE AFFYMETRIX TO ENTER INTO THIS PLEDGE AND SECURITY
AGREEMENT, PLEDGOR HEREBY IRREVOCABLY AGREES THAT, SUBJECT TO AFFYMETRIX' SOLE
AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS WHICH IN ANY MANNER ARISE OUT
OF OR IN CONNECTION WITH OR ARE IN ANY WAY RELATED TO THIS PLEDGE AND SECURITY
AGREEMENT SHALL BE LITIGATED IN COURTS HAVING SITUS WITHIN THE COUNTY OF SANTA
XXXXX, STATE OF CALIFORNIA. PLEDGOR HEREBY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF SANTA XXXXX, STATE OF
CALIFORNIA. PLEDGOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE
THE VENUE OF ANY LITIGATION BETWEEN PLEDGOR AND AFFYMETRIX IN ACCORDANCE WITH
THIS PARAGRAPH.
(b) EACH OF PLEDGOR AND AFFYMETRIX HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WHICH IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH OR IS IN ANY WAY RELATED
TO THIS PLEDGE AND SECURITY AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREIN.
(c) THE PROVISIONS OF THIS SECTION 16 ARE A MATERIAL INDUCEMENT FOR
AFFYMETRIX ENTERING INTO THE PROMISSORY NOTES AND THE TRANSACTIONS CONTEMPLATED
HEREIN. PLEDGOR HEREBY ACKNOWLEDGES THAT IT HAS REVIEWED THE PROVISIONS OF THIS
SECTION 16 WITH ITS COUNSEL.
17. Execution in Counterparts. This Pledge and Security Agreement may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Pledge and
Security Agreement to be duly executed as of the date first above written.
HYSEQ, INC.
By /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. VP & CFO
AFFYMETRIX, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Exec. V.P. and General Counsel
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SCHEDULE A
COLLATERAL
Pledged Securities. All outstanding shares of capital stock (the
"Pledged Stock") of Callida Genomics, Inc., a Delaware corporation ("CGI"), held
by Pledgor or any affiliate or agent of Pledgor, including, without limitation,
3,600,000 shares of Series A Preferred Stock, par value $0.001 per share, of CGI
held by Pledgor on the date hereof and any shares of capital stock of CGI issued
to Pledgor or any affiliate or agent of Pledgor in the future pursuant to the
Stock Purchase Agreement or otherwise; and
Any securities (together with the Pledged Stock, the "Pledged
Securities"), cash or property issued in exchange for the Pledged Securities in
a merger, consolidation, reorganization, recapitalization or otherwise, or as a
dividend or distribution on the Pledged Securities; and
All additions to and all replacements of and substitutions for any
property described on this Schedule A; and
All policies of insurance covering or relating in any manner to any of
the property described on this Schedule A, all of which policies are hereby
assigned to Affymetrix as security for the Obligations; and
All proceeds (including insurance proceeds) from the sale, destruction,
loss, or other disposition of any nature of any of the above; and
All products and produce of any of the above.
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