AMENDMENT TO CONFIRMATION
EXHIBIT 10.5
AMENDMENT TO CONFIRMATION
THIS AMENDMENT (this “Amendment”) is made as of this 13th day of February 2007, between
Xxxxxxx, Xxxxx & Co. (“Dealer”) and Illumina, Inc. (“Issuer”).
WHEREAS, Dealer and Issuer are parties to a Confirmation dated as of February 12, 2007 (the
“Confirmation”) relating to Warrants on shares of common stock (par value USD0.01 per share) of
Issuer;
WHEREAS, the parties wish to amend the Confirmation on the terms and conditions set forth in
this Amendment;
NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties
hereto agree as follows:
Section 1. Terms Used but Not Defined Herein. Terms used but not defined herein shall have
the respective meanings given to them in the Confirmation.
Section 2. Amendment to the Confirmation.
| (a) | The “Premium” under the Confirmation shall be USD64,708,000. | ||
| (b) | The “Number of Warrants” under Annex A shall be 160,320 for Components 1 through 28 and 160,321 for Components 29 through 40. | ||
| (c) | Section 8(e) of the Confirmation is amended by replacing the reference to “11,222,421” with “12,825,624”. |
Section 3. Representations and Warranties.
Issuer represents and warrants to Dealer as follows:
| (a) | On the date of this Amendment, (A) Issuer is not aware of any material nonpublic information regarding Issuer or the Shares and (B) all reports and documents filed by Issuer with the Securities and Exchange Commission pursuant to the Exchange Act when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents) taken together with the press release dated February 13, 2007, do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading. | ||
| (b) | Issuer is not entering into this Amendment to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act. | ||
| (c) | The representations and warranties of Issuer set forth in Section 3 of the Agreement and Section 7 of the Confirmation are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. |
Section 4. Effectiveness. This Amendment shall become effective upon execution by the
parties hereto.
Section 5. Counterparts. This Amendment may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if all of the signatures thereto and hereto
were upon the same instrument.
Section 6. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York.
Section 7. Effectiveness of Confirmation. Except as amended hereby, all the terms of the
Confirmation shall remain and continue in full force and effect and are hereby confirmed in all
respects.
IN WITNESS WHEREOF, the parties have signed this Amendment as of the date and year first above
written.
| XXXXXXX, SACHS & CO. |
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| By: | /s/ Xxxxxx Xxxxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxxxx | |||
| Title: | Vice President | |||
Agreed and accepted by:
| ILLUMINA, INC. | ||||
By:
|
/s/ Xxxxxxxxx X. Xxxxx
|
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| Title: Senior Vice President & Chief Financial Officer | ||||
