SECURITY AGREEMENTSecurity Agreement • August 15th, 2008 • Nanogen Inc • Laboratory analytical instruments • New York
SECURITY AGREEMENT, dated as of August 14, 2008 (this “Agreement”), made by each of the parties set forth on the signature pages hereto (each a “Grantor” and collectively and together with the Company, the “Grantors”), in favor of PORTSIDE GROWTH AND OPPORTUNITY FUND, a company organized under the laws of the Cayman Islands, in its capacity as collateral agent (in such capacity, the “Collateral Agent”) to the Secured Parties referred to below.
SECURITIES PURCHASE AGREEMENTSecurities Purchase Agreement • August 15th, 2008 • Nanogen Inc • Laboratory analytical instruments • New York
SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of August 14, 2008, by and among Nanogen, Inc., a Delaware corporation, with headquarters located at 10398 Pacific Center Court, San Diego, California 92121 (the “Company”), and Financière Elitech S.A.S., a société par actions simplifiée incorporated under the laws of France and registered with the Clerk of the Commercial Court of Nanterre under the number 481 676 062 (the “Investor”).
ContractIntercreditor Agreement • August 15th, 2008 • Nanogen Inc • Laboratory analytical instruments • New York
REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT DATED AS OF AUGUST 14, 2008 (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “INTERCREDITOR AGREEMENT”), AMONG PORTSIDE GROWTH AND OPPORTUNITY FUND (“PORTSIDE”), AS FIRST LIEN COLLATERAL AGENT (AS DEFINED THEREIN), PORTSIDE, AS SECOND LIEN COLLATERAL AGENT (AS HEREINAFTER DEFINED), AND ANY SUBSIDIARY GUARANTOR (AS DEFINED THEREIN) FROM TIME TO TIME PARTY THERETO. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE SECURED PARTIES (AS HEREINAFTER DEFINED), PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE SECURED PARTIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL CONTROL.
INTERCREDITOR AGREEMENTIntercreditor Agreement • August 15th, 2008 • Nanogen Inc • Laboratory analytical instruments • New York
This INTERCREDITOR AGREEMENT, dated as of August 14, 2008, is entered into by and among PORTSIDE GROWTH AND OPPORTUNITY FUND, as collateral agent for the Exchanged Note Noteholders (as defined below), (in such capacity, the “Exchanged Note Agent”), PORTSIDE GROWTH AND OPPORTUNITY FUND, as collateral agent for the Bridge Noteholders (as defined below), (in such capacity, the “Bridge Note Agent”), Nanogen, Inc., a Delaware corporation (the “Company”) and the undersigned subsidiaries of the Company (each a “Guarantor” and collectively the “Guarantors”).
AMENDMENT NO. 2 TO RIGHTS AGREEMENTRights Agreement • August 15th, 2008 • Nanogen Inc • Laboratory analytical instruments • Delaware
THIS AMENDMENT NO. 2 (this “Amendment”), dated as of August 14, 2008, to the Rights Agreement, dated as of November 17, 1998 as amended by Amendment No. 1 to the Rights Agreement dated December 11, 2000 (the “Rights Agreement”), between Nanogen, Inc., a Delaware corporation (the “Company”), and Computershare Trust Company, N.A. (as successor rights agent to FleetBoston, N.A., successor rights agent to BankBoston, N.A.) as Rights Agent (the “Rights Agent”), is made with reference to the following facts:
FINANCIÈRE ELITECH S.A.S. 92800 Puteaux France August 14, 2008Securities Purchase Agreement • August 15th, 2008 • Nanogen Inc • Laboratory analytical instruments • New York
Reference is made to (i) the Securities Purchase Agreement, dated as of the date hereof, by and among Nanogen, Inc., a Delaware corporation, with headquarters located at 10398 Pacific Center Court, San Diego, California 92121 (the “Company”) and the Investor (the “Securities Purchase Agreement”) and (ii) the Second Amendment and Exchange Agreement, dated as of the date hereof, by and among the Company and the Investor (the “Amendment and Exchange Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Securities Purchase Agreement and the Amendment and Exchange Agreement, as applicable.
