Nanogen Inc Sample Contracts

Nanogen Inc – Amendments to Amended and Restated Bylaws (August 14th, 2009)
Nanogen Inc – CERTIFICATE OF AMENDMENT TO THE RESTATED CERTIFICATE OF INCORPORATION OF NANOGEN, INC. a Delaware corporation (July 9th, 2009)

NANOGEN, INC., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:

Nanogen Inc – AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT (July 9th, 2009)

This Amendment No. 2 (this “Amendment”) to Asset Purchase Agreement is made as of June 19, 2009 by and among Financière Elitech SAS, a société par actions simplifiée formed under the laws of France (“Buyer”), Nanogen, Inc., a Delaware corporation (“Nanogen”), Epoch Biosciences, Inc., a Delaware corporation and wholly-owned subsidiary of Nanogen (“Epoch”), and Nanotronics, Inc., a California corporation and wholly-owned subsidiary of Nanogen (“Nanotronics” and, collectively with Nanogen and Epoch, the “Sellers” and each a “Seller”), and amends the Asset Purchase Agreement dated as of May 13, 2009 by and among Buyer and each of the Sellers, as amended by Amendment No. 1 to Asset Purchase Agreement dated as of May 29, 2009 (the “Asset Purchase Agreement”). All capitalized terms that are used in this Amendment and not defined herein shall have the respective meanings ascribed thereto in the Asset Purchase Agreement.

Nanogen Inc – AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT (July 9th, 2009)

This Amendment No. 1 (this “Amendment”) to Asset Purchase Agreement is made as of May 29, 2009 by and among Financière Elitech SAS, a société par actions simplifiée formed under the laws of France (“Buyer”), Nanogen, Inc., a Delaware corporation (“Nanogen”), Epoch Biosciences, Inc., a Delaware corporation and wholly-owned subsidiary of Nanogen (“Epoch”), and Nanotronics, Inc., a California corporation and wholly-owned subsidiary of Nanogen (“Nanotronics” and, collectively with Nanogen and Epoch, the “Sellers” and each a “Seller”), and amends the Asset Purchase Agreement dated as of May 13, 2009 by and among Buyer and each of the Sellers (the “Asset Purchase Agreement”). All capitalized terms that are used in this Amendment and not defined herein shall have the respective meanings ascribed thereto in the Asset Purchase Agreement.

Nanogen Inc – NANOGEN ENTERS ASSET PURCHASE AGREEMENT WITH ELITECH Files Voluntary Chapter 11 Petition; Molecular and POC Businesses Remain Fully Operational (May 15th, 2009)

SAN DIEGO (May 14, 2009) – Nanogen, Inc. (Pink Sheets: NGEN), developer of molecular and rapid diagnostic products, today announced that it has executed an asset purchase agreement with The Elitech Group (“Elitech”), a privately held diagnostics company, to acquire substantially all of the assets of Nanogen. As part of the sale, Nanogen filed a voluntary petition under chapter 11 of title 11 of the United States Code in the Bankruptcy Court for the District of Delaware, including a motion seeking bankruptcy court approval of the sale, subject to a court-supervised auction pursuant to Section 363 of the Bankruptcy Code and designating Elitech as the stalking horse bidder. The auction bidding procedures, if approved, would require interested parties to submit higher and better binding offers to acquire all of the Company’s assets within approximately 30 days, and, assuming any qualified overbids are submitted, an auction would be held within approximately one week of the bid deadline.

Nanogen Inc – ASSET PURCHASE AGREEMENT BY AND AMONG FINANCIERE ELITECH SAS, NANOGEN, INC., EPOCH BIOSCIENCES, INC., AND NANOTRONICS, INC. May 13, 2009 (May 15th, 2009)

This Asset Purchase Agreement (“Agreement”) is made as of May 13, 2009 (the “Effective Date”) by and among Financière Elitech SAS, a société par actions simplifiée formed under the laws of France (“Buyer”), Nanogen, Inc., a Delaware corporation (“Nanogen”), Epoch Biosciences, Inc., a Delaware corporation and wholly-owned subsidiary of Nanogen (“Epoch”), and Nanotronics, Inc., a California corporation and wholly-owned subsidiary of Nanogen (“Nanotronics” and, collectively with Nanogen and Epoch, the “Sellers” and each a “Seller”). Buyer and Sellers are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.” All terms used below without definition are defined in Article 1 hereof.

Nanogen Inc – CONSENT AND WAIVER (January 21st, 2009)

Consent and Waiver (this “Consent and Waiver”) dated as of January 16, 2009, by and between Nanogen, Inc., a Delaware corporation (the “Company”), Financière Elitech SAS, 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 (“Elitech”), and the shareholders of Elitech, as listed on the signature pages hereto (the “Sellers”).

Nanogen Inc – CONSENT AND WAIVER (January 21st, 2009)

Consent and Waiver (this “Consent and Waiver”) dated as of January 16, 2009, by and between Nanogen, Inc., a Delaware corporation (the “Company”), Financière Elitech SAS, 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 (“Elitech”), and the shareholders of Elitech, as listed on the signature pages hereto (the “Sellers”).

Nanogen Inc – CONSENT AND AGREEMENT (November 18th, 2008)

Consent and Agreement (this “Consent and Agreement”) dated as of November 14, 2008, by and between Nanogen, Inc., a Delaware corporation (the “Company”), and the undersigned holder (the “Holder”).

Nanogen Inc – CONSENT AND AGREEMENT (November 18th, 2008)

Consent and Agreement (this “Consent and Agreement”) dated as of November 14, 2008, by and between Nanogen, Inc., a Delaware corporation (the “Company”), and the undersigned holder (the “Holder”).

Nanogen Inc – Contract (November 14th, 2008)

Note: Portions of this Exhibit are the subject of a Confidential Treatment Request by the Registrant to the Securities and Exchange Commission (the “Commission”). Such portions have been redacted and marked with “[***]” in place of the redacted language. The redacted information has been filed separately with the Commission.

Nanogen Inc – Note: Portions of this Exhibit are the subject of a Confidential Treatment Request by the Registrant to the Securities and Exchange Commission (the “Commission”). Such portions have been redacted and marked with “[***]” in place of the redacted language. The redacted information has been filed separately with the Commission. (November 14th, 2008)

On September 15, 2008, we have received by you a letter proposing to us to establish a valid and perfected pledge over the balance of the bank account no. [***] whose content is copied herebelow:

Nanogen Inc – PLEDGE AS COLLATERAL ON QUOTA OF A LIMITED-LIABILITY COMPANY entered into by and between by (November 14th, 2008)

Nanogen Inc., a Delaware corporation, with registered offices located at 10398 Pacific Center Court, San Diego, California 92121 (“Debtor” or “Pledgor”)

Nanogen Inc – PLEDGE AS COLLATERAL ON QUOTA OF A LIMITED-LIABILITY COMPANY entered into by and between by (November 14th, 2008)

Nanogen Inc., a Delaware corporation, with registered offices located at 10398 Pacific Center Court, San Diego, California 92121 (“Debtor” or “Pledgor”)

Nanogen Inc – Contract (November 14th, 2008)

Note: Portions of this Exhibit are the subject of a Confidential Treatment Request by the Registrant to the Securities and Exchange Commission (the “Commission”). Such portions have been redacted and marked with “[***]” in place of the redacted language. The redacted information has been filed separately with the Commission.

Nanogen Inc – Note: Portions of this Exhibit are the subject of a Confidential Treatment Request by the Registrant to the Securities and Exchange Commission (the “Commission”). Such portions have been redacted and marked with “[***]” in place of the redacted language. The redacted information has been filed separately with the Commission. (November 14th, 2008)

On September 15, 2008, we have received by you a letter proposing to us to establish a valid and perfected pledge over the balance of the bank account no. [***] whose content is copied herebelow:

Nanogen Inc – GUARANTY (November 14th, 2008)

GUARANTY, dated as of August 21,2008, made by NANOGEN ADVANCED DIAGNOSTICS, Srl, a company with limited liability (società a responsabilità limitata), incorporated under the laws of Italy, with registered office in Italy, Trezzano sul Naviglio (MI), having registered share capital of Euros 50,000.00 and shared capital subscribed and paid in of Euros 50,000.00, registered in the Companies Registry at n. 05239350969, Italian tax payer code n. 05234350969 (the “Guarantor”), in favor of the “Investors” (as defined below) and PORTSIDE GROWTH & OPPORTUNITY FUND, a company organized under the laws of the Cayman Islands, in its capacity as collateral agent for the Investors (in such capacity, the “Collateral Agent”).

Nanogen Inc – GUARANTY (August 15th, 2008)

GUARANTY, dated as of August 14, 2008, made by each of the undersigned (each a “Guarantor”, and collectively, the “Guarantors”), in favor of the “Investors” (as defined below) and PORTSIDE GROWTH & OPPORTUNITY FUND, a company organized under the laws of the Cayman Islands, in its capacity as collateral agent for the Investors (in such capacity, the “Collateral Agent”).

Nanogen Inc – Contract (August 15th, 2008)

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.

Nanogen Inc – VOTING AGREEMENT (August 15th, 2008)

This VOTING AGREEMENT (“Agreement”) is made as of August 14, 2008, between Financiére Elitech SAS, a société par actions simplifiée incorporated under the laws of France (“Elitech”), and the undersigned stockholder (“Stockholder”) of Nanogen, Inc., a Delaware corporation (“Nanogen”).

Nanogen Inc – AMENDED AND RESTATED SECURITY AGREEMENT (August 15th, 2008)

AMENDED AND RESTATED 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.

Nanogen Inc – [FORM OF SENIOR SECURED CONVERTIBLE NOTES] NANOGEN, INC. SENIOR SECURED CONVERTIBLE NOTE (August 15th, 2008)

FOR VALUE RECEIVED, Nanogen, Inc., a Delaware corporation (the “Company”), hereby promises to pay to [PORTSIDE GROWTH AND OPPORTUNITY FUND] [CAPITAL VENTURES INTERNATIONAL] [ENABLE OPPORTUNITY PARTNERS LP] [PIERCE DIVERSIFIED STRATEGY MASTER FUND LLC, ENA] [ENABLE GROWTH PARTNERS LP] [HIGHBRIDGE INTERNATIONAL LLC] [CASTLERIGG MASTER INVESTMENTS LTD.] or registered assigns (“Holder”) the amount set out above as the Original Principal Amount (as reduced pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the “Principal”) when due, whether upon the Maturity Date (as defined below), acceleration, redemption or otherwise (in each case in accordance with the terms hereof) and to pay interest (“Interest”), on any outstanding Principal at the applicable Interest Rate from the date set out above as the Issuance Date (the “Issuance Date”) until the same becomes due and payable, whether upon an Interest Date (as defined below), or the Maturity Date, acceleration, convers

Nanogen Inc – [FORM OF SENIOR SECURED CONVERTIBLE BRIDGE NOTES] (August 15th, 2008)

NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

Nanogen Inc – SECURITIES PURCHASE AGREEMENT (August 15th, 2008)

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 the investors signatory hereto (individually, an “Investor” and collectively, the “Investors”).1

Nanogen Inc – SECURITIES PURCHASE AGREEMENT (August 15th, 2008)

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”).

Nanogen Inc – SECURITIES PURCHASE AGREEMENT (August 15th, 2008)

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 the investors signatory hereto (individually, an “Investor” and collectively, the “Investors”).1

Nanogen Inc – Contract (August 15th, 2008)

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.

Nanogen Inc – CASH COMPENSATION SUSPENSION AGREEMENT (August 15th, 2008)

AGREEMENT made this 14th day of August 2008 by and between Nanogen, Inc. a Delaware corporation (the “Company”), and Howard C. Birndorf, the Company’s Chief Executive Officer (the “Executive”).

Nanogen Inc – [FORM OF SENIOR SECURED CONVERTIBLE BRIDGE NOTES] (August 15th, 2008)

NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.

Nanogen Inc – Contract (August 15th, 2008)

THIRD SUPPLEMENTAL INDENTURE, dated as of August 14, 2008, (“Third Supplemental Indenture”) between Nanogen, Inc., a corporation duly organized and existing under the laws of the State of Delaware, as Issuer (the “Company”), having its principal office at 10398 Pacific Center Court, San Diego, California 92121, and The Bank of New York Mellon Trust Company, N.A., a national banking association, as Trustee (in such capacity, the “Trustee”). Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the First Supplemental Indenture (as defined below).

Nanogen Inc – LIMITED GUARANTY (August 15th, 2008)

LIMITED GUARANTY, dated as of August 14, 2008, made by 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 “Guarantor”), in favor of the holders from time to time of certain Guaranteed Notes (as defined below).

Nanogen Inc – INTERCREDITOR AGREEMENT (August 15th, 2008)

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”).

Nanogen Inc – [FORM OF AMENDED AND RESTATED SENIOR SECURED CONVERTIBLE NOTES] NANOGEN, INC. AMENDED AND RESTATED SENIOR SECURED CONVERTIBLE NOTE (August 15th, 2008)

FOR VALUE RECEIVED, Nanogen, Inc., a Delaware corporation (the “Company”), hereby promises to pay to [PORTSIDE GROWTH AND OPPORTUNITY FUND] [CAPITAL VENTURES INTERNATIONAL] [ENABLE OPPORTUNITY PARTNERS LP] [PIERCE DIVERSIFIED STRATEGY MASTER FUND LLC, ENA] [ENABLE GROWTH PARTNERS LP] [HIGHBRIDGE INTERNATIONAL LLC] [CASTLERIGG MASTER INVESTMENTS LTD.] or registered assigns (“Holder”) the amount set out above as the Original Principal Amount as reduced pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the “Principal”) when due, whether upon the Maturity Date (as defined below), on any Company Redemption Date with respect to the Company Redemption Amount due on such Company Redemption Date (each, as defined herein), acceleration, redemption or otherwise (in each case in accordance with the terms hereof) and to pay interest (“Interest”), on any outstanding Principal at the applicable Interest Rate from the date set out above as the Issuance Date (the “Issuance D

Nanogen Inc – AMENDMENT NO. 2 TO RIGHTS AGREEMENT (August 15th, 2008)

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:

Nanogen Inc – GUARANTY (August 15th, 2008)

GUARANTY, dated as of August 14, 2008, made by each of the undersigned (each a “Guarantor”, and collectively, the “Guarantors”), in favor of the “Investors” (as defined below) and PORTSIDE GROWTH & OPPORTUNITY FUND, a company organized under the laws of the Cayman Islands, in its capacity as collateral agent for the Investors (in such capacity, the “Collateral Agent”).