EXHIBIT 10.1
GUARANTY
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 ”).
WITNESSETH
:
WHEREAS, pursuant to the Securities
Purchase Agreement, dated as of August 14, 2008, (as amended,
restated, supplemented, replaced, modified or otherwise changed
from time to time, the “ Purchase Agreement ”),
among Nanogen, Inc., a Delaware corporation (the “
Company ”) and each party listed as a
“Investor” on the Schedule of Investors (collectively,
the “ Investors ”) attached thereto, the Company
has agreed to issue, and each Investor has agreed to purchase, the
Notes referred to in the Purchase Agreement (as amended, restated,
supplemented, replaced, modified or otherwise changed from time to
time, collectively, the “ Notes ”);
WHEREAS, pursuant to the Securities
Purchase Agreement, dated as of August 14, 2008 (as amended,
restated, supplemented, replaced, modified or otherwise changed
from time to time, the “ Elitech Purchase Agreement
” and collectively with the Purchase Agreement, the “
Purchase Agreements ”) between the Company and
Financiere Elitech SAS, a société par actions
simplifiée formed under the laws of France (for the
purposes of this Guaranty, also an Investor), the Company has
agreed to issue, and the Investor has agreed to purchase, the Notes
referred to in the Elitech Purchase Agreement;
WHEREAS, the Purchase Agreements
require that (i) each of the Company’s subsidiaries
organized under the laws of the United States, any of the states
thereof or the District of Columbia (the “ U.S.
Guarantors ”) enter into a Guaranty dated the date
thereof and (ii) the Guarantor agrees to execute and deliver
within the respective time periods set forth in the Purchase
Agreements, (A) this guaranty guaranteeing all of the
obligations of the Company under the Purchase Agreements, the Notes
and the Transaction Documents (defined below), and (B) certain
security documents entered into by the Guarantor granting to the
Collateral Agent a lien in certain of its deposit accounts and all
proceeds thereof, as further described in such security documents
(collectively, the “ Security Documents “);
and
WHEREAS, the Guarantor has
determined that the execution, delivery and performance of this
Guaranty directly benefits, and is in the best interest of, the
Guarantor;
NOW, THEREFORE, in consideration of
the premises and the agreements herein and in order to induce the
Investors to perform under the Purchase Agreements, the Guarantor
hereby agrees with each Investor as follows:
SECTION 1. Definitions .
Reference is hereby made to the Purchase Agreements and the
“Notes” (as defined) in and issued pursuant to the
Purchase Agreements and (as such Notes may be amended, restated,
replaced or otherwise modified from time to time in accordance with
the terms thereof, collectively, the “ Notes ”)
for a statement of the terms thereof. All terms used in this
Guaranty, which are defined in the Purchase Agreements or the Notes
and not otherwise defined herein, shall have the same meanings
herein as set forth therein. For the purposes of this Agreement,
“Transaction Documents” shall include the
“Transaction Documents” as defined in the Purchase
Agreements, but shall not include the Elitech Guarantee (as defined
therein) or any documents or agreements relating to or entered in
connection with the Indenture, any Existing Securities Purchase
Agreement, Existing Notes, Existing Warrants, Existing Exchange
Agreements, Existing Exchange Notes, Existing Security Documents,
New Amendment and Exchange Agreement and New Exchanged Notes (each
as defined in the Purchase Agreements).
SECTION 2. Guaranty . The
Guarantor (on a joint and several basis with the U.S. Guarantors),
hereby unconditionally and irrevocably, guaranties the punctual
payment, as and when due and payable, by stated maturity or
otherwise, of all obligations of the Company from time to time
owing by it in respect of the Purchase Agreements, the Notes and
the other Transaction Documents, including, without limitation, all
principal of and all interest on the Notes (including, without
limitation, all interest that accrues after the commencement of any
Insolvency Proceeding of the Guarantor, whether or not the payment
of such interest is unenforceable or is not allowable due to the
existence of such Insolvency Proceeding), and all fees,
commissions, expense reimbursements, indemnifications and all other
amounts due or to become due under any of the Transaction Documents
(such obligations, to the extent not paid by the Company, being the
“ Guaranteed Obligations ”), and agrees to pay
any and all expenses (including reasonable counsel fees and
expenses) reasonably incurred by the Collateral Agent or any
Investor in enforcing any rights under this Guaranty. Without
limiting the generality of the foregoing, the Guarantor’s
liability hereunder shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by the Company
to the Collateral Agent or any Investor under the Purchase
Agreements and the Notes but for the fact that they are
unenforceable or not allowable due to the existence of an
Insolvency Proceeding involving any Guarantor or the Company (each,
a “ Transaction Party ”).
SECTION 3. Guaranty Absolute;
Continuing Guaranty; Assignments .
(a) The Guarantor (on a joint and
several basis with the U.S. Guarantors), guaranties that the
Guaranteed Obligations will be paid strictly in accordance with the
terms of the Transaction Documents, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction
(other than mandatory public policy rules of the jurisdiction where
enforcement against the Guarantor is sought) affecting any of such
terms or the rights of the Collateral Agent or any Investor with
respect thereto. The obligations of the Guarantor under this
Guaranty are independent of the Guaranteed Obligations, and a
separate action or actions may be brought and prosecuted against
the Guarantor to enforce such obligations, irrespective of whether
any action is brought against any Transaction Party or whether any
Transaction Party is joined in any such action or actions. To the
maximum extent permitted by the national law of the Guarantor, the
liability of the Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the
Guarantor hereby irrevocably waives, to the extent permitted by
law, any defenses it may now or hereafter have in any way relating
to, any or all of the following:
(i) any lack of validity or
enforceability of any Transaction Document or any agreement or
instrument relating thereto;
- 2 -
(ii) any change in the time, manner
or place of payment of, or in any other term of, all or any of the
Guaranteed Obligations, or any other amendment or waiver of or any
consent to departure from any Transaction Document, including,
without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any
Transaction Party or otherwise;
(iii) any taking, exchange, release
or non-perfection of any Collateral (as defined in the Security
Agreement), or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(iv) any change, restructuring or
termination of the corporate, limited liability company or
partnership structure or existence of any Transaction Party;
or
(v) any other circumstance
(including any statute of limitations) or any existence of or
reliance on any representation by the Collateral Agent that might
otherwise constitute a defense available to, or a discharge of, any
Transaction Party or any other guarantor or surety.
This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any
payment of any of the Guaranteed Obligations is rescinded or must
otherwise be returned by the Collateral Agent or any other Person
upon the insolvency, bankruptcy or reorganization of any
Transaction Party or otherwise, all as though such payment had not
been made.
(b) This Guaranty is a continuing
guaranty and shall (i) remain in full force and effect until
the indefeasible cash payment in full of the Guaranteed Obligations
(other than inchoate indemnity obligations) and/or complete
conversion of all of the Company’s obligations under the
Notes to equity securities of the Company and payment of all other
amounts payable under this Guaranty (other than inchoate indemnity
obligations) and shall not terminate for any reason prior to the
Maturity Date of the Notes (other than payment in full of the Notes
and/or complete conversion of all of the Company’s
obligations under the Notes to equity securities of the Company)
and (ii) be binding upon the Guarantor and its successors and
assigns. This Guaranty shall inure to the benefit of and be
enforceable by the Collateral Agent and its successors, and
permitted pledgees, transferees and assigns. Without limiting the
generality of the foregoing sentence, the Collateral Agent or any
Investor may pledge, assign or otherwise transfer all or any
portion of its rights and obligations under and subject to the
terms of any Transaction Document to any other Person, and such
other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Collateral Agent or Investor herein
or otherwise, in each case as provided in the Purchase Agreements
or such Transaction Document. Notwithstanding the foregoing and for
the avoidance of doubt, this Guaranty will expire and the Guarantor
will be released from its obligation hereunder upon the earlier of
payment in full and/or complete conversion of the Obligations
(other than inchoate indemnity obligations) to equity securities of
the Company.
- 3 -
SECTION 4. Waivers . To the
extent permitted by applicable law, the Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that the Collateral Agent or any Investor
exhaust any right or take any action against any Transaction Party
or any other Person or any Collateral. The Guarantor acknowledges
that it will receive direct and indirect benefits from the
financing arrangements contemplated herein and that the waiver set
forth in this Section 4 is knowingly made in
contemplation of such benefits. The Guarantor hereby waives any
right to revoke this Guaranty, and acknowledges that this Guaranty
is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
SECTION 5. Subrogation . The
Guarantor may not exercise any rights that it may now or hereafter
acquire against any Transaction Party, including any U.S.
Guarantor, or any other guarantor that arise from the existence,
payment, performance or enforcement of the Guarantor’s
obligations under this Guaranty, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy
of the Collateral Agent or any Investor against any Transaction
Party, including any U.S. Guarantor, or any other guarantor or any
Collateral, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without
limitation, the right to take or receive from any Transaction Party
or any other guarantor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security
solely on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations (other than inchoate indemnity
obligations) and all other amounts payable under this Guaranty
(other than inchoate indemnity obligations) shall have indefeasibly
been paid in full in cash and/or by complete conversion of all of
the Company’s obligations under the Notes to equity
securities of the Company. If any amount shall be paid to the
Guarantor in violation of the immediately preceding sentence at any
time prior to the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this
Guaranty and/or complete conversion of all of the Company’s
obligations under the Notes to equity securities of the Company,
such amount shall be held in trust for the benefit of the
Collateral Agent and the Investors and shall forthwith be paid to
the Collateral Agent and the Investors to be credited and applied
to the Guaranteed Obligations and all other amounts payable under
this Guaranty, whether matured or unmatured, in accordance with the
terms of the Transaction Document, or to be held as Collateral for
any Guaranteed Obligations or other amounts payable under this
Guaranty thereafter arising. If (a) the Guarantor shall make
payment to the Collateral Agent or any Investor of all or any part
of the Guaranteed Obligations, and (b) all of the Guaranteed
Obligations (other than inchoate indemnity obligations) and all
other amounts payable under this Guaranty (other than inchoate
indemnity obligations) shall indefeasibly be paid in full in cash
and/or by complete conversion of all of the Company’s
obligations under the Notes to equity securities of the Company,
the Collateral Agent and each Investor will, at the
Guarantor’s request and expense, execute and deliver to the
Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by
subrogation to the Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by the
Guarantor.
- 4 -
SECTION 6. Representations,
Warranties and Covenant
