Exhibit 10.1
CONSENT AND WAIVER
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
”).
WHEREAS, the Company, Elitech and
the Sellers executed and delivered that certain Share Exchange
Agreement, dated as of August 14, 2008 (the “ Share
Exchange Agreement ”). Capitalized terms used by not
otherwise defined in this Consent and Waiver have the meanings
ascribed to them in the Share Exchange Agreement.
WHEREAS, pursuant to
Section 5.3 of the Share Exchange Agreement, each of the
parties agreed that it would not, and would use reasonable efforts
to cause its Subsidiaries and its and their respective Agents not
to, (i) initiate, solicit, knowingly encourage or seek any
inquiries relating to or the making or implementation of any
Third-Party Proposal; (ii) engage in any negotiations
concerning, or provide any information or data to, or have any
substantive discussions with, any Person relating to a Third-Party
Proposal; (iii) otherwise cooperate in or facilitate any
effort or attempt to make, implement or accept a Third-Party
Proposal; or (iv) enter into any Contract with any Person
relating to a Third-Party Proposal ((i), (ii), (iii) and
(iv) collectively, “ Solicitation Activities
”).
WHEREAS, Section 6.13 of the
Share Exchange Agreement requires Elitech to cause its management
and independent auditors to prepare as soon as practicable after
the date of the Share Exchange Agreement audited consolidated
financial statements and such other financial statements of Elitech
and its Subsidiaries as may be requested by the Company to enable
the Company to comply on a timely basis with applicable United
States federal securities laws.
WHEREAS, Section 8.1(a)(ii) of
the Share Exchange Agreement provides that, subject to certain
conditions, the Share Exchange Agreement may be terminated by
either the Company or Elitech if the Acquisition is not consummated
on or before March 31, 2009.
WHEREAS, the Company, Elitech and
the Sellers acknowledge and agree that, despite their individual
and collective best efforts, and due to events beyond their
individual or collective control, it has now become unlikely that
the Acquisition will be consummated on or before March 31,
2009.
WHEREAS, having given consideration
to the foregoing, Elitech and the Sellers agree that the
restriction on Solicitation Activities should be waived with
respect to the Company, and that Elitech and the Sellers should
consent to certain actions by the Company upon the terms of this
Consent and Waiver.
WHEREAS, having also given
consideration to the foregoing, the Company agrees that the
requirement for Elitech and its management to use all available
resources to prepare the Elitech Audited Financial Statements and
such other financial statements of Elitech and its Subsidiaries as
may be requested by the Company as soon as practicable after the
date of the Share Exchange Agreement should be waived, upon the
terms of this Consent and Waiver.
WHEREAS, pursuant to the terms of
the Share Exchange Agreement, any provision of the Share Exchange
Agreement may be waived if such waiver is in writing and is signed
by the party or parties against whom the waiver is to be
effective.
NOW, THEREFORE
, the Company, Elitech and the
Sellers hereby agree as follows:
1. Elitech and the Sellers hereby
waive any and all of the Company’s obligations with respect
to Section 5.3 of the Share Exchange Agreement.
2. Elitech and the Sellers hereby
consent to the Company and its Subsidiaries engaging in
Solicitation Activities.
3. Elitech and the Sellers hereby
acknowledge that the engagement in any Solicitation Activities by
the Company and its Subsidiaries shall not (a) constitute
cause for termination under Article VIII of the Share Exchange
Agreement, (b) constitute a breach of any representation,
warranty, covenant or obligation of the Company, or of any
provision of the Share Exchange Agreement, or (c) otherwise
constitute a failure to perform or comply with any obligation
required to be performed or complied with under the terms of the
Share Exchange Agreement.
4. Except as set forth herein, the
Company hereby waives any and all of Elitech’s obl
