Consent and Agreement


 Exhibit 10.3 
 CONSENT AND AGREEMENT 
 Consent and Agreement (this “Consent and Agreement”) dated
as of March 13, 2008, by and between Nanogen, Inc., a Delaware corporation (the “Company”), and the undersigned holder (the “Holder”). 
 WHEREAS, the Company and The Bank of New York, as trustee (the “Trustee”) executed and delivered that certain Indenture, dated as of
August 27, 2007 (the “Initial Indenture”), by and between Nanogen, Inc., a Delaware corporation (the “Company”), as amended and supplemented by that certain First Supplemental Indenture, dated as of
August 27, 2007 (the “First Supplemental Indenture,” and together with the Initial Indenture as so supplemented, the “Indenture”), pursuant to which the Company issued to the Holder its 6.25% Senior Convertible
Notes Due 2010 (the “Notes”). 
 WHEREAS, pursuant to those certain Amendment and Exchange Agreements dated as of
March 13, 2008 by and among the Company and each of the holders of the Note, the Company and the holders of such Notes have agreed to exchange, supercede and replace certain portions of the Notes and in exchange therefore to issue to such
holders certain 9.75% Senior Secured Convertible Notes (the “Exchanged Note”) (the transactions contemplated under such agreements, the “Note Exchange”). 
 WHEREAS, the Company’s wholly-owned subsidiary, Epoch BioSciences, Inc., proposes to enter into that certain Supplemental Royalty Interest
Assignment Agreement to be entered into between the Company, Epoch Biosciences Inc. (“Epoch”), and Drug Royalty LP1, and that certain Royalty Interest Assignment Agreement between Epoch, as assignor, and Drug Royalty LP2, as assignee,
pursuant to which Epoch will sell certain of its rights to receive royalty payments and related reports under the Second Amended and Restated Collaboration, License and Supply Agreement, dated as of August 17, 2000, as amended by the First Side
Agreement dated October 31, 2001, the Amendment No. 1 to the Second Amended and Restated Collaboration, License and Supply Agreement dated July 26, 2002 and Amendment No. 2 to the Second Amended and Restated Collaboration,
License and Supply Agreement dated as of December 31, 2005, with Applera Corporation (the transactions contemplated under such agreements, the “Royalty Transaction”). 
 WHEREAS, in order to ensure that the Royalty Transaction and Note Exchange comply with the terms of the Indenture and to make certain amendments to the
Indenture in connection therewith, the undersigned Holder wishes to enter into this Consent and Agreement to evidence its consent and approval of the Royalty Transaction and Note Exchange and the amendment to the Indenture in connection therewith.

 NOW, THEREFORE, the Company and each Holder hereby agree as follows: 
 Capitalized terms used herein (including the recitals) and not defined herein shall have the meanings assigned to such terms in the Indenture. 

1. Pursuant to Section 9.02 of the First Supplemental Indenture, the undersigned Holder hereby consents to and approves the Royalty Transaction and Note Exchange
and the execution of the Second Supplemental Indenture between the Company and the Trustee in the form attached as Exhibit A hereto. 






 2. The Company agrees that pursuant to Section 13.09 of the First Supplemental Indenture, upon issuance of the
Exchanged Notes at closing of the Note Exchange, the Conversion Price of the Notes will be subject to adjustment and the adjusted Conversion Price under the Notes will be adjusted to an amount equal to the initial convesion price of the Exchanged
Notes. The Holder hereby acknowledges that this Consent and Agreement constitutes acceptable notice of the adjustment of the Conversion Price of the Notes for the purposes of the Indenture (including section 13.12 and 13.13 thereof). 
 3. The Company agrees that pursaunt to Section 2 of the Series A Warrants, Series B Warrants and Series C Warrants (the “Warrants”), each dated
August 27, 2007, issued to the Holder, upon issuance of the Exchanged Notes at closing of the Note Exchange, the Exercise Price of the Warrants will be subject to adjustment and the adjusted Exercise Price under the Warrants will be adjusted to
an amount equal to the initial convesion price of the Exchanged Notes. The Holder hereby acknowledges that this Consent and Agreement constitutes acceptable notice of the adjustment of the Exercise Price pursuant to any such notice requirement under
each of the Warrants. 
 4. The Holder and Company acknowledge that the occurrence of certain events as described in Schedule 1 hereto, may have occasioned
events of default for the purposes of the Indenture and by its execution hereof the Holder waives such Events of Default solely as described in Schedule 1 hereto. 
 5. All of the remaining obligations of the Company, as set forth in the Indenture, shall continue to remain in full force and effect in accordance with the terms thereof. The Company and Holder acknowledge that notwithstanding the Note
Exchange any interest accrued in respect of the Notes as of the date of the closing of the Note Exchange shall be payable on March 31, 2008. 
 6. The
consent provided herein is effective only in one instance and only with respect to the Royalty Transaction and Note Exchange. The consent set forth herein is limited precisely as written and shall not be deemed (a) to be a consent to, or waiver
of, any other term or condition of the Indenture, the Securities or any of the agreements, instruments and documents referred to therein or executed in connection therewith or (b) to prejudice any contractual, legal or other right or rights
which the undersigned may have or may have in the future under or in connection with the Indenture, the Securities or any agreements, instruments and documents referred to therein or executed in connection therewith. The undersigned Holder hereby
reserves all of its rights and remedies under applicable law and under the Indenture, the Securities or any of the agreements, instruments and documents referred to therein or executed in connection therewith with respect to any matters other than
those addressed in this Consent and Agreement. 
 7. The execution, delivery and performance by the undersigned Holder of this Consent and Agreement has been
duly authorized by all necessary action on the part of such Holder. This Consent and Agreement has been duly executed by such Holder. 
 8. This Consent and
Agreement shall be effective on the later of (i) the execution by all of the Holders and (ii) the closing of the Note Exchange. 
  

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 9. All questions concerning the construction, validity, enforcement and interpretation of this Consent and Agreement
shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Consent and Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. 
 10. This Consent and Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.

 11. This Consent and Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns in accordance
with the terms of the Consent and Agreement. 
 12. The obligations of the Holder under this Consent and Agreement are several and not joint with the
obligations of any other Holder, and the Holder shall not be responsible in any way for the performance of the obligations of any other Holder under the Consent and Agreement. Nothing contained herein or in this Consent and Agreement, and no action
taken by the Holder pursuant hereto, shall be deemed to constitute such Holder and other Holders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that such Holder and the other Holders are in any
way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Consent and Agreement and the Company acknowledges that the Holders are not acting in concert or as a group with respect to such
obligations or the transactions contemplated by Consent and Agreement. The Company and the Holder confirms that the Holder has independently participated in the negotiation of the transactions contemplated hereby with the advice of its own counsel
and advisors. The Holder shall be entitled to independently protect and enforce its rights arising out of this Consent and Agreement, and it shall not be necessary for any other Holder to be joined as an additional party in any proceeding for such
purpose. 
 13. This Consent and Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile signature shall be considered due execution and shall be binding upon the signatory thereto with the same force
and effect as if the signature were an original, not a facsimile signature. 
 [signature page follows] 
  

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 IN WITNESS WHEREOF, the undersigned has executed this Consent and Agreement as of the date first above
written. 
  

			
	HOLDER:
		
	By:	 	 
		 	Name:
		 	Title:


  

 [Signature Page to Consent and Agreement] 







 IN WITNESS WHEREOF, the undersigned has executed this Consent and Agreement as of the date first above
written. 
  

			
	COMPANY:
	
	NANOGEN, INC.
		
	By:	 	 
		 	Name:
		 	Title:










 SCHEDULE 1 
 to Consent and Agreement 
 1. The Holder waives any Events of Default which may have been occasioned by the receipt by
Company prior to the date hereof of tenant inducement payments in respect of the lease of premises at The West Mall, Toronto, Ontario, Canada and the grant of any lien in respect thereof (which liens have been terminated prior to the date hereof).

 2. The Holder waives any Events of Default which may have been occasioned by the failure of the Company to pay rent in respect of its leased premises when
due prior to the date hereof. 
 3. The Holder waives any Events of Default which may have been occasioned by the failure to timely remit to the Holder
payments in respect of interest for the period ended December 31, 2007. 






 EXHIBIT A 
 SECOND SUPPLEMENTAL INDENTURE, dated as of March [    ], 2008, (“Second 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 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). 
 RECITALS OF THE COMPANY 
 The Company and the
Trustee executed and delivered that certain Indenture, dated as of August 27, 2007 (the “Initial Indenture”) to provide for the issuance from time to time of securities as provided in the Initial Indenture. 
 The Company and Trustee executed and delivered that certain First Supplemental Indenture dated August 27, 2008 (the “First Supplemental
Indenture” together with the Initial Indenture as modified by the First Supplemental Indenture, the “Indenture”) in connection with the issuance of the Company’s 6.25% Senior Convertible Notes Due 2010 (each a
“Security” and collectively, the “Securities”). The Securities are the first series of securities authorized under the Initial Indenture. 
 In accordance with Section 9.02 of the Indenture, the Company, the Trustee and each Holder wish to enter into this Second Supplemental Indenture to
further modify the Indenture. 
 NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH, that, for and in consideration of the
premises, the Company agrees with the Trustee as follows: 
 ARTICLE I 
 AMENDMENTS OF INDENTURE 
 Section 1.01 Amendment to
Section 1.01. Subject to Section 2.04 hereof, the definition of “Existing Indebtedness” “Permitted Indebtedness” and “Permitted Lien” in Section 1.01 of the First Supplemental Indenture are hereby
amended and restated in their entirety as follows: 
 “Existing Indebtedness” means the Indebtedness of the Company and its Subsidiaries
(i) pursuant to that certain General Conditions for Future Factoring Operations, dated December 12, 2006, executed by Nanogen Advanced in favor of GE Capital Finance S.p.A, not to exceed Four Million Euros (€4,000,000) at any one
time outstanding; (ii) pursuant to that certain Royalty Interest Assignment Agreement dated September 29, 2006 between the Company, Epoch Biosciences, Inc. (“Epoch”) and Drug Royalty Trust 9, that 







 
certain Supplemental Royalty Interest Assignment Agreement entered into between the Company, Epoch and Drug Royalty LP1 in the form provided to the
Collateral Agent and that certain Royalty Interest Assignment Agreement between Epoch, as assignor, and Drug Royalty LP2, as assignee, in the form provided to the Collateral Agent, pursuant to which Epoch sold certain of its rights to receive
royalty payments and related reports under the Second Amended and Restated Collaboration, License and Supply Agreement, dated as of August 17, 2000, as amended by the First Side Agreement dated October 31, 2001, the Amendment No. 1 to
the Second Amended and Restated Collaboration, License and Supply Agreement dated July 26, 2002 and Amendment No. 2 to the Second Amended and Restated Collaboration, License and Supply Agreement dated as of December 31, 2005, with
Applera Corporation, for an aggregate principal amount of such Indebtedness not to exceed $30 million at any one time outstanding; (iii) Indebtedness pursuant to those certain non recourse sales of receivables by Nanogen Advanced sponsored by
regional governments in Italy in an aggregate principal amount not to exceed One Million Euros (€1,000,000) at any one time outstanding, and (iv) the Senior Secured Convertible Notes. 
 “Permitted Indebtedness” means (i) Existing Indebtedness; (ii) other Indebtedness approved in writing by the Required Holders;
(iii) Permitted Subordinated Indebtedness; (iv) the Securities pursuant to this Indenture and other Transaction Documents; (v) Indebtedness to finance the purchase price of personal property (“Capital Lease Product
Indebtedness”), provided that such Indebtedness does not exceed the lesser of the cost or fair market value of such property financed with such Indebtedness and does not exceed $1,250,000 in the aggregate outstanding at any time;
(vi) Indebtedness of the Company to any Subsidiary of the Company and Indebtedness of any Subsidiary of the Company to the Company or any other such Subsidiary; (vii) Indebtedness in respect of taxes and other governmental charges incurred
in the ordinary course of business and which are not due or are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP; (viii) Indebtedness resulting from the
endorsement of negotiable instruments in the ordinary course of business; (ix) Indebtedness in respect of hedging arrangements entered in the ordinary course of business designed to manage interest rates or interest rate risk or to protect
against fluctuations in currency exchange rates, and not for purposes of speculations; (x) the Letters of Credit and other letters of credit, and reimbursement obligations in respect thereof, in support of trade debt or statutory obligations
and lease or similar obligations incurred in the ordinary course of business; (xi) Indebtedness incurred in the ordinary course of business of the Company and its Subsidiaries, in respect of performance bonds, bid bonds, appeal bonds,
completion bonds, surety bonds, completion guarantees, security deposits and similar obligations; (xii) Indebtedness in respect of tenant improvements, tenant inducements or other payments by landlords in respect of improvements or alterations
to property leased by the Company or its Subsidiaries outstanding as of March 13, 2008; (xiii) Indebtedness of a Person that becomes a Subsidiary, which Indebtedness existed at the time such Person became a Subsidiary and was not incurred
in contemplation of such Person becoming a Subsidiary; and (xiv) extensions, refinancing and renewals of Indebtedness described in clause (i), (iii) and (iv) of the definition of Existing Indebtedness, provided that (a) any such
refinancing is in an aggregate principal amount not greater than the aggregate principal amount of the Existing Indebtedness being renewed or refinanced, plus the amount of any premiums required to be paid thereon and reasonable fees and
expenses associated therewith, (b) such refinancing has a later or equal final maturity and longer or equal weighted average life than the Existing Indebtedness being renewed or refinanced, and (c) the covenants, events of default,
subordination and other provisions thereof (including any guarantees thereof) shall be, in the aggregate, no less favorable to the Holders than those contained in the Existing Indebtedness being renewed or refinanced. 






 “Permitted Liens” means (i) any Lien for taxes not yet due or delinquent or being contested in good
faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course of business by operation of law with respect to a liability that is not yet due
or delinquent, (iii) any Lien created by operation of law, such as materialmen’s liens, mechanics’ liens and other similar liens, arising in the ordinary course of business with respect to a liability that is not yet due or delinquent
or that are being contested in good faith by appropriate proceedings, (iv) Liens in respect of security deposits provided in the ordinary course of business and consistent with past practices; (v) Liens (A) upon or in any equipment
acquired or held by the Company or any of its Subsidiaries to secure the purchase price of such equipment or indebtedness incurred solely for the purpose of financing the acquisition or lease of such equipment, or (B) existing on such equipment
at the time of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the proceeds of such equipment, (vi) Liens incurred in connection with the extension, renewal or refinancing of
the indebtedness secured by Liens of the type described in clauses (i) and (v) above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the
Indebtedness being extended, renewed or refinanced does not increase, (vii) leases or subleases and licenses and sublicenses granted to others in the ordinary course of the Company’s business, not interfering in any material respect with
the business of the Company and its Subsidiaries taken as a whole, (viii) Liens in favor of customs and revenue authorities arising as a matter of law to secure payments of custom duties in connection with the importation of goods,
(ix) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 5.01(a)(viii), and (x) Liens securing Existing Indebtedness and reimbursement obligations in respect of
Permitted Indebtedness described in subparagraphs (x) and (xi) of the Permitted Indebtedness definition. 
 Section 1.02
Additional Definitions. Subject to Section 2.04 hereof, the following definitions are added to Section 1.01 of the First Supplemental Indenture in their respective alphabetical order as follows: 
 “Amendment and Exchange Agreements” means those certain Amendment and Exchange Agreements dated as of March 13, 2008 by and among the Company and
each of the initial holders of those certain Senior Secured Convertible Notes issued in exchange for certain portions of the Securities. 
 “Collateral Agent” means the Collateral Agent appointed pursuant to the Amendment and Exchange Agreements (and any successor thereto). 
 “Senior Secured Convertible Notes” means those certain Senior Secured Convertible Notes issued pursuant to the Amendment and Exchange Agreements. 






 Section 1.03 Amendment to Section 5.01. Subject to Section 2.04 hereof,
Section 5.01(a)(ix) is amended and restated in its entirety to read as follows: 
 (ix) the Company breaches any covenant or other term or condition or
any material representation or warranty of any Transaction Document, except, in the case of a breach of a covenant or other term or condition which is curable, and provided that the Company delivers prompt notice of such breach to the Holder, only
if such breach continues for a period of at least ten (10) consecutive Business Days; 
 Section 1.04 Amendment to
Section 10.13. Subject to Section 2.04 hereof, Section 10.13 is amended and restated in its entirety to read as follows: 
 Section 10.13 Restricted Payments. The Company shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly, redeem, defease, repurchase, repay or make any payments in respect of, by the payment
of cash or cash equivalents (in whole or in part, whether by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness (other than this Security, the Other Securities and the Senior
Secured Convertible Notes), whether by way of payment in respect of principal of (or premium, if any) or interest on such Indebtedness, if at the time such payment is due or is otherwise made or, after giving effect to such payment, an event
constituting, or that with the passage of time and without being cured would constitute, an Event of Default has occurred and is continuing; provided that notwithstanding the foregoing, no principal (or any portion thereof) of any Subordinated
Indebtedness may be paid (whether upon maturity, redemption, acceleration or otherwise) so long as this Note is outstanding. 
 ARTICLE II

 MISCELLANEOUS PROVISIONS; GOVERNING LAW; ACCEPTANCE BY TRUSTEE 
 Section 2.01 Instruments to be Read Together. This Second Supplemental Indenture is an indenture supplemental to and in implementation of the
Indenture, and said Indenture and this Second Supplemental Indenture shall henceforth be read together. 
 Section 2.02 Confirmation.
The Indenture as amended and supplemented by this Second Supplemental Indenture is in all respects confirmed and preserved. 
 Section 2.03
Counterparts. This Second Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 Section 2.04 Effectiveness. The provisions of this Second Supplemental Indenture will take effect immediately upon its execution
and delivery by the Trustee in accordance with the provisions of Section 9.02 of the Indenture. 
 Section 2.05 Governing Law.
This Second Supplemental Indenture shall be construed in accordance with and governed by the laws of the State of New York. 
 Section 2.06
Acceptance by Trustee. The Trustee accepts the amendments of the Indenture effected by this Second Supplemental Indenture and agrees to execute the trusts created by the Indenture as hereby amended, but only upon the terms and conditions set
forth in the Indenture. The Trustee assumes no responsibility for the correctness of the recitals contained herein, which shall be taken as the statements of the Company. The Trustee makes no representation and shall have no responsibility as to the
validity of this Second Supplemental Indenture or the proper authorization or the due execution hereof by the Company. 
 [signature page
follows] 






 IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed
as of the day and year first above written. 
  

			
	NANOGEN, INC.
		
	By:	 	 
		 	Name:
		 	Title:
	
	 THE BANK OF NEW YORK TRUST
 COMPANY, N.A., as
Trustee

		
	By:	 	 
		 	Name:
		 	Title: