Exhibit 10.8
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.
SECOND LIEN SECURITY AGREEMENT
SECOND LIEN 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 ("Portside" or
in such capacity, the "Second Lien Collateral Agent") to the Secured Parties
referred to below.
W I T N E S S E T H:
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") has agreed to issue, and each party listed
as a "Investor" on the Schedule of Investors (collectively, the "Investors")
attached to the Purchase Agreement, 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
Financière Elitech SAS, a société par actions simplifiée formed under the laws
of France (for the purposes of this Agreement, 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, it is a condition precedent to each of the Investors purchasing the
Notes pursuant to the Purchase Agreements that the Company execute and deliver
to this Agreement providing for the grant of a second priority perfected
security interest all of the property and assets of each Grantor (other than the
Italian Capital Stock, which shall be subject
to a first priority perfected security interest for the benefit of the Secured
Parties) to secure all of the Company's obligations under the Purchase
Agreements, the Notes, and the other Transaction Documents;
NOW, THEREFORE, in