Securities Purchase Agreement (2007)Full Document 

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Dated as of January 11, 2007

0% Convertible Senior Unsecured Notes due 2026



THIS SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of January 11, 2007, by and between Monogram Biosciences, Inc., a Delaware corporation (the “Company”), and Highbridge International LLC (the “Buyer”).

THE PARTIES TO THIS AGREEMENT enter into this Agreement on the basis of the following facts, intentions and understandings:

A. The Company and the Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(2) of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), and Rule 506 of Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “Commission”) under the Securities Act.

B. In accordance with the terms and conditions of this Agreement, for an aggregate purchase price of $22,542,578.11, the Company has agreed to issue and sell, and the Buyer has agreed to purchase, Thirty Million United States Dollars ($30,000,000) principal amount of the Company’s 0% Convertible Senior Unsecured Notes due 2026 (such 0% Convertible Senior Unsecured Notes, substantially in the form attached as Exhibit A to the Indenture (as defined below), as such form of Note may be amended, modified or supplemented from time to time in accordance with the terms thereof, the “Notes”), which shall be convertible into shares of the common stock, $0.001 par value per share (the “Common Stock”), of the Company. The Notes will be issued pursuant to an Indenture, dated as of January 12, 2007 (the “Indenture”) by and between the Company and U.S. Bank National Association, as trustee (the “Trustee”), substantially in the form attached hereto as Exhibit A.

C. Contemporaneously with the execution and delivery of this Agreement, the parties hereto are executing and delivering a Registration Rights Agreement substantially in the form attached hereto as Exhibit B (as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof, the “Registration Rights Agreement”) pursuant to which the Company has agreed to provide the Buyer with the benefit of certain registration rights under the Securities Act and applicable state securities laws, on the terms and subject to the conditions set forth therein, collectively with this Agreement, the Indenture, the Notes and the Registration Rights Agreement and each of the other agreements entered into in connection with the transactions contemplated by this Agreement, the “Transaction Documents”).

NOW THEREFORE, in consideration of the promises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Buyer hereby agree as follows:

SECTION 1. Purchase and Sale of Notes.

(a) Purchase of Notes. Subject to the satisfaction (or waiver, to the extent permitted by applicable law) of the conditions set forth in Sections 5 and 6 of this Agreement, the Company shall issue and sell to the Buyer, and the Buyer agrees to purchase from the Company, the Notes (the “Closing”).

(b) The Closing. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., San Francisco time, on the date of this Agreement or at such other time as the parties may agree, subject to the satisfaction (or waiver, to the extent permitted by applicable law) of the conditions set forth in Sections 5 and 6 of this Agreement. The Closing shall occur on the Closing Date at the offices of Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, or at such other location as the parties may agree.

(c) Form of Payment. On the Closing Date, (i) the Buyer shall pay $22,500,000 to the Company for the Notes by wire transfer of immediately available funds in accordance with the Company’s written wire instructions attached hereto on Schedule A, or through book-entry settlement procedures, as applicable and (ii) the Company shall issue to the Buyer properly authenticated Notes (in the denominations of not less than One Thousand United States Dollars ($1,000) as the Buyer shall reasonably request) representing the principal amount of Notes which the Buyer is purchasing hereunder, duly executed on behalf of the Company and registered in the name of the Buyer; provided, that Notes eligible for services through The Depository Trust Company (“DTC”) shall be issued, countersigned, registered and delivered in global certificate form through the facilities at DTC in such names, denominations and account as the Buyer shall specify.

SECTION 2. Buyer’s Representations and Warranties. The Buyer represents and warrants to the Company that as of the date hereof, and as of the Closing Date:

(a) Investment Purpose. The Buyer is acquiring the Notes for its own account for investment only and not with a view towards, or for resale in connection with, the public sale or distribution thereof; provided, however, that by making the representations herein, the Buyer does not agree to hold any of the Notes or the shares of Common Stock issued upon conversion of the Notes, including any Additional Shares (as defined in the Indenture) (collectively, the “Conversion Shares” and, together with the Notes, the “Securities”) for any minimum or other specific term and reserves the right to dispose of the Securities at any time; provided, further, that Buyer agrees that such disposition shall be in accordance with or pursuant to a registration statement or an exemption under the Securities Act. The Buyer is not a registered broker-dealer. The Buyer is purchasing the Securities in the ordinary course of business, and has no agreement or understanding, directly or indirectly, with any person to distribute the Securities.

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