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Exhibit
10.2
NANOGEN, INC.
6.25% SENIOR CONVERTIBLE
NOTES DUE 2010
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| No.
[•] |
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U.S.
$[ ] |
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| CUSIP NO.
[•] |
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Nanogen, Inc., a corporation duly
organized and validly existing under the laws of the State of
Delaware (herein called the “Company”), which term
includes any successor corporation under the Indenture referred to
on the reverse hereof), for value received hereby promises to pay
to
, or registered assigns, the principal sum of
[ ]
United States Dollars ($ ) on August 27, 2010 (subject to
extension by the holder pursuant to the terms of the Indenture) and
to pay interest at the rate of 6.25% per annum in accordance
with the terms of the Indenture. Payment of the principal of, and
other amounts on, this Security shall be made at the office or
agency of the Company in the city and state of New York, maintained
for that purpose, which shall be the Corporate Trust Office of the
Trustee, or at any other office or agency permitted by the
Indenture, in such lawful money of the United States of America as
at the time of payment shall be legal tender for the payment of
public and private debts. All capitalized terms used herein without
definition shall have their respective meanings set forth in the
Indenture.
The Issue Date of this Security is
August 27, 2007.
Reference is made to the further
provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of the
Security the right to convert this Security into Common Stock of
the Company, the right of the Holder of this Security to require
the Company to repurchase this Security, and the right of the
Company to pay interest in Common Stock of the Company, in each
case, on the terms and subject to the limitations referred to on
the reverse hereof and as more fully specified in the Indenture.
Such further provisions shall for all purposes have the same effect
as though fully set forth at this place.
This Security shall be deemed to be a
contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with and governed by the
laws of said State.
This Security shall not be valid or
become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the
Indenture.
THIS NOTE HAS BEEN ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES. HOLDERS MAY OBTAIN THE INFORMATION REQUIRED UNDER
TREASURY REGULATIONS SECTION 1.1275-3(B) WITH RESPECT TO THIS NOTE
BY CALLING THE COMPANY’S CORPORATE CONTROLLER AT
(858) 410-4600.
ANY TRANSFER OF ALL OR PART OF A
SECURITY MAY BE EFFECTED ONLY BY REGISTRATION OF SUCH TRANSFER ON
THE REGISTER KEPT BY THE SECURITY REGISTRAR.
The following information applies to
this Security as of the issue date:
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| Conversion Allocation Percentage |
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Authorized Share Allocation |
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IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.
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| NANOGEN, INC. |
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| By: |
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Authorized Signatory |
The Bank of New York Trust
Company, N.A., as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned
Indenture.
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| Date:
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THE BANK OF NEW YORK TRUST COMPANY, N.A., as
Trustee |
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By: |
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Authorized Signatory |
[REVERSE OF
SECURITY]
This Security is one of a
duly authorized issue of Securities of the Company, designated as
its 6.25% Senior Convertible Notes Due 2010 (the
“Securities”), all issued or to be issued under and
pursuant to an Indenture, dated as of August 27, 2007, as
supplemented by the First Supplemental Indenture dated as of
August 27, 2007 (as supplemented, the
“Indenture”), between the Company and The Bank of New
York Trust Company, N.A. (the “Trustee” which term
includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities. All capitalized terms
used herein without definition shall have their respective meanings
set forth in the Indenture.
1. Interest Rate .
Interest on the Securities shall be payable quarterly in arrears on
each Interest Date to Holders of record on the Record Date
immediately preceding such Interest Payment Date. Interest on the
Securities shall accrue at a rate of 6.25% per annum, subject
to adjustment as provided in the Indenture. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day
months. Interest on the Securities shall accrue from the most
recent date to which interest has been paid, or if no interest has
been paid, from August 27, 2007, until the Principal Amount is
paid or duly made available for payment. Interest shall be payable
on each Interest Date, at the option of the Company, in shares of
Common Stock at the Interest Conversion Price or in cash, subject
to certain conditions having been satisfied.
2. Redemption by the
Company at the Option of the Holder Upon an Event of Default .
In case an Event of Default, as defined in the Indenture, shall
have occurred, the Principal Amount, accrued and unpaid Interest
and Late Charges, if any, on the Securities may be declared, and
upon said declaration shall become, due and payable, in the manner,
with the effect and subject to the conditions provided in the
Indenture. Subject to the terms and conditions of the Indenture,
the Company shall become obligated, at the option of the Holder
following an Event of Default, to redeem the Securities at the
Event of Default Redemption Price.
3. Redemption by the
Company at the Option of the Holder Upon a Change of Control .
Subject to the terms and conditions of the Indenture, the Company
shall become obligated, at the option of the Holder, to redeem the
Securities if a Change of Control occurs at any time prior to the
Stated Maturity at the Change of Control Redemption
Price.
4. Withdrawal of Change of
Control Redemption Notice . Holders have the right to withdraw,
in whole or in part, any Change of Control Redemption Notice, by
delivering to the Paying Agent a written notice of withdrawal in
accordance with the provisions of the Indenture.
5. Redemption by the
Company at the Option of the Company . Subject to the terms and
conditions of the Indenture, the Company has the right to redeem
the Securities if a Change of Control occurs at any time prior to
the Stated Maturity at the Change of Control Redemption
Price.
6. Securities Redeemed in
Part . In the event of redemption of this Security in part
only, a new Security or Securities of the Company representing the
unredeemed portion hereof will be issued in the name of the Holder
hereof upon cancellation hereof in accordance with the terms of the
Indenture.
7. Payment of Event of
Default Redemption Price and Change of Control Redemption Price
. If cash sufficient to pay the Redemption Price or Change of
Control Redemption Price, as the case may be, of all Securities or
portions thereof to be redeemed or repurchased on an Event of
Default or on a Change of Control, as the case may be, is deposited
with the Paying Agent on the Business Day following the Event of
Default Redemption Date or the Change of Control Redemption Date,
as the case may be, the Securities to be redeemed or repurchased
will cease to be outstanding and interest will cease to accrue on
such Securities (or portions thereof) immediately after such Event
of Default Redemption Date or the Change of Control Redemption
Date, as the case may be, and the Holder thereof shall have no
other rights as such (other than the right to receive the Event of
Default Redemption Price or Change of Control Redemption Price, as
the case may be) upon surrender of such Security.
8. Conversion .
Subject to the terms and conditions of the Indenture, a Holder may
convert at any time any of its Securities into shares of the
Company’s common stock at the Conversion Price. The
Conversion Price in effect at any given time is subject to
adjustment in accordance with the
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