Amendment to Stock Option Agreements between Epoch Biosciences, Inc. and Optionholders Regarding Nanogen Merger
Epoch Biosciences, Inc. is amending its stock option agreements for executive officers in connection with a proposed merger with Nanogen, Inc. If the merger is completed and an executive officer is terminated under certain conditions, their vested stock options will remain exercisable for up to 12 months, unless the option term expires sooner or the options are not continued after a further merger or acquisition. The amendment is only effective if the merger occurs, and optionholders must consent in writing if their options are incentive stock options, acknowledging possible tax consequences.
Exhibit 10.2
Epoch Biosciences, Inc.
21720 23rd Drive S.E., Suite 150
Bothell, Washington
September , 2004
Dear Optionholders:
In accordance with the terms of Epoch Biosciences, Inc.’s (the “Corporation”) Incentive Stock Option Plan, Nonqualified Stock Option and Restricted Stock Purchase Plan – 1991 (the “1991 Plan”) and the Company’s Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan – 1993 (the “1993 Plan”) (collectively, the Plans), the Compensation Committee, as the administrator of the various plans, has resolved to extend the option exercise period for executive officers whose services are terminated, under certain circumstances, following the closing of the proposed merger with Nanogen, Inc. (“Nanogen”).
If any executive officer is terminated under circumstances giving rise to severance benefits and/or the acceleration of the vesting of options under such officer’s employment agreement, as in effect as of the date of this amendment, such officer’s options that are vested, or become vested, at the time of such termination shall remain exercisable until the earliest of (i) the expiration of the twelve month period following the date of such termination, (ii) the expiration of the option term, or (iii) a merger or acquisition of Nanogen, in which the executive officer’s option is not assumed or otherwise continued in effect.
For purposes of clarification, the amendment relating to the Nanogen merger being made to the options held by non-executive officers shall not apply to options held by executive officers.
The foregoing amendment shall only be effective if the proposed merger with Nanogen is consummated, and, with respect to options that have been designated as incentive stock options, if the optionee consents in writing by signing the acknowledgment section below, agreeing to the amendment of the option and its impact on the incentive stock option status of the option.
Except as specifically amended hereby, all of the terms and conditions of the Plans, and the Stock Option Agreements thereunder, shall remain in full force and effect.
Sincerely,
EPOCH BIOSCIENCES, INC.
William G. Gerber, M.D.
Chief Executive Officer
Acknowledgment
I hereby consent to the amendment of my incentive stock option(s). I hereby acknowledge and agree that the foregoing amendment may cause the loss of incentive stock option treatment for some or all of the shares subject to my incentive stock option(s). To the extent incentive stock option treatment for the option shares is lost, then I will have taxable income at the time of exercise equal to the difference between the fair market value of those purchased shares and the exercise price paid for such shares, and I hereby agree to satisfy all applicable withholding taxes at the time of exercise with respect to such income.
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