FIRST SUPPLEMENTAL INDENTURE
between
HYBRIDON, INC.
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
Dated as of January 13, 1998
TABLE OF CONTENTS
(This Table of Contents is not a part of the First Supplemental Indenture and is
only for convenience of reference)
Section 1. Definitions and Interpretations
Section 2. Amendment of Section 1.1
Section 3. Amendment of Section 2.1(c)
Section 4. Amendment of Section 2.6
Section 5. Amendment of Section 2.10(b)
Section 6. Amendment of Section 4.1
Section 7. Amendment of Article 10
Section 8. Consent and Waiver
Section 9. Severability
Section 10. Counterparts
Section 11. Applicable Provisions of Law
Section 12. Captions
Section 13. Original Indenture Affirmed
Section 14. Effective Date
Signatures
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE dated as of January 13, 1998 (the
"First Supplemental Indenture"), is between Hybridon, Inc. (the "Company"), and
State Street Bank and Trust Company, as trustee (the "Trustee"). This First
Supplemental Indenture supplements the Indenture dated as of March 26, 1997 (the
"Original Indenture"), between the Company and the Trustee, which provided for
the issuance of the Company's 9% Convertible Subordinated Notes Due 2004. This
First Supplemental Indenture is entered into pursuant to Section 9.2 of the
Original Indenture for the purpose of (i) supplementing and amending the
definition of "Senior Indebtedness" set forth in Section 1.1 of the Original
Indenture and for the purpose of imposing certain additional provisions with
respect to the ownership of, and payment of interest on, the Notes, in each case
only as to the Consenting Notes (as defined herein), and (ii) for the purpose of
waiving compliance by the Company with certain covenants and restrictions set
forth in the Original Indenture, all as provided herein.
Whereas the Holders of a majority of the outstanding principal amount
of Notes have authorized the execution and delivery of this First Supplemental
Indenture, and in consideration of the mutual agreements contained in this First
Supplemental Indenture and other good and valuable consideration, the receipt of
which is hereby acknowledged, the Company and the Trustee agree as set forth
herein for their own benefit and for the benefit of the Holders of all
outstanding Notes under the Indenture:
Section 1. Definitions and Interpretations.
(a) Whenever used in the Original Indenture or in this First
Supplemental Indenture, "Indenture" shall mean the Original Indenture, as
amended and supplemented by this First Supplemental Indenture.
(b) Unless otherwise defined or amended in this First Supplemental
Indenture, or unless the context otherwise requires, the terms defined in the
Original Indenture shall have the same meanings in this First Supplemental
Indenture.
Section 2. Amendment of Section 1.1
(a) a new defined term "2007 Notes" is added to Section 1.1 as follows:
"2007 Notes" means: (i) up to $55,000,000 principal amount of
the Company's Notes due 2007 (the "2007 Notes") to be sold to
purchasers in the unit offering (the "Offering") contemplated
by a certain Unit Purchase Agreement in substantially the form
attached in Exhibit A hereto (the "Unit Purchase Agreement")
and pursuant to a substantially similar agreement on the same
economic terms (the "U.S. Unit Purchase Agreement") to be
entered into in connection with sales to be made to purchasers
who include U.S. persons, of units (the "Units") consisting of
up to $55,000,000 principal amount of 2007 Notes (the
"Offering Notes") (or, under certain circumstances, the
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number of shares of Series B Preferred Stock which would
otherwise underlie such Offering Notes) and warrants to
purchase the number of shares of Common Stock of the Company
set forth in Section 2.2 of the Unit Purchase Agreement, at
the exercise price stated therein ("Warrants") (the Unit
Purchase Agreement, the U.S. Unit Purchase Agreement and the
other documents and agreements attached in Exhibit A being
collectively referred to herein as the "2007 Note Documents");
(ii) the 2007 Notes underlying certain Placement and Advisory
Warrants referred to in the Unit Purchase Agreement to
purchase Units equal to 25% of the Units sold to purchasers in
the Offering (which will be purchased by the Placement Agents
(as defined in the Unit Purchase Agreement) or their
designees), exercisable for seven years commencing six months
after the final closing date of the Offering at an exercise
price equal to 110% of the initial offering price of the
Units; (iii) any 2007 Notes issued as interest on 2007 Notes
in accordance with the 2007 Note Documents; and (iv) 2007
Notes issuable in the case of lost, stolen, destroyed or
mutilated 2007 Notes.
(b) The definition of "Senior Indebtedness" set forth in Section 1.1 of
the Original Indenture is hereby amended by adding the following final sentence
thereto:
Notwithstanding anything contained in the foregoing proviso or
elsewhere in this Indenture, (A) the indebtedness represented
by Notes beneficially owned (at the time of their signature)
by each person that has executed a Consent and Waiver dated as
of January 12, 1998 (the "Consent") and that has, if not a
record holder of Notes, caused its DTC Participant (as defined
therein) to execute, on such person's behalf, a substantially
similar Consent and Waiver, which persons (and the aggregate
principal amount of Notes beneficially owned by each of them
(in the case of beneficial interests in a Global Security) or
owned by them of record, in the case of definitive Notes) are
identified on the attached Schedule A (each such person being
individually referred to herein as a "Consent Signatory" and
collectively, as the "Consent Signatories") and (B) the
indebtedness represented by Notes held by every subsequent
Holder of a Note evidencing the same debt as a Consent
Signatory's Note ((A) and (B), collectively, the "Consenting
Notes"), including the payment of the Principal and repurchase
price, if any, of and interest on, and all other amounts which
may become payable in respect of, such Consenting Notes from
time to time, shall be subordinated and subject in right of
payment to the prior payment in full of the principal of and
interest on and all other amounts which may become due with
respect to the 2007 Notes on the terms and conditions provided
in Article 11 of the Indenture (and not pari passu with the
2007 Notes) and the 2007 Notes will be, for all purposes,
"Senior Indebtedness" as defined herein with respect to such
Consenting Notes.
Section 3. Amendment of Section 2.1(c).
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Section 2.1(c) of the Original Indenture is hereby amended by adding at
the end of the first paragraph thereof, "Notwithstanding the foregoing, owners
of beneficial interests in Global Securities will be entitled to receive
physical delivery of certificated Notes as provided in Section 2.6(d)(i)(D)."
Section 4. Amendment of Section 2.6.
(a) Section 2.6(d)(i) of the Original Indenture is hereby amended by
inserting a reference to clause ("D") on the third line thereof and by adding
thereto the following new subsection ("D"):
(D) in connection with the issuance by the Company of its 2007 Notes
to which the indebtedness represented by the Consenting Notes is
subordinated, the Consent referred to in Section 1.1 of the
Indenture, whereupon definitive Notes (or beneficial interests in
one or more new Global Securities provided for by the Company
pursuant to Section 2.1(a) to represent such Consenting Notes)
shall be issued as hereinafter provided, and such Consenting
Notes shall be Transfer Restricted Securities until such time as
the Company shall have caused any effective registration
statement covering the resale of the Notes to reflect the matters
contemplated herein (whereupon the Company shall so advise the
Trustee in writing that the Consenting Notes are no longer
Transfer Restricted Securities), and until the Trustee is so
advised, the Certificates representing any Consenting Notes shall
include the following additional legend as to their modified
subordination, transfer restriction and payment provisions:
AS PROVIDED IN A FIRST SUPPLEMENTAL INDENTURE AS TO WHICH THE HOLDER OF
THIS NOTE (OR A PREDECESSOR HOLDER THEREOF) HAS CONSENTED, A COPY OF
WHICH WILL BE FURNISHED BY THE COMPANY UPON REQUEST, (i) THE SENIOR
INDEBTEDNESS TO WHICH THE NOTE REPRESENTED BY THIS CERTIFICATE IS
SUBORDINATED INCLUDES THE COMPANY'S NOTES DUE 2007, (ii) THE TRANSFER
OF THIS NOTE IS FURTHER RESTRICTED AS PROVIDED IN SUCH FIRST
SUPPLEMENTAL INDENTURE, AND (iii) THE REQUIRED PAYMENT OF INTEREST
OTHERWISE DUE ON APRIL 1, 1998 WITH RESPECT TO THE NOTES EVIDENCED BY
THIS CERTIFICATE HAS BEEN DEFERRED TO OCTOBER 1, 1998 IF THIS NOTE IS
OUTSTANDING ON SUCH LATER DATE.
(b) Section 2.6(i) is hereby amended by adding thereto the following
subsection (vi):
(vi) in connection with the issuance by the Company of its
2007 Notes to which the Consenting Notes are
subordinated, any Notes of a Consenting Holder that
are in definitive form shall be exchanged for
Consenting Notes in definitive form as described in
subsection 2.6(d)(i)(D).
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Section 5. Amendment of Section 2.10(b). Section 2.10(b) of the
Original Indenture is hereby amended by adding at the end thereof, "or (iii) is
pursuant to Section 2.6(d)(i)(D)."
Section 6. Amendment of Section 4.1. Section 4.1 is hereby amended by
adding the following final paragraph thereto:
Notwithstanding anything to the contrary herein (including the
definition of Senior Indebtedness) or in the Notes, the
required payment of interest that would be otherwise due and
payable on April 1, 1998, with respect to the Consenting Notes
shall be deferred to, and shall be payable on, October 1, 1998
(to the extent such Consenting Notes are outstanding on such
later date), to the Holders of record otherwise entitled to
such required payment of interest, with the same effect (and
without any additional accrual of interest thereon) as if paid
on such April 1, 1998 Interest Payment Date.
Section 7. Amendment of Article 10. There is hereby added the following
new Section 10.10:
Section 10.10 Exchange for Series A Preferred Stock
As described in the 2007 Note Documents, and in addition to the
conversion rights contained in the Original Indenture, the Company
contemplates offering Noteholders the opportunity to exchange their
outstanding Notes for shares of the Company's authorized Series A
Preferred Stock issued pursuant to a Certificate of Designation in
substantially the form provided for in Exhibit B hereto (the "Series A
Preferred Stock") and certain other securities; provided, however,
that no such offer is made hereby and any such exchange offer shall
only be made by the Company's actual exchange offer documents. The
Trustee shall have no responsibility with respect to any such
exchange, either as an exchange agent or otherwise, except as it may
expressly so agree in a separate written agreement between it and the
Company.
Section 8. Consent and Waiver. Notwithstanding any provisions of the
Indenture to the contrary, the issuance by the Company of (i) the Offering Notes
until October 15, 1998, (ii) any other 2007 Notes at any time, (iii) shares of
Series B Preferred Stock issued pursuant to a Certificate of Designation in
substantially the form included in Exhibit A (the "Series B Preferred Stock")
and (iv) shares of Series A Preferred Stock (including Series A Preferred Stock
issued as dividends thereon), and the performance by the Company of its
obligations thereunder and under the 2007 Note Documents, shall not be deemed to
constitute a breach of any covenant or agreement set forth in the Original
Indenture, as such breach has been waived by the Holders of a majority in
aggregate principal amount of the Notes pursuant to Section 9.2 of the
Indenture. Notwithstanding any provisions of the Indenture to the contrary
(including, without limitation, Sections 1.1, 4.9, 4.10 and the notice
provisions of Section 10.9(a)), the transactions contemplated by the 2007
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Note Documents (including, without limitation, the compensation and securities
payable to an affiliate of the Company identified in the Consent and Waiver
referred to above (the "Affiliate"), as placement agent, in connection with the
issuance of the Company's 2007 Notes, and the right of the Affiliate or its
affiliates to purchase Xxxxx, 0000 Notes, Series B Preferred Stock, Warrants and
Placement and Advisory Warrants) shall not be deemed to constitute a breach of
any covenant or agreement set forth in the Original Indenture, as any such
breach has been waived by Holders of a majority in aggregate principal amount of
the Notes.
Section 9. Severability. If any provision of this First Supplemental
Indenture shall be held or deemed to be or shall, in fact, be illegal,
inoperative or unenforceable, the same shall not affect any other provision or
provisions herein contained or render the same invalid, inoperative or
unenforceable to any extent whatever.
Section 10. Counterparts. This First Supplemental Indenture may be
executed in several counterparts, each of which shall be an original and all of
such shall, taken together, constitute but one and the same instrument.
Section 11. Applicable Provisions of Law. This First Supplemental
Indenture shall be governed by and construed in accordance with the laws of the
State of New York without regard to the conflict of law provisions thereof.
Section 12. Captions. The captions and headings in this First
Supplemental Indenture are for convenience only and in no way define, expand,
limit or describe the scope or intent of any provisions or sections of this
First Supplemental Indenture.
Section 13. Original Indenture Affirmed. Except as otherwise expressly
supplemented or amended by this First Supplemental Indenture, the provisions of
the Original Indenture shall remain unchanged, binding, and in full force and
effect.
Section 14. Effective Date. The provisions of this First Supplemental
Indenture shall take effect on the date of execution and delivery of this First
Supplemental Indenture by the parties hereto.
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IN WITNESS WHEREOF, the Company has caused these presents to be
executed in its name by its duly authorized officer and its official seal
hereunto affixed; and to evidence its acceptance of the trusts hereby created,
the Trustee has caused these presents to be executed in its corporate name and
with its corporate seal hereunto affixed, by its duly authorized officer, as of
the date first above written.
[SEAL] HYBRIDON, INC.
By: /s/ X. XXXXXXX XXXXXXXXX, III
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Name: X. Xxxxxxx Xxxxxxxxx, III
Title: Chairman and President
[SEAL] STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Name: Xxxx X. Xxxxxxxx, Xx.
Title: Vice President
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