Exhibit 99.4
SUBSCRIPTION AGREEMENT
(Non-U.S. Investor)
Hybridon, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Gentlemen:
1. Subscription. The undersigned (the "Purchaser"), intending to be
legally bound, hereby irrevocably agrees to purchase from Hybridon, Inc. (the
"Company") units of the Company (the "Units") for the total purchase price set
forth on the signature page hereto. Each Unit shall consist of 100 shares of the
Company's common stock, par value U.S. $.001 per share ("Common Stock"), and
warrants ("Warrants") to purchase 20 shares of Common Stock. Each Unit is being
offered at a price per Unit determined by multiplying 100 by the sum of:
(a) the highest of the following prices (the highest being
referred to as the "Market Price"):
(i) the volume weighted average of the closing sales prices
of the Common Stock on the American Stock Exchange for the five consecutive
trading days immediately preceding the date of the closing of the sale of Units
to the Purchaser under this Subscription Agreement (the "Closing Date"),
(ii) the volume weighted average of the closing sales prices
of the Common Stock on the American Stock Exchange for the 10 consecutive
trading days immediately preceding the Closing Date,
(iii) the volume weighted average of the closing sales prices
of the Common Stock on the American Stock Exchange for the 15 consecutive
trading days immediately preceding the Closing Date,
(iv) the volume weighted average of the closing sales prices
of the Common Stock on the American Stock Exchange for the 20 consecutive
trading days immediately preceding the Closing Date, and
(v) the closing sales price of the Common Stock on the
American Stock Exchange on the trading day immediately preceding the Closing
Date, and
(b) $0.025.
This subscription is submitted to you in accordance with and subject to
the terms and conditions described in this Subscription Agreement and the
Confidential Private Placement Memorandum of the Company dated August 25, 2004,
as amended or supplemented from time to time, including all attachments,
annexes, schedules and exhibits thereto (the "Memorandum"), relating to the
offering (the "Offering") by the Company of a minimum of $5,000,000 of Units
(the "Minimum Amount") and a maximum of $6,500,000 of Units (the "Maximum
Amount").
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The terms of the Offering are more completely described in the
Memorandum and such terms are incorporated herein in their entirety. Certain
capitalized terms used but not otherwise defined herein shall have the
respective meanings provided in the Memorandum.
2. Payment. The Purchaser agrees to make payment of the full amount of
the purchase price of the Units being subscribed for by wire transfer payment at
the time and in accordance with the directions specified by the Company. Such
funds will be held for the Purchaser's benefit, and will be returned promptly,
without interest, penalty, expense or deduction if (a) this Subscription
Agreement is not accepted by the Company, (b) the closing of the sale of Units
to the Purchaser under this Subscription Agreement (the "Closing") does not
occur within two weeks of the date of this Subscription Agreement as set forth
under the Purchaser's signature on the signature page hereto, or (c) the
Offering expires or is terminated pursuant to its terms or by the Company prior
to the Closing. Together with the check for, or wire transfer of, the full
purchase price, the Purchaser is delivering two completed and executed Omnibus
Signature Pages to this Subscription Agreement and the Registration Rights
Agreement.
3. Acceptance of Subscription. The Purchaser understands and agrees
that the Company may, in its sole discretion and for any reason whatsoever,
withdraw the Offering, accept or reject in whole or in part this or any other
subscription for Units or allot the Purchaser less than the number of Units that
the Purchaser desires to purchase. The Company shall have no liability
whatsoever to the Purchaser in the event that any of the foregoing shall occur.
The Company shall have no obligation hereunder until the Company shall execute
and deliver to the Purchaser an executed copy of this Subscription Agreement and
until the closing conditions provided in Section 4(b) have been fulfilled. If
(a) this Subscription Agreement is not accepted by the Company, (b) the Closing
does not occur within two weeks of the date of this Subscription Agreement as
set forth under the Purchaser's signature on the signature page hereto, or (c)
the Offering expires or is terminated pursuant to its terms or by the Company
prior to the Closing, this Subscription Agreement shall thereafter be of no
further force or effect.
4. Closing.
(a) The Closing of the sale of the Units to the Purchaser under
this Subscription Agreement shall occur as soon as practicable following the
acceptance by the Company of this Subscription Agreement and the fulfillment of
the conditions set forth in paragraph (b) below.
(b) The obligations of the Purchaser to purchase, and of the
Company to sell, the Units under this Subscription Agreement shall be subject to
the fulfillment of the following conditions:
(i) the Minimum Amount of Units shall have been sold or shall
concurrently be sold to all purchasers of Units in the Offering, including the
Units sold to the Purchaser under this Subscription Agreement;
(ii) each representation and warranty contained in Section 5
shall be true on and as of the Closing Date with the same effect as though such
representation and warranty had been made on and as of that date; and
(iii) the shares of Common Stock issued as part of the Units
sold under this Subscription Agreement and the shares of Common Stock issuable
upon exercise of the Warrants issued as part of the Units sold under this
Subscription Agreement shall have been
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approved for listing on the American Stock Exchange, subject only to notice of
issuance at the time of purchase.
(c) Following the Closing, the Company shall deliver to the
Purchaser, against payment to the Company at the Closing of the purchase price
therefor in accordance with Section 2, a certificate for the number of shares of
Common Stock issued as part of the Units sold under this Subscription Agreement
and executed Warrants to purchase the number of shares of Common Stock issued as
part of the Units sold under this Subscription Agreement.
(d) The Company and its agents may continue to offer and sell
Units and conduct additional closings for the sale of additional Units after the
Closing and until the expiration or termination of the Offering.
5. Representations and Warranties. The Purchaser hereby acknowledges,
represents, warrants and agrees as follows:
(a) The Purchaser understands that the offering and sale of the
Units is intended to be exempt from registration under the U.S. Securities Act
of 1933, as amended (the "Securities Act"), by virtue of Section 4(2) thereof
and the provisions of Regulation D promulgated thereunder, and outside the
United States in accordance with Regulation S under the Securities Act
("Regulation S"), based, in part, upon the representations, warranties and
agreements of the Purchaser contained in this Subscription Agreement;
(b) The Purchaser and the Purchaser's attorney, accountant,
purchaser representative and/or tax advisor, if any (collectively, the
"Advisors"), have received the Memorandum and all other documents requested by
the Purchaser and the Advisors, if any, have carefully reviewed them and
understand the information contained therein prior to the execution of this
Subscription Agreement;
(c) None of the U.S. Securities and Exchange Commission, any state
securities commission or any other regulatory authority (foreign or otherwise)
has approved the Units or any of the shares of Common Stock, the Warrants or the
shares of Common Stock issuable upon exercise of the Warrants, or passed upon or
endorsed the merits of the Offering or confirmed the accuracy or determined the
adequacy of the Memorandum. The Memorandum has not been reviewed by any U.S.
Federal, state or other regulatory authority (foreign or otherwise);
(d) The Purchaser and the Advisors, if any, have had a reasonable
opportunity to ask questions of and receive answers from a person or persons
acting on behalf of the Company concerning the Offering and the business,
financial condition, results of operations and prospects of the Company, and all
such questions have been answered to the full satisfaction of the Purchaser and
the Advisors, if any;
(e) In evaluating the suitability of an investment in the Company,
the Purchaser has not relied upon any representation or other information (oral
or written) other than as stated in the Memorandum;
(f) The Purchaser has taken no action which would give rise to any
claim by any person against the Company for brokerage commissions, finders' fees
or the like relating to this Subscription Agreement or the transactions
contemplated hereby;
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(g) The Purchaser, either alone or together with its Advisor(s),
if any, have such knowledge and experience in financial, tax, and business
matters, and, in particular, investments in securities, so as to enable them to
utilize the information made available to them in connection with the Offering
to evaluate the merits and risks of an investment in the Units and the Company
and to make an informed investment decision with respect thereto;
(h) The Purchaser is not relying on the Company, or any of its
agents or any of their respective employees or agents with respect to the legal,
tax, economic and related considerations of an investment in the Units, and the
Purchaser has relied on the advice of, or has consulted with, only his or its
own Advisors;
(i) The Purchaser is acquiring the Units solely for such
Purchaser's own account for investment and not with a view to resale or
distribution thereof, in whole or in part. Except for arrangements with
shareholders of the Purchaser as provided in the organizational documents of the
Purchaser, the Purchaser has no agreement or arrangement, formal or informal,
with any person to sell or transfer all or any part of the Units, the shares of
Common Stock, the Warrants or the shares of Common Stock issuable upon exercise
of the Warrants, and the Purchaser has no plans to enter into any such agreement
or arrangement;
(j) The purchase of Units represents high risk capital and the
Purchaser is able to afford an investment in a speculative venture having the
risks and objectives of the Company. The Purchaser must bear the substantial
economic risks of the investment in the Units indefinitely because none of the
securities included in the Units may be sold, hypothecated or otherwise disposed
of unless (i) such securities are subsequently registered under the Securities
Act, (ii) an exemption from such registration is available in a transaction not
subject to the registration requirements of the Securities Act or (iii) in
accordance with Regulation S. The Company has agreed that purchasers of the
Units will have, with respect to the shares of Common Stock and the shares of
Common Stock issuable upon exercise of the Warrants, the registration rights
described in the Registration Rights Agreement the form of which is included in
the subscription documents;
(k) The Purchaser has adequate means of providing for such
Purchaser's current financial needs and foreseeable contingencies and has no
need for liquidity of the investment in the Units for an indefinite period of
time;
(l) The Purchaser is aware that an investment in the Units
involves a number of very significant risks and has carefully read and
considered the matters set forth under the caption "Risks Related to this
Offering" and other risk factors of the Company that are referenced in the
Memorandum;
(m) The Purchaser is not a U.S. person (as defined in Securities
Act Rule 902(k)) and is not acquiring the Units, the shares of Common Stock, the
Warrant or the shares of Common Stock issuable upon exercise of the Warrant for
the account or benefit of any U.S. person.
(n) The Purchaser: (i) if a natural person, represents that the
Purchaser has reached the age of 21 and has full power and authority to execute
and deliver this Subscription Agreement and all other related agreements or
certificates and to carry out the provisions hereof and thereof; (ii) if a
corporation, partnership, or limited liability company or partnership, or
association, joint stock company, trust, unincorporated organization or other
entity, represents that such entity was not formed for the specific purpose of
acquiring the Units, such entity is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, the
consummation of the transactions contemplated hereby is authorized by, and will
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not result in a violation of any applicable law or its charter or other
organizational documents, such entity has full power and authority to execute
and deliver this Subscription Agreement and all other related agreements or
certificates and to carry out the provisions hereof and thereof and to purchase
and hold the securities constituting the Units, the execution and delivery of
this Subscription Agreement has been duly authorized by all necessary action,
this Subscription Agreement has been duly executed and delivered on behalf of
such entity and is a legal, valid and binding obligation of such entity; or
(iii) if executing this Subscription Agreement in a representative or fiduciary
capacity, represents that it has full power and authority to execute and deliver
this Subscription Agreement in such capacity and on behalf of the subscribing
individual, xxxx, partnership, trust, estate, corporation, or limited liability
company or partnership, or other entity for whom the Purchaser is executing this
Subscription Agreement, and such individual, partnership, xxxx, trust, estate,
corporation, or limited liability company or partnership, or other entity has
full right and power to perform pursuant to this Subscription Agreement and make
an investment in the Company, and represents that this Subscription Agreement
constitutes a legal, valid and binding obligation of such entity. The execution
and delivery of this Subscription Agreement will not violate or be in conflict
with any order, judgment, injunction, agreement or controlling document to which
the Purchaser is a party or by which it is bound;
(o) The Purchaser represents to the Company that any information
which the Purchaser has heretofore furnished or is furnishing herewith to the
Company is complete and accurate and may be relied upon by the Company in
determining the availability of an exemption from registration under U.S.
Federal securities laws and applicable laws of states and foreign jurisdictions
in connection with the offering of securities as described in the Memorandum.
The Purchaser further represents and warrants that it will notify and supply
corrective information to the Company immediately upon the occurrence of any
change therein occurring prior to the Company's issuance of the Units hereunder;
(p) Within five days after receipt of a request from the Company,
the Purchaser will provide such information and deliver such documents as may
reasonably be necessary to comply with any and all laws and ordinances to which
the Company is subject, including all information regarding the Purchaser that
the Company requests in connection with the registration statement to be filed
pursuant to the Registration Rights Agreement described in the Memorandum;
(q) No oral or written representations have been made, or oral or
written information furnished, to the Purchaser or the Advisors, if any, in
connection with the Offering which are in any way inconsistent with the
information contained in the Memorandum;
(r) NONE OF THE SHARES OF COMMON STOCK, THE WARRANTS TO PURCHASE
SHARES OF COMMON STOCK OR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THE WARRANTS OFFERED PURSUANT TO THE MEMORANDUM HAVE BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OR FOREIGN JURISDICTION AND ARE BEING OFFERED AND SOLD IN RELIANCE
ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN
APPROVED OR DISAPPROVED BY THE U.S. SECURITIES AND EXCHANGE COMMISSION, ANY
STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY (FOREIGN OR
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OTHERWISE), NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED
THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE MEMORANDUM. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL;
(s) Each certificate representing shares of Common Stock issued
hereunder or upon exercise of the Warrants and each Warrant shall bear a legend
substantially in the following form:
"These shares have not been registered under the Securities Act of
1933. They may not be offered or transferred by sale, assignment,
pledge or otherwise unless (i) a registration statement for the shares
under the Securities Act of 1933 is in effect or (ii) the corporation
has received an opinion of counsel, which opinion is satisfactory to
the corporation, to the effect that such registration is not required
under the Securities Act of 1933 or (iii) such offer or transfer is
made in accordance with the provisions of Regulation S under the
Securities Act of 1933. Hedging transactions involving these shares may
not be conducted unless in compliance with the Securities Act of 1933."
(t) The foregoing representations and warranties are true as of
the date of this Subscription Agreement and shall be true as of the Closing
Date. If such representations and warranties shall not be true in any respect
prior to the Closing Date the Purchaser will give prompt written notice of such
fact to the Company.
6. Irrevocability; Binding Effect. The Purchaser hereby acknowledges
and agrees that the subscription hereunder is irrevocable by the Purchaser,
except as required by applicable law, and that this Subscription Agreement shall
survive the death or disability of the Purchaser and shall be binding upon and
inure to the benefit of the parties and their heirs, executors, administrators,
successors, legal representatives, and permitted assigns. If the Purchaser is
more than one person, the obligations of the Purchaser hereunder shall be joint
and several and the agreements, representations, warranties, and acknowledgments
herein shall be deemed to be made by and be binding upon each such person and
such person's heirs, executors, administrators, successors, legal
representatives, and permitted assigns.
7. Modification. Except as expressly permitted herein, this
Subscription Agreement shall not be modified or waived except by an instrument
in writing signed by the party against whom any such modification or waiver is
sought.
8. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or by a reputable overnight delivery service or shall
be delivered against receipt to the party to whom it is to be given (a) if to
the Company, at the address set forth above, or (b) if to the Purchaser, at the
address set forth on the signature page hereof (or, in either case, to such
other address as the party shall have furnished in writing in accordance with
the provisions of this Section 8). Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof and
any notice or other communication given by overnight delivery service shall be
deemed given two business days after deposit with the courier; provided,
however, that a notice changing a party's address shall be deemed given at the
time of receipt thereof.
9. Assignability. This Subscription Agreement and the rights, interests
and obligations hereunder are not transferable or assignable by the Purchaser.
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10. Applicable Law. This Subscription Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts
in the United States without reference to the principles thereof relating to the
conflict of laws.
11. Blue Sky Qualification. The purchase of Units under this
Subscription Agreement is expressly conditioned upon the exemption from
qualification of the offer and sale of the Units from applicable U.S. Federal
securities laws and the applicable laws of states and foreign jurisdictions. The
Company shall not be required to qualify as a foreign corporation or execute a
general consent to service of process in any jurisdiction and, should
qualification or execution of a general consent be necessary, the Company shall
be released from any and all obligations to maintain its offer, and may rescind
any sale contracted, in the jurisdiction.
12. Use of Pronouns. All pronouns and any variations thereof used
herein shall be deemed to refer to the masculine, feminine, neuter, singular or
plural as the identity of the person or persons referred to may require.
13. Confidentiality. The Purchaser acknowledges and agrees that any
information or data the Purchaser has acquired from or about the Company, not
otherwise properly in the public domain, was received in confidence. The
Purchaser agrees not to divulge, communicate or disclose, except as may be
required by law or for the performance of this Agreement, or use to the
detriment of the Company or for the benefit of any other person or persons, or
misuse in any way, any confidential information of the Company, including any
scientific, technical, trade or business secrets of the Company and any
scientific, technical, trade or business materials that are treated by the
Company as confidential or proprietary, including, but not limited to, ideas,
discoveries, inventions, developments and improvements belonging to the Company
and confidential information obtained by or given to the Company about or
belonging to third parties.
14. Miscellaneous.
(a) This Agreement, together with the Registration Rights
Agreement, constitute the entire agreement between the Purchaser and the Company
with respect to the subject matter hereof, except for any confidential
disclosure agreement between the Purchaser and the Company, and supersede all
prior oral or written agreements and understandings, if any, between the parties
relating to the subject matter hereof, except for any confidential disclosure
agreement between the Purchaser and the Company.
(b) The Purchaser's representations and warranties made in this
Agreement shall survive the execution and delivery hereof and delivery of the
shares of Common Stock and Warrants contained in the Units.
(c) Each of the parties hereto shall pay its own fees and expenses
(including the fees of any attorneys, accountants, appraisers or others engaged
by such party) in connection with this Agreement and the transactions
contemplated hereby whether or not the transactions contemplated hereby are
consummated.
(d) This Agreement may be executed in one or more counterparts
each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument.
(e) Each provision of this Subscription Agreement shall be
considered separable and, if for any reason any provision or provisions hereof
are determined to be invalid or
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contrary to applicable law, such invalidity or illegality shall not impair the
operation of or affect the remaining portions of this Subscription Agreement.
(f) Paragraph titles are for descriptive purposes only and shall
not control or alter the meaning of this Subscription Agreement as set forth in
the text.
15. Omnibus Signature Page. This Subscription Agreement is intended to
be read and construed in conjunction with the Registration Rights Agreement
pertaining to the issuance by the Company of the shares of Common Stock and
Warrants to subscribers pursuant to the Memorandum. Accordingly, pursuant to the
terms and conditions of this Subscription Agreement and such related agreements
it is hereby agreed that the execution by Purchaser of this Subscription
Agreement, in the place set forth herein, shall constitute agreement to be bound
by the terms and conditions hereof and the terms and conditions of the
Registration Rights Agreement, with the same effect as if each of such separate
but related agreement were separately signed.
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HYBRIDON, INC.
OMNIBUS SIGNATURE PAGE TO
SUBSCRIPTION AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
Subscriber hereby elects to subscribe under the Subscription Agreement for a
total of $1,600,000 of Units (NOTE: to be completed by subscriber) or such
lesser amount as shall purchase a whole number of Units and executes the
Subscription Agreement and the Registration Rights Agreement, agrees to be bound
by the terms and conditions thereof and authorizes this signature page to be
attached thereto.
Date (NOTE: To be completed by subscriber): 27 August, 2004
If the Purchaser is an INDIVIDUAL (if purchased as JOINT TENANTS, as TENANTS IN
COMMON, or as COMMUNITY PROPERTY, each owner must complete separate signature
page):
--------------------------- --------------------------------------
Print Name Social Security Number (if applicable)
--------------------------- --------------------------------------
Signature of Subscriber Address Line 1
--------------------------- --------------------------------------
Date Address Line 2
If the Purchaser is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY COMPANY or
TRUST:
Optima Life Sciences Limited
---------------------------------- --------------------------------------
Name of Partnership, Corporation, Federal Taxpayer Identification Number
Limited Liability Company or Trust (if applicable)
By: /s/ Youssef El Zein Isle of Man
------------------------- -----------
Name: Youssef El Zein Jurisdiction of Organization
Title: Director
August 27, 2004 St James's Xxxxxxxx, 00X Xxxxx Xxxxxx
---------------------------------- --------------------------------------
Date Xxxxxxx Xxxx 0
Xxxx xx Xxx XX0 0XX
-------------------
Address Line 2
ACCEPTED AS OF THE 27TH DAY OF AUGUST, 2004:
HYBRIDON, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: CFO
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