EXHIBIT 10.2
HYBRIDON, INC.
REGISTRATION RIGHTS AGREEMENT
dated as of August 27, 2004
HYBRIDON, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as
of August 27, 2004 by and among Hybridon, Inc., a Delaware corporation (the
"Company"), the persons and entities listed on the Schedule of Purchasers
attached hereto as Exhibit A (the "Purchasers") and the entities listed on the
Schedule of Agents attached hereto as Exhibit B (the "Agents"). The Purchasers
and the Agents shall become parties to this Agreement by the execution and
delivery of counterpart signature pages hereto in a form reasonably satisfactory
to the Company.
WHEREAS, the Company is conducting an offering of Units (the "Unit
Offering"), with each Unit consisting of 100 shares of the Company's common
stock, $.001 par value per share ("Common Stock"), and warrants to purchase 20
shares of Common Stock (the "Purchaser Warrants"), as described in the
Confidential Private Placement Memorandum dated August 25, 2004;
WHEREAS, in connection with the Unit Offering, the Company has engaged
the Agents and has agreed to issue to the Agents warrants to purchase Common
Stock (the "Agent Warrants"); and
WHEREAS, to induce the Purchasers to purchase Units in the Unit Offering
and the Agents to assist the Company in the Unit Offering, the Company has
agreed to provide certain registration rights under the Securities Act (as
defined below) and applicable state securities laws;
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 each of the
Purchasers and the Agents hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
(a) "Business Day" means any day other than Saturday, Sunday or
any other day on which commercial banks in The City of New York or in Boston,
Massachusetts are required by law to remain closed.
(b) "Commission" means the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities Act.
(c) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any successor federal statute, and the rules and regulations of
the Commission issued under such Act, as they each may, from time to time, be in
effect.
(d) "Indemnified Party" means a party entitled to
indemnification pursuant to Section 7.
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(e) "Indemnifying Party" means a party obligated to provide
indemnification pursuant to Section 7.
(f) "Person" means an individual, a limited liability company,
a partnership, a joint venture, a corporation, a trust, an unincorporated
organization or association and governmental or any department or agency
thereof.
(g) "Registrable Securities" means (i) the shares of Common
Stock issued as part of the Units issued pursuant to the Unit Offering, (ii) the
shares of Common Stock issued or issuable upon exercise of the Purchaser
Warrants and the Agent Warrants and (iii) any other shares of Common Stock
issued in respect of such shares (as a result of a stock split, stock dividend,
reclassification, recapitalization or other similar transaction affecting the
Common Stock); provided, however, that shares of Common Stock that are
Registrable Securities shall cease to be Registrable Securities upon the
earliest of (A) the date that such shares are eligible to be sold under Rule 144
of the Securities Act, without restriction by the volume limitations of Rule
144(e) of the Securities Act, (B) the date that such shares are sold (I)
pursuant to a registration statement, (II) to or through a broker, dealer or
underwriter in a public securities transaction and/or (III) in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act such that all transfer restrictions and restrictive legends with
respect thereto, if any, are removed upon the consummation of such sale, or (C)
any sale or transfer to any Person which by virtue of Section 9 of this
Agreement is not entitled to the rights provided by this Agreement. Wherever
reference is made in this Agreement to a request or consent of holders of a
certain percentage of Registrable Securities, the determination of such
percentage shall include shares of Common Stock issuable upon exercise of the
Purchaser Warrants and the Agent Warrants even if such exercise has not been
effected.
(h) "Registration Statement" means a registration statement of
the Company filed under the Securities Act and covering the Registrable
Securities.
(i) "Rightsholders" means the Purchasers, the Agents and any
persons or entities to whom the rights granted under this Agreement are
transferred by any Purchaser, Agent or his or its successors or assigns pursuant
to Section 9 of this Agreement.
(j) "Securities Act" means the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
2. Registration
(a) The Company shall use its best efforts to prepare and file
with the Commission a Registration Statement covering the resale of all of the
Registrable Securities and such other shares of Common Stock as the Company may
be required to include pursuant to registration rights agreements with other
Persons within 60 days of the date hereof. The Company shall use its best
efforts to have the Registration Statement declared effective by the Commission
within 90 days after the date the Registration Statement is filed or as soon as
possible thereafter.
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(b) The Company shall use its best efforts to cause the
Registration Statement to remain effective until the date on which the
Rightsholders do not hold any Registrable Securities.
3. Registration Procedures.
(a) In connection with the effectiveness of the Registration
Statement, the Company shall furnish to each Rightsholder such reasonable
numbers of copies of the prospectus and such documents incident thereto,
including any amendment of or supplement to the prospectus, as a Rightsholder
from time to time may reasonably request in order to facilitate the disposition
of such Rightsholder's Registrable Securities under the Registration Statement
in conformity with the requirements of the Securities Act.
(b) The Company shall use its best efforts to register or
qualify the Registrable Securities covered by the Registration Statement under
the securities laws of such states of the United States as the Rightsholders may
reasonably request; provided, however, that the Company shall not be required in
connection with this paragraph (b) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction.
(c) If the Company has delivered preliminary or final
prospectuses to the Rightsholders and if after having done so the Company
determines that the prospectus and/or the Registration Statement needs to be
amended or supplemented to comply with the requirements of the Securities Act,
the Company shall promptly notify the Rightsholders and, if requested by the
Company, the Rightsholders shall immediately cease making offers or sales of
shares under the Registration Statement and shall return all prospectuses to the
Company. The Company shall as promptly as reasonably practicable prepare and
file with the Commission any required amendment or supplement and following such
filing, and, if applicable, the effectiveness of such filing, shall provide the
Rightsholders with revised or supplemented prospectuses. Following receipt of
the revised or supplemented prospectuses, the Rightsholders shall be free to
resume making offers and sales under the Registration Statement.
(d) The Company shall use its best efforts to cause all such
Registrable Securities registered pursuant to this Agreement to be listed on
each securities exchange on which similar securities issued by the Company are
then listed.
4. Limitations on Registration Rights.
(a) The Company may, by written notice to the Rightsholders,
(i) delay the filing of, or effectiveness of, the Registration Statement or (ii)
suspend the Registration Statement after effectiveness and require that the
Rightsholders immediately cease sales of shares pursuant to the Registration
Statement, in the event that the Company is engaged in any activity or
transaction or preparations or negotiations for any activity or transaction that
the Company desires to keep confidential for business reasons, if the Company
determines in good faith that the public disclosure requirements imposed on the
Company under the Securities Act in connection with the Registration Statement
would require disclosure of such activity, transaction, preparations or
negotiations.
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(b) If the Company requires the Rightsholders to cease sales of
shares pursuant to paragraph (a) above, the Company shall, as promptly as
practicable following the termination of the circumstance which entitled the
Company to do so, take such actions as may be necessary to reinstate the
effectiveness of the Registration Statement and/or give written notice to all
Rightsholders authorizing them to resume sales pursuant to the Registration
Statement. If as a result thereof the prospectus included in the Registration
Statement has been amended to comply with the requirements of the Securities
Act, the Company shall enclose such revised prospectus with the notice to
Rightsholders given pursuant to this paragraph (b), and the Rightsholders shall
make no offers or sales of shares pursuant to the Registration Statement other
than by means of such revised prospectus.
(c) Notwithstanding the foregoing, the Company may not (i)
delay the filing of, or the effectiveness of, the Registration Statement or (ii)
suspend the Registration Statement, pursuant to paragraph (a) above on more than
two occasions during any 12-month period or for more than 60 days per such
occasion.
5. Obligations of the Rightsholders.
(a) The Company shall not be required to include any
Registrable Securities in the Registration Statement unless such Rightsholder
shall have furnished to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of the
Registrable Securities held by it as shall be reasonably required by the Company
to effect the effectiveness of the Registration Statement and unless such
Rightsholder shall have executed such documents in connection with the
Registration Statement as the Company may reasonably request. Each Rightsholder
shall promptly notify the Company of any material change with respect to such
information previously provided to the Company by such Rightsholder, including
without limitation notice of the sale by the Rightsholder of any Registrable
Securities.
(b) Each Rightsholder agrees to cooperate with the Company as
reasonably requested by the Company in connection with the preparation and
filing of the Registration Statement hereunder.
6. Expenses of Registration. The Company shall pay the expenses
incurred by it in complying with its obligations under this Agreement, including
all registration and filing fees, exchange listing fees, fees and expenses of
counsel for the Company, and fees and expenses of accountants for the Company,
but excluding (a) any brokerage fees, selling commissions or underwriting
discounts incurred by the Rightsholders in connection with sales under the
Registration Statement and (b) the fees and expenses of any counsel retained by
Rightsholders.
7. Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable
Securities under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless each Rightsholder, each of its officers, directors
and partners, and each underwriter of such Registrable Securities, if any, and
each other person, if any, who controls such Rightsholder or underwriter within
the meaning of the Securities Act or the Exchange Act against any and all
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losses, claims, damages or liabilities, joint or several, to which such
Rightsholder, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement or (ii) the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Company will reimburse such Rightsholder, underwriter and
each such controlling person for any legal or any other expenses reasonably
incurred by such Rightsholder, underwriter or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage, liability or action arises out
of or is based upon any untrue statement or omission made in such Registration
Statement, preliminary prospectus or final prospectus, or any such amendment or
supplement, in reliance upon and in conformity with information furnished to the
Company by or on behalf of such Rightsholder, underwriter or controlling person
and stated to be specifically for use in connection with the Registration
Statement; and provided further that the foregoing indemnity agreement is
subject to the condition that, insofar as it relates to any untrue statement,
alleged untrue statement, omission or alleged omission made in any Registration
Statement, prospectus or amendment or supplement that was eliminated, remedied
or cured by the Company, such indemnity agreement shall not inure to the benefit
of any Rightsholder from whom the Person asserting any loss, claim, damage or
liability purchased the Registerable Securities if a copy of the Registration
Statement, prospectus, amendment or supplement was provided by the Company to
the Rightsholder but was not given or sent to such Person by the Rightsholder
prior to written confirmation of such sale.
(b) Each Rightsholder, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors and officers and
each underwriter (if any) and each person, if any, who controls the Company or
any such underwriter within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages or liabilities, joint or several, to
which the Company, such directors and officers, underwriter or controlling
person may become subject under the Securities Act, Exchange Act, state
securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or (ii) any omission or alleged
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, if and to the extent (and only to
the extent) that the statement or omission was made in reliance upon and in
conformity with written information relating to such Rightsholder furnished to
the Company by such Rightsholder and stated to be specifically for use in
connection with such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of a Rightsholder hereunder
shall be limited to an amount equal to the net proceeds to such Rightsholder of
Registrable Securities sold in connection with such registration.
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(c) Each Indemnified Party shall give notice to the
Indemnifying Party promptly after such Indemnified Party has actual knowledge of
any claim as to which indemnity may be sought, and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting
therefrom; provided, that counsel for the Indemnifying Party, who shall conduct
the defense of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not be unreasonably withheld, conditioned or
delayed); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 7 except to the extent that the Indemnifying
Party is adversely affected by such failure. The Indemnified Party may
participate in such defense at such party's expense; provided, however, that the
Indemnifying Party shall pay such expense if the Indemnified Party reasonably
concludes based upon written advice of its counsel that representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding; provided further that in no event shall the Indemnifying Party be
required to pay the expenses of more than one law firm per jurisdiction as
counsel for the Indemnified Party. The Indemnifying Party also shall be
responsible for the expenses of such defense if the Indemnifying Party does not
elect to assume such defense. No Indemnifying Party, in the defense of any such
claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect of such
claim or litigation, and no Indemnified Party shall consent to entry of any
judgment or settle such claim or litigation without the prior written consent of
the Indemnifying Party, which consent shall not be unreasonably withheld,
conditioned or delayed.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but for any reason is held to be unavailable to an
Indemnified Party in respect to any losses, claims, damages and liabilities
referred to herein, then the Indemnifying Party shall, in lieu of indemnifying
such Indemnified Party, contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities to
which such party may be subject in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Rightsholders on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Rightsholders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact related to information supplied by the Company
or the Rightsholders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Rightsholders agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7(d), (i) in no case shall any one Rightsholder be liable or
responsible for any amount in excess of the gross proceeds received by such
Rightsholder from the offering of Registrable Securities and (ii) the Company
shall be liable and responsible for any amount in excess of such proceeds;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
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fraudulent misrepresentation. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this Section 7(d), notify such party or
parties from whom contribution may be sought, but the omission so to notify such
party or parties from whom contribution may be sought shall not relieve such
party from any other obligation it or they may have thereunder or otherwise
under this Section 7(d) except to the extent that the party or parties from whom
contribution may be sought are adversely affected. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed.
8. Reporting. With a view to making available to the Rightsholders
the benefits of Rule 144 promulgated under the Securities Act or any other
similar rule or regulation of the Commission that may at any time permit the
Rightsholders to sell securities of the Company to the public without
registration ("Rule 144"), for so long as Rightsholders continue to own
Registrable Securities, the Company shall use its reasonable efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, and file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(b) furnish to each Rightsholder, for so long as such
Rightsholder owns Registrable Securities, promptly upon request, (i) a written
statement by the Company, if true, that it has complied with the applicable
reporting requirements of Rule 144, the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the Company and
(iii) such other information as may be reasonably requested to permit the
Rightsholders to sell such securities pursuant to Rule 144 without registration.
9. Assignment of Registration Rights. The rights under this Agreement
shall not be assigned by any Rightsholder except in connection with the transfer
of Registrable Securities by such Rightsholder to an affiliate of such
Rightsholder, provided that (i) the Rightsholder agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement is
furnished to the Company; (ii) the Company is furnished with written notice of
(a) the name and address of such transferee or assignee, and (b) the securities
with respect to which such rights are being transferred or assigned; (iii) at or
before the time the Company receives the written notice contemplated by clause
(ii) of this sentence, the transferee or assignee agrees in writing with the
Company to be bound by all of the obligations of an Rightsholder under this
Agreement; and (iv) such transfer shall have been conducted in accordance with
all applicable federal and state securities laws.
10. Amendment of Registration Rights.
(a) Any provision of this Agreement may be amended and the
observance of any provision of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and Rightsholders who then hold at least a
majority of the Registrable Securities. Any amendment or waiver effected in
accordance with this Section 10 shall be binding upon each Rightsholder and
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the Company. No such amendment shall be effective to the extent that it applies
to less than all of the holders of the Registrable Securities. No consideration
shall be offered or paid to any Person to amend or consent to a waiver or
modification of any provision of any of this Agreement unless the same
consideration also is offered to all of the parties to this Agreement.
(b) In the event that the Company issues and sells Units as
part of the Unit Offering after the date hereof, the Company shall have the
right to amend this Agreement without the consent of the Rightsholders to
include the purchasers of such Units in this Agreement as Purchasers and
Rightsholders and any placement agent or selected dealer that receives warrants
in connection with the sale of such Units as an Agent and Rightsholder and in
connection therewith to modify the Schedule of Purchasers to include such
Purchaser and the Schedule of Agents to include such Agent.
11. Miscellaneous.
(a) A Person is deemed to be a holder of Registrable Securities
whenever such Person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or
election received from the record owner of such Registrable Securities.
(b) Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile; or (iii) two
(2) Business Days after deposit with a reputable overnight delivery service, in
each case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the Company:
Hybridon, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 617-526-5000
Attention: Xxxxx X. Xxxxxxx, Esq.
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If to a Rightsholder, to its address and facsimile number set forth on
the Schedule of Purchasers or on the Schedule of Agents, as the case may
be,
or to such other address and/or facsimile number and/or to the attention
of such other Person as the recipient party has specified by written
notice given to each other party five (5) days prior to the effectiveness
of such change.
Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission, or (C) provided by a courier or overnight courier service shall be
rebuttable evidence of personal service, receipt by facsimile or receipt from a
reputable overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.
(c) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(d) All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of Delaware, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Delaware.
(e) This Agreement and the documents referenced herein
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement and the documents referenced herein supersede all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.
(f) Subject to the requirements of Section 9 of this Agreement,
this Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of each of the parties hereto.
(g) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) This Agreement may be executed in identical counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same agreement. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
(i) Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the
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intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(j) All consents and other determinations required to be made
by the Rightsholders pursuant to this Agreement shall be made, unless otherwise
specified in this Agreement, by Rightsholders holding at least a majority of the
Registrable Securities.
(k) The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent and no rules
of strict construction will be applied against any party.
(l) This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the day and year first above written.
COMPANY:
HYBRIDON, INC.
By: /s/ X. Xxxxxxxx
---------------------------------
Name: X.X. Xxxxxxxx
Title: CFO
PURCHASERS:
Counterpart signature pages attached.
AGENTS:
Counterpart signature pages attached.
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Exhibit A
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Schedule of Purchasers
Name and Address Registrable Securities
---------------- ----------------------
Exhibit B
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Schedule of Agents
Name and Address Registrable Securities
---------------- ----------------------
