Exhibit 99.6
SUBSCRIPTION AGREEMENT
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")
a convertible subordinated note of the Company for the total purchase price set
forth on the signature page hereto. The note will have the terms and conditions
set forth in the Noteholders Agreement (included in the subscription package),
dated as of May 20, 2005, by and among the Company, the Purchaser and the other
purchasers of the Company's convertible subordinated notes, and will be issued
in the form attached as Exhibit A to the Noteholders Agreement. The note being
issued to the Purchaser hereunder is referred to as the "Note" and the notes
being issued pursuant to the Noteholders Agreement are referred to collectively
as the "Notes".
(a) 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 April 26,
2005, 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 $5.0 million (the
"Minimum Amount") of Notes.
(b) 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 Note 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 Note 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, the Registration Rights Agreement and the
Noteholders 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 the Notes. The Company shall have no liability whatsoever to the Purchaser
in the event that any of the foregoing shall
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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 Note 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 Note under this Subscription Agreement shall be subject to the
fulfillment of the following conditions:
(i) the Minimum Amount of Notes shall have been sold or shall
concurrently be sold to all purchasers of Notes in the Offering, including the
Note sold to the Purchaser under this Subscription Agreement; and
(ii) each representation and warranty contained in Section 5 shall
be true on and as of the Closing with the same effect as though such
representation and warranty had been made on and as of the Closing.
(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 Note having an original principal amount equal to
the purchase price.
(d) The Company and its agents may continue to offer and sell Notes and
conduct additional closings for the sale of additional Notes 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 outside the
United States of the Notes is intended to be exempt from registration under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), 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;
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(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 Notes or any of the shares of Common Stock issuable upon
conversion of the Notes or as payment of accrued interest on the Notes, 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;
(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 Notes 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 Notes, 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 Note 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 Note or the shares of Common Stock issuable upon
conversion of the Note or as payment of accrued interest on the Note, and the
Purchaser has no plans to enter into any such agreement or arrangement;
(j) The purchase of the Note 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 Note indefinitely because neither the
Note nor the shares of Common Stock issuable upon conversion of the Note or as
payment of accrued interest on the Note, 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
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Company has agreed that purchasers of the Notes will have, with respect to the
shares of Common Stock issuable upon conversion of the Notes or as payment of
accrued interest on the Notes, 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 Note for an indefinite period of time;
(l) The Purchaser is aware that an investment in the Note 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 Note or the shares of Common Stock
issuable upon conversion of the Note or as payment of accrued interest on the
Note, 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 Note, 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
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 Note, 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
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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 Note
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) NEITHER THE NOTES NOR THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION OF THE NOTES OR AS PAYMENT OF ACCRUED INTEREST ON THE NOTES 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 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) The Note and each certificate representing shares of Common Stock
issued upon conversion of the Note or as payment of accrued interest on the Note
shall bear a legend substantially in the following form:
"These securities 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
securities 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
securities may not be conducted unless in compliance with the
Securities Act of 1933."
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(t) The foregoing representations and warranties are true as of the
date of this Subscription Agreement and shall be true as of the Closing. If such
representations and warranties shall not be true in any respect prior to the
Closing, 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.
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 the Note under this Subscription
Agreement is expressly conditioned upon the exemption from qualification of the
offer and sale of the Note 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.
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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 and
the Noteholders 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
Note.
(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 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 and the
Noteholders Agreement pertaining to the issuance by the Company of the Notes 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 an agreement to be bound by the
terms and conditions hereof and the terms and conditions of the Registration
Rights Agreement and the Noteholders 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, REGISTRATION RIGHTS AGREEMENT AND NOTEHOLDERS AGREEMENT
The Purchaser hereby elects to subscribe under the Subscription Agreement for a
Note for a total purchase price of $3,102,750 (US Dollar Three Millions, One
Hundred Two Thousands Seven Hundred Fifty Only) and executes the Subscription
Agreement, the Registration Rights Agreement and the Noteholders Agreement,
agrees to be bound by the terms and conditions thereof and authorizes this
signature page to be attached thereto.
Date (to be completed by Purchaser): May 18, 2005
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 Address Line 1
__________________________________ __________________________________
Signature of Subscriber Address Line 2
__________________________________
Date
If the Purchaser is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY COMPANY or
TRUST:
Optima Life Sciences Ltd. Isle of Man
--------------------------------- --------------------------------------
Name of Partnership, Corporation, Jurisdiction of Organization
Limited Liability Company or Trust
By: /s/ Youssef El Xxxx Xx. Xxxxx'x Xxxxxxxx, 00x Xxxxx Xxxxxx
--------------------------------- --------------------------------------
Name: Youssef El Zein Address Line 1
Title: Director
May 19, 2005 Xxxxxxx, Isle of Man IM1 1JE
--------------------------------- --------------------------------------
Date Address Line 2
ACCEPTED AS OF THE 24th DAY OF MAY, 2005:
HYBRIDON, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title Chief Financial Officer, Vice President of Operations
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