THE TERMS OF THIS NOTE ARE SUBJECT TO THE TERMS OF A SUBSCRIPTION AGREEMENT AND
AN INTERCREDITOR AGREEMENT, COPIES OF WHICH ARE AVAILABLE FROM HYBRIDON, INC.
(THE "COMPANY"). THE SECURITIES REPRESENTED BY THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE SECURITIES ACT. ANY SUCH
TRANSFER MAY ALSO BE SUBJECT TO COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS
AND THE LAWS OF OTHER APPLICABLE JURISDICTIONS.
THE SECURED PARTY (AS DEFINED IN THE SUBSCRIPTION AGREEMENT) IS THE EXCLUSIVE
AGENT OF THE HOLDER OF THIS NOTE WITH RESPECT TO CERTAIN ACTIONS HEREUNDER AND
UNDER THE SUBSCRIPTION AGREEMENT; THE SECURED PARTY, IN ITS SOLE DISCRETION, MAY
TAKE OR FOREBEAR FROM TAKING CERTAIN ACTIONS HEREUNDER AND UNDER THE
SUBSCRIPTION AGREEMENT ON BEHALF OF THE HOLDERS OF NOTES.
HYBRIDON, INC.
No.___
Note due 2002
$---------
[DATE OF ISSUANCE]
Hybridon, Inc., a Delaware corporation, (the "Company"), for
value received, hereby promises to pay to ___________________________ (the
"Holder"), or registered assigns, the principal sum set forth above, with
accrued but unpaid interest thereon at a rate equal to eight percent (8%) per
annum, on November 30, 2002 (the "Maturity Date"). Payment shall be made at such
place as designated by the Company upon surrender of this Note (as defined
below), and shall be in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts. This Note is one of a duly authorized issue of Hybridon, Inc.
Notes due 2002 (individually a "Note" and collectively the "Notes") issued
pursuant to a Subscription Agreement which is available from the Company (the
"Subscription Agreement") and similar agreements. Capitalized terms used herein
without definition have the respective meanings specified therefor in the
Subscription Agreement. The Notes shall be subordinated in right of payment to
all existing and future Operating Indebtedness
of the Company. The Notes are secured by the Collateral pursuant to the
Subscription Agreement, and the security interests granted therein are subject
to any prior security interest in the Collateral granted by the Company except
as modified by the Intercreditor Agreement.
SECTION 1. Interest.
The Company will pay interest semi-annually in arrears on
April 1 and October 1 of each year (each an "Interest Payment Date"), or if any
such day is not a Business Day, on the next succeeding Business Day to the
registered Holder hereof as of the preceding March 15 or September 15 (each, a
"Record Date"). Interest on this Note will accrue from the most recent Interest
Payment Date to which interest has been paid or, if no interest has been paid,
from the date of its issuance set forth above; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a Record Date, and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date. The Company may,
with respect to each Interest Payment Date, at its option and in its sole
discretion, in lieu of payment of interest on the Notes in cash, issue
additional Notes ("Interest Notes") in an aggregate principal amount equal to
the amount of interest not paid in cash on such Interest Payment Date. Each
issuance of Interest Notes in lieu of the payment of cash interest on the Notes
shall be made pro rata with respect to the outstanding Notes; provided, however,
that the Company may at its option pay cash in lieu of issuing Interest Notes in
any denomination of less than $1,000. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months.
SECTION 2. Prepayment.
(a) This Note (including interest accrued on the principal
hereof) may be prepaid by the Company, at any time, in whole or in part, without
penalty or premium except as provided in Subsection 2(b).
(b) If this Note (or any portion hereof) is prepaid by the
Company, then the Company shall simultaneously issue to the Holder hereof Class
E Warrants ("Warrants") to purchase a number of shares of Common Stock equal to
the number of shares of Common Stock then issuable upon conversion of this Note
(or the prepaid portion hereof, if prepaid in part). Such Warrants shall
initially be exercisable at $.60 per share of Common Stock and shall be governed
by a Warrant Agreement by and among the Company, ChaseMellon Shareholder
Services, L.L.C. and the Secured Party in substantially the form attached to the
Subscription Agreement as Exhibit B (the "Warrant Agreement").
SECTION 3. Conversion.
(a) Conversion. The Holder may elect, at any time prior to the
Maturity Date, to convert this Note and all accrued interest hereon into a
number of shares of Common Stock equal to Liquidation Amount (as defined below)
divided by the then current Conversion Price (as defined below). The
"Liquidation Amount" shall be the aggregate principal amount of, plus any
accrued but unpaid interest on, this Note. The "Conversion Price" shall
initially be $0.60, subject to adjustment as provided below, representing an
initial conversion rate (subject to
adjustment) of 1,666-2/3 shares of Common Stock per $1,000 of Liquidation
Amount (the "Conversion Rate").
(b) Conversion Procedures. (i) Any Holder of a Note desiring
to convert such Note into Common Stock shall surrender such Note at the
Company's principal executive office, accompanied by proper instruments of
transfer to the Company or in blank, accompanied by irrevocable written notice
to the Company that the Holder elects so to convert such Note (the "Notice of
Conversion") and specifying the name or names (with address) in which a
certificate or certificates evidencing shares of Common Stock are to be issued.
(ii) The Company need not deem a Notice of Conversion to be
received unless the Holder complies with all the provisions hereof. The Company
will make a notation of the date that a Notice of Conversion is received, which
date of receipt shall be deemed to be the date of receipt for purposes hereof.
(iii) The Company shall, as soon as practicable after such
deposit of any Note accompanied by a Notice of Conversion and compliance with
any other conditions herein contained, deliver to the person for whose account
such Note was so surrendered, or to the nominee or nominees of such person,
certificates evidencing the number of full shares of Common Stock to which such
person shall be entitled as aforesaid, subject to Section 4.
(iv) Subject to the following provisions of this Paragraph
3(b)(iv), such conversion shall be deemed to have been made as of the date of
such surrender of the Note to be converted, and the person or persons entitled
to receive the Common Stock deliverable upon conversion of such Note shall be
treated for all purposes as the record holder or holders of such Common Stock on
such date and the Note shall no longer be deemed outstanding and all rights
whatsoever in respect thereof (including the right to receive interest thereon)
shall terminate except the right to receive the number of full shares of Common
Stock to which such person shall be entitled hereunder; provided, however, that
the Company shall not be required to convert any Note while the stock transfer
books of the Company are closed for any purpose, but the surrender of a Note for
conversion during any period while such books are so closed shall become
effective for conversion immediately upon the reopening of such books as if the
surrender had been made on the date of such reopening, and the conversion shall
be at the Conversion Rate in effect on such date applied to the Liquidation
Amount calculated through such date of reopening.
(c) Adjustments to Conversion Price. (i) In case the Company
shall hereafter (A) pay a dividend or make a distribution on its Common Stock in
shares of Common Stock, (B) subdivide its outstanding shares of Common Stock
into a greater number of shares or (C) combine its outstanding shares of Common
Stock into a smaller number of shares (each of (A) through (C) an "Action"), the
Conversion Price shall be adjusted to equal the product of the Conversion Price
in effect immediately prior to such Action multiplied by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such Action and the denominator of which shall be the
number of shares of Common Stock outstanding immediately following such Action.
An adjustment made pursuant to this Subsection 3(b) shall become effective
immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
(ii) In case the Company shall hereafter issue by
reclassification of its Common Stock any shares of capital stock of the Company
(a "Reclassification"), provision shall be made so that, immediately following
such Reclassification, the Notes shall be convertible into the kind and quantity
of securities to which the Holders of such Notes would have been entitled
pursuant to such Reclassification, had such Holders converted such Notes
immediately prior to such Reclassification.
(d) Reservation of Shares; Transfer Taxes; Etc. The Company
shall at all times reserve and keep available, out of its authorized and
unissued shares of Common Stock, solely for the purpose of effecting the
conversion of the Notes, such number of shares of its Common Stock free of
preemptive rights as shall be sufficient to effect the conversion of all Notes
from time to time outstanding. The Company shall use its best efforts from time
to time, in accordance with the laws of the State of Delaware, to increase the
authorized number of shares of Common Stock if at any time the number of shares
of Common Stock not outstanding shall not be sufficient to permit the conversion
of all the then-outstanding Notes.
The Company shall pay any and all issue or other taxes (other
than income taxes) that may be payable in respect of any issue or delivery of
shares of Common Stock on conversion of the Notes. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue or delivery of Common Stock (or other securities
or assets) in a name other than that in which the Notes so converted were
registered, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the amount of such tax or
has established, to the satisfaction of the Company, that such tax has been
paid.
(e) Other Changes in Conversion Rate. The Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the period is at least 20 days and if the increase is irrevocable during the
period. Whenever the Conversion Rate is so increased, the Company shall mail to
the Holder of record of this Note a notice of the increase at least 15 days
before the date the increased Conversion Rate takes effect, and such notice
shall state the increased Conversion Rate and the period it will be in effect.
The Company may make such increases in the Conversion Rate, in
addition to those required or allowed by this paragraph (e), as shall be
determined by it, as evidenced by a resolution of the Board of Directors of the
Company, to be advisable in order to avoid or diminish any income tax to holders
of Common Stock resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes.
SECTION 4. Fractional Shares.
No fractional shares or scrip representing fractional shares
of Common Stock shall be issued upon conversion of this Note. If more than one
certificate evidencing Notes shall be surrendered for conversion at one time by
the same Holder, the number of full shares issuable
upon conversion thereof shall be computed on the basis of the aggregate
Liquidation Amount of the Notes so surrendered. Instead of any fractional share
of Common Stock which would otherwise be issuable upon conversion of this Note
(or of such aggregate number of Notes), the Company may elect, in its sole
discretion, independently for each Holder, whether such number of shares of
Common Stock will be rounded to the nearest whole share (with a .5 of a share
rounded upward) or whether such Holder will be given cash, in lieu of any
fractional share, in an amount equal to the same fraction of the Conversion
Price as of the close of business on the day of conversion.
SECTION 5. Events of Default Defined.
The following shall each constitute an "Event of Default"
hereunder:
(a) the failure of the Company to make any payment of (i)
principal of this Note when due and payable and such failure shall continue for
five (5) or more days; and (ii) interest on this Note when due and payable and
such failure shall continue for thirty (30) or more days;
(b) the failure of the Company to observe or perform any
covenant in this Note or in the Subscription Agreement, and such failure shall
have continued unremedied for a period of sixty (60) days after written notice
as provided in the last paragraph of this Section 5;
(c) a default occurs (after giving effect to any applicable
grace periods or any extension of any maturity date) in the payment when due of
principal of, or an acceleration of, any indebtedness for money borrowed by the
Company or any of its Subsidiaries (other than an Unrestricted Subsidiary (as
defined below) which is not a Significant Subsidiary (as defined below) and
provided there is no recourse against the Company or any other Subsidiary with
respect to the obligations of such Unrestricted Subsidiary arising as a result
of such default) in excess of $2 million, individually or in the aggregate, if
such indebtedness is not discharged, or such acceleration is not annulled,
within 30 days after written notice as provided in the last paragraph of this
Section 5;
(d) the Company or any of its Significant Subsidiaries,
pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property, and such Custodian is
not discharged within 30 days,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) admits in writing that it is generally unable to
pay its debts as the same become due;
(e) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief in any involuntary case against
the Company or any Significant Subsidiary,
(ii) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of the property
of the Company or any Significant Subsidiary, or
(iii) orders the liquidation of the Company or any
Significant Subsidiary, and, in each case, the order or decree remains
unstayed and in effect for 60 consecutive days.
The term "Bankruptcy Law" means Title 11 of the U.S. Code or
any similar federal, foreign or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, examiner or
similar official under any Bankruptcy Law. The term "Significant Subsidiary" has
the same meaning as significant subsidiary has under Regulation S-X under the
Securities Act as in effect on the date hereof. "Unrestricted Subsidiary" means
any Subsidiary of the Company which (i) is not wholly-owned by the Company, (ii)
is designated as an Unrestricted Subsidiary by the Board of Directors of the
Company and (iii) at the time of any investment by the Company in such
Subsidiary, in the aggregate holds or comprises less than 20% of the Company's
assets as shown on the Company's consolidated balance sheet prepared in
accordance with generally accepted accounting principles consistently applied as
at the time of such investment.
(f) the failure of the Company to maintain, as of the last day
of any calendar month, consolidated cash on hand (and cash equivalents and
marketable securties) of at least $1.5 million.
A Default under Subsection (b), (c) or (f) of this Section 5 shall not be an
Event of Default until (i) the Secured Party shall have notified the Company of
the Default and (ii) the Company shall have failed to cure the Default under
such Subsection (b) within 60 days after receipt of the notice, under such
Subsection (c) within 10 days after receipt of the notice or under Subsection
(f) within 30 days after receipt of the notice. Any such notice must (x) specify
the Default, (y) demand that it be remedied and (z) state that the notice is a
"Notice of Default."
SECTION 6. Remedies upon Event of Default.
Except as limited by the Intercreditor Agreement:
(a) If an Event of Default occurs and is continuing, the
Secured Party (by notice to the Company) may declare the unpaid principal of and
accrued interest on all the Notes then outstanding to be due and payable (an
"Acceleration"). Upon any such declaration, such principal and accrued interest
shall be due and payable immediately. The Secured Party may rescind an
acceleration and its consequences if (a) the Company has paid a sum sufficient
to pay (i) all overdue interest on all Notes then outstanding and (ii) the
principal of the Notes then outstanding which have become due otherwise than by
such declaration of acceleration and accrued interest thereon at a rate borne by
the Notes and (b) the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall effect any subsequent Default or impair
any right consequent thereto.
(b) The Secured Party may waive an existing Default or Event
of Default and its consequences. Upon any such waiver, such Default shall cease
to exist and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Note and the Subscription Agreement; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
(c) If the Company defaults in a payment of interest on the
Notes, then, in lieu of this Note's ordinary 8% interest, the Company shall pay
defaulted interest at a rate of 12% (or, during the first six months immediately
following any Acceleration, 16%, and thereafter 24%) per annum. The Company
shall pay the defaulted interest to the Holders of the Notes on a special record
date. The Company shall fix or cause to be fixed any such special record date
and payment date, which specified record date shall not be fewer than 10 days
prior to the payment date for such defaulted interest, and shall promptly mail
or cause to be mailed to each Holder a notice that states the special record
date, the payment date and the amount of defaulted interest to be paid.
(d) Upon the occurrence and during the continuance of an Event
of Default, the Secured Party may, at its election, without notice of its
election and without demand, take any action permitted by law, including the
exercise of any rights accorded a secured creditor under the Uniform Commercial
Code as in effect in the Commonwealth of Massachusetts at such time.
(e) To the extent permitted by law, the remedies provided
herein shall be exclusive of any other remedies now or hereafter existing at law
or in equity or by statute or otherwise.
(f) In any suit for the enforcement of any right or remedy
under this Note or the Subscription Agreement, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant.
SECTION 7. Note Register.
(a) The Company shall keep at its principal executive office a
register (herein sometimes referred to as the "Note Register"), in which,
subject to such reasonable regulations as it may prescribe, but at its expense
(other than transfer taxes, if any), the Company shall provide for the
registration and transfer of this Note.
(b) Whenever this Note shall be surrendered at the principal
executive office of the Company for transfer or exchange, accompanied by a
written instrument of transfer in form reasonably satisfactory to the Company
duly executed by the Holder hereof or his attorney duly authorized in writing,
and, subject to compliance with applicable securities laws, the Company shall
execute and deliver in exchange therefor a new Note or Notes, as may be
requested by such Holder, in the same aggregate unpaid principal amount and
payable on the same date as the principal amount of the Note or Notes so
surrendered; each such new Note shall be dated as of the date to which interest
has been paid on the unpaid principal amount of the Note or Notes so surrendered
and shall be in such principal amount and registered in such name or names as
such Holder may designate in writing.
(c) Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Note
and of indemnity or bond reasonably satisfactory to it, and upon reimbursement
to the Company of all reasonable expenses incidental thereto, and upon surrender
and cancellation of this Note (in case of mutilation) the Company will make and
deliver in lieu of this Note a new Note of like tenor and unpaid principal
amount and dated as of the date to which interest has been paid on the unpaid
principal amount of this Note in lieu of which such new Note is made and
delivered.
SECTION 8. Miscellaneous.
(a) Amendments and Waivers. The Secured Party on behalf of the
Holders of the Notes may waive or otherwise consent to the amendment of any of
the provisions hereof, provided that no such waiver or amendment may reduce the
principal amount of or interest on any of the Notes or change the stated
maturity of the principal of this Note, without the consent of each holder of
any Note affected thereby.
(b) Restrictions on Transferability. In addition to the
restrictions set forth in the Subscription Agreement, the securities represented
by this Note have been acquired for investment and have not been registered
under the Securities Act of 1933, as amended, or the securities laws of any
state or other jurisdiction. Without such registration, such securities may not
be sold, pledged, hypothecated or otherwise transferred, except pursuant to
exemptions from the Securities Act of 1933, as amended, and the securities laws
of any state or other jurisdiction.
(c) Forbearance from Suit. No holder of Notes shall institute
any suit or proceeding for the enforcement of the payment of principal or
interest unless the Secured Party joins in such suit or proceeding.
(d) No Recourse Against Others. No directors, officer,
employee, incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under this Note, the Subscription
Agreement or for any claim based on, in respect of, or by reason of, such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
(e) Subordination. The Holder by accepting this Note agrees
that the payment (by set-off or otherwise) of principal of and interest on the
Notes is subordinated in right of payment, to the extent and in the manner
provided in Section 9 of the Subscription Agreement, to the prior payment in
full of all obligations in respect of Operating Indebtedness of the Company,
whether outstanding on the date of the Subscription Agreement or thereafter
incurred.
(f) Denominations. This Note is issuable in minimum
denominations of $1,000 and integral multiples of $1,000 in excess thereof,
except as otherwise provided in Section 1 hereof.
(g) Governing Law. This Note shall be governed by, and
construed in accordance with, the laws of the State of Massachusetts, excluding
the body of law relating to conflict of laws. Notwithstanding anything to the
contrary contained herein, in no event may the effective rate of interest
collected or received by the Holder exceed that which may be charged, collected
or received by the Holder under applicable law.
(h) Interpretation. If any term or provision of this Note
shall be held invalid, illegal or unenforceable, the validity of all other terms
and provisions hereof shall in no way be affected thereby.
(i) Successors and Assigns. This Note shall be binding upon
the Company and its successors and assigns and shall inure to the benefit of the
Holder and its successors and registered assigns.
(j) Notices. All notices, requests, consents and demands shall
be made in writing and shall be mailed postage prepaid, or delivered by hand, to
the Company or to the Holder thereof at their respective addresses set forth
below or to such other address as may be furnished in writing to the other party
hereto:
If to the Holder: At the address shown on Schedule A
attached hereto
If to the Company: Hybridon, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(k) Saturdays, Sundays, Holidays. If any date that may at any
time be specified in this Note as a date for the making of any payment of
principal or interest under this Note shall fall on Saturday, Sunday or on a day
which in New York or Massachusetts or California shall be a legal holiday, then
the date for the making of that payment shall be the next subsequent day which
is not a Saturday, Sunday or legal holiday.
(l) Subscription Agreement. This Note is subject to the terms
contained in the Subscription Agreement and the registered Holder of this Note
is entitled to the benefits of such Subscription Agreement to the extent
provided therein.
(m) No Adverse Interpretation of Other Agreements. This Note
and the Subscription Agreement may not be used to interpret another note,
indenture, loan or debt agreement of the Company or a Subsidiary. Any such note,
indenture, loan or debt agreement may not be used to interpret this Note or the
Subscription Agreement.
IN WITNESS WHEREOF, this Note due 2002 No. __ has been executed and
delivered on the date first above written by the duly authorized representative
of the Company.
HYBRIDON, INC.
By:
------------------------------
Name:
Title:
SCHEDULE A
Name of Holder Address of Holder