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EXHIBIT NO. 10.69
OFFER TO EXCHANGE SERIES B PREFERRED STOCK
OF HYBRIDON, INC. ("HYBRIDON")
FOR ANY AND ALL OUTSTANDING PRINCIPAL AMOUNT OF
8% NOTES DUE 2002 OF HYBRIDON
DATED MARCH 5, 2001
THIS OFFER TO EXCHANGE WILL EXPIRE AT 12:00 MIDNIGHT, BOSTON TIME, ON MARCH 16,
2001, UNLESS THE OFFER IS EXTENDED.
Hybridon, Inc., a Delaware corporation ("Hybridon"), invites the holders of its
8% Notes due 2002 (the "Notes") to tender their Notes in exchange (the
"Exchange") for 1 share of Series B Preferred Stock, par value $.01 per share,
of Hybridon ("Series B Preferred Stock"), for each $100 in principal amount of
the Notes tendered, upon the terms of this Offer to Exchange. This Offer to
Exchange constitutes the "Offer."
Hybridon will pay all accrued but unpaid interest on the Notes due through the
date of the Exchange by issuing additional Notes in an aggregate principal
amount equal to the amount of accrued but unpaid interest. Notes which will be
paid in respect of accrued interest will be deemed tendered for exchange by a
Noteholder participating in the Offer to Exchange, unless said Noteholder
indicates otherwise in Box One below. The Offer is open to all holders of Notes.
The shares of Hybridon's Common Stock (the "Common Stock") into which the Notes
are convertible have been registered by Hybridon in its Registration Statement
on Form S-1 (No. 333-69649) (the "Registration Statement"), which became
effective under the Securities Act of 1933, as amended, on February 8, 2001.
Upon an amendment to the Registration Statement, the shares of Common Stock into
which shares of the Series B Preferred Stock are convertible will be registered.
As part of the Exchange, the registration rights granted to the holders of the
Notes in Section 12 of the Subscription Agreement between Hybridon and the
holders of the Notes, dated as of December 13, 1999 (the "Subscription
Agreement"), shall survive, and shall be applied in full force and effect to the
shares of Common Stock issuable upon conversion of the Series B Preferred Stock.
The definition of "Registrable Securities" in Section 12.1(f) of the
Subscription Agreement, as it will apply to the shares of Common Stock issuable
upon conversion of the Series B Preferred Stock, will substitute "shares of
Series B Preferred Stock" for "Notes."
DELIVERY OF THE OFFER TO EXCHANGE TO AN ADDRESS OTHER THAN THAT OF THE
DEPOSITARY AS SET FORTH HEREIN WILL NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THIS ENTIRE OFFER TO EXCHANGE CAREFULLY. QUESTIONS AND REQUESTS FOR
ASSISTANCE SHOULD BE DIRECTED TO
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THE DEPOSITARY AT THE ADDRESS AND TELEPHONE NUMBER SET FORTH HEREIN. REQUESTS
FOR ADDITIONAL COPIES OF THE OFFER TO EXCHANGE SHOULD BE DIRECTED TO THE
DEPOSITARY AT THE ADDRESS AND PHONE NUMBER LISTED HEREIN.
ANY TENDER OF NOTES WHICH INVOLVES DENOMINATIONS OF LESS THAN $100 IN PRINCIPAL
AMOUNT THEREOF WILL BE EXCHANGED BY PAYMENT IN CASH OF AN AMOUNT EQUAL TO SAID
DENOMINATION.
Any holder of Notes (a "Noteholder") desiring to tender all or any portion of
the principal amount of such Notes should (i) sign this Offer to Exchange or a
facsimile thereof, and (ii) mail or deliver the signed Offer to Exchange to the
Depositary specified herein, along with either (A) the original Notes to the
Depositary, or, (B) for any Noteholder whose original Notes have been mutilated,
lost, stolen or destroyed, an affidavit of lost note, in substantially the same
form as Exhibit A attached hereto (the "Affidavit of Lost Note"), in lieu of
such Notes so mutilated, lost, stolen or destroyed, by the Expiration Date.
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF THIS
TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN
THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
INFORMATION REGARDING HYBRIDON
Current information regarding Hybridon can be obtained by reference to its
prospectus (the "Prospectus") contained within the Registration Statement.
Please note that the Prospectus contains financial information about Hybridon
not later than September 30, 2000. Audited financial statements for the year
ended December 31, 2000 are not yet available. A copy of the prospectus can be
obtained from Robert Andersen, Chief Financial Officer of Hybridon, or by
accessing EDGAR.
SUMMARY
This general summary is provided solely for the convenience of the Noteholders
and is qualified in its entirety by reference to the full text and more specific
details contained in this Offer to Exchange, and any amendments hereto.
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Hybridon.................... Hybridon, Inc., a Delaware corporation.
The Notes................... 8% Notes due 2002 of Hybridon.
Amount of Notes Sought...... All of the outstanding Notes.
Consideration............... The consideration being offered per $100 in
principal amount of the Notes tendered consists
of 1 share of Series B Preferred Stock of
Hybridon.
Conditions of Offer......... The Offer is not conditioned upon any minimum
of the principal amount of the Notes being
tendered.
Expiration Date............. March 16, 2001, at 12:00 Midnight, Boston time,
unless extended.
How to Tender Notes......... See "Procedure for Tendering Notes." For
further information, call the Depositary.
Purpose of Offer............ The Offer is part of the restructuring of
Hybridon's capital structure to reduce
Hybridon's debt service obligations.
Exchange Date............... As soon as practicable after the Expiration
Date, which is expected to be no later than
four business days after the Expiration Date.
Further Information......... Additional copies of this Offer to Exchange may
be obtained by contacting the Depositary at the
address and telephone number shown herein.
Effect of Exchange on Rights Although shares of the Series B Preferred
of Shareholders are prior in liquidation to
shares of Common Stock and Hybridon's Series A
Preferred Stock, those Noteholders who exchange
their Notes will be surrendering the security
interest in Hybridon's assets securing the
payment of their Notes. Under Hybridon's First
Amended and Restated Subordination and
Intercreditor Agreement dated June 29, 2000
(the "Intercreditor Agreement"), to the extent
that Noteholders accept this Offer to Exchange,
the benefit of said security interest will
inure largely to the lenders of a $6,000,000
loan which was otherwise junior.
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TERMS OF THE OFFER
Upon the terms described herein, Hybridon will exchange all Notes that are
validly tendered on or prior to the Expiration Date (as defined below) at the
rate of 1 share of Series B Preferred Stock for each $100 in principal amount of
the Notes tendered. Any tender of Notes which involves denominations of less
than $100 in principal amount thereof will be exchanged by payment in cash of an
amount equal to said denomination.
Hybridon will pay all accrued but unpaid interest on the Notes due through the
date of the Exchange by issuing additional Notes in an aggregate principal
amount equal to the amount of accrued but unpaid interest. Notes which will be
paid in respect of accrued interest will be deemed tendered for exchange by a
Noteholder participating in the Offer to Exchange, unless said Noteholder
indicates otherwise in Box One below.
CONSIDERATION BEING OFFERED
SERIES B PREFERRED STOCK
For a summary of the terms of the Series B Preferred Stock, and a comparison of
those terms with the terms of Hybridon's presently outstanding shares of Series
A Preferred Stock, see the summary attached hereto as Exhibit B. For a full
statement of the rights, preferences and privileges of the Series B Preferred
Stock, see Hybridon's Certificate of Designation for the Series B Preferred
Stock (the "Certificate") attached hereto as Exhibit C, which Hybridon will file
with the Delaware Secretary of State for purposes of amending its Certificate of
Incorporation and authorizing the issuance of the Series B Preferred Stock.
PROCEDURE FOR TENDERING NOTES
To validly tender the Notes pursuant to the Offer, the tendering Noteholder must
(i) sign this Offer to Exchange or a facsimile thereof, and (ii) mail or deliver
the signed Offer to Exchange to the Depositary (at its address set forth
herein), along with either (A) the original Notes to the Depositary, or (B) for
any Noteholder whose certificates for the Notes have been mutilated, lost,
stolen or destroyed, an Affidavit of Lost Note, in lieu of such Notes so
mutilated, lost, stolen or destroyed, on or prior to the Expiration Date.
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All questions as to the form of documents and the validity, eligibility
(including time of receipt) and acceptance for payment of any tender of Notes
will be determined by Hybridon, in its sole discretion, and its determination
shall be final and binding. Hybridon reserves the absolute right to reject any
or all tenders of Notes that (i) it determines are not in proper form, or (ii)
the acceptance for payments of or payment for which may, in the opinion of
Hybridon's counsel, be unlawful. Hybridon also reserves the absolute right to
waive any defect or irregularity in any tender of Notes. None of Hybridon, the
Depositary or any other person will be under any duty to give notice of any
defect or irregularity in tenders, nor shall any of them incur any liability for
failure to give any such notice.
ACCEPTANCE FOR EXCHANGE OF NOTES
Upon the terms of the Offer and as promptly as practicable after the Expiration
Date (which is expected to be within four (4) business days after the Expiration
Date), Hybridon will accept for exchange and exchange the Notes validly
tendered. Thereafter, exchange for all Notes validly tendered on or prior to the
Expiration Date and accepted for exchange pursuant to the Offer will be made by
the Depositary as promptly as practicable. In all cases, exchange pursuant to
the Offer will be made only after timely receipt by the Depositary of the
original Notes or an Affidavit of Lost Note, and a properly completed and duly
executed Offer to Exchange, or facsimile thereof. Notes not accepted for
exchange by Hybridon, or a replacement Note for the portion of the Notes not
tendered by the Noteholder or not accepted for exchange by Hybridon, will be
returned as promptly as practicable, without expense to the tendering
Noteholder.
EXTENSION
Prior to the Expiration Date, Hybridon may extend the period of time during
which the Offer is open or otherwise amend or modify the Offer and may terminate
the Offer for any reason. There can be no assurance, however, that Hybridon will
extend the Offer. During any such extension, all Notes previously tendered will
remain subject to the Offer.
REPRESENTATIONS AND WARRANTIES OF HYBRIDON
In connection with this Offer and the Exchange, Hybridon represents and warrants
as follows:
ORGANIZATION
Hybridon is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite power and
authority
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to own and lease its property and to carry on its business as presently
conducted. Hybridon is duly qualified to do business as a corporation in all
jurisdictions in which the failure to be so qualified would have an adverse
affect on the financial or any other business condition of Hybridon.
AUTHORIZATION OF SERIES B PREFERRED STOCK
The issuance of shares of Series B Preferred Stock in accordance with the Offer
has been, or will be on or prior to the Exchange Date, duly authorized by all
necessary corporate action on the part of Hybridon, and all such shares of
Series B Preferred Stock have been duly reserved for issuance.
AUTHORIZATION OF OFFER
The execution, delivery and performance by Hybridon of this Offer and of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of Hybridon. This Offer has been duly executed and delivered
by the Company and constitutes a valid and binding obligation of Hybridon,
enforceable in accordance with its respective terms.
CONSENTS AND APPROVALS
No authorization, consent, approval or other order of, or declaration to or
filing with, any governmental agency or body (other than filings required to be
made under applicable federal and state securities laws) is required for the
valid authorization, execution, delivery and performance by Hybridon of this
Offer or the issuance of the shares of Series B Preferred Stock.
SECURITIES LAWS
Based on the representations of the holders of the Notes set forth below, the
offer and issuance of the shares of Series B Preferred Stock will not be in
violation of the Securities Act of 1933, as amended (The "Securities Act").
REPRESENTATIONS AND WARRANTIES OF
THE HOLDERS OF THE NOTES
In connection with this Offer and the Exchange, as to himself, herself or
itself, the holders of the Notes represent and warrant as follows:
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INVESTMENT INTENT
Each Note holder recognizes that the Exchange involves a high degree of risk
including, but not limited to, the following: (i) Hybridon remains a development
stage business with limited operating history and requires substantial funds in
addition to any proceeds derived from the Exchange; (ii) an investment in
Hybridon is highly speculative, and only investors who can afford the loss of
their entire investment should consider investing in Hybridon, or the shares of
Series B Preferred Stock, or shares of Series B Preferred Stock-Underlying
Common Stock, (iii) such Note holder may not be able to liquidate his
investment; (iv) transferability of the Series B Preferred Stock is extremely
limited; and (v) in the event of a disposition of the Series B Preferred Stock
and the Series B Preferred Stock-Underlying Common Stock, such Note holder could
sustain the loss of his entire investment.
LACK OF LIQUIDITY
Each Note holder confirms that he or it is able (i) to bear the economic risk of
this investment, (ii) to hold the Series B Preferred Stock and any shares of
Series B Preferred Stock-Underlying Common Stock for an indefinite period of
time, and (iii) presently to afford a complete loss of his or its investment;
and represents that he or it has sufficient liquid assets so that the
illiquidity associated with this investment will not cause any undue financial
difficulties or affect such Note holder's ability to provide for his or its
current needs and possible financial contingencies, and that his or its
commitment to all speculative investments is reasonable in relation to his or
its net worth and annual income. Furthermore, each Note holder acknowledges that
the Series B Preferred Stock contains certain restrictions, as more particularly
set forth in the Certificate of Designation for the Series B Preferred Stock
attached hereto as Exhibit C.
KNOWLEDGE AND EXPERIENCE
Each Note holder hereby acknowledges and represents that such Note holder has
prior investment experience, including investment in securities that are
non-listed, unregistered and are not traded on the Nasdaq National or SmallCap
Market, nor on the National Association of Securities Dealers, Inc.'s (the
"NASD") automated quotation system, or such Note holder has employed at its own
expense the services of an investment advisor, attorney and/or accountant to
request documents from Hybridon and to read all of the documents furnished or
made available by Hybridon to such Note holder and to evaluate the investment,
tax and legal merits and the consequences and risks of such a transaction on
such Note holder's behalf, that such Note holder or such professional advisor
has such knowledge and experience in financial and business matters and that
such Note holder or such professional
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advisor is capable of evaluating the merits and risks of the prospective
investment and, if applicable, satisfies the conditions set out in Rule 501(h)
under the Securities Act.
NOTE HOLDER CAPACITY
Each Note holder hereby represents that such Note holder either by reason of
such Note holder's business or financial experience, or the business or
financial experience of such Note holder's professional advisors (who are
unaffiliated with, and who are not compensated by, Hybridon or any affiliate or
selling agent of Hybridon, directly or indirectly), has the capacity to protect
such Note holder's own interests in connection with the transaction contemplated
hereby.
REGISTRATION
Each Note holder hereby acknowledges that the Offer has not been reviewed by the
Securities and Exchange Commission or any state regulatory authority. No Note
holder shall sell or otherwise transfer the Series B Preferred Stock or any
Series B Preferred Stock-Underlying Common Stock unless such securities are
registered under the Securities Act or unless an exemption from such
registration is available.
LEGEND
Each Note holder consents to the placement of the legend set forth below on any
certificate or other document evidencing the shares of the Series B Preferred
Stock: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR APPLICABLE STATE SECURITIES LAWS.
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO THEIR
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.
POWER AND AUTHORITY
Each Note holder represents that such Note holder has full power and authority
(corporate, statutory and otherwise) to execute and deliver this Offer and to
exchange their Notes for shares of Series B Preferred Stock and any shares of
Series B Preferred Stock-Underlying Common Stock. This Agreement constitutes the
legal,
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valid and binding obligation of each Note holder, enforceable against such Note
holder in accordance with its terms.
ACCREDITED INVESTOR
Each Note holder represents that it is an "accredited investor" as such term is
defined in Rule 501 of Regulation D.
DEPOSITARY
The Depositary for this Offer to Exchange is:
Holland & Knight LLP
Attn: Sean B. Leonard, Esq.
10 St. James Avenue
Boston, MA 02116
Telephone: (617) 523-2700
Facsimile: (617) 523-6850
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SIGNATURE(S) MUST BE PROVIDED IN BOX TWO BELOW
[_] CHECK HERE IF TENDERED NOTES ARE ENCLOSED HEREWITH.
[_] CHECK HERE IF A CERTIFICATE OF LOST NOTE IS ENCLOSED HEREWITH.
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BOX ONE
- --------------------------------------------------------------------------------
LIST BELOW THE NOTES TO WHICH THIS OFFER TO EXCHANGE RELATE. IF THE SPACE
PROVIDED BELOW IS INADEQUATE, THE NOTE NUMBERS AND PRINCIPAL AMOUNTS SHOULD BE
LISTED ON A SEPARATE SIGNED SCHEDULE AFFIXED HERETO. NOTEHOLDERS WHO WISH TO
TENDER THEIR NOTES MUST COMPLETE THE TABLE BELOW AND COMPLETE AND SIGN IN BOX
TWO.
HYBRIDON WILL PAY ALL ACCRUED BUT UNPAID INTEREST ON THE NOTES DUE BY ISSUING
ADDITIONAL NOTES IN AN AGGREGATE PRINCIPAL AMOUNT EQUAL TO THE AMOUNT OF ACCRUED
BUT UNPAID INTEREST. NOTES WHICH WILL BE PAID IN RESPECT OF ACCRUED INTEREST
SHALL BE DEEMED TENDERED FOR EXCHANGE, UNLESS SPECIFIED TO THE CONTRARY BY
CHECKING THE BOX BELOW. CHECK THE BOX BELOW IF YOU DO NOT WANT NOTES WHICH WILL
BE PAID IN RESPECT OF ACCRUED INTEREST DEEMED TENDERED FOR EXCHANGE.
[_] CHECK HERE IF YOU DO NOT WANT NOTES WHICH WILL BE PAID IN RESPECT OF
ACCRUED INTEREST DEEMED TENDERED FOR EXCHANGE.
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DESCRIPTION OF NOTES
- --------------------------------------------------------------------------------
1 2 3 4
NAME(S) AND NOTE NUMBER(S) AGGREGATE PRINCIPAL
ADDRESS(ES) OF (ATTACH LIST IF PRINCIPAL AMOUNT
REGISTERED HOLDER(S) NECESSARY)* AMOUNT(S) TENDERED**
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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* NEED NOT BE COMPLETED BY NOTEHOLDERS TENDERING BY AFFIDAVIT OF LOST NOTE IF
NOTE NUMBER NOT AVAILABLE.
** UNLESS OTHERWISE INDICATED, THE NOTEHOLDER WILL BE DEEMED TO HAVE TENDERED
THE ENTIRE PRINCIPAL AMOUNT OF NOTES REPRESENTED BY TENDERED NOTES
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- --------------------------------------------------------------------------------
BOX TWO
- --------------------------------------------------------------------------------
ACCEPTANCE OF OFFER TO EXCHANGE
PLEASE SIGN HERE
TO BE COMPLETED BY ALL HOLDERS TENDERING NOTES
(WHETHER OR NOT NOTES ARE BEING PHYSICALLY TENDERED OR BEING
TENDERED BY AFFIDAVIT OF LOST NOTE)
I have read this Offer to Exchange, and hereby accept such Offer to Exchange,
and further agree to be bound by the foregoing.
- ----------------------------------------------------------------
Signature(s) of Registered Noteholder(s) or Authorized Signatory
- ----------------------------------------------------------------
Type or Print Name
Dated: , 2001
---------- --------
Area Code and Telephone No(s):
------------------------------------------------
Must be signed by the registered Noteholder(s) exactly as the name(s) appear(s)
on the certificate and by person(s) authorized to become registered
Noteholder(s) as evidenced by endorsements and documents.
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EXHIBIT A
AFFIDAVIT OF LOST NOTE
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AFFIDAVIT OF LOST NOTE
The undersigned (the "Noteholder"), a Noteholder of Hybridon, Inc. (the
"Company"), does hereby certify:
1. The Noteholder is the beneficial owner of that certain 8% Note due 2002
Number ___ of the Company (the "Note") dated December 13, 1999, and registered
in the name of the Noteholder, in the principal amount of $___________, and is
entitled to the full and exclusive possession of the Note;
2. The Noteholder has made an extensive search to locate the Note but it appears
to have been mutilated, lost, stolen or destroyed so that it cannot be found or
produced for exchange for shares of the Company's Series B Preferred Stock;
3. Neither the Note nor the rights of the Noteholder, therein, have in whole or
in part been assigned, transferred, pledged or otherwise hypothecated by the
Noteholder;
4. The Note was not endorsed;
5. The Noteholder hereby requests and this Affidavit of Lost Note is made for
the purpose of inducing the Company and its transfer agent (i) to refuse to
recognize any person other than the Noteholder as the owner of the Note, (ii) to
refuse to make any payment, transfer, registration, delivery or exchange in
connection with the Note to any other person other than the Noteholder, and
(iii) to refuse to take any other action pursuant to the request or demand of
any person other than the Noteholder with respect to the Note;
6. In consideration for the Company's acceptance of this Affidavit of Lost Note,
the Noteholder agrees to indemnify and hold the Company harmless against any
person, firm or entity now or hereafter acting as the Company's transfer agent,
or any successors and assigns of such person, firm, entity in such capacity,
from and against any and all claims, demands, liabilities, losses, damages and
expenses, including attorney's fees and costs of suits, incurred in connection
with or arising out of their compliance with this Affidavit of Lost Note, as set
forth therein;
7. If the original Note comes into the possession of the Noteholder, it will
promptly be delivered to the Company for cancellation.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Dated this day of , 2001.
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X
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[Signature of Noteholder]
Name:
---------------------------------------
Address:
------------------------------------
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Note Number:
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Principal Amount of Note:
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EXHIBIT B
SUMMARY OF SERIES B PREFERRED STOCK
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SERIES B CONVERTIBLE PREFERRED STOCK
ISSUED IN CONNECTION WITH THE EXCHANGE OF
8% NOTES DUE 2002
Set forth below is a summary of the principal terms of a Series B Convertible
Preferred Stock (the "Preferred B") of Hybridon, Inc. (the "Company"), to be
offered in exchange for the 8% Notes of the Company due 2002. The terms of the
Company's Series A Convertible Preferred Stock (the "Preferred A") are set forth
for comparison. Differences between the Preferred A and Preferred B are
highlighted in the Preferred B column. This general summary is provided solely
for the convenience of the Noteholders and is qualified in its entirety by
reference to the full text and more specific details contained in the
Certificate of Designation for the Preferred B.
Rights, Preferences, Privileges Preferred A Preferred B
- ------------------------------- ----------- -----------
(1) Dividend Provisions - dividends on semi-annual - dividends on semi-annual
basis at rate of 6.5% of basis at rate of 8% of
Dividend Base Amount Dividend Base Amount
($100 plus accrued but ($100 plus accrued but
unpaid dividends) unpaid dividends)
- payable in cash, or at
- payable in cash, or at Company's option, PIK
Company's option, PIK
- in preference to
- in preference to dividends paid on Common
dividends paid on Common AND PREFERRED A
- Preferred A valued at - Preferred B valued at
$100.00/share for $100.00/share for
calculating PIK calculating PIK
- payable if declared by - payable if declared by
Board Board
- NO DIVIDEND OR
DISTRIBUTION PAID TO
COMMON OR PREFERRED A
UNLESS PAID TO PREFERRED
B FIRST
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(2) Liquidation Preference - upon (i) liquidation, - upon (i) liquidation,
dissolution, or winding dissolution, or winding
up, (ii) sale of all or up, (ii) sale of all or
substantially all assets, substantially all assets,
or (iii) any merger or (iii) any merger
transaction, entitled to transaction, entitled to
receive Dividend Base receive Dividend Base
Amount prior to any Amount prior to any
distribution to Common distribution to Common OR
PREFERRED A
(3) Conversion - "Conversion Price" is - "Conversion Price" is
$4.25, subject to $.50, subject to
adjustment in Section 4 adjustment in Section 4
- "Conversion Rate" - "Conversion Rate"
determined by dividing determined by dividing
then-existing Conversion then-existing Conversion
Price into Dividend Base Price into Dividend Base
Amount Amount
(4) Antidilution Conversion Price subject to Conversion Price subject to
proportional adjustment if proportional adjustment if
Company: Company:
- pays dividend or makes - pays dividend or makes
distribution on any class distribution on any class
of capital stock in of capital stock in
shares of Common; shares of Common;
- subdivides outstanding - subdivides outstanding
Common into greater Common into greater
number of shares; number of shares;
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- combines outstanding - combines outstanding
Common into smaller Common into smaller
number of shares; number of shares;
- issues shares of a series - issues shares of a series
or class of capital stock or class of capital stock
to any holder of Common, to any holder of Common,
Preferred A or Preferred Preferred A or Preferred
B or rights to acquire B or rights to acquire
shares of a series or shares of a series or
class of capital stock at class of capital stock at
price per share less than price per share less than
market price; market price;
- pays or distributes to - pays or distributes to
the holders of a series the holders of a series
or class of capital stock or class of capital stock
assets, properties, or assets, properties, or
rights to acquire rights to acquire
Company's capital stock Company's capital stock
at price per share less at price per share less
than market price; than market price;
- or makes distribution - or makes distribution
consisting solely of cash consisting solely of cash
to holders of any class to holders of any class
of capital stock where, of capital stock where,
during specified 12 month during specified 12 month
period, cash distribution period, cash distribution
exceeds 10% of product of exceeds 10% of product of
market price of Common market price of Common
multiplied by total multiplied by total
outstanding shares of outstanding shares of
Common Common
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(5) Mandatory Conversion - converted into shares of - CONVERTED INTO SHARES OF
Common using Conversion COMMON IF ALL OF
Price of $4.00 if closing PREFERRED A IS CONVERTED,
bid price of Common USING A CONVERSION PRICE
equals or exceeds 250% of OF $.50
Conversion Price for at
least 20 trading days in
any period of 30
consecutive trading days
(6) Redemption - at Company's option, - at Company's option,
redeemable for cash equal redeemable for cash equal
to the Dividend Base to the Dividend Base
Amount if closing bid Amount if closing bid
price of Common equals or price of Common equals or
exceeds 250% of exceeds 250% of
Conversion Price of Conversion Price of
Preferred A for at least Preferred A for at least
20 trading days in any 20 trading days in any
period of 30 consecutive period of 30 consecutive
trading days trading days
(7) Voting Rights Company needs 50% vote of all Company needs 50% vote of all
outstanding Preferred A to: outstanding PREFERRED B to:
- amend, alter or repeal - amend, alter or repeal
any provision of any provision of
Certificate of Certificate of
Incorporation or Bylaws Incorporation or Bylaws
adversely affecting adversely affecting
relative rights, relative rights,
preferences, preferences,
qualifications, qualifications,
limitations or limitations or
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restrictions of Preferred restrictions of PREFERRED
A (issuance of securities B;
ranking prior to, or pari
passu with Preferred A - ISSUE SECURITIES RANKING
upon Liquidation Event or PRIOR TO, OR PARI PASSU
with respect to payment WITH PREFERRED B UPON
of dividends does not LIQUIDATION EVENT OR WITH
adversely affect such); RESPECT TO PAYMENT OF
or DIVIDENDS; OR
- authorize or issue, or - authorize or issue, or
increase authorized amount increase authorized
of, Preferred A, other than amount of, PREFERRED B,
Preferred A issuable as other than PREFERRED B
dividends on Preferred A or ISSUABLE AS DIVIDENDS ON
in exchange for 9% Notes PREFERRED B OR IN
EXCHANGE FOR 8% NOTES
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EXHIBIT C
CERTIFICATE OF DESIGNATION FOR
SERIES B PREFERRED STOCK OF HYBRIDON