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April 15, 2004
Hybridon, Inc.
345 Vassar Street
Cambridge, MA 02139
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Registration
Statement on Form S-3 (File No. 333-111903) (the "Registration Statement") filed
on January 14, 2004, by Hybridon, Inc., a Delaware corporation (the "Company"),
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration of the Company's:
1. common stock, $0.001 par value per share (the "Common Stock"); and
2. warrants to purchase Common Stock (the "Warrants");
all of which may be issued from time to time on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act, and a supplement to the
prospectus included in the Registration Statement, dated April 15, 2004 (the
"Prospectus Supplement"), relating to the issue and sale of up to 16,900,000
shares of Common Stock (the "Shares"), Warrants to purchase up to 3,042,000
shares of Common Stock (the "April Warrants") and the shares of Common Stock
issuable upon exercise of the April Warrants (the "Warrant Shares" and, together
with the Warrants and the Shares, the "Securities").
The Shares and April Warrants are to be sold to selected investors
pursuant to purchase agreements (the "Purchase Agreements"), in the form
attached as Exhibit B to the Placement Agency Agreement, by and among the
Company, Thomas Weisel Partners LLC, Rodman & Renshaw and Merriman Curham Ford &
Co., dated April 15, 2004, which has been filed as an exhibit to the Company's
Current Report on Form 8-K filed on the date hereof. The Warrant Shares are to
be sold from time to time upon exercise of the April Warrants, the form of which
has been filed as an exhibit to the Company's Current Report on Form 8-K filed
on the date hereof.
We are acting as counsel for the Company in connection with the filing of
the Registration Statement and the Prospectus Supplement and have examined the
Registration Statement including the exhibits thereto, the form of Purchase
Agreements and the form of April Warrants. We have also examined and relied upon
minutes of meetings of the Board of Directors of the Company and committees of
the Board of Directors of the Company, as provided to us by the Company, the
Restated Certificate of Incorporation and Amended and
BOSTON LONDON MUNICH NEW YORK OXFORD PRINCETON RESTON WALTHAM WASHINGTON
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Hale and Dorr LLP is a Massachusetts Limited Liability Partnership
Hybridon, Inc.
April 15, 2004
Page 2
Restated By-Laws of the Company, each as amended to date, and such other
documents, corporate records, instruments, laws and regulations as we have
deemed necessary for purposes of rendering the opinions hereinafter set forth.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal capacity of all signatories to such documents who are natural persons.
Insofar as this opinion relates to factual matters, we have assumed with your
permission and without independent investigation that the statements of the
Company contained in the Registration Statement are true and correct as to all
factual matters stated therein.
We assume that the appropriate action will be taken, prior to the offer
and sale of the Securities, to register and qualify the Securities for sale
under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the Commonwealth of Massachusetts, the General
Corporation Law of the State of Delaware and the federal laws of the United
States of America.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Shares have been duly authorized for issuance and, when the Shares
are issued and paid for in accordance with the terms and conditions of the
Purchase Agreements, the Shares will be validly issued, fully paid and
nonassessable.
2. The April Warrants have been duly authorized for issuance, and, when
the April Warrants are issued and paid for in accordance with the terms and
conditions of the Purchase Agreements and have been duly executed and delivered
by the Company, the Warrants will constitute valid and legally binding
obligations of the Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
3. The Warrant Shares have been duly authorized for issuance and, when
issued and paid for in accordance with the provisions of the April Warrants,
will be validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Securities while the Registration Statement is in
effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters. This opinion
is based upon currently existing statutes, rules, regulations and judicial
decisions, and we disclaim any obligation to advise you of any change in any of
these sources of law or subsequent legal or factual developments that might
affect any matters or opinions set forth herein.
Hybridon, Inc.
April 15, 2004
Page 3
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein and in the related Prospectus Supplement under the caption "Legal
Matters." In giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
Hale and Dorr LLP