Form of Exchange Agreement, dated as of August 12, 2021 among Protalix BioTherapeutics, Inc. and the Existing Holders
by and among
Protalix BioTherapeutics, Inc.
the Parties Signatory Hereto
Dated as of August 12, 2021
EXCHANGE AGREEMENT dated as of August 12, 2021 (this “Agreement”), by and among Protalix BioTherapeutics, Inc., a Delaware corporation (the “Company”), and the parties signatory hereto (each, a “Purchaser,” and collectively, the “Purchasers”).
As of the date hereof, each Purchaser owns and holds an aggregate principal amount of the Company’s 7.50% Senior Secured Convertible Notes due 2021 (the “Existing Notes”) shown opposite such Purchaser’s name under “Principal Amount of Existing Notes” on Schedule I hereto. The Existing Notes have the covenants and terms set forth in the indenture dated as of December 7, 2016, as supplemented by the First Supplemental Indenture, dated July 24, 2017, and the Second Supplemental Indenture, dated November 27, 2017 (the “Existing Indenture”), between the Company, the guarantors party thereto, The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) and Wilmington Savings Fund Society, FSB, as collateral agent (the “Collateral Agent”). All capitalized terms used herein that are not otherwise defined shall have the meanings ascribed to them in the Existing Indenture.
Each Purchaser desires to exchange with the Company (the “Exchange”) its Existing Notes for (a) the aggregate principal amount of newly issued 7.50% Senior Secured Convertible Notes due 2024 (the “Exchange Notes”) shown opposite such Purchaser’s name under “Principal Amount of Exchange Notes” on Schedule I hereto; (b) cash in the amount shown opposite such Purchaser’s name under “Cash Consideration” on Schedule I hereto (the “Cash Consideration”) and (c) cash in the amount of the accrued and unpaid interest on such Existing Notes through, but excluding, the Closing Date (as defined below) (the “Accrued Interest”), in a transaction exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the provisions of Section 3(a)(9) thereof.
Each of the Purchasers has irrevocably and unconditionally agreed to consent to the adoption of a third supplemental indenture, in form and substance reasonably acceptable to the Purchasers (the “Third Supplemental Indenture”) to amend the terms of the Existing Indenture to permit the issuance of the Exchange Notes, the incurrence of liens securing the Exchange Notes, the entry by the Company, the guarantors party thereto, the Trustee and the Collateral Agent into the indenture to be dated as of the Closing Date (as defined below) for the Exchange Notes (the “Exchange Notes Indenture”) and that the liens securing the Exchange Notes shall be pari passu with the Existing Notes and Existing Indenture (effective as of the execution of this Agreement).
In consideration of the mutual covenants and agreements contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Company and the Purchasers, severally but not jointly, hereby agree as follows:
Accrued Interest on the Existing Notes of such Purchaser, (the consideration referenced in the foregoing clauses (a) and (b), the “Exchange Consideration”), in exchange for the Existing Notes of such Purchaser having the aggregate principal amount set forth on Schedule I hereto opposite such Purchaser’s name, and each Purchaser, severally and not jointly, agrees to exchange all such Existing Notes for such Exchange Consideration.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, each Purchaser, as of the Closing Date, as follows:
corporate power and authority to own its properties and conduct its business as currently conducted. The Company’s subsidiaries, Protalix Ltd. and Protalix B.V. (the “Subsidiaries” and, together with the Company, the “Company Parties”), are duly organized and validly existing and in good standing under the laws of Israel and the Netherlands, respectively, and have the organizational power and authority to hold their respective properties and conduct their businesses as currently conducted. The Company does not have any “significant subsidiary” as defined in Rule 1-02 of Regulation S-X that is not listed above.
paid and nonassessable; the maximum number of shares of Common Stock initially issuable upon conversion of the Exchange Notes (including the maximum number of additional shares that may be issued in connection with a “Make-Whole Adjustment Event” assuming all conversions are settled solely in shares of Common Stock and the “Make-Whole Premium” assuming settlement solely in shares of Common Stock (the “Maximum Number of Shares”)) has been duly authorized and, when issued upon conversion of the Exchange Notes in accordance with the Exchange Notes Indenture, will be validly issued, fully paid and nonassessable; the Exchange Notes Indenture has been duly authorized and, assuming due authorization, execution and delivery thereof by the Trustee and the Collateral Agent, when executed and delivered by the Company, will constitute a legal, valid, binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity); the Board of Directors of the Company has duly and validly adopted resolutions reserving a number of shares of Common Stock for issuance upon conversion of the Exchange Notes equal to the Maximum Number of Shares; and such shares of Common Stock are not subject to any preemptive or similar right.
Property; and (g) there is no prior art of which the Company is aware that may render any U.S. patent held by the Company invalid or any U.S. patent application held by the Company unpatentable which has not been disclosed to the U.S. Patent and Trademark Office.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally but not jointly, represents and warrants to, and agrees with, the Company, as of the Closing Date, as follows:
clauses (b) and (c) that would not reasonably be expected to materially adversely impact the ability of such Purchaser to consummate the transactions contemplated hereby.
“Business Day” means any day other than a Saturday, a Sunday or any other day on which the Federal Reserve Bank of New York, Wilmington, Delaware or the place of payment is authorized or required by law or executive order to close or be closed.
“Person” or “person” shall mean an individual, corporation, association, partnership, trust, joint venture, business trust or unincorporated organization, or a government or any agency or political subdivision thereof.
Protalix BioTherapeutics, Inc.
2 University Plaza
Hackensack, NJ, 07601
Attention: Joseph Magnas, General Counsel.
Facsimile: 972-4 ###-###-####
with a copy to (which shall not constitute notice):
Mayer Brown LLP
1221 Avenue of the Americas
New York, New York 10020
Attention: Anna T. Pinedo
Facsimile: 1 ###-###-####
8BEN-E or other appropriate Form W-8 (or successor form), together with any other information necessary in order to establish an exemption from, or a reduced rate of, U.S. federal income tax withholding, and except to the extent that an exemption or reduction is properly established, all payments to be made by the Company in respect of the Exchange Notes shall be made net of deduction or withholding for or on account of taxes as required by applicable law. Each Purchaser shall promptly notify the Company if at any time such previously delivered IRS forms or information are no longer correct or valid.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
PROTALIX BIOTHERAPEUTICS, INC,
[Signature Page to Exchange Agreement]
Print or Type:
, as a Purchaser
Name of Purchaser
(Individual or Institution)
Jurisdiction of Purchaser’s Executive Offices
Name of Individual representing Purchaser
Title of Individual representing Purchaser
Individual representing Purchaser:
NOMINEE/CUSTODIAN (Name in which the Exchange Notes and, if applicable, Common Stock issued upon conversion of the Exchange Notes are to be registered if different than name of Purchaser):
Tax I.D. Number:
(If acquired in the name of a nominee/custodian, the taxpayer I.D. number of such nominee/custodian)
* * * Please note that if you are sub-allocating to multiple funds,
you must execute a signature page for each fund. ***
[Signature Page to Exchange Agreement]
Amounts of Existing Notes, Principal Amount of Exchange Notes, Amounts of Cash for
Accrued Interest, Cash Consideration
Principal Amount of Existing Notes
Principal Amount of Exchange Notes
FORM OF MAYER BROWN LLP OPINION AND FORM OF HORN & CO. OPINION
FORM OF OFFICERS’ CERTIFICATE
FORM OF SECRETARY’S CERTIFICATE
FORM OF UNDERTAKING