THIRD Supplemental Indenture
THIRD SUPPLEMENTAL INDENTURE, dated as of August 24, 2021 (this “Third Supplemental Indenture”), by and among PROTALIX BIOTHERAPEUTICS, INC., a Delaware corporation (the “Company”), as issuer, the guarantors party hereto (the “Guarantors”), The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), Registrar, Paying Agent and Conversion Agent, and Wilmington Savings Fund Society, FSB, as the collateral agent (the “Collateral Agent”), under an Indenture, dated as of December 7, 2016, by and among the Company, each of the Guarantors party thereto, the Collateral Agent, and the Trustee (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated July 24, 2017 (the “First Supplemental Indenture”) and the Second Supplemental Indenture, dated November 27, 2017 (the “Second Supplemental Indenture”). All capitalized terms used in this Third Supplemental Indenture and not otherwise defined herein have the meanings given to such terms in the Base Indenture, as amended by the First Supplemental Indenture and the Second Supplemental Indenture (the “Existing Indenture”).
WHEREAS, on December 7, 2016, the Company duly authorized the creation of an issue of $62,686,000 aggregate principal amount of the Company’s 7.50% Senior Secured Convertible Notes due 2021 (the “Notes”) pursuant to the Base Indenture;
WHEREAS, on July 24, 2017, the Company entered into a note purchase agreement relating to the issuance and sale by the Company of Additional Notes in the aggregate principal amount of $10,000,000, and for that purpose, entered into the First Supplemental Indenture;
WHEREAS, on November 27, 2017, the Company entered into the Second Supplemental Indenture to amend Section 10.07 of the Base Indenture to require the Company to reserve, at all times out of its authorized but unissued shares, sufficient shares of common stock to satisfy conversions of the Notes at the initial conversion rate and to satisfy the Make-Whole Obligation assuming Physical Settlement;
WHEREAS, the Company and the Guarantors desire to amend the Existing Indenture to permit the issuance of new 7.50% Senior Secured Convertible Notes due 2024 (the “New Convertible Notes”) in an aggregate principal amount of up to $28,750,000 and related note guarantees with respect thereto, and to provide for certain other amendments to the Existing Indenture as set forth herein (the “Proposed Amendments”);
WHEREAS, Section 9.02 of the Existing Indenture provides that, with the written consent of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a repurchase of, or tender offer or exchange offer for, Notes), by Act of such Holders delivered to the Company, the Collateral Agent, the Trustee, the Company and the Guarantors (each when authorized by a Board Resolution), the Trustee and the Collateral Agent may amend or supplement (or waive compliance with any provision of) the Existing Indenture, the Notes or the Note Guarantees and the relevant parties to the Security Documents may amend (or waive compliance with any provision of) such Security Documents (subject to certain exceptions not applicable to this Third Supplemental Indenture); provided that, any amendment to, or waiver of, the provisions of the Existing Indenture, the Notes, the Note