Exhibit 2.1
THIS NOTE AND THE SHARES OF CAPITAL
STOCK ISSUED UPON ANY CONVERSION HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED BY ANY PERSON, INCLUDING A PLEDGEE,
UNLESS (1) EITHER (A) A REGISTRATION WITH RESPECT THERETO
SHALL BE EFFECTIVE UNDER THE SECURITIES ACT, OR (B) THE
COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT IS AVAILABLE, AND (2) THERE SHALL HAVE BEEN
COMPLIANCE WITH ALL APPLICABLE STATE SECURITIES OR “BLUE
SKY” LAWS.
SECURED CONVERTIBLE
NOTE
|
|
|
|
US$4,512,268
|
|
June 18, 2009
|
Subject to the terms and conditions
of this Note, for good and valuable consideration received, GTC
BIOTHERAPEUTICS, INC., a Massachusetts corporation (the “
Company ”), promises to pay to LFB BIOTECHNOLOGIES, a
société par actions simplifiée established
under the laws of France (the “ Holder ”), the
principal amount of four million five hundred twelve thousand two
hundred sixty-eight dollars (US$4,512,268), plus interest which
shall accrue at the rate of ten and eight tenths percent
(10.8%) per annum on the unpaid principal from the date of
this Note until January 1, 2012 (the “Maturity
Date”) or until the full amount of principal and accrued
interest under this Note is earlier paid, or until the full amount
of principal is converted, under the terms hereof. The Company
hereby acknowledges that a portion of this note in the principal
amount of $512,268 represents a portion of the Company’s
share of common program expenses for 2008 under that certain
Amended and Restated Joint Development and Commercialization
Agreement dated June 30, 2008, and has been funded to the
Company prior to the date hereof. The following is a statement of
the rights of the Holder and the terms and conditions to which this
Note is subject, and to which the Holder hereof, by the acceptance
of this Note, agrees:
1. Payment
1.1. Principal &
Interest . Interest on the unpaid principal balance of this
Note, from the date hereof through and including the dates of
payment, shall accrue at a fixed interest rate of ten and eighty
hundredths (10.8%) per annum. The Company shall pay to the
Holder, in lawful money of the United States, in accordance with
the amortization scheduled attached hereto as Annex I , as
follows: an installment of principal and interest in the amount of
$203,783.20, on October 1, 2009, to be followed by twenty-six
(26) consecutive monthly installments of principal and
interest commencing November 1, 2009 and continuing on the
first day of each month thereafter through and including
December 1, 2011, in the amount of $61,646.76, together with a
final installment in the amount of any and all remaining
outstanding principal and interest (i.e. $3,907,421.28), and all
other amounts outstanding, on January 1, 2012. If at any time
the principal balance of this Note shall be paid in full pursuant
to the terms hereof, then all accrued interest shall be payable at
the time of such principal payment. Notwithstanding anything herein
to the contrary, if the principal balance of this Note shall be
converted pursuant to Section 2 below on or before the
Shareholder Approval Deadline (as defined in that
certain
Securities Purchase Agreement dated as of the
date hereof by and between the Company and the Holder (as may
hereafter be amended, restated, supplemented or modified from time
to time, the “ Purchase Agreement ”)), no
interest shall be payable hereunder.
1.2. Payment . All payments
of principal and interest under this Note will be made by wire
transfer of immediately available funds in accordance with the wire
transfer instructions of Holder provided to the Company.
1.3. Prepayment. This Note
may not be prepaid without the written consent of the
Holder.
2. Automatic Conversion .
Following receipt Shareholder Approval (as defined in the Purchase
Agreement) on or before the Shareholder Approval Deadline, on the
First Closing Date (as defined in the Purchase Agreement), the
principal amount of this Note will automatically convert in
accordance with this Section 2 into shares of Series E-1 10%
Convertible Preferred Stock of the Company, par value $0.01 per
share (“ Series E-1 Preferred Stock ”), as
follows:
2.1. Conversion Price . On
the First Closing Date, the outstanding principal balance of this
Note will be automatically converted, in whole, into fully paid and
non-assessable shares of the Company’s Series E-1 Preferred
Stock, at a conversion price per share equal to the quotient
obtained by dividing (i) the outstanding principal balance of
this Note by (ii) $1,000.00, subject to adjustment as set
forth herein (the “ Conversion Price
”).
2.2. Mechanics of Conversion
. On the First Closing Date this Note shall be deemed to have been
converted and a certificate or certificates for shares of Series
E-1 Preferred Stock shall be deemed to have been issued, and the
Holder or any other person so designated to be named therein shall
be deemed to have become a holder of record of such shares for all
purposes as of the First Closing Date. Upon such conversion of this
Note in full, this Note shall no longer be deemed to be outstanding
and all rights with respect to this Note shall immediately cease
and terminate on such conversion date, except only the right of the
Holder to receive the shares of Series E-1 Preferred Stock to which
it is entitled as a result of the conversion.
2.3. Fractional Shares . No
fractional shares of Series E-1 Preferred Stock shall be issued
upon conversion of this Note. In lieu of any fractional shares to
which the Holder would otherwise be entitled, the total number of
shares issuable upon conversion shall be rounded up to the nearest
whole number, with such portion of the Series E-1 Purchase Amount
(as defined in the Purchase Agreement) as shall be necessary to
effect the purchase of such whole share to be deemed to have been
applied to such purchase.
2.4. Subdivision or Combination
of Series E-1 Preferred Stock . If the Company at any time
subdivides (by any stock split, stock dividend, recapitalization or
otherwise) its outstanding share
