Tessera Defense & Homeland Security Inc. 10-Q

Item 5. Other Information Hercules Loan and Security Agreement On August 16 2021, or the Closing Date, we entered into the Hercules Loan Agreement, with Hercules Capital, Inc. as agent, or Hercules, the several banks and other financial institutions or entities from time to time parties to the Hercules Loan Agreement, or the Lenders, and BiomX Ltd. and RondinX Ltd., or the Guarantors. Amount . The Hercules Loan Agreement provides for a term loan or loans in an aggregate principal amount of up to $30.0 million, or the Term Loan. The Term Loan is subject to funding in three tranches, as follows: (a) on the Closing Date, a loan in the aggregate principal amount of $15.0 million, or the Tranche 1 Advance, (b) upon the occurrence of specified milestones and continuing through December 31, 2022, a loan in the aggregate principal amount of up to $10.0 million, or the Tranche 2 Advance, and (c) upon the occurrence of specified milestones and continuing through September 30, 2023, a loan in the aggregate principal amount of up to $5.0 million, or the Tranche 3 Advance. Guarantee. Our obligations under the Hercules Loan Agreement are guaranteed, jointly and severally by each of the Guarantors. The obligations of the Guarantors pursuant to the Hercules Loan Agreement are absolute and unconditional joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of our or any other Guarantor’s obligations pursuant to the Hercules Loan Agreement. Interest Rate, Fees . The outstanding principal of the Term Loan bears interest at a per annum rate of interest equal to the greater of either (i) the prime rate as reported in The Wall Street Journal plus 5.70%, and (ii) 8.95%, based on a year consisting of 360 days, with interest computed daily based on the actual number of days elapsed. The Term Loan Interest Rate will float and change on the day the prime rate changes from time to time. Interest is payable on a monthly basis on the first Business Day of each month. In addition, on the advance date for the Tranche 2 Advance, we are required to pay a facility charge equal to one half of one percent (0.5%) of the principal amount of the Tranche 2 Advance and on the advance date for the Tranche 3 Advance, we are required to pay a facility charge equal to one half of one percent (0.5%) of the principal amount of the Tranche 3 Advance. Use of Proceeds. We intend to use the proceeds of the Term Loan for working capital purposes and general corporate purposes. Maturity . The maturity date of the Term Loan is the first day of the month that begins 48 months after the Closing Date, or the Term Loan Maturity Date . However, if the Performance Milestone I is achieved, then the Term Loan Maturity Date shall be extended to the first day of the month that begins 54 months after the Closing Date and if the Performance Milestone II is achieved, then the Term Loan Maturity Date shall be extended to the first day of the month that begins 60 months after the Closing Date, provided, in each case, that if such day is not a business day, then the Term Loan Maturity Date shall be the immediately preceding business day. In addition, upon the Term Loan Maturity Date (or such earlier time that we elect to repay the Term Loan), we agreed to pay to Hercules a charge in the amount of 6.55% of the aggregate principal amount of the Term Loan Advances made pursuant to the Hercules Loan Agreement. Prepayment . We may, at our option, prepay all but not less than all, of amounts withdrawn under the Hercules Loan Agreement at any time, upon seven (7) Business Days’ written notice to Hercules by paying the entire principal balance, all accrued and unpaid interest thereon, together with a prepayment charge determined as follows: if the Term Loan is prepaid (i) in any of the first twelve (12) months following the Closing Date, 3.0%; (ii) after twelve (12) months but prior to twenty four (24) months, 2.0%; (iii) after twenty four (24) months but prior to thirty-six (36) months following the Closing Date, 1.0%, and (iv) thereafter, 0%. Security . Ours and the Guarantor’s obligations under the Hercules Loan Agreement are secured by a security interest, senior to any current and future debts and to any security interest, in all of ours and the Guarantors’ right, title, and interest in, to and under all of ours’ and the Guarantors’ personal property and other assets, other than intellectual property and other limited exceptions specified in the Hercules Loan Agreement. Covenants; Representations and Warranties; Other Provisions . The Hercules Loan Agreement contains customary representations, warranties and covenants, including covenants by us and the Guarantors limiting additional indebtedness, liens, including on intellectual property, guaranties, mergers and consolidations, substantial asset sales, investments and loans, certain corporate changes, transactions with affiliates and fundamental changes. Default Provisions . The Hercules Loan Agreement provides for events of default customary for term loans of this type, including but not limited to non-payment, breaches or defaults in the performance of covenants, material misrepresentations by us, insolvency, bankruptcy, occurrence of any default under any other agreement involving material indebtedness and the occurrence of a material adverse effect on ours or the Guarantors’ business. After the occurrence and continuance of an event of default, Hercules has the option to (i) accelerate payment of all obligations and terminate its (and any other lenders’) commitments under the Hercules Loan Agreement, (ii) sign and file our name any notices, assignment or agreements necessary to perfect or protect repayment, or (iii) notify any of ours or the Guarantors’ account debtors to make payment directly to Hercules. The foregoing description of the Hercules Loan Agreement does not purport to be complete and is qualified in its entirety by reference to the Hercules Loan Agreement filed as Exhibit 10.3 to this Quarterly Report. 11 Item 6. Exhibits No. Description of Exhibit 3.1 Composite Copy of Amended and Restated Certificate of Incorporation of the Company, effective on December 11, 2018, as amended to date. (Incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q filed by the registrant on August 13, 2020) 3.2 Amended and Restated Bylaws of the Company, effective as of October 28, 2019 (Incorporated by reference to Exhibit 3.3 to the Company’s Current Report on Form 8-K filed by the Company on November 1, 2019) 4.1 Form of Warrant. (Incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed by the Company on July 26, 2021) 10.1 Form of Securities Purchase Agreement, dated July 26, 2021. (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed by the Company on July 26, 2021) 10.2 Placement Agency Agreement, dated July 26, 2021, among the Company, Cantor Fitzgerald & Co. and Chardan Capital Markets, LLC (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed by the Company on July 26, 2021) 10.3* † Loan and Security Agreement dated August 16, 2021 by and among BiomX, Inc., BiomX Ltd., RondinX Ltd. and Hercules Capital, Inc. 31.1* Certification of Principal Executive Officer pursuant to Rule 13a-14 and Rule 15d-14(a) 31.2* Certification of Principal Financial Officer pursuant to Rule 13a-14 and Rule 15d-14(a) 32** Certification of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350 101.INS* Inline XBRL Instance Document. 101.SCH* Inline XBRL Taxonomy Extension Schema Document. 101.CAL* Inline XBRL Taxonomy Extension Calculation Linkbase Document. 101.DEF * Inline XBRL Taxonomy Extension Definition Linkbase Document. 101.LAB * Inline XBRL Taxonomy Extension Label Linkbase Document. 101.PRE * Inline XBRL Taxonomy Extension Presentation Linkbase Document. 104 Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101). * Filed herewith. ** Furnished herewith. † Portions of this exhibit (indicated by asterisks) have been omitted pursuant to Regulation S-K, Item 601(b)(10). Such omitted information is not material and would likely cause competitive harm to the registrant if publicly disclosed. Additionally, schedules and attachments to this exhibit have been omitted pursuant to Regulation S-K, Item 601(a)(5). 12 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. BIOMX INC. Date: August 16, 2021 By: /s/ Jonathan Solomon Name: Jonathan Solomon Title: Chief Executive Officer (Principal Executive Officer) Date: August 16, 2021 By: /s/ Marina Wolfson Name: Marina Wolfson Title: Senior Vice President of Finance and Operations (Principal Financial Officer and Principal Accounting Officer) 13