Exhibit 10.3


 


Execution Version


 


EXCHANGE AGREEMENT


 


This Exchange Agreement
(this “Agreement”) is dated July 20, 2020 (the “Effective Date”), by and among each of the
undersigned individuals or entities (the “Undersigned Entities” and each an “Undersigned Entity”),
for itself and on behalf of the beneficial owners listed on Exhibit A hereto (“Accounts”) for whom
such Undersigned Entity holds contractual and investment authority (each Account, as well as such Undersigned Entity if it is exchanging
Old Notes (as defined below) hereunder, a “Holder”), Teligent, Inc., a Delaware corporation, (the “Company”),
and the entities listed on the signature pages hereof as the initial “Subsidiary Guarantors” (the “Subsidiary
Guarantors”).


 


WHEREAS, the Company
is proposing to exchange (the “Exchange”) the Company’s (i) 7.0% Cash / 8.0% PIK Series B Senior Unsecured
Convertible Notes due 2023 (CUSIP 87960W AC8) held by the Holders listed on Exhibit A hereto (the “Unrestricted Old Notes”)
for a new issuance of the Company’s 9.5% Series C Senior Secured Convertible Notes due 2023 (CUSIP 87960W AG9) (the “Unrestricted
New Notes”) and (ii) 7.0% Cash / 8.0% PIK Series B Senior Unsecured Convertible Notes due 2023 (CUSIP 87960W AB0) held
by the Holders listed on Exhibit A hereto (the “Restricted Old Notes” and, together with the Unrestricted Old
Notes, the “Old Notes”) for a new issuance of the Company’s 9.5% Series C Senior Secured Convertible Notes
due 2023 (CUSIP 87960W AD6) (the “Restricted New Notes” and, together with the Unrestricted New Notes, the “New
Notes”), in each case, to be issued pursuant to the provisions of that certain Indenture, dated as of the date of this
Agreement (the “Indenture”), by and among the Company, the Subsidiary Guarantors and Wilmington Trust, National
Association as trustee (together with its successors and assigns, in such capacity, the “Trustee”) and collateral
agent (together with its successors and assigns, in such capacity, the “Collateral Agent”), upon the terms and
conditions set forth herein and the other Exchange Documents (defined below).


 


WHEREAS
each of the Undersigned Entities understands that the Exchange is being made without registration under the Securities Act of 1933,
as amended (the “Securities Act”), or any securities laws of any state of the United States or of any other
jurisdiction, and that the Exchange is only being offered to “qualified institutional buyers” (as defined in Rule 144A
under the Securities Act) in reliance upon a private placement exemption from registration under the Securities Act. The New Notes
will be issued pursuant to the Indenture (as defined herein).


 


NOW THEREFORE, on,
and subject to, the terms and conditions set forth in this Agreement, the parties hereto agree as follows:


 


Article I: Terms of the Exchange


 


Pursuant to the terms
hereof, each of the Undersigned Entities hereby agrees to cause the Holders to exchange and deliver an aggregate principal amount
of Old Notes, and in exchange therefor, the Company shall issue to the Holders an aggregate principal amount of New Notes, in each
case, as set forth on Exhibit A hereto.


 


The closing for the
Exchange (the “Closing”) shall occur substantially concurrently with, and subject to, the closing of the Company’s
issuance and sale of the New Notes and on a date (the “Closing Date”) no later than two Trading Days after the
date of this Agreement. At the Closing, (a) each of the Undersigned Entities shall cause each of its Holders to deliver to the
Company all right, title and interest in and to such Holder’s Old Notes, as set forth on Exhibit A hereto (and no
other consideration), free and clear of any mortgage, lien (statutory or otherwise), pledge, charge, security interest, encumbrance,
title retention agreement or other title retention device, conditional sale or security arrangement, collateral assignment, option,
right of first refusal, equity or other adverse claim thereto or other similar encumbrance thereon (collectively, “Liens”),
together with any documents of conveyance or transfer that the Company may deem necessary or desirable to assign, transfer to and
confirm in the Company all right, title and interest in and to such Old Notes free and clear of any Liens, and (b) the Company
shall deliver or cause to be delivered to each Holder, subject to the terms and conditions
of this Agreement, New Notes having an aggregate principal amount set forth on Exhibit A, which shall be equal to ninety
percent (90%) of the aggregate principal amount of the Old Notes plus any accrued and unpaid interest on the Old Notes as of the
Closing Date, and the Company hereby agrees to issue such New Notes to such Undersigned Entity in exchange for such Old Notes.



 








     


     


    

 


For the avoidance of
doubt, in the event of any delay in the Closing pursuant to the immediately preceding paragraph, the Holders shall not be required
to deliver the Old Notes until the Closing occurs. Simultaneously with or after the Closing, the Company may, in its sole discretion,
issue the New Notes to one or more other holders of outstanding Old Notes or to other investors. The delivery of the Unrestricted
New Notes and the issuance thereof shall be effected by delivery of a Physical Note (as defined in the Indenture) to each Holder
at the address set forth on Exhibit A hereto. The delivery of the Restricted New Notes and the issuance thereof shall be
effected via DWAC (or other book-entry procedures) pursuant to the instructions to be provided by the Company (in the case of the
Restricted Old Notes) and by the Holder (in the case of the Restricted New Notes) upon the execution of this Agreement. The Company
and the Holder shall provide such respective instructions to its respective Undersigned Entity necessary for settlement of the
Exchange. In the event the Closing does not occur, any Restricted Old Notes submitted for DWAC withdrawal will be returned to the
DTC participant that submitted the withdrawal instruction for such Restricted Old Notes in accordance with the procedures of DTC,
and any Unrestricted Old Notes delivered to the Trustee will be returned to the Holder by the Trustee by nationally recognized
overnight courier to the address set forth on Exhibit A hereto. Each Undersigned Entity
acknowledges that all New Notes will be issued in minimum denominations of $100,000 principal amount and integral multiples of
$1.00 thereafter in accordance with the Indenture. The Restricted New Notes shall bear an appropriate restrictive legend referring
to the fact that such Restricted New Notes were issued in reliance upon the exemption from registration under the Securities Act
provided by Section 4(a)(2) thereof and are eligible for resale pursuant to Rule 144A.


 


For purposes hereof:


 


“Business
Day” means any day other than a day on which federal or state banking institutions in the Borough of Manhattan, the City
of New York are authorized or obligated by law, executive order or regulation to close.


 


“Exchange
Documents” means this Agreement, the Indenture (including the Guarantees (as defined in the Indenture) contained therein),
the Security Agreements (as defined in the Indenture) and the New Notes.


 


“Trading Day”
means any day during which trading on the Nasdaq Stock Market generally occurs.


 


Article II: Covenants, Representations
and Warranties of the Undersigned Entities and the Holders


 


Each Undersigned Entity,
for itself and on behalf of each of its Holders, hereby covenants as follows, and makes the following covenants, representations
and warranties, for itself and on behalf of each of its Holders, each of which is true and correct in all respects as of the date
hereof and shall be true and correct in all material respects (except to the extent any such covenant, representation or warranty
is qualified by materiality or reference to Material Adverse Effect, in which case, such representation or warranty shall be true
and correct in all respects) at the Closing, to the Company, and all such covenants, representations and warranties shall survive
the Closing indefinitely.


 








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Section 2.1    Power
and Authorization. The Undersigned Entity and each of its Holders is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation. The Undersigned Entity has the power, authority and capacity to execute
and deliver this Agreement for itself and on behalf of the Holders, to perform its obligations hereunder, and to consummate the
Exchange contemplated hereby. If the Undersigned Entity is executing this Agreement on behalf of Accounts, (a) the Undersigned
Entity has all requisite discretionary and contractual authority to enter into this Agreement on behalf of, and bind, each Account,
and (b) Exhibit A hereto is a true, correct and complete list of (i) the name of each Account, (ii) the
principal amount of such Account’s Old Notes, and (iii) the principal amount of New Notes to be issued to such Account in
respect of such Account’s Old Notes.


 


Section 2.2    Valid
and Enforceable Agreement; No Violations. This Agreement has been duly executed and delivered by the Undersigned Entity
and constitutes a legal, valid and binding obligation of each of the Undersigned Entity and each of its Holders, enforceable against
each of the Undersigned Entity and each of its Holders in accordance with its terms, except that such enforcement may be subject
to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating
to enforcement of creditors’ rights generally, and (b) general principles of equity, whether such enforceability is
considered in a proceeding at law or in equity (the “Enforceability Exceptions”). This Agreement and consummation
of the Exchange will not violate, conflict with or result in a breach of or default under (i) the Undersigned Entity’s
or any of its other Holders organizational documents, (ii) any agreement or instrument to which the Undersigned Entity or
any of its other Holders is a party or by which the Undersigned Entity or any of its other Holders or any of their respective assets
are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Undersigned
Entity or any other Holders.


 


Section 2.3    Title
to the Old Notes. Each Holder is the sole legal and beneficial owner of the Old Notes set forth opposite its name
on Exhibit A hereto (or, if there are no Accounts, the Undersigned Entity is the sole legal and beneficial
owner of all of the Old Notes) and, at the Closing, will be the sole legal and beneficial owner of the Old Notes set forth opposite
its name on Exhibit A hereto (or, if there are no Accounts, the Undersigned Entity will be the sole legal and beneficial owner
of the Old Notes). The Holder has good, valid and marketable title to its Old Notes, free and clear of any Liens. The Holder has
not, in whole or in part, except as described in the immediately preceding sentence, (a) assigned, transferred, hypothecated,
pledged, exchanged or otherwise disposed of any of its Old Notes or any of its rights, title to or interest in its Old Notes (other
than to the Company pursuant hereto), or (b) given any person or entity any transfer order, power of attorney or other authority
of any nature whatsoever with respect to its Old Notes. Upon the Holder’s delivery of its Old Notes to the Company pursuant
to the Exchange, such Old Notes shall be free and clear of all Liens.


 


Section 2.4    Qualified
Institutional Buyer. The Holder is a “qualified institutional buyer” within the meaning of Rule 144A promulgated
under the Securities Act.


 


Section 2.5    No
Affiliate Status; Holding Period. The Holder is not, and has not been during the consecutive three month period preceding
the date hereof, a director, officer or “affiliate” within the meaning of Rule 144 promulgated under the Securities
Act (an “Affiliate”) of the Company. To its knowledge, the Holder did not acquire any of the Old Notes, directly
or indirectly, from an Affiliate of the Company. The Holder represents and warrants that, for purposes of Rule 144 of the
Securities Act, the Holder has continuously held the Old Notes since October 31, 2019.


 






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Section
2.6    No Illegal Transactions. Each Undersigned Entity and each of its Holders has not, directly
or indirectly, and no person or entity acting on behalf of or pursuant to any understanding with either the Undersigned Entity
or such Holder has, disclosed to a third party (other than to its legal and other representatives) any information regarding the
Exchange or engaged in any transactions in the securities of the Company (including, without limitation, any Short Sales (as defined
below) involving any of the Company’s securities) since the time that the Undersigned Entity was first contacted by either
the Company or any other person or entity regarding the Exchange, the issuance of the New Notes, this Agreement, any other transactions
contemplated hereby or an investment in the Common Stock or other equity securities of the Company. Each Undersigned Entity and
each Holder covenants that neither it nor any person or entity acting on its behalf or pursuant to any understanding, agreement
or other arrangement with it will disclose to a third party any information regarding the Exchange, the issuance of the New Notes,
this Agreement, any other transactions contemplated hereby or engage, directly or indirectly, in any transactions in the securities
of the Company (including Short Sales) prior to 9:00 a.m. (prevailing Eastern time) on July 21, 2020. “Short Sales”
means all “short sales” as defined in Rule 200 of Regulation SHO promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange Act”). Solely for purposes of this Section 2.6, subject to the Undersigned
Entity’s and each Holder’s compliance with their respective obligations under the U.S. federal securities laws and
the Undersigned Entity’s and the Holder’s respective internal policies, (a) “Undersigned Entity” and “Holder”
shall not be deemed to include any employees, subsidiaries, desks, groups or Affiliates of the Undersigned Entity or the applicable
Holder that are effectively walled off by appropriate “Fire Wall” information barriers approved by the Undersigned
Entity’s or such Holder’s respective legal or compliance department (and thus such walled off parties have not been
privy to any information concerning the Exchange), and (b) the foregoing representations, warranties and covenants of this Section
2.6 shall not apply to any transaction by or on behalf of an Account that was effected without the advice or participation of,
or such Account’s receipt of information regarding the Exchange provided by, the Undersigned Entity or the applicable Holder.


 


Section 2.7    Adequate
Information; No Reliance. The Holder acknowledges and agrees that (a) the Holder has been furnished with all materials
it considers relevant to making an investment decision to enter into the Exchange and to consummate the other transactions contemplated
hereby and has had the opportunity to review the Company’s filings and submissions with the Securities and Exchange Commission
(the “SEC”), including, without limitation, all information filed or furnished pursuant to the Exchange Act,
(b) the Holder has had a full opportunity to ask questions of and receive answers from the officers of the Company concerning
the Company, their business, operations, financial performance, financial condition and prospects, and the terms and conditions
of the Exchange, (c) the Holder, together with its professional advisers, is a sophisticated and experienced investor and is capable
of evaluating, to its satisfaction, the accounting, tax, financial, legal and other risks associated with the Exchange, and that
such Holder has had the opportunity to consult with its accounting, tax, financial and legal advisors to be able to evaluate the
risks involved in the Exchange and to make an informed investment decision with respect to such Exchange, and that such Holder
is capable of sustaining any loss resulting therefrom without material injury, (d) no statement or written material contrary to
this Agreement has been made or given to the Holder by or on behalf of the Company, any of its officers, directors or employees,
or any of their respective affiliates or representatives, (e) the terms of the Exchange are the result of bilateral negotiations
among the parties and (f) the Holder is able to fend for itself in the Exchange, has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of the prospective Exchange of the Old Notes and the investment
in the New Notes and has the ability to bear the economic risks of its investment and can afford the complete loss of such investment.


 






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The Holder specifically
understands and acknowledges that, on the date of this Agreement and on the Closing Date, the Company may have in its possession
non-public information that could be material to the market price of the Old Notes, the New Notes and the Company’s Common
Stock into which such Old Notes and New Notes are convertible. The Holder hereby represents and warrants that, in entering into
this Agreement and consummating the transactions contemplated hereby (including, without limitation, the Exchange), it does not
require the disclosure of such non-public information to it by the Company in order to consummate the Exchange and make an investment
in the New Notes, and hereby waives any and all present or future claims against the Company, any of its officers, directors or
employees, or any of their respective affiliates or representatives arising out of or relating to the Company’s failure to
disclose any such non-public information to the Holder.


 


Section 2.8    Tax
Consequences of the Exchange. The Holder understands that the tax consequences of the Exchange will depend in part
on its own tax circumstances. The Holder acknowledges that it must consult its own tax adviser about the federal, foreign, state
and local tax consequences peculiar to its circumstances.


 


Section 2.9    Tax
Reporting. On or prior to the Closing Date, the Undersigned Entity shall deliver to the Company completed IRS Forms
W-9 or W-8, as applicable, with regards to each Holder. The Company and its agents shall be entitled to deduct and withhold from
any consideration payable pursuant to this Agreement such amounts as may be required to be deducted or withheld under applicable
law unless such Form W-9 or W-8 provided pursuant to the immediately preceding sentence establishes that such Holder is entitled
to an exemption from (or reduction in the rate of) withholding. To the extent any such amounts are withheld and remitted to the
appropriate taxing authority, such amounts shall be treated for all purposes as having been paid to the Holder to whom such amounts
would have been paid.


 


Section 2.10    Acknowledgment
of the Concurrent Offering. The Holder understands and acknowledges that concurrently with the Exchange, the Company
is (a) issuing and selling the Company’s 9.5% Series C Senior Secured Convertible Notes due 2023 (the “Series C
Convertible Notes”) to certain other purchasers pursuant to that certain Note Purchase Agreement dated as of the date
hereof (the “Note Purchase Agreement” and, such sales thereunder, the “Concurrent Sale”),
and (b) exchanging a portion of the Company’s outstanding 4.75% Convertible Senior Notes due 2023 for additional Series C
Convertible Notes pursuant to the terms of that certain Series A Exchange Agreement among the Company and the holders identified
therein (the “Series A Exchange” and, together with the Concurrent Sale, the “Concurrent Offering”).


 


Section 2.11   Shareholder
Approval. The Holder understands and acknowledges that the issuance of a number of shares of Common Stock that is
the greater of (a) 19.99% of the number of shares of Common Stock outstanding upon the conversion of the New Notes and/or upon
payment of PIK interest thereon and (b) the number of shares of Common Stock then held by the largest holder of Common Stock requires
shareholder approval.


 


Article III: Covenants, Representations
and Warranties of the Company and the Subsidiary Guarantors


 


The Company and each
Subsidiary Guarantor, jointly and severally, hereby covenant as follows, and makes the following covenants, representations and
warranties, each of which is true and correct in all respects as of the date hereof and shall be true and correct in all material
respects (except to the extent any such covenant, representation or warranty is qualified by materiality or reference to Material
Adverse Effect, in which case, such representation or warranty shall be true and correct in all respects) at the Closing, to each
Undersigned Entity and the Holders, and all such covenants, representations and warranties shall survive the Closing indefinitely.


 






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Section 3.1    Power
and Authorization. The Company and each Subsidiary Guarantor has been duly incorporated or formed, as applicable,
and is validly existing as a corporation, limited partnership or limited liability company, as applicable, in good standing under
the laws of the jurisdiction of its incorporation or formation, as applicable, and has the requisite corporate, limited partnership
or limited liability company, as applicable, power, authority and capacity to execute and deliver this Agreement and the applicable
Exchange Documents, to perform its obligations hereunder and thereunder, and to consummate the Exchange contemplated hereby. No
material consent, approval, order or authorization of, or material registration, declaration or filing with any governmental agency
or body or any court, domestic or foreign, having jurisdiction over the Company, the Subsidiary Guarantors or any of their Subsidiaries
(each, a “Governmental Entity”) is required on the part of the Company or the Subsidiary Guarantors in connection
with the execution, delivery and performance by it of this Agreement and the applicable Exchange Documents, and the consummation
by the Company of the Exchange, except as may be required under any state or federal securities laws or the rules of any national
securities exchange on which the Company’s shares of common stock are traded.


 


Section 3.2    Valid
and Enforceable Agreement; No Violations. This Agreement has been duly executed and delivered by the Company and each
Subsidiary Guarantor and constitutes a legal, valid and binding obligation of the Company and each Subsidiary Guarantor, enforceable
against it in accordance with its terms, except that such enforcement may be subject to the Enforceability Exceptions. The execution
of this Agreement and each other Exchange Document, and consummation of the Exchange, will not violate, conflict with or result
in a breach of or default under (a) the charter, bylaws or other organizational documents of the Company and each Subsidiary
Guarantor, (b) except with respect to any consents required under the Senior Credit Facilities (as defined below), any agreement
or instrument to which the Company or any Subsidiary Guarantor is a party or by which the Company or any Subsidiary Guarantor (or
any of their assets) are bound, or (c) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable
to the Company or any Subsidiary Guarantor, except for such violations, conflicts or breaches under clauses (b) and (c) above that
would not, individually or in the aggregate, have a Material Adverse Effect (defined below). For purposes of this Section 3.2,
 “Exchange Documents” shall include the Commitment Letter dated July 9, 2020, by and between the Company and certain
holders of the Series B Convertible Notes (including Annex A thereto, the “Commitment Letter”).


 


For purposes hereof:


 


“Material
Adverse Effect” means any event, occurrence, fact, condition or change, that, individually or in the aggregate, results,
or would reasonably be likely to result, in a material adverse effect on the condition (financial or otherwise) or in the earnings,
prospects, business, properties, surplus or results of operations of the Company and its Subsidiaries (as defined herein), taken
as a whole; provided, however, that any event, occurrence, fact, condition or change arising out of or attributable
to, directly or indirectly: (i) general economic or political conditions; (ii) conditions generally affecting the pharmaceuticals
industry in the US and Canada; (iii) changes in financial or securities markets in general; (iv) acts of war (whether or not declared),
armed hostilities or terrorism, or the escalation or worsening thereof; or (v) changes in applicable laws or accounting rules,
including U.S. generally accepted accounting principles (“GAAP”), in each case, shall not be deemed, either
alone or in combination, to constitute a Material Adverse Effect; provided, further, that, notwithstanding the immediately
preceding proviso, any event, occurrence, fact, condition or change referred to in clauses (i) through (iii) and (v) immediately
above shall only be taken into account in determining whether a Material Adverse Effect has occurred or would reasonably be likely
to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on the Company and
its Subsidiaries, taken as a whole, compared to other entities whose primary business is in the pharmaceuticals industry in the
U.S. and Canada.


 






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“Senior Credit
Facilities” means the credit facilities under (i) that certain First Lien Revolving Credit Agreement, dated as of December
13, 2018, by and among the Company, the subsidiaries of the Company from time to time party thereto as guarantors, the lenders
from time to time party thereto and ACF FINCO I LP, as administrative agent and collateral agent, and (ii) that certain Second
Lien Credit Agreement, dated as of December 13, 2018, by and among the Company, the subsidiaries of the Company from time to time
party thereto as guarantors, the lenders from time to time party thereto and Ares Capital Corporation, as administrative agent
and collateral agent.


 


Section 3.3    Authorization
of the New Notes. The New Notes to be issued by the Company to the Holders under this Agreement will be in the form contemplated
by the Indenture, have been duly authorized by the Company for issuance pursuant to this Agreement and the Indenture, when issued
will have been duly executed by the Company in accordance with the terms of the Indenture and, when authenticated in the manner
provided for in the Indenture and delivered and paid for in accordance with the terms of the Exchange, will be validly issued and
delivered and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms, except as such enforceability may be limited by the Enforceability Exceptions. Upon the Company’s delivery of
the New Notes to the Holder (or any Undersigned Entity) pursuant to the Exchange, such New Notes will be entitled to the benefits
of the Indenture and shall be free and clear of all Liens created by the Company (other than any Permitted Lien (as defined in
the Indenture)).


 


Section 3.4    Indenture.
The Indenture (including the Guarantees) has been duly and validly authorized by the Company and each Subsidiary Guarantor and,
on the Closing Date, will be duly executed and delivered by the Company and each of the Subsidiary Guarantors, and assuming due
authorization, execution and delivery by the Trustee, will constitute the valid and binding agreement of the Company and each Subsidiary
Guarantor, enforceable against the Company and each Subsidiary Guarantor in accordance with its terms, except as such enforceability
may be limited by the Enforceability Exceptions.


 


Section
3.5   Exemption from Registration. Assuming the accuracy of the representations and warranties
of the Holders and each other Holder executing an Exchange Agreement, (a) the issuance of the New Notes in connection with the
Exchange pursuant to this Exchange Agreement is exempt from the registration requirements of the Securities Act; (b) the New
Notes issued to the Holder and/or the Undersigned Entity (1) will be issued in compliance with all applicable state and federal
laws concerning the issuance of the New Notes and (2) will be issued to the Holders without any transfer restrictions and
will be part of an unrestricted CUSIP and issued through the facilities of DTC; and (c) the Indenture is not required to be qualified
under the Trust Indenture Act of 1939, as amended. The New Notes, when issued, will not be of the same class as securities listed
on a national securities exchange registered under Section 6 of the Exchange Act, or quoted in a U.S. automated inter-dealer quotation
system, within the meaning of Rule 144A(d)(3)(i) under the Securities Act. For the purposes of Rule 144 promulgated under the Securities
Act, the Company acknowledges that, assuming the accuracy of each Holder’s representations and warranties hereunder, the
holding period of the Holder’s New Notes may be tacked onto the holding period of the Old Notes and the Company agrees not
to take a position contrary thereto.


 






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Section 3.6    Validity
of Underlying Common Stock. The New Notes will, at the Closing, be convertible into shares of Common Stock, par value $0.01
per share of the Company (the “Conversion Shares”) in accordance with the terms of the Indenture. Upon execution
and delivery of the Indenture by the Company, the Conversion Shares will be duly authorized and reserved by the Company for issuance
upon conversion of the New Notes and, when issued upon conversion of the New Notes in accordance with the terms of the New Notes
and the Indenture, will be validly issued, fully paid and non-assessable, and the issuance of the Conversion Shares will not be
subject to any preemptive, participation, rights of first refusal or other similar rights in effect as of the Closing Date. For
the purposes of Rule 144 promulgated under the Securities Act, the Company acknowledges that, assuming the accuracy of each Holder’s
representations and warranties hereunder, the holding period of the Conversion Shares may be tacked onto the holding period of
the Old Notes and the New Notes and the Company agrees not to take a position contrary thereto. The Conversion Shares will be issued
to the Holders through the facilities of DTC without any transfer restrictions and will be part of an unrestricted CUSIP.


 


Section 3.7    Listing
Approval. At the Closing, the Conversion Shares shall be approved for listing on the Nasdaq Stock Market, subject to the
notice of issuance.


 


Section 3.8    Disclosure. On
or before the first Business Day following the date hereof, the Company shall issue a publicly available press release or file
with the SEC a Current Report on Form 8-K disclosing all material terms of the Exchange (to the extent not previously publicly
disclosed).


 


Section 3.9    Investment
Company Act.  The Company and each Subsidiary Guarantor are not and, after giving effect to the transactions contemplated
by this Agreement, will not be required to register as an “investment company” or an entity “controlled”
by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations of the SEC thereunder.


 


Section 3.10  Organization
and Qualification of the Company’s Subsidiaries. Each of the Company’s subsidiaries (which, for purposes of
this Agreement, shall mean (a) any corporation more than 50% of whose voting stock having by the terms thereof power to elect a
majority of the directors of such corporations at the time owned by the Company directly or indirectly and (b) any partnership,
association, joint venture or other entity in which the Company directly or indirectly has more than 50% voting equity interest
at the time, in each case of clauses (a) and (b) that provides or is required to provide a guarantee of the Company’s obligations
in respect of the New Notes (each, a “Subsidiary” and collectively, the “Subsidiaries”))
is a direct or indirect wholly-owned subsidiary of the Company. Each Subsidiary has been duly incorporated or organized, as the
case may be, is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws
of the jurisdiction of its incorporation or organization, has the power and authority (corporate or other) to own its property
and to conduct its business and is duly qualified to transact business and is in good standing in each jurisdiction in which the
conduct of its business requires such qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect. All of the issued and outstanding shares of capital stock or other equity interests of
each Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all Liens (other than Liens granted to secure the Senior Credit Facilities).


 






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Section 3.11  Common
Stock. All of the outstanding shares of Common Stock have been duly authorized and validly issued, are fully paid and non-assessable
and were issued in compliance with applicable securities laws. None of the outstanding shares of Common Stock is entitled or subject
to any preemptive right, right of participation, right of maintenance, right of repurchase or forfeiture, subscription right or
any similar right and none of the outstanding shares of Common Stock is subject to any right of first refusal. The description
of the Common Stock conforms in all material respects to all statements relating thereto contained in the Company’s reports
filed under the Exchange Act with the SEC (collectively, “SEC Reports”).


 


Section 3.12   Absence
of Existing Defaults and Conflicts. None of the Company or its Subsidiaries (a) is in violation of its respective charter
or by-laws (or any equivalent documents) or (b) after giving effect to the Exchange and the Concurrent Offering and the transactions
contemplated thereby, will be in default (or with the giving of notice or lapse of time would be in default) under any existing
obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any of them is
subject, except such defaults that would not, individually or in the aggregate, have a Material Adverse Effect.


 


Section 3.13  No
Material Adverse Effect in Business. Except as disclosed in the SEC Reports, and other than effects on the business related
primarily to COVID-19, since March 31, 2020 through the date hereof, (a) there has been no Material Adverse Effect, nor any development
or event which would result in a Material Adverse Effect, (b) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock and (c) there has been no material adverse change in the capital
stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company and its Subsidiaries.


 


Section 3.14  Legal
Proceedings. Except as described in the SEC Reports, there is no legal or governmental action, investigation or proceeding
pending or, to the Company’s knowledge, threatened against the Company or its Subsidiaries (a) asserting the invalidity of
any of the Exchange Documents or the Commitment Letter; (b) seeking to prevent the issuance of the New Notes or the consummation
of any of the transactions provided for in the Exchange Documents; or (c) that would materially and adversely affect the ability
of the Company or any Subsidiary Guarantor to perform its obligations under, or the validity or enforceability of, any of the Exchange
Documents.


 


Section 3.15  Possession
of Permits. The Company and its Subsidiaries have all requisite power and authority, and all authorizations, approvals,
orders, licenses in the various states in which they do business, certificates and permits of and from regulatory or governmental
officials, bodies and tribunals that are necessary to own or lease their respective properties (collectively, “Permits”),
in each case, that are material to the Company taken as a whole. The Company and its Subsidiaries, as applicable, are in compliance
with the terms and conditions of all such Permits, except where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect. All of the Permits are valid and in full force and effect, except where the invalidity of
such Permits or the failure of such Permits to be in full force and effect would not result in a Material Adverse Effect, and the
Company has not received any notice of proceedings by a Governmental Entity relating to the revocation or modification of any such
Permits which, singly or in the aggregate, may reasonably be expected to result in a Material Adverse Effect.


 






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Section 3.16   Title
to Property. The Company and its Subsidiaries have good and marketable title to all real property owned by them and good
title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests,
claims or defects, restrictions or encumbrances of any kind except such as (A) are described in the SEC Reports or (B) would not,
singly or in the aggregate, result in a Material Adverse Effect; and all of the leases and subleases of real property of the Company
and its Subsidiaries, considered as one enterprise, and under which the Company or any of its Subsidiaries holds properties described
in the SEC Reports, are in full force and effect, with such exceptions as do not materially
interfere with the use made or proposed as of the date hereof to be made of such property by the Company and its subsidiaries.


 


Section 3.17   Intellectual
Property.The Company and its Subsidiaries own, license or otherwise have rights in all United States and foreign patents,
trademarks, service marks, tradenames, copyrights, trade secrets and other proprietary rights necessary for the conduct of their
business as currently carried on and as proposed to be carried on, in each case, as described in the SEC Reports (collectively
and together with any applications or registrations for the foregoing, the “Intellectual Property”). Except
as specifically described in the SEC Reports, (a) no third parties have obtained rights to any such Intellectual Property
from the Company, other than licenses granted in the ordinary course and rights that would not have a Material Adverse Effect;
(b) to the Company’s knowledge, there is no infringement or misappropriation by third parties of any such Intellectual
Property; (c) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s rights in or to any such Intellectual Property, and the Company is unaware of any facts that would
form a reasonable basis for any such claim; (d) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the validity, enforceability or scope of any such Intellectual Property, and the
Company is unaware of any facts that would form a reasonable basis for any such claim; (e) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company has, or any of its products,
product candidates or services described in the SEC Reports that infringes, misappropriates or otherwise violates, or would infringe
upon, misappropriate or otherwise violate, upon the commercialization of such products, product candidates or services described
in the SEC Reports, any patent, trademark, copyright, trade secret or other proprietary right of others, and the Company is unaware
of any facts that would form a reasonable basis for any such claim; (f) to the Company’s knowledge, there is no patent
or patent application that contains claims that cover or may cover any Intellectual Property described in the SEC Reports as being
owned by or licensed to the Company, or that is necessary for the conduct of its business as currently conducted or contemplated,
or that interferes with the issued or pending claims of any such Intellectual Property; (g) to the Company’s knowledge, there
is no prior art or public or commercial activity of which the Company is aware that may form a reasonable basis to render any patent
held by the Company invalid or any patent application held by the Company unpatentable that has not been disclosed to the U.S.
Patent and Trademark Office; and (h) the Company has not committed any act or omitted to undertake any act for which the effect
of such commission or omission would reasonably be expected to render the Intellectual Property invalid or unenforceable, in whole
or in part, except to the extent such invalidity or unenforceability would not reasonably be expected to have a Material Adverse
Effect. To the Company’s knowledge, none of the technology employed by the Company has been obtained or is being used by
the Company in violation of the rights of any person or third party. There are no outstanding options, licenses or agreements of
a material nature relating to the Intellectual Property owned by the Company that are required to be described in the SEC Reports
and are not described therein as so required.


 






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Section 3.18   Absence
of Labor Dispute. No labor disputes with the employees of the Company or any of its Subsidiaries exist or, to the knowledge
of the Company, are imminent that would, individually or in the aggregate, result in a Material Adverse Effect.


 


Section 3.19   Accounting
Controls and Disclosure Controls. The Company maintains internal control over financial reporting (as defined under Rule
13a-15 and 15d-15 under the Exchange Act and the rules and regulations of the Commission promulgated thereunder) in compliance
with the requirements of the Exchange Act and a system of internal accounting controls sufficient to provide reasonable assurances
that (a) transactions are executed in accordance with management’s general or specific authorization; (b) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for
assets; (c) access to assets is permitted only in accordance with management’s general or specific authorization; (d) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences; and (e) the interactive data in eXtensible Business Reporting Language contained or incorporated
by reference in the SEC Reports fairly presents the information called for in all material respects and is prepared in accordance
with the Commission’s rules and guidelines applicable thereto. Except as disclosed in the SEC Reports, since March 31, 2020,
there has been (x) no material weakness in the Company’s internal control over financial reporting (whether or not remediated)
and (y) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial reporting. Except as disclosed in the SEC Reports,
the Company and each of its Subsidiaries maintain a system of disclosure controls and procedures (as defined in Rule 13a-15 and
Rule 15d-15 under the Exchange Act and the rules and regulations of the Commission promulgated thereunder) that are designed to
ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act
is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and
is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely decisions regarding disclosure. As disclosed in the Company’s
Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, as of March 31, 2020, the Company’s management, with
participation of the Company’s Chief Executive Officer and Chief Financial Officer, carried out evaluations of the design
and operation of the Company’s disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act, and based
upon that evaluation, the Company’s Chief Executive Officer and Chief Financial Officer concluded that, as of March 31, 2020,
the design and operation of the Company’s disclosure controls and procedures were not effective to accomplish their objectives
at the reasonable assurance level.


 


Section 3.20   Compliance
with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, in each case, to comply in all material respects with any applicable provision
of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related
to loans and Sections 302 and 906 related to certifications.


 


Section 3.21   Financial
Statements. The audited financial statements of the Company as of and for the period ended December 31, 2019 (together
with the related schedules and notes thereto, the “Audited Financial Statements”) contained in the Company’s
Form 10-K for the period ended December 31, 2019 have been prepared, and fairly present, in all material respects, the assets,
liabilities, equity, financial condition, results of operations and cash flows of the Company at the respective dates and for the
respective periods (as the case may be) indicated, in accordance with GAAP consistently applied throughout such period (except
as specified therein). The unaudited interim financial statements of the Company as of and for the period ended March
31, 2020 (“Interim Financial Statements” and, together with the Audited Financial Statements, the “Financial
Statements”) contained in the Company’s Form 10-Q for the period ended March
31, 2020 have been prepared in conformity with GAAP and present fairly in all material respects the information required
to be stated therein. Since the respective dates of the Financial Statements contained in the Company’s SEC Reports, there
has been no change which could, or any development that would, reasonably be expected to (a) have a Material Adverse Effect, (b)
adversely affect the issuance or validity of the New Notes or (c) adversely affect the consummation of any of the transactions
contemplated by any of the Exchange Documents.


 






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Section 3.22  No
Undisclosed Liabilities. The Company and each Subsidiary Guarantor do not have any material liabilities, whether known
or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, and due or to become
due, including any liability for taxes (and there is no past or present fact, situation, circumstance, condition or other basis
for any present or future action, suit, proceeding, hearing, charge, complaint, claim or demand against the Company giving rise
to any such liability), except (a) for liabilities set forth in the Financial Statements; and (b) normal fluctuation in the amount
of the liabilities referred to in clause (a) above occurring in the ordinary course of business of the Company and each Subsidiary
Guarantor since the date of the most recent balance sheet included in the Financial Statements.


 


Section 3.23  Payment
of Taxes. All U.S. federal income tax returns of the Company and its Subsidiaries required by applicable law to be filed
have been filed and all material taxes shown by such returns or otherwise assessed, which are due and payable, have been paid,
except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided.
The Company and its Subsidiaries have filed all other tax returns that are required to have been filed by them pursuant to applicable
foreign, state, local or other law except insofar as the failure to file such returns would not result in a Material Adverse Effect,
and the Company and its Subsidiaries have paid all taxes due pursuant to such returns or pursuant to any assessment received by
the Company and its Subsidiaries, except for such taxes, if any, (i) as are being contested in good faith and as to which adequate
reserves have been established by the Company or (ii) where the failure to pay such taxes would not result in a Material Adverse
Effect.


 


Section 3.24  Foreign
Corrupt Practices Act. None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee, or affiliate acting on behalf of the Company or any of its Subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977,
as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay
or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything
of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA, and the Company and, to the knowledge of the
Company, its affiliates have conducted their businesses in compliance with the FCPA. The Company and its Subsidiaries have instituted
and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith.


 


Section 3.25  Anti-Money
Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related
or similar applicable rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively,
the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving
the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.


 






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Section 3.26   OFAC.
None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or person acting on behalf of the Company or any of its Subsidiaries is an individual or entity currently the subject or target
of any sanctions administered or enforced by the U.S. Government, including, without limitation, the U.S. Department of the Treasury’s
Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other
relevant sanctions authority (collectively, “Sanctions”). Except as permitted by U.S. and other applicable law,
the Company is not located, organized or resident in a country or territory that is the subject of Sanctions (including, without
limitation, Burma, Cuba, Iran, North Korea, Sudan and Syria); and the Company will not directly or indirectly use the proceeds
of the sale of the New Notes, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture
partners or other individual or entity, to fund any activities of or business with any individual or entity, or in any country
or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation
by any individual or entity (including any individual or entity participating in the transaction, whether as underwriter, advisor,
investor or otherwise) of Sanctions.


 


Section 3.27   Cybersecurity.
Except as disclosed in the SEC Reports, (a) to the knowledge of the Company, there has been no security breach or incident, unauthorized
access or disclosure, or other compromise of or relating to the Company or its Subsidiaries information technology and computer
systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees,
suppliers, vendors and any third party data maintained, processed or stored by the Company and its Subsidiaries, and any such data
processed or stored by third parties on behalf of the Company and its Subsidiaries), equipment or technology (collectively, “IT
Systems and Data”) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect,
(b) neither the Company nor its Subsidiaries have been notified in writing of, and, to the Company’s knowledge, there is
no presently existing event or condition that would result in, any security breach or incident, unauthorized access or disclosure
or other compromise to their IT Systems and Data that, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect and (c) the Company and its Subsidiaries have implemented appropriate controls, policies, procedures, and
technological safeguards reasonably designed to maintain and protect the integrity, continuous operation, redundancy and security
of their IT Systems and Data as required by applicable law. The Company and its Subsidiaries are presently in compliance in all
material respects with all applicable laws or statutes and all applicable judgments, orders, rules and regulations of any court
or arbitrator or governmental or regulatory authority, internal policies and applicable contractual obligations relating to the
privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except for such noncompliance as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


Section 3.28   No
Finder’s Fees. Except as contemplated by this Agreement or as otherwise previously disclosed to each of the Undersigned
Entities, neither the Company nor any Subsidiary
Guarantor have paid, or are a party to any contract or agreement to pay, to any person or entity any compensation for soliciting
another to consummate the Exchange and there are no contracts, agreements or understandings between the Company or any Subsidiary
Guarantor and any person that would give rise to a valid claim against the Company or any Subsidiary Guarantor for a commission,
finder’s fee or other like payment in connection with the Exchange.


 






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Section 3.29   No
Integration. None of the Company or any Subsidiary Guarantor, or any other person acting on behalf of the Company or any
Subsidiary Guarantor, has, directly or indirectly, solicited any offer to buy, sold or offered to sell any security which is or
would be integrated with the Exchange pursuant to the Securities Act, the rules and regulations thereunder or the interpretations
thereof by the SEC.


 


Section 3.30   Absence
of Further Requirements. No consent, approval, authorization, or order of, or filing or registration with, any Governmental
Entity is required for the consummation of the transactions contemplated by this Agreement and the Indenture in connection with
the Exchange and the Concurrent Offering, issuance and sale of the New Notes, other than (a) the filing of a notice of listing
of additional shares and related materials with the Nasdaq Stock Market LLC and (b) any filings under the Exchange Act, which have
been or will be made when and how required.


 


Section 3.31   Accountants.
Deloitte & Touche LLP, who has audited the Company’s Audited Financial Statements included in the SEC Reports, are registered
independent public accountants as required by the Securities Act and the rules and regulations promulgated thereunder and by the
rules of the Public Company Accounting Oversight Board.


 


Section 3.32   Compliance
with Law. Except as disclosed in the SEC Reports, none of the Company nor its Subsidiaries have been advised in writing
that the Company and its Subsidiaries are not conducting business in compliance with all applicable laws, rules and regulations
of the jurisdictions in which they are conducting business, including, without limitation, all applicable local, state and federal
laws and regulations, except, in each case, where failure to be so in compliance, individually or in the aggregate, would not result
in a Material Adverse Effect. Except as disclosed in the SEC Reports, the Company is, and since January 1, 2018 has been, in compliance
in all material respects with the Federal Food, Drug & Cosmetics Act, and the applicable regulations administered thereunder
by the Food and Drug Administration (“FDA”), the Public Health Service Act and any other similar applicable
law administered by the FDA or other comparable Governmental Entity responsible for regulation of the development, clinical testing,
manufacturing, sale, marketing, distribution and importation or exportation of drug and biopharmaceutical products of similar nature
to those developed by the Company (each, a “Drug Regulatory Agency”), except, in each case, for any noncompliance,
either individually or in the aggregate, which would not result in a Material Adverse Effect. Except as disclosed in the SEC Reports,
no investigation, claim, suit, proceeding, audit or other action by any Governmental Entity is pending or, to the Company’s
knowledge, threatened against the Company. There is no agreement, judgment, injunction, order or decree binding upon the Company
which (a) has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice of
the Company, any acquisition of material property by the Company or the conduct of business by the Company in any material respect
as currently conducted, (b) is reasonably likely to have an adverse effect on the Company’s ability to comply with or perform
any covenant or obligation under any Exchange Document or (c) is reasonably likely to have the effect of preventing, delaying,
making illegal or otherwise interfering in any material respect with the offer and sale of the New Notes. Except as disclosed in
the SEC Reports, there are no proceedings pending or, to the Company’s knowledge, threatened with respect to an alleged material
violation by the Company of the Federal Food, Drug & Cosmetics Act and the FDA regulations adopted thereunder, the Public Health
Service Act or any other similar law administered or promulgated by any Drug Regulatory Agency. All clinical, pre-clinical and
other studies and tests conducted by or on behalf of, or sponsored by, the Company, or in which the Company or its current products
or product candidates have participated, were and, if still pending, are being, conducted in all material respects in accordance
with applicable standard medical and scientific research procedures and in compliance in all material respects with the applicable
regulations of any applicable Drug Regulatory Agency and other applicable law. The Company and its Subsidiaries hold all required
governmental authorizations issuable by any Drug Regulatory Agency necessary for the conduct of the business of the Company as
currently conducted, and development, clinical testing, manufacturing, marketing, distribution and importation or exportation,
as currently conducted, of any of its products or product candidates.


 






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Section 3.33   Related
Party Transactions. There are no relationships between or among the Company, on the one hand, and its affiliates, officers
or directors on the other hand, or between any Subsidiary, on the one hand, and its affiliates, officers or directors on the other
hand, that are required to be described under applicable securities laws in the SEC Reports, that is not so described in such filings.


 


Section 3.34  Off-Balance
Sheet Arrangements. There is no transaction, arrangement or other relationship between the Company or any Subsidiary and
an unconsolidated or other off-balance sheet entity that (a) is required to have been described under applicable securities laws
in the SEC Reports that is not so disclosed or (b) otherwise would be reasonably likely to result in a Material Adverse Effect.
There are no such transactions, arrangements or other relationships with the Company or any Subsidiary that may create material
contingencies or liabilities that have not been otherwise disclosed by the Company in the SEC Reports as required by applicable
law.


 


Section 3.35   Environmental
Matters. There has been no storage, disposal, generation, manufacture, transportation, handling or treatment of toxic wastes,
hazardous wastes or hazardous substances by the Company or any Subsidiary (or, to the knowledge of the Company, any of their predecessors
in interest) at, upon or from any of the property now or previously owned or leased by the Company or any Subsidiary, in each case,
(a) in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or (b) that would require
remedial action under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except, in each of the
cases of the foregoing clauses (a) and (b), where such violation or remedial action would not, individually or in the aggregate,
have a Material Adverse Effect. There has been no spill, discharge, leak, emission, injection, escape, dumping or release of any
kind into such property or into the environment surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous
wastes or hazardous substances due to or caused by the Company or any Subsidiary which, in each case, would reasonably be expected
to have a Material Adverse Effect.


 


Section 3.36   Nasdaq
Listing. The shares of Common Stock are listed on the Nasdaq Capital Market. Except as described in the SEC Reports, (a)
the Company has not received any delisting notice relating to the shares of Common Stock listed on the Nasdaq Capital Market and
(b) the Company is in compliance with the applicable current listing and governance rules and requirements of the Nasdaq Capital
Market.


 






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Article IV: Conditions to Closing.


 


Section 4.1     Conditions to the
Undersigned Entities’ and Holders’ Obligations. The obligations of each Undersigned Entity and each Holder
to consummate the transactions contemplated by this Agreement are subject to the accuracy of the representations and warranties
set forth in Article III, which shall be true and correct in all material respects (except to the extent any such representation
or warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation or warranty
shall be true and correct in all respects) as of the Closing with the same effect as though such representations and warranties
had been made as of the Closing, and to the timely performance by the Company and the Subsidiary Guarantors, as applicable, of
their respective covenants and obligations hereunder, and to the satisfaction or waiver prior to or at the Closing, of each of
the following conditions:


 


		(a)	The Company shall deliver (or cause to be delivered) the New Notes, along with accrued and unpaid
interest due on the Old Notes, to each Holder in the principal amounts set forth on Exhibit A hereto, and in accordance
with the delivery terms set forth in Article I.



 


		(b)	The Company shall have paid the expenses as required by Section 5.2 hereof.



 


		(c)	The Company and each Subsidiary Guarantor shall satisfy their obligations under Section 3 of the
Note Purchase Agreement.



 


Section 4.2     Conditions
to the Company’s and Subsidiary Guarantors’ Obligations. The obligations of the Company and each Subsidiary
Guarantor to consummate the transactions contemplated by this Agreement are subject to the accuracy of the representations and
warranties set forth in Article II, which shall be true and correct in all material respects (except to the extent any such
representation or warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation
or warranty shall be true and correct in all respects) as of the Closing with the same effect as though such representations and
warranties had been made as of the Closing, and to the timely performance by each Undersigned Entity and each Holder, as applicable,
of the their covenants and obligations hereunder, and to the satisfaction or waiver prior to or at the Closing, of each of the
following conditions:


 


		(a)	The Holders shall deliver (or cause to be delivered) the Old Notes to the Company in the principal
amounts set forth on Exhibit A hereto, and in accordance with the delivery terms set forth in Article I.



 


The obligation of the Company to deliver
the New Notes and accrued and unpaid interest is further subject to (a) in the case of the Restricted Old Notes, the prior receipt
by the Company of a valid DWAC withdrawal conforming with the aggregate principal amount of the Old Notes to be exchanged by such
Holder in connection with the Exchange through the DWAC program, (b) in the case of the Unrestricted Old Notes, the delivery to
the Trustee of the Physical Notes (as defined in the Indenture) representing such Unrestricted Old Notes to be exchanged hereunder,
(c) in the case of the Restricted New Notes, a valid the Restricted New Notes DWAC deposit through the DWAC program, and (d) in
the case of the Unrestricted New Notes, the issuance by the Trustee of one or more Physical Notes representing such Unrestricted
New Notes, in each case of each of the foregoing clauses (a) through (d), in accordance with this Agreement.


 


Article V: Certain Covenants


 


Section 5.1     Further
Assurances. The parties hereto agree to use commercially reasonable efforts to take, or cause to be taken, all reasonable
actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable
to consummate the Exchange on their account, including preparing and filing as promptly as practicable all documentation to effect
all necessary filings, consents, waivers, approvals, and authorizations.


 






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Section 5.2     Costs
and Expenses.  Whether or not the transactions contemplated by this Agreement are consummated, the Company agrees
to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including, without limitation, (i) all expenses incident to the issuance and delivery
of the New Notes to the Holders (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp
taxes in connection with the issuance of New Notes to the Holders, (iii) all fees and expenses of the Company’s counsel,
independent public or certified public accountants and other advisors, (iv) the reasonable fees and expenses of the Trustee, including
the documented and reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the New Notes,
and (v) all reasonable and documented fees and expenses of counsel to the Undersigned Entities and the Holders (including, but
not limited to, due diligence expenses and fees and disbursements of two law firms (one being special regulatory counsel)), in
each case, incurred in connection with the transactions contemplated hereby and any related documentation.


 


Section
5.3     Shareholder Approval. The Company shall use its commercially reasonable efforts, within 75 days following the
Closing Date, to establish a record date for, duly call, give notice of, convene and hold a special meeting of its
stockholders (the “Company Stockholders Meeting”) solely for the purpose of obtaining the requisite
shareholder approval to issue to any Holder or group of related Holders shares of Common Stock under the New Notes exceeding
the greater of (i) 19.99% of the number of shares of Common Stock outstanding, including upon the conversion of the New Notes
and upon payment of PIK interest thereon and (ii) the number of shares of Common Stock then held by the largest holder of
Common Stock (“Shareholder Approval”); provided, that such Company Stockholders Meeting shall in no
event be later than October 31, 2020. The Company will take all reasonable actions
necessary to secure the Shareholder Approval. 


 


Section
5.4     Covenant Survival. The obligations of the Company and any Subsidiary Guarantor, as applicable, under this Article
V shall survive the payment or transfer of any New Note, the enforcement, amendment or waiver of any provision of this Agreement
or the New Notes, and the termination of this Agreement.


 


Article VI: Miscellaneous


 


Section 6.1    Entire
Agreement. This Agreement and any documents and agreements executed in connection with the Exchange embody the entire
agreement and understanding of the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous
oral or written agreements, representations, warranties, contracts, correspondence, conversations, memoranda and understandings
between or among the parties or any of their agents, representatives or affiliates relative to such subject matter, including,
without limitation, any term sheets, emails or draft documents.


 


Section 6.2    Construction. For
purposes of this Agreement, the words “hereof,” “herein,” “hereby” and other words of similar
import refer to this Agreement as a whole unless otherwise indicated. Whenever the singular is used herein, the same shall include
the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate. The term “including”
means “including but not limited to.” The word “or” shall not be exclusive. Whenever used in this Agreement,
the masculine gender shall include the feminine and neutral genders. All references herein to Articles, Sections, Subsections,
Paragraphs and Exhibits shall be deemed references to Articles and Sections and Subsections and Paragraphs of, and Exhibits to,
this Agreement unless the context shall otherwise require. Any reference herein to any statute, agreement or document, or any section
thereof, shall, unless otherwise expressly provided, be a reference to such statute, agreement, document or section as amended,
modified or supplemented (including any successor section) and in effect from time to time. All terms defined in this Agreement
shall have the defined meaning when used in any Exhibit, Schedule, certificate or other documents attached hereto or made or delivered
pursuant hereto unless otherwise defined therein. The parties acknowledge and agree that, except as specifically provided herein,
they may pursue judicial remedies at law or in equity in the event of a dispute with respect to the interpretation or construction
of this Agreement. This Agreement shall be interpreted and enforced in accordance with the provisions hereof without the aid of
any canon, custom or rule of law requiring or suggesting construction against the party causing the drafting of the provision in
question.


 






    17


     


    

 


Section 6.3    Governing
Law. This Agreement shall in all respects be construed in accordance with and governed by the substantive laws of
the State of New York, without reference to its choice of law rules.


 


Section 6.4    Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute
one and the same instrument. Any counterpart or other signature hereon delivered by facsimile or other electronic transmission
shall be deemed for all purposes as constituting good and valid execution and delivery of this Agreement by such party.


 


Section 6.5    Notices.
All notices or other communications required or permitted under this Agreement shall be in writing and shall be deemed given or
delivered: (i) when delivered personally; (ii) one business day following deposit with a recognized overnight courier service,
provided such deposit occurs before the deadline imposed by that service for overnight delivery or (iii) when transmitted, if sent
by electronic mail, provided confirmation of receipt tis received by send and the notice is sent by an additional method provided
under this Agreement, in each case to the parties hereto as follows:


 


If to a Holder,
to the address set forth on such Holder’s signature page to this Agreement, with a copy (which shall not constitute notice)
to:


 


Stroock & Stroock & Lavan
LLP


180 Maiden Lane


New York, New York 10038


Attention: Brett Lawrence and Joanne
Lau


Email:     blawrence@stroock.com


jlau@stroock.com


 


If to the Company or a Subsidiary
Guarantor:


 


Teligent, Inc.


105 Lincoln Avenue, PO Box 687


Buena, New Jersey 08310


Attention: Timothy B. Sawyer, President
and Chief Executive Officer


Email:     tsawyer@teligent.com


 






    18


     


    

 


With a copy (which shall not constitute
notice) to:


 


K&L Gates LLP


599 Lexington Avenue


New York, New York 10022


Attention: Whitney J. Smith


Email:     whitney.smith@klgates.com


 


and


 


K&L Gates LLP


300 South Tryon Street, 10th Floor


Charlotte, North Carolina 28202


Attention: Sean M. Jones


Email:     sean.jones@klgates.com


 


Any party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose.


 


Section 6.6     Severability.
In the event that any provision of this Agreement shall be declared invalid or unenforceable by any regulatory body or court having
jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining portions of
this Agreement.


 


Section 6.7     No
Third-Party Beneficiary. Nothing in this Agreement is intended or shall be construed to give any person, other than the
parties, their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.


 


Section 6.8     Suits.
Any legal suit, action or proceeding arising out of, or based upon, this Agreement or the transactions contemplated hereby, may
be instituted in any state or federal court located in the Borough of Manhattan, New York, New York (each, a “New York
Court”), and each party hereby waives, to the fullest extent it may effectively do so, any objection which it may now
or hereafter have, to the laying of venue of any such proceeding and submits to the exclusive jurisdiction of such courts in any
such legal suit, action or proceeding. Each party hereby waives irrevocably any immunity to jurisdiction to which it may otherwise
be entitled or become entitled (including sovereign immunity, immunity to pre-judgment attachment, post-judgment attachment and
execution), in any legal suit, action or proceeding against it arising out of, or based upon, this Agreement or the transactions
contemplated hereby, that is instituted in any New York Court. Process in any such legal suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction of any such court.


 


Section 6.9     WAIVER
OF JURY TRIAL. Each party hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or based upon this Agreement, THE
SECURITIES or the transactions contemplated hereby.


 


Section 6.10  Survival.
All representations, warranties and covenants contained herein shall survive the execution and delivery of this Agreement and the
New Notes.


 


[Signature Page Follows.]


 









    19


     


    

 


IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed as of the date first above written.


 


 


COMPANY 


 


	Teligent, Inc.	 
	 	 
	By:	/s/ Timothy B. Sawyer	 
	Name:	Timothy B. Sawyer	 
	Title:	Chief Executive Officer and President	 



 


 


SUBSIDIARY GUARANTORS


 


Teligent Pharma, Inc.  




 


	 	 
	By:	/s/ Timothy B. Sawyer	 
	Name:	Timothy B. Sawyer	 
	Title:	Chief Executive Officer and President	 
	   	 
	 	 
	IGEN, Inc.	 
	 	 
	By:	/s/ Timothy B. Sawyer	 
	Name:	Timothy B. Sawyer	 
	Title:	Chief Executive Officer and President	 
	   	 
	 	 
	Teligent Canada Inc.	 
	 	 
	By:	/s/ Timothy B. Sawyer	 
	Name:	Timothy B. Sawyer	 
	Title:	Chief Executive Officer	 




 


[Signature Page to Exchange Agreement]


 








     


     


    

  


IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed as of the date first above written.


 


 


“UNDERSIGNED ENTITY”:


(in its capacities described in the first paragraph hereof)


 


SILVERBACK ASSET MANAGEMENT, LLC


 


 


	By:	/s/ Robert Barron	 
	Name:	Robert Barron	 
	Title:	Portfolio Manager	 



 





[Signature Page to Exchange Agreement]


 






     


     


    

 


IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed as of the date first above written.


 


 


	 	NANTAHALA CAPITAL PARTNERS II LIMITED PARTNERSHIP
	 	 	 	 
	 	By: Nantahala Capital Management, LLC
	 	Its General Partner	 
	 	 	 	 
	 	By: 	/s/ Daniel Mack	 
	 	Name:	Daniel Mack	 
	 	Title: 	Manager	 



 


[Signature Page to Exchange Agreement]


 




     


     


    

 


IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed as of the date first above written.


 


 


	 	NANTAHALA CAPITAL PARTNERS SI, LP
	 	 
	 	By: Nantahala Capital Management, LLC 
	 	Its Investment Manager	 
	 	 	 
	 	By:	/s/ Daniel Mack	 
	 	Name:	Daniel Mack	 
	 	Title:	Manager	 



 


[Signature Page to Exchange Agreement]


 




     


     


    

 


IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed as of the date first above written.


 


 


	 	BLACKWELL PARTNERS LLC - SERIES A, solely
	 	with respect to the portion of its assets for which Nantahala Capital Management, LLC acts as its Investment Manager	 
	 	 	 
	 	By: Nanthala Capital Management, LLC

                                                                            Its Investment Manager
	 
	 	 	 
	 	By: 	/s/ Daniel Mack	 
	 	Name: 	Daniel Mack	 
	 	Title: 	Manager	 



 


[Signature Page to Exchange Agreement]


 




     


     


    

 


IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed as of the date first above written.


 


 


	 	SILVER CREEK CS SAV, L.L.C., solely

                                                                            with respect to the portion of its assets for which Nantahala Capital Management, LLC acts as its Investment Manager
	 
	 	 	 	 
	 	By: Nantahala Capital Management, LLC

                                                                         Its Investment Manage
	 
	 	 	 	 
	 	By:	/s/ Daniel Mack	 
	 	Name:	Daniel Mack	 
	 	Title: 	Manager	 



 


[Signature Page to Exchange Agreement]


 




     


     


    

 


IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed as of the date first above written.


 


 


“UNDERSIGNED ENTITY”:


(in its capacities described in the first paragraph hereof)


 


 


/s/ Laurence Lytton_____________________    


Name:   Laurence Lytton


 


[Signature Page
to Exchange Agreement]