Exhibit 10.1

Execution Version

EXCHANGE AGREEMENT

by and among

TELIGENT, INC.,

the undersigned funds and accounts managed by affiliates of

ARES MANAGEMENT CORPORATION

and

THE PARTICIPATING NOTEHOLDERS

LISTED ON THE SIGNATURE PAGES HERETO

Dated as of January 27, 2021

Schedules

Exhibits

EXCHANGE AGREEMENT

This EXCHANGE AGREEMENT (this “Agreement”) is dated as of January 27, 2021 by and among (i) Teligent, Inc., a Delaware corporation, (the “Company”), (ii) the undersigned funds and accounts managed by affiliates of Ares Management Corporation (collectively, “Ares”), and (iii) the Participating Noteholders (as defined below). Ares and each Participating Noteholder are collectively referred to as the “Participating Parties” and individually as a “Participating Party.” The Company and each Participating Party are collectively referred to as the “Parties” and individually as a “Party.”

W I T N E S S E T H

WHEREAS, the Company and Ares are parties to (i) that certain First Lien Revolving Credit Agreement dated as of December 18, 2018, by and among the Company, as the borrower, certain subsidiaries of the Company, as guarantors, the lenders from time to time party thereto, and ACF Finco I LP, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time (the “ACF 1L Credit Agreement”), and (ii) that certain Second Lien Credit Agreement dated as of December 18, 2018, by and among the Company, as the borrower, certain subsidiaries of the Company, as guarantors, the lenders from time to time party thereto, and Ares Capital Corporation, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time (the “Ares 2L Credit Agreement” and, together with the ACF 1L Credit Agreement, the “Ares Credit Agreements”);

WHEREAS, each undersigned holder (each a “Participating Noteholder” and, collectively, the “Participating Noteholders”) of the Company’s 9.5% Series C Senior Secured Convertible Notes due 2023 (the “Series C Notes”) issued under that certain Indenture dated July 20, 2020 (the “Series C Indenture”) holds Series C Notes with an aggregate principal amount as set forth opposite such Participating Noteholder’s name on Schedule I hereto;

WHEREAS, the Parties hereto have reached an agreement in principle regarding the material terms of a recapitalization transaction (the “Recapitalization Transaction”) to be effectuated through a series of out-of-court transactions pursuant to the terms and conditions of that certain Term Sheet dated as of January 14, 2021 (the “Term Sheet”); and

WHEREAS, as part of the Recapitalization Transaction, pursuant to this Agreement and the applicable Transaction Documents (defined below), and subject to the terms and conditions herein and therein, the Parties agree to effectuate the Transactions (defined below) as set forth in Section 2.1 and Section 2.2 herein.

NOW, THEREFORE, in consideration of the mutual terms, conditions, and other covenants and agreements set forth herein, the Parties hereby agree as follows:

ARTICLE I.
DEFINITIONS

1.1         Definitions. In addition to the other words and terms defined elsewhere in this Agreement, as used in this Agreement, the following words and terms have the meanings specified or referred to below:

(a)           “2L Accrued PIK Interest” has the meaning set forth in Section 2.1(b).

(b)           “Ares” has the meaning set forth in the preamble.

(c)           “Ares Credit Agreement Amendments” has the meaning set forth in Section 2.1(b).

(d)           “Ares Credit Agreements” has the meaning set forth in the recitals.

(e)           “Ares Loan Exchange” has the meaning set forth in Section 2.1(c).

(f)            “Ares Loan Exchange Rate” has the meaning set forth in Section 2.4(a).

(g)           “ATM Offering” means a continuous at-the-market offering by the Company or any of its subsidiaries of Common Stock in accordance with Rule 415 under the Securities Act.

(h)           “ATM Sales Agreement” has the meaning set forth in Section 2.5.

(i)           “B. Riley” means B. Riley Securities, Inc.

(j)           “B. Riley Fee” means the commitment fee payable to B. Riley in Common Stock pursuant to that certain engagement letter of even date herewith between the Company and B. Riley regarding the ATM Offering.

(k)           “Board Resolutions” has the meaning set forth in Section 2.6(d).

(l)            “Business Day” means a day other than a Saturday, Sunday or any day on which the banks located in the State of New York are authorized or obligated to close.

(m)           “Certificate of Designation” means the Company’s Certificate of Designations, Preferences and Rights of the Preferred Stock, in the form attached as Exhibit C hereto.

(n)           “Closing” has the meaning set forth in Section 2.1.

(o)           “Closing Date” has the meaning set forth in Section 2.1.

(p)           “Collateral Agent” has the meaning set forth in the Series C Indenture.

(q)           “Common Exchange Shares” means shares of Common Stock issued to a Participating Party as Exchange Shares pursuant to the Exchange.

(r)            “Common Stock” when used with reference to the Company shall mean the Common Stock, presently par value $.01 per share, of the Company.

(s)           “Conversion Shares” has the meaning set forth in Section 3.5.

(t)            “Counsel” has the meaning set forth in Section 6.3.

(u)           “Disclosure” has the meaning set forth in Section 6.1.

(v)           “DTC” has the meaning set forth in Section 2.2(b).

(w)          “Effective Time” has the meaning set forth in Section 2.2(b).

(x)           “Encumbrances” means any mortgage, lien, pledge, assignment, charge, deed of trust, security interest, hypothecation, preference, deposit arrangement or encumbrance (or other type of arrangement having the practical effect of the foregoing) to secure or provide for the payment of any obligation of any Person, whether arising by contract, operation of law, or otherwise.

(y)           “Enforceability Exceptions” has the meaning set forth in Section 3.2.

(z)           “Exchange” means, individually and collectively, the Series C Note Exchange and the Ares Loan Exchange.

(aa)         “Exchange Act” means the Securities Exchange Act of 1934, as amended.

(bb)        “Exchange Price” means the VWAP of the Common Stock based on a trailing five (5) Trading Day period ending on the last Trading Day before the Closing Date.

(cc)         “Exchange Shares” means the Common Exchange Shares and/or Preferred Exchange Shares issued to a Participating Party in connection with the Exchange, as applicable.

(dd)        “Exchanged Debt” means, individually and collectively, the 2L Accrued PIK Interest and Exchanged Notes.

(ee)         “Exchanged Notes” means each Participating Noteholder’s Series C Notes exchanged pursuant to the Series C Note Exchange.

(ff)          “Governmental Entity” means any domestic or foreign, national, supranational, federal, state, municipal, county, city, local or other administrative, legislative, regulatory or other governmental authority, commission, agency, court of competent jurisdiction or other judicial entity, tribunal, legislative, regulatory or self-regulatory body, instrumentality, or quasi- governmental agency, commission or authority or any arbitrator or arbitral tribunal.

(gg)        “Interim Financing” means a $4,600,000 delayed draw term loan.

(hh)        “Jefferies” means Jefferies & Company.

(ii)           “Jefferies Engagement Agreement” means that certain letter agreement between Jefferies and the Company dated June 10, 2020, as amended pursuant to certain addendums dated August 13, 2020 and January 10, 2021.

(jj)          “Jefferies Fee” means that certain Restructuring and Equity Financing Fee (as defined in the Jefferies Engagement Agreement) payable to Jefferies in connection with the consummation of the Recapitalization Transaction pursuant to the Jefferies Engagement Agreement.

(kk)         “Law” means any federal, state, local or foreign law (including common law), statute, code, ordinance, directive, rule, regulation, Order or other requirement of or rule or law promulgated, issued, enforced or entered by any Governmental Entity.

(ll)           “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, business, properties, surplus or results of operations of the Company and its Subsidiaries, 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 generic 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 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 generic pharmaceuticals industry in the U.S. and Canada.

(a)           “NDA” means the Amended and Restated Confidentiality Agreement between the Company and each of the Participating Noteholders.

(b)           “Order” means any order, consent, injunction, judgment, decree, stipulation, ruling, opinion, decision, writ, assessment or arbitration award, including any consent decree or consent agreement.

(c)           “Participating Noteholder” has the meaning set forth in the preamble.

(d)           “Participating Party” has the meaning set forth in the preamble.

(e)           “Party” has the meaning set forth in the preamble.

(f)            “Person” means any individual, corporation, partnership, limited liability company, trust, joint stock company, business trust, unincorporated association, joint venture, Governmental Entity or other entity of any nature whatsoever.

(g)           “Placement Shares” means shares of Common Stock sold by the Agent (as defined in the ATM Sales Agreement) as part of the ATM Offering.

(h)           “Preferred Exchange Shares” means shares of Preferred Stock issued to a Participating Party as Exchange Shares pursuant to the Exchange.

(i)            “Preferred Stock” means the convertible preferred stock of the Company, which shall have the rights, preferences and privileges set forth in the Certificate of Designation.

(j)            “Professional Advisors” means, individually and collectively, Counsel and Jefferies.

(k)           “Public Float” means the aggregate market value of the outstanding voting and non-voting common equity (as defined in Rule 405) of the Company held by persons other than affiliates of the Company (as determined pursuant to Rule 144 of the Securities Act).

(l)            “Recapitalization Transaction” has the meaning set forth in the Recitals.

(m)          “Representative” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.

(n)           “SEC” means the Securities and Exchange Commission.

(o)           “Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder

(p)           “Series C Indenture” has the meaning set forth in the recitals.

(q)           “Series C Note Exchange” has the meaning set forth in Section 2.1(a).

(r)            “Series C Note Exchange Rate” has the meaning set forth in Section 2.2(a)

(s)           “Series C Notes” has the meaning set forth in the recitals.

(t)            “Stockholder Approval” has the meaning set forth in Section 6.4.

(u)           “Stockholders’ Agreement” has the meaning set forth in Section 2.6(d).

(v)           “Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO promulgated under the Exchange Act.

(w)          “Subsidiary” means (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 is 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.

(x)           “Term Sheet” has the meaning set forth in the recitals.

(y)           “Trading Day” means any day on which trading occurs on the Nasdaq Global Market (or any successor thereto) or other securities markets in the United States.

(z)           “Transaction Documents” means this Agreement, the Term Sheet, the ATM Sales Agreement, the Ares Credit Agreement Amendments, the Voting Trust Agreements, the Stockholders’ Agreement, and the Board Resolutions.

(aa)         “Transactions” means the Exchange, the ATM Offering and the Ares Credit Agreement Amendments.

(bb)        “Trustee” has the meaning set forth in the Series C Indenture.

(cc)         “Voting Trust Agreements” has the meaning set forth in Section 2.6(b).

(dd)        “Voting Trustee” means the “Trustee” as defined in the Voting Trust Agreement.

(ee)         “VWAP” per share of common stock of the Company on any Trading Day means the per share volume-weighted average price as displayed under the heading Bloomberg VWAP on Bloomberg page “TLGT:US <equity>” (or its equivalent successor if such page is not available) in respect of the period from the open of trading on the relevant Trading Day until the close of trading on such Trading Day.

1.2         Interpretation. Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement, (iv) the terms “Article” or “Section” refer to the specified Article or Section of this Agreement, and (v) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The term “or” is not necessarily exclusive. 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. 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.

ARTICLE II.
DEBT EXCHANGE AND ADDITIONAL TRANSACTIONS

2.1         Simultaneous Signing and Closing. The Transactions shall take place at a closing (the “Closing”) to be managed by the electronic exchange of documents, contemporaneously with the execution and delivery of this Agreement on the date first above written, or at such other time or on such other date as the Parties mutually may agree in writing. The day on which the Closing takes place is referred to as the “Closing Date.” The Parties agree to effectuate the Transactions (each of which shall be (a) conditioned upon the closing (or, in the case of the ATM Offering, the commencement) of each other Transaction, and (b) effective as of the Closing Date) as follows:

(a)           each Participating Noteholder shall exchange such Participating Noteholder’s right, title and interest in all of such Participating Noteholder’s Series C Notes for certain Exchange Shares as set forth on Schedule I hereto (the “Series C Note Exchange”);

(b)           Ares and the Company shall execute certain amendments to the Ares Credit Agreements (the “Ares Credit Agreement Amendments”), pursuant to which, among other things, (i) Ares will provide the Company with the Interim Financing, and (ii) all accrued and unpaid PIK Interest under the 2L Credit Agreement (the “2L Accrued PIK Interest”) as of the Closing Date shall be deemed satisfied and waived by Ares;

(c)           in exchange for the satisfaction and waiver of the 2L Accrued PIK Interest, the Company shall issue to Ares certain Preferred Exchange Shares as set forth on Schedule II hereto (the “Ares Loan Exchange”); and

(d)           the Company shall enter into the ATM Sales Agreement with B. Riley;

provided, however, that (i) the Transactions set forth in subsections (a) through (c) above shall be deemed to be effective as of the Effective Time, and (ii) the Transaction set forth in subsection (d) above shall be deemed to be effective immediately following the Effective Time.

2.2         Series C Note Exchange. Subject to the terms and conditions hereof, each Participating Noteholder hereby agrees to exchange, at the applicable Series C Note Exchange Rate, such Participating Noteholder’s Series C Notes for the issuance by the Company to each such Participating Noteholder of certain Exchange Shares, and each Participating Noteholder shall accept from the Company such Exchange Shares, as set forth on Schedule I hereto.

(a)           Exchange Rate. The exchange rate for the Series C Note Exchange (as applicable, the “Series C Note Exchange Rate”) shall be equal to the following:

(i)            Each one thousand dollars ($1,000) of principal amount of Exchanged Notes (plus any accrued and outstanding interest on such Exchanged Notes that has become due and payable) held by each Participating Noteholder (other than Laurence Lytton) shall be exchanged for an amount of Common Exchange Shares equal to (A) 1,000 divided by (B) (x) the Exchange Price multiplied by (y) 1.60.

(ii)           Each one thousand dollars ($1,000) of principal amount of Exchanged Notes (plus any accrued and outstanding interest on such Exchanged Notes that has become due and payable) held by Laurence Lytton shall be exchanged for an amount of Common Exchange Shares equal to (A) 1,000 divided by (B) (x) the Exchange Price multiplied by (y) 1.50.

(b)          Exchange Settlement. As soon as practicable following the effectiveness of the Series C Note Exchange, which shall be deemed to occur at 4:01 p.m. (New York time) on the Closing Date (such date and time, the “Effective Time”):

(i)            Each Participating Noteholder shall assign and transfer all right, title and interest in and to its Exchanged Notes to the Company, and deliver or cause to be delivered the Exchanged Notes held by such Participating Noteholder to the Company, by book-entry transfer through the facilities of The Depositary Trust Company (“DTC”) from the account(s) of such Participating Noteholder (or, in the case of physical Series C Notes, by physical delivery of such Notes to the Trustee), free and clear of all Encumbrances, together with any customary documents of conveyance or transfer that the Company or Trustee may reasonably deem necessary or desirable to transfer such Exchanged Notes to the Company.

(ii)           The Company shall immediately instruct the Trustee to cancel the Exchanged Notes in accordance with the terms of the Series C Indenture.

(iii)          The Company shall promptly execute and deliver to its transfer agent for Common Stock an instruction letter (in form and substance reasonably acceptable to the Participating Noteholders, the “Transfer Agent Instruction Letter”) providing for the delivery of the Exchange Shares, via a book-entry position on the records of the transfer agent, to each Participating Noteholder (or its designee) as set forth on Schedule I hereto. The Company shall provide each Participating Party satisfactory evidence thereof.

(c)          Effective Time. For the avoidance of doubt, upon the Effective Time, (i) each Participating Noteholder (or its designee) shall be deemed for all corporate purposes to have become the legal, beneficial and record holder of its respective Exchange Shares and (ii) the aggregate principal amount of (and any and all accrued and unpaid interest on) the Exchanged Notes shall be deemed cancelled. For the avoidance of doubt, all of the issued and outstanding Series C Notes shall be exchanged pursuant to this Agreement.

2.3         Ares Credit Agreement Amendments. Subject to the terms and conditions hereof, the Company and Ares shall have duly executed (i) an amendment to the ACF 1L Credit Agreement in form and substance previously agreed to by the Company and Ares (the “1L Credit Agreement Amendment”), and (ii) an amendment to the Ares 2L Credit Agreement in form and substance previously agreed to by the Company and Ares (the “2L Credit Agreement Amendment”).

2.4         Ares Loan Exchange. In exchange for Ares’ satisfaction and waiver of the 2L Accrued PIK Interest, the Company shall issue and deliver to Ares, at the Ares Loan Exchange Rate, certain Preferred Exchange Shares, and Ares shall accept from the Company such Preferred Exchange Shares, as set forth on Schedule II hereto.

(a)           Exchange Rate. The exchange rate for the Ares Loan Exchange (the “Ares Loan Exchange Rate”) shall be equal to the following: Each one thousand dollars ($1,000) of 2L Accrued PIK Interest shall be exchanged for an amount of Preferred Exchange Shares equal to (i) 1,000 divided by (ii) (x) the Exchange Price multiplied by (y) 1.30.

(b)           Exchange Settlement. As soon as practicable following the effectiveness of the Ares Loan Exchange, which shall be deemed to occur at the Effective Time, the Company shall deliver to each Participating Party set forth on Schedule II a certificate, duly executed on behalf of the Company and bearing the restrictive legend pursuant to Section 2.4(c), representing the number of Preferred Exchange Shares set forth across from such Participating Party’s name on Schedule II hereto in the column captioned “Preferred Exchange Shares.” Upon the Effective Time, such Participating Party shall be deemed for all corporate purposes to have become the legal, beneficial and record holder of such Preferred Exchange Shares.

(c)           Legend. The Preferred Exchange Shares issued to Ares in connection with the Ares Loan Exchange will bear a legend substantially to the following effect:

THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.

THE SECURITIES REPRESENTED BY THIS INSTRUMENT MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF A STOCKHOLDERS’ AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.

2.5         ATM Sales Agreement. The Company and B. Riley shall have duly executed the ATM Sales Agreement in the form attached hereto as Exhibit D (the “ATM Sales Agreement”). The Company shall have delivered executed copies of the ATM Sales Agreement to each Participating Party, and shall commence the ATM Offering pursuant to the terms of the ATM Sales Agreement and this Agreement (including Section 6.2 herein).

2.6         Additional Exchange Transaction Documents.

(a)           Stockholders’ Agreement. The Company and each Participating Party shall have duly executed the Stockholders’ Agreement in the form attached hereto as Exhibit A (the “Stockholders’ Agreement”), and delivered executed copies of the same to the other Parties hereto.

(b)           Voting Trust Agreements. The Company, the Voting Trustee and each Participating Noteholder shall have duly executed each such Participating Party’s respective Voting Trust Agreement, substantially in the form attached hereto as Exhibit B (the “Voting Trust Agreements”, and each a “Voting Trust Agreement”), and delivered executed copies of the same to the Parties hereto.

(c)           Certificate of Designation. The Certificate of Designation shall have been duly executed by the Company and duly filed with the Secretary of State of Delaware, and the Participating Parties shall have received evidence of such execution and filing.

(d)           Board Resolutions. Each Participating Party shall have received a copy of the Action by Unanimous Written Consent, duly adopted by the Board of Directors of the Company, which shall be in full force and effect at the time of the Closing, authorizing the execution, delivery and performance by the Company of this Agreement and the other Transaction Documents and the consummation by the Company of the Transactions, certified as such by the Secretary or Assistant Secretary of the Company on or before the Closing Date (the “Board Resolutions”).

(e)           Opinion of Counsel for the Company. Each Participating Party shall have received on the Closing Date an opinion letter of counsel to the Company, dated the Closing Date, in form and substance previously agreed to by the Participating Parties. Such opinion shall be rendered to the Participating Parties at the request of the Company and shall so state therein

(f)            FIRPTA Compliance. The Company shall have delivered to each Participating Party a properly executed statement (a “FIRPTA Compliance Certificate”) in form and substance previously agreed to by the Participating Parties for purposes of satisfying the Company’s obligations under Treasury Regulation Section 1.1445-2(c)(3).

(g)           IRS Forms. Each Participating Party shall have delivered to the Company a completed IRS Form W-9 or W-8, as applicable, with regards to such Participating Party.

ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY

The Company represents and warrants to each of the Participating Parties as follows, in each case, except as disclosed in the SEC Reports:

3.1         Power and Authorization. The Company 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 Transaction 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 or any of their Subsidiaries (each, a “Governmental Entity”) is required on the part of the Company in connection with the execution, delivery and performance by it of this Agreement and the applicable Transaction 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.

3.2         Valid and Enforceable Agreement; No Violations. This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against it 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”). The execution of this Agreement and each other Transaction 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, (b) except with respect to any consents required under the Ares Credit Agreements, any agreement or instrument to which the Company is a party or by which the Company (or any of its assets) is bound, or (c) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company, 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.

3.3          Issuance of Exchange Shares. The Exchange Shares are duly authorized and, when issued in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, free and clear of any and all Encumbrances, and will not be issued in violation of, or subject to, any preemptive or similar rights of any person. On the Closing Date, immediately after giving effect to the Exchange and Ares Credit Agreement Amendments (but prior to the commencement of the ATM Offering), each Participating Party (or its designee) shall own the amount and type of Exchange Shares set forth opposite such Participating Party’s name on Schedule I or Schedule II (as applicable).

3.4          Exemption from Registration. Assuming the accuracy of the representations and warranties of the Participating Parties: (a) the issuance of the Exchange Shares in connection with the Exchange pursuant to this Agreement are exempt from the registration requirements of the Securities Act; (b) the Exchange Shares issued to each Participating Party (or its designee) will be issued in compliance with all applicable state and federal laws concerning the issuance of the Exchange Shares, and (c) other than as set forth in (i) the Voting Trust Agreement, and (ii) the Stockholders’ Agreement, the Common Exchange Shares will be issued to the Participating Parties (or their designees) without any transfer restrictions. For the purposes of Rule 144 promulgated under the Securities Act, the Company acknowledges that, assuming the accuracy of the applicable Participating Noteholder’s representations and warranties hereunder, the holding period of each such Participating Noteholder’s Exchange Shares may be tacked onto the holding period of the Series C Notes and the Company agrees not to take a position contrary thereto (including with respect to a Participating Party’s ability to resell Exchange Shares pursuant to Rule 144(k)).

3.5          Validity of Underlying Common Stock. Upon issuance in accordance with the terms of the Certificate of Designation, the shares of Common Stock issuable upon conversion of the Preferred Exchange Shares (the “Conversion Shares”) will be duly authorized, 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 the applicable Participating Party’s representations and warranties hereunder, the holding period of the Conversion Shares may be tacked onto the holding period of the Preferred Exchange Shares, and the Company agrees not to take a position contrary thereto.

3.6          Investment Company Act. The Company is 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.

3.7         Organization and Qualification of the Company’s Subsidiaries. Each of the Company’s 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 any and all Encumbrances (other than Encumbrances granted to secure the Ares Credit Agreements), in each case, except as would not have a Material Adverse Effect.

3.8         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”).

3.9         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 this Agreement, the Exchange, the ATM Offering and the transactions contemplated hereby and 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.

3.10       No Material Adverse Effect in Business. Other than effects on the business related primarily to COVID-19, from September 30, 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.

3.11       Legal Proceedings. 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 Transaction Documents; (b) seeking to prevent the issuance of the Exchange Shares or the consummation of any of the transactions provided for in the Transaction Documents; or (c) that would materially and adversely affect the ability of the Company to perform its obligations under, or the validity or enforceability of, any of the Transaction Documents.

3.12       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, except as would not, individually or in the aggregate, result in a Material Adverse Effect. 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.

3.13       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 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.

3.14       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, except as would not reasonably be expected to result in a Material Adverse Effect; (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, in each case, except as would not reasonably be expected to result in a Material Adverse Effect; (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, in each case, except as would not reasonably be expected to result in a Material Adverse Effect; (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, in each case, except as would not reasonably be expected to result in a Material Adverse Effect; (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, in each case except as would not reasonably be expected to result in a Material Adverse Effect; (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, except as would not reasonably be expected to result in a Material Adverse Effect; 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, which violation would reasonably be expected to result in a Material Adverse Effect. 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.

3.15            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.

3.16            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 SEC 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 SEC’s rules and guidelines applicable thereto. Since September 30, 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. 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 SEC 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 SEC’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 September 30, 2020, the Company’s management, with participation of the Company’s Chief Executive Officer and Principal Accounting 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 Principal Accounting Officer concluded that, as of September 30, 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.

3.17            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.

3.18            Financial Statements. The audited financial statements of the Company as of and for the period ended December 31, 2020 (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 September 30, 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 September 30, 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 Exchange Shares or (c) adversely affect the consummation of any of the transactions contemplated by any of the Transaction Documents.

3.19            No Undisclosed Liabilities. The Company does 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 since the date of the most recent balance sheet included in the Financial Statements.

3.20            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.

3.21            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 material 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 material compliance therewith.

3.22            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.

3.23            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 Exchange Shares, 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.

3.24            Cybersecurity. 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. 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. 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 in compliance in all material respects with 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.

3.25            No Finder’s Fees. Except for (a) the Jefferies Fee and any financing fee payable to Jefferies pursuant to the Jefferies Engagement Agreement on account of the Interim Financing, and (b) the B. Riley Fee, the Company has not paid, and is not a party to any contract or agreement to pay, to any person or entity any compensation for soliciting another to consummate the Transactions and there are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company for a commission, finder’s fee or other like payment in connection with the Transactions.

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

3.27            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 in connection with the Exchange and issuance of the Exchange Shares, 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.

3.28            Accountants. To the Company’s knowledge, 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.

3.29            Compliance with Law. 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. 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. 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 Transaction 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 Exchange Shares. 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, except where the failure to hold such authorizations would not, individually or in the aggregate, result in a Material Adverse Effect.

3.30            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.

3.31            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.

3.32            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.

3.33            Nasdaq Listing. The shares of Common Stock are listed on the Nasdaq Capital Market. The Company has not received any delisting notice relating to the shares of Common Stock listed on the Nasdaq Capital Market and the Company is in compliance with the applicable current listing and governance rules and requirements of the Nasdaq Capital Market.

3.34            No Reliance. The Company acknowledges and agrees that (a) the Company, together with its professional advisers, is capable of evaluating, to its satisfaction, the accounting, tax, financial, legal and other risks associated with the Exchange and the Recapitalization Transaction, and 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 the Recapitalization Transaction and to make an informed decision with respect thereto, (b) no statement or written material contrary to this Agreement has been made or given to the Company by or on behalf of any Participating Party or any of its officers, directors or employees, or any of their respective affiliates or representatives, (c) the terms of the Exchange are the result of bilateral negotiations among the Parties and (d) the Company has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the Transactions contemplated by this Agreement.

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF THE PARTICIPATING NOTEHOLDERS

Each Participating Noteholder hereby represents and warrants, severally and not jointly, to the Company, as follows:

4.1            Power and Authorization. Each Participating Noteholder is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation. Each Participating Noteholder has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Transactions contemplated hereby.

4.2            Valid and Enforceable Agreement; No Violations. This Agreement has been duly executed and delivered by each Participating Noteholder and constitutes a legal, valid and binding obligation of each Participating Noteholder, enforceable against each Participating Noteholder in accordance with its terms, except that such enforcement may be subject to 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) each Participating Noteholder’s organizational documents, (ii) any agreement or instrument to which such Participating Noteholder is a party or by which such Participating Noteholder or any of their respective assets are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to such Participating Noteholder.

4.3            Title to Exchanged Notes. Each Participating Noteholder is the sole legal owner of the Exchanged Notes set forth opposite its name on Schedule I hereto. Each Participating Noteholder has good, valid and marketable title to its Exchanged Notes, free and clear of any Encumbrances. Each Participating Noteholder 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 Exchanged Notes or any of its rights, title to or interest in its Exchanged 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 Exchanged Notes. Upon such Participating Noteholder’s delivery of its Exchanged Notes to the Company pursuant to the Exchange, such Exchanged Notes shall be free and clear of all Liens.

4.4            Accredited Investor/Qualified Institutional Buyer. Each Participating Noteholder is (a) an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act, and/or (b) a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act. Each Participating Noteholder understands the economic risk of its investment in the Exchange Shares, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Exchange Shares.

4.5            No Affiliate Status; Holding Period. Each Participating Noteholder 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, such Participating Noteholder did not acquire any of the Exchanged Notes, directly or indirectly, from an Affiliate of the Company. Such Participating Noteholder represents and warrants that, for purposes of Rule 144 of the Securities Act, each such Participating Noteholder has continuously held the Exchanged Notes since either October 31, 2019 or July 20, 2020, as applicable.

4.6            No Illegal Transactions. Each Participating Noteholder has not, directly or indirectly, and no person or entity acting on behalf of or pursuant to any understanding with such Participating Noteholder 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 involving any of the Company’s securities) since the time that each such Participating Noteholder was first contacted by either the Company or any other person or entity regarding the Exchange, the issuance of the Exchange Shares, this Agreement, any other transactions contemplated hereby or an investment in the Common Stock or other equity securities of the Company. Each Participating Noteholder 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 Exchange Shares, 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 the issuance of the Disclosure. Solely for purposes of this Section 4.6, subject to each Participating Noteholder’s compliance with their respective obligations under the U.S. federal securities laws and such Participating Noteholder’s respective internal policies, (a) “Participating Noteholder” shall not be deemed to include any employees, subsidiaries, desks, groups or Affiliates of the Participating Noteholder that are effectively walled off by appropriate “Fire Wall” information barriers approved by such Participating Noteholder’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 4.6 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 Participating Party.

4.7            Adequate Information; No Reliance. Each Participating Noteholder acknowledges and agrees that (a) such Participating Noteholder 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 SEC, including, without limitation, all information filed or furnished pursuant to the Exchange Act, (b) such Participating Noteholder 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) such Participating Noteholder, 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 Participating Noteholder 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 Participating Noteholder 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 such Participating Noteholder 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) such Participating Noteholder is able to represent its own interests 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 Exchanged Notes and the investment in the Exchange Shares and has the ability to bear the economic risks of its investment and can afford the complete loss of such investment.

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

4.9            Tax Reporting. On or prior to the Closing Date, each Participating Noteholder shall deliver to the Company completed IRS Forms W-9 or W-8, as applicable, with regards to such Participating Noteholder. 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 Participating Noteholder 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 such Participating Noteholder to whom such amounts would have been paid.

4.10            Stockholder Approval. Each Participating Noteholder understands and acknowledges that the conversion of the Preferred Exchange Shares (and issuance of full Conversion Shares in connection therewith) requires Stockholder Approval.

ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF ARES

Ares hereby represents and warrants to the Company, as follows:

5.1            Power and Authorization. Ares is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation. Ares has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Transactions contemplated hereby.

5.2            Valid and Enforceable Agreement; No Violations. This Agreement has been duly executed and delivered by Ares and constitutes a legal, valid and binding obligation of Ares, enforceable against Ares in accordance with its terms, except that such enforcement may be subject to 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) Ares’ organizational documents, (ii) any agreement or instrument to which Ares is a party or by which Ares or any of their respective assets are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to Ares.

5.3            Right, Title and Interest to 2L Accrued PIK Interest. Ares has sole legal right, title and interest to the 2L Accrued PIK Interest set forth opposite its name on Schedule II hereto, free and clear of any Encumbrances. Ares 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 rights, title to or interest in the 2L Accrued PIK Interest (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 2L Accrued PIK Interest.

5.4            Accredited Investor/Qualified Institutional Buyer. Ares is (a) an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act, and/or (b) a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act. Ares understands the economic risk of its investment in the Exchange Shares, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Exchange Shares.

5.5            No Illegal Transactions. Ares has not, directly or indirectly, and no person or entity acting on behalf of or pursuant to any understanding with Ares 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 involving any of the Company’s securities) since the time that Ares was first contacted by either the Company or any other person or entity regarding the Exchange, the issuance of the Exchange Shares, this Agreement, any other transactions contemplated hereby or an investment in the Common Stock or other equity securities of the Company. Ares 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 Exchange Shares, 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 9:30 a.m. (New York time) on the Business Day immediately following the Closing Date. Solely for purposes of this Section 5.5, subject to Ares’ compliance with their respective obligations under the U.S. federal securities laws and Ares’ respective internal policies, (a) “Ares” shall not be deemed to include any employees, subsidiaries, desks, groups or Affiliates of Ares that are effectively walled off by appropriate “Fire Wall” information barriers approved by Ares’ 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 5.5 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, Ares.

5.6            Adequate Information; No Reliance. Ares acknowledges and agrees that (a) Ares 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 SEC, including, without limitation, all information filed or furnished pursuant to the Exchange Act, (b) Ares 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) Ares, 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 Ares 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 Ares 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 Ares 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) Ares is able to represent its own interests 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 2L Accrued PIK Interest and the investment in the Exchange Shares and has the ability to bear the economic risks of its investment and can afford the complete loss of such investment.

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

5.8            Tax Reporting. On or prior to the Closing Date, Ares shall deliver to the Company completed IRS Forms W-9 or W-8, as applicable, with regards to Ares. 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 Ares 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 Ares to whom such amounts would have been paid.

5.9            Stockholder Approval. Ares understands and acknowledges that the full conversion of the Preferred Exchange Shares (and issuance of Conversion Shares in connection therewith) requires Stockholder Approval.

ARTICLE VI.
COVENANTS

6.1            Disclosure. Not later than 9:30 am (New York time) on the Business Day immediately following the Closing Date (and upon or prior to the commencement of the ATM Offering pursuant to Section 6.2), the Company shall issue a publicly available press release or file with the SEC a Current Report on Form 8-K disclosing (i) all material terms of the Exchange (to the extent not previously publicly disclosed) and (ii) additional cleansing material to the extent required to allow the Participating Noteholders to freely trade Common Stock (to the extent permitted by Rule 144 and the transfer restrictions described herein) (collectively, the “Disclosure”). The Company shall provide to the Participating Parties a draft of the Disclosure a reasonable period in advance of its public dissemination and shall consider in good faith any comments provided by the Participating Parties with respect to the Disclosure. If the ATM Offering is not commenced on the Trading Day immediately following the date on which the Exchange becomes effective, the Company shall promptly file the Disclosure upon written request from the Participating Noteholders (which may be made via email). To the extent the Company does not timely file the Disclosure in accordance with this Section 6.1, or the Disclosure does not contain sufficient cleansing information to remove any Trading Restriction (as defined in the NDA) of each Participating Noteholder (other than any restrictions set forth in the Transaction Documents), each Participating Noteholder shall retain all rights and remedies to disclose additional cleansing materials as provided for in the NDA.

6.2            ATM Offering. On the Business Day immediately following the Closing Date, the Company covenants and agrees to commence a public offering of shares of its Common Stock pursuant to its existing Form S-3 shelf registration statement (the “Registration Statement”) in the form of an ATM Offering. The ATM Offering shall comply with the applicable terms of this Agreement and the ATM Sales Agreement, including (a) the filing of a Prospectus Supplement to the Registration Statement simultaneously with, or immediately following, the filing of the Form 8-K pursuant to Section 6.1, and (b) listing an offering size on the Prospectus Supplement for the ATM Offering which shall be equal to the maximum number of authorized but unissued shares of Common Stock which may be sold pursuant to the Registration Statement in accordance with SEC rules (including Instruction I.B.6 to Registration Statement on Form S-3) (the “Maximum Amount”). For the avoidance of doubt, the Maximum Amount shall be calculated (a) after the issuance of the Exchange Shares pursuant to the Exchange, and (b) treating the Participating Noteholders (and the Common Stock held by such Participating Noteholders or the Voting Trustee) as “non-affiliates” for the purposes of calculating the Public Float. The Company further covenants and agrees that, following the commencement of the ATM Offering (and for so long as shares of Common Stock are eligible to be sold pursuant thereto), the Company (a) shall not amend the ATM Sales Agreement in a manner that would be materially adverse to a Participating Party; (b) shall promptly notify each Participating Party if the ATM Sales Agreement is amended or terminated (and such notification shall include a copy of any such amendment, termination notice or other applicable documentation), and (c) shall provide each Participating Party with a weekly sales report (to be delivered after the market closes each Friday via e-mail to each Participating Party or its designated representative), which shall include the aggregate amount of Placement Shares sold during the preceding five (5) Trading Days.

6.3            Costs and Expenses. The Company shall pay (a) the reasonable fees and expenses of the legal advisors of the Participating Noteholders and the Voting Trustee (collectively, “Counsel”) relating to the Recapitalization Transaction (including the Exchange, the Ares Credit Agreement Amendments, the ATM Offering and the Interim Financing) as provided for in that certain Engagement Letter by and among the Company and Stroock & Stroock & Lavan, and (b) the Jefferies Fee, in each case out of the proceeds of the ATM Offering and/or the proceeds of the Interim Financing as follows: Up to the first $750,000 of the Jefferies Fee shall be payable as proceeds of the ATM Offering are received by the Company and, after the Company has received proceeds from the ATM Offering, net of fees and discounts payable to B. Riley, of $7,500,000, the Company will pay fifty percent (50%) of all additional proceeds from the ATM Offering, net of fees and discounts payable to B. Riley, pro rata to the Professional Advisors to satisfy the outstanding balance of the payment obligations owed to each Professional Advisor, until such outstanding balances are fully satisfied.

6.4            Stockholder Approval. The Company shall use commercially reasonable best efforts (which shall include, without limitation, the engagement of a nationally reputable proxy advisor firm acceptable to the Participating Parties) (a) to obtain at its next annual or special meeting of its stockholders following the Closing Date (the “Company Stockholders’ Meeting”) the requisite approval of such stockholders (the “Stockholder Approval”) to authorize the Company to change its capital structure to provide for a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue all of the Conversion Shares pursuant to the Certificate of Designation (assuming the conversion of all issued and outstanding Preferred Exchange Shares) by either (i) authorizing additional shares of Common Stock or (ii) effectuating a reverse stock split of its outstanding shares of Common Stock, in the Company’s discretion; and (b) to cause the Company Stockholders’ Meeting to be held on or before July 1, 2021 (the “Approval Deadline”). In the event that the Stockholder Approval is not obtained on or before the Approval Deadline, the Company will issue, for no additional consideration, an additional 2,135.30 duly authorized, fully paid and non-assessable shares of Preferred Stock to Ares. With respect to each calendar quarter thereafter (commencing with the calendar quarter that begins on July 1, 2021 and ends on September 30, 2021) during which the Stockholder Approval has not been obtained, the Company will issue, for no additional consideration, an additional 2,135.30 duly authorized, fully paid and non-assessable shares of Preferred Stock to Ares (with a prorated amount of Preferred Stock to be issued in the event that the Stockholder Approval is obtained during any such calendar quarter), which payment shall be made on the first Business Day of the subsequent calendar quarter.

6.5            Indemnification. Subject to the other terms and conditions of this Section 6.5, the Company shall indemnify and defend each Participating Party and such Participating Party’s Affiliates and their respective Representatives (collectively, the "Indemnitees") against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all losses (including damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder, the cost of pursuing any insurance providers and the cost of defending against any third-party claims) incurred or sustained by, or imposed upon, the Indemnitees based upon, arising out of, with respect to or by reason of:

(i)            any inaccuracy in or breach of any of the representations or warranties of the Company contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Company pursuant to this Agreement, as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); or

(ii)           any breach or non-fulfillment of any covenant, agreement or obligation to be performed by the Company pursuant to this Agreement.

6.6            Indenture. Each Participating Noteholder acknowledges and agrees that, effective upon the Closing Date, (a) all Obligations owing to such Participating Noteholder under the Series C Indenture and each other Indenture Document shall have been satisfied in full, (b) none of the Company, the Subsidiary Guarantors and the Grantor Subsidiaries shall have any further obligation to such Participating Noteholder thereunder and (c) such Participating Noteholder shall have no further interest in any of the Collateral. Capitalized terms used in this Section 6.6 and not defined herein have the meanings assigned to them in the Series C Indenture.

6.7            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.

ARTICLE VII.
GENERAL PROVISIONS

7.1            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.

7.2            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 that would result in the application of the laws of any other jurisdiction.

7.3            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.

7.4            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 that confirmation of receipt is received by the sender and the notice is sent by an additional method provided under this Agreement, in each case to the parties hereto as follows:

(a)            If to a Participating Noteholder, 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
Email:      blawrence@stroock.com

(b)            If to Ares, to the address set forth on Ares’ signature page to this Agreement, with a copy (which shall not constitute notice) to

Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Attention: Jeffrey Letalien
Email: Jeffrey.letalien@morganlewis.com

(c)            If to the Company:

Teligent, Inc.
105 Lincoln Avenue, PO Box 687
Buena, New Jersey 08310
Attention: Philip K. Yachmetz, CLO
Email:      pyachmetz@teligent.com

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.

7.5            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.

7.6            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.

7.7            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.

7.8            Survival. All representations, warranties and covenants contained herein shall survive the execution and delivery of this Agreement, the consummation of the Exchange, the transfer of any Exchange Shares, the enforcement, amendment or waiver of any provision of this Agreement or any other Transaction Document, and the termination of this Agreement or any other Transaction Document

7.9            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.

7.10          Representation by Counsel. Each of the Parties acknowledges that it has had the opportunity to be represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would provide any Party with a defense to the enforcement of the terms of this Agreement against such Party based upon lack of legal counsel, shall have no application and is expressly waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the intent of the Parties. None of the Parties shall have any term or provision construed against such Party solely by reason of such Party having drafted the same.

[Signatures on next pages]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.

[Signature Page to Exchange Agreement (Company)]

[Signature Page to Exchange Agreement (Ares)]

[Signature Page to Exchange Agreement (Ares)]

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

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

Attention: Brett Lawrence

Email: blawrence@stroock.com

[Signature Page to Exchange Agreement (Participating Noteholder)]

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

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

Attention: Brett Lawrence

Email: blawrence@stroock.com

[Signature Page to Exchange Agreement (Participating Noteholder)]

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

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

Attention: Brett Lawrence

Email: blawrence@stroock.com

And

Blackwell Partners LLC – Series A

280 South Mangum Street, Suite 210

Durham, NC 27701

Email: jlall@duke.dumac.com

Attention: Jannine Lall

[Signature Page to Exchange Agreement (Participating Noteholder)]

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

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

Attention: Brett Lawrence

Email: blawrence@stroock.com

And

Silver Creek CS SAV, L.L.C.

1301 5th Avenue, 40th Floor

Seattle, WA 98101

Email: operations@silvercreekcapital.com

Attention: Operations Team

[Signature Page to Exchange Agreement (Participating Noteholder)]

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

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

Attention: Brett Lawrence

Email: blawrence@stroock.com

[Signature Page to Exchange Agreement (Participating Noteholder)]

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

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

Attention: Brett Lawrence

Email: blawrence@stroock.com

[Signature Page to Exchange Agreement (Participating Noteholder)]

[Signature Page to Exchange Agreement (Participating Noteholder)]

Exhibit 10.2

Execution Version

STOCKHOLDERS’ AGREEMENT

THIS STOCKHOLDERS’ AGREEMENT (this “Agreement”), is made as of January 27, 2021, by and among Teligent, Inc., a Delaware corporation (the “Company”), Ares Capital Corporation, a Maryland corporation, and each of the undersigned Affiliates thereof (collectively, “Ares”), each of the undersigned holders of Investor Exchange Shares (defined below) of the Company (each an “Investor” and, collectively the “Investors”), and, solely for purposes of Section 2, B. Riley Securities, Inc. (“B. Riley”). Ares, the Investors, and, solely for purposes of Section 2, B. Riley are collectively referred to in this Agreement as the “Holders”, and each individually as a “Holder”. The Company and the Holders are collectively referred to in this Agreement as the “Parties”, and each individually as a “Party”.

RECITALS

WHEREAS, the Parties are parties to that certain Exchange Agreement of even date herewith (the “Exchange Agreement”); and

WHEREAS, in order to induce each Party to enter into the Exchange Agreement, the Parties hereby agree that this Agreement shall govern certain rights and obligations of the Parties with respect to the equity securities of the Company.

NOW, THEREFORE, the parties hereby agree as follows:

1.1          “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with such Person, as such terms are used in and construed under Rule 144 under the Securities Act (“Rule 144”). For the avoidance of doubt, where a Holder is a separate account with multiple managers who each make independent decisions with respect to the management of a portion of the assets, such other portions of assets shall not be considered or treated as an “Affiliate” with such Holder. As used in this definition of “Affiliate,” the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or partnership or other ownership interest, by contract, or otherwise.

1.2          “Ares Credit Agreements” means (i) the First Lien Revolving Credit Agreement, dated December 13, 2018, by and among the Company, certain of its subsidiaries, the Lenders from time to time party thereto, and ACF Finco I, LP as Administrative Agent, as amended, and (ii) the Second Lien Credit Agreement, dated December 13, 2018, by and among the Company, certain of its subsidiaries, the Lenders from time to time party thereto, and Ares Capital Corporation as Administrative Agent (as amended).

1.3          “Ares Exchange Shares” means the shares of Series D Preferred Stock issued to Ares pursuant to the Exchange Agreement.

1.4          “ATM Offering” means the sale of shares of Common Stock pursuant to the ATM Sales Agreement.

1.5          “ATM Sales Agreement” means the At Market Issuance Sales Agreement of even date herewith, by and between the Company and B. Riley Securities Inc.

1.6          “Attribution Parties” means, with respect to any Holder, collectively, any of such Holder’s Affiliates, any Persons acting as a “group” together with such Holder with respect to the Common Stock for purposes of Section 13(d) of the Exchange Act, and any other Persons whose beneficial ownership of the Common Stock would be aggregated with such Holder’s beneficial ownership for purposes of Section 13(d) of the Exchange Act.

1.7          “Common Stock” means the Company’s common stock, par value $0.01 per share.

1.8          “Damages” means any loss, damage, claim or liability (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act, or other federal or state law, insofar as such loss, damage, claim or liability (or any action in respect thereof) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement of the Company, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto; (ii) an omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or (iii) any violation or alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law.

1.9          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

1.10        “Follow-Up Offering” means a public offering of shares of the Company’s Common Stock within eleven (11) months after the date on which the ATM Offering commences.

1.11        “Form S-1” means such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC.

1.12        “Form S-3” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the SEC that permits forward incorporation of substantial information by reference to other documents filed by the Company with the SEC.

1.13        “Investor Exchange Shares” means the shares of Common Stock issued to the Investors pursuant to the Exchange Agreement.

1.14        “Investor Voting Trust Agreement” means the Voting Trust Agreement of even date herewith between WSFS, as trustee, and each Investor, in substantially the form attached hereto as Exhibit A.

1.15        “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

1.16        “Registrable Securities” means (i) the shares of Common Stock issued or issuable upon conversion of the Ares Exchange Shares, (ii) the Investor Exchange Shares and (iii) the shares of Common Stock issued to B. Riley pursuant to Section 3(a)(i) of that certain letter agreement, dated as of the date hereof, by and between the Company and B. Riley.

1.17        “Rule 144 Volume Limitation” means the maximum number of shares of a class of equity securities that an affiliate of an issuer may sell during a three-month period pursuant to SEC Rule 144.

1.18        “SEC” means the Securities and Exchange Commission.

1.19        “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.

1.20        “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

1.21        “Selling Expenses” means all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements of the Selling Holder Counsel borne and paid by the Company as provided in Section 2.4.

1.22        “Series D Preferred Stock” means the Company’s Series D Preferred Stock, par value $0.01 per share.

1.23        “WSFS” means Wilmington Savings Fund Society, FSB.

2.1          Demand Registration.

(a)          Form S-1 Demand. If at any time after April 30, 2021, the Company receives a request from Ares that the Company file a Form S-1 registration statement with respect to the outstanding Registrable Securities held by Ares, then the Company shall (i) within ten (10) days after the date such request is given, give notice thereof (a “Demand Notice”) to B. Riley; and (ii) as soon as practicable, and in any event within thirty (30) days after the date such request is given by Ares, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that Ares requested to be registered and all Registrable Securities requested to be included in such registration by B. Riley (as specified by notice given by B. Riley to the Company within twenty (20) days of the date the Demand Notice is given); provided, however, that the Company shall not be required to file such a Form S-1 registration statement (A) if all of such Registrable Securities may at such time be covered under a Form S-3 registration statement pursuant to Section 2.1(b) or (B) while a Follow-Up Offering is ongoing and within thirty (30) days after the completion of any such Follow-Up Offering.

(b)          Form S-3 Demand. If at any time after April 30, 2021 when it is eligible to use a Form S-3 registration statement, the Company receives a request from Ares that the Company file a Form S-‍3 registration statement with respect to outstanding Registrable Securities held by Ares, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to the Investors and to B. Riley; and (ii) as soon as practicable, and in any event within thirty (30) days after the date such request is given by Ares, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities that Ares requested to be registered and all Registrable Securities requested to be included in such registration by each Investor and B. Riley (as specified by notice given by each such Investor and B. Riley, respectively) to the Company within ten (10) days of the date the Demand Notice is given); provided, however, that the Company shall not be required to file such a Form S-3 registration statement or issue any Demand Notice while a Follow-Up Offering is ongoing.

2.2          Company Registration. If at any time after April 30, 2021 the Company proposes to register any of its Common Stock under the Securities Act in connection with the public offering of such Common Stock (other than a Follow-Up Offering and other than any public offerings in which the Company registers shares of Common Stock on a registration statement on Form S-4 or a registration statement on Form S-8), the Company shall, at such time, promptly give Ares notice of such registration. Upon the request of Ares given within twenty (20) days after such notice is given by the Company, the Company shall cause all of the Registrable Securities that Ares has requested to be included in such registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.2 before the effective date of such registration, whether or not Ares has elected to include Registrable Securities in such registration.

2.3          Company Obligations. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

(a)          prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for a period of up to three (3) years or, if earlier, until the distribution contemplated in the registration statement has been completed;

(b)          prepare and file with the SEC such amendments and supplements to such registration statement, and the prospectus used in connection with such registration statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement;

(c)          furnish to the selling Holders such numbers of copies of a prospectus, including a preliminary prospectus, as required by the Securities Act, and such other documents as the Holders may reasonably request in order to facilitate their disposition of their Registrable Securities;

(d)          use its commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the selling Holders; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

(e)          in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering;

(f)           use its commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed;

(g)          promptly make available for inspection by the selling Holders, any managing underwriter(s) participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith;

(h)          notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed;

(i)           in the case of any underwritten offering, use its reasonable best efforts to obtain (i) one or more comfort letters from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters, and (ii) legal opinions of the Company’s outside counsel, addressed to the underwriters, with respect to the registration statement, in customary form and covering such matters of the type customarily covered by legal opinions of such nature, in each case as reasonably requested by the underwriter(s) of such offering; and

(j)           after such registration statement becomes effective, notify each selling Holder of any request by the SEC that the Company amend or supplement such registration statement or prospectus.

2.4          Expenses of Registration. All expenses (other than Selling Expenses) incurred in connection with registrations, filings, or qualifications pursuant to Section 2, including all registration, filing, and qualification fees; printers’ and accounting fees; fees and disbursements of counsel for the Company; and the reasonable fees and disbursements, not to exceed $25,000, of one counsel for the selling Holders (“Selling Holder Counsel”), shall be borne and paid by the Company; provided, however, that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Section 2.1 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all selling Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration). All Selling Expenses relating to Registrable Securities registered pursuant to this Section 2 (other than fees and disbursements of counsel to any Holder, other than the Selling Holder Counsel, which shall be borne solely by the Holder engaging such counsel) shall be borne and paid by the Holders pro rata on the basis of the number of Registrable Securities registered on their behalf.

2.5          Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably required to effect the registration of such Holder’s Registrable Securities.

2.6          Indemnification. If any Registrable Securities are included in a registration statement under this Section 2:

(a)          To the extent permitted by law, the Company will indemnify and hold harmless each selling Holder, and the partners, members, officers, directors, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Damages, and the Company will pay to each such Holder, underwriter, controlling Person, or other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 2.6(a) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable for any Damages to the extent that they arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of any such Holder, underwriter, controlling Person, or other aforementioned Person expressly for use in connection with such registration.

(b)          To the extent permitted by law, each selling Holder, severally and not jointly, will indemnify and hold harmless the Company, and each of its directors, each of its officers who has signed the registration statement, each Person (if any), who controls the Company within the meaning of the Securities Act, legal counsel and accountants for the Company, any underwriter (as defined in the Securities Act), any other Holder selling securities in such registration statement, and any controlling Person of any such underwriter or other Holder, against any Damages, in each case only to the extent that such Damages arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of such selling Holder expressly for use in connection with such registration; and each such selling Holder will pay to the Company and each other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Section 2.6(b) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; and provided further that in no event shall the aggregate amounts payable by any Holder by way of indemnity or contribution under Section 2.6(b) and 2.6(d) exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of fraud or willful misconduct by such Holder.

(c)          Promptly after receipt by an indemnified party under this Section 2.6 of notice of the commencement of any action (including any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.6, give the indemnifying party notice of the commencement thereof. The indemnifying party shall have the right to participate in such action and, to the extent the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such action.

(d)          To provide for just and equitable contribution to joint liability under the Securities Act in any case in which either: (i) any party otherwise entitled to indemnification hereunder makes a claim for indemnification pursuant to this Section 2.6 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Section 2.6 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any party hereto for which indemnification is provided under this Section 2.6, then, and in each such case, such parties will contribute to the aggregate losses, claims, damages, liabilities, or expenses to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or allegedly untrue statement of a material fact, or the omission or alleged omission of a material fact, relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission; provided, however, that, in any such case (x) no Holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered and sold by such Holder pursuant to such registration statement, and (y) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and provided further that in no event shall a Holder’s liability pursuant to this Section 2.6(d), when combined with the amounts paid or payable by such Holder pursuant to Section 2.6(b), exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of willful misconduct or fraud by such Holder.

(e)          Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Section 2.6 shall survive the completion of any offering of Registrable Securities in a registration under this Section 2, and otherwise shall survive the termination of this Agreement or any provision(s) of this Agreement.

3.1          Investor Voting Restrictions.

(a)          Each Investor hereby agrees that neither it nor any of such Investor’s Attribution Parties shall vote, or cause to be voted, any shares of Common Stock held by such Investor or such Investor’s Attribution Parties to the extent that such vote would result in such Investor, together with such Investor’s Attribution Parties, voting or causing to be voted in excess of four and nine-tenths percent (4.9%) of the outstanding shares of Common Stock of the Company as of the record date for such stockholder vote, which excess shares shall be subject to an Investor Voting Trust Agreement.

(b)          On the date hereof, each Investor has executed and delivered to the Company and WSFS an Investor Voting Trust Agreement.

3.2          Ares Voting Restrictions. Ares hereby agrees that neither Ares nor any of its affiliates shall vote, or cause to be voted, any shares of Common Stock held by Ares or its affiliates to the extent that such vote would result in Ares, together with its affiliates, voting or causing to be voted in excess of fifteen percent (15%) of the outstanding shares of Common Stock of the Company as of the record date for such stockholder vote.

4.1          ATM Offering Restriction. Neither any Holder nor any of its Affiliates shall sell or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or Series D Preferred Stock, or any beneficial interest in such shares, during the period commencing on the commencement date of the ATM Offering, and ending on the trading day immediately following the earlier of (a) the date upon which the aggregate amount of Common Stock sold pursuant to the ATM Offering equals the Maximum Amount (as defined in the ATM Sales Agreement), (b) the final date upon which Common Stock may be validly sold pursuant to the ATM Offering pursuant to the ATM Sales Agreement and in accordance with applicable SEC rules, and (c) the date of termination of the ATM Sales Agreement.

4.2          Follow-Up Offering Restriction. In the event that the Company initiates a Follow-Up Offering, neither any Holder nor any of its Affiliates shall sell or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or Series D Preferred Stock, or any beneficial interest in any such shares, during the period commencing on the later of (a) the effective date of the registration statement for such offering and (b) the commencement date of such Follow-Up Offering, and ending on the earlier of (i) sixty (60) calendar days after the commencement of such period and (ii) five (5) trading days following the completion, expiration or termination of such Follow-Up Offering.

4.3          Volume Restrictions. For so long as a Holder, together with its Affiliates, beneficially owns at least nine and nine-tenths percent (9.9%) of the outstanding shares of Common Stock (including shares of Common Stock issuable upon conversion of shares of Series D Preferred Stock, regardless of whether such shares of Series D Preferred Stock are then convertible), neither such Holder nor its Affiliates shall sell or otherwise transfer or dispose of, directly or indirectly, shares of Common Stock or Series D Preferred Stock, or any beneficial interest in any such shares, to the extent that such transfer or disposition by such Holder and its Affiliates would collectively exceed:

(a)          the Rule 144 Volume Limitation in any consecutive three (3) month period; or

(b)          two percent (2%) of the outstanding shares of Common Stock in any calendar quarter in a single transaction or series of related transactions to a single transferee or its affiliates.

4.4          Section 13 Compliance.

(a)          Neither any Holder nor any of its Affiliates shall sell or otherwise transfer, directly or indirectly, any shares of Common Stock or Series D Preferred Stock, or any beneficial interest in any such shares, to any Person that such Holder or such Affiliate thereof knows or reasonably should know is, or will be as a result of such transfer, required to file a statement on Schedule 13D or Schedule 13G with respect to equity securities of the Company pursuant to the Exchange Act.

(b)          Each Holder hereby represents and warrants that such Holder is not currently a member of a group of Persons that is required to file a statement on Schedule 13D or Schedule 13G with respect to equity securities of the Company pursuant to the Exchange Act and that such Holder has no intention to form such a group.

(c)          In the event that any Investor is required to file a statement on Schedule 13D with respect to equity securities of the Company pursuant to the Exchange Act, such Investor shall include in such Schedule appropriate disclosures to the effect that such Investor has no intent to directly or indirectly control the Company or to take any of the actions otherwise prohibited by Section 5 hereof.

4.5          Transfers to Affiliates. Subject to Section 4.4, but not withstanding anything else in this Agreement to the contrary, any Holder may at any time transfer or assign any shares of Common Stock and/or Series D Preferred Stock subject to this Agreement to any Affiliate or Attribution Party of such Holder, provided that such Affiliate or Attribution Party shall continue to be subject to the terms hereof, and, as a condition precedent to the Company’s recognition of such transfer, each such transferee or assignee shall agree in writing to be subject to each of the terms of this Agreement by executing and delivering a joinder in a form mutually acceptable to the Company and the transferor. Upon the execution and delivery of such joinder by any such transferee, such transferee shall be deemed to be a party hereto as if such transferee were the transferor and such transferee’s signature appeared on the signature pages of this Agreement and shall be deemed to be an Investor or Ares, as applicable. The Company shall not permit the transfer of any shares subject to this Agreement on its books or issue a new certificate representing any such shares unless and until such transferee shall have complied with the terms of this Section 4.5. For the avoidance of doubt, any Holder may transfer or assign any shares of Common Stock or Series D Preferred Stock subject to this Agreement to a transferee or assignee that is not an Affiliate of such Holder without compliance with this Section 4.5, but subject to the other provisions of this Agreement

4.6          Enforceability. For the avoidance of doubt, the Parties hereto acknowledge and agree that the restrictions set forth herein with respect to each Holder, as applicable, in this Section 4 shall only be enforceable (a) against such Holder and (b) by the Company.

5.            Standstill. Each Holder hereby agrees that, for a period of eighteen (18) months beginning on the date hereof, neither such Holder nor any of its Affiliates shall (and neither it nor its Affiliates will assist or encourage others to), without the prior written consent of the Company: (a) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by purchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any voting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, other than pursuant to the Exchange Agreement, conversion of the Series D Preferred Stock, or exercise of warrants currently owned by Ares, (b) seek or propose to influence or control the management or policies of the Company or to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with respect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do any of the foregoing, (c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its securities or assets, (d) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Exchange Act) in connection with any of the foregoing, (e) seek or request permission or participate in any effort to do any of the foregoing or make or seek permission to make any public announcement with respect to the foregoing or (f) request the Company or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph; provided, however, that this Section 5 shall not in any way (a) limit the rights and remedies of Ares pursuant to the Ares Credit Agreements, or (b) apply to the release of Trust Shares (as defined in the Voting Trust Agreement) to any Investor pursuant to the Voting Trust Agreement; provided further, that, for the avoidance of doubt, the Parties hereto acknowledge and agree that the restrictions set forth herein with respect to each Holder, as applicable, in this Section 5 shall only be enforceable (a) against such Holder and (b) by the Company.

6.            Board Observer Right. The Investors acknowledge and agree that their right to designate an individual to attend meetings of the Company’s Board of Directors, pursuant to Section 5(m) of that certain Note Purchase Agreement, dated July 20, 2020, with the Company, terminated upon the closing of the Exchange Agreement.

7.            Reports Under Exchange Act. With a view to making available to the Holders the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration statement on Form S-3, the Company shall:

(a)            make and keep available adequate current public information, as those terms are understood and defined in SEC Rule 144, at all times;

(b)            use commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and

(c)            furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144, the Securities Act, and the Exchange Act, and (ii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration or pursuant to Form S-3.

8.            Disclosure. The Company hereby agrees that contemporaneously with (or immediately following) the completion of the ATM Offering, it will submit or cause to be submitted an 8-K filing with the SEC disclosing, among other things, the amount of issued and outstanding shares of Common Stock as of the date thereof and after giving effect to the ATM Offering.

9.1          Successors and Assigns. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned, in whole or in part, by any Party without the prior written consent of the other Parties. Any purported assignment in violation of the preceding sentence shall be void. Subject to the foregoing, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assignees of the Parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

9.2          Governing Law. This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.

9.3          Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

9.4          Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.

9.5          Notices.

(a)            All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (i) personal delivery to the party to be notified; (ii) when sent, if sent by electronic mail during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All communications to the Investors shall be sent to their respective addresses as set forth on such Investors’ respective signature pages hereto (as applicable), and all communications to the Company or Ares shall be sent to their respective addresses set forth below, or, in each case, to such email address or address as subsequently modified by written notice given in accordance with this Section 9.5:

If to the Company:

Teligent, Inc.

105 Lincoln Avenue,

Buena, New Jersey 08310

Attention:  Philip K. Yachmetz, Chief Legal Officer

Email: pyachmetz@teligent.com

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, Esq.

Email: whitney.smith@klgates.com

If to Ares:

Ares Capital Corporation

245 Park Avenue, 44th Floor

New York, New York 10167

Attention: Ray Wright

Email: wright@aresmgmt.com

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

Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, NY 10178

Attention:  Jeffrey Letalien

Email: jeffrey.letalien@morganlewis.com

(b)            Consent to Electronic Notice. Each of Ares and each Investor consents to the delivery of any stockholder notice pursuant to the Delaware General Corporation Law (the “DGCL”), as amended or superseded from time to time, by electronic transmission pursuant to Section 232 of the DGCL (or any successor thereto) at the electronic mail address set forth in Section 9.5(a) or below such Investor’s name on Schedule A hereto, as updated from time to time by notice to the Company, or as on the books of the Company. To the extent that any notice given by means of electronic transmission is returned or undeliverable for any reason, the foregoing consent shall be deemed to have been revoked until a new or corrected electronic mail address has been provided, and such attempted electronic notice shall be ineffective and deemed to not have been given. Each of Ares and each Investor agrees to promptly notify the Company of any change in such stockholder’s electronic mail address, and that failure to do so shall not affect the foregoing.

9.6          Amendments and Waivers. Any term of this Agreement may be amended, modified or terminated and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of all of the Parties; provided, however, that any provision hereof may be waived by any waiving party on such party’s own behalf only, without the consent of any other party. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.

9.7          Severability. In case any one (1) or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.

9.8          Entire Agreement. This Agreement, together with the Exchange Agreement, constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and supersedes any other written or oral agreement relating to the subject matter hereof existing between the parties.

9.9          Dispute Resolution. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Delaware and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Delaware or the United States District Court for the District of Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. WAIVER OF JURY TRIAL: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

9.10        Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or non-defaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

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IN WITNESS WHEREOF, the undersigned party has executed this Agreement as of the date first written above.

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IN WITNESS WHEREOF, the undersigned party has executed this Agreement as of the date first written above.

[Signature Page to Stockholders’ Agreement] 

[Signature Page to Stockholders’ Agreement]

IN WITNESS WHEREOF, the undersigned party has executed this Agreement as of the date first written above.

[Signature Page to Stockholders’ Agreement]

[Signature Page to Stockholders’ Agreement]

[Signature Page to Stockholders’ Agreement]

[Signature Page to Stockholders’ Agreement]

[Signature Page to Stockholders’ Agreement]

[Signature Page to Stockholders’ Agreement]

IN WITNESS WHEREOF, the undersigned party has executed this Agreement as of the date first written above.

[Signature Page to Stockholders’ Agreement]

Exhibit 10.3

Execution Version

voting TRUST AGREEMENT

This VOTING TRUST AGREEMENT (together with all schedules, exhibits and annexes hereto, this “Agreement”), dated as of January 27, 2021 (the “Effective Date”), between Teligent, Inc. a Delaware corporation (the “Company”), [MANAGER] (“Manager”), on behalf of the funds or accounts managed or sub-advised by them, severally and not jointly, as set forth on Annex A hereto (the “Accounts” and, collectively with Manager, “Holder”), and Wilmington Savings Fund Society, FSB, as trustee (the “Trustee”). Capitalized terms used herein and not otherwise defined shall have the meaning set forth in Annex B hereto.

WHEREAS, the Company and Holder have entered into that certain Exchange Agreement (the “Exchange Agreement”), pursuant to which Holder exchanged certain debt issued by the Company and held by Holder for Shares (the “Exchange”), upon the terms and conditions set forth in the Exchange Agreement;

WHEREAS, in connection with, and as a condition to, the Exchange Agreement, the Company and Holder agreed to establish a voting trust to hold all Shares issuable to Holder in connection with the closing of the Exchange in excess of the Ownership Threshold (the “Initial Trust Shares”) as well as Excess Shares subsequently acquired or owned by Holder, as set forth on Annex A hereto;

WHEREAS, the Voting Trust created by this Agreement (the “Voting Trust”) is being formed to hold the Trust Shares and for the Trustee to vote such Trust Shares strictly in accordance with the terms hereof;

WHEREAS, the Company (with Holder’s consent) irrevocably instructed the Transfer Agent to deliver the Initial Trust Shares to the Voting Trust, as set forth in the Transfer Agent Instruction Letter; and

WHEREAS, Holder desires to have the Trustee accept the Trust Shares, and irrevocably instructs the Trustee to, upon receipt of a Vote Notification, grant a proxy to vote the Trust Shares in accordance with this Agreement, as more fully set forth herein.

NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree as follows:

a.            Purpose of the Voting Trust. The purpose of the Voting Trust is to hold the Trust Shares and to set forth the manner in which the Trustee shall vote the Trust Shares

b.            Issuance of Trust Shares. On or prior to the Effective Date, the Company (with Holder’s consent) shall direct the Transfer Agent to deliver to the Trustee the Initial Trust Shares, as set forth in the Transfer Agent Instruction Letter. Within thirty (30) calendar days of a change in capitalization or ownership (however occurring) which results in Holder owning Shares in excess of the Buffer Threshold, Holder agrees to transfer to the Trustee all Shares which constitute Excess Shares. The Trustee shall hold a book-entry position on the records of the Transfer Agent with respect to all Trust Shares (as adjusted pursuant to the terms of this Agreement). The Trustee is hereby fully authorized and empowered to receive the allocation of the Trust Shares from the Transfer Agent, and upon such issuance, such Trust Shares shall become assets of the Voting Trust. The Company’s stock ledger shall reflect that the Trust Shares are issued pursuant to this Agreement.

c.            Acceptance by Trustee. The Trustee hereby accepts (a) the trust created by this Agreement, (b) the appointment to serve as trustee hereunder and (c) the transfer of all Trust Shares to be held as the assets of the Voting Trust. The Trustee agrees to hold the Trust Shares, to perform any act in respect of the Trust Shares and to release the Trust Shares only in accordance with the terms of this Agreement, and shall not have the power or authority to engage in any other activity or perform any act except in pursuit of the foregoing purpose and any activity that is necessary or incidental to the foregoing purpose.

d.            Evidence of Beneficial Interest. Holder shall be the beneficiary of the Voting Trust. Ownership of a beneficial interest in the Voting Trust shall not be evidenced by any certificate, security or receipt or in any other form or manner whatsoever, except as evidenced by this Agreement and maintained on the books and records of the Voting Trust by the Trustee.

e.            No Legal Title to Trust Shares in Holder. The Holder shall not have legal title to any part of the Trust Shares and shall not be entitled to transfer or convey any interest in (including, without limitation, any encumbrance on) the Trust Shares except as provided in Section 4. No creditor of the Holder shall be able to obtain legal title to or exercise legal or equitable remedies with respect to the Trust Shares. No transfer, by operation of law or otherwise, of any right, title and interest of Holder in its undivided beneficial interest in the Trust Shares or hereunder shall operate to terminate this Agreement or the Voting Trust created in this Agreement except as provided in Section 8 of this Agreement.

f.            Nature of Voting Trust. The Voting Trust is intended to be a common law trust and is not intended to be and shall not be deemed to be, and shall not be treated as, a Delaware statutory trust, a general partnership, limited partnership, joint venture, corporation, joint stock company, association or any other type of business entity.

g.            Filing; Inspection. Copies of counterparts of this Agreement, signed by the Holder, and of every amendment or supplement hereto, shall be filed in the registered office of the Company in the State of Delaware or in the Company’s principal place of business where it shall be available for inspection by any stockholder of the Company or beneficiary under this Agreement daily during business hours.

a.            Term of Service. The Trustee shall serve until the earlier of (a) the termination of the Voting Trust in accordance with Section 8 of this Agreement or (b) such Trustee’s resignation, removal or liquidation.

b.            T rust Continuance. The resignation, removal or liquidation of the Trustee shall not terminate the Voting Trust or revoke any existing agency created by the Trustee pursuant to this Agreement or invalidate any action theretofore taken by the Trustee, and each successor Trustee agrees that the provisions of this Agreement shall be binding upon and inure to the benefit of the successor Trustee and all his, her or its heirs and legal and personal representatives, successors or assigns.

c.            Services. The Trustee shall be entitled to engage in such other activities as it reasonably deems appropriate that are not in conflict with this Agreement.

d.            Resignation. The Trustee may resign at any time upon thirty (30) days written notice to the Company; provided, that such resignation shall only become effective upon the appointment of a successor Trustee by the mutual agreement of the Company and the Holder that shall become fully vested with all of the rights, powers, duties and obligations of its predecessor, whereupon the predecessor Trustee shall be fully released from all responsibilities relating to the Voting Trust.

e.            Removal. The Trustee may be removed at any time, with or without cause, by mutual agreement of the Holder and the Company; provided, such removal shall not become effective until a successor Trustee has been appointed by the Company with the consent of the Holder. An individual or individuals and/or bank or trust company may be appointed by the Company as successor Trustee. If the Trustee resigns or is removed or otherwise ceases to serve as Trustee hereunder and the Company fails to select a successor a replacement Trustee reasonably acceptable to Holder within fifteen (15) days thereafter, Holder may appoint a successor Trustee in its reasonable discretion.

f.            Successor by Merger, etc. Any corporation or other entity into which Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which Trustee shall be a party, or any corporation or other entity to which substantially all the corporate trust business of Trustee may be transferred, shall be Trustee under this Agreement without further act by or on behalf of any of the parties to this Agreement.

g.            Compensation. Trustee shall receive as compensation for its services hereunder such fees as have been separately agreed to on or before the date hereof pursuant to a separate agreement. To the extent that reasonable costs and expenses not contemplated by such fee agreement are incurred by Trustee in the administration of this Agreement which are not due to gross negligence or bad faith on Trustee’s part or otherwise subject to indemnification in connection with Sections 5 or 6, Trustee shall send written notice to the Company itemizing such costs or expenses and requesting reimbursement for such reasonable costs and expenses. The Company hereby agrees to reimburse Trustee for such reasonable costs and expenses. The obligations of the Company contained in this Section 2(g) shall survive the resignation or removal of Trustee and the termination of this Agreement.

a.            Voting Agreement. During the term of this Agreement, and upon receipt of a Vote Notification, the Trustee agrees (with respect to all Trust Shares held by the Voting Trust) to vote (or cause to be voted) such Trust Shares at every annual, special or other meeting of the stockholders of the Company, and at any adjournment thereof, or pursuant to any consent in lieu of a meeting, or otherwise, pursuant to the instruction set forth in Section 3(d) (the “Voting Instruction”). The Trustee (i) shall have the right to waive notice of any meeting of stockholders of the Company in respect of all Trust Shares and (ii) may exercise any power or perform any act hereunder by an agent, proxy or attorney duly authorized and appointed by it.

b.            Proxy. Upon receipt of a Vote Notification, in furtherance of the voting agreement contained in Section 3(a), the Trustee shall, with respect to each Trust Share held by the Trust as of such date, deliver a proxy to the Company in the form attached hereto as Exhibit B (the “Proxy”), authorizing the persons named therein (with full power of substitution and re-substitution) to execute a written consent (or vote at a meeting) and to cause the Trust Shares to be present at a meeting of stockholders for quorum and voting purposes in accordance with the Voting Instruction with respect to such Trust Shares.

c.            Vote Notifications. The Company shall timely, and in no event less than ten (10) Business Days prior to the deadline for such vote, provide the Trustee with notification of any of the following (each a “Vote Notification”): (i) any matter subject to a vote of holders of Common Stock of the Company, at a meeting of the stockholders of the Company, or (ii) any matter subject to an action by written consent by holders of Common Stock of the Company. For the avoidance of doubt, Trustee shall have no obligation to deliver a consent for any Trust Shares if the Trustee has not, in a timely manner, received an applicable Vote Notification.

d.            Voting Instruction. Holder irrevocably and unconditionally directs the Trust, during the term hereof, to vote the Trust Shares (or give or deny consent in lieu thereof) in the same proportions as the Qualifying Shares (as more fully set forth in the form of Proxy). For the purposes of this Agreement, at any given time, the “Qualifying Shares” shall mean all Shares other than (a) the Trust Shares, (b) the Holder Shares and (c) the Shares held by the parties listed on Annex C hereto.

a.            Officer’s Certificate. At any time during the term of this Agreement, Holder may deliver an Officer’s Certificate to Trustee in the form attached as Exhibit A hereto (the “Certificate”). Holder shall simultaneously send a copy of the Certificate to the Company. As set forth in the Certificate, the Required Parties shall certify, as of the date indicated therein, (a) the amount of Holder Shares, (b) the Total Shares, (c) the Percentage Ownership; (d) the Requested Trust Shares; and (e) the Pro Forma Percentage Ownership. For the avoidance of doubt, in calculating the amounts for clauses (a), (b), (c), (d) and (e) to be contained in the Officer’s Certificate, Holder and each Required Party shall be entitled to rely upon, and shall be fully protected in (and not incur liability for) relying upon, (a) the Total Shares reported by the Company in its most recent publicly available filing with the SEC (unless the Holder has reason to believe such information is not current), and/or (b) the most recent weekly sales reported delivered to Holder pursuant to Section 6.2 of the Exchange Agreement, as applicable.

b.            Release Requirements. Provided that (i) Holder complies with the delivery and notification requirements set forth in Section 4(a), (ii) the Certificate complies with the form attached hereto (and the Pro Forma Percentage Ownership listed therein is less than or equal to the Ownership Threshold), and (iii) during the Notice Period, the Company does not provide to Holder a written objection to the release of the Requested Trust Shares (based on the Company’s good faith belief that the Holder’s calculations in the applicable Officer’s Certificate, including without limitation the Holder Shares or Ownership Percentage contained therein, are inaccurate or misleading), then, upon the expiration of the Notice Period, the Trust shall promptly release the Requested Trust Shares to the Holder in accordance with the Delivery Instructions attached to the Certificate.

c.            Transfer Agent. The Company shall use commercially reasonable efforts to cause the Transfer Agent to (i) effectuate the issuance of the Trust Shares to Holder pursuant to the Delivery Instructions promptly at the end of Notice Period, and (ii) promptly deliver via electronic mail a copy of the Direct Registration Statement reflecting the issuance to Holder’s counsel (Brett Lawrence (blawrence@Stroock.com) and Robert Levine (rlevine@stroock.com)). Holder may contact the following representatives of the Transfer Agent directly regarding these matters at the following contact information: Bryan Anderson (BAnderson@astfinancial.com) and Jana Nitti (Jnitti@astfinancial.com).

a.            Trustee undertakes to perform such duties, and only such duties, as are specifically set forth in this Agreement (including Sections 1 through 4 hereof). No implied covenants or obligations shall be read into this Agreement against Trustee. If this Agreement requires that Trustee receive a Vote Notification or other written notice prior to the taking of an action hereunder, under no circumstances shall Trustee take such action without first having received such Vote Notification or written notice. Trustee does not have any discretion hereunder and is acting in a purely ministerial capacity. Neither Trustee nor any of its officers, directors, employees, agents or affiliates shall have any implied duties (including common law fiduciary duties) or liabilities under this Agreement or with respect to Holder or any other person, which implied duties and liabilities are hereby eliminated. Trustee shall not be answerable or accountable to the Company, Holder or other stockholders or creditors of the Company under any circumstances except that Trustee shall be liable, in its individual capacity solely to the Company and Holder, (i) for Trustee’s own gross negligence, bad faith, willful misconduct or fraud, or (ii) for any taxes on or measured by the fees received by Trustee for acting hereunder or for services rendered in connection with the transactions contemplated hereby.

b.            In the absence of bad faith on its part, Trustee may conclusively rely upon any notices, instructions, directions, certificates or opinions furnished to Trustee and conforming to the requirements of this Agreement. Trustee may comply with any order or decree of any court of competent jurisdiction

c.            Trustee shall not be personally liable or accountable to any person or entity under any circumstances; provided, however, that Trustee may be liable, solely to Company and Holder, for Trustee’s own gross negligence, bad faith, willful misconduct or fraud; provided, further, that Trustee shall have no personal liability for any error or judgment made in good faith by any employee or agent of Trustee unless such person was grossly negligent.

d.            Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity and enforceability of this Agreement or any of, or filings with respect to, the securities of the Company. Trustee shall not be responsible for or in respect of and makes no representation as to the validity or sufficiency of any provision of this Agreement or for the due execution hereof by the other parties hereto, or for the form, character, genuineness, sufficiency, value or validity of any of the securities of the Company, and Trustee shall in no event assume or incur any liability, duty or obligation to the Company, Holder or other stockholders or creditors of the Company, other than as expressly provided for herein.

e.            Trustee shall not be liable with respect to any action taken or omitted to be taken by it in accordance with the instructions, notices or directions provided to it in a Vote Notification, if applicable, by Holder or the Company in accordance with and subject to this Agreement.

f.            No provision of this Agreement or any other document or instrument related hereto shall require Trustee to expend or risk funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder.

g.            Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement, at the request, order or direction of Holder or the Company, unless Holder has offered to Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred by Trustee therein or thereby. The right of Trustee to perform any discretionary act enumerated in this Agreement (if any) shall not be construed as a duty, and Trustee shall not be personally liable or accountable for the performance of any such act except as specifically provided in Sections 1 through 5 herein.

h.            Trustee shall not be required to take any action hereunder or otherwise if Trustee shall have reasonably determined, or shall have been advised by counsel, that such action is likely to result in liability on the part of Trustee or is contrary to the terms hereof or is otherwise contrary to law.

i.            Whenever Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision of this Agreement, Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to Holder requesting instruction as to the course of action to be adopted, and, to the extent Trustee acts in good faith in accordance with any such instruction received, Trustee shall not be liable on account of such action to any person or entity. If Trustee shall not have received instructions within five (5) Business Days of sending such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may refrain from taking any action and Trustee shall have no liability to any person or entity for any such inaction.

j.            Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, instruction, direction, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties and need not investigate any fact or matter in any such document as long as Trustee has otherwise satisfied its obligations under this Agreement. Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of the determination of which is not specifically prescribed herein, Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officers of the relevant party, as to such fact or matter, and such certificate shall constitute full protection to Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.

k.            Trustee shall not be personally liable for any losses due to forces beyond its reasonable control, including strikes, work stoppages, pandemics, epidemics, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, and closures mandated by executive or other similar orders.

l.            Trustee shall not be personally liable for any damages in the nature of special, indirect or consequential damages, however styled, including lost profits.

m.            Trustee shall have the discretion and right to select and employ legal counsel to assist it in the exercise and performance of its authority and obligations, and Trustee may rely upon the advice so obtained, and may pay to them reasonable compensation, which shall be promptly reimbursed by Holder. Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, unless the loss to Holder was primarily caused by the gross negligence, bad faith, willful misconduct or fraud of Trustee as determined in a final and non-appealable judgment by a court of competent jurisdiction.

6.            Indemnification. Holder and the Company shall, jointly and severally, at all times (i) defend, indemnify and hold harmless Trustee from and against any claim, damage, loss, liability, cost or expense of any kind or character whatsoever arising out of, from, or in connection with this Agreement or Trustee’s execution of or performance or inaction under this Agreement, except to the extent such claim, damage, loss, liability, cost or expense is found by a final non-appealable judgment of any court of competent jurisdiction to have resulted from the Trustee’s own gross negligence, bad faith, willful misconduct or fraud, and (ii) pay in advance all costs and expenses of any proceeding with respect to which Trustee shall be made a party thereto (including reasonable fees and expenses of counsel), subject to receipt of an undertaking by or on behalf of Trustee to repay such amounts if it shall ultimately be determined that the Trustee is not entitled to be indemnified under this Section 6; provided, however, that Holder shall not be liable for any losses or damage primarily caused by the Company (and vice versa). The indemnities and other rights set forth in this Section 6 shall be in addition to any other rights of Trustee hereunder or at common law or otherwise and shall survive the resignation or removal of the Trustee and the termination of this Agreement.

7.            Dividends and Distributions. All dividends or distributions declared and paid on the Trust Shares deposited hereunder shall be distributed to Holder upon receipt provided that any dividends or distributions of Shares issued with respect to the Trust Shares by reason of any capital reorganization, stock split, combination, stock dividend or the like shall be held by the Trustee as Trust Shares; provided, that Trustee or the Trust may retain so much of such payment or amounts as shall be required to pay or reimburse it for any properly invoiced and unpaid or unreimbursed fees or expenses to which it is entitled hereunder.

8.            Termination. The Trustee shall be discharged and the Voting Trust shall be terminated and dissolved, and this Agreement shall no longer continue to be in effect (except as to provisions that by their terms survive), on the earliest to occur of (a) mutual agreement of the Company and the Holder to terminate this Agreement and the Voting Trust, (b) the termination of the Stockholders’ Agreement in accordance with its terms, and (c) the date upon which all of the Trust Shares have been released to Holder pursuant to Section 4. Upon the occurrence of (a), (b) or (c) in the preceding sentence, this Agreement shall automatically terminate in its entirety.

9.            Miscellaneous.

a.            Successors and Assigns. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned, in whole or in part, by any party without the prior written consent of the other parties hereto. Any purported assignment in violation of the preceding sentence shall be void. Subject to the foregoing, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assignees of the parties hereto. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

b.            Interpretation. The enumeration and section headings contained in this Agreement are solely for convenience of reference and shall not affect the meaning or interpretation of this Agreement or of any term or provision hereof. Unless context otherwise requires, whenever used in this Agreement the singular shall include the plural and the plural shall include the singular, and words importing the masculine gender shall include the feminine and the neuter, if appropriate, and vice versa, and words importing persons shall include partnerships, associations, corporations and other entities. The words herein, hereby and hereunder, and words with similar import, refer to this Agreement as a whole and not to any particular section or subsection hereof unless the context requires otherwise.

c.            Legal Matters. The Company, the Holder and the Trustee shall reasonably cooperate with each other to comply with any applicable securities and/or other regulatory requirements with respect to this Agreement.

d.            Irrevocability. Subject to the termination provisions hereunder, this Agreement and the Voting Trust created hereunder shall be irrevocable to the fullest extent permitted by law.

e.            Governing Law. This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.

f.            Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

g.            Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.

h.            Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (i) personal delivery to the party to be notified; (ii) when sent, if sent by electronic mail during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next Business Day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) Business Day after the Business Day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All communications to the parties hereto shall be sent to their respective addresses on their respective signature page.

i.            Amendments and Waivers. Any term of this Agreement may be amended, modified or terminated and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of all of the parties; provided, however, that any provision hereof may be waived by any waiving party on such party’s own behalf only, without the consent of any other party. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.

j.            Severability. In case any one (1) or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.

k.            Entire Agreement. This Agreement constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and supersedes any other written or oral agreement relating to the subject matter hereof existing between the parties.

l.            Dispute Resolution. Each of the parties hereto (i) hereby irrevocably and unconditionally submits to the jurisdiction of the state courts of Delaware and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (ii) agrees not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Delaware or the United States District Court for the District of Delaware, (iii) hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court and (iv) agrees to accept service of process when directed to such party at such party’s notice address as set forth on the signature pages hereto in accordance with the provisions of Section 9(h). WAIVER OF JURY TRIAL: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

m.            Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or non-defaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

n.            Further Assurances. Subject to the other provisions of this Agreement, from and after the Effective Date, the parties hereto covenant and agree to execute and deliver all such documents and notices and to take all such further actions as may reasonably be required from time to time to carry out the intent and purposes of this Agreement, and to consummate the transactions contemplated hereby.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, each party hereto has duly executed and delivered this Agreement as of the date first written above.

[Signature Page to Voting Trust Agreement]

IN WITNESS WHEREOF, each party hereto has duly executed and delivered this Agreement as of the date first written above.

[Signature Page to Voting Trust Agreement]

IN WITNESS WHEREOF, each party hereto has duly executed and delivered this Agreement as of the date first written above.

[Signature Page to Voting Trust Agreement]

Exhibit 10.4

EXECUTION VERSION

AMENDMENT NO. 6

TO SECOND LIEN CREDIT AGREEMENT

This AMENDMENT NO. 6 TO SECOND LIEN CREDIT AGREEMENT, dated as of January 27, 2021 (this “Amendment”), is by and among TELIGENT, INC., a Delaware corporation (the “Borrower”), the other Credit Parties signatory hereto, the lenders from time to time party hereto (each a “Lender” and, collectively, the “Lenders”), ARES CAPITAL CORPORATION, a Maryland corporation (“ARCC”), as administrative agent and collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”). For purposes of this Amendment, all terms used herein which are not otherwise defined herein, including but not limited to those terms used in the recitals hereto, shall have the respective meanings assigned thereto in the Amended Credit Agreement (as defined below).

WHEREAS, the Administrative Agent, Lenders, Borrower and other Credit Parties have entered into financing arrangements pursuant to which the Lenders (or Administrative Agent on behalf of the Lenders) have made and shall make Loans and provide other financial accommodations to Borrower as set forth in (i) the Second Lien Credit Agreement, dated as of December 13, 2018, as amended by that certain Amendment No. 1 to Second Lien Credit Agreement, dated as of February 8, 2019, as amended by that certain Amendment No. 2 to Second Lien Credit Agreement, dated as of July 18, 2019 and effective as of June 29, 2019, as amended by that certain Consent and Amendment No. 3 to Second Lien Credit Agreement, dated as of October 31, 2019, as amended by that certain Amendment No. 4 to Second Lien Credit Agreement, dated as of April 6, 2020 and effective as of December 31, 2019, as amended by that certain Amendment No. 5 to Second Lien Credit Agreement, dated as of July 20, 2020 (as in effect prior to the effectiveness of this Amendment, the “Credit Agreement”, and as the same is further amended by this Amendment and as may be further amended, restated, supplemented or otherwise modified from time to time, the “Amended Credit Agreement”), by and among the Administrative Agent, Lenders, Borrower and other Credit Parties and (ii) the other Credit Documents, including, without limitation, this Amendment;

WHEREAS, on the Amendment No. 6 Effective Date, the Borrower has requested that the Lenders extend credit to the Borrowers in the form of a delayed draw term loan facility (the “DDTL C Facility”) in the aggregate principal amount of up to $4,600,000, the proceeds of which facility shall be used to finance cash disbursements of amounts outlined in the Approved Budget attached hereto as Annex II;

WHEREAS, the Borrower has informed the Administrative Agent and the Lenders that certain Events of Default have occurred as set forth in detail on Annex V attached hereto (such Events of Default are hereinafter referred to as the “Specified Defaults”);

WHEREAS, the Borrower and the Third Lien Noteholders desire that on or about January 27, 2021, the Third Lien Noteholders will exchange 100% of the Third Lien Convertible Notes for Capital Stock of the Borrower in the form of common stock and preferred stock (the “Third Lien Exchange”);

WHEREAS, concurrently with the Third Lien Exchange, the Borrower, the Lenders and Administrative Agent have agreed upon a restructuring of the Indebtedness whereby (a) a portion of the Term Loans constituting interest that was paid in kind thereon in accordance with Section 2.08(f) of the Credit Agreement in the principal amount of $24,549,952.45 will be converted into an aggregate of 85,411.93 Series D Preferred Stock of the Borrower to be issued to the Lenders pursuant to that pursuant to that certain Exchange Agreement, dated as of the date hereof, by and among the Borrower, the Lenders and the Third Lien Noteholders signatory thereto (the “Exchange Agreement”) and (b) the remaining amount of the Term Loans, in the principal amount of $80,000,000.00 shall be continued as Term Loans thereunder (such transactions, the “Ares PIK Exchange”, and together with the Third Lien Exchange, the “Debt Exchange”);

WHEREAS, on the Business Day following the Debt Exchange, the Borrower will launch (the date of such launch, the “ATM Launch Date”) an at-the-market offering of common Capital Stock pursuant to the Borrower’s existing Form S-3 shelf registration statement and a prospectus supplement (the “ATM Offering”); and

WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders (i) waive the Specified Defaults and (ii) amend certain provisions of the Credit Agreement, as provided more fully herein.

NOW THEREFORE, in consideration of the foregoing premises and the mutual agreements and covenants contained in the Credit Agreement and herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

Section 1. Amendments to the Credit Agreement. Subject to the conditions to effectiveness set forth in Section 3 hereof, and in reliance upon the representations and warranties made by the Credit Parties in Section 2 hereof, pursuant to Section 12.01 of the Credit Agreement and subject to the terms and conditions herein, the Credit Agreement is hereby amended as set forth below in this Section 1.

1.01.       The Credit Agreement is hereby amended in its entirety (inclusive of Schedules 1.01(a) and 7.04) with the document pages attached hereto as Annex I.

Section 2. Representations and Warranties. Each Credit Party, jointly and severally, hereby represents and warrants to the Lenders and the Administrative Agent as follows, which representations and warranties are continuing and shall survive the execution and delivery hereof:

2.01        No Default. At and as of the date of this Amendment and both prior to and after giving effect to this Amendment, no Default or Event of Default is continuing (other than the Specified Defaults).

2.02       Representations and Warranties True and Correct. At and as of the date of this Amendment and both prior to and after giving effect to this Amendment, each of the representations and warranties contained in the Credit Agreement and other Credit Documents (other than those set forth on Annex III hereto) is true and correct in all material respects (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date).

2.03       Corporate Power and Authority. Each Credit Party has the corporate or other organizational power and authority to execute and deliver this Amendment and carry out the terms and provisions of this Amendment and the Amended Credit Agreement and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment and the performance of the Amended Credit Agreement. Each Credit Party has duly executed and delivered this Amendment, and this Amendment and the Amended Credit Agreement constitute the valid and binding agreements of such Credit Party enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law).

2.04       No Violation. The execution, delivery and performance by any Credit Party of this Amendment and the performance of the Amended Credit Agreement, and compliance with the terms and provisions thereof, will not (i) contravene any applicable provision of any material Applicable Law of any Governmental Authority, (ii) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any Credit Party (other than Permitted Liens and Liens created under the Credit Documents) pursuant to (A) the terms of any material indenture, loan agreement, lease agreement, mortgage or deed of trust, or (B) any other Material Contract, in the case of either clause (ii)(A) or (ii)(B), to which any Credit Party is a party or by which it or any of its property or assets is bound, or (iii) violate any provision of the Organization Documents of any Credit Party, except with respect to any conflict, breach or contravention or default (but not creation of Liens) referred to in clause (ii), to the extent that such conflict, breach, contravention or default could not reasonably be expected to have a Material Adverse Effect.

Section 3. Conditions Precedent. This Amendment shall not become effective until each of the following conditions is satisfied (or waived by the Required Lenders):

3.01       The Administrative Agent shall have received counterparts of this Amendment duly executed by each Credit Party signatory hereto and each other relevant party to this Amendment;

3.02       The representations and warranties contained in Section 2 hereof (other than those set forth on Annex III hereto) shall be true and correct in all material respects on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date);

3.03       The Administrative Agent shall have received the Approved Budget (as defined in the Amended Credit Agreement) in the form attached hereto as Annex II;

3.04       The Administrative Agent shall have received Annex IV setting forth a detailed description of certain litigation, actions or proceedings;

3.05       The Administrative Agent shall have received a Participation Agreement, dated as of the date hereof, duly executed by the Administrative Agent, ARCC and each other relevant party signatory thereto with respect to the $1,600,000 participation interest in the DDTL C Facility and substantially in the form attached hereto as Annex VI (collectively, the “Participation Agreements”);

3.06       The Administrative Agent shall have received a certificate for each Credit Party party to the Amendment, dated as of the date hereof, duly executed and delivered by an Authorized Officer of such Credit Party party to the Amendment certifying as to:

(i)               The resolutions of each such Person’s board of managers/directors (or other managing body, in the case of a Person that is not a corporation) then in full force and effect expressly and specifically authorizing, to the extent relevant, all aspects of this Amendment applicable to such Person and the execution, delivery and performance of this Amendment to be executed by such Person;

(ii)              the incumbency and signatures of its Authorized Officers and any other of its officers, managing member or general partner, as applicable, authorized to act with respect to this Amendment to be executed by such Person;

(iii)            certifying that there have been no amendments, modifications or other changes to such Person’s Organization Documents and a certificate of incorporation for the Borrower certified by the appropriate officer or official body of the State of Delaware; and

(iv)             certificates of good standing with respect to each Credit Party, each dated within a recent date prior to the date hereof, such certificates to be issued by the appropriate officer or official body of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction;

3.07       The Administrative Agent shall have received, for its own account, the fees, costs and expenses due and payable to it pursuant to Section 12.05 of the Amended Credit Agreement (including the reasonable fees, disbursements and other charges of one (1) counsel to the Administrative Agent and First Lien Agent) for which invoices have been presented prior to the date hereof;

3.08       The Administrative Agent shall have received counterparts of the Amendment No. 4 to First Lien Credit Agreement duly executed by the First Lien Agent, each Credit Party signatory thereto and each other relevant party thereto; and

3.09       The Administrative Agent shall have received counterparts of the Second Amended and Restated Fee Letter duly executed by each Credit Party signatory hereto and each other relevant party to this Amendment.

Section 4. Conditions Subsequent. Each Credit Party acknowledges and agrees that the failure to comply with each of the following conditions by the applicable dates specified below shall constitute an immediate Event of Default under the Credit Agreement:

4.01       Substantially concurrently with the ATM Launch Date, but in any event no later than January 28, 2021, the Administrative Agent shall have received a certificate from an Authorized Officer of the Borrower certifying as to the launch of the ATM Offering in accordance with Applicable Laws and the ATM Sales Agreement (without any amendment or modification thereto);

4.02       No later than July 1, 2021, the Borrower shall submit to a shareholder vote at a meeting of its shareholder a change to its capital structure to either (i) authorize additional shares of common stock of the Borrower or (ii) effectuate a reverse stock split of the Borrower’s outstanding shares of common stock, in each case, in an amount sufficient to consummate the Debt Exchange;

4.03       Within five (5) Business Days after the Amendment No. 6 Effective Date, the Borrower shall deliver to the Administrative Agent original stock certificates representing that portion of the Term Loans converted into Series D Preferred Stock pursuant to the Ares PIK Exchange;

4.04       Within five (5) Business Days after the Amendment No. 6 Effective Date, the Borrower shall cause each Restricted Credit Party (other than Teligent OU) to execute and deliver to the Administrative Agent a joinder to this Amendment evidencing such Restricted Credit Party’s agreement with and acknowledgment of the terms and conditions set forth in this Amendment; and

4.05       Within five (5) Business Days of the Amendment No. 6 Effective Date, the Administrative Agent shall have received counterparts of the Second Amended and Restated Subordinated Intercompany Note duly executed by each Credit Party party thereto.

Section 5. Consent. The Borrower hereby consents, notwithstanding anything to the contrary set forth in Section 12.06 of the Amended Credit Agreement, to the terms and conditions set forth in the Participation Agreements.

Section 6. Waiver. Effective as of the date hereof and subject to the satisfaction of the conditions set forth in Section 3 hereof, Administrative Agent and the Lenders signatory hereto hereby waive the Specified Defaults. The waiver contained in this Section 6 is a limited waiver and (i) shall only be relied upon and used for the specific purpose set forth herein, (ii) shall not constitute nor be deemed to constitute a waiver, except as otherwise expressly set forth herein, of (a) any Default or Event of Default other than those enumerated on Annex V hereto or (b) any term or condition of the Credit Agreement and the other Loan Documents, (iii) shall not constitute nor be deemed to constitute a consent by the Administrative Agent or any Lender to anything other than the specific purpose set forth herein and (iv) shall not constitute a custom or course of dealing among the parties hereto.

Section 7. Miscellaneous.

7.01       No Waiver or Modification. Nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition (except as set forth in Section 6 hereof) contained in the Credit Agreement or any other Credit Document or constitute a course of conduct or dealing among the parties. The Administrative Agent and Lenders reserve all rights, privileges and remedies under the Credit Documents. Except as expressly amended hereby, the Credit Agreement and other Credit Documents remain unmodified and in full force and effect in accordance with their respective terms and are hereby ratified and confirmed in all respects.

7.02       Credit Document. This Amendment shall constitute a Credit Document under and as defined in the Amended Credit Agreement. All references in the Credit Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as amended hereby.

7.03       Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ANY CLAIM, CONTROVERSY OR DISPUTE UNDER, ARISING OUT OF OR RELATING TO THIS AMENDMENT, WHETHER BASED IN CONTRACT (AT LAW OR IN EQUITY), TORT OR ANY OTHER THEORY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

7.04       Counterparts. This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or in electronic format (i.e., “pdf” or “tif”) by electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment.

7.05       Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not affect the interpretation of this Amendment.

7.06       Binding Effect; Assignment. This Amendment shall be binding upon and inure to the benefit of the Borrower, the other Credit Parties, the Administrative Agent and the Lenders and their respective successors and assigns in accordance with the terms of the Credit Agreement.

7.08       Integration. This Amendment, the Amended Credit Agreement, and the other Credit Documents incorporate all negotiations of the parties hereto with respect to the subject matter hereof and thereof and are the final expression and agreement of the parties hereto and thereto with respect to the subject matter hereof and thereof. This Amendment, the Amended Credit Agreement, and the other Credit Documents represent the agreement of the parties hereto with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by any party hereto or thereto relative to the subject matter hereof or thereof not expressly set forth or referred to herein or therein.

7.09       Reaffirmation. Each Credit Party as debtor, grantor, pledgor, guarantor, assignor, or in any other similar capacity in which such Credit Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each Credit Document to which it is a party (after giving effect hereto) and (ii) to the extent such Credit Party granted liens on or security interests in any of its property pursuant to any such Credit Document as security for or otherwise guaranteed the Borrower’s Obligations under or with respect to the Credit Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby.

7.10       Release of Claims. In consideration of the Lenders’ and Administrative Agent’s agreements contained in this Amendment, each Credit Party hereby irrevocably releases and forever discharges the Lenders and the Administrative Agent and their respective affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “Released Person”) of and from any and all claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which such Credit Party ever had or now has against the Administrative Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions prior to the date hereof of the Administrative Agent, any Lender or any other Released Person relating to the Amended Credit Agreement or any other Credit Document.

7.11       Electronic Signatures. Section 12.02(b) of the Credit Agreement is hereby incorporated herein, mutatis mutandis.

[Remainder of the page intentionally left blank]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

[Signature Page to Amendment No. 6 to Second Lien Credit Agreement]

[Signature Page to Amendment No. 6 to Second Lien Credit Agreement]