EXCHANGE AGREEMENT (this “Agreement”), dated as of March 3, 2015, by and between TetraLogic Pharmaceuticals Corporation, a Delaware corporation, with offices located at 343 Phoenixville Pike, Malvern, PA 19355 (the “Company”), and the investor that is a signatory to this Agreement (the “Investor”).
WHEREAS, on June 23, 2014, the Company issued certain 8.00% Convertible Senior Notes due 2019 (the “Notes”) to certain investors, which Notes are convertible into shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), in accordance with that certain indenture, dated June 23, 2014, by and between the Company and U.S. Bank National Association, as trustee (the “Indenture”).
WHEREAS, the Investor currently beneficially owns and wishes to exchange such aggregate principal amount of Notes as set forth below the Investor’s name on its signature page attached hereto (the “Investor Notes”).
WHEREAS, the Company and the Investor desire to enter into this Agreement, pursuant to which, among other things, the Investor shall exchange the Investor Notes plus all accrued but unpaid interest through the date of the Exchange (as defined below), for such number of shares of Common Stock as set forth below the Investor’s name on its signature page attached hereto (the “Exchange Shares”) in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”).
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter set forth, the Company and the Investor hereby agree as follows:
1.EXCHANGE OF INVESTOR NOTES.
(a)On the Closing Date (as defined below), the Investor shall, and the Company shall, pursuant to Section 3(a)(9) of the Securities Act, exchange the Investor Notes for the Exchange Shares, without the payment of any additional consideration (the “Exchange”), as follows:
(i)In exchange for the Investor Notes, on the Closing Date, the Company shall (A) cause American Stock Transfer & Trust Company LLC (“Transfer Agent”) to credit the Exchange Shares to the Investor’s or its designee’s account in accordance with the instructions set forth below the Investor’s name on its signature page attached hereto on the books and records of the Company kept by the Transfer Agent, and (B) pay to Investor the cash amount of $825,001.08 to the bank account designated by the Investor in writing to the Company prior to the Closing Date.
(ii)The Investor shall deliver or cause to be delivered to the Company (or its designee) for cancellation the Investor Notes through the facilities of The Depository Trust Company.
(iii)Promptly following the receipt of the Investor Notes, the Company shall surrender such Investor Notes to U.S. Bank National Association for cancellation in accordance with the provisions of the Indenture.
(iv)The Company and the Investor shall execute and/or deliver such other documents and agreements as are customary and reasonably necessary to effectuate the Exchange.
(b)The consummation of the Exchange and other transactions contemplated hereunder shall take place as soon as possible following the date hereof on a date mutually agreed to by the parties following completion of all formalities required with the Transfer Agent, Trustee and Depository Trust Company for the Exchange and confirmation of the listing of the Exchange Shares on the NASDAQ. Such date shall be referred to herein as the “Closing Date”.
2.WAIVER. From and after the consummation of the Exchange and receipt of the Exchange Shares hereunder, the Investor hereby waives its right to receive the payment of principal or interest under the Investor Notes and any and all rights, title and interests under the Investor Notes and the Indenture.
3.REPRESENTATIONS AND WARRANTIES
(a)Investor Representations and Warranties. The Investor hereby represents and warrants to the Company that, as of the date hereof and as of the Closing Date:
(i)The Investor has all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Investor and the consummation by the Investor of the transactions contemplated hereby have been duly and validly authorized by its board of directors or other governing body, and no other proceedings on its part are necessary to authorize this Agreement or to consummate such transactions. This Agreement has been duly and validly executed and delivered by the Investor and, assuming due authorization, execution and delivery by the other parties hereto, constitutes its legal, valid and binding obligation, enforceable against such Investor in accordance with its terms, except to the extent enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors’ rights generally or by general principles governing the availability of equitable remedies.