Exhibit 4.1





 


Execution Version




 





 









 






 


SHIFT TECHNOLOGIES, INC.


 


and


 


U.S. BANK NATIONAL ASSOCIATION


 


as Trustee


 





 



 


INDENTURE


 


Dated as of May 27, 2021


 





 



 


4.75% Convertible Senior Notes due 2026


 


 


 


 


 






 






 



     


     


    




 


TABLE OF CONTENTS


 





		 	Page
	 	 	 
	Article 1.	Definitions; Rules of Construction	1
	 	 	 
	Section 1. 01.	Definitions.	1
	Section 1.02.	Other Definitions.	12
	Section 1.03.	Rules of Construction.	12
	 	 	 
	Article 2.	The Notes	13
	 	 	 
	Section 2.01.	Form, Dating and Denominations.	13
	Section 2.02.	Execution, Authentication and Delivery.	13
	Section 2.03.	Initial Notes and Additional Notes.	14
	Section 2.04.	Method of Payment.	15
	Section 2.05.	Accrual of Interest; Defaulted Amounts; When Payment Date is Not a Business Day.	16
	Section 2.06.	Registrar, Paying Agent and Conversion Agent.	16
	Section 2.07.	Paying Agent and Conversion Agent to Hold Property in Trust.	17
	Section 2.08.	Holder Lists.	18
	Section 2.09.	Legends.	18
	Section 2.10.	Transfers and Exchanges; Certain Transfer Restrictions.	19
	Section 2.11.	Exchange and Cancellation of Notes to Be Converted or to Be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.	23
	Section 2.12.	Removal of Transfer Restrictions.	24
	Section 2.13.	Replacement Notes.	25
	Section 2.14.	Registered Holders; Certain Rights with Respect to Global Notes.	25
	Section 2.15.	Cancellation.	25
	Section 2.16.	Notes Held by the Company or its Affiliates.	25
	Section 2.17.	Temporary Notes.	26
	Section 2.18.	Outstanding Notes.	26
	Section 2.19.	Repurchases by the Company.	27
	Section 2.20.	CUSIP and ISIN Numbers.	27
	 	 	 
	Article 3.	Covenants	27
	 	 	 
	Section 3.01.	Payment on Notes.	27
	Section 3.02.	Exchange Act Reports.	27
	Section 3.03.	Rule 144A Information.	27
	Section 3.04.	Additional Interest.	28
	Section 3.05.	Compliance and Default Certificates.	29
	Section 3.06.	Stay, Extension and Usury Laws.	29
	Section 3.07.	Acquisition of Notes by the Company and its Affiliates.	29


 






    - i -


     


    

 





	Article 4.	Repurchase and Redemption	30
	 	 	 
	Section 4.01.	No Sinking Fund.	30
	Section 4.02.	Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change.	30
	Section 4.03.	Right of the Company to Redeem the Notes.	34
	 	 	 
	Article 5.	Conversion	37
	 	 	 
	Section 5.01.	Right to Convert.	37
	Section 5.02.	Conversion Procedures.	40
	Section 5.03.	Settlement upon Conversion.	41
	Section 5.04.	Shares to be Fully Paid.	45
	Section 5.05.	Adjustments to the Conversion Rate.	45
	Section 5.06.	Voluntary Adjustments.	55
	Section 5.07.	Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change.	56
	Section 5.08.	[Reserved.]	57
	Section 5.09.	Effect of Common Stock Change Event.	57
	Section 5.10.	Responsibility of Trustee and Conversion Agent	59
	 	 	 
	Article 6.	Successors	59
	 	 	 
	Section 6.01.	When the Company May Merge, Etc.	59
	Section 6.02.	Successor Corporation Substituted.	60
	 	 	 
	Article 7.	Defaults and Remedies	60
	 	 	 
	Section 7.01.	Events of Default.	60
	Section 7.02.	Acceleration.	62
	Section 7.03.	Sole Remedy for a Failure to Report.	63
	Section 7.04.	Other Remedies.	64
	Section 7.05.	Waiver of Past Defaults.	64
	Section 7.06.	Control by Majority.	64
	Section 7.07.	Limitation on Suits.	65
	Section 7.08.	Absolute Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and Conversion Consideration.	65
	Section 7.09.	Collection Suit by Trustee.	65
	Section 7.10.	Trustee May File Proofs of Claim.	66
	Section 7.11.	Priorities.	66
	Section 7.12.	Undertaking for Costs.	67
	 	 	 
	Article 8.	Amendments, Supplements and Waivers	67
	 	 	 
	Section 8.01.	Without the Consent of Holders.	67
	Section 8.02.	With the Consent of Holders.	68
	Section 8.03.	Notice of Amendments, Supplements and Waivers.	69
	Section 8.04.	Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc.	69
	Section 8.05.	Notations and Exchanges.	70
	Section 8.06.	Trustee to Execute Supplemental Indentures.	70


 






    - ii -


     


    

 





	Article 9.	Satisfaction and Discharge	71
	 	 	 
	Section 9.01.	Termination of Company’s Obligations.	77
	Section 9.02.	Repayment to Company.	71
	Section 9.03.	Reinstatement.	72
	 	 	 
	Article 10.	Trustee	72
	 	 	 
	Section 10.01.	Duties of the Trustee.	72
	Section 10.02.	Rights of the Trustee.	73
	Section 10.03.	Individual Rights of the Trustee.	74
	Section 10.04.	Trustee’s Disclaimer.	74
	Section 10.05.	Notice of Defaults.	75
	Section 10.06.	Compensation and Indemnity.	75
	Section 10.07.	Replacement of the Trustee.	76
	Section 10.08.	Successor Trustee by Merger, Etc.	77
	Section 10.09.	Eligibility; Disqualification.	77
	 	 	 
	Article 11.	Miscellaneous	77
	 	 	 
	Section 11.01.	Notices.	77
	Section 11.02.	Delivery of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.	79
	Section 11.03.	Statements Required in Officer’s Certificate and Opinion of Counsel.	79
	Section 11.04.	Rules by the Trustee, the Registrar and the Paying Agent.	79
	Section 11.05.	No Personal Liability of Directors, Officers, Employees and Stockholders.	79
	Section 11.06.	Governing Law; Waiver of Jury Trial.	80
	Section 11.07.	Submission to Jurisdiction.	80
	Section 11.08.	No Adverse Interpretation of Other Agreements.	81
	Section 11.09.	Successors.	81
	Section 11.10.	Force Majeure.	81
	Section 11.11.	U.S.A. PATRIOT Act.	81
	Section 11.12.	Calculations.	81
	Section 11.13.	Severability; Entire Agreement.	82
	Section 11.14.	Counterparts.	82
	Section 11.15.	Table of Contents, Headings, Etc.	82
	Section 11.16.	Withholding Taxes.	82


 





	Exhibits	 	 
	 	 	 
	Exhibit A: Form of Note 	A-1
	Exhibit B-1: Form of Restricted Note Legend 	B1-1
	Exhibit B-2: Form of Global Note Legend 	B2-1
	Exhibit B-3: Form of Non-Affiliate Legend 	B3-1


 






    - iii -


     


    

 


INDENTURE, dated as
of May 27, 2021, between Shift Technologies, Inc., a Delaware corporation, as issuer (the “Company”), and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”).


 


Each party to this Indenture
(as defined below) agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders (as defined
below) of the Company’s 4.75% Convertible Senior Notes due 2026 (the “Notes”).


 


Article
1. Definitions; Rules of Construction


 


Section
1.01. Definitions.


 


“Additional Interest”
has the meaning ascribed to it in the Registration Rights Agreement.


 


“Affiliate”
has the meaning set forth in Rule 144 as in effect on the Issue Date.


 


“Authorized Denomination”
means, with respect to a Note, a principal amount minimum denomination equal to $1,000 or any integral multiple of $1,000 in excess thereof.


 


“Bankruptcy Law”
means Title 11, United States Code, or any similar U.S. federal or state or non-U.S. law for the relief of debtors.


 


“Bid Solicitation
Agent” means the Person who is required to obtain bids for the Trading Price in accordance with Section 5.01(C)(i)(2)
and the definition of “Trading Price.” The initial Bid Solicitation Agent on the Issue Date will be the Company; provided,
however, that the Company may appoint any other Person (including any of the Company’s Subsidiaries) to be the Bid Solicitation
Agent at any time after the Issue Date without prior notice.


 


“Board of Directors”
means the board of directors of the Company or a committee of such board duly authorized to act on behalf of such board.


 


“Business Day”
means any day other than a Saturday, a Sunday or any day on which banking institutions or trust companies in the City of New York, New
York or the principal office of the Trustee are authorized or obligated by law, regulation or executive order to close or be closed.


 


“Capital Stock”
of any Person means any and all shares of, interests in, rights to purchase, warrants or options for, participations in, or other equivalents
of, in each case however designated, the equity of such Person, but excluding any debt securities convertible into such equity.


 


“Close of Business”
means 5:00 p.m., New York City time.


 


“Common Stock”
means the Class A common stock of the Company, par value $0.0001 per share, at the date of this Indenture, subject to Section 5.09.


 






    - 1 -


     


    

 


“Company”
means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and assigns.


 


“Company Order”
means a written request or order signed on behalf of the Company by one (1) of its Officers and delivered to the Trustee.


 


“Conversion Date”
means, with respect to a Note, the first Business Day on which the requirements set forth in Section 5.02(A) to convert such Note
are satisfied, subject to Section 5.03(C).


 


“Conversion Price”
means, as of any time, an amount equal to (A) one thousand dollars ($1,000) divided by (B) the Conversion Rate in effect at such
time.


 


“Conversion Rate”
initially means 118.6556 shares of Common Stock per $1,000 principal amount of Notes; provided, however, that the Conversion
Rate is subject to adjustment pursuant to Article 5; provided, further, that whenever this Indenture refers to the
Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the
Conversion Rate immediately after the Close of Business on such date.


 


“Conversion Share”
means any share of Common Stock issued or issuable upon conversion of any Note.


 


“Corporate Trust
Office” means the office of the Trustee at which at any particular time this Indenture shall be principally administered, which
office at the date hereof is located at 190 S. LaSalle Street, Chicago, IL 60603, or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor trustee (or such other
address as such successor trustee may designate from time to time by notice to the holders and the Company).


 


“Daily Cash Amount”
means, with respect to any VWAP Trading Day, the lesser of (A) the applicable Daily Maximum Cash Amount; and (B) the Daily Conversion
Value for such VWAP Trading Day.


 


“Daily Conversion
Value” means, with respect to any VWAP Trading Day, one-fortieth (1/40th) of the product of (A) the Conversion Rate on such
VWAP Trading Day; and (B) the Daily VWAP per share of Common Stock on such VWAP Trading Day.


 


“Daily Maximum Cash
Amount” means, with respect to the conversion of any Note, the quotient obtained by dividing (A) the Specified Dollar Amount
applicable to such conversion by (B) forty (40).


 


“Daily Share Amount”
means, with respect to any VWAP Trading Day, the quotient obtained by dividing (A) the excess, if any, of the Daily Conversion Value for
such VWAP Trading Day over the applicable Daily Maximum Cash Amount by (B) the Daily VWAP for such VWAP Trading Day. For the avoidance
of doubt, the Daily Share Amount will be zero for such VWAP Trading Day if such Daily Conversion Value does not exceed such Daily Maximum
Cash Amount.


 






    - 2 -


     


    

 


“Daily VWAP”
means, for any VWAP Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg
VWAP” on Bloomberg page “SFT <EQUITY> AQR” (or, if such page is not available, its equivalent successor page)
in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such
VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such VWAP
Trading Day, determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm
selected by the Company, which may include any of the Initial Purchasers). The Daily VWAP will be determined without regard to after-hours
trading or any other trading outside of the regular trading session.


 


“Default”
means any event that is (or, after notice, passage of time or both, would be) an Event of Default.


 


“Default Settlement
Method” means, initially, Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes;
provided, however, that (x) subject to Section 5.03(A)(iii), the Company may, from time to time, change the Default
Settlement Method by sending written notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent
(if other than the Trustee) (it being understood that no such change will affect any Settlement Method theretofore elected (or deemed
to be elected) with respect to any Note pursuant to this Indenture); and (y) the Default Settlement Method will be subject to Section
5.03(A)(ii).


 


“Depositary”
means The Depository Trust Company or its successor.


 


“Depositary Participant”
means any member of, or participant in, the Depositary.


 


“Depositary Procedures”
means, with respect to any conversion, transfer, exchange or transaction involving a Global Note or any beneficial interest therein, the
rules and procedures of the Depositary applicable to such conversion, transfer, exchange or transaction.


 


“Ex-Dividend Date”
means, with respect to an issuance, dividend or distribution on the Common Stock, the first date on which shares of Common Stock trade
on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance, dividend or distribution
(including pursuant to due bills or similar arrangements required by the relevant stock exchange). For the avoidance of doubt, any alternative
trading convention on the applicable exchange or market in respect of the Common Stock under a separate ticker symbol or CUSIP number
will not be considered “regular way” for this purpose.


 


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


 






    - 3 -


     


    

 


“Fundamental Change”
means any of the following events:


 


(A) a
“person” or “group” (within the meaning of Section 13(d) of the Exchange Act), other than the Company or its Wholly
Owned Subsidiaries, or their respective employee benefit plans files a Schedule TO (or any successor schedule, form or report) or any
schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial
owner” (as defined below) (i) of shares of the common equity representing more than fifty percent (50%) of the voting power of all
classes of the Company’s common equity; or (ii) of more than 50% of the outstanding shares of the Common Stock;


 


(B) the
consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all of
the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or (ii) any transaction or series of related transactions
in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization,
acquisition, liquidation or otherwise) all of the Common Stock is exchanged for, converted into, acquired for, or constitutes solely the
right to receive, other securities, cash or other property; provided, however, that any merger, consolidation, share exchange
or combination of the Company pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined below)
all classes of the Company’s common equity immediately before such transaction directly or indirectly “beneficially own,”
immediately after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing or acquiring
company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as
immediately before such transaction will be deemed not to be a Fundamental Change pursuant to this clause (B);


 


(C) the
Company’s stockholders approve any plan or proposal for the liquidation or dissolution of the Company; or


 


(D) the
Common Stock ceases to be listed on any of The New York Stock Exchange, The NASDAQ Capital Market, The NASDAQ Global Market or The NASDAQ
Global Select Market (or any of their respective successors);


 


provided, however, that a transaction
or event described in clause (A) or (B) above will not constitute a Fundamental Change if at least ninety percent (90%) of the
consideration received or to be received by the holders of Common Stock (excluding cash payments for fractional shares or pursuant to
dissenters rights), in connection with such transaction or event, consists of shares of common stock listed on any of The New York Stock
Exchange, The NASDAQ Capital Market, The NASDAQ Global Market or The NASDAQ Global Select Market (or any of their respective successors),
or that will be so listed when issued or exchanged in connection with such transaction or event, and such transaction or event constitutes
a Common Stock Change Event whose Reference Property consists of such consideration.


 






    - 4 -


     


    

 


For the purposes of this definition,
(x) any transaction or event described in both clause (A) and in clause (B)(i) or (ii) above (without regard to the
proviso in clause (B)) will be deemed to occur solely pursuant to clause (B) above (subject to such proviso); and (y) whether
a Person is a “beneficial owner” and whether shares are “beneficially owned” will be determined
in accordance with Rule 13d-3 under the Exchange Act.


 


“Fundamental Change
Repurchase Date” means the date fixed for the repurchase of any Notes by the Company pursuant to a Repurchase Upon Fundamental
Change, which must be a Business Day that is no more than 35, nor less than 20, Business Days after the date the Company sends the Fundamental
Change Repurchase Notice.


 


“Fundamental Change
Repurchase Notice” means a notice (including a notice substantially in the form of the “Fundamental Change Repurchase
Notice” set forth in Exhibit A) containing the information, or otherwise complying with the requirements, set forth in Section
4.02(F)(i) and Section 4.02(F)(ii).


 


“Fundamental Change
Repurchase Price” means the cash price payable by the Company to repurchase any Note upon its Repurchase Upon Fundamental Change,
calculated pursuant to Section 4.02(D).


 


“Global Note”
means a Note that is represented by a certificate substantially in the form set forth in Exhibit A, registered in the name of the
Depositary or Cede & Co., as its nominee, duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee,
as custodian for the Depositary.


 


“Global Note Legend”
means a legend substantially in the form set forth in Exhibit B-2.


 


“Holder”
means a person in whose name a Note is registered on the Registrar’s books.


 


“Indenture”
means this Indenture, as amended or supplemented from time to time.


 


“Initial Purchasers”
means J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC.


 


“Interest Payment
Date” means, with respect to a Note, each May 15 and November 15 of each year, commencing on November 15, 2021 (or commencing
on such other date specified in the certificate representing such Note). For the avoidance of doubt, the Maturity Date is an Interest
Payment Date.


 


“Issue Date”
means May 27, 2021.


 


“Last Reported Sale
Price” of the Common Stock for any Trading Day means the closing sale price per share (or, if no closing sale price is reported,
the average of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last
bid prices and the average last ask prices per share) of Common Stock on such Trading Day as reported in composite transactions for the
principal U.S. national or regional securities exchange on which the Common Stock is then listed. If the Common Stock is not listed on
a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price
per share of Common Stock on such Trading Day in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization.
If the Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the mid-point of the
last bid price and the last ask price per share of Common Stock on such Trading Day from each of at least three (3) nationally recognized
independent investment banking firms selected by the Company, which may include any of the Initial Purchasers. Neither the Trustee nor
the Conversion Agent will have any duty to determine the Last Reported Sale Price.


 






    - 5 -


     


    

 


“Make-Whole Fundamental
Change” means (A) a Fundamental Change (determined after giving effect to the proviso immediately after clause (D) of
the definition thereof, but without regard to the proviso to clause (B)(ii) of such definition); or (B) the sending of a Redemption
Notice pursuant to Section 4.03(F); provided, however, that, subject to Section 4.03(I), the sending of a
Redemption Notice will constitute a Make-Whole Fundamental Change only with respect to the Notes called (or deemed to be called pursuant
to Section 4.03) for Redemption pursuant to such Redemption Notice and not with respect to any other Notes.


 


“Make-Whole Fundamental
Change Conversion Period” has the following meaning:


 


(A) in
the case of a Make-Whole Fundamental Change pursuant to clause (A) of the definition thereof, the period from, and including, the
Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change to, and including, the thirty fifth (35th) Trading
Day after such Make-Whole Fundamental Change Effective Date (or, if such Make-Whole Fundamental Change also constitutes a Fundamental
Change, to, but excluding, the related Fundamental Change Repurchase Date); and


 


(B) in
the case of a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof, the period from, and including, the
Redemption Notice Date for the related Redemption to, and including, the Business Day immediately before the related Redemption Date;


 


provided, however, that if the Conversion
Date for the conversion of a Note that has been called (or deemed, pursuant to Section 4.03(I), to be called) for Redemption occurs
during the Make-Whole Fundamental Change Conversion Period for both a Make-Whole Fundamental Change occurring pursuant to clause (A)
of the definition of “Make-Whole Fundamental Change” and a Make-Whole Fundamental Change resulting from such Redemption pursuant
to clause (B) of such definition, then, notwithstanding anything to the contrary in Section 5.07, solely for purposes of
such conversion, (x) such Conversion Date will be deemed to occur solely during the Make-Whole Fundamental Change Conversion Period for
the Make-Whole Fundamental Change with the earlier Make-Whole Fundamental Change Effective Date; and (y) the Make-Whole Fundamental Change
with the later Make-Whole Fundamental Change Effective Date will be deemed not to have occurred.


 


“Make-Whole Fundamental
Change Effective Date” means (A) with respect to a Make-Whole Fundamental Change pursuant to clause (A) of the definition
thereof, the date on which such Make-Whole Fundamental Change occurs or becomes effective; and (B) with respect to a Make-Whole Fundamental
Change pursuant to clause (B) of the definition thereof, the applicable Redemption Notice Date.


 






    - 6 -


     


    

 


“Market Disruption
Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled
close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Common Stock
is listed for trading or trades, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding
limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating
to the Common Stock.


 


“Maturity Date”
means May 15, 2026.


 


“Non-Affiliate Legend”
means a legend substantially in the form set forth in Exhibit B-3.


 


“Note Agent”
means any Registrar, Paying Agent or Conversion Agent.


 


“Notes”
means the 4.75% Convertible Senior Notes due 2026 issued by the Company pursuant to this Indenture.


 


“Observation Period”
means, with respect to any Note to be converted, (A) subject to clause (B) below, if the Conversion Date for such Note occurs on
or before November 15, 2025, the forty (40) consecutive VWAP Trading Days beginning on, and including, the third (3rd) VWAP Trading Day
immediately after such Conversion Date; and (B) if such Conversion Date occurs on or after the date the Company has sent a Redemption
Notice calling such Note for Redemption pursuant to Section 4.03(F) and before the related Redemption Date, the forty (40) consecutive
VWAP Trading Days beginning on, and including, the forty first (41st) Scheduled Trading Day immediately before such Redemption Date; and
(C) subject to clause (B) above, if such Conversion Date occurs on or after November 15, 2025, the forty (40) consecutive VWAP
Trading Days beginning on, and including, the forty first (41st) Scheduled Trading Day immediately before the Maturity Date.


 


“Officer”
means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of the Company.


 


“Officer’s
Certificate” means a certificate that is signed on behalf of the Company by one (1) of its Officers and that meets the requirements
of Section 11.03.


 


“Open of Business”
means 9:00 a.m., New York City time.


 


“Opinion of Counsel”
means an opinion in writing signed by legal counsel (including an employee of, or counsel to, the Company or any of its Subsidiaries)
reasonably acceptable to the Trustee, that meets the requirements of Section 11.03, subject to customary qualifications and exclusions.


 


“Person”
or “person” means any individual, corporation, partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof. Any division or
series of a limited liability company, limited partnership or trust will constitute a separate “person” under this Indenture.


 






    - 7 -


     


    

 


“Physical Note”
means a Note (other than a Global Note) that is represented by a certificate substantially in the form set forth in Exhibit A,
registered in the name of the Holder of such Note and duly executed by the Company and authenticated by the Trustee.


 


“Purchase Agreement”
means that certain Purchase Agreement, dated May 24, 2021, between the Company and the Initial Purchasers.


 


“Redemption”
means the repurchase of any Note by the Company pursuant to Section 4.03.


 


“Redemption Date”
means the date fixed, pursuant to Section 4.03(D), for the settlement of the repurchase of any Notes by the Company pursuant to
a Redemption.


 


“Redemption Notice
Date” means, with respect to a Redemption, the date on which the Company sends the Redemption Notice for such Redemption pursuant
to Section 4.03(F).


 


“Redemption Price”
means the cash price payable by the Company to redeem any Note upon its Redemption, calculated pursuant to Section 4.03(E).


 


“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of or about the date hereof, among the Company and the Initial
Purchasers.


 


“Regular Record Date”
with respect to any Interest Payment Date, means the May 1 or November 1 (whether or not such day is a Business Day) immediately preceding
the applicable May 15 or November 15 Interest Payment Date, respectively.


 


“Repurchase Upon
Fundamental Change” means the repurchase of any Note by the Company pursuant to Section 4.02.


 


“Responsible Officer”
means (A) any officer of the Trustee assigned by the Trustee having direct responsibility for the administration of this Indenture; and
(B) with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge
of, and familiarity with, the particular subject.


 


“Restricted Note
Legend” means a legend substantially in the form set forth in Exhibit B-1.


 


“Restricted Stock
Legend” means, with respect to any Conversion Share, a legend substantially to the effect that the offer and sale of such Conversion
Share have not been registered under the Securities Act and that such Conversion Share cannot be sold or otherwise transferred except
pursuant to a transaction that is registered under the Securities Act or that is exempt from, or not subject to, the registration requirements
of the Securities Act.


 






    - 8 -


     


    

 


“Rule 144”
means Rule 144 under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.


 


“Rule 144A”
means Rule 144A under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.


 


“Scheduled Trading
Day” means any day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange on which
the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the
principal other market on which the Common Stock is then traded. If the Common Stock is not so listed or traded, then “Scheduled
Trading Day” means a Business Day.


 


“SEC” means
the U.S. Securities and Exchange Commission.


 


“Securities Act”
means the U.S. Securities Act of 1933, as amended.


 


“Security”
means any Note or Conversion Share.


 


“Shelf Registration
Statement” has the meaning ascribed to it in the Registration Rights Agreement.


 


“Settlement Method”
means Cash Settlement, Physical Settlement or Combination Settlement.


 


“Significant Subsidiary”
means, with respect to any Person, any Subsidiary of such Person that constitutes, or any group of Subsidiaries of such Person that, in
the aggregate, would constitute, a “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Exchange
Act) of such Person.


 


“Special Interest”
means any interest that accrues on any Note pursuant to Section 7.03.


 


“Specified Dollar
Amount” means, with respect to the conversion of a Note to which Combination Settlement applies, the maximum cash amount per
$1,000 principal amount of such Note deliverable upon such conversion (excluding cash in lieu of any fractional share of Common Stock).


 


“Stock Price”
has the following meaning for any Make-Whole Fundamental Change: (A) if the holders of Common Stock receive only cash in consideration
for their shares of Common Stock in such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is pursuant to clause
(B) of the definition of “Fundamental Change,” then the Stock Price is the amount of cash paid per share of Common Stock
in such Make-Whole Fundamental Change; and (B) in all other cases, the Stock Price is the average of the Last Reported Sale Prices per
share of Common Stock for the five (5) consecutive Trading Days ending on, and including, the Trading Day immediately before the Make-Whole
Fundamental Change Effective Date of such Make-Whole Fundamental Change.


 






    - 9 -


     


    

 


“Subsidiary”
means, with respect to any Person, (A) any corporation, association or other business entity (other than a partnership or limited liability
company) of which more than fifty percent (50%) of the total voting power of the Capital Stock entitled (without regard to the occurrence
of any contingency, but after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting
power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or other business entity
is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person; and (B) any partnership
or limited liability company where (i) more than fifty percent (50%) of the capital accounts, distribution rights, equity and voting interests,
or of the general and limited partnership interests, as applicable, of such partnership or limited liability company are owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person, whether in the form of membership, general,
special or limited partnership or limited liability company interests or otherwise; and (ii) such Person or any one or more of the other
Subsidiaries of such Person is a controlling general partner of, or otherwise controls, such partnership or limited liability company.


 


“Trading Day”
means any day on which (A) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange
on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock is then traded; and (B) there is no Market Disruption Event. If the Common Stock
is not so listed or traded, then “Trading Day” means a Business Day.


 


“Trading Price”
of the Notes on any Trading Day means the average of the secondary market bid quotations, expressed as a cash amount per $1,000 principal
amount of Notes, obtained by the Bid Solicitation Agent for one million dollars ($1,000,000) (or such lesser amount as may then be outstanding)
in principal amount of Notes at approximately 3:30 p.m., New York City time, on such Trading Day from three (3) nationally recognized
independent securities dealers selected by the Company, which may include any of the Initial Purchasers; provided, however,
that, if three (3) such bids cannot reasonably be obtained by the Bid Solicitation Agent but two (2) such bids are obtained, then the
average of the two (2) bids will be used, and if only one (1) such bid can reasonably be obtained by the Bid Solicitation Agent, then
that one (1) bid will be used. If, on any Trading Day, (A) the Bid Solicitation Agent cannot reasonably obtain at least one (1) bid for
one million dollars ($1,000,000) (or such lesser amount as may then be outstanding) in principal amount of Notes from a nationally recognized
independent securities dealer; (B) the Company is not acting as the Bid Solicitation Agent and the Company fails to instruct the Bid Solicitation
Agent to obtain bids when required; or (C) the Bid Solicitation Agent fails to solicit bids when required, then, in each case, the Trading
Price per $1,000 principal amount of Notes on such Trading Day will be deemed to be less than ninety eight percent (98%) of the product
of the Last Reported Sale Price per share of Common Stock on such Trading Day and the Conversion Rate on such Trading Day.


 






    - 10 -


     


    

 


“Transfer-Restricted
Security” means any Security that constitutes a “restricted security” (as defined in Rule 144); provided,
however, that such Security will cease to be a Transfer-Restricted Security upon the earliest to occur of the following events:


 


(A) such
Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to a registration
statement that was effective under the Securities Act at the time of such sale or transfer;


 


(B) such
Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to an available
exemption (including Rule 144) from the registration and prospectus-delivery requirements of, or in a transaction not subject to, the
Securities Act and, immediately after such sale or transfer, such Security ceases to constitute a “restricted security” (as
defined in Rule 144); and


 


(C) such
Security is eligible for resale, by a Person that is not an Affiliate of the Company and that has not been an Affiliate of the Company
during the immediately preceding three (3) months, pursuant to Rule 144 without any limitations thereunder as to volume, manner of sale,
availability of current public information or notice.


 


The Trustee is under no obligation
to determine whether any Security is a Transfer-Restricted Security and may conclusively rely on an Officer’s Certificate with respect
thereto.


 


“Trust Indenture
Act” means the U.S. Trust Indenture Act of 1939, as amended.


 


“Trustee”
means the Person named as such in the first paragraph of this Indenture in its capacity as such until a successor replaces it in accordance
with the provisions of this Indenture and, thereafter, means such successor.


 


“VWAP Market Disruption
Event” means, with respect to any date, (A) the failure by the principal U.S. national or regional securities exchange on which
the Common Stock is then listed, or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, the principal
other market on which the Common Stock is then traded, to open for trading during its regular trading session on such date; or (B) the
occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on trading (by reason
of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options contracts
or futures contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New
York City time, on such date.


 


“VWAP Trading Day”
means a day on which (A) there is no VWAP Market Disruption Event; and (B) trading in the Common Stock generally occurs on the principal
U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a
U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded. If the Common Stock
is not so listed or traded, then “VWAP Trading Day” means a Business Day.


 


“Wholly Owned Subsidiary”
of a Person means any Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than
directors’ qualifying shares) are owned by such Person or one or more Wholly Owned Subsidiaries of such Person.


 






    - 11 -


     


    

 


Section 1.02. Other
Definitions.


 


	Term	Defined in Section
	“Additional Shares”	5.07(A)
	“Business Combination Event”	6.01(A)
	“Cash Settlement”	5.03(A)
	“Combination Settlement”	5.03(A)
	“Common Stock Change Event”	5.09(A)
	“Conversion Agent”	2.06(A)
	“Conversion Consideration”	5.03(B)
	“Default Interest”	2.05(B)
	“Defaulted Amount”	2.05(B)
	“Event of Default”	7.01(A)
	“Expiration Date”	5.05(A)(v)
	“Expiration Time”	5.05(A)(v)
	“Fundamental Change Notice”	4.02(E)
	“Fundamental Change Repurchase Right”	4.02(A)
	“Initial Notes”	2.03(A)
	“Measurement Period”	5.01(C)(i)(2)
	“Notice of Conversion”	5.02(A)(ii)
	“Partial Redemption Limitation”	4.03(I)
	“Paying Agent”	2.06(A)
	“Physical Settlement”	5.03(A)
	“Redemption Notice”	4.03(F)
	“Reference Property”	5.09(A)
	“Reference Property Unit”	5.09(A)
	“Register”	2.06(B)
	“Registrar”	2.06(A)
	“Reporting Event of Default”	7.03(A)
	“Specified Courts”	11.07
	“Spin-Off”	5.05(A)(iii)(2)
	“Spin-Off Valuation Period”	5.05(A)(iii)(2)
	“Stated Interest”	2.05(A)
	“Successor Corporation”	6.01(A)
	“Successor Person”	5.09(A)
	“Tender/Exchange Offer Valuation Period”	5.05(A)(v)
	“Trading Price Condition”	5.01(C)(i)(2)



 


Section 1.03. Rules
of Construction.


 


For purposes of this Indenture:


 


(A) “or”
is not exclusive;


 


(B) “including”
means “including without limitation”;


 


(C) “will”
expresses a command;


 






    - 12 -


     


    

 


(D) the
“average” of a set of numerical values refers to the arithmetic average of such numerical values;


 


(E) a
merger involving, or a transfer of assets by, a limited liability company, limited partnership or trust will be deemed to include any
division of or by, or an allocation of assets to a series of, such limited liability company, limited partnership or trust, or any unwinding
of any such division or allocation;


 


(F) words
in the singular include the plural and in the plural include the singular, unless the context requires otherwise;


 


(G) “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision of this Indenture, unless the context requires otherwise;


 


(H) references
to currency mean the lawful currency of the United States of America, unless the context requires otherwise;


 


(I) the
exhibits, schedules and other attachments to this Indenture are deemed to form part of this Indenture; and


 


(J) the
term “interest,” when used with respect to a Note, includes any Additional Interest and Special Interest, unless the
context requires otherwise or, in the case of Additional Interest, unless the terms of the Registration Rights Agreement provide otherwise.


 


Article
2. The Notes


 


Section 2.01. Form,
Dating and Denominations.


 


The Notes and the Trustee’s
certificate of authentication will be substantially in the form set forth in Exhibit A. The Notes will bear the legends required
by Section 2.09 and may bear notations, legends or endorsements required by law, stock exchange rule or usage or the Depositary.
Each Note will be dated as of the date of its authentication.


 


Except to the extent otherwise
provided in a Company Order delivered to the Trustee in connection with the issuance and authentication thereof, the Notes will be issued
initially in the form of one or more Global Notes. Global Notes may be exchanged for Physical Notes, and Physical Notes may be exchanged
for Global Notes, only as provided in Section 2.10.


 


The Notes will be issuable
only in registered form without interest coupons and only in Authorized Denominations.


 






    - 13 -


     


    

 


Each certificate representing
a Note will bear a unique registration number that is not affixed to any other certificate representing another outstanding Note.


 


The terms contained in the
Notes constitute part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery of
this Indenture, agree to such terms and to be bound thereby; provided, however, that, to the extent that any provision of
any Note conflicts with the provisions of this Indenture, the provisions of this Indenture will control for purposes of this Indenture
and such Note.


 


Section 2.02. Execution,
Authentication and Delivery.


 


(A) Due
Execution by the Company. At least one (1) duly authorized Officer will sign the Notes on behalf of the Company by manual, electronic
(e.g., “.pdf”) or facsimile signature. A Note’s validity will not be affected by the failure of any Officer whose signature
is on any Note to hold, at the time such Note is authenticated, the same or any other office at the Company.


 


(B) Authentication
by the Trustee and Delivery.


 


(i) No
Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory
of the Trustee (or a duly appointed authenticating agent) manually or electronically signs the certificate of authentication of such Note.


 


(ii) The
Trustee will cause an authorized signatory of the Trustee (or a duly appointed authenticating agent) to manually or electronically sign
the certificate of authentication of a Note only if (1) the Company delivers such Note to the Trustee; (2) such Note is executed by the
Company in accordance with Section 2.02(A); and (3) the Company delivers a Company Order to the Trustee that (a) requests the Trustee
to authenticate such Note; and (b) sets forth the name of the Holder of such Note and the date as of which such Note is to be authenticated.
If such Company Order also requests the Trustee to deliver such Note to any Holder or to the Depositary, then the Trustee will promptly
deliver such Note in accordance with such Company Order.


 


(iii) The
Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. A duly appointed authenticating agent may
authenticate Notes whenever the Trustee may do so under this Indenture, and a Note authenticated as provided in this Indenture by such
an agent will be deemed, for purposes of this Indenture, to be authenticated by the Trustee. Each duly appointed authenticating agent
will have the same rights to deal with the Company as the Trustee would have if it were performing the duties that the authentication
agent was validly appointed to undertake.


 


Section 2.03. Initial
Notes and Additional Notes.


 


(A) Initial
Notes. On the Issue Date, there will be originally issued one hundred fifty million dollars ($150,000,000) aggregate principal amount
of Notes, subject to the provisions of this Indenture (including Section 2.02). Notes issued pursuant to this Section 2.03(A),
and any Notes issued in exchange therefor or in substitution thereof, are referred to in this Indenture as the “Initial Notes.”


 


(B) Additional
Notes. Without the consent of any Holder, the Company may, subject to the provisions of this Indenture (including Section 2.02),
issue additional Notes with the same terms as the Initial Notes (except, to the extent applicable, with respect to the date as of which
interest begins to accrue on such additional Notes and the first Interest Payment Date of such additional Notes), which additional Notes
will, subject to the foregoing, be considered to be part of the same series of, and rank equally and ratably with all other, Notes issued
under this Indenture; provided, however, that if any such additional Notes are not fungible with other Notes issued under
this Indenture for federal income tax or federal securities laws purposes, then such additional Notes will be identified by a separate
CUSIP number or by no CUSIP number.


 






    - 14 -


     


    

 


Section 2.04. Method
of Payment.


 


(A) Global
Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption
on a Redemption Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration
for, any Global Note to the Depositary as the registered Holder of such Global Note, by wire transfer of immediately available funds no
later than the time the same is due as provided in this Indenture.


 


(B) Physical
Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption
on a Redemption Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration
due upon conversion of, any Physical Note no later than the time the same is due as provided in this Indenture as follows: (i) if the
principal amount of such Physical Note is at least five million dollars ($5,000,000) (or such lower amount as the Company may choose in
its sole and absolute discretion) and the Holder of such Physical Note entitled to such payment has delivered to the Paying Agent or the
Trustee, no later than the time set forth in the immediately following sentence, a written request that the Company (or the Paying Agent)
make such payment by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available funds
to such account; and (ii) in all other cases, by check mailed to the address of the Holder of such Physical Note entitled to such payment
as set forth in the Register. To be timely, such written request must be so delivered no later than the Close of Business on the following
date: (x) with respect to the payment of any interest due on an Interest Payment Date, the immediately preceding Regular Record Date;
and (y) with respect to any other payment, the date that is fifteen (15) calendar days immediately before the date such payment is due.


 






    - 15 -


     


    

 


Section 2.05. Accrual
of Interest; Defaulted Amounts; When Payment Date is Not a Business Day.


 


(A) Accrual
of Interest. Each Note will accrue interest at a rate per annum equal to 4.75% (the “Stated Interest”), plus any
Additional Interest and Special Interest on the Notes, if any, that may accrue pursuant to Sections 3.04 and 7.03, respectively.
Stated Interest on each Note will (i) accrue from, and including, the most recent date to which Stated Interest has been paid or duly
provided for (or, if no Stated Interest has theretofore been paid or duly provided for, the date set forth in the certificate representing
such Note as the date from, and including, which Stated Interest will begin to accrue in such circumstance) to, but excluding, the date
of payment of such Stated Interest; and (ii) be, subject to Sections 4.02(D), 4.03(E) and 5.02(D) (but without duplication
of any payment of interest), payable semi-annually in arrears on each Interest Payment Date, beginning on the first Interest Payment Date
set forth in the certificate representing such Note, to the Holder of such Note as of the Close of Business on the immediately preceding
Regular Record Date. Stated Interest, and, if applicable, Additional Interest and Special Interest on the Notes will be computed on the
basis of a 360-day year comprised of twelve 30-day months.


 


(B) Defaulted
Amounts. If the Company fails to pay any amount (a “Defaulted Amount”) payable on a Note on or before the due date
therefor as provided in this Indenture, then, regardless of whether such failure constitutes an Event of Default, (i) such Defaulted Amount
will forthwith cease to be payable to the Holder of such Note otherwise entitled to such payment; (ii) to the extent lawful, interest
(“Default Interest”) will accrue on such Defaulted Amount at a rate per annum equal to the rate per annum at which
Stated Interest accrues plus 100 basis points, from, and including, such due date to, but excluding, the date of payment of such Defaulted
Amount and Default Interest; (iii) such Defaulted Amount and Default Interest then due thereon will be paid on a payment date selected
by the Company to the Holder of such Note as of the Close of Business on a special record date selected by the Company, provided
that such special record date must be no more than fifteen (15), nor less than ten (10), calendar days before such payment date; and (iv)
at least fifteen (15) calendar days before such special record date, the Company will send notice to the Trustee and the Holders that
states such special record date, such payment date and the amount of such Defaulted Amount and Default Interest then due thereon to be
paid on such payment date.


 


(C) Delay
of Payment when Payment Date is Not a Business Day. If the due date for a payment on a Note as provided in this Indenture is not a
Business Day, then, notwithstanding anything to the contrary in this Indenture or the Notes, such payment may be made on the immediately
following Business Day and no interest will accrue on such payment as a result of the related delay. Solely for purposes of the immediately
preceding sentence, a day on which the applicable place of payment is authorized or obligated by law, regulation or executive order to
close or be closed will be deemed not to be a “Business Day.”


 


Section 2.06. Registrar,
Paying Agent and Conversion Agent.


 


(A) Generally.
The Company will maintain (i) an office or agency in the continental United States where Notes may be presented for registration of transfer
or for exchange (the “Registrar”); (ii) an office or agency in the continental United States where Notes may be presented
for payment (the “Paying Agent”); and (iii) an office or agency in the continental United States where Notes may be
presented for conversion (the “Conversion Agent”). The Company hereby designates the Corporate Trust Office of the
Trustee as such offices. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, then the Trustee will act as
such. For the avoidance of doubt, the Company or any of its Subsidiaries may act as Registrar, Paying Agent or Conversion Agent.


 


(B) Duties
of the Registrar. The Registrar will keep a record (the “Register”) of the names and addresses of the Holders,
the Notes held by each Holder and the transfer, exchange, repurchase, Redemption and conversion of Notes. Absent manifest error, the entries
in the Register will be conclusive and the Company and the Trustee may treat each Person whose name is recorded as a Holder in the Register
as a Holder for all purposes. The Register will be in written form or in any form capable of being converted into written form reasonably
promptly.


 






    - 16 -


     


    

 


(C) Co-Agents;
Company’s Right to Appoint Successor Registrars, Paying Agents and Conversion Agents. The Company may appoint one or more co-Registrars,
co-Paying Agents and co-Conversion Agents, each of whom will be deemed to be a Registrar, Paying Agent or Conversion Agent, as applicable,
under this Indenture. Subject to Section 2.06(A), the Company may change any Registrar, Paying Agent or Conversion Agent (including
appointing itself or any of its Subsidiaries to act in such capacity) without notice to any Holder. The Company will notify the Trustee
(and, upon request, any Holder) of the name and address of each Note Agent, if any, not a party to this Indenture and will enter into
an appropriate agency agreement with each such Note Agent, which agreement will implement the provisions of this Indenture that relate
to such Note Agent.


 


(D) Initial
Appointments. The Company appoints the Trustee as the initial Paying Agent, the initial Registrar and the initial Conversion Agent.
In acting in such capacities under this Indenture and in connection with the Notes, the Trustee in such capacities will act solely as
an agent of the Company and will not thereby assume any obligations towards, or relationship of agency or trust for or with, any Holder.


 


Section 2.07. Paying
Agent and Conversion Agent to Hold Property in Trust.


 


The Company will require each
Paying Agent or Conversion Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold in trust for the benefit
of Holders or the Trustee all money and other property held by such Note Agent for payment or delivery due on the Notes; and (B) notify
the Trustee in writing of any default by the Company in making any such payment or delivery. The Company, at any time, may, and the Trustee,
while any Default continues, may, require a Paying Agent or Conversion Agent to pay or deliver, as applicable, all money and other property
held by it to the Trustee, after which payment or delivery, as applicable, such Note Agent (if not the Company or any of its Subsidiaries)
will have no further liability for such money or property. If the Company or any of its Subsidiaries acts as Paying Agent or Conversion
Agent, then (A) it will segregate and hold in a separate trust fund for the benefit of the Holders or the Trustee all money and other
property held by it as Paying Agent or Conversion Agent; and (B) references in this Indenture or the Notes to the Paying Agent or Conversion
Agent holding cash or other property, or to the delivery of cash or other property to the Paying Agent or Conversion Agent, in each case
for payment or delivery to any Holders or the Trustee or with respect to the Notes, will be deemed to refer to cash or other property
so segregated and held separately, or to the segregation and separate holding of such cash or other property, respectively. Upon the occurrence
of any event pursuant to clause (ix) or (x) of Section 7.01(A) with respect to the Company (or with respect to any
Subsidiary of the Company acting as Paying Agent or Conversion Agent), the Trustee will serve as the Paying Agent or Conversion Agent,
as applicable, for the Notes.


 






    - 17 -


     


    

 


Section 2.08. Holder
Lists.


 


If the Trustee is not the
Registrar, the Company will furnish to the Trustee, no later than seven (7) Business Days before each Interest Payment Date and at such
other times as the Trustee may request, a list, in such form and as of such date or time as the Trustee may reasonably require, of the
names and addresses of the Holders.


 


Section 2.09. Legends.


 


(A) Global
Note Legend. Each Global Note will bear the Global Note Legend (or any similar legend, not inconsistent with this Indenture, required
by the Depositary for such Global Note).


 


(B) Non-Affiliate
Legend. Each Note will bear the Non-Affiliate Legend.


 


(C) Restricted
Note Legend. Subject to Section 2.12,


 


(i) each
Note that is a Transfer-Restricted Security will bear the Restricted Note Legend; and


 


(ii) if
a Note is issued in exchange for, in substitution of, or to effect a partial conversion of, another Note (such other Note being referred
to as the “old Note” for purposes of this Section 2.09(C)(ii)), including pursuant to Section 2.10(B), 2.10(C),
2.11 or 2.13, then such Note will bear the Restricted Note Legend if such old Note bore the Restricted Note Legend at the
time of such exchange or substitution, or on the related Conversion Date with respect to such conversion, as applicable; provided,
however, that such Note need not bear the Restricted Note Legend if such Note does not constitute a Transfer-Restricted Security
immediately after such exchange or substitution, or as of such Conversion Date, as applicable.


 


(D) Other
Legends. A Note may bear any other legend or text, not inconsistent with this Indenture, as may be required by applicable law or by
any securities exchange or automated quotation system on which such Note is traded or quoted.


 


(E) Acknowledgment
and Agreement by the Holders. A Holder’s acceptance of any Note bearing any legend required by this Section 2.09 will
constitute such Holder’s acknowledgment of, and agreement to comply with, the restrictions set forth in such legend.


 


(F) Restricted
Stock Legend.


 


(i) Each
Conversion Share will bear the Restricted Stock Legend if the Note upon the conversion of which such Conversion Share was issued was (or
would have been had it not been converted) a Transfer-Restricted Security at the time such Conversion Share was issued; provided,
however, that such Conversion Share need not bear the Restricted Stock Legend if the Company determines, in its reasonable discretion,
that such Conversion Share need not bear the Restricted Stock Legend.


 


(ii) Notwithstanding
anything to the contrary in this Section 2.09(F), a Conversion Share need not bear a Restricted Stock Legend if such Conversion
Share is issued in an uncertificated form that does not permit affixing legends thereto, provided the Company takes measures (including
the assignment thereto of a “restricted” CUSIP number) that it reasonably deems appropriate to enforce the transfer restrictions
referred to in the Restricted Stock Legend.


 






    - 18 -


     


    

 


Section 2.10. Transfers
and Exchanges; Certain Transfer Restrictions.


 


(A) Provisions
Applicable to All Transfers and Exchanges.


 


(i) Subject
to this Section 2.10, Physical Notes and beneficial interests in Global Notes may be transferred or exchanged from time to time.
The Registrar will record each such transfer or exchange of Physical Notes in the Register.


 


(ii) Each
Note issued upon transfer or exchange of any other Note (such other Note being referred to as the “old Note” for purposes
of this Section 2.10(A)(ii)) or portion thereof in accordance with this Indenture will be the valid obligation of the Company,
evidencing the same indebtedness, and entitled to the same benefits under this Indenture, as such old Note or portion thereof, as applicable.


 


(iii) The
Company, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange or conversion of
Notes, but the Company, the Trustee, the Registrar and the Conversion Agent may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Notes, other than exchanges
pursuant to Section 2.11, 2.17 or 8.05 not involving any transfer.


 


(iv) Notwithstanding
anything to the contrary in this Indenture or the Notes, a Note may not be transferred or exchanged in part unless the portion to be so
transferred or exchanged is in an Authorized Denomination.


 


(v) The
Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any transfer restrictions imposed under
this Indenture or applicable law with respect to any Security, other than to require the delivery of such certificates or other documentation
or evidence as expressly required by this Indenture and to examine the same to determine substantial compliance as to form with the requirements
of this Indenture.


 


(vi) The
Trustee will have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in, the Depositary
or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other
Person (other than the Depositary) of any notice (including any notice of Redemption or repurchase) or the payment of any amount or delivery
of any Notes (or other security or property) under or with respect to such Notes. All payments to be made to Holders in respect of the
Notes will be given or made only to or upon the order of the registered Holders (which is the Depositary or its nominee in the case of
a Global Note). The rights of beneficial owners in any Global Note will be exercised only through the Depositary subject to the applicable
Depositary Procedures. The Trustee may rely and will be fully protected in relying upon information furnished by the Depositary with respect
to its members, participants and any beneficial owners.


 






    - 19 -


     


    

 


(vii) Each
Note issued upon transfer of, or in exchange for, another Note will bear each legend, if any, required by Section 2.09.


 


(viii) Upon
satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Note, the Company will cause such transfer
or exchange to be effected as soon as reasonably practicable but in no event later than the second (2nd) Business Day after the date of
such satisfaction.


 


(ix) For
the avoidance of doubt, and subject to the terms of this Indenture, as used in this Section 2.10, an “exchange” of
a Global Note or a Physical Note includes (x) an exchange effected for the sole purpose of removing any Restricted Note Legend affixed
to such Global Note or Physical Note; and (y) if such Global Note or Physical Note is identified by a “restricted” CUSIP number,
an exchange effected for the sole purpose of causing such Global Note or Physical Note to be identified by an “unrestricted”
CUSIP number.


 


(B) Transfers
and Exchanges of Global Notes.


 


(i) Subject
to the immediately following sentence, no Global Note may be transferred or exchanged in whole except (x) by the Depositary to a nominee
of the Depositary; (y) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary; or (z) by the Depositary
or any such nominee to a successor Depositary or a nominee of such successor Depositary. No Global Note (or any portion thereof) may be
transferred to, or exchanged for, a Physical Note; provided, however, that a Global Note will be exchanged, pursuant to
customary procedures, for one or more Physical Notes if:


 


(1) (x)
the Depositary notifies the Company or the Trustee that the Depositary is unwilling or unable to continue as depositary for such Global
Note or (y) the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act and, in each
case, the Company fails to appoint a successor Depositary within ninety (90) days of such notice or cessation;


 


(2) an
Event of Default has occurred and is continuing and the Company, the Trustee or the Registrar has received a written request from the
Depositary, or from a holder of a beneficial interest in such Global Note, to exchange such Global Note or beneficial interest, as applicable,
for one or more Physical Notes; or


 


(3) the
Company, in its sole discretion, permits the exchange of any beneficial interest in such Global Note for one or more Physical Notes at
the request of the owner of such beneficial interest.


 


(ii) Upon
satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Global Note (or any portion thereof):


 


(1) the
Trustee will reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule of Exchanges
of Interests in the Global Note” forming part of such Global Note (and, if such notation results in such Global Note having a principal
amount of zero, the Company may (but is not required to) instruct the Trustee in writing to cancel such Global Note pursuant to Section
2.15);


 






    - 20 -


     


    

 


(2) if
required to effect such transfer or exchange, then the Trustee will reflect any resulting increase of the principal amount of any other
Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such other Global Note;


 


(3) if
required to effect such transfer or exchange, then the Company will issue, execute and deliver, and the Trustee will authenticate, in
each case in accordance with Section 2.02, a new Global Note bearing each legend, if any, required by Section 2.09; and


 


(4) if
such Global Note (or such portion thereof), or any beneficial interest therein, is to be exchanged for one or more Physical Notes, then
the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one
or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of
such Global Note to be so exchanged; (y) are registered in such name(s) as the Depositary specifies (or as otherwise determined pursuant
to customary procedures); and (z) bear each legend, if any, required by Section 2.09.


 





(iii) Each
transfer or exchange of a beneficial interest in any Global Note will be made in accordance with the Depositary Procedures.


 


(C) Transfers
and Exchanges of Physical Notes.


 


(i) Subject
to this Section 2.10, a Holder of a Physical Note may (x) transfer such Physical Note (or any portion thereof in an Authorized
Denomination) to one or more other Person(s); (y) exchange such Physical Note (or any portion thereof in an Authorized Denomination) for
one or more other Physical Notes in Authorized Denominations having an aggregate principal amount equal to the aggregate principal amount
of the Physical Note (or portion thereof) to be so exchanged; and (z) if then permitted by the Depositary Procedures, transfer such Physical
Note (or any portion thereof in an Authorized Denomination) in exchange for a beneficial interest in one or more Global Notes; provided,
however, that, to effect any such transfer or exchange, such Holder must:


 


(1) surrender
such Physical Note to be transferred or exchanged to the office of the Registrar, together with any endorsements or transfer instruments
reasonably required by the Company, the Trustee or the Registrar; and


 


(2) deliver
such certificates, documentation or evidence as may be required pursuant to Section 2.10(D).


 


(ii) Upon
the satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Physical Note (such Physical Note being
referred to as the “old Physical Note” for purposes of this Section 2.10(C)(ii)) of a Holder (or any portion of such
old Physical Note in an Authorized Denomination):


 






    - 21 -


     


    

 


(1) such
old Physical Note will be promptly cancelled pursuant to Section 2.15;


 


(2) if
such old Physical Note is to be so transferred or exchanged only in part, then the Company will issue, execute and deliver, and the Trustee
will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations
and have an aggregate principal amount equal to the principal amount of such old Physical Note not to be so transferred or exchanged;
(y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09;


 


(3) in
the case of a transfer:


 


(a) to
the Depositary or a nominee thereof that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred
in the form of one or more Global Notes, the Trustee will reflect an increase of the principal amount of one or more existing Global Notes
by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note(s), which increase(s)
are in Authorized Denominations and aggregate to the principal amount to be so transferred, and which Global Note(s) bear each legend,
if any, required by Section 2.09; provided, however, that if such transfer cannot be so effected by notation on one
or more existing Global Notes (whether because no Global Notes bearing each legend, if any, required by Section 2.09 then exist,
because any such increase will result in any Global Note having an aggregate principal amount exceeding the maximum aggregate principal
amount permitted by the Depositary or otherwise), then the Company will issue, execute and deliver, and the Trustee will authenticate,
in each case in accordance with Section 2.02, one or more Global Notes that (x) are in Authorized Denominations and have an aggregate
principal amount equal to the principal amount to be so transferred; and (y) bear each legend, if any, required by Section 2.09;
and


 


(b) to
a transferee that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or
more Physical Notes, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section
2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal
amount to be so transferred; (y) are registered in the name of such transferee; and (z) bear each legend, if any, required by Section
2.09; and


 


(4) in
the case of an exchange, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with
Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal
to the principal amount to be so exchanged; (y) are registered in the name of the Person to whom such old Physical Note was registered;
and (z) bear each legend, if any, required by Section 2.09.


 






    - 22 -


     


    

 


(D) Requirement
to Deliver Documentation and Other Evidence. If a Holder of any Note that is identified by a “restricted” CUSIP number
or that bears a Restricted Note Legend or is a Transfer-Restricted Security requests to:


 


(i) cause
such Note to be identified by an “unrestricted” CUSIP number;


 


(ii) remove
such Restricted Note Legend; or


 


(iii) register
the transfer of such Note to the name of another Person,


 


then the Company, the Trustee and the Registrar
may refuse to effect such identification, removal or transfer, as applicable, unless there is delivered to the Company, the Trustee and
the Registrar such certificates or other documentation or evidence as the Company, the Trustee and the Registrar may reasonably require
to determine that such identification, removal or transfer, as applicable, complies with the Securities Act and other applicable securities
laws.


 


(E) Transfers
of Notes Subject to Redemption, Repurchase or Conversion. Notwithstanding anything to the contrary in this Indenture or the Notes,
the Company, the Trustee and the Registrar may refuse to register the transfer of or exchange any Note that (i) has been surrendered for
conversion; (ii) is subject to a Fundamental Change Repurchase Notice validly delivered, and not withdrawn, pursuant to Section 4.02(F),
except to the extent that the Company fails to pay the applicable Fundamental Change Repurchase Price when due; or (iii) has been selected
for Redemption pursuant to a Redemption Notice, except to the extent that the Company fails to pay the applicable Redemption Price when
due.


 


Section 2.11. Exchange
and Cancellation of Notes to Be Converted or to Be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.


 


(A) Partial
Conversions of Physical Notes and Partial Repurchases of Physical Notes Pursuant to a Repurchase Upon Fundamental Change or Redemption.
If only a portion of a Physical Note of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase
Upon Fundamental Change or Redemption, then, as soon as reasonably practicable after such Physical Note is surrendered for such conversion
or repurchase, as applicable, the Company will cause such Physical Note to be exchanged, pursuant and subject to Section 2.10(C),
for (i) one or more Physical Notes that are in Authorized Denominations and have an aggregate principal amount equal to the principal
amount of such Physical Note that is not to be so converted or repurchased, as applicable, and deliver such Physical Note(s) to such Holder;
and (ii) a Physical Note having a principal amount equal to the principal amount to be so converted or repurchased, as applicable, which
Physical Note will be converted or repurchased, as applicable, pursuant to the terms of this Indenture; provided, however,
that the Physical Note referred to in this clause (ii) need not be issued at any time after which such principal amount subject
to such conversion or repurchase, as applicable, is deemed to cease to be outstanding pursuant to Section 2.18.


 






    - 23 -


     


    

 


(B) Cancellation
of Notes that Are Converted and Notes that Are Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.


 


(i) Physical
Notes. If a Physical Note (or any portion thereof that has not theretofore been exchanged pursuant to Section 2.11(A)) of a
Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption,
then, promptly after the later of the time such Physical Note (or such portion) is deemed to cease to be outstanding pursuant to Section
2.18 and the time such Physical Note is surrendered for such conversion or repurchase, as applicable, (1) such Physical Note will
be cancelled pursuant to Section 2.15; and (2) in the case of a partial conversion or repurchase, as applicable, the Company will
issue, execute and deliver to such Holder, and the Trustee will authenticate, in each case in accordance with Section 2.02, one
or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of
such Physical Note that is not to be so converted or repurchased, as applicable; (y) are registered in the name of such Holder; and (z)
bear each legend, if any, required by Section 2.09.


 


(ii) Global
Notes. If a Global Note (or any portion thereof) is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase
Upon Fundamental Change or Redemption, then, promptly after the time such Note (or such portion) is deemed to cease to be outstanding
pursuant to Section 2.18, the Trustee will reflect a decrease of the principal amount of such Global Note in an amount equal to
the principal amount of such Global Note to be so converted or repurchased, as applicable, by notation on the “Schedule of Exchanges
of Interests in the Global Note” forming part of such Global Note (and, if the principal amount of such Global Note is zero following
such notation, cancel such Global Note pursuant to Section 2.15).


 


Section 2.12. Removal
of Transfer Restrictions.


 


Without limiting the circumstances
in which a Restricted Note Legend can be removed, if any Note that bears the Restricted Note Legend is transferred pursuant to the Shelf
Registration Statement, the Company will cause the Trustee to exchange that Note pursuant to Sections 2.09(C)(ii) and 2.10(D)
with a Note that does not bear the Restricted Note Legend (and, if such Note is a Global Note, cause such Global Note to be identified
by an “unrestricted” CUSIP number in the facilities of the Depositary).


 






    - 24 -


     


    

 


Section 2.13. Replacement
Notes.


 


If a Holder of any Note claims
that such Note has been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and deliver, and the Trustee
will authenticate, in each case in accordance with Section 2.02, a replacement Note upon surrender to the Trustee of such mutilated
Note, or upon delivery to the Trustee of evidence of such loss, destruction or wrongful taking reasonably satisfactory to the Trustee
and the Company. In the case of a lost, destroyed or wrongfully taken Note, the Company and the Trustee may require the Holder thereof
to provide such security or indemnity that is satisfactory to the Company and the Trustee to protect the Company and the Trustee from
any loss that any of them may suffer if such Note is replaced. The Company may charge for its and the Trustee’s expenses in replacing
a Note.


 


Every replacement Note issued
pursuant to this Section 2.13 will be an additional obligation of the Company and will be entitled to all of the benefits of this
Indenture equally and ratably with all other Notes issued under this Indenture.


 


Section 2.14. Registered
Holders; Certain Rights with Respect to Global Notes.


 


Only the Holder of a Note
will have rights under this Indenture as the owner of such Note. Without limiting the generality of the foregoing, Depositary Participants
will have no rights as such under this Indenture with respect to any Global Note held on their behalf by the Depositary or its nominee,
or by the Trustee as its custodian, and the Company, the Trustee and the Note Agents, and their respective agents, may treat the Depositary
as the absolute owner of such Global Note for all purposes whatsoever; provided, however, that (A) the Holder of any Global
Note may grant proxies and otherwise authorize any Person, including Depositary Participants and Persons that hold interests in Notes
through Depositary Participants, to take any action that such Holder is entitled to take with respect to such Global Note under this Indenture
or the Notes; and (B) the Company and the Trustee, and their respective agents, may give effect to any written certification, proxy or
other authorization furnished by the Depositary.


 


Section 2.15. Cancellation.


 


The Company may at any time
deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Conversion Agent will forward to the Trustee each
Note duly surrendered to them for transfer, exchange, payment or conversion. The Trustee will promptly cancel all Notes so surrendered
to it in accordance with its customary procedures. Without limiting the generality of Section 2.03(B), the Company may not originally
issue new Notes to replace Notes that it has paid or that have been cancelled upon transfer, exchange, payment or conversion.


 


Section 2.16. Notes
Held by the Company or its Affiliates.


 


Without limiting the generality
of Section 2.18, in determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction,
waiver or consent, Notes (if any) owned by the Company or any of its Affiliates will be deemed not to be outstanding; provided,
however, that, for purposes of determining whether the Trustee is protected in relying on any such direction, waiver or consent,
only Notes that a Responsible Officer of the Trustee actually knows are so owned will be so disregarded.


 






    - 25 -


     


    

 


Section 2.17. Temporary
Notes.


 


Until definitive Notes are
ready for delivery, the Company may issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section
2.02, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company
considers appropriate for temporary Notes. The Company will promptly prepare, issue, execute and deliver, and the Trustee will authenticate,
in each case in accordance with Section 2.02, definitive Notes in exchange for temporary Notes. Until so exchanged, each temporary
Note will in all respects be entitled to the same benefits under this Indenture as definitive Notes.


 


Section 2.18. Outstanding
Notes.


 


(A) Generally.
The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated,
excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the Trustee for cancellation
in accordance with Section 2.15; (ii) assigned a principal amount of zero by notation on the “Schedule of Exchanges of Interests
in the Global Note” forming part of any a Global Note representing such Note; (iii) paid in full (including upon conversion) in
accordance with this Indenture; or (iv) deemed to cease to be outstanding to the extent provided in, and subject to, clause (B),
(C) or (D) of this Section 2.18.


 


(B) Replaced
Notes. If a Note is replaced pursuant to Section 2.13, then such Note will cease to be outstanding at the time of its replacement,
unless the Trustee and the Company receive proof reasonably satisfactory to them that such Note is held by a “bona fide purchaser”
under applicable law.


 


(C) Maturing
Notes and Notes Called for Redemption or Subject to Repurchase. If, on a Redemption Date, a Fundamental Change Repurchase Date or
the Maturity Date, the Paying Agent holds money sufficient to pay the aggregate Redemption Price, Fundamental Change Repurchase Price
or principal amount, respectively, together, in each case, with the aggregate interest in each case due on such date, then (unless there
occurs a Default in the payment of any such amount) (i) the Notes (or portions thereof) to be redeemed or repurchased, or that mature,
on such date will be deemed, as of such date, to cease to be outstanding, except to the extent provided in Sections 4.02(D), 4.03(E)
or 5.02(D); and (ii) the rights of the Holders of such Notes (or such portions thereof), as such, will terminate with respect to
such Notes (or such portions thereof), other than the right to receive the Redemption Price, Fundamental Change Repurchase Price or principal
amount, as applicable, of, and accrued and unpaid interest on, such Notes (or such portions thereof), in each case as provided in this
Indenture.


 


(D) Notes
to Be Converted. At the Close of Business on the Conversion Date for any Note (or any portion thereof) to be converted, such Note
(or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or interest due, pursuant to Section
5.03(B) or Section 5.02(D), upon such conversion) be deemed to cease to be outstanding, except to the extent provided in Section
5.02(D) or Section 5.08.


 


(E) Cessation
of Accrual of Interest. Except as provided in Sections 4.02(D), 4.03(E) or 5.02(D), interest will cease to accrue
on each Note from, and including, the date that such Note is deemed, pursuant to this Section 2.18, to cease to be outstanding,
unless there occurs a default in the payment or delivery of any cash or other property due on such Note.


 






    - 26 -


     


    

 


Section 2.19. Repurchases
by the Company.


 


Without limiting the generality
of Section 2.15, the Company or its Subsidiaries may repurchase Notes in open market purchases or in negotiated transactions. In
connection with any such repurchase, the Company may appoint a tender agent, in which case such tender agent shall be the Paying Agent
in connection with such repurchase.


 


Section 2.20. CUSIP
and ISIN Numbers.


 


Subject to Section 2.12,
the Company may use one or more CUSIP or ISIN numbers to identify any of the Notes, and, if so, the Company and the Trustee will use such
CUSIP or ISIN number(s) in notices to Holders as applicable; provided, however, that (i) the Trustee makes no representation
as to the correctness or accuracy of any such CUSIP or ISIN number; (ii) the effectiveness of any such notice will not be affected by
any defect in, or omission of, any such CUSIP or ISIN number; and (iii) the Trustee shall have no liability for any defect in the CUSIP
or ISIN numbers as they appear on any Note, notice or elsewhere. The Company will promptly notify the Trustee, in writing, of any change
in the CUSIP or ISIN number(s) identifying any Notes.


 


Article
3. Covenants


 


Section 3.01. Payment
on Notes.


 


(A) Generally.
The Company will pay or cause to be paid all the principal of, the Fundamental Change Repurchase Price and Redemption Price for, interest
on, and other amounts due with respect to, the Notes on the dates and in the manner set forth in this Indenture.


 


(B) Deposit
of Funds. Before 10:00 A.M., New York City time, on each Redemption Date, Fundamental Change Repurchase Date or Interest Payment Date,
and on the Maturity Date or any other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there
to be deposited, with the Paying Agent cash, in funds immediately available on such date, sufficient to pay the cash amount due on the
applicable Notes on such date. The Paying Agent will return to the Company, as soon as practicable, any money not required for such purpose.


 


Section 3.02. Exchange
Act Reports.


 


(A) Generally.
The Company will send to the Trustee copies of all reports that the Company is required to file with or furnish to the SEC pursuant to
Section 13(a) or 15(d) of the Exchange Act within fifteen (15) calendar days after the date that the Company is required to file or furnish
the same (after giving effect to all applicable grace periods under the Exchange Act); provided, however, that the Company
need not send to the Trustee any material for which the Company has received, or is seeking in good faith and has not been denied, confidential
treatment by the SEC. Any report that the Company files with or furnishes to the SEC through the EDGAR system (or any successor thereto)
will be deemed to be sent to the Trustee at the time such report is so filed or furnished via the EDGAR system (or such successor). Upon
the request of any Holder, the Company will provide to such Holder a copy of any report that the Company has furnished or filed pursuant
to this Section 3.02(A), other than a report that is deemed to be sent to the Trustee pursuant to the preceding sentence.


 






    - 27 -


     


    

 


(B) Trustee’s
Disclaimer. The Trustee need not determine whether the Company has filed any material via the EDGAR system (or such successor). The
sending or filing of reports pursuant to Section 3.02(A) to the Trustee will be for informational purposes only, and the Trustee’s
receipt of such reports will not be deemed to constitute actual or constructive notice to the Trustee of any information contained, or
determinable from information contained, therein, including the Company’s compliance with any of its covenants under this Indenture
(as to which the Trustee is entitled to rely exclusively and conclusively on Officer’s Certificates). The Trustee shall have no
liability or responsibility for the filing, content or timeliness if any report hereunder.


 


Section 3.03. Rule
144A Information.


 


If the Company is not subject
to Section 13 or 15(d) of the Exchange Act at any time when any Notes or shares of Common Stock issuable upon conversion of the Notes
are outstanding and constitute “restricted securities” (as defined in Rule 144), then the Company (or its successor) will
promptly provide, to the Trustee and, upon written request, to any Holder, beneficial owner or prospective purchaser of such Notes or
shares, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such
Notes or shares pursuant to Rule 144A. The Company (or its successor) will take such further action as any Holder or beneficial owner
of such Notes or shares may reasonably request to enable such Holder or beneficial owner to sell such Notes or shares pursuant to Rule
144A.


 


Delivery of such reports,
information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports will not constitute
actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s
compliance with any of the Company’s covenants under this Indenture (as to which the Trustee is entitled to rely exclusively and
conclusively on Officer’s Certificates).


 


Section 3.04. Additional
Interest.


 


(A) Accrual
of Additional Interest. Additional Interest will accrue on the Notes pursuant to the terms and conditions of the Registration Rights
Agreement, and the Company’s obligation to pay such Additional Interest will, without duplication, be deemed to be obligations under
this Indenture and the Notes with the same force and effect as if the relevant provisions of the Registration Rights Agreement were reproduced
in the Indenture and the Notes. In no event will Additional Interest, together with any Special Interest that is payable at the Company’s
election pursuant to Section 7.03(A) as the sole remedy for any Reporting Event of Default, accrue on any day on a Note at a combined
rate per annum that exceeds one half of one percent (0.50%). For the avoidance of doubt, any Additional Interest that accrues on a Note
will be in addition to the Stated Interest that accrues on such Note and, subject to the immediately preceding sentence, in addition to
any Special Interest that accrues on such Note pursuant to Section 7.03(A).


 


(B) Notice
to Trustee and Paying Agent; Trustee’s Disclaimer. If Additional Interest accrues on any Note pursuant to Section 3.04(A),
then, no later than five (5) Business Days before each date on which such Additional Interest is to be paid, the Company will deliver
an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Additional Interest
on such Note pursuant to Section 3.04(A) on such date of payment; and (ii) the amount of such Additional Interest that is payable
on such date of payment. The Trustee will have no duty to determine whether any Additional Interest is payable or the amount thereof.


 






    - 28 -


     


    

 


Section 3.05. Compliance
and Default Certificates.


 


(A) Annual
Compliance Certificate. Within ninety (90) days after December 31, 2021 and each fiscal year of the Company ending thereafter, the
Company will deliver an Officer’s Certificate to the Trustee stating (i) that the signatory thereto has supervised a review of the
activities of the Company and its Subsidiaries during such fiscal year with a view towards determining whether any Default or Event of
Default has occurred; and (ii) whether, to such signatory’s knowledge, a Default or Event of Default has occurred and is continuing
(and, if so, describing all such Defaults or Events of Default and what action the Company is taking or proposes to take with respect
thereto).


 


(B) Default
Certificate. If a Default or Event of Default occurs, then the Company will, within 30 days after its first occurrence, promptly deliver
an Officer’s Certificate to the Trustee describing the same and what action the Company is taking or proposes to take with respect
thereto; provided, however, that the Company will not be required to deliver such notice if such Default or Event of Default, as
applicable, has been cured within the applicable grace period, if any, provided herein.


 


Section 3.06. Stay,
Extension and Usury Laws.


 


To the extent that it may
lawfully do so, the Company (A) agrees that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law (wherever or whenever enacted or in force) that may affect the covenants or
the performance of this Indenture; and (B) expressly waives all benefits or advantages of any such law and agrees that it will not, by
resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee by this Indenture, but will suffer and
permit the execution of every such power as though no such law has been enacted.


 


Section 3.07. Acquisition
of Notes by the Company and its Affiliates.


 


Without limiting the generality
of Section 2.18, Notes that the Company or any of its Subsidiaries have purchased or otherwise acquired will be deemed to remain
outstanding (except to the extent provided in Section 2.16) until such time as such Notes are delivered to the Trustee for cancellation.


 






    - 29 -


     


    

 


Article
4. Repurchase and Redemption


 


Section 4.01. No
Sinking Fund.


 


No sinking fund is required
to be provided for the Notes.


 


Section 4.02. Right
of Holders to Require the Company to Repurchase Notes upon a Fundamental Change.


 


(A) Right
of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change. Subject to the other terms of this Section 4.02,
if a Fundamental Change occurs, then each Holder will have the right (the “Fundamental Change Repurchase Right”) to
require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) on the Fundamental
Change Repurchase Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price.


 


(B) Repurchase
Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not been
rescinded on or before the Fundamental Change Repurchase Date (including as a result of the payment of the related Fundamental Change
Repurchase Price and any related interest pursuant to the proviso to Section 4.02(D) on the Fundamental Change Repurchase Date),
then (i) the Company may not repurchase any Notes pursuant to this Section 4.02; and (ii) the Company will cause any Notes theretofore
surrendered for such Repurchase Upon Fundamental Change to be returned to the Holders thereof (or, if applicable with respect to Global
Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest
in such Notes in accordance with the Depositary Procedures).


 


(C) Fundamental
Change Repurchase Date. The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s
choosing that is no more than thirty five (35), nor less than twenty (20), Business Days after the date the Company sends the related
Fundamental Change Notice pursuant to Section 4.02(E).


 


(D) Fundamental
Change Repurchase Price. The Fundamental Change Repurchase Price for any Note to be repurchased upon a Repurchase Upon Fundamental
Change following a Fundamental Change is an amount in cash equal to the principal amount of such Note plus accrued and unpaid interest
on such Note to, but excluding, the Fundamental Change Repurchase Date for such Fundamental Change; provided, however, that
if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the
Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Repurchase Upon Fundamental
Change, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued
on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through
such Interest Payment Date, if such Fundamental Change Repurchase Date is before such Interest Payment Date); and (ii) the Fundamental
Change Repurchase Price will not include accrued and unpaid interest on such Note to, but excluding, such Fundamental Change Repurchase
Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such
Fundamental Change Repurchase Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid
interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C), on the next Business
Day to Holders as of the Close of Business on the immediately preceding Regular Record Date; and (y) the Fundamental Change Repurchase
Price will include interest on Notes to be repurchased from, and including, such Interest Payment Date to, but excluding, the Fundamental
Change Repurchase Date.


 






    - 30 -


     


    

 


(E) Fundamental
Change Notice. On or before the twentieth (20th) calendar day after the effective date of a Fundamental Change, the Company will send
to each Holder, the Trustee, the Conversion Agent and the Paying Agent a notice of such Fundamental Change (a “Fundamental Change
Notice”). Substantially contemporaneously, the Company will issue a press release through such national newswire service as
the Company then uses (or publish the same through such other widely disseminated public medium as the Company then uses, including its
website) containing the information set forth in the Fundamental Change Notice.


 


Such Fundamental Change Notice
must state:


 


(i) briefly,
the events causing such Fundamental Change;


 


(ii) the
effective date of such Fundamental Change;


 


(iii) the
procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section 4.02, including the
deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental Change
Repurchase Notice;


 


(iv) the
Fundamental Change Repurchase Date for such Fundamental Change;


 


(v) the
Fundamental Change Repurchase Price per $1,000 principal amount of Notes for such Fundamental Change (and, if such Fundamental Change
Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest
payment payable pursuant to the proviso to Section 4.02(D));


 


(vi) the
name and address of the Paying Agent and the Conversion Agent;


 


(vii) the
Conversion Rate in effect on the date of such Fundamental Change Notice and a description and quantification of any adjustments to the
Conversion Rate that may result from such Fundamental Change (including pursuant to Section 5.07);


 


(viii) that
Notes for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying Agent
for the Holder thereof to be entitled to receive the Fundamental Change Repurchase Price;


 


(ix) that
Notes (or any portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be converted
only if such Fundamental Change Repurchase Notice is withdrawn in accordance with this Indenture; and


 






    - 31 -


     


    

 


(x) the
CUSIP and ISIN numbers, if any, of the Notes.


 


Neither the failure to deliver
a Fundamental Change Notice nor any defect in a Fundamental Change Notice will limit the Fundamental Change Repurchase Right of any Holder
or otherwise affect the validity of any proceedings relating to any Repurchase Upon Fundamental Change.


 


(F) Procedures
to Exercise the Fundamental Change Repurchase Right.


 


(i) Delivery
of Fundamental Change Repurchase Notice and Notes to Be Repurchased. To exercise its Fundamental Change Repurchase Right for a Note
following a Fundamental Change, the Holder thereof must deliver to the Paying Agent:


 


(1) before
the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date (or such later time as may
be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such Note; and


 


(2) such
Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note).


 


The Paying Agent will promptly deliver
to the Company a copy of each Fundamental Change Repurchase Notice that it receives.


 


(ii) Contents
of Fundamental Change Repurchase Notices. Each Fundamental Change Repurchase Notice with respect to a Note must state:


 


(1) if
such Note is a Physical Note, the certificate number of such Note;


 


(2) the
principal amount of such Note to be repurchased, which must be an Authorized Denomination; and


 


(3) that
such Holder is exercising its Fundamental Change Repurchase Right with respect to such principal amount of such Note;


 


provided, however, that
if such Note is a Global Note, then such Fundamental Change Repurchase Notice must comply with the Depositary Procedures (and any such
Fundamental Change Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements
of this Section 4.02(F)).





 






    - 32 -


     


    

 


(iii) Withdrawal
of Fundamental Change Repurchase Notice. A Holder that has delivered a Fundamental Change Repurchase Notice with respect to a Note
may withdraw such Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent at any time before
the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date. Such withdrawal notice must
state:


 


(1) if
such Note is a Physical Note, the certificate number of such Note;


 


(2) the
principal amount of such Note to be withdrawn, which must be an Authorized Denomination; and


 


(3) the
principal amount of such Note, if any, that remains subject to such Fundamental Change Repurchase Notice, which must be an Authorized
Denomination;


 


provided, however, that
if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal notice
delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).


 


Upon receipt of any such withdrawal
notice with respect to a Note (or any portion thereof), the Paying Agent will (x) promptly deliver a copy of such withdrawal notice to
the Company; and (y) if such Note is surrendered to the Paying Agent, cause such Note (or such portion thereof in accordance with Section
2.11, treating such Note as having been then surrendered for partial repurchase in the amount set forth in such withdrawal notice
as remaining subject to repurchase) to be returned to the Holder thereof (or, if applicable with respect to any Global Note, cancel any
instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Note
in accordance with the Depositary Procedures).


 


(G) Payment
of the Fundamental Change Repurchase Price. Without limiting the Company’s obligation to deposit the Fundamental Change Repurchase
Price within the time proscribed by Section 3.01(B), the Company will cause the Fundamental Change Repurchase Price for a Note
(or portion thereof) to be repurchased pursuant to a Repurchase Upon Fundamental Change to be paid to the Holder thereof on or before
the later of (i) the applicable Fundamental Change Repurchase Date; and (ii) the date (x) such Note is delivered to the Paying Agent (in
the case of a Physical Note) or (y) the Depositary Procedures relating to the repurchase, and the delivery to the Paying Agent, of such
Holder’s beneficial interest in such Note to be repurchased are complied with (in the case of a Global Note). For the avoidance
of doubt, interest payable pursuant to the proviso to Section 4.02(D) on any Note to be repurchased pursuant to a Repurchase Upon
Fundamental Change must be paid pursuant to such proviso regardless of whether such Note is delivered or such Depositary Procedures are
complied with pursuant to the first sentence of this Section 4.02(G).


 


(H) Compliance
with Applicable Securities Laws. To the extent applicable, the Company will comply in all material respects with all federal and state
securities laws in connection with a Repurchase Upon Fundamental Change (including complying with Rules 13e-4 and 14e-1 under the Exchange
Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental Change in
the manner set forth in this Indenture; provided, however, that, to the extent that the Company’s obligations to offer to
repurchase and to repurchase Notes pursuant to this Section 4.02 conflict with any federal and/or state securities law or regulation
that is applicable to the Company and enacted after the Issue Date, the Company’s compliance with such law or regulation will not
be considered to be a Default of those obligations


 






    - 33 -


     


    

 


(I) Repurchase
in Part. Subject to the terms of this Section 4.02, Notes may be repurchased pursuant to a Repurchase Upon Fundamental Change
in part, but only in Authorized Denominations. Provisions of this Section 4.02 applying to the repurchase of a Note in whole will
equally apply to the repurchase of a permitted portion of a Note.


 


Section 4.03. Right
of the Company to Redeem the Notes.


 


(A) No
Right to Redeem Before May 20, 2024. The Company may not redeem the Notes at its option at any time before May 20, 2024.


 


(B) Right
to Redeem the Notes on or After May 20, 2024. Subject to the terms of this Section 4.03, the Company has the right, at its
election, to redeem all, or any portion (subject to the Partial Redemption Limitation) in an Authorized Denomination, of the Notes, at
any time, and from time to time, on a Redemption Date on or after May 20, 2024 and on or before the fortieth (40th) Scheduled Trading
Day immediately before the Maturity Date, for a cash purchase price equal to the Redemption Price, but only if (1) the Last Reported Sale
Price per share of Common Stock exceeds one hundred and thirty percent (130%) of the Conversion Price on (i) each of at least twenty (20)
Trading Days (whether or not consecutive) during the thirty (30) consecutive Trading Days ending on, and including, the Trading Day immediately
before the Redemption Notice Date for such Redemption; and (ii) the Trading Day immediately before such Redemption Notice Date; and (2)
a Shelf Registration Statement covering the resale of shares of Common Stock, if any, issuable upon conversion of the Notes in connection
with such Redemption is effective and available for use and is expected to remain effective and available during the period from, and
including, the related Redemption Notice Date to, and including, the Business Day immediately before the related Redemption Date, as of
the Redemption Notice Date, unless the Company elects Cash Settlement in respect of the conversions in connection with such Redemption.
For the avoidance of doubt, the calling of any Notes for Redemption will constitute a Make-Whole Fundamental Change with respect to such
Notes pursuant to clause (B) of the definition thereof.


 


(C) Redemption
Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not been
rescinded on or before the Redemption Date (including as a result of the payment of the related Redemption Price and any related interest
pursuant to the proviso to Section 4.03(E), on such Redemption Date), then (i) the Company may not call for Redemption or otherwise
redeem any Notes pursuant to this Section 4.03; and (ii) the Company will cause any Notes theretofore surrendered for such Redemption
to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer
to the Company, the Trustee or the Paying Agent of the applicable beneficial interests in such Notes in accordance with the Depositary
Procedures).


 






    - 34 -


     


    

 


(D) Redemption
Date. The Redemption Date for any Redemption will be a Business Day of the Company’s choosing that is no more than seventy (70),
nor less than fifty (50), Scheduled Trading Days after the Redemption Notice Date for such Redemption.


 


(E) Redemption
Price. The Redemption Price for any Note called for Redemption is an amount in cash equal to the principal amount of such Note plus
accrued and unpaid interest on such Note to, but excluding, the Redemption Date for such Redemption; provided, however,
that if such Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such
Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Redemption, to receive, on or, at the
Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding,
such Interest Payment Date (in the case of Global Notes, payable in accordance with the Depositary Procedures) (assuming, solely for these
purposes, that such Note remained outstanding through such Interest Payment Date, if such Redemption Date is before such Interest Payment
Date); and (ii) the Redemption Price will not include accrued and unpaid interest on such Note to, but excluding, such Redemption Date.
For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Redemption
Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding,
such Interest Payment Date will be paid, in accordance with Section 2.05(C), on the next Business Day to Holders as of the Close
of Business on the immediately preceding Regular Record Date; and (y) the Redemption Price will include interest on Notes to be redeemed
from, and including, such Interest Payment Date to, but excluding, such Redemption Date.


 


(F) Redemption
Notice. To call any Notes for Redemption, the Company must (x) send to each Holder of such Notes, the Trustee and the Paying Agent
a written notice of such Redemption (a “Redemption Notice”); and (y) substantially contemporaneously therewith, issue
a press release through such national newswire service as the Company then uses (or publish the same through such other widely disseminated
public medium as the Company then uses, including its website) containing the information set forth in the Redemption Notice.


 


Such Redemption Notice must
state:


 


(i) that
such Notes have been called for Redemption, briefly describing the Company’s Redemption right under this Indenture;


 


(ii) the
Redemption Date for such Redemption;


 


(iii) the
Redemption Price per $1,000 principal amount of Notes for such Redemption (and, if the Redemption Date is after a Regular Record Date
and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso
to Section 4.03(E));


 


(iv) the
name and address of the Paying Agent and the Conversion Agent;


 


(v) that
Notes called for Redemption may be converted at any time before the Close of Business on the Business Day immediately before the Redemption
Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Company
pays such Redemption Price in full);


 






    - 35 -


     


    

 


(vi) the
Conversion Rate in effect on the Redemption Notice Date for such Redemption and a description and quantification of any adjustments to
the Conversion Rate that may result from such Redemption (including pursuant to Section 5.07);


 


(vii) the
Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after such Redemption Notice Date
and on or before the second (2nd) Business Day before such Redemption Date; and


 


(viii) the
CUSIP and ISIN numbers, if any, of the Notes called for Redemption.


 


On or before the Redemption
Notice Date, the Company will send a copy of such Redemption Notice to the Trustee and the Paying Agent.


 


(G) Selection
and Conversion of Notes to Be Redeemed in Part. If less than all Notes then outstanding are called for Redemption, then:


 


(i) the
Notes to be redeemed will be selected by the Company as follows: (1) in the case of Global Notes, in accordance with the Depositary Procedures;
and (2) in the case of Physical Notes, the Trustee will select the Notes to be redeemed (in an Authorized Denomination) by lot, on a pro
rata basis or in such other manner as it shall deem appropriate and fair; and


 


(ii) if
only a portion of a Note is subject to Redemption and such Note is converted in part, then the converted portion of such Note will be
deemed to be from the portion of such Note that was subject to Redemption.


 


(H) Payment
of the Redemption Price. Without limiting the Company’s obligation to deposit the Redemption Price by the time proscribed by
Section 3.01(B), the Company will cause the Redemption Price for a Note (or portion thereof) subject to Redemption to be paid to
the Holder thereof on or before the applicable Redemption Date. For the avoidance of doubt, any interest payable pursuant to the proviso
to Section 4.03(E) on any Note (or portion thereof) subject to Redemption must be paid pursuant to such proviso.


 


(I) Special
Provisions for Partial Calls. If the Company elects to redeem less than all of the outstanding Notes, at least fifty million dollars
($50,000,000) aggregate principal amount of Notes must be outstanding and not subject to Redemption as of the relevant Redemption Notice
Date (such requirement, the “Partial Redemption Limitation”). In addition, if the Company elects to redeem less than
all of the outstanding Notes pursuant to this Section 4.03, and the Holder of any Note, or any owner of a beneficial interest in
any Global Note, is reasonably not able to determine, before the Close of Business on the forty second (42nd) Scheduled Trading Day immediately
before the Redemption Date for such Redemption, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to
such Redemption, then such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable,
at any time before the Close of Business on the Business Day immediately before such Redemption Date, and each such conversion will be
deemed to be of a Note called for Redemption for purposes of this Section 4.03 and Sections 5.01(C)(i)(4) and 5.07.


 






    - 36 -


     


    

 


Article
5. Conversion


 


Section 5.01. Right
to Convert.


 


(A) Generally.
Subject to the provisions of this Article 5, each Holder may, at its option, convert such Holder’s Notes into Conversion
Consideration.


 


(B) Conversions
in Part. Subject to the terms of this Indenture, Notes may be converted in part, but only in Authorized Denominations. Provisions
of this Article 5 applying to the conversion of a Note in whole will equally apply to conversions of a permitted portion of a Note.


 


(C) When
Notes May Be Converted.


 


(i) Generally.
Subject to Section 5.01(C)(ii), a Note may be converted only in the following circumstances:


 


(1) Conversion
upon Satisfaction of Common Stock Sale Price Condition. A Holder may convert its Notes during any calendar quarter (and only during
such calendar quarter) commencing after the calendar quarter ending on June 30, 2021, if the Last Reported Sale Price per share of Common
Stock exceeds one hundred and thirty percent (130%) of the Conversion Price for each of at least twenty (20) Trading Days (whether or
not consecutive) during the thirty (30) consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding
calendar quarter.


 


(2) Conversion
upon Satisfaction of Note Trading Price Condition. A Holder may convert its Notes during the five (5) consecutive Business Days immediately
after any ten (10) consecutive Trading Day period (such ten (10) consecutive Trading Day period, the “Measurement Period”)
if the Trading Price per $1,000 principal amount of Notes, as determined by the Bid Solicitation Agent (if not the Company) following
a request by a Holder in accordance with the procedures set forth below, for each Trading Day of the Measurement Period was less than
ninety eight percent (98%) of the product of the Last Reported Sale Price per share of Common Stock on such Trading Day and the Conversion
Rate on such Trading Day. The condition set forth in the preceding sentence is referred to in this Indenture as the “Trading
Price Condition.”


 


The Bid Solicitation Agent (if not the
Company) will have no obligation to determine the Trading Price of the Notes unless the Company has requested such determination in writing,
and the Company will have no obligation to make such request (or seek bids itself) unless a Holder holding at least $1,000,000 in aggregate
principal amount of Notes (or such lesser principal amount as may then be outstanding) provides the Company with reasonable evidence that
the Trading Price per $1,000 principal amount of Notes would be less than ninety eight percent (98%) of the product of the Last Reported
Sale Price per share of Common Stock and the Conversion Rate. If a Holder provides such evidence, then the Company will (if acting as
Bid Solicitation Agent), or will instruct the Bid Solicitation Agent to, determine the Trading Price of the Notes beginning on the next
Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to
ninety eight percent (98%) of the product of the Last Reported Sale Price per share of Common Stock on such Trading Day and the Conversion
Rate on such Trading Day. If the Trading Price Condition has been met as set forth above, then the Company will notify the Holders, the
Trustee and the Conversion Agent of the same. If, on any Trading Day after the Trading Price Condition has been met as set forth above,
the Trading Price per $1,000 principal amount of Notes is greater than or equal to ninety eight percent (98%) of the product of the Last
Reported Sale Price per share of Common Stock on such Trading Day and the Conversion Rate on such Trading Day, then the Company will notify
the Holders, the Trustee and the Conversion Agent of the same.


 






    - 37 -


     


    

 


(3) Conversion
upon Specified Corporate Events.


 


(a) Certain
Distributions. If, prior to the Close of Business on the Business Day immediately preceding November 15, 2025, the Company elects
to:


 


(I) distribute,
to all or substantially all holders of Common Stock, any rights, options or warrants (other than rights issued pursuant to a stockholder
rights plan, so long as such rights have not separated from the Common Stock and are not exercisable until the occurrence of a triggering
event, except that such rights will be deemed to be distributed under this clause (I) upon their separation from the Common Stock
or upon the occurrence of such triggering event) entitling them, for a period of not more than sixty (60) calendar days after the record
date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the
Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day
immediately before the date such distribution is announced (determined in the manner set forth in the third paragraph of Section 5.05(A)(ii));
or


 


(II) distribute,
to all or substantially all holders of Common Stock, assets or securities of the Company or rights to purchase the Company’s securities,
which distribution per share of Common Stock has a value, as reasonably determined by the Board of Directors, exceeding ten percent (10%)
of the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before the date such distribution is announced,


 






    - 38 -


     


    

 


then, in either case, (x) the Company
will send notice of such distribution, and of the related right to convert Notes, to Holders, the Trustee and the Conversion Agent at
least forty five (45) Scheduled Trading Days before the Ex-Dividend Date for such distribution (or, if later in the case of any such separation
of rights issued pursuant to a stockholder rights plan or the occurrence of any such triggering event under a stockholder rights plan,
as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur);
and (y) once the Company has sent such notice, Holders may convert their Notes at any time until the earlier of the Close of Business
on the Business Day immediately before such Ex-Dividend Date and the Company’s announcement that such distribution will not take
place; provided, however, that the Notes will not become convertible pursuant to clause (y) above (but the Company will
be required to send notice of such distribution pursuant to clause (x) above) on account of such distribution if each Holder participates,
at the same time and on the same terms as holders of Common Stock, and solely by virtue of being a Holder, in such distribution without
having to convert such Holder’s Notes and as if such Holder held a number of shares of Common Stock equal to the product of (i)
the Conversion Rate in effect on the record date for such distribution; and (ii) the aggregate principal amount (expressed in thousands)
of Notes held by such Holder on such record date.


 


(b) Certain
Corporate Events. If a Fundamental Change, Make-Whole Fundamental Change (other than a Make-Whole Fundamental Change pursuant to clause
(B) of the definition thereof) or Common Stock Change Event occurs (other than a merger or other business combination transaction
that is effected solely to change the Company’s jurisdiction of incorporation and that does not constitute a Fundamental Change
or a Make-Whole Fundamental Change), then, in each case, Holders may convert their Notes at any time from, and including, the date that
the Company sends (or, if earlier, the date the Company is required to send) notice of such transaction or event pursuant to the immediately
following sentence to, and including, the thirty fifth (35th) Trading Day after such effective date (or, if such transaction or event
also constitutes a Fundamental Change, to, but excluding, the related Fundamental Change Repurchase Date); provided, however,
that if the Company does not provide the notice referred to in the immediately following sentence by such effective date, then the last
day on which the Notes are convertible pursuant to this sentence will be extended by the number of Business Days from, and including,
such effective date to, but excluding, the date the Company provides such notice. No later than such effective date, the Company will
send notice to the Holders, the Trustee and the Conversion Agent of such transaction or event, such effective date and the related right
to convert Notes.


 


(4) Conversion
upon Redemption. If the Company calls any Note for Redemption, then the Holder of such Note called for Redemption may convert such
Note at any time before the Close of Business on the Business Day immediately before the related Redemption Date (or, if the Company fails
to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Company pays such Redemption Price
in full).


 


(5) Conversions
During Free Convertibility Period. A Holder may convert its Notes at any time from, and including, November 15, 2025 until the Close
of Business on the second (2nd) Scheduled Trading Day immediately before the Maturity Date.


 


For the avoidance of doubt, the Notes
may become convertible pursuant to any one or more of the preceding sub-paragraphs of this Section 5.01(C)(i) and the Notes ceasing
to be convertible pursuant to a particular sub-paragraph of this Section 5.01(C)(i) will not preclude the Notes from being convertible
pursuant to any other sub-paragraph of this Section 5.01(C)(i).


 






    - 39 -


     


    

 


(ii) Limitations
and Closed Periods. Notwithstanding anything to the contrary in this Indenture or the Notes:


 


(1) Notes
may be surrendered for conversion only after the Open of Business and before the Close of Business on a day that is a Business Day;


 


(2) in
no event may any Note be converted after the Close of Business on the second (2nd) Scheduled Trading Day immediately before the Maturity
Date;


 


(3) if
the Company calls any Note for Redemption pursuant to Section 4.03, then the Holder of such Note may not convert such Note after
the Close of Business on the Business Day immediately before the applicable Redemption Date, except to the extent the Company fails to
pay the Redemption Price for such Note in accordance with this Indenture; and


 


(4) if
a Fundamental Change Repurchase Notice is validly delivered pursuant to Section 4.02(F) with respect to any Note, then such Note
may not be converted, except to the extent (a) such notice is withdrawn in accordance with Section 4.02(F); or (b) the Company
fails to pay the Fundamental Change Repurchase Price for such Note in accordance with this Indenture.


 


Section 5.02. Conversion
Procedures.


 


(A) Generally.


 


(i) Global
Notes. To convert a beneficial interest in a Global Note that is convertible pursuant to Section 5.01(C), the owner of such
beneficial interest must (1) comply with the Depositary Procedures for converting such beneficial interest (at which time such conversion
will become irrevocable); and (2) pay any amounts due pursuant to Section 5.02(D).


 


(ii) Physical
Notes. To convert all or a portion of a Physical Note that is convertible pursuant to Section 5.01(C), the Holder of such Note
must (1) complete, manually sign and deliver to the Conversion Agent the notice of conversion attached to such Physical Note or a facsimile
of such notice of conversion; (2) deliver such Physical Note to the Conversion Agent (at which time such conversion will become irrevocable);
(3) furnish any endorsements and transfer documents that the Company or the Conversion Agent may require; and (4) pay any amounts due
pursuant to Section 5.02(D) (a notice pursuant to the Depositary Procedures as set forth in Section 5.02(A)(i) or a notice
of conversion attached to a Physical Note as set forth in this Section 5.02(A)(ii), a “Notice of Conversion”).


 


(B) Effect
of Converting a Note. At the Close of Business on the Conversion Date for a Note (or any portion thereof) to be converted, such Note
(or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or interest due, pursuant to Section
5.03(B) or 5.02(D), upon such conversion) be deemed to cease to be outstanding (and, for the avoidance of doubt, no Person
will be deemed to be a Holder of such Note (or such portion thereof) as of the Close of Business on such Conversion Date), except to the
extent provided in Section 5.02(D).


 


(C) Holder
of Record of Conversion Shares. The Person in whose name any share of Common Stock is issuable upon conversion of any Note will be
deemed to become the holder of record of such share as of the Close of Business on (i) the Conversion Date for such conversion, in the
case of Physical Settlement; or (ii) the last VWAP Trading Day of the Observation Period for such conversion, in the case of Combination
Settlement.


 


(D) Interest
Payable upon Conversion in Certain Circumstances. If the Conversion Date of a Note is after a Regular Record Date and before the next
Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding
such conversion (and, for the avoidance of doubt, notwithstanding anything set forth in the proviso to this sentence), to receive, on
or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but
excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest
Payment Date); and (ii) the Holder surrendering such Note for conversion must deliver to the Conversion Agent, at the time of such surrender,
an amount of cash equal to the amount of such interest referred to in clause (i) above; provided, however, that the Holder
surrendering such Note for conversion need not deliver such cash (w) if the Company has specified a Redemption Date that is after such
Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; (x) if such Conversion Date occurs
after the Regular Record Date immediately before the Maturity Date; (y) if the Company has specified a Fundamental Change Repurchase Date
that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; or (z) to the extent
of any overdue interest or interest that has accrued on any overdue interest. For the avoidance of doubt, as a result of, and without
limiting the generality of, the foregoing, if a Note is converted with a Conversion Date that is after the Regular Record Date immediately
before the Maturity Date, any Redemption Date described in clause (w) above and any Fundamental Change Repurchase Date described in clause
(y) above, then the Company will pay, as provided above, the interest that would have accrued on such Note to, but excluding, the Maturity
Date or other applicable Interest Payment Date to Holders as of the Close of Business on the Regular Record Date immediately before the
Maturity Date. For the avoidance of doubt, if the Conversion Date of a Note to be converted is on an Interest Payment Date, then the Holder
of such Note at the Close of Business on the Regular Record Date immediately before such Interest Payment Date will be entitled to receive,
on such Interest Payment Date, the unpaid interest that has accrued on such Note to, but excluding, such Interest Payment Date, and such
Note, when surrendered for conversion, need not be accompanied by any cash amount pursuant to the first sentence of this Section 5.02(D).


 






    - 40 -


     


    

 


(E) Taxes
and Duties. If a Holder converts a Note, the Company will pay any documentary, stamp or similar issue or transfer tax or duty due
on the issue of any shares of Common Stock upon such conversion; provided, however, that if any tax or duty is due because
such Holder requested such shares to be registered in a name other than such Holder’s name, then such Holder will pay such tax or
duty.


 


(F) Conversion
Agent to Notify Company of Conversions. If any Note is submitted for conversion to the Conversion Agent or the Conversion Agent receives
any written notice of conversion with respect to a Note, then the Conversion Agent will promptly (and, in any event, no later than the
Business Day following the date the Conversion Agent receives such Note or notice) notify the Company and the Trustee of such occurrence,
together with any other information reasonably requested by the Company, and will cooperate with the Company to determine the Conversion
Date for such Note.


 


Section 5.03. Settlement
upon Conversion.


 


(A) Settlement
Method. Upon the conversion of any Note, the Company will settle such conversion by paying or delivering, as applicable and as provided
in this Article 5, either (x) shares of Common Stock, together, if applicable, with cash in lieu of fractional shares as provided
in Section 5.03(B)(i)(1) (a “Physical Settlement”); (y) solely cash as provided in Section 5.03(B)(i)(2)
(a “Cash Settlement”); or (z) a combination of cash and shares of Common Stock, together, if applicable, with cash
in lieu of fractional shares as provided in Section 5.03(B)(i)(3) (a “Combination Settlement”).


 


(i) The
Company’s Right to Elect Settlement Method. The Company will have the right to elect the Settlement Method applicable to any
conversion of a Note; provided, however, that:


 


(1) subject
to clause (3) below, all conversions of Notes with a Conversion Date that occurs on or after November 15, 2025 will be settled
using the same Settlement Method, and the Company will send notice of such Settlement Method to Holders (with a written copy to the Trustee)
and the Conversion Agent (if other than the Trustee) no later than the Open of Business on November 15, 2025;


 


(2) subject
to clause (3) below, if the Company elects a Settlement Method with respect to the conversion of any Note whose Conversion Date
occurs before November 15, 2025, then the Company will send notice of such Settlement Method to the Holder of such Note (with a written
copy to the Trustee) and the Conversion Agent (if other than the Trustee) no later than the Close of Business on the Business Day immediately
after such Conversion Date;


 






    - 41 -


     


    

 


(3) if
any Notes are called for Redemption, then (1) the Company will specify, in the related Redemption Notice (and, in the case of a Redemption
of less than all outstanding Notes, in a notice simultaneously sent to all Holders of Notes not called for Redemption) sent pursuant to
Section 4.03(F), the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after
the related Redemption Notice Date and before the related Redemption Date; and (2) if such Redemption Date occurs on or after November
15, 2025, then such Settlement Method must be the same Settlement Method that, pursuant to clause (1) above, applies to all conversions
of Notes with a Conversion Date that occurs on or after November 15, 2025;


 


(4) the
Company will use the same Settlement Method for all conversions of Notes with the same Conversion Date (and, for the avoidance of doubt,
the Company will not be obligated to use the same Settlement Method with respect to conversions of Notes with different Conversion Dates,
except as provided in clause (1) or (3) above);


 


(5) if
the Company does not timely elect a Settlement Method with respect to the conversion of a Note, then the Company will be deemed to have
elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute a
Default or Event of Default);


 


(6) if
the Company timely elects Combination Settlement with respect to the conversion of a Note but does not timely notify the Holder of such
Note, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the applicable Specified Dollar Amount, then the
Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes (and, for the avoidance of
doubt, the failure to timely send such notification will not constitute a Default or Event of Default); and


 






    - 42 -


     


    

 


(7) the
Settlement Method will be subject to Sections 4.03(D), 5.09(A)(2) and 5.01(C)(i)(3)(a).


 


(ii) The
Company’s Right to Irrevocably Fix the Settlement Method. The Company will have the right, exercisable at its election by sending
notice of such exercise to the Holders (with a copy to the Trustee and the Conversion Agent), to (1) irrevocably fix the Settlement Method
that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Holders; or
(2) irrevocably elect Combination Settlement to apply to all conversions of Notes with a Conversion Date that occurs on or after the date
such notice is sent to Holders, and eliminate a Specified Dollar Amount or range of Specified Dollar Amounts that will apply to such conversions,
provided, in each case, that (w) the Settlement Method(s) so elected pursuant to clause (1) or (2) above must be
a Settlement Method or Settlement Method(s), as applicable, that the Company is then permitted to elect (for the avoidance of doubt, including
pursuant to, and subject to, the other provisions of this Section 5.03(A)); (x) no such irrevocable election will affect any Settlement
Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Indenture (including pursuant to Section
8.01(G) or this Section 5.03(A)); (y) upon any such irrevocable election pursuant to clause (1) above, the Default Settlement
Method will automatically be deemed to be set to the Settlement Method so fixed; and (z) upon any such irrevocable election pursuant to
clause (2) above, the Company will, if needed, simultaneously change the Default Settlement Method to Combination Settlement with
a Specified Dollar Amount that is consistent with such irrevocable election. Such notice, if sent, must set forth the applicable Settlement
Method and expressly state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs
on or after the date such notice is sent to Holders. For the avoidance of doubt, such an irrevocable election, if made, will be effective
without the need to amend this Indenture or the Notes, including pursuant to Section 8.01(G) (it being understood, however, that
the Company may nonetheless choose to execute such an amendment at its option).


 


(iii) Requirement
to Publicly Disclose the Fixed or Default Settlement Method. If the Company changes the Default Settlement Method pursuant to clause
(x) of the proviso to the definition of such term or irrevocably fixes the Settlement Method(s) pursuant Section 5.03(A)(ii),
then the Company will either post the Default Settlement Method or fixed Settlement Method(s), as applicable, on its website or disclose
the same in a Current Report on Form 8-K (or any successor form) that is filed with, or furnished to, the SEC.


 


(B) Conversion
Consideration.


 


(i) Generally.
Subject to Section 5.03(B)(ii) and Section 5.03(B)(iii), the type and amount of consideration (the “Conversion
Consideration”) due in respect of each $1,000 principal amount of a Note to be converted will be as follows:


 


(1) if
Physical Settlement applies to such conversion, a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion
Date for such conversion;


 


(2) if
Cash Settlement applies to such conversion, cash in an amount equal to the sum of the Daily Conversion Values for each VWAP Trading Day
in the Observation Period for such conversion; or


 


(3) if
Combination Settlement applies to such conversion, consideration consisting of (a) a number of shares of Common Stock equal to the sum
of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (b) an amount of cash equal to
the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period.


 






    - 43 -


     


    

 


(ii) Cash
in Lieu of Fractional Shares. If Physical Settlement or Combination Settlement applies to the conversion of any Note and the number
of shares of Common Stock deliverable pursuant to Section 5.03(B)(i) upon such conversion is not a whole number, then such number
will be rounded down to the nearest whole number and the Company will deliver, in addition to the other consideration due upon such conversion,
cash in lieu of the related fractional share in an amount equal to the product of (1) such fraction and (2) (x) the Daily VWAP on the
Conversion Date for such conversion (or, if such Conversion Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day),
in the case of Physical Settlement; or (y) the Daily VWAP on the last VWAP Trading Day of the Observation Period for such conversion,
in the case of Combination Settlement.


 


(iii) Conversion
of Multiple Notes by a Single Holder. If a Holder converts more than one (1) Note on a single Conversion Date, then the Conversion
Consideration due in respect of such conversion will (in the case of any Global Note, to the extent permitted by, and practicable under,
the Depositary Procedures) be computed based on the total principal amount of Notes converted on such Conversion Date by such Holder.


 


(iv) Notice
of Calculation of Conversion Consideration. If Cash Settlement or Combination Settlement applies to the conversion of any Note, then
the Company will determine the Conversion Consideration due thereupon promptly following the last VWAP Trading Day of the applicable Observation
Period and will promptly thereafter send notice to the Trustee and the Conversion Agent of the same and the calculation thereof in reasonable
detail. Neither the Trustee nor the Conversion Agent will have any duty to make any such determination.


 


(C) Delivery
of the Conversion Consideration. Except as set forth in Sections 5.05(D) and 5.09, the Company will pay or deliver,
as applicable, the Conversion Consideration due upon the conversion of any Note to the Holder as follows: (i) if Cash Settlement or Combination
Settlement applies to such conversion, on the second (2nd) Business Day immediately after the last VWAP Trading Day of the Observation
Period for such conversion; and (ii) if Physical Settlement applies to such conversion, on the second (2nd) Business Day immediately after
the Conversion Date for such conversion; provided, however, that if Physical Settlement applies to the conversion of any
Note with a Conversion Date that is after the Regular Record Date immediately before the Maturity Date, then, solely for purposes of such
conversion, (x) the Company will pay or deliver, as applicable, the Conversion Consideration due upon such conversion on the Maturity
Date (or, if the Maturity Date is not a Business Day, the next Business Day); and (y) the Conversion Date will instead be deemed to be
the second (2nd) Business Day immediately before the Maturity Date.


 


(D) Deemed
Payment of Principal and Interest; Settlement of Accrued Interest Notwithstanding Conversion. If a Holder converts a Note, then the
Company will not adjust the Conversion Rate to account for any accrued and unpaid Interest on such Note, and, except as provided in Section
5.02(D), the Company’s delivery of the Conversion Consideration due in respect of such conversion will be deemed to fully satisfy
and discharge the Company’s obligation to pay the principal of, and accrued and unpaid interest, if any, on, such Note to, but excluding
the Conversion Date. As a result, except as provided in Section 5.02(D), any accrued and unpaid interest on a converted Note will
be deemed to be paid in full rather than cancelled, extinguished or forfeited. In addition, subject to Section 5.02(D), if the
Conversion Consideration for a Note consists of both cash and shares of Common Stock, then accrued and unpaid interest that is deemed
to be paid therewith will be deemed to be paid first out of such cash.


 






    - 44 -


     


    

 


Section 5.04. Shares
to be Fully Paid.


 


The Company shall provide,
free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to
provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming delivery of the maximum number
of Additional Shares pursuant to Section 5.07 and that at the time of computation of such number of shares, all such Notes would
be converted by a single Holder and that Physical Settlement were applicable). Each Conversion Share, if any, delivered upon conversion
of any Note will be duly and validly issued, fully paid, non-assessable and free of any lien or adverse claim (except to the extent of
any lien or adverse claim created by the action or inaction of the Holder of such Note or the Person to whom such Conversion Share will
be delivered). If the Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the
Company will cause each Conversion Share, when delivered upon conversion of any Note, to be admitted for listing on such exchange or quotation
on such system.


 


Section 5.05. Adjustments
to the Conversion Rate.


 


(A) Events
Requiring an Adjustment to the Conversion Rate. The Conversion Rate will be adjusted from time to time as follows:


 


(i) Stock
Dividends, Splits and Combinations. If the Company issues solely shares of Common Stock as a dividend or distribution on all or substantially
all shares of the Common Stock, or if the Company effects a stock split or a stock combination of the Common Stock (in each case excluding
an issuance solely pursuant to a Common Stock Change Event, as to which Section 5.09 will apply), then the Conversion Rate will
be adjusted based on the following formula:


 


 


 





where:


 


	 	CR0	=	the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately before the Open of Business on the effective date of such stock split or stock combination, as applicable;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or effective date, as applicable;
	 	 	 	 
	 	OS0	=	the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date or effective date, as applicable, without giving effect to such dividend, distribution, stock split or stock combination; and
	 	 	 	 
	 	OS1	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination.



 






    - 45 -


     


    

 


If any dividend, distribution, stock
split or stock combination of the type described in this Section 5.05(A)(i) is declared or announced, but not so paid or made,
then the Conversion Rate will be readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution
or to effect such stock split or stock combination, to the Conversion Rate that would then be in effect had such dividend, distribution,
stock split or stock combination not been declared or announced.


 


(ii) Rights,
Options and Warrants. If the Company distributes, to all or substantially all holders of Common Stock, rights, options or warrants
(other than rights issued or otherwise distributed pursuant to a stockholder rights plan, as to which Sections 5.05(A)(iii)(1)
and 5.05(F) will apply) entitling such holders, for a period of not more than sixty (60) calendar days after the record date of
such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last
Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately
before the date such distribution is announced, then the Conversion Rate will be increased based on the following formula:


 


 





 


where:


 





	 	CR0	=	the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
	 	 	 	 
	 	OS	=	the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date;
	 	 	 	 
	 	X	=	the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
	 	 	 	 
	 	Y	=	a number of shares of Common Stock obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants by (y) the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced.


 






    - 46 -


     


    

 


To the extent such rights, options or
warrants are not so distributed, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase
to the Conversion Rate for such distribution been made on the basis of only the rights, options or warrants, if any, actually distributed.
In addition, to the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants (including
as a result of such rights, options or warrants not being exercised), the Conversion Rate will be readjusted to the Conversion Rate that
would then be in effect had the increase to the Conversion Rate for such distribution been made on the basis of delivery of only the number
of shares of Common Stock actually delivered upon exercise of such rights, option or warrants.


 


For purposes of this Section 5.05(A)(ii)
and Section 5.01(C)(i)(3)(a)(I), in determining whether any rights, options or warrants entitle holders of Common Stock to subscribe
for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of
Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date the distribution
of such rights, options or warrants is announced, and in determining the aggregate price payable to exercise such rights, options or warrants,
there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on
exercise thereof, with the value of such consideration, if not cash, to be determined by the Board of Directors.


 


(iii) Spin-Offs
and Other Distributed Property.


 


(1) Distributions
Other than Spin-Offs. If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property
of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all
holders of the Common Stock, excluding:


 


(u) dividends,
distributions, rights, options or warrants for which an adjustment to the Conversion Rate is required pursuant to Section 5.05(A)(i)
or 5.05(A)(ii);


 


(v) dividends
or distributions paid exclusively in cash for which an adjustment to the Conversion Rate is required pursuant to Section 5.05(A)(iv);


 


(w) rights
issued or otherwise distributed pursuant to a stockholder rights plan, except to the extent provided in Section 5.05(F);


 


(x) Spin-Offs
for which an adjustment to the Conversion Rate is required pursuant to Section 5.05(A)(iii)(2);


 






    - 47 -


     


    

 


(y) a
distribution solely pursuant to a tender offer or exchange offer for shares of Common Stock, as to which Section 5.05(A)(v) will
apply; and


 


(z) a
distribution solely pursuant to a Common Stock Change Event, as to which Section 5.09 will apply,


 


then the Conversion Rate will be increased
based on the following formula:


 


 





 


where:


 


	 	CR0	=	the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
	 	 	 	 
	 	SP	=	the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before such Ex-Dividend Date; and
	 	 	 	 
	 	FMV	=	the fair market value (as determined by the Board of Directors), as of such Ex-Dividend Date, of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed per share of Common Stock pursuant to such distribution;


 





provided, however, that
if FMV is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will
receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such distribution, at the same time and
on the same terms as holders of Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets, property,
rights, options or warrants that such Holder would have received if such Holder had owned, on such record date, a number of shares of
Common Stock equal to the Conversion Rate in effect on such record date.


 


To the extent such distribution is not
so paid or made, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made
on the basis of only the distribution, if any, actually made or paid.


 






    - 48 -


     


    

 


(2) Spin-Offs.
If the Company distributes or dividends shares of Capital Stock of any class or series, or similar equity interests, of or relating to
an Affiliate, a Subsidiary or other business unit of the Company to all or substantially all holders of the Common Stock (other than solely
pursuant to (x) a Common Stock Change Event, as to which Section 5.09 will apply; or (y) a tender offer or exchange offer for shares
of Common Stock, as to which Section 5.05(A)(v) will apply), and such Capital Stock or equity interests are listed or quoted (or
will be listed or quoted upon the consummation of the transaction) on a U.S. national securities exchange (a “Spin-Off”),
then the Conversion Rate will be increased based on the following formula:


 





 








 


where:


 





	 	CR0	=	the Conversion Rate in effect immediately before the Close of Business on the last Trading Day of the Spin-Off Valuation Period for such Spin-Off;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Close of Business on the last Trading Day of the Spin-Off Valuation Period;
	 	 	 	 
	 	FMV	=	the product of (x) the average of the Last Reported Sale Prices per share or unit of the Capital Stock or equity interests distributed in such Spin-Off over the ten (10) consecutive Trading Day period (the “Spin-Off Valuation Period”) beginning on, and including, the Ex-Dividend Date for such Spin-Off (such average to be determined as if references to Common Stock in the definitions of Last Reported Sale Price, Trading Day and Market Disruption Event were instead references to such Capital Stock or equity interests); and (y) the number of shares or units of such Capital Stock or equity interests distributed per share of Common Stock in such Spin-Off; and
	 	 	 	 
	 	SP	=	the average of the Last Reported Sale Prices per share of Common Stock for each Trading Day in the Spin-Off Valuation Period.


 


Notwithstanding anything to the contrary
in this Section 5.05(A)(iii)(2), (i) if any VWAP Trading Day of the Observation Period for a Note whose conversion will be settled
pursuant to Cash Settlement or Combination Settlement occurs during the Spin-Off Valuation Period for such Spin-Off, then, solely for
purposes of determining the Conversion Rate for such VWAP Trading Day for such conversion, such Spin-Off Valuation Period will be deemed
to consist of the Trading Days occurring in the period from, and including, the Ex-Dividend Date for such Spin-Off to, and including,
such VWAP Trading Day; and (ii) if the Conversion Date for a Note whose conversion will be settled pursuant to Physical Settlement occurs
during the Spin-Off Valuation Period for such Spin-Off, then, solely for purposes of determining the Conversion Consideration for such
conversion, such Spin-Off Valuation Period will be deemed to consist of the Trading Days occurring in the period from, and including,
the Ex-Dividend Date for such Spin-Off to, and including, such Conversion Date.


 






    - 49 -


     


    

 


To the extent any dividend or distribution
of the type set forth in this Section 5.05(A)(iii)(2) is declared but not made or paid, the Conversion Rate will be readjusted
to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if
any, actually made or paid.


 


(iv) Cash
Dividends or Distributions. If any cash dividend or distribution is made to all or substantially all holders of Common Stock, then
the Conversion Rate will be increased based on the following formula:


 


 





 


where:


 





	 	CR0	=	the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
	 	 	 	 
	 	SP	=	the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before such Ex-Dividend Date; and
	 	 	 	 
	 	D	=	the cash amount distributed per share of Common Stock in such dividend or distribution;


 


provided, however, that
if D is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will
receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such dividend or distribution, at the same
time and on the same terms as holders of Common Stock, the amount of cash that such Holder would have received if such Holder had owned,
on such record date, a number of shares of Common Stock equal to the Conversion Rate in effect on such record date.


 


To the extent such dividend or distribution
is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment
been made on the basis of only the dividend or distribution, if any, actually made or paid.


 






    - 50 -


     


    

 


(v) Tender
Offers or Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer
for shares of Common Stock (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange Act),
and the value (determined as of the Expiration Time by the Board of Directors) of the cash and other consideration paid per share of Common
Stock in such tender or exchange offer exceeds the Last Reported Sale Price per share of Common Stock on the Trading Day immediately after
the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange
offer (as it may be amended), then the Conversion Rate will be increased based on the following formula:


 


 





 


where:


 





	 	CR0	=	the Conversion Rate in effect immediately before the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period for such tender or exchange offer;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period;
	 	 	 	 
	 	AC	=	the aggregate value (determined as of the time (the “Expiration Time”) such tender or exchange offer expires by the Board of Directors) of all cash and other consideration paid for shares of Common Stock purchased or exchanged in such tender or exchange offer;
	 	 	 	 
	 	OS0	=	the number of shares of Common Stock outstanding immediately before the Expiration Time (including all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
	 	 	 	 
	 	OS1	=	the number of shares of Common Stock outstanding immediately after the Expiration Time (excluding all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
	 	 	 	 
	 	SP	=	the average of the Last Reported Sale Prices per share of Common Stock over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation Period”) beginning on, and including, the Trading Day immediately after the Expiration Date;


 


provided, however, that
the Conversion Rate will in no event be adjusted down pursuant to this Section 5.05(A)(v), except to the extent provided in the
immediately following paragraph. Notwithstanding anything to the contrary in this Section 5.05(A)(v), (i) if any VWAP Trading Day
of the Observation Period for a Note whose conversion will be settled pursuant to Cash Settlement or Combination Settlement occurs during
the Tender/Exchange Offer Valuation Period for such tender or exchange offer, then, solely for purposes of determining the Conversion
Rate for such VWAP Trading Day for such conversion, such Tender/Exchange Offer Valuation Period will be deemed to consist of the Trading
Days occurring in the period from, and including, the Trading Day immediately after the Expiration Date for such tender or exchange offer
to, and including, such VWAP Trading Day; and (ii) if the Conversion Date for a Note whose conversion will be settled pursuant to Physical
Settlement occurs during the Tender/Exchange Offer Valuation Period for such tender or exchange offer, then, solely for purposes of determining
the Conversion Consideration for such conversion, such Tender/Exchange Offer Valuation Period will be deemed to consist of the Trading
Days occurring in the period from, and including, the Trading Day immediately after the Expiration Date to, and including, such Conversion
Date.


 






    - 51 -


     


    

 


To the extent such tender or exchange
offer is announced but not consummated (including as a result of the Company being precluded from consummating such tender or exchange
offer under applicable law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded, the
Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only
the purchases or exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer.


 


(B) No
Adjustments in Certain Cases.


 


(i) Where
Holders Participate in the Transaction or Event Without Conversion. Notwithstanding anything to the contrary in Section 5.05(A),
the Company will not be obligated to adjust the Conversion Rate on account of a transaction or other event otherwise requiring an adjustment
pursuant to Section 5.05(A) (other than a stock split or combination of the type set forth in Section 5.05(A)(i) or a tender
or exchange offer of the type set forth in Section 5.05(A)(v)) if each Holder participates, at the same time and on the same terms
as holders of Common Stock, and solely by virtue of being a Holder of Notes, in such transaction or event without having to convert such
Holder’s Notes and as if such Holder held a number of shares of Common Stock equal to the product of (i) the Conversion Rate in
effect on the related record date; and (ii) the aggregate principal amount (expressed in thousands) of Notes held by such Holder on such
date.


 


(ii) Certain
Events. The Company will not be required to adjust the Conversion Rate except as provided in Section 5.05 or Section 5.07.
Without limiting the foregoing, the Company will not be obligated to adjust the Conversion Rate on account of:


 


(1) except
as otherwise provided in Section 5.05, the sale of shares of Common Stock for a purchase price that is less than the market price
per share of Common Stock or less than the Conversion Price;


 


(2) the
issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest
payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any such plan;


 






    - 52 -


     


    

 


(3) the
issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee,
director or consultant benefit plan or program of, or assumed by, the Company or any of its Subsidiaries;


 


(4) the
issuance of any shares of Common Stock pursuant to any option, warrant, right or convertible or exchangeable security of the Company outstanding
as of the Issue Date;


 


(5) solely
a change in the par value of the Common Stock; or


 


(6) accrued
and unpaid interest, if any, on the Notes.


 


(C) [Reserved.]


 


(D) Adjustments
Not Yet Effective. Notwithstanding anything to the contrary in this Indenture or the Notes, if:


 


(i) a
Note is to be converted pursuant to Physical Settlement or Combination Settlement;


 


(ii) the
record date, effective date or Expiration Time for any event that requires an adjustment to the Conversion Rate pursuant to Section
5.05(A) has occurred on or before the Conversion Date for such conversion (in the case of Physical Settlement) or on or before any
VWAP Trading Day in the Observation Period for such conversion (in the case of Combination Settlement), but an adjustment to the Conversion
Rate for such event has not yet become effective as of such Conversion Date or VWAP Trading Day, as applicable;


 


(iii) the
Conversion Consideration due upon such conversion includes any whole shares of Common Stock (in the case of Physical Settlement) or due
in respect of such VWAP Trading Day includes any whole or fractional shares of Common Stock (in the case of Combination Settlement); and


 


(iv) such
shares are not entitled to participate in such event (because they were not held on the related record date or otherwise),


 


then, solely for purposes of such conversion,
the Company will, without duplication, give effect to such adjustment on such Conversion Date (in the case of Physical Settlement) or
such VWAP Trading Day (in the case of Combination Settlement). In such case, if the date on which the Company is otherwise required to
deliver the consideration due upon such conversion is before the first date on which the amount of such adjustment can be determined,
then the Company will delay the settlement of such conversion until the second (2nd) Business Day after such first date.


 






    - 53 -


     


    

 





(E) Conversion
Rate Adjustments where Converting Holders Participate in the Relevant Transaction or Event. Notwithstanding anything to the contrary
in this Indenture or the


 



Notes, if:


 


(i) a
Conversion Rate adjustment for any dividend or distribution becomes effective on any Ex-Dividend Date pursuant to Section 5.05(A);


 


(ii) a
Note is to be converted pursuant to Physical Settlement or Combination Settlement;


 


(iii) the
Conversion Date for such conversion (in the case of Physical Settlement) or any VWAP Trading Day in the Observation Period for such conversion
(in the case of Combination Settlement) occurs on or after such Ex-Dividend Date and on or before the related record date;


 


(iv) the
Conversion Consideration due upon such conversion includes any whole shares of Common Stock (in the case of Physical Settlement) or due
in respect of such VWAP Trading Day includes any whole or fractional shares of Common Stock (in the case of Combination Settlement), in
each case based on a Conversion Rate that is adjusted for such dividend or distribution; and


 


(v) such
shares would be entitled to participate in such dividend or distribution (including pursuant to Section 5.02(C)),


 


then (x) in the case of Physical Settlement, such
Conversion Rate adjustment will not be given effect for such conversion and the shares of Common Stock issuable upon such conversion based
on such unadjusted Conversion Rate will not be entitled to participate in such dividend or distribution, but there will be added, to the
Conversion Consideration otherwise due upon such conversion, the same kind and amount of consideration that would have been delivered
in such dividend or distribution with respect to such shares of Common Stock had such shares been entitled to participate in such dividend
or distribution; and (y) in the case of Combination Settlement, the Conversion Rate adjustment relating to such Ex-Dividend Date will
be made for such conversion in respect of such VWAP Trading Day, but the shares of Common Stock issuable with respect to such VWAP Trading
Day based on such adjusted Conversion Rate will not be entitled to participate in such dividend or distribution.


 


(F) Stockholder
Rights Plans. If any shares of Common Stock are to be issued upon conversion of any Note and, at the time of such conversion, the
Company has in effect any stockholder rights plan, then the Holder of such Note will be entitled to receive, in addition to, and concurrently
with the delivery of, the Conversion Consideration otherwise payable under this Indenture upon such conversion, the rights set forth in
such stockholder rights plan, unless such rights have separated from the Common Stock at such time, in which case, and only in such case,
the Conversion Rate will be adjusted pursuant to Section 5.05(A)(iii)(1) on account of such separation as if, at the time of such
separation, the Company had made a distribution of the type referred to in such Section to all holders of the Common Stock, subject to
potential readjustment in accordance with the last paragraph of Section 5.05(A)(iii)(1).


 


(G) Limitation
on Effecting Transactions Resulting in Certain Adjustments. The Company will not engage in or be a party to any transaction or event
that would require the Conversion Rate to be adjusted pursuant to Section 5.05(A) or Section 5.07 to an amount that would
result in the Conversion Price per share of Common Stock being less than the par value per share of Common Stock.


 






    - 54 -


     


    

 


(H) Equitable
Adjustments to Prices. Whenever any provision of this Indenture requires the Company to calculate the average of the Last Reported
Sale Prices, or any function thereof, over a period of multiple days (including to calculate the Stock Price or an adjustment to the Conversion
Rate), or to calculate Daily VWAPs over an Observation Period, the Company will make proportionate adjustments, if any, to such calculations
to account for any adjustment to the Conversion Rate pursuant to Section 5.05(A)(i) that becomes effective, or any event requiring
such an adjustment to the Conversion Rate where the Ex-Dividend Date or effective date, as applicable, of such event occurs, at any time
during such period or Observation Period, as applicable.


 


(I) Calculation
of Number of Outstanding Shares of Common Stock. For purposes of Section 5.05(A), the number of shares of Common Stock outstanding
at any time will (i) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock; and
(ii) exclude shares of Common Stock held in the Company’s treasury (unless the Company pays any dividend or makes any distribution
on shares of Common Stock held in its treasury).


 


(J) Calculations.
All calculations with respect to the Conversion Rate and adjustments thereto will be made to the nearest 1/10,000th of a share of Common
Stock (with 5/100,000ths rounded upward).


 


(K) Notice
of Conversion Rate Adjustments. Upon the effectiveness of any adjustment to the Conversion Rate pursuant to Section 5.05(A),
the Company will promptly send written notice to the Holders, the Trustee and the Conversion Agent containing (i) a brief description
of the transaction or other event on account of which such adjustment was made; (ii) the Conversion Rate in effect immediately after such
adjustment; and (iii) the effective time of such adjustment.


 






    - 55 -


     


    

 


Section 5.06. Voluntary
Adjustments.


 


(A) Generally.
To the extent permitted by law and applicable stock exchange rules, the Company, from time to time, may (but is not required to) increase
the Conversion Rate by any amount if (i) the Board of Directors determines that such increase is either (x) in the best interest of the
Company; or (y) advisable to avoid or diminish any income tax imposed on holders of Common Stock or rights to purchase Common Stock as
a result of any dividend or distribution of shares (or rights to acquire shares) of Common Stock or any similar event; (ii) such increase
is in effect for a period of at least twenty (20) Business Days; and (iii) such increase is irrevocable during such period.


 


(B) Notice
of Voluntary Increases. If the Board of Directors determines to increase the Conversion Rate pursuant to Section 5.06(A), then,
no later than the first Business Day of the related twenty (20) Business Day period referred to in Section 5.06(A), the Company
will send notice to each Holder, the Trustee and the Conversion Agent of such increase, the amount thereof and the period during which
such increase will be in effect.


 


Section 5.07. Adjustments
to the Conversion Rate in Connection with a Make-Whole Fundamental Change.


 


(A) Generally.
If a Make-Whole Fundamental Change occurs and the Conversion Date for the conversion of a Note occurs during the related Make-Whole Fundamental
Change Conversion Period, then, subject to this Section 5.07, the Conversion Rate applicable to such conversion will be increased
by a number of shares (the “Additional Shares”) set forth in the table below corresponding (after interpolation as
provided in, and subject to, the provisions below) to the Make-Whole Fundamental Change Effective Date and the Stock Price of such Make-Whole
Fundamental Change:


 


	Make-Whole 	 	 
	Fundamental Change	 	Stock Price
	Effective Date	 	$6.61	 	$7.50	 	$8.43	 	$10.00	 	$10.96	 	$12.50	 	$15.00	 	$20.00	 	$25.00	 	$30.00	 	$35.00	 	$40.00
	May 27, 2021 	 	32.6303	 	32.6303	 	30.6002	 	21.6580	 	17.8266	 	13.3056	 	8.5847	 	3.8145	 	1.6776	 	0.6357	 	0.1429	 	0.0000
	May 15, 2022 	 	32.6303	 	32.6303	 	28.1993	 	19.4730	 	15.8093	 	11.5640	 	7.2473	 	3.0535	 	1.2556	 	0.4157	 	0.0520	 	0.0000
	May 15, 2023 	 	32.6303	 	32.6303	 	25.1601	 	16.7140	 	13.2801	 	9.4152	 	5.6500	 	2.2075	 	0.8216	 	0.2133	 	0.0031	 	0.0000
	May 15, 2024 	 	32.6303	 	29.0320	 	21.3013	 	13.1940	 	10.0876	 	6.7800	 	3.8047	 	1.3475	 	0.4328	 	0.0627	 	0.0000	 	0.0000
	May 15, 2025 	 	32.6303	 	23.8280	 	15.7556	 	8.2180	 	5.7409	 	3.4504	 	1.7480	 	0.5675	 	0.1460	 	0.0027	 	0.0000	 	0.0000
	May 15, 2026 	 	32.6303	 	14.6773	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000



 


If such Make-Whole Fundamental
Change Effective Date or Stock Price is not set forth in the table above, then:


 


(i) if
such Stock Price is between two Stock Prices in the table above or the Make-Whole Fundamental Change Effective Date is between two dates
in the table above, then the number of Additional Shares will be determined by straight-line interpolation between the numbers of Additional
Shares set forth for the higher and lower Stock Prices in the table above or the earlier and later dates in the table above, based on
a 365- or 366-day year, as applicable; and


 


(ii) if
the Stock Price is greater than $40.00 (subject to adjustment in the same manner as the Stock Prices set forth in the column headings
of the table above are adjusted pursuant to Section 5.07(B)), or less than $6.61 (subject to adjustment in the same manner), per
share, then no Additional Shares will be added to the Conversion Rate.


 


Notwithstanding anything to
the contrary in this Indenture or the Notes, in no event will the Conversion Rate be increased to an amount that exceeds 151.2859 shares
of Common Stock per $1,000 principal amount of Notes, which amount is subject to adjustment in the same manner as, and at the same time
and for the same events for which, the Conversion Rate is required to be adjusted pursuant to Section 5.05(A).


 






    - 56 -


     


    

 


For the avoidance of doubt,
but subject to Section 4.03(I), (x) the sending of a Redemption Notice will constitute a Make-Whole Fundamental Change only with
respect to the Notes called (or deemed called) for Redemption pursuant to such Redemption Notice, and not with respect to any other Notes;
and (y) the Conversion Rate applicable to the Notes not so called for Redemption will not be subject to increase pursuant to this Section
5.07 on account of such Redemption Notice.


 


(B) Adjustment
of Stock Prices and Number of Additional Shares. The Stock Prices in the first row (i.e., the column headers) of the table
set forth in Section 5.07(A) will be adjusted in the same manner as, and at the same time and for the same events for which, the
Conversion Price is adjusted as a result of the operation of Section 5.05(A). The numbers of Additional Shares in the table set
forth in Section 5.07(A) will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion
Rate is adjusted pursuant to Section 5.05(A).


 


(C) Notice
of the Occurrence of a Make-Whole Fundamental Change. The Company will notify the Holders in writing, the Trustee and the Conversion
Agent of each Make-Whole Fundamental Change (i) occurring pursuant to clause (A) of the definition thereof in accordance with Section
5.01(C)(i)(3)(b); and (ii) occurring pursuant to clause (B) of the definition thereof in accordance with Section 4.03(F).


 


Section 5.08. [Reserved.]


 


Section 5.09. Effect
of Common Stock Change Event.


 


(A) Generally.
If there occurs any:


 


(i) recapitalization,
reclassification or change of the Common Stock (other than (x) changes solely resulting from a subdivision or combination of the Common
Stock, (y) a change only in par value or from par value to no par value or no par value to par value and (z) stock splits and stock combinations
that do not involve the issuance of any other series or class of securities);


 


(ii) consolidation,
merger, combination or binding or statutory share exchange involving the Company;


 


(iii) sale,
lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person;
or


 


(iv) other
similar event,


 


and, as a result of which, the Common Stock is
converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination
of the foregoing (such an event, a “Common Stock Change Event,” and such other securities, cash or property, the “Reference
Property,” and the amount and kind of Reference Property that a holder of one (1) share of Common Stock would be entitled to
receive on account of such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion
of any security or other property), a “Reference Property Unit”), then, notwithstanding anything to the contrary in
this Indenture or the Notes,


 


(1) from
and after the effective time of such Common Stock Change Event, (I) the Conversion Consideration due upon conversion of any Note, and
the conditions to any such conversion, will be determined in the same manner as if each reference to any number of shares of Common Stock
in this Article 5 (or in any related definitions) were instead a reference to the same number of Reference Property Units; (II)
for purposes of Section 4.03, each reference to any number of shares of Common Stock in such Section (or in any related definitions)
will instead be deemed to be a reference to the same number of Reference Property Units; and (III) for purposes of the definitions of
“Fundamental Change” and “Make-Whole Fundamental Change,” references to “Common Stock” and the Company’s
“common equity” will be deemed to refer to the common equity, if any, forming part of such Reference Property;


 






    - 57 -


     


    

 


(2) if
such Reference Property Unit consists entirely of cash, then the Company will be deemed to elect Physical Settlement in respect of all
conversions whose Conversion Date occurs on or after the effective date of such Common Stock Change Event and will pay the cash due upon
such conversions no later than the second (2nd) Business Day after the relevant Conversion Date; and


 


(3) for
these purposes, (I) the Daily VWAP of any Reference Property Unit or portion thereof that consists of a class of common equity securities
will be determined by reference to the definition of “Daily VWAP,” substituting, if applicable, the Bloomberg page for such
class of securities in such definition; and (II) the Daily VWAP of any Reference Property Unit or portion thereof that does not consist
of a class of common equity securities, and the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not
consist of a class of securities, will be the fair value of such Reference Property Unit or portion thereof, as applicable, determined
in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof).


 


If the Reference Property
consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition
of the Reference Property Unit will be deemed to be the weighted average of the types and amounts of consideration actually received,
per share of Common Stock, by the holders of Common Stock. The Company will notify Holders, the Trustee and the Conversion Agent (if other
than the Trustee) of such weighted average as soon as practicable after such determination is made.


 


At or before the effective
time of such Common Stock Change Event, the Company and the resulting, surviving or transferee Person (if not the Company) of such Common
Stock Change Event (the “Successor Person”) will execute and deliver to the Trustee a supplemental indenture pursuant
to Section 8.01(F), which supplemental indenture will (x) provide for subsequent conversions of Notes in the manner set forth in
this Section 5.09; (y) provide for subsequent adjustments to the Conversion Rate pursuant to Section 5.05(A) in a manner
consistent with this Section 5.09; and (z) contain such other provisions, if any, that the Company reasonably determines are appropriate
to preserve the economic interests of the Holders and to give effect to the provisions of this Section 5.09(A). If the Reference
Property includes shares of stock or other securities or assets (other than cash) of a Person other than the Successor Person, then such
other Person will also execute such supplemental indenture and such supplemental indenture will contain such additional provisions, if
any, that the Company reasonably determines are appropriate to preserve the economic interests of the Holders.


 


(B) Notice
of Common Stock Change Events. The Company will provide notice of each Common Stock Change Event in the manner provided in Section
5.01(C)(i)(3)(b).


 






    - 58 -


     


    

 


(C) Compliance
Covenant. The Company will not become a party to any Common Stock Change Event unless its terms are consistent with this Section
5.09.


 


Section 5.10. Responsibility
of Trustee and Conversion Agent


 


The Trustee and Conversion
Agent shall not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto)
or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature
or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and Conversion Agent shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or
delivered upon the conversion of any Note; and the Trustee and Conversion Agent make no representations with respect thereto. Neither
the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common
Stock or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to
comply with any of the duties, responsibilities or covenants of the Company contained in this Article. Without limiting the generality
of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to (a) determine whether a supplemental
indenture needs to be entered into or (b) determine the correctness of any provisions contained in any supplemental indenture entered
into pursuant to ‎Section 5.09 relating either to the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Notes after any event referred to in such ‎Section 5.09 or to any adjustment to
be made with respect thereto, but, subject to the provisions of ‎Section 10.01, may accept (without any independent investigation)
as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate
(which the Company will be obligated to deliver to the Trustee and the Conversion Agent prior to the execution of any such supplemental
indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event contemplated
by ‎Section 5.01 has occurred that makes the Notes eligible for conversion or no longer eligible therefor until the Company has delivered
to the Trustee and the Conversion Agent the notices referred to in ‎Section 5.01 with respect to the commencement or termination of
such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely.


 


Article
6. Successors


 


Section 6.01. When
the Company May Merge, Etc.


 


(A) Generally.
The Company will not consolidate with or merge with or into, or (directly, or indirectly through one or more of its Subsidiaries) sell,
lease or otherwise transfer, in one transaction or a series of transactions, all or substantially all of the assets of the Company and
its Subsidiaries, taken as a whole, to another Person (a “Business Combination Event”), unless:


 


(i) the
resulting, surviving or transferee Person either (x) is the Company or (y) if not the Company, is a corporation (the “Successor
Corporation”) duly organized and existing under the laws of the United States of America, any State thereof or the District
of Columbia that expressly assumes (by executing and delivering to the Trustee, at or before the effective time of such Business Combination
Event, a supplemental indenture pursuant to Section 8.01(E)) all of the Company’s obligations under this Indenture and the
Notes;


 


(ii) immediately
after giving effect to such Business Combination Event, no Default or Event of Default will have occurred and be continuing; and


 






    - 59 -


     


    

 


(iii) the
Company or the Successor Corporation, if not the Company, shall have delivered to the Trustee an Officer’s Certificate and Opinion
of Counsel, each stating that (i) such Business Combination Event (and, if applicable, the related supplemental indenture) complies with
Section 6.01(A); and (ii) all conditions precedent to such Business Combination Event provided in this Indenture have been satisfied.


 


Section 6.02. Successor
Corporation Substituted.


 


At the effective time of any
Business Combination Event that complies with Section 6.01, the Successor Corporation (if not the Company) will succeed to, and
may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Corporation
had been named as the Company in this Indenture and the Notes, and, except in the case of a lease, the predecessor Company will be discharged
from its obligations under this Indenture and the Notes.


 


Article
7. Defaults and Remedies


 


Section 7.01. Events
of Default.


 


(A) Definition
of Events of Default. “Event of Default” means the occurrence of any of the following:


 


(i) a
default in the payment when due (whether at maturity, upon Redemption or Repurchase Upon Fundamental Change or otherwise) of the principal
of, or the Redemption Price or Fundamental Change Repurchase Price for, any Note;


 


(ii) a
default for thirty (30) consecutive days in the payment when due of interest on any Note;


 


(iii) the
Company’s failure to deliver, when required by this Indenture, a Fundamental Change Notice, or a notice pursuant to Section 5.01(C)(i)(3);


 


(iv) a
default in the Company’s obligation to convert a Note in accordance with Article 5 upon the exercise of the conversion right
with respect thereto, if such default is not cured within three (3) Business Days after its occurrence;


 


(v) a
default in the Company’s obligations under Section 6.01(A);


 


(vi) a
default in any of the Company’s obligations or agreements under this Indenture or the Notes (other than a default set forth in clause
(i), (ii), (iii), (iv) or (v) of this Section 7.01(A)) where such default is not cured or waived
within sixty (60) days after notice to the Company by the Trustee, or to the Company and the Trustee by Holders of at least twenty five
percent (25%) of the aggregate principal amount of Notes then outstanding, which notice must specify such default, demand that it be remedied
and state that such notice is a “Notice of Default”;


 






    - 60 -


     


    

 


(vii) a
default by the Company or any of the Company’s Subsidiaries with respect to any one or more mortgages, agreements or other instruments
under which there is outstanding, or by which there is secured or evidenced, any indebtedness for money borrowed of at least ten million
dollars ($10,000,000) (or its foreign currency equivalent) in the aggregate of the Company or any of the Company’s Subsidiaries,
whether such indebtedness exists as of the Issue Date or is thereafter created, where such default:


 


(1) constitutes
a failure to pay the principal, or premium or interest on, any of such indebtedness when due and payable at its stated maturity, upon
required repurchase, upon declaration of acceleration or otherwise; or


 


(2) results
in such indebtedness becoming or being declared due and payable before its stated maturity,


 


in each case where such default is not
cured or waived, within thirty (30) days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of at
least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding;


 


(viii) one
or more final judgments being rendered against the Company or any of the Company’s Subsidiaries for the payment of at least twenty
five million dollars ($25,000,000) (or its foreign currency equivalent) in the aggregate (excluding any amounts covered by insurance),
where such judgment is not discharged or stayed within sixty (60) days after (i) the date on which the right to appeal the same has expired,
if no such appeal has commenced; or (ii) the date on which all rights to appeal have been extinguished; and


 


(ix) the
Company or any of its Significant Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law, either:


 


(1) commences
a voluntary case or proceeding;


 


(2) consents
to the entry of an order for relief against it in an involuntary case or proceeding;


 


(3) consents
to the appointment of a custodian of it or for any substantial part of its property;


 


(4) makes
a general assignment for the benefit of its creditors;


 


(5) takes
any comparable action under any foreign Bankruptcy Law; or


 


(6) generally
is not paying its debts as they become due; or


 


(x) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that either:


 


(1) is
for relief against the Company or any of its Significant Subsidiaries in an involuntary case or proceeding;


 


(2) appoints
a custodian of the Company or any of its Significant Subsidiaries, or for any substantial part of the property of the Company or any of
its Significant Subsidiaries;


 


(3) orders
the winding up or liquidation of the Company or any of its Significant Subsidiaries; or


 


(4) grants
any similar relief under any foreign Bankruptcy Law,


 






    - 61 -


     


    

 


and, in each case under this Section
7.01(A)(x), such order or decree remains unstayed and in effect for at least sixty (60) days.


 


(B) Cause
Irrelevant. Each of the events set forth in Section 7.01(A) will constitute an Event of Default regardless of the cause thereof
or whether voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body.


 


Section 7.02. Acceleration.


 


(A) Automatic
Acceleration in Certain Circumstances. If an Event of Default set forth in Section 7.01(A)(ix) or 7.01(A)(x) occurs
with respect to the Company (and not solely with respect to a Significant Subsidiary of the Company), then the principal amount of, and
all accrued and unpaid interest on, all of the Notes then outstanding will immediately become due and payable without any further action
or notice by any Person.


 


(B) Optional
Acceleration. Subject to Section 7.03, if an Event of Default (other than an Event of Default set forth in Section 7.01(A)(ix)
or 7.01(A)(x) with respect to the Company and not solely with respect to a Significant Subsidiary of the Company) occurs and is
continuing, then the Trustee, by notice to the Company, or Holders of at least twenty five percent (25%) of the aggregate principal amount
of Notes then outstanding, by notice to the Company and the Trustee, may declare the principal amount of, and all accrued and unpaid interest
on, all of the Notes then outstanding to become due and payable immediately.


 


(C) Rescission
of Acceleration. Notwithstanding anything to the contrary in this Indenture or the Notes, the Holders of a majority in aggregate principal
amount of the Notes then outstanding, by notice to the Company and the Trustee, may, on behalf of all Holders, rescind any acceleration
of the Notes and its consequences if (i) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction;
and (ii) all existing Events of Default (except the non-payment of principal of, or interest on, the Notes that has become due solely
because of such acceleration) have been cured or waived. No such rescission will affect any subsequent Default or impair any right consequent
thereto.


 






    - 62 -


     


    

 


Section 7.03. Sole
Remedy for a Failure to Report.


 


(A) Generally.
Notwithstanding anything to the contrary in this Indenture or the Notes, the Company may elect that the sole remedy for any Event of Default
(a “Reporting Event of Default”) pursuant to Section 7.01(A)(vi) arising from the Company’s failure to
comply with Section 3.02 will, for each of the first one hundred and eighty (180) calendar days on which a Reporting Event of Default
has occurred and is continuing, consist exclusively of the accrual of Special Interest on the Notes. If the Company has made such an election,
then (i) the Notes will be subject to acceleration pursuant to Section 7.02 on account of the relevant Reporting Event of Default
from, and including, the one hundred and eighty first (181st) calendar day on which a Reporting Event of Default has occurred and is continuing
or if the Company fails to pay any accrued and unpaid Special Interest when due; and (ii) Special Interest will cease to accrue on any
Notes from, and including, the earlier of (x) the date such Reporting Event of Default is cured or waived and (y) such one hundred and
eighty first (181st) calendar day.


 


(B) Amount
and Payment of Special Interest. Any Special Interest that accrues on a Note pursuant to Section 7.03(A) will be payable in
arrears on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal to one
quarter of one percent (0.25%) of the principal amount thereof for the first ninety (90) days on which Special Interest accrues and, thereafter,
at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof for the duration of the period on which Special
Interest accrues; provided, however, that in no event will Special Interest payable at the Company’s election pursuant
to Section 7.03(A) as the sole remedy for any Reporting Event of Default, together with any Additional Interest that may accrue
pursuant to Section 3.04(A), accrue on any day on a Note at a combined rate per annum that exceeds one half of one percent (0.50%).
For the avoidance of doubt, any Special Interest that accrues on a Note pursuant to Section 7.03(A) will be in addition to the
Stated Interest that accrues on such Note and in addition to any Additional Interest that accrues on such Note.


 


(C) Notice
of Election. To make the election set forth in Section 7.03(A), the Company must send to the Holders, the Trustee and the Paying
Agent, before the date on which each Reporting Event of Default first occurs, a notice that (i) briefly describes the report(s) that the
Company failed to file with or furnish to the SEC; (ii) states that the Company is electing that the sole remedy for such Reporting Event
of Default consist of the accrual of Special Interest pursuant to Section 7.03(A); and (iii) briefly describes the periods during
which and rate at which Special Interest will accrue and the circumstances under which the Notes will be subject to acceleration on account
of such Reporting Event of Default.


 


(D) Notice
to Trustee and Paying Agent; Trustee’s Disclaimer. If Special Interest accrues on any Note pursuant to Section 7.03(A),
then, no later than five (5) Business Days before each date on which such Special Interest is to be paid, the Company will deliver an
Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Special Interest on such
Note pursuant to Section 7.03(A) on such date of payment; and (ii) the amount of such Special Interest that is payable on such
date of payment. The Trustee will have no duty to determine whether any Special Interest is payable or the amount thereof.


 






    - 63 -


     


    

 


(E) No
Effect on Other Events of Default. No election pursuant to this Section 7.03 with respect to a Reporting Event of Default will
affect the rights of any Holder with respect to any other Event of Default, including with respect to any other Reporting Event of Default.


 


Section 7.04. Other
Remedies.


 


(A) Trustee
May Pursue All Remedies. If an Event of Default occurs and is continuing, then the Trustee may pursue any available remedy to collect
the payment of any amounts due with respect to the Notes or to enforce the performance of any provision of this Indenture or the Notes.


 


(B) Procedural
Matters. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in such
proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy following an Event of Default will not
impair the right or remedy or constitute a waiver of, or acquiescence in, such Event of Default. All remedies will be cumulative to the
extent permitted by law.


 


Section 7.05. Waiver
of Past Defaults.


 


An Event of Default pursuant
to clause (i), (ii), (iv) or (vi) of Section 7.01(A) (that, in the case of clause (vi) only,
results from a Default under any covenant that cannot be amended without the consent of each affected Holder), and a Default that could
lead to such an Event of Default, can be waived only with the consent of each affected Holder. Each other Default or Event of Default
may be waived, on behalf of all Holders, by the Holders of a majority in aggregate principal amount of the Notes then outstanding. If
an Event of Default is so waived, then it will cease to exist. If a Default is so waived, then it will be deemed to be cured and any Event
of Default arising therefrom will be deemed not to occur. However, no such waiver will extend to any subsequent or other Default or Event
of Default or impair any right arising therefrom.


 


Section 7.06. Control
by Majority.


 


Holders of a majority in aggregate
principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law, this Indenture or the Notes, or that, subject to Section 10.01, the Trustee determines may be unduly prejudicial
to the rights of other Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any
such direction is unduly prejudicial to any Holders) or may involve the Trustee in liability, unless the Trustee is offered security and
indemnity satisfactory to the Trustee against any loss, liability or expense to the Trustee that may result from the Trustee’s following
such direction.


 






    - 64 -


     


    

 


Section 7.07. Limitation
on Suits.


 


No Holder may pursue any remedy
with respect to this Indenture or the Notes (except to enforce (x) its rights to receive the principal of, or the Redemption Price or
Fundamental Change Repurchase Price for, or interest on, any Notes; or (y) the Company’s obligations to convert any Notes pursuant
to Article 5), unless:


 


(A) such
Holder has previously delivered to the Trustee notice that an Event of Default is continuing;


 


(B) Holders
of at least twenty five percent (25%) in aggregate principal amount of the Notes then outstanding deliver a written request to the Trustee
to pursue such remedy;


 


(C) such
Holder or Holders offer and, if requested, provide to the Trustee security and indemnity satisfactory to the Trustee against any loss,
liability or expense to the Trustee that may result from the Trustee’s following such request;


 


(D) the
Trustee does not comply with such request within sixty (60) calendar days after its receipt of such request and such offer of security
or indemnity; and


 


(E) during
such sixty (60) calendar day period, Holders of a majority in aggregate principal amount of the Notes then outstanding do not deliver
to the Trustee a direction that is inconsistent with such request.


 


A Holder of a Note may not
use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder. The Trustee will
have no duty to determine whether any Holder’s use of this Indenture complies with the preceding sentence.


 


Section 7.08. Absolute
Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and Conversion Consideration.


 


Notwithstanding anything to
the contrary in this Indenture or the Notes (but without limiting Section 8.01), the right of each Holder of a Note to bring suit
for the enforcement of any payment or delivery, as applicable, of the principal of, or the Redemption Price or Fundamental Change Repurchase
Price for, or any interest on, or the Conversion Consideration due pursuant to Article 5 upon conversion of, such Note on or after
the respective due dates therefor provided in this Indenture and the Notes, will not be impaired or affected without the consent of such
Holder.


 


Section 7.09. Collection
Suit by Trustee.


 


The Trustee will have the
right, upon the occurrence and continuance of an Event of Default pursuant to clause (i), (ii) or (iv) of Section
7.01(A), to recover judgment in its own name and as trustee of an express trust against the Company for the total unpaid or undelivered
principal of, or Redemption Price or Fundamental Change Repurchase Price for, or interest on, or Conversion Consideration due pursuant
to Article 5 upon conversion of, the Notes, as applicable, and such further amounts sufficient to cover the costs and expenses
of collection, including compensation provided for in Section 10.06.


 






    - 65 -


     


    

 


Section 7.10. Trustee
May File Proofs of Claim.


 


The Trustee has the right
to (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee
and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes) or its creditors or
property and (B) collect, receive and distribute any money or other property payable or deliverable on any such claims. Each Holder authorizes
any custodian in such proceeding to make such payments to the Trustee, and, if the Trustee consents to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to the Trustee for the reasonable compensation, expenses, disbursements and advances
of the Trustee, and its agents and counsel, and any other amounts payable to the Trustee pursuant to Section 10.06. To the extent
that the payment of any such compensation, expenses, disbursements, advances and other amounts out of the estate in such proceeding, is
denied for any reason, payment of the same will be secured by a lien (senior to the rights of Holders) on, and will be paid out of, any
and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding
(whether in liquidation or under any plan of reorganization or arrangement or otherwise). Nothing in this Indenture will be deemed to
authorize the Trustee to authorize, consent to, accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding.


 


Section 7.11. Priorities.


 


The Trustee will pay or deliver
in the following order any money or other property that it collects pursuant to this Article 7:


 


First: to
the Trustee and its agents and attorneys for amounts due under this Indenture, including payment of all fees, compensation, expenses and
liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;


 


Second: to
Holders for unpaid amounts or other property due on the Notes, including the principal of, or the Redemption Price or Fundamental Change
Repurchase Price for, or any interest on, or any Conversion Consideration due upon conversion of, the Notes, ratably, and without preference
or priority of any kind, according to such amounts or other property due and payable on all of the Notes; and


 


Third: to
the Company or such other Person as a court of competent jurisdiction directs.


 


The Trustee may fix a record
date and payment date for any payment or delivery to the Holders pursuant to this Section 7.11, in which case the Trustee will
instruct the Company to, and the Company will deliver in writing, at least fifteen (15) calendar days before such record date, to each
Holder and the Trustee a notice stating such record date, such payment date and the amount of such payment or nature of such delivery,
as applicable.


 






    - 66 -


     


    

 


Section 7.12. Undertaking
for Costs.


 


In any suit for the enforcement
of any right or remedy under this Indenture or the Notes or in any suit against the Trustee for any action taken or omitted by it as Trustee,
a court, in its discretion, may (A) require the filing by any litigant party in such suit of an undertaking to pay the costs of such suit,
and (B) assess reasonable costs (including reasonable attorneys’ fees) against any litigant party in such suit, having due regard
to the merits and good faith of the claims or defenses made by such litigant party; provided, however, that this Section
7.12 does not apply to any suit by the Trustee, any suit by a Holder pursuant to Section 7.08 or any suit by one or more Holders
of more than ten percent (10%) in aggregate principal amount of the Notes then outstanding.


 


Article
8. Amendments, Supplements and Waivers


 


Section 8.01. Without
the Consent of Holders.


 


Notwithstanding anything to
the contrary in Section 8.02, the Company and the Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder to:


 


(A) cure
any ambiguity or correct any omission, defect or inconsistency in this Indenture or the Notes;


 


(B) add
guarantees with respect to the Company’s obligations under this Indenture or the Notes;


 


(C) secure
the Notes;


 


(D) add
to the Company’s covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred on the
Company;


 


(E) provide
for the assumption of the Company’s obligations under this Indenture and the Notes pursuant to, and in compliance with, Article
6;


 


(F) enter
into supplemental indentures pursuant to, and in accordance with, Section 5.09 in connection with a Common Stock Change Event;


 


(G) irrevocably
elect or eliminate any Settlement Method or Specified Dollar Amount; provided, however, that no such election or elimination
will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to Section 5.03(A);


 


(H) evidence
or provide for the acceptance of the appointment, under this Indenture, of a successor Trustee;


 


(I) conform
the provisions of this Indenture and the Notes to the “Description of the Notes” section of the Company’s preliminary
offering memorandum, dated May 24, 2021, as supplemented by the related pricing term sheet, dated May 24, 2021;


 






    - 67 -


     


    

 


(J) provide
for or confirm the issuance of additional Notes pursuant to Section 2.03(B);


 


(K) increase
the Conversion Rate;


 


(L) comply
with any requirement of the SEC in connection with any qualification of this Indenture or any supplemental indenture under the Trust Indenture
Act, as then in effect;


 


(M) comply
with the rules of the Depository in a manner that does not adversely affect the rights of any Holder; or


 


(N) make
any other change to this Indenture or the Notes that does not, individually or in the aggregate with all other such changes, adversely
affect the rights of the Holders, as such, in any material respect.


 


At the written request of
any Holder of a Note or owner of a beneficial interest in a Global Note, the Company will provide a copy of the “Description of
the Notes” section and pricing term sheet referred to in Section 8.01(I).


 


Section 8.02. With
the Consent of Holders.


 


(A) Generally.
Subject to Sections 8.01, 7.05 and 7.08 and the immediately following sentence, the Company and the Trustee may,
with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding, amend or supplement this Indenture
or the Notes or waive compliance with any provision of this Indenture or the Notes. Notwithstanding anything to the contrary in the foregoing
sentence, but subject to Section 8.01, without the consent of each affected Holder, no amendment or supplement to this Indenture
or the Notes, or waiver of any provision of this Indenture or the Notes, may:


 


(i) reduce
the principal, or change the stated maturity, of any Note;


 


(ii) reduce
the Redemption Price or Fundamental Change Repurchase Price for any Note or change the times at which, or the circumstances under which,
the Notes may or will be redeemed or repurchased by the Company;


 


(iii) reduce
the rate, or extend the time for the payment, of interest on any Note;


 


(iv) make
any change that adversely affects the conversion rights of any Note;


 


(v) impair
the absolute rights of any Holder set forth in Section 7.08 (as such section is in effect on the Issue Date);


 


(vi) change
the ranking of the Notes;


 


(vii) make
any Note payable in money, or at a place of payment, other than that stated in this Indenture or the Note;


 






    - 68 -


     


    

 


(viii) reduce
the amount of Notes whose Holders must consent to any amendment, supplement, waiver or other modification; or


 


(ix) make
any direct or indirect change to any amendment, supplement, waiver or modification provision of this Indenture or the Notes that requires
the consent of each affected Holder.


 


For the avoidance of doubt,
pursuant to clauses (i), (ii), (iii), (iv) and (v) of this Section 8.02(A), no amendment or
supplement to this Indenture or the Notes, or waiver of any provision of this Indenture or the Notes, may change the amount or type of
consideration due on any Note (whether on an Interest Payment Date, Redemption Date, Fundamental Change Repurchase Date or the Maturity
Date or upon conversion, or otherwise), or the date(s) or time(s) such consideration is payable or deliverable, as applicable, without
the consent of each affected Holder.


 


(B) Holders
Need Not Approve the Particular Form of any Amendment. A consent of any Holder pursuant to this Section 8.02 need approve only
the substance, and not necessarily the particular form, of the proposed amendment, supplement or waiver.


 


Section 8.03. Notice
of Amendments, Supplements and Waivers.


 


As soon as reasonably practicable
after any amendment, supplement or waiver pursuant to Section 8.01 or 8.02 becomes effective, the Company will send to the
Holders and the Trustee notice that (A) describes the substance of such amendment, supplement or waiver in reasonable detail and (B) states
the effective date thereof; provided, however, that the Company will not be required to provide such notice to the Holders
if such amendment, supplement or waiver is included in a periodic report filed by the Company with the SEC within four (4) Business Days
of its effectiveness. The failure to send, or the existence of any defect in, such notice will not impair or affect the validity of such
amendment, supplement or waiver.


 


Section 8.04. Revocation,
Effect and Solicitation of Consents; Special Record Dates; Etc.


 


(A) Revocation
and Effect of Consents. The consent of a Holder of a Note to an amendment, supplement or waiver will bind (and constitute the consent
of) each subsequent Holder of any Note to the extent the same evidences any portion of the same indebtedness as the consenting Holder’s
Note, subject to the right of any Holder of a Note to revoke (if not prohibited pursuant to Section 8.04(B)) any such consent with
respect to such Note by delivering notice of revocation to the Trustee before the time such amendment, supplement or waiver becomes effective.


 


(B) Special
Record Dates. The Company may, but is not required to, fix a record date for the purpose of determining the Holders entitled to consent
or take any other action in connection with any amendment, supplement or waiver pursuant to this Article 8. If a record date is
fixed, then, notwithstanding anything to the contrary in Section 8.04(A), only Persons who are Holders as of such record date (or
their duly designated proxies) will be entitled to give such consent, to revoke any consent previously given or to take any such action,
regardless of whether such Persons continue to be Holders after such record date; provided, however, that no such consent
will be valid or effective for more than one hundred and twenty (120) calendar days after such record date.


 






    - 69 -


     


    

 


(C) Solicitation
of Consents. For the avoidance of doubt, each reference in this Indenture or the Notes to the consent of a Holder will be deemed to
include any such consent obtained in connection with a repurchase of, or tender or exchange offer for, any Notes.


 


(D) Effectiveness
and Binding Effect. Each amendment, supplement or waiver pursuant to this Article 8 will become effective in accordance with
its terms and, when it becomes effective with respect to any Note (or any portion thereof), will thereafter bind every Holder of such
Note (or such portion).


 


Section 8.05. Notations
and Exchanges.


 


If any amendment, supplement
or waiver changes the terms of a Note, then the Trustee (at the direction of the Company) or the Company may, in its discretion, require
the Holder of such Note to deliver such Note to the Trustee so that the Trustee may place an appropriate notation prepared by the Company
on such Note and return such Note to such Holder. Alternatively, at its discretion, the Company may, in exchange for such Note, issue,
execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Note that reflects
the changed terms. The failure to make any appropriate notation or issue a new Note pursuant to this Section 8.05 will not impair
or affect the validity of such amendment, supplement or waiver.


 


Section 8.06. Trustee
to Execute Supplemental Indentures.


 


The Trustee will execute and
deliver any amendment or supplemental indenture authorized pursuant to this Article 8; provided, however, that the
Trustee need not (but may, in its sole and absolute discretion) execute or deliver any such amendment or supplemental indenture that the
Trustee concludes adversely affects the Trustee’s rights, duties, liabilities or immunities. In executing any amendment or supplemental
indenture, the Trustee will be entitled to receive, and (subject to Sections 10.01 and 10.02) will be fully protected in
relying on, in addition to the documents required by Section 11.02, an Officer’s Certificate and an Opinion of Counsel stating
that (A) the execution and delivery of such amendment or supplemental indenture is authorized or permitted by this Indenture; and (B)
in the case of the Opinion of Counsel, such amendment or supplemental indenture is valid, binding and enforceable against the Company
in accordance with its terms.


 






    - 70 -


     


    

 


Article
9. Satisfaction and Discharge


 


Section 9.01. Termination
of Company’s Obligations.


 


This Indenture will be discharged,
and will cease to be of further effect as to all Notes issued under this Indenture, when:


 


(A) all
Notes then outstanding (other than Notes replaced pursuant to Section 2.13) have (i) been delivered to the Trustee for cancellation;
or (ii) become due and payable (whether on a Redemption Date, a Fundamental Change Repurchase Date, the Maturity Date, upon conversion
or otherwise) for an amount of cash or Conversion Consideration, as applicable, that has been fixed;


 


(B) the
Company has caused there to be irrevocably deposited with the Trustee, or with the Paying Agent (or, with respect to Conversion Consideration,
the Conversion Agent), in each case for the benefit of the Holders, or has otherwise caused there to be delivered to the Holders, cash
(or, with respect to Notes to be converted, Conversion Consideration) sufficient to satisfy all amounts or other property due on all Notes
then outstanding (other than Notes replaced pursuant to Section 2.13);


 


(C) the
Company has paid all other amounts payable by it under this Indenture; and


 


(D) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the conditions precedent
to the discharge of this Indenture have been satisfied;


 


provided, however, that Article
10 and Section 11.01 will survive such discharge and, until no Notes remain outstanding, Section 2.15 and the obligations
of the Trustee, the Paying Agent and the Conversion Agent with respect to money or other property deposited with them will survive such
discharge.


 


At the Company’s request,
the Trustee will acknowledge the satisfaction and discharge of this Indenture.


 


Section 9.02. Repayment
to Company.


 


Subject to applicable unclaimed
property law, the Trustee, the Paying Agent and the Conversion Agent will promptly notify the Company if there exists (and, at the Company’s
request, promptly deliver to the Company) any cash, Conversion Consideration or other property held by any of them for payment or delivery
on the Notes that remain unclaimed two (2) years after the date on which such payment or delivery was due. After such delivery to the
Company, the Trustee, the Paying Agent and the Conversion Agent will have no further liability to any Holder with respect to such cash,
Conversion Consideration or other property, and Holders entitled to the payment or delivery of such cash, Conversion Consideration or
other property must look to the Company for payment as a general creditor of the Company.


 






    - 71 -


     


    

 


Section 9.03. Reinstatement.


 


If the Trustee, the Paying
Agent or the Conversion Agent is unable to apply any cash or other property deposited with it pursuant to Section 9.01 because
of any legal proceeding or any order or judgment of any court or other governmental authority that enjoins, restrains or otherwise prohibits
such application, then the discharge of this Indenture pursuant to Section 9.01 will be rescinded; provided, however,
that if the Company thereafter pays or delivers any cash or other property due on the Notes to the Holders thereof, then the Company will
be subrogated to the rights of such Holders to receive such cash or other property from the cash or other property, if any, held by the
Trustee, the Paying Agent or the Conversion Agent, as applicable.


 


Article
10. Trustee


 


Section 10.01. Duties
of the Trustee.


 


(A) If
an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.


 


(B) Except
during the continuance of an Event of Default:


 


(i) the
duties of the Trustee will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no implied covenants or obligations will be read into this Indenture
against the Trustee; and


 


(ii) in
the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel that are provided to the Trustee
and conform to the requirements of this Indenture. However, the Trustee will examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture, but shall have no affirmative duty to verify the contents thereof.


 


(C) The
Trustee may not be relieved from liabilities for its gross negligence or willful misconduct, except that:


 


(i) this
paragraph will not limit the effect of Section 10.01(B);


 


(ii) the
Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was grossly negligent in ascertaining the pertinent facts; and


 


(iii) the
Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 7.06.


 






    - 72 -


     


    

 


(D) Each
provision of this Indenture that in any way relates to the Trustee is subject to this Section 10.01 and Section 10.02, regardless
of whether such provision so expressly provides.


 


(E) No
provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.


 


(F) The
Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.


 


Section 10.02. Rights
of the Trustee.


 


(A) The
Trustee may conclusively rely on any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent,
order, judgment, bond, debenture, note, other evidence of indebtedness or other paper or document that it believes to be genuine and signed
or presented by the proper Person, and the Trustee need not investigate any fact or matter stated in such document.


 


(B) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate, an Opinion of Counsel or both. The Trustee will
not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
The Trustee may consult with counsel; and the advice of such counsel, or any Opinion of Counsel, will constitute full and complete authorization
of the Trustee to take or omit to take any action in good faith in reliance thereon without liability.


 


(C) The
Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any such agent appointed
with due care.


 


(D) The
Trustee will not be liable for any action it takes or omits to take in good faith and that it believes to be authorized or within the
rights or powers vested in it by this Indenture.


 


(E) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed
by an Officer of the Company.


 


(F) The
Trustee need not exercise any rights or powers vested in it by this Indenture at the request or direction of any Holder unless such Holder
has offered the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense that it may incur in
complying with such request or direction.


 


(G) The
Trustee will not be responsible or liable for any punitive, special, indirect, incidental or consequential loss or damage (including lost
profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.


 


(H) The
Trustee will not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, judgment, bond, debenture or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and will incur no liability
of any kind by reason of such inquiry or investigation.


 






    - 73 -


     


    

 


(I) The
Trustee will not be required to give any bond or surety in respect of the execution of the trusts, powers, and duties under this Indenture.


 


(J) The
permissive rights of the Trustee enumerated herein will not be construed as duties. The Trustee undertakes to perform such duties and
only such duties as are specifically and expressly set forth in this Indenture.


 


(K) The
Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and titles of officers
authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person
authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously
delivered and not superseded.


 


(L) The
Trustee will not be deemed to have notice of any Default or Event of Default (except in the case of a Default or Event of Default in payment
of scheduled principal of, or the Redemption Price or Fundamental Change Repurchase Price for, or interest on, any Note) unless written
notice of any event that is in fact such a Default or Event of Default (and stating the occurrence of a Default or Event of Default) is
actually received by the a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references
the Notes, the Company and this Indenture and states that it is a notice of Default or Event of Default.


 


Section 10.03. Individual
Rights of the Trustee.


 


The Trustee, in its individual
or any other capacity, may become the owner or pledgee of any Note and may otherwise deal with the Company or any of its Affiliates with
the same rights that it would have if it were not Trustee; provided, however, that if the Trustee acquires a “conflicting
interest” (within the meaning of Section 310(b) of the Trust Indenture Act), then it must eliminate such conflict within ninety
(90) days or resign as Trustee. The rights, privileges, protections, immunities and benefits given to the Trustee, including its right
to be compensated, reimbursed and indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under
this Indenture and each Note Agent, custodian and other Person retained to act under this Indenture.


 


Section 10.04. Trustee’s
Disclaimer.


 


The Trustee will not be (A)
responsible for, and makes no representation as to, the validity or adequacy of this Indenture or the Notes; (B) accountable for the Company’s
use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this
Indenture; (C) responsible for the use or application of any money received by any Paying Agent other than the Trustee; and (D) responsible
for any statement or recital in this Indenture, the Notes or any other document relating to the sale of the Notes or this Indenture, other
than the Trustee’s certificate of authentication.


 






    - 74 -


     


    

 


Section 10.05. Notice
of Defaults.


 


If a Default or Event of Default
occurs and is continuing and is actually known to a Responsible Officer of the Trustee (in accordance with Section 10.02(L)), then
the Trustee will send Holders a notice of such Default or Event of Default within ninety (90) days after it occurs or, if it is not actually
known to a Responsible Officer of the Trustee at such time, promptly (and in any event within ten (10) Business Days) after it becomes
actually known to a Responsible Officer (in accordance with Section 10.02(L)); provided, however, that, except in
the case of a Default or Event of Default in the payment of the principal of, or interest, if any, on, any Note, the Trustee may withhold
such notice if and for so long as it in good faith determines that withholding such notice is in the interests of the Holders.


 


Section 10.06. Compensation
and Indemnity.


 


(A) The
Company will, from time to time, pay the Trustee (acting in any capacity hereunder) reasonable compensation for its acceptance of this
Indenture and services under this Indenture. The Trustee’s compensation will not be limited by any law on compensation of a trustee
of an express trust. In addition to the compensation for the Trustee’s services, the Company will reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or made by it under this Indenture, including the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.


 


(B) The
Company will indemnify and hold harmless the Trustee (acting in any capacity hereunder) against any and all losses, liabilities or expenses
(including, without limitation, attorneys’ fees and expenses) incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture (including, without
limitation, attorneys’ fees and expenses) against the Company (including this Section 10.06) and defending itself against
any claim (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance
of any of its powers or duties under this Indenture, except to the extent any such loss, liability or expense may be attributable to its
gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision. The
Trustee will promptly notify the Company of any claim for which it may seek indemnity (other than any claim brought by the Company), but
the Trustee’s failure to so notify the Company will not relieve the Company of its obligations under this Section 10.06(B),
except to the extent the Company is materially prejudiced by such failure. The Company will defend such claim, and the Trustee will cooperate
in such defense at the expense of the Company. If the Trustee is advised by counsel that it may have defenses available to it that are
in conflict with the defenses available to the Company, or that there is an actual or potential conflict of interest, then the Trustee
may retain separate counsel, and the Company will pay the reasonable fees and expenses of such counsel (including the reasonable fees
and expenses of counsel to the Trustee incurred in evaluating whether such a conflict exists). The Company need not pay for any settlement
of any such claim made without its consent, which consent will not be unreasonably withheld. The indemnification provided in this Section
10.06 will extend to the officers, directors, agents and employees of the Trustee and any successor Trustee under this Indenture.


 


(C) The
obligations of the Company under this Section 10.06 will survive the resignation or removal of the Trustee and the discharge of
this Indenture.


 






    - 75 -


     


    

 


(D) To
secure the Company’s payment obligations in this Section 10.06, the Trustee will have a lien prior to the Notes on all money
or property held or collected by the Trustee, except that held in trust to pay principal of, or interest on, particular Notes, which lien
will survive the discharge of this Indenture.


 


(E) If
the Trustee incurs expenses or renders services after an Event of Default pursuant to clause (ix) or (x) of Section 7.01(A)
occurs, then such expenses and the compensation for such services (including the fees and expenses of its agents and counsel) are intended
to constitute administrative expenses for purposes of priority under any Bankruptcy Law.


 


Section 10.07. Replacement
of the Trustee.


 


(A) Notwithstanding
anything to the contrary in this Section 10.07, a resignation or removal of the Trustee, and the appointment of a successor Trustee,
will become effective only upon such successor Trustee’s acceptance of appointment as provided in this Section 10.07.


 


(B) The
Trustee may resign at any time and be discharged from its duties and obligations hereunder at any time by giving no less than thirty (30)
calendar days’ prior written notice of such resignation to the Company. The Holders of a majority in aggregate principal amount
of the Notes then outstanding may remove the Trustee by providing no less than thirty (30) calendar days’ prior written notice to
the Trustee and the Company. The Company may remove the Trustee if:


 


(i) the
Trustee fails to comply with Section 10.09;


 


(ii) the
Trustee is adjudged to be bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;


 


(iii) a
custodian or public officer takes charge of the Trustee or its property; or


 


(iv) the
Trustee becomes incapable of acting.


 


(C) If
the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, then (i) the Company will promptly
appoint a successor Trustee; and (ii) at any time within one (1) year after the successor Trustee takes office, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may appoint a successor Trustee to replace such successor Trustee appointed
by the Company.


 


(D) If
a successor Trustee does not take office within sixty (60) days after the retiring Trustee resigns or is removed, then the retiring Trustee
(at the Company’s expense), the Company or the Holders of at least ten percent (10%) in aggregate principal amount of the Notes
then outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee.


 






    - 76 -


     


    

 


(E) If
the Trustee, after written request by a Holder of at least six (6) months, fails to comply with Section 10.09, then such Holder
may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.


 


(F) A
successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company, upon which notice the
resignation or removal of the retiring Trustee will become effective and the successor Trustee will have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee will send notice of its succession to Holders. The retiring Trustee will, upon
payment of all amounts due to it under this Indenture, promptly transfer all property held by it as Trustee to the successor Trustee,
which property will, for the avoidance of doubt, be subject to the lien provided for in Section 10.06(D).


 


Section 10.08. Successor
Trustee by Merger, Etc.


 


If the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, then such corporation
will become the successor Trustee under this Indenture and will have and succeed to the rights, powers, duties, immunities and privileges
of its predecessor without any further act or the execution or filing of any instrument or paper.


 


Section 10.09. Eligibility;
Disqualification.


 


There will at all times be
a Trustee under this Indenture that is a corporation organized and doing business under the laws of the United States of America or of
any state thereof, that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent
published annual report of condition.


 


Article
11. Miscellaneous


 


Section 11.01. Notices.


 


Any notice or communication
by the Company or the Trustee (including in its capacity as any Note Agent) to the other will be deemed to have been duly given if in
writing and delivered in person or by first class mail (registered or certified, return receipt requested), facsimile transmission, electronic
transmission or other similar means of unsecured electronic communication or overnight air courier guaranteeing next day delivery, or
to the other’s address, which initially is as follows:


 


	 	If to the Company:
	 	 
	 	To:	Shift Technologies, Inc.
	 	 	2525 16th Street, Suite 310
	 	 	San Francisco, California 94103-4234
	 	 	Attn: General Counsel



 









    - 77 -


     


    

 





	 	with a copy (which will not constitute notice) to:
	 	 
	 	 	Jenner & Block LLP
	 	 	919 Third Avenue
	 	 	New York, NY 10022-3908
	 	 	Attn: Martin C. Glass; Jeffrey R. Shuman
	 	 	 
	 	If to the Trustee:
	 	 
	 	 	U.S. Bank National Association
	 	 	190 S. LaSalle, 
	 	 	Chicago, IL 60603 
	 	 	Attention: Global Corporate Trust





 


The Company or the Trustee,
by notice to the other, may designate additional or different addresses (including facsimile numbers and electronic addresses) for subsequent
notices or communications.


 


All notices and communications
(other than those sent to Holders) will be deemed to have been duly given: (A) at the time delivered by hand, if personally delivered;
(B) five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; (C) when receipt acknowledged, if transmitted
by facsimile, electronic transmission or other similar means of unsecured electronic communication; and (D) the next Business Day after
timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.


 


All notices or communications
required to be made to a Holder pursuant to this Indenture must be made in writing and will be deemed to be duly sent or given in writing
if mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery,
to its address shown on the Register; provided, however, that a notice or communication to a Holder of a Global Note may,
but need not, instead be sent pursuant to the Depositary Procedures (in which case, such notice will be deemed to be duly sent or given
in writing). The failure to send a notice or communication to a Holder, or any defect in such notice or communication, will not affect
its sufficiency with respect to any other Holder. All notices, approvals, consents, requests and any communications hereunder must be
in writing (provided that any communication sent to Trustee hereunder must be in the form of a document that is signed manually or by
way of a digital signature), in English, and signatures of the parties hereto transmitted by facsimile, PDF or other electronic transmission
(including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) will constitute effective
execution and delivery of this Indenture as to the other parties hereto and will be deemed to be their original signatures for all purposes;
provided, notwithstanding anything to the contrary set forth herein, the Trustee is under no obligation to agree to accept electronic
signatures in any form or format unless express agreed to by the Trustee pursuant to procedures approved by the Trustee. The Company agrees
to assume all risks arising out of the use of digital signatures and electronic methods to submit communications to Trustee, including,
without limitation, the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.


 






    - 78 -


     


    

 


If the Trustee is then acting
as the Depositary’s custodian for the Notes, then, at the reasonable request of the Company to the Trustee, the Trustee will cause
any notice prepared by the Company to be sent to any Holder(s) pursuant to the Depositary Procedures, provided such request is
evidenced in a Company Order delivered, together with the text of such notice, to the Trustee at least two (2) Business Days before the
date such notice is to be so sent. For the avoidance of doubt, such Company Order need not be accompanied by an Officer’s Certificate
or Opinion of Counsel. The Trustee will not have any liability relating to the contents of any notice that it sends to any Holder pursuant
to any such Company Order.


 


If a notice or communication
is mailed or sent in the manner provided above within the time prescribed, it will be deemed to have been duly given, whether or not the
addressee receives it.


 


Notwithstanding anything to
the contrary in this Indenture or the Notes, (A) whenever any provision of this Indenture requires a party to send notice to another party,
no such notice need be sent if the sending party and the recipient are the same Person acting in different capacities; and (B) whenever
any provision of this Indenture requires a party to send notice to more than one receiving party, and each receiving party is the same
Person acting in different capacities, then only one such notice need be sent to such Person.


 


Section 11.02. Delivery
of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.


 


Upon any request or application
by the Company to the Trustee to take any action under this Indenture (other than the Opinion of Counsel described in (B) with respect
to the initial authentication of Notes under this Indenture), the Company will furnish to the Trustee:


 


(A) an
Officer’s Certificate in form and substance reasonably satisfactory to the Trustee that complies with Section 11.03 and states
that, in the opinion of the signatory thereto, all conditions precedent and covenants, if any, provided for in this Indenture relating
to such action have been satisfied; and


 


(B) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee that complies with Section 11.03 and states that,
in the opinion of such counsel, all such conditions precedent and covenants, if any, have been satisfied.


 


Section 11.03. Statements
Required in Officer’s Certificate and Opinion of Counsel.


 


Each Officer’s Certificate
(other than an Officer’s Certificate pursuant to Section 3.05) or Opinion of Counsel with respect to compliance with a covenant
or condition provided for in this Indenture will include:


 


(A) a
statement that the signatory thereto has read such covenant or condition;


 


(B) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained therein
are based;


 


(C) a
statement that, in the opinion of such signatory, he, she or it has made such examination or investigation as is necessary to enable him,
her or it to express an informed opinion as to whether or not such covenant or condition has been satisfied; and


 






    - 79 -


     


    

 


(D) a
statement as to whether, in the opinion of such signatory, such covenant or condition has been satisfied.


 


Section 11.04. Rules
by the Trustee, the Registrar and the Paying Agent.


 


The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements
for its functions.


 


Section 11.05. No
Personal Liability of Directors, Officers, Employees and Stockholders.


 


No past, present or future
director, officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of the Company
under this Indenture or the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting
any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of
the Notes.


 


Section 11.06. Governing
Law; Waiver of Jury Trial.


 


THIS INDENTURE AND THE NOTES,
AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE OR THE NOTES, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE TRUSTEE AND THE HOLDERS OF THE NOTES BY THEIR ACCEPTANCE THEREOF 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
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE OR THE NOTES.


 


Section 11.07. Submission
to Jurisdiction.


 


Any legal suit, action or
proceeding arising out of or based upon this Indenture or the transactions contemplated by this Indenture may be instituted in the federal
courts of the United States of America located in the City of New York or the courts of the State of New York, in each case located in
the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the
extent allowed under any applicable statute or rule of court) to such party’s address set forth in Section 11.01 will be
effective service of process for any such suit, action or proceeding brought in any such court. Each of the Company, the Trustee and each
Holder (by its acceptance of any Note) irrevocably and unconditionally waives any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or claim any such suit,
action or other proceeding has been brought in an inconvenient forum.


 






    - 80 -


     


    

 


Section 11.08. No
Adverse Interpretation of Other Agreements.


 


Neither this Indenture nor
the Notes may be used to interpret any other indenture, note, loan or debt agreement of the Company or its Subsidiaries or of any other
Person, and no such indenture, note, loan or debt agreement may be used to interpret this Indenture or the Notes.


 


Section 11.09. Successors.


 


All agreements of the Company
in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors.


 


Section 11.10. Force
Majeure.


 


The Trustee and each Note
Agent will not incur any liability for not performing or for any delay in performing any act or fulfilling any duty, obligation or responsibility
under this Indenture or the Notes by reason of any occurrence beyond its control (including, without limitation, any act or provision
of any present or future law or regulation or governmental authority, act of God, earthquakes, fires, floods, sabotage, epidemics, pandemics,
riots, interruptions loss or malfunction of utilities, computer (hardware or software) or communications service, accidents, acts of war,
civil or military unrest, labor disputes, acts of civil or military authority or governmental actions, local or national disturbance or
disaster, act of terrorism or unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).


 


Section 11.11. U.S.A.
PATRIOT Act.


 


The Company acknowledges that,
in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions, in order to help fight the funding
of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that
establishes a relationship or opens an account with the Trustee. The Company agrees to provide the Trustee with such information as it
may request to enable the Trustee to comply with the U.S.A. PATRIOT Act.


 


Section 11.12. Calculations.


 


Except as otherwise provided
in this Indenture, the Company will be responsible for making all calculations called for under this Indenture or the Notes, including
determinations of the Last Reported Sale Price, the Daily Conversion Value, the Daily Cash Amount, the Daily Share Amount, accrued interest
on the Notes and the Conversion Rate. None of the Trustee, the Paying Agent, the Registrar nor the Conversion Agent will have any liability
or responsibility for any calculation under this Indenture or in connection with the Notes, any information used in connection with such
calculation or any determination made in connection with a conversion.


 






    - 81 -


     


    

 


The Company will make all
calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders. The Company will provide
a schedule of its calculations in writing to the Trustee and the Conversion Agent, and each of the Trustee and the Conversion Agent may
rely conclusively on the accuracy of the Company’s calculations without independent verification. The Trustee will promptly forward
a copy of each such schedule to a Holder upon its written request therefor.


 


Section 11.13. Severability;
Entire Agreement.


 


If a court of competent jurisdiction
declares any provision of this Indenture or the Notes is invalid, illegal or unenforceable, then the validity, legality and enforceability
of the remaining provisions of this Indenture or the Notes will not in any way be affected or impaired thereby. This Indenture and the
exhibits hereto set forth the entire agreement and understanding of the parties related to this transaction and supersede all prior agreements
and understandings, written or oral.


 


Section 11.14. Counterparts.


 


The parties may sign any number
of copies of this Indenture. Each signed copy will be an original, and all of them together represent the same agreement. Delivery of
an executed counterpart of this Indenture by facsimile, electronically in portable document format or in any other format will be effective
as delivery of a manually executed counterpart.


 


Section 11.15. Table
of Contents, Headings, Etc.


 


The table of contents and
the headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered
a part of this Indenture and will in no way modify or restrict any of the terms or provisions of this Indenture.


 


Section 11.16. Withholding
Taxes.


 


Each Holder of a Note agrees,
and each beneficial owner of an interest in a Global Note, by its acquisition of such interest, is deemed to agree, that, if a Holder
is deemed to have received a distribution subject to federal income tax as a result of an adjustment or the non-occurrence of an adjustment
to the Conversion Rate, (A) then the Company or other applicable withholding agent, as applicable, may, at its option, withhold or set
off any applicable withholding taxes or backup withholding on behalf of such Holder or beneficial owner against interest and payments
upon conversion, repurchase, redemption or maturity of the Notes, and (B) if the Company or other applicable withholding agent pays any
such withholding taxes or backup withholding on behalf of such Holder or beneficial owner, then the Company or such withholding agent,
as applicable, may, at its option, withhold from or set off such payments against payments of cash or the delivery of other Conversion
Consideration on such Note, any payments on the Common Stock or sales proceeds received by, or other funds or assets of, such Holder or
the beneficial owner of such Note.


 


[The Remainder of This Page Intentionally
Left Blank; Signature Page Follows]


 




    - 82 -


     


    


 


IN WITNESS WHEREOF,
the parties to this Indenture have caused this Indenture to be duly executed as of the date first written above.


 


	 	Shift Technologies, Inc.  
	 	 	 	 
	 	By:	/s/ George Arison
	 	 	Name:	George Arison
	 	 	Title:	Founder, CEO
	 	 	 	 
	 	U.S. Bank National
Association, as Trustee  
	 	 	 	 
	 	By:	/s/ Patricia M. Trlak
	 	 	Name:	Patricia M. Trlak
	 	 	Title:	Vice President



 


[Signature Page to Indenture]


 






     


     


    

 


EXHIBIT A


 


FORM OF NOTE


 


[Insert Global Note Legend, if applicable]


 


[Insert Restricted Note Legend, if applicable]


 


[Insert Non-Affiliate Legend]


 


SHIFT TECHNOLOGIES, INC.


 


4.75% Convertible Senior Note due 2026


 


	CUSIP No.:	[___]	Certificate No. [___]
	ISIN No.:	[___]	 






 


Shift Technologies, Inc.,
a Delaware corporation, for value received, promises to pay to [Cede & Co.], or its registered assigns, the principal sum of [___]
dollars ($[___]) [(as revised by the attached Schedule of Exchanges of Interests in the Global Note)]*
on May 15, 2026 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all
accrued and unpaid interest are paid or duly provided for.


 


	Interest Payment Dates:	May 15 and November 15 of each year, commencing on November 15, 2021.
	 	 
	Regular Record Dates:	May 1 and November 1 (whether or not a Business Day).



 


Additional provisions of this
Note are set forth on the other side of this Note.


 


[The Remainder of This Page Intentionally
Left Blank; Signature Page Follows]


 





 






	*	Insert bracketed language for Global Notes only.




 




    A-1


     


    


 


IN WITNESS WHEREOF,
Shift Technologies, Inc. has caused this instrument to be duly executed as of the date set forth below.


 


	 	 	Shift Technologies, Inc.
	 	 	 	 
	Date: ________________________	 	By:	 
		 	 	Name:
		 	 	Title:



 




    A-2


     


    


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


U.S. Bank National Association, as Trustee, certifies
that this is one of the Notes referred to in the within-mentioned Indenture.


 


	Date:	 	 	By:	             
	 	 	 	Authorized Signatory






 




    A-3


     


    


 


SHIFT TECHNOLOGIES, INC.


 


4.75% Convertible Senior Note due 2026


 


This Note is one of a duly
authorized issue of notes of Shift Technologies, Inc., a Delaware corporation (the “Company”), designated as its 4.75%
Convertible Senior Notes due 2026 (the “Notes”), all issued or to be issued pursuant to an indenture, dated as of May
27, 2021 (as the same may be amended from time to time, the “Indenture”), between the Company and U.S. Bank National
Association, as trustee. Capitalized terms used in this Note without definition have the respective meanings ascribed to them in the Indenture.


 


The Indenture sets forth the
rights and obligations of the Company, the Trustee and the Holders and the terms of the Notes. Notwithstanding anything to the contrary
in this Note, to the extent that any provision of this Note conflicts with the provisions of the Indenture, the provisions of the Indenture
will control.


 


1. Interest.
This Note will accrue interest at a rate and in the manner set forth in Section 2.05 of the Indenture. Stated Interest on this Note will
begin to accrue from, and including, [date].


 


2. Maturity.
This Note will mature on May 15, 2026, unless earlier repurchased, redeemed or converted.


 


3. Method
of Payment. Cash amounts due on this Note will be paid in the manner set forth in Section 2.04 of the Indenture.


 


4. Persons
Deemed Owners. The Holder of this Note will be treated as the owner of this Note for all purposes.


 


5. Denominations;
Transfers and Exchanges. All Notes will be in registered form, without coupons, in principal amounts equal to any Authorized Denominations.
Subject to the terms of the Indenture, the Holder of this Note may transfer or exchange this Note by presenting it to the Registrar and
delivering any required documentation or other materials.


 


6. Right
of Holders to Require the Company to Repurchase Notes upon a Fundamental Change. If a Fundamental Change occurs, then each Holder
will have the right to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination)
for cash in the manner, and subject to the terms, set forth in Section 4.02 of the Indenture.


 


7. Right
of the Company to Redeem the Notes. The Company will have the right to redeem the Notes for cash in the manner, and subject to the
terms, set forth in Section 4.03 of the Indenture.


 


8. Conversion.
The Holder of this Note may convert this Note into Conversion Consideration in the manner, and subject to the terms, set forth in Article
5 of the Indenture.


 






    A-4


     


    

 


9. When
the Company May Merge, Etc. Article 6 of the Indenture places limited restrictions on the Company’s ability to be a party to
a Business Combination Event.


 


10. Defaults
and Remedies. If an Event of Default occurs, then the principal amount of, and all accrued and unpaid interest on, all of the Notes
then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms,
set forth in Article 7 of the Indenture.


 


11. Registration
Rights. The Holder of this Note is entitled to registration rights as set forth in the Registration Rights Agreement. Each Holder
shall be entitled to receive Additional Interest in certain circumstances, all as set forth in the Registration Rights Agreement and Section
3.04 of the Indenture.


 


12. Amendments,
Supplements and Waivers. The Company and the Trustee may amend or supplement the Indenture or the Notes or waive compliance with any
provision of the Indenture or the Notes in the manner, and subject to the terms, set forth in Section 7.05 and Article 8 of the Indenture.


 


13. No
Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator
or stockholder of the Company, as such, will have any liability for any obligations of the Company under the Indenture or the Notes or
for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any Note, each Holder waives
and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes.


 


14. Authentication.
No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized
signatory of the Trustee (or a duly appointed authenticating agent) manually or electronically signs the certificate of authentication
of such Note.


 


15. Abbreviations.
Customary abbreviations may be used in the name of a Holder or its assignee, such as TEN COM (tenants in common), TEN ENT (tenants by
the entireties), JT TEN (joint tenants with right of survivorship and not as tenants in common), CUST (custodian), and U/G/M/A (Uniform
Gift to Minors Act).


 


16. Governing
Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


* * *


 






    A-5


     


    

 


To request a copy of the Indenture,
which the Company will provide to any Holder at no charge, please send a written request to the following address:


 


Shift Technologies, Inc.


2525 16th Street, Suite 310


San Francisco, California 94103-4234


Attn: General Counsel


 


 


 


 


 


 


 


 


 


 


 




    A-6


     


    


 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE*


 


INITIAL PRINCIPAL AMOUNT OF THIS GLOBAL NOTE: $[___]


 


The following exchanges, transfers or cancellations
of this Global Note have been made:


 


	Date	 	Amount of Increase (Decrease) in Principal Amount of this Global Note	 	Principal Amount of this

                                                                                Global Note After Such

                                                                                Increase (Decrease)
	 	Signature of Authorized Signatory of Trustee
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 



 










 






	*	Insert for Global Notes only.




 






    A-7


     


    

 


NOTICE OF CONVERSION


 


SHIFT TECHNOLOGIES, INC.


 


4.75% Convertible Senior Notes due 2026


 


Subject
to the terms of the Indenture, by executing and delivering this Notice of Conversion, the undersigned Holder of the Note identified below
directs the Company to convert (check one):


 


		☐
                          the entire principal amount of



 


		☐	$ _____________________*
                                                                                                                                                 aggregate principal amount of



 


the
Note identified by CUSIP No. _____________and Certificate No. ________________.


 


The
undersigned acknowledges that if the Conversion Date of a Note to be converted is after a Regular Record Date and before the next Interest
Payment Date, then such Note, when surrendered for conversion, must, in certain circumstances, be accompanied with an amount of cash
equal to the interest that would have accrued on such Note to, but excluding, such Interest Payment Date.


 


	Date:	 	 	 	 
	 	 	 	(Legal Name of Holder)
	 	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Name:
	 	 	 	 	Title:
	 	 	 	 	 
		 	 	Signature Guaranteed:
	 	 	 	 
	 	 	 	 
	 	 	 	Participant in a Recognized Signature
	 	 	 	Guarantee Medallion Program
	 	 	 	 	 
	 	 	 	By:	 
	 	 	 	Authorized Signatory


 





 






	*	Must be an Authorized Denomination.




 




    A-8


     


    


 


FUNDAMENTAL CHANGE REPURCHASE NOTICE


 


SHIFT TECHNOLOGIES, INC.


 


4.75% Convertible Senior Notes due 2026


 


Subject to the terms of the Indenture, by executing
and delivering this Fundamental Change Repurchase Notice, the undersigned
Holder of the Note identified below is exercising its Fundamental Change Repurchase Right with respect to (check one):


 


		☐	the
                                            entire principal amount of



 


		☐	$________________*aggregate principal amount of



 


the
Note identified by CUSIP No. ______________and Certificate No. _______________.


 


The undersigned acknowledges that this Note, duly
endorsed for transfer, must be delivered to the Paying Agent before the Fundamental Change Repurchase Price will be paid.


 





	Date:	 	 	 	 
	 	 	 	(Legal Name of Holder)
	 	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Name:
	 	 	 	 	Title:
	 	 	 	 	 
		 	 	Signature Guaranteed:
	 	 	 	 
	 	 	 	 
	 	 	 	Participant in a Recognized Signature
	 	 	 	Guarantee Medallion Program
	 	 	 	 	 
	 	 	 	By:	 
	 	 	 	Authorized Signatory





 





 






	*	Must be an Authorized Denomination.




 




    A-9


     


    


 


ASSIGNMENT FORM


 


SHIFT TECHNOLOGIES, INC.


 


4.75% Convertible Senior Notes due 2026


 


Subject to the terms of the Indenture, the undersigned
Holder of the within Note assigns to:


 


	Name:	_____________________________________



 


	Address:	_____________________________________



 


Social security
or


tax identification


	number:	_____________________________________



 


the within Note and all rights thereunder irrevocably
appoints:


 


as agent to transfer the within Note on the books
of the Company. The agent may substitute another to act for him/her.


 





	Date:	 	 	 	 
	 	 	 	(Legal Name of Holder)
	 	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Name:
	 	 	 	 	Title:
	 	 	 	 	 
		 	 	Signature Guaranteed:
	 	 	 	 	 
	 	 	 	 
	 	 	 	Participant in a Recognized Signature
	 	 	 	Guarantee Medallion Program
	 	 	 	 	 
	 	 	 	By:	 
	 	 	 	Authorized Signatory





 




    A-10


     


    


 


TRANSFEROR ACKNOWLEDGMENT


 


If
the within Note bears a Restricted Note Legend, the undersigned further certifies that (check one):


 


	1.	☐	Such Transfer is being made to the Company or a Subsidiary of
the Company.



 


	2.	☐ 	 Such Transfer is being made pursuant to, and in accordance
with, a registration statement that is effective under the Securities Act at the time of the Transfer.



 


	3.                                            	☐
                                            	Such Transfer is being made pursuant to, and in accordance with, Rule 144A under the
Securities Act, and, accordingly, the undersigned further certifies that the within Note is being transferred to a Person that the undersigned
reasonably believes is purchasing the within Note for its own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the
meaning of Rule 144A under the Securities Act in a transaction meeting the requirements of Rule 144A. If this item is checked, then
the transferee must complete and execute the acknowledgment contained on the next page.



 


	4.	☐ 	Such Transfer is being made pursuant to, and in accordance with, any other
available exemption from the registration requirements of the Securities Act (including, if available, the exemption provided by Rule
144 under the Securities Act).






 


	Dated:	 	 
	 	 	 
	(Legal Name of Holder)	 
	 	 	 
	By:	 	 
		Name:	 
		Title:	 
	 	 	 
	Signature Guaranteed:	 
	 	 	 
	 	 
	(Participant in a Recognized Signature	 
	Guarantee Medallion Program)	 
	 	 	 
	 	 	 
	By:	 	 
	 	Authorized Signatory	 






 




    A-11


     


    


 


TRANSFEREE ACKNOWLEDGMENT


 


The undersigned represents that it is purchasing
the within Note for its own account, or for one or more accounts with respect to which the undersigned exercises sole investment discretion,
and that and the undersigned and each such account is a “qualified institutional buyer” within the meaning of Rule 144A under
the Securities Act. The undersigned acknowledges that the transferor is relying, in transferring the within Note on the exemption from
the registration and prospectus-delivery requirements of the Securities Act of 1933, as amended, provided by Rule 144A and that the undersigned
has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A.


 


	Dated:	 	 
	 	 	 
	 	 
	(Name of Transferee)	 
	 	 	 
	By:	 	 
		Name:	
		Title:	



 







    A-12


     


    


 


EXHIBIT B-1


 


FORM OF RESTRICTED NOTE LEGEND


 


THE OFFER AND SALE OF THIS NOTE AND THE SHARES
OF CLASS A COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE (IF ANY) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND THIS NOTE AND SUCH SHARES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR THEREOF OR OF A BENEFICIAL INTEREST HEREIN OR THEREIN, THE ACQUIRER:


 


		(1)	REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER”
(WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH
ACCOUNT, AND



 


		(2)	AGREES FOR THE BENEFIT OF SHIFT TECHNOLOGIES, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE AND THE SHARES OF CLASS A COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE (IF ANY) OR
ANY BENEFICIAL INTEREST HEREIN, EXCEPT ONLY:



 


		(A)	TO THE COMPANY OR ANY SUBSIDIARY THEREOF;



 


		(B)	PURSUANT TO A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT;
	 	 	 
	 	(C)

                    
	TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT;
	 	(D)	PURSUANT
TO RULE 144 UNDER THE SECURITIES ACT; OR
	 	 	 
	 	(E)	PURSUANT
TO ANY OTHER EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.



 








BEFORE THE REGISTRATION OF ANY SALE OR TRANSFER
IN ACCORDANCE WITH (2)(C), (D) OR (E) ABOVE, THE COMPANY, THE TRUSTEE AND THE REGISTRAR RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH
CERTIFICATES OR OTHER DOCUMENTATION OR EVIDENCE AS THEY MAY REASONABLY REQUIRE IN ORDER TO DETERMINE THAT THE PROPOSED SALE OR TRANSFER
IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.


 


THIS NOTE AND THE SHARES OF COMMON STOCK, IF ANY,
ISSUABLE UPON CONVERSION OF THIS NOTE SHALL BE ENTITLED TO THE BENEFITS OF THAT CERTAIN REGISTRATION RIGHTS AGREEMENT, DATED MAY 27, 2021,
AMONG SHIFT TECHNOLOGIES, INC. AND THE INITIAL PURCHASERS (AS DEFINED IN THE INDENTURE, DATED AS OF MAY 27, 2021, BETWEEN THE COMPANY
AND U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE).


 




    B1-1


     


    


 


EXHIBIT B-2


 


FORM OF GLOBAL NOTE LEGEND


 


THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED
BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS THE OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL NOTE WILL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS
OF PORTIONS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE
HEREINAFTER REFERRED TO.


 




    B2-1


     


    


 


EXHIBIT B-3


 


FORM OF NON-AFFILIATE LEGEND


 


NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE
SECURITIES ACT) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY DURING
THE THREE IMMEDIATELY PRECEDING MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR OWN THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.


 


 


B3-1