Exhibit 4.1


 





DIGITAL
TURBINE, INC.



as Issuer,


 

the Guarantors party hereto

AND



U.S. Bank National Association


 


as
Trustee


 





 



 





Second Supplemental Indenture





 


Dated as of May 23,

2017





 


8.75% Convertible Senior


Notes due 2020





 








 







     


     


    

 


SECOND SUPPLEMENTAL INDENTURE, dated as
of May 23, 2017 (the “Supplemental Indenture”) by and among Digital Turbine, Inc., a company duly incorporated
and existing under the laws of Delaware, United States of America, and having its principal office at 300 GUADALUPE STREET, SUITE
302, AUSTIN TX 78701, as Issuer (the “Company”), the Guarantors and U.S. Bank National Association, as Trustee
(the “Trustee”) under the Indenture, dated as of September 28, 2016, as amended by the First Supplemental Indenture
dated as of January 12, 2017 (as amended and supplemented, the “Indenture”). Capitalized terms used but not
defined herein are defined in the Indenture and are used herein with the meanings assigned to them therein.


 


RECITALS OF THE COMPANY


 


WHEREAS, the Company has outstanding 8.75%
Convertible Senior Notes due 2020 (each a “Note” and collectively, the “Notes”) issued pursuant
to the Indenture;


 


WHEREAS, each of the Guarantors has guaranteed
the Company’s obligations under the Indenture and the Notes executed pursuant to the Indenture;


 


WHEREAS, Section 4.13 of the Indenture prohibits,
among other things, the Company from incurring Secured Debt (other than Permitted Debt) without the consent or waiver of the Holders
of two-thirds of the aggregate principal amount of the Notes outstanding (the “Required Holders”);


 


WHEREAS, in consideration for entering into
this Supplemental Indenture, the Company has received the written consent, waiver and agreement from the Required Holders for the
Company and its subsidiaries (including the Guarantors) to incur Secured Loans (as defined below), which would constitute Secured
Debt that would not be Permitted Debt, and grant all related pledges and other rights contemplated thereby, all upon the terms
and conditions set forth herein and in those certain Noteholder Instructional Consents, in the form of Exhibit A, of even
date herewith;


 


WHEREAS, Section 13.02 of the Indenture
provides, subject to exceptions specified therein which are not applicable to the Supplemental Indenture, and subject to obtaining
from the Required Holders in connection with incurrence of Secured Debt, that with the consent of the Holders (other than the Company
and any Person controlled by the Company (within the meaning of the definition of the term “Affiliate”)) of not less
than a majority in Principal Amount of the outstanding Notes, including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Notes, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental thereto
for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or
of modifying in any manner the rights of the Holders under the Indenture;


 


WHEREAS, the consents from the Required
Holders also include consent sufficient to authorize this Supplemental Indenture under Section 13.02;


 


WHEREAS, the Company and each of the Guarantors
have duly authorized the execution and delivery of this Supplemental Indenture; and


 






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WHEREAS, all things necessary to make this
Supplemental Indenture a valid and legally binding agreement of the Company and the Guarantors, respectively, in accordance with
the terms of the Indenture, have been done.


 


NOW, THEREFORE, THIS SECOND SUPPLEMENTAL
INDENTURE WITNESSETH, for and in consideration of the premises, the covenants herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties agree as follows:


 


Article
1.


 


Section 1.01Amendments to the Indenture.
As of the date hereof, the Indenture is hereby amended, modified and supplemented as follows:


 


(a)       A
new definition of “Secured Loan” in hereby added to Section 1.01 of the Indenture, in alphabetical sequence relative
to the other defined terms in such Section 1.01, and shall read as follows:


 


“Secured Loan”
or “Secured Loans” shall mean all loans, extensions of credit, letters of credit, credit facilities (revolving
or otherwise), notes, debentures, guarantees and term loans, any and all of which may be secured and encumbered (including on
a first priority lien basis) by up to all current and future assets, rights and properties of the Company and its Subsidiaries
(including the Guarantors), whether through pledges, liens, encumbrances and grants of collateral and all indemnities, payment
obligations and other transactions arising thereunder, from any lender or group of lenders (whether bank or non-bank) or their
transferees or assigns, pursuant to any and all loan agreements, notes, collateral agreements, pledge agreements, guarantees,
instruments and certificates related thereto, including, but not limited to any of the foregoing arising under or related to loan
and collateral documentation by and between, on the one hand Bridge Bank, a division of Western Alliance Bank, and any or all
of its affiliates, assignees or successors (including any assignees of any interest in such a loan from Bridge Bank and/or by
way of any sale or change of control of Western Alliance Bank or of its Bridge Bank division), and on the other hand the Company
and one or more of its Subsidiaries (including any or all of the Guarantors) as borrower and/or guarantor, and all other rights
of the lenders thereunder. The term Secured Loan(s) shall also include all amendments, restatements, refinancings, extensions,
supplements, waivers, consents, replacements or modifications of or to the foregoing.


 


(b)       A
new definition of “Second Supplemental Indenture” and “Second Supplemental Effective Date” are hereby
added to Section 1.01 of the Indenture, in alphabetical sequence relative to the other defined terms in such Section 1.01, and
shall read as follows:


 


“Second Supplemental Indenture”
means the Second Supplemental Indenture to the Indenture, and the “Second Supplemental Effective Date”
shall mean the date that the Second Supplemental Indenture becomes effective in accordance with Section 13.04 of the Indenture.


 






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(c)       A
new Section 6.05(m) is hereby added to the Indenture immediately after current Section 6.05(l) of the Indenture, and shall read
as follows:


 


Section 6.05(m) Conversion Rate
Adjustment. From and after the determination of the Measured Price, the Conversion Rate shall be adjusted to be equal to $1,000
divided by the Measured Price, subject to adjustment as set forth herein.


 


(d)       A
new definition of “Measured Price” in hereby added to Section 1.01 of the Indenture, in alphabetical sequence relative
to the other defined terms in such Section 1.01, and shall read as follows:


 


“Measured Price”
shall mean the dollar amount calculated as follows: (A) If the sum of (i) the simple
average of the Daily VWAP for Common Stock for all of the consecutive VWAP Trading Days that occur during the Measurement Period
plus (ii) ten percent (10%) of the amount determined under clause (i) (the “Measured Sum”) is greater
than or equal to $1.00 but less than or equal to $1.364, then the Measured Price shall be the Measured Sum; (B) if the Measured
Sum is less than $1.00, then the Measured Price shall be $1.00; and (C) if the Measured Sum is greater than $1.364, then the Measured
Price shall be $1.364 (with all dollar amounts used to determine the Measured Price being subject to equitable and proportional
adjustment for any stock splits, stock dividends and the like that occur prior to the determination of the Measured Price).


 


(e)       A
new definition of “Measurement Period” in hereby added to Section 1.01 of the Indenture, in alphabetical sequence
relative to the other defined terms in such Section 1.01, and shall read as follows:


 


“Measurement Period”
means the period commencing on and including the ninetieth (90th) day after the Second Supplemental Effective Date
and ending on and including the one hundred and twentieth (120th) day after the Second Supplemental Effective Date,
in both cases, commencing the count from and including the first day immediately after the Second Supplemental Effective Date,
which is the first day of the count.


 


(f)       The
new definitions “Second Stockholders Approval,” “Second Stockholder Meeting Date,” “Second Stockholder
Meeting,” “Second Stockholder Resolutions” and “Second Stockholder Approval Deadline” are hereby
added to Section 1.01 of the Indenture, in alphabetical sequence relative to the other defined terms in such Section 1.01, and
shall read as follows:


 


“Second Stockholder Approval”,
“Second Stockholder Meeting Deadline”, “Second Stockholder Resolutions”, “Second
Stockholder Meeting” and “Second Stockholder Approval Date” shall have the meanings specified in
Section 6.04(b)(B) of this Indenture.


 






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(g)       The
definition of “Permitted Debt” in Section 1.01 of the Indenture is hereby amended and restated to read as follows:


 


“Permitted Debt”
means:


 


(a)          the
Notes and any guarantees thereof, including the Note Guarantees;


 


(b)          indebtedness
already existing in an acquired entity at the time of acquisition of such entity by the Company or any of its Subsidiaries, so
long as such debt was not incurred in order to effect such acquisition, and neither the Company nor any of its Subsidiaries shall
guarantee such debt following such acquisition;


 


(c)          any
unsecured guarantees by the Company or any of its Subsidiaries of the Company’s indebtedness or indebtedness of any of the
Company’s Subsidiaries not otherwise prohibited under this Indenture;


 


(d)          indebtedness
in respect of capital leases and synthetic lease obligations;


 


(e)          unsecured
intercompany indebtedness among the Company and any of its Subsidiaries, or between two or more of the Subsidiaries of the Company;


 


(f)          current
liabilities which are incurred in the ordinary course of business and which are not incurred through the borrowing of money, including
credit incurred in the ordinary course of business with corporate credit cards by the Company and its Subsidiaries;


 


(g)          indebtedness
incurred as a result of endorsing negotiable instruments received in the ordinary course of business;


 


(h)          purchase
money indebtedness (i) for equipment acquired or held by the Company or its Subsidiaries incurred for financing the acquisition
of the equipment, or (ii) existing on equipment when acquired;


 


(i)          a
letter of credit issued by Silicon Valley Bank, Bridge Bank or any other commercial bank used to satisfy a security deposit to
the landlord of the Company’s office in Australia, in the aggregate amount of not more than $350,000;


 


(j)          any
and all Secured Loans outstanding at any time or from time to time, provided that the aggregate principal amount (which, for the
avoidance of doubt, shall include any interest thereon that becomes part of the principal amount by way of paying the interest
in kind or otherwise, but excluding the aggregate of any accrued and unpaid cash interest, fees, attorneys fees, costs, charges,
and expenses payable under the agreements documenting or evidencing the Secured Loans or in respect thereof) of any and all Secured
Loan or Secured Loans, and all refinancings, extensions, supplements, waivers, consents, replacements or modifications thereof,
shall not at any time exceed $5 million; and


 






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(k)          extensions,
refinancings and renewals of indebtedness set forth above in this definition.


 


 


(h)       Section
6.04(b) of the Indenture is hereby amended and restated in its entirety to read as follows:


 


(b)          (A)
The Company shall provide each stockholder entitled to vote at a special or annual meeting of stockholders of the Company (the
“Stockholder Meeting”), which shall be promptly called and held not later than January 15, 2017 (the “Stockholder
Meeting Deadline”), a proxy statement soliciting each such stockholder’s affirmative vote at the Stockholder Meeting
for approval of resolutions (“Stockholder Resolutions”) providing for issuance of the Conversion Shares and shares
underlying the Warrants in compliance with the rules and regulations of the Principal Market (collectively, the “Stockholder
Approval”, and the date the Stockholder Approval is obtained, the “Stockholder Approval Date”), and the Company
shall use its reasonable best efforts to solicit its stockholders’ approval of such resolutions and to cause the Board of
Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be obligated to
seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company's reasonable best efforts
the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional
Stockholder Meeting to be held on or prior to May 15, 2017. If, despite the Company's reasonable best efforts the Stockholder
Approval is not obtained after such subsequent stockholder meetings, the Company shall cause an additional Stockholder Meeting
to be held annually thereafter until such Stockholder Approval is obtained.


 


(B) From and after the Second Supplemental
Effective Date, the Company shall provide each stockholder entitled to vote at a special or annual meeting of stockholders of
the Company (the “Second Stockholder Meeting”), which shall be promptly called and held not later than January 30,
2018 (the “Second Stockholder Meeting Deadline”), a proxy statement soliciting each such stockholder’s affirmative
vote at the Second Stockholder Meeting for approval of resolutions (“Second Stockholder Resolutions”) providing for
issuance of the Conversion Shares and shares underlying the Warrants in compliance with the rules and regulations of the Principal
Market in light of the Second Supplemental Indenture (collectively, the “Second Stockholder Approval”, and the date
the Second Stockholder Approval is obtained, the “Second Stockholder Approval Date”), and the Company shall use its
reasonable best efforts to solicit its stockholders’ approval of such resolutions and to cause the Board of Directors of
the Company to recommend to the stockholders that they approve such resolutions. The Company shall be obligated to seek to obtain
the Second Stockholder Approval by the Second Stockholder Meeting Deadline. If, despite the Company's reasonable best efforts
the Second Stockholder Approval is not obtained on or prior to the Second Stockholder Meeting Deadline, the Company shall cause
an additional Second Stockholder Meeting to be held on or prior to May 30, 2018. If, despite the Company's reasonable best efforts
the Second Stockholder Approval is not obtained after such subsequent stockholder meetings, the Company shall cause an additional
Second Stockholder Meeting to be held annually thereafter until such Second Stockholder Approval is obtained. Furthermore, it
is understood and agreed that from and after the Second Supplemental Effective Date, the approval of the Company’s stockholders
referred to in subsection (A) of Section 6.04 of this Indenture shall no longer be effective, and therefore all the limitations
that applied prior to the Stockholder Approval shall continue to apply unless and until the Second Stockholder Approval is obtained
or if subsection (B) of Section 6.04 of the this Indenture applies.


 






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(i)       Section
4.13 of the Indenture is hereby amended and restated to read as follows:


 


Section 4.13         Limitation
on Indebtedness and Restricted Payments. For such time as there is any aggregate outstanding principal amount of the Notes,
the Company and its Subsidiaries shall not incur:


 


(1)         Secured
Debt (other than Permitted Debt); and


 


(2)         Unsecured
Debt (other than Permitted Debt).


 


For such time as there is any
aggregate outstanding principal amount of the Notes, the Company or its Subsidiaries may not make any Restricted Payments.


 


The limitations on the ability
to incur Secured Debt or Unsecured Debt, or make Restricted Payments, may be waived by the Holders of two-thirds of the aggregate
principal amount of Notes then outstanding.


 


Notwithstanding anything in this
Indenture or Section 4.13 to the contrary, and for the avoidance of doubt, the Company and its Subsidiaries (including the Guarantors)
are permitted to incur and guarantee, any and all Secured Loans at any time or from time to time and to perform all obligations
and grant all pledges arising thereunder (including, without limitation, granting the lender of such Secured Loans remedies for
the protection and enforcement of its rights therein, including without limitation foreclosure, payment blockage, standstill and
other secured creditor remedies), provided that the aggregate principal amount (which, for the avoidance of doubt, shall include
any interest thereon that becomes part of the principal amount by way of paying the interest in kind or otherwise, but excluding
the aggregate of any accrued and unpaid cash interest, fees, attorneys fees, costs, charges, and expenses payable under the agreements
documenting or evidencing the Secured Loans or in respect thereof) of any and all Secured Loan or Secured Loans, and all refinancings,
extensions, supplements, waivers, consents, replacements or modifications thereof, shall not at any time exceed $5 million.


 






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Section 1.02Comprehensive Indenture.
For illustrative purposes only, a copy of the Indenture with the amendments in this Supplemental Indenture incorporated with added
text indicated by underlining is attached hereto as Exhibit B.


 


Article
2.


 


Section 2.01Benefit. All the
covenants, provisions, stipulations and agreements contained in this Supplemental Indenture are and shall be for the sole and exclusive
benefit of the parties hereto, their successors and assigns, and of the Holders and registered owners from time to time of the
Notes as hereby amended and supplemented.


 


Section 2.02Receipt by Trustee.
In accordance with Section 1.02 and Section 14.02 of the Indenture, the Trustee acknowledges that it has received an Officer’s
Certificate and Opinion of Counsel stating that the Supplemental Indenture complies with Section 14.02 of the Indenture and that
all conditions precedent provided in the Indenture relating to the Supplemental Indenture have been satisfied.


 


Section 2.03Governing Law. THIS
SUPPLEMENTAL INDENTURE AND THE NOTES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE
OR THE NOTES, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


Section 2.04Multiple Originals.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this Supplemental Indenture. Delivery of an executed
counterpart by facsimile or by electronic means shall be effective as delivery of a manually executed counterpart thereof.


 


Section 2.05Effect of Headings.
The Article and Section headings herein are for convenience only and shall not affect the construction hereof.


 


Section 2.06References. Each
reference in the Indenture or this Supplemental Indenture to any article, section, term or provision of the Indenture shall mean
and be deemed to refer to such article, section, term or provision of the Indenture, as modified by this Supplemental Indenture,
except where the context otherwise indicates.


 


Section 2.07Severability. In
case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to
the extent of such invalidity, illegality or unenforceability.


 


Section 2.08The Trustee. The
Trustee shall not be responsible in any manner whatsoever for or in respect of the validity, legality or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which recitals are made by the Company.


 






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Section 2.09Ratification of Indenture;
Supplemental Indenture Part of Indenture. Except as expressly supplemented hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered
shall be bound hereby.


 


 


 


[Remainder of the page intentionally
left blank]


 




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


 





	 	DIGITAL
    TURBINE, INC.
	 	 	 
	 	By:	/s/ William Stone
	 	Name: 	William Stone
	 	Title:	Chief Executive
    Officer
	 	 	 
	 	By:	/s/
    Barrett Garrison 
	 	Name:	Barrett Garrison
	 	Title:	Chief Financial
    Officer
	 	 	 
	 	GUARANTORS:
	 	 	 
	 	Digital
    Turbine USA, Inc., a Delaware corporation
	 	 	 
	 	By:	/s/William
    Stone
	 	Name:
    	William Stone
	 	Title:
    	Chief Executive
    Officer
	 	 	 
	 	Digital
    Turbine Media, Inc., a Delaware corporation
	 	 	 
	 	By:	/s/William
    Stone
	 	Name:	William Stone
	 	Title:	Chief Executive
    Officer
	 	 	 
	 	Digital
    Turbine (EMEA) Ltd., a company formed under the laws of Israel
	 	 	 
	 	By:	/s/William
    Stone
	 	Name:	William Stone
	 	Title:	Chief Executive
    Officer
	 	 	 
	 	By:	/s/
    Revital Musalem
	 	Name:	Revital Musalem
	 	Title:	Controller
	 	 	 
	 	Digital
    Turbine Asia Pacific Pty Ltd., a company formed under the laws of Australia
	 	 	 
	 	By:	/s/William
    Stone
	 	Name:	William Stone
	 	Title:	Chief Executive
    Officer
	 	 	 
	 	 	 
	 	U.S.
    Bank National Association
	 	as
    Trustee	 
	 	 	 
	 	By:	/s/
    Bradley E. Scarbrough
	 	Name:	Bradley E.
    Scarbrough
	 	Title:	Vice President


  




    
Signature Page to Second Supplemental Indenture



     


    

 


EXHIBIT A


 


Noteholder Instructional
Consent


 


[See Attached]


 


[Omitted]


 


EXHIBIT B


 


Comprehensive Indenture


 


[See Attached]


 


[Omitted]